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recognizing $150 as appropriate rate in civil rights case
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NO: 98-3283
July 9, 2001.
ORDER AND REASON
Before the Court are the motions of plaintiff Adesina Oyefodun and defendant Officer William Labiche for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), or in the alternative, motions for a new trial pursuant to Rule 59(a). Plaintiff also asks the Court for attorney's fees pursuant to 42 U.S.C. § 1988. For the reasons stated below, the Court grants in part and denies in part plaintiff's motions and grants in part and denies in part defendant's motions. Accordingly, the Court will reform the verdict, eliminating the jury's grant of punitive damages. The Court also awards the plaintiff $25,050 in attorney's fees.
I. Background
On December 23, 1997, during a traffic stop, plaintiff Adesina Oyefodun sustained injuries arising out of an altercation with defendant William Labiche, a New Orleans police officer. Plaintiff sought damages for his injuries under 42 U.S.C. § 1983 for excessive force and brought pendant state law claims for assault and battery, false arrest, and intentional infliction of emotional distress.
The parties presented this case to a jury from February 20, 2001 through February 22, 2001. The jury rendered a verdict on February 23, 2001 in favor of Adesina Oyefodun and against William Labiche on the claim of excessive force. The jury awarded Oyefodun $396.00 in compensatory damages. The jury also found unnecessarily and in violation of the instructions on the verdict form that the plaintiff was entitled to $1.00 in punitive damages. The Court ordered each party bear its own trial costs.
Plaintiff challenges the jury's verdict (1) because it failed to find that William Labiche assaulted or committed a battery upon him; (2) because it failed to find that William Labiche's use of excessive force demonstrated "a malicious, willful, or callous and reckless indifference to plaintiff's rights;" (3) because the amount of damages awarded was inconsistent, inadequate, and contrary to the law; (4) because the Court improperly admitted evidence of plaintiff's other lawsuits and damages claims; (5) because defense counsel's closing arguments were improper; (6) because the Court's jury charges regarding aggravation of a pre-existing condition were in error; and (7) because the Court denied him court costs.
Defendant challenges the jury's award (1) because the award of punitive damages was inconsistent; and (2) because the jury improperly found that defendant used excessive force and that the use of this excessive force was a proximate cause of Adesina Oyefodun' s injuries.
II. Analysis
1. Judgment as a Matter of Law
A. Standard of Review
A judgment as a matter of law is warranted "if the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable people could not arrive at a verdict to the contrary." First Nat'1 Bank of Durant v. Trans Terra Corp. Int'l, 142 F.3d 802, 806 (5th Cir. 1998); see also Polanco V. City of Austin, 78 F.3d 968, 974 (5th Cir. 1996) (the standard is "whether the evidence has such quality that reasonable and fairminded persons would reach the same conclusion"). In reviewing a motion for judgment as a matter of law, the Court is to consider all of the evidence, not just the evidence supportive of the non- movant, in the light most favorable to the non-movant, "drawing all factual inferences in favor of the non-moving party and leaving credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts to the jury." Foreman V. Babcock Wilcox Co., 117 F.3d 800, 804 (5th Cir. 1997); see also Carter v. Fenner, 136 F.3d 1000, 1009-10 (5th Cir. 1998) ( citing Woodall v. City of El Paso, 49 F.3d 1120, 1124 (5th Cir. 1995). "A mere scintilla of evidence is insufficient to present a question for the jury . . . [t]here must be a conflict in substantial evidence to create a jury question." Foreman, 117 F.3d at 804.
2. Motion for a New Trial
Federal Rule of Civil Procedure 59(a) states that a district court may grant a new trial "on all or part of the issues . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." FED. R. CIV. P. 59(a). The decision to grant or deny a motion for a new trial is within the sound discretion of the trial court. Pryor v. Trane Company, 138 F.3d 1024, 1026 (5th Cir. 1998). Although Rule 59(a) does not enumerate grounds for a new trial, a district court may grant a new trial if the court finds that the verdict is against the weight of the evidence, the damages awarded are excessive or inadequate, the trial was unfair, or prejudicial error was committed in its course. See Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) Additionally, a new trial must be granted when the Court is unable logically to reconcile an inconsistent jury verdict. See Willard v. The John Hayward, 577 F.2d 1009, 1011 (5th Cir. 1978) ("If the jury gives inconsistent answers to special interrogatories, the case must be remanded for a new trial . only if there is no way to reconcile them."). And, when a motion for a new trial is based on evidentiary grounds, the court should not grant a new trial, unless "the verdict is against the great weight of the evidence." Pryor, 138 F.3d at 1026.
The Fifth Circuit has held that the sufficiency or insufficiency of evidence is governed by the federal standard that when all evidence is viewed in the light most favorable to the jury's verdict, the verdict must stand unless the evidence points so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary conclusion. See Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 986-87 (5th Cir. 1989) (internal citations omitted) The Fifth Circuit has interpreted the Seventh Amendment as requiring that "facts once found by a jury in the context of a civil trial are not to be reweighed and a new trial granted lightly." Pagan v. Shoney's Inc., 931 F.2d 334, 338 (5th Cir. 1991) ( citing Spurlin v. General Motors Corp., 528 F.2d 612, 620 (5th Cir. 1976)). In addition, the credibility of witnesses is "for the jury to determine. See Boeing Co. V. Shipman, 411 F.2d 365, 375 (5th Cir. 1969).
B. Plaintiff's motions
1. Assault and Battery
Plaintiff argues that the jury's verdict finding Officer Labiche (1) liable for the use of excessive force, yet (2) not liable for common law assault and battery is irreconcilably inconsistent. The Court disagrees. While the verdicts are different, they are not inconsistent. The verdicts can be reconciled by virtue of the different mental state components required for each cause of action.
Under Louisiana law, battery is defined as the "intentional use of force or violence on the person of another." LA. REV. STAT. ANN. § 14:33 (West 2001). Assault is defined as "the intentional placing of another in reasonable apprehension of receiving a battery." LA. REV. STAT. ANN. § 14:36 (West 2001). Thus, the state law tort of battery requires an intent by the perpetrator to cause a harmful or offensive contact, and the tort of assault requires an intent to place another in fear of receiving such a harmful contact. The Court specifically instructed the jury to consider the officer's intent when it decided the assault and battery charges. The jury was told that "plaintiff must show that Officer Labiche intentionally placed him in imminent apprehension of a harmful or offensive conduct when Officer Labiche had the apparent ability to carry out the conduct at the time." (emphasis added). The Court defined battery as impermissible "harmful or offensive contact resulting from an act intended to cause the plaintiff to suffer such a contact" (emphasis added). In contrast, in order to state a claim for excessive force in violation of the Constitution, a plaintiff must allege (1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable. See Richard V. City of Harahan, 6 F. Supp.2d 565, 573 (E.D. La. 1998) ( citing Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993)) (internal quotations omitted). The "reasonableness" inquiry determines "whether the officer('s] actions are "objectively reasonable' in light of the facts and circumstances confronting [him], without regard to (his] underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872 (1989) (citations omitted). The totality of the circumstances is the central focus of an excessive force constitutional tort. See id. at 396-97.
The Court instructed the jury:
[t]his reasonableness inquiry is an objective one: the question is whether the officer's actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.
In finding that Labiche did not assault Oyefodun, while at the same time finding Labiche liable for use of excessive force, the jury may well have concluded that Labiche did not intend to engage in harmful or offensive conduct. Examining the totality of the circumstances, the jury could have found that the force Labiche used was excessive, regardless of his intent. The Court therefore finds that plaintiff's argument that the jury's verdict is inconsistent based on different jury conclusions regarding the excessive force claim and the assault and battery claims is without merit.
2. Punitive Damages
Both plaintiff and defendant argue that the jury's finding that Labiche's use of excessive force did not demonstrate a "malicious, willful, or callous and reckless indifference to plaintiff's rights" (question 3) was irreconcilably inconsistent with the jury's awarding the plaintiff $1.00 in punitive damages (question 9). To remedy this inconsistency, the plaintiff asks the Court to grant a new trial, while the defendant asks that the punitive damage claim be dismissed. However, "[t]he determination that an inconsistency exists must be made only after a concerted effort to reconcile every apparent inconsistency." Miller v. Royal Netherlands Steamship Co., 508 F.2d 1103, 1106 (5th Cir. 1975). The Fifth Circuit has repeatedly held that a jury's answers are not irreconcilably inconsistent when potentially inconsistent answers were in response to questions that the jury should not have answered. See Smith v. Tidewater Marine Towing, Inc., 927 F.2d 838, 840 (5th Cir. 1991) (when jury found no negligence and no unseaworthiness, answers to damage interrogatories were unnecessary); White v. Grinfas, 809 F.2d 1157, 1161 (5th Cir. 1987) ("If the district court has correctly found that the jury's answer to a question was supposed to terminate further inquiry is clear and disposed of the legal issues, on review we must ignore the jury's necessarily conflicting answers to any other questions"); Moore v. Maritime Overseas Corp., 736 F.2d 146, 147 (5th Cir. 1984) (In seaman's Jones Act negligence action, jury verdict finding no negligence, no unseaworthiness, and that certain sum of money would compensate seaman for his "injury" was not inconsistent so as to require a new trial after dismissal of action); Nimnicht v. Evans, Inc. 477 F.2d 133, 135 (5th Cir. 1973) (jury's answers to special interrogatories finding no negligence and no seaworthiness "inexorably negated the award of damages").
In this case, the jury's answers were not irreconcilably inconsistent. The jury was instructed to complete special interrogatories during its deliberations. The jury found that: defendant used excessive force (Question 1) ; that the use of excessive force was not objectively reasonable (Question 2); and that defendant's use of excessive force did not demonstrate a malicious, willful, or callous and reckless indifference to plaintiff's rights (Question 3). Having answered Question 3 in the negative, the jury had express instructions not to answer Question 9, which dealt with punitive damages. The jury interrogatories contained the following instruction:
If you answered "yes" to question 3, proceed to question 9. If you answered "no" to question 3, please sign and date the verdict form and return to the courtroom.
Therefore, the jury s award of $1.00 in punitive damages was superfluous since the jury's answer to question 3 negated any possibility of an award of punitive damages.
The jury s determination that a bad motive did not exist has a dispositive effect on punitive damages. Punitive damages are designed to punish a wrongdoer for "willful and malicious conduct and to deter others from similar behavior." Memphis City. Sch. Dist. v. Stachura, 477 U.S. 299, 307 n. 9, 106 S.Ct. 2537, 2543 n. 9 (1986). Punitive damages may be assessed in a § 1983 action only when the defendant's conduct is shown to be motivated by evil motive or intent or when it involves reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640 (1983); Thompkins v. Belt, 828 F.2d 298, 301-02 (5th Cir. 1987)
The jury misread and failed to follow the instructions in the interrogatories, causing it to err by awarding plaintiff $1.00 in punitive damages. As such, the Court in its discretion will reform the judgment and set aside the $1.00 award of punitive damages. See Willard, 577 F.2d at 1011 ("Even a jury verdict inconsistent on its face is not inconsistent if it can be explained by assuming the jury reasonably misunderstood the instructipns."); Daly v. Moore, 491 F.2d 104, 108 (5th Cir. 1974) (affirming district court's striking of award of punitive damages as unsupported by answers to interrogatories).
3. Damages Awarded
Plaintiff contends that the jury award of $396.00 is inadequate and is grounds for a new trial. Plaintiff argues that since the damages reflected only his out-of-pocket costs — the emergency room bill incurred — and not pain and suffering damages, the award is inadequate.
The district court may grant a new trial on evidentiary grounds if the verdict is against the great weight of evidence. See Pryor v. Trane Company, 138 F.3d 1024, 1026 (5th Cir. 1998). The court may not alter a damage award, however, unless it is "so inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial." Munn v. Algee, 924 F.2d 568, 578 (5th Cir. 1991).
The Fifth Circuit has held that an award of out-of-pocket costs alone is not per se inadequate. See Young v. City of New Orleans, et. al, 751 F.2d 794, 798-799 (5th. Cir. 1985). In Young, the Court held that when there was conflicting testimony as to the cause of plaintiff's injuries and when the plaintiff was awarded more than nominal damages, there was no basis for holding that the award was inadequate. See id.
In this case, there was conflicting testimony as to the cause and extent of plaintiff's injuries. Plaintiff presented evidence that his injuries were due to defendant's conduct, while defendant presented evidence that the injuries were old and a result of prior incidents. There was also evidence impugning both plaintiff's and defendant's credibility as witnesses. This evidence, therefore, does not support a conclusion that the jury reached a seriously erroneous result or that the verdict is a miscarriage of justice.
Additionally, plaintiff argues that the damage award was per se erroneous because the jury awarded special damages for medical expenses without awarding general damages for pain and suffering, in contravention of Louisiana state law. Pagan, 931 F.2d at 337.
As an initial matter, since plaintiff was awarded compensatory damages for his § 1983 claim, the damage award is governed by federal, rather than state, law. Compensatory damages include both special damages such as medical expenses, loss of wages, and lost future earnings, as well as general damages for pain and suffering and emotional and mental distress. See Stachura, 477 U.S. at 307, 106 S.Ct. at 2543 (1986). Under Fifth Circuit jurisprudence, pain and suffering, and emotional and mental anguish are not separate items of damage. See Fowler v. Carrouton Public Library, 799 F.2d 976 (5th Cir. 1986).
Even if plaintiff's damage award was governed by state law, plaintiff's contention is still erroneous. The Louisiana Supreme Court recently held that "a verdict awarding medical expenses yet denying general damages is not per se invalid." Wainwright v. Fontenot, 774 So.2d 70, 75 (La. 2060) (upholding a jury's award of medical expenses without an accompanying award of pain and suffering damages).
The jury in this case awarded plaintiff $396.00 in compensatory damages. Since compensatory damages were awarded in a lump sum, it is pure speculation as to which portion of the award was for medical expenses and which part was for general damages of pain and suffering. In light of the conflicting testimony as to the cause and extent of plaintiff's injuries, the jury may very well have concluded that plaintiff was entitled to compensation for only a portion of his medical costs, so that part of the $396.00 award could have could have been for pain and suffering.
Even if the Court accepted plaintiff's assertion that since plaintiff's medical bill was approximately $396.00, the jury's award reflected only medical expenses, plaintiff's contention that pain and suffering damages are required as a matter of law whenever medical expenses are awarded is still erroneous. Federal courts have upheld jury verdicts awarding medical expenses but not pain and suffering damages when the evidence supports that award. See, e.g., Young, 751 F.2d 794, 799 (5th Cir. 1985) (upholding a jury verdict which awarded damages for out-of-pocket medical expenses but not for pain and suffering when there was conflicting testimony as to the source and cause of plaintiff's injuries); Strauss v. Springer, 817 F. Supp. 1211, 1219 (E.D. Pa. 1992) (upholding a zero award of pain and suffering when testimony at trial regarding damages was conflicting); but cf. Snyder v. Barthelemy, 1995 WL 764125, *1 (E.D. La. 1995) (court acknowledged that the Young framework is appropriate when the jury award is small and there is conflicting testimony as to the cause of the plaintiff's injuries, but nevertheless set aside a jury award as inadequate when jury awarded no pain and suffering damages when plaintiff was shot in the back resulting in permanent confinement to a wheelchair).
Therefore, the Court denies plaintiff's motion on the damages issue.
4. Evidence of Prior Lawsuits
Plaintiff contends that a new trial is warranted because the Court improperly allowed the defense to introduce evidence of other lawsuits and claims for damages brought by the plaintiff, in order to paint him as a litigious person. He argues that such evidence is unfairly prejudicial under Rules 401 through 405 of the Federal Rules of Evidence.
Evidence regarding plaintiff's previous injuries and claims of damages was relevant to the jury's ability to determine the extent and source of the plaintiff's injuries. Since these previous suits and claims were probative of the issues of damages, this evidence was properly included. Therefore, the Court denies plaintiff's motion.
5. Defense Counsel's Closing Arguments
Plaintiff argues that a new trial should be granted because during closing argument, defense counsel improperly referred to plaintiff's failure to call psychiatrists to testify on his behalf. The Court had barred plaintiff from calling two psychiatrists as expert witnesses because of plaintiff's failure to provide their expert medical reports.
However, nowhere in the Court's order did it bar the defense from commenting upon plaintiff's lack of expert witnesses. The order merely excluded the doctors, not defendant's ability to comment. As such, the Court rejects this argument.
6. Jury Charges Regarding Aggravation of Pre-Existing Condition
Plaintiff asserts that the Court's jury charges on the issue of aggravation of pre-existing mental and physical conditions confused the jury because the charge did not affirmatively state the law. The Court's jury charge stated:
You may award damages for aggravation of an existing disease or physical defect resulting from physical injury to the plaintiff. If you can find that there was such an aggravation, you should determine, if you can, what portion of that plaintiff's condition resulted from the aggravation, and make allowance in your verdict only for the aggravation.
Plaintiff does not claim that the jury charge misrepresented the law or failed to state the law properly.
In any event, the plaintiff is barred from now challenging the jury charge because he failed to make any objections to the Court's jury charge during the charge conference or at any time before the jury retired to consider its verdict. See FED. R. CIV. P. 51. Federal Rule of Civil Procedure 51 states in part:
No party may assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.
Moreover, the proposed jury charges that Oyefodun submitted to the Court failed to request an "affirmative" statement of the law on this issue. See Knight v. Caldwell, 970 F.2d 1430, 1433 (5th Cir. 1992) (holding that plaintiff was barred from appealing certain jury charges because his own proposed jury instructions failed to request the definitions and instructions that he was now asking for).
An exception to the contemporaneous objection requirement of Rule 51 is the plain error doctrine. See Fruge V. Penrod Drilling Co., 918 F.2d 1163, 1169 (5th Cir. 1990); Rodrigue v. Dixilyn Corp., 620 F.2d 537, 540-41 (5th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923 (1981). The Court may, despite the party's failure to object, act to prevent "a miscarriage of justice resulting from an instruction based on fundamental error." Rodrigue 620 F.2d at 540. See also Middleton v. Harris Press Shear, Inc., 796 F.2d 747, 749 (5th Cir. 1986) ("where no timely objection is made to a jury instruction, the claimed error cannot be reviewed on appeal unless giving the instruction was "plain error' so fundamental as to result in a miscarriage of justice"). In the civil context, a party will prevail under this standard if the Court finds (1) that an error occurred; (2) that the error was plain, which means clear or obvious; (3) the plain error affects substantial rights; and (4) not correcting the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. See Russell v. Plano Bank Trust, 130 F.3d 715, 721 (5th Cir. 1997)
In this case, plaintiff has presented no evidence that the Court erroneously stated or misapplied the law. In fact, plaintiff's only objection to the jury charge concerns the Court's phrasing of the jury charge, which does not rise to the level of plain error.
For these reasons, the Court denies plaintiff's motion.
7. Denial of Costs
Plaintiff challenges the Court's characterization of defendant as a "prevailing party, " and the Court's ruling that each party should bear its own costs. Plaintiff's argument lacks merit. Federal Rule of Civil Procedure 54(d) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." FED. R. CIV. P. 54(d). In determining who is the "prevailing party, " the Court must view the case as a whole. Studiengesellschaft Kohle v. Eastman Kodak Co., 713 F.2d 128, 131 (5th Cir. 1983). "A party need not prevail on all issues to justify an award of costs." Id. Here, both plaintiff and defendants prevailed. Oyefodun prevailed on his claim that Officer Labiche used excessive force and that the use of this excessive force was the proximate cause of plaintiff's injuries. However, Officer Labiche prevailed by successfully defending himself against claims of assault, battery, false arrest, and intentional infliction of emotional distress. See Gulf South Mach., Inc. v. American Standard, Inc., 1999 WL 199085, at *3 (E.D. La. Apr. 8, 1999) ("[D]istrict court may order each party to bear its own costs when each has prevailed on one or more of its claims, defenses, or counterclaims." (citing cases)). Therefore, the Court denies plaintiff's motion for costs.
8. Attorney's Fees
Plaintiff moves for an award of attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, as amended, 42 U.S.C. § 1988, which provides:
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 . . . , or title VI of the Civil Rights Act of 1964 . . ., the court, in its discretion may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."42 U.S.C. § 1988.
a) Prevailing Party
As an initial matter, the Court previously ruled in its March 19, 2001 Order that Oyefodun was a "prevailing party" under the definition of 42 U.S.C. § 1988. Defendant challenges that characterization of plaintiff as a prevailing party. Defendant's opposition has no merit. To qualify as a "prevailing party, " a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. See Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 573 (1992) (citations omitted). In this case, plaintiff was awarded relief on the merits of the claim; the jury adjudged Labiche liable for his use of excessive force and awarded plaintiff compensatory damages. The amount of the damage award does not affect "prevailing party" status. See id. at 114, 113 S.Ct. at 574 (holding that "the prevailing party status does not turn on the magnitude of relief obtained"). Therefore, the Court reaffirms its holding that Oyefodun was a "prevailing party" in this litigation.
b) Reasonable Fees
In Hensley v. Eckerhart, 461 U.S. 424, 434 n. 9, 103 S.Ct. 1933, 1940 n. 9 (1983), the Supreme Court approved the "lodestar" method of computing reasonable attorneys' fees. The method starts with the initial calculation of hours reasonably expended at a reasonable hourly rate. See also Chemical Mfrs. Ass'n v. U.S.E.P.A., 885 F.2d 1276, 1280 (5th Cir. 1989). The guiding case in the Fifth Circuit for the determination of reasonable attorney's fees is Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds, Blanchard v. Bergeson, 489 U.S. 87, 90, 109 S.Ct. 939, 943 (1989). In Johnson, the Court set forth the following twelve factors to consider when awarding attorney's fees:
(1) the time and labor required,
(2) the novelty and difficulty of the questions,
(3) the skill requisite to perform the legal service properly,
(4) the preclusion of other employment by the attorney due to acceptance of the case,
(5) the customary fee,
(6) whether the fee is fixed or contingent,
(7) time limitations imposed by the client or the circumstances,
(8) the amount involved and the results obtained,
(9) the experience, reputation, and ability of the attorneys,
(10) the "undesirability" of the case,
(11) the nature and length of the professional relationship with the client, and
(12) awards in similar cases.
Johnson, 488 F.2d at 717-19. A court is not required to fully address each of the twelve factors, but the court is required to explain its findings and the reasons upon which the award is based. See Cobb v. Miller, 818 F.2d 1227, 1233 (5th Cir. 1987)
As the fee applicant, plaintiff has the burden of proving the reasonableness of the number of hours expended on his prevailing claims. Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir. 1987) (citing Hensley, 461 U.S. at 437, 103 S.Ct. at 1941). This burden does not shift to the opposing party merely because that party does not show that the hours are unreasonable or that it did not make specific objections to the hours claimed. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. Part of the applicant's ability to meet this burden includes maintaining billing records in a manner that would enable the reviewing court to identify each distinct claim. See id. at 437, 103 S.Ct. at 1941; see also Leroy, 831 F.2d at 586.
Here, Oyefodun filed a motion seeking $50,000 in attorney's fees. (Pl.'s Mem. Supp. Motion for Attorney's Fees.) Plaintiff's counsel, Dennis Couvillion, submitted a time sheet documenting 274.25 hours he spent working on this case. However, he failed to identify how much time was spent on each claim or against which party. Additionally, he even failed to state his hourly rate. The Court will assume that it is approximately $182.00 ($50,000/274.25 hours). The defendant does not challenge either the reasonableness of the hourly rate or the number of hours spent on the case.
The Court finds that the hourly rate of $182.00 is not reasonable. The Court's own research shows that Couvilhon has been admitted to practice law since 1977. However, plaintiff has not submitted any evidence documenting counsel's qualifications or experience in these types of cases. The Court will determine the appropriate rate for the attorney "according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel." Islamic Center of Miss., Inc. v. City of Starkville, 876 F.2d 465, 468 (5th Cir. 1989) (citing Blum v. Stenson, 465 U.S. 866, 895, 104 S.Ct. 1541, 1547 (1984)). "To determine "the prevailing market rate, ' a court may properly consider hourly rates set in other cases as well as affidavits regarding the reasonableness of suggested rates." Grantham v. Moffett, 1996 WL 3750, *2 (E.D. La. 1996) (Africk, M.J.), aff'd, 101 F.3d 599 (5th Cir. 1996) (quoting Associated Builders Contractors of La. v. The Orleans Parish Board, 919 F.2d 374, 379 (5th Cir. 1990)).
Plaintiff has submitted no affidavits attesting to the reasonableness of counsel's hourly fees. Courts in this district have found $150 to be a reasonable hourly rate for this type of case. See, e.g., Police Ass'n of New Orleans v. City of New Orleans, 951 F. Supp. 622, 628 (E.D. La. 1997) (Sear, J.) (holding that $150 per hour was reasonable in a Section 1983 race discrimination action, based upon plaintiff counsel's 22 years of experience).
With regard to reasonable hours, the Court finds that the time sheets submitted provide no basis to distinguish between the hours spent on the claims against Labiche and the claims against the other parties and no basis to identify the time spent on particular claims. Absent a reliable record of the time expended on the prevailing claim, the Court in its discretion may determine the reasonable number of hours that should have been expended in pursuing the claim on which the party prevailed. See Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990). In this case, plaintiff prevailed on his primary federal claim of excessive force. However, plaintiff sought compensatory and punitive damages against three defendants, on five claims.
For the most part, the time sheet submitted stated simply "telephone conference with opposing attorney, " "went to scene of incident, " or "reviewed file materials for pre-trial."
The Court has reviewed the record and finds that the requested hours were excessive and unreasonable because they included time expended on claims asserted against the City of New Orleans and Richard Pennington. Moreover, this case presents no novel or complex issues. However, the Court notes that the individual claims were factually intertwined and difficult to separate. For example, the federal excessive force claim and the state law claims of assault and battery shared a factual basis.
In addition, the Court takes into account plaintiff's limited amount of success. Although plaintiff demanded $25 million in compensatory and punitive damages, he was awarded only $396.00 in compensatory damages against one defendant, Officer Labiche, on that single claim. Size of the award is a factor in calculating a reasonable attorney's fee. See Farrar, 506 U.S at 114, 113 S.Ct. at 574 ("[T]he most critical factor in determining the reasonableness of a fee award is the degree of success obtained.") (citations omitted)
Consequently, the Court reduces the amount of hours requested. The Court finds that 134 hours for preparation and 33 hours for trial time accurately reflect the amount of time reasonably required to prepare and try Oyefodun's case as it related to Labiche. The Court therefore awards plaintiff $25,050 in attorney's fees.
C. Defendant's Motion
1. Jury's Verdict of Excessive Force
Officer Labiche contends that the jury's findings that he used excessive force and that the use of this excessive force was a proximate cause of plaintiff's injuries were against the weight of the evidence and unsupported by competent testimony. Labiche insists that the jury's negative answers to interrogatories #4, #5, #6, and #7, finding that he did not assault plaintiff, did not commit a battery on plaintiff, did not falsely arrest plaintiff, and did not intentionally inflict emotional distress on plaintiff, eliminates the possibility that the jury could find that Labiche used excessive force on plaintiff.
Labiche argues that the evidence that the jury relied upon in reaching its verdict was inadequate. In doing so, he points to plaintiff's evasiveness, the numerous times that plaintiff's credibility was impeached by defense counsel, as well as to plaintiff's failure to disclose fully the circumstances surrounding his suit against the Columbus Ohio Police Department.
The Fifth Circuit has interpreted the Seventh Amendment as expressing the principle that "facts once found by a jury in the context of a civil trial are not to be reweighed and a new trial granted lightly." Spurlin v. General Motors Corp., 528 F.2d 612, 620 (5th Cir. 1976). That some of the evidence is conflicting is not reason to grant a new trial. See id. ( citing Tennant v. Peoria Pekin Union Ry., 321 U.S. 29, 35, 84 S.Ct. 409, 412 (1944)).
The evidence presented in this case was conflicting, and the jury was entitled to draw its own conclusions about Labiche and Oyefodun's credibility. The Court instructed the jury concerning witness credibility. It is not for the Court to reweigh credibility findings. Further, plaintiff presented evidence that Labiche dropped him handcuffed on the sidewalk. There was eyewitness testimony that Labiche pulled plaintiff off the sidewalk by the handcuffs. Plaintiff presented medical evidence and photographs documenting the extent and severity of his injuries. Plaintiff's evidence was sufficient to support the jury verdict.
The Court instructed the jury concerning witness credibility as follows:
In weighing the testimony and determining the credibility of any witness, you may consider the conduct of the witness, his or her bearing on the witness stand, his or her personal feelings as demonstrated by his or her testimony and his or her actions, any interest he or she may have in the outcome of the case, any prejudice or bias he or she may have shown, and any partiality that he or she may have demonstrated. In determining the weight to give to the testimony of a witness, you should ask yourself whether there was evidence tending to prove that the witness testified falsely concerning some important fact, or whether there was evidence that at some other time the witness said or did something, or failed to say or do something, that was different from the testimony the witness gave before you during the trial.
Therefore, the Court denies defendant's motion.
III. Conclusion
For the foregoing reasons, the Court denies in part and grants in part plaintiff's motions and grants in part and denies in part defendant's motions. As such, the Court reforms the verdict by striking the jury's award of $1 in punitive damages. The Court also awards plaintiff $25,050 in attorney's fees.
New Orleans, Louisiana, this 9th day of July, 2001