United States District Court, D. Massachusetts
ANDREW C. BOCHART, Plaintiff,
ERIC G. WAYNE, Defendant.
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
ATTORNEYS' FEES AND COSTS
Dennis Saylor IV United States District Judge.
Andrew Bochart brought this action under 42 U.S.C. §
1983 and related state-law theories following an altercation
in a bar. Plaintiff alleged that Police Officer Eric Wayne
used excessive force against him, causing him substantial
injuries, when he was a patron at Hookslide Kelly's in
Lowell. After a four-day jury trial, the Court granted
defendant's motion for a directed verdict as to
plaintiff's deliberate-indifference claim and the jury
returned a verdict in favor of plaintiff on his
excessive-force claim. The jury awarded plaintiff damages in
the amount of $494.56.
then moved, pursuant to 42 U.S.C. § 1988, for an award
of attorneys' fees in the amount of $59, 922. He also
moved for an award of costs, pursuant to Fed.R.Civ.P. 54(d),
in the amount of $8, 004.79. For the reasons stated below,
that motion will be granted in part and denied in part.
filed the complaint in this action on July 23, 2013. The
complaint alleged that Lowell Police Officer Eric Wayne, the
City of Lowell, and Hookslide Kelly's were all liable for
injuries sustained by plaintiff when he was arrested by Wayne
during the course of an altercation at Hookslide Kelly's.
Plaintiff stipulated to the dismissal of the claims against
Hookslide Kelly's in March 2015. In October 2015, he
stipulated to the dismissal of the claims against City of
Lowell, after the Court had denied the City's motion to
dismiss and the parties had completed discovery. Also in
October 2015, defendant Wayne moved for partial summary
judgment. That motion was granted in part and denied in part.
case then proceeded to trial. Plaintiff filed numerous
motions in limine, as well as Daubert
motions, and opposed numerous motions in limine
filed by the defendant. After a four-day jury trial, the
Court granted defendant's motion for a directed verdict
as to plaintiff's deliberate indifference claim and the
jury returned a verdict in favor of plaintiff on excessive
force claim. The jury awarded plaintiff damages in the amount
of $494.56. Plaintiff has now moved for an award of
reasonable attorneys' fees pursuant to 42 U.S.C. §
1988, as well as costs pursuant to Fed.R.Civ.P. 54(d).
Reasonable Attorneys' Fees
the Fees Act, 42 U.S.C. § 1988, a plaintiff who prevails
in a § 1983 claim may be awarded reasonable
attorneys' fees. Although the fee-shifting provision of
§ 1988 “is couched in permissive terminology,
awards in favor of prevailing civil rights plaintiffs are
virtually obligatory.” Diaz-Rivera v.
Rivera-Rodriguez, 377 F.3d 119, 124 (1st Cir. 2004)
(internal quotation marks omitted). The First Circuit follows
the “lodestar” approach to determining reasonable
attorneys' fees under the Fees Act. See Gay Officers
Action League v. Puerto Rico, 247 F.3d 288, 295 (1st
lodestar method involves “multiplying the number of
hours productively spent by a reasonable hourly rate to
calculate a base figure.” Torres-Rivera v.
O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008)
(citing Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). The court may then adjust the lodestar amount upward
or downward based on a number of factors, chief among which
are the results obtained. See Coutin v. Young &
Rubicam Puerto Rico, Inc., 124 F.3d 331, 338 (1st Cir.
1997). In this context, the “results obtained”
includes the “plaintiff's success claim by claim,
” “the relief actually achieved, ” and
“the societal importance of the right which has been
vindicated.” Id. A failure to prevail on all
claims, as well as a “scanty damage award” cut in
favor of a reduction in fees, while the vindication of
important rights cuts against a reduction. Id. at
388 & n.5.
counsel spent approximately 1, 600 hours working on this
case. However, due to the relatively modest amount of the
damages awarded to plaintiff, he has reduced the number of
hours for which he seeks attorneys' fees to 894.7. Of
that 894.7 hours, 754.2 hours of work was performed by
plaintiff's lead counsel, Paul Klehm, at a rate of
$350/hour; 37.7 hours of work was performed by attorney James
Krasnoo, at a rate of $400/hour; and 102.8 hours of work was
performed by attorney Benjamin Falkner, at a rate of
$200/hour. All three are named partners at the firm Krasnoo,
Klehm & Falkner, LLP. Those figures result in a total of
$299, 610 in fees. However, again in recognition of the
modest damages award, plaintiff has reduced his request by
80%, to reach a final fee request of $59, 922.
does not dispute either that plaintiff is entitled to
attorneys' fees, the hours billed, or the hourly rates
applied. Defendant's only opposition to plaintiff's
calculation is that the 80% reduction is too limited in light
of plaintiff's relatively meager recovery, and that a
reduction of 95% should be applied.
a meager damage award may be taken into consideration, the
[Supreme] Court has squarely disclaimed ‘the
proposition that fee awards under § 1988 should
necessarily be proportionate to the amount of damages a civil
rights plaintiff actually recovers.'” Id.
at 339 (quoting City of Riverside v. Rivera, 447
U.S. 561, 574 (1986)). A small recovery is one factor to be
considered, but it “does not constitute a dispositive
criterion, or even ceiling on an ensuing fee award.”
Foley v. City of Lowell, 948 F.2d 10, 19 (1st Cir.
1991). Furthermore, while the damages award here was
significantly lower than the damages alleged by plaintiff, it
was not merely an award of nominal damages. The $494.56 was equal to
plaintiff's hospital bill from the morning after his
arrest. This is not, therefore, a case in which plaintiff
failed to prove any actual, compensable damages. Cf.
Farrar v. Hobby, 506 U.S. 103, 115 (1992) (stating that
fees should not be awarded in civil rights suit for damages
where plaintiff recovers only nominal damages because
“the awarding of nominal damages . . . highlights the
plaintiff's failure to prove actual, compensable
plaintiff's claim-by-claim success, his calculation of
time spent working on the case-a calculation that defendant
does not dispute-already excludes time spent on the dismissed
claims against the City of Lowell and Hookslide Kelly's.
And while the Court did grant defendant's motion for a
directed verdict as to plaintiff's deliberat-indifference
claim, the 80% reduction-viewed in light of the other