Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 1 of 14
`
`11-CV-5464 (JPO)
`
`OPINION AND ORDER
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`ANGEL ALVAREZ,
`
`
`Plaintiff,
`
`
`
`-v-
`
`
`THE CITY OF NEW YORK, P.O. MICHAEL
`TEDESCHI, THOMAS COZART, P.O.
`DOUGLAS BRIGHTMAN, SGT. PAUL
`KERRIGAN, and SGT. PHILIP TERPOS,
`
`
`
`
`
`J. PAUL OETKEN, District Judge:
`
`Defendants.
`
`
`
`This case was tried before a jury, and on September 28, 2016, the jury rendered a verdict
`
`in favor of Plaintiff Angel Alvarez, finding that three of the five individual Defendants had
`
`violated his federal civil rights by using excessive force. The jury awarded $1 in nominal
`
`damages. (Dkt. No. 155.) Before the Court now are Plaintiff’s motion for a new trial as to
`
`damages or for an award of attorneys’ fees and costs (Dkt. No. 173), and Defendants’ motion for
`
`judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 50, in which they also
`
`seek post-offer costs (Dkt. No. 182). For the reasons that follow, both motions are granted in
`
`part and denied in part.
`
`I.
`
`Background
`
`Familiarity with the background of this case is presumed. The Court therefore
`
`summarizes only the facts and proceedings at trial as relevant to the present motions.
`
`Plaintiff Angel Alvarez sued Defendants the City of New York, Police Officer Douglas
`
`Brightman, Police Officer Thomas Cozart, Sergeant Paul Kerrigan, Police Officer Michael
`
`Tedeschi, and Sergeant Philip Terpos, claiming that they violated his civil rights under 42 U.S.C.
`
`
`
`1
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 2 of 14
`
`§ 1983 and under New York law. Alvarez alleged that he was subjected to excessive force in
`
`August of 2010, when Defendants Cozart, Kerrigan, Tedeschi, and Brightman discharged their
`
`firearms, striking him over twenty times, and when Brightman kicked him in the head and
`
`Terpos forcibly handcuffed him, in connection with an altercation between Alvarez and non-
`
`party Luis Soto. Alvarez claimed that he has experienced pain and suffering as a result of
`
`Defendants’ actions. (Dkt. No. 1.)
`
`The case was tried before a jury, which returned a verdict in favor of Alvarez on his
`
`claims that Defendants Cozart, Kerrigan, and Tedeschi used excessive force, and in favor of
`
`Defendants Brightman and Terpos. (Dkt. No. 155.) The jury awarded Alvarez $1.00 in nominal
`
`damages, and declined to award compensatory or punitive damages. (Id.) The jury also
`
`answered a series of special interrogatories (Dkt. No. 156):
`
`
`
`NO X_
`
`Question 1:
`
`Do you find by a preponderance of the evidence that plaintiff had
`control of a firearm at any point during the incident?
`
`YES ___
`
`Question 2:
`
`Do you find by a preponderance of the evidence that any of the
`defendants believed reasonably, even if mistakenly, that plaintiff
`had control of a firearm and posed a significant threat of death or
`serious physical injury at any point during the incident?
`
`
`YES X NO ___
`
`If yes, which defendants:
`
`a. Thomas M. Cozart
`b. Paul Kerrigan
`
`c. Michael T. Tedeschi
`
`
`YES X NO ___
`YES X NO ___
`YES X NO ___
`
`
`
`
`
`2
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 3 of 14
`
`Question 3:
`
`Do you find by a preponderance of the evidence that any of the
`defendants continued to shoot at plaintiff after it was no longer
`reasonable to believe that plaintiff posed a significant threat of
`death or serious physical injury?
`
`
`YES X NO ___
`
`If yes, which defendants:
`
`a. Thomas M. Cozart
`b. Paul Kerrigan
`
`c. Michael T. Tedeschi
`
`YES X NO ___
`YES X NO ___
`YES X NO ___
`
`Currently before the Court are post-trial motions filed by the parties. Alvarez argues that
`
`
`
`
`the jury verdict was unreasonable and that, as a result, a new trial as to damages should be
`
`ordered. (Dkt. No. 174 at 1.) In the alternative, Alvarez seeks an award of attorneys’ fees and
`
`costs. (Id.) Defendants—in addition to opposing Alvarez’s requests—seek judgment as a matter
`
`of law that there was not sufficient evidence to sustain an excessive force claim. (Dkt. No. 183
`
`at 5.) They also argue that Cozart, Kerrigan, and Tedeschi are entitled to qualified immunity.
`
`(Id. at 12.) Finally, Defendants seek costs incurred after their unaccepted Rule 68 offer of
`
`judgment was made. (Id. at 21.)
`
`II.
`
`Discussion
`
`The Court first addresses Alvarez’s request for a new trial. It then addresses Defendants’
`
`motion for judgment as a matter of law and the issue of qualified immunity. Finally, it addresses
`
`Alvarez’s request for attorneys’ fees and costs and Defendants’ request for post-Rule 68 offer
`
`costs.
`
`A. Motion for a New Trial
`
`Alvarez first seeks a new trial in part on the issue of damages, pursuant to Federal Rule of
`
`Civil Procedure 59(a). (Dkt. No. 174 at 9.)
`
`
`
`3
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 4 of 14
`
`“A motion for a new trial ordinarily should not be granted unless the trial court is
`
`convinced that the jury has reached a seriously erroneous result or that the verdict is a
`
`miscarriage of justice.” Atkins v. N.Y. City, 143 F.3d 100, 102 (2d Cir. 1998) (quoting Lightfoot
`
`v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997)). In considering a motion for a new
`
`trial, the Court “need not view the evidence in the light most favorable to the verdict winner.”
`
`Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2011). However, “a judge
`
`‘should rarely disturb a jury’s evaluation of a witness’s credibility.’” Id. (quoting DLC Mgmt.
`
`Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998)). Specifically, as regards the
`
`award of nominal damages in an excessive force case, where “the jurors were entitled to resolve
`
`the conflicting testimony in a way that permitted them to find that excessive force, though used,
`
`did not result in compensable injuries, the award of only nominal damages will not be
`
`disturbed.” Haywood v. Koehler, 78 F.3d 101, 105 (2d Cir. 1996).
`
`Alvarez argues that the jury’s “decision to award only nominal damages was simply
`
`unjustifiable,” and that, “as a matter of law, a person who suffers a bullet wound from excessive
`
`force has suffered a compensatory injury worth more than one dollar.” (Dkt. No. 174 at 11.)
`
`Alvarez, however, cites to no precedent supporting this specific position.
`
`Indeed, the Second Circuit has held that “a finding of excessive force does not, as a
`
`matter of law, entitle the victim to an award of compensatory damages.” Haywood, 78 F.3d at
`
`104. The Second Circuit’s decision in Gibeau v. Nellis, 18 F.3d 107 (2d Cir. 1994), is
`
`instructive. There, the Second Circuit upheld a district court’s refusal to set aside a jury verdict
`
`granting an excessive-force plaintiff no compensatory damages. The Second Circuit
`
`acknowledged a variety of possible theories that could support a verdict of excessive force and
`
`no compensatory damages, among them, that “[i]t is possible that the jury considered only the
`
`last blow to be excessive, and it may have concluded that the [injury] was caused by the first
`
`
`
`4
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 5 of 14
`
`blow.” Id. at 110. The Second Circuit concluded that “[t]he record reveals that [plaintiff] never
`
`conclusively established that [defendant]’s use of excessive force caused him pain, suffering,
`
`humiliation, or fear.” Id.
`
`So too here. The special interrogatories confirm that the jury found that there was both
`
`unjustified and justified force used against Alvarez. (Dkt. No. 156.) It is possible, based on this
`
`finding, that the jury reasonably concluded that Alvarez’s pain and suffering―Alvarez did not
`
`seek damages for economic loss (Dkt. No. 174 at 13)―resulted only from the justified use of
`
`force. Indeed, the Court instructed the jury on precisely this possibility, an instruction to which
`
`Alvarez’s counsel did not object. (Dkt. No. 169 at 1064:17-20 (“You may also award nominal
`
`damages if you find that both justified and unjustified force were used, and that the plaintiff
`
`suffered injuries that resulted only from the justified use of force.”).) Given the volume of
`
`gunshot wounds inflicted on Alvarez, it would not be seriously erroneous for the jury to conclude
`
`that Alvarez’s pain and suffering resulted from earlier, justified rounds of bullets that struck him,
`
`rather than later, unjustified rounds. This is especially so given conflicting testimony about the
`
`manner in which Alvarez sustained the gunshot wounds and the resultant need for credibility
`
`determinations by the jury, determinations this Court is loath to question.
`
`Alternatively, the jury could have reasonably concluded that Alvarez failed to support his
`
`claims of injury such that any compensatory damages award would have been purely speculative.
`
`“When a jury ‘is unable to compute the monetary damages except by engaging in pure
`
`speculation and guessing,’ an award of nominal damages is appropriate.” Hyppolite v. Collins,
`
`No. 11 Civ. 588, 2015 WL 2179772, at *4 (D. Conn. May 8, 2015) (quoting Adedeji v. Hoder,
`
`935 F. Supp. 2d 557, 574 (E.D.N.Y. 2013)). Accordingly, the Court here instructed the jury:
`
`“You may also award nominal damages if . . . you find that you’re unable to compute monetary
`
`damages, except by engaging in pure speculation and guessing.” (Dkt. No. 169 at 1064:20-24.)
`
`
`
`5
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 6 of 14
`
`Alvarez did not call an expert witness to identify which of his wounds resulted from which
`
`particular bullets, or to disaggregate his pain and suffering across his numerous bullet wounds.
`
`Accordingly, a jury could have reasonably concluded that any attempt to divide the damages
`
`between the justified and unjustified force would be mere guesswork.
`
`Given the multiple reasonable paths by which the jury could have arrived at an award of
`
`nominal damages, their decision to do so was neither seriously erroneous nor a miscarriage of
`
`justice. Accordingly, the verdict is upheld and Alvarez’s motion for a new trial on the issue of
`
`damages is denied.
`
`B.
`
`Judgment as a Matter of Law
`
`Defendants seek judgment as a matter of law as to liability on Alvarez’s Section 1983
`
`excessive force claim due to Alvarez’s failure to introduce evidence proving that each individual
`
`firing officer struck him with a bullet.1 (Dkt. No. 183 at 5.)
`
`Federal Rule of Civil Procedure 50, which provides for judgment as a matter of law,
`
`“generally imposes a heavy burden on a movant, who will be awarded judgment as a matter of
`
`law only when ‘a party has been fully heard on an issue during a jury trial and the court finds that
`
`a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on
`
`that issue.’” Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Fed. R. Civ. P.
`
`50(a)). “That burden is ‘particularly heavy’ where, as here, ‘the jury has deliberated in the case
`
`and actually returned its verdict’ in favor of the non-movant.” Id. (quoting Cross v. N.Y.C.
`
`Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005)). “In short, a Rule 50 motion may be granted
`
`only if the court, viewing the evidence in the light most favorable to the non-movant, concludes
`
`
`1
`Defendants concede liability as to Alvarez’s claims of assault and battery under
`state law. (Dkt. No. 183 at 10-11.)
`
`
`6
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 7 of 14
`
`that ‘a reasonable juror would have been compelled to accept the view of the moving party.’” Id.
`
`(quoting Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)).
`
`Defendants argue that Alvarez failed “to present evidence sufficient to prove that each
`
`individual officer, through his individual conduct, caused plaintiff to sustain a physical injury by
`
`actually striking him with a bullet.” (Dkt. No. 183.)
`
`However, the burden on a plaintiff proving excessive force is not so high. “A plaintiff
`
`seeking to prove that an officer directly participated in the alleged excessive force need not be
`
`able to positively identify, at trial, which defendant took what particular action.” Gonzalez v.
`
`Waterbury Police Dep’t, 199 F. Supp. 3d 616, 621 (D. Conn. 2016). “Rather, a jury may use a
`
`combination of factors—direct testimony, cross examination, and circumstantial evidence—to
`
`infer that a particular defendant took a particular action.” Id.
`
`Here, Plaintiff adduced sufficient evidence for the jury to conclude that each of the three
`
`Defendants was liable for excessive force. Plaintiff called multiple eyewitnesses who confirmed
`
`that all of the officers fired at Alvarez; indeed, Defendants testified that, collectively, they fired
`
`their service weapons forty-four times. (Dkt. No. 183 at 7.) Thus, this case is not like Corley v.
`
`Nabeel Shahid, 89 F. Supp. 3d 518 (E.D.N.Y. 2015), a case on which Defendants rely, where the
`
`plaintiff “introduced no evidence to show that any of the defendants played any role in the
`
`attack.” Id. at 524. Rather, Alvarez adduced eyewitness testimony and testimony from
`
`Defendants themselves of their involvement in the incident and their use of force against him.
`
`Accordingly, the jury had a legally sufficient basis to find for Alvarez and Defendants’
`
`motion for judgment as a matter of law is denied.2
`
`
`2
`Because the Court denies Defendants’ motion for judgment as a matter of law, it
`need not address their argument about Plaintiff’s entitlement to attorneys’ fees for prevailing
`only on state law claims. (Dkt. No. 183 at 10-12.)
`7
`
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 8 of 14
`
`C. Qualified Immunity
`
`Defendants next argue that they are entitled to qualified immunity. (Dkt. No. 183 at 12.)
`
`In cases involving the use of deadly force, a qualified immunity defense is available only
`
`where a defendant’s action was objectively reasonable in light of clearly established law at the
`
`time the action was taken. O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir.
`
`2003). The court must determine “if, on an objective basis, it is obvious that no reasonably
`
`competent officer would have concluded . . . in that moment that the use of deadly force was
`
`necessary.” Estate of Jaquez v. City of N.Y., 104 F. Supp. 3d 414, 420 (S.D.N.Y. 2015) (quoting
`
`O’Bert, 331 F.3d at 37). “It is not objectively reasonable for an officer to use deadly force to
`
`apprehend a suspect unless the officer has probable cause to believe that the suspect poses a
`
`significant threat of death or serious physical injury to the officer or others.” O’Bert, 331 F.3d at
`
`36.
`
`Where the allegations of excessive force involves the firing of multiple rounds of
`
`ammunition by police officers, the Court must balance conflicting considerations. On the one
`
`hand, there is “[n]othing in the Fourth Amendment barr[ing] [officers] from protecting
`
`themselves, even though it mean[s] firing multiple rounds.” City & Cty. of S.F. v. Sheehan, 135
`
`S. Ct. 1765, 1775 (2015). And on the other hand, “a grant of qualified immunity as to the use of
`
`force—even lethal force—in the course of an event does not necessarily extend to all use of such
`
`force throughout the incident.” Estate of Jaquez, 104 F. Supp. 3d at 437-38.
`
`At an earlier stage in this action, Judge Analisa Torres denied Defendants’ request for
`
`summary judgment on the issue of qualified immunity. She concluded that “‘[b]ecause . . .
`
`genuine material, factual disputes overlap both the excessive force and qualified immunity
`
`issues,’ summary judgment on the basis of qualified immunity is inappropriate.” (Dkt. No. 116
`
`
`
`8
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 9 of 14
`
`at 14 (alterations in original) (quoting Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756,
`
`764 (2d Cir. 2003))).
`
`Here, the jury’s verdict, and in particular its answers to the special interrogatories,
`
`simplifies the Court’s job and resolves the factual disputes precluding Judge Torres from
`
`granting summary judgment. One of those interrogatories asked: “Do you find by a
`
`preponderance of the evidence that any of the defendants continued to shoot at plaintiff after it
`
`was no longer reasonable to believe that plaintiff posed a significant threat of death or serious
`
`physical injury?” (Dkt. No. 156 (emphasis added).) The jury answered yes, indicating that, in
`
`its view, Defendants Cozart, Kerrigan, and Tedeschi continued to use deadly force against
`
`Alvarez at a time when it was not reasonable to believe that he posed a significant threat of death
`
`or serious physical injury. The language of this special interrogatory closely tracks the standard
`
`for objective reasonableness for the use of deadly force stated by the Second Circuit in O’Bert.
`
`See O’Bert, 331 F.3d at 36. The jury’s finding that the officers’ use of force was, at some point,
`
`objectively unreasonable, precludes their defense of qualified immunity.
`
`Defendants urge the Court to view the officers’ conduct as a single unified transaction.
`
`(Dkt. No. 183 at 14.) And indeed, they offered testimony to suggest that the barrage of bullets
`
`they unleashed on Alvarez were fired over a very short window of time. (Id. at 15.) In fact, the
`
`jury concluded that “the defendants believed reasonably, even if mistakenly, that plaintiff had
`
`control of a firearm and posed a significant threat of death or serious physical injury at [some]
`
`point during the incident.” (Dkt. No. 156.) However, the jury also concluded that the officers
`
`continued to shoot at Alvarez after this belief was no longer reasonable. The jury’s conclusion
`
`confirms that the incident did not happen all at once, but rather continued beyond the point
`
`where the officers’ use of deadly force was no longer reasonable. The dispute over whether
`
`Alvarez was on the ground at this point and the fact that the jury declined to award punitive
`
`
`
`9
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 10 of 14
`
`damages—issues that Defendants point to as supporting their argument that the use of force
`
`should be considered a single event—are immaterial given the finding that there was a period of
`
`time when the officers used force that was unreasonable. As such, the Defendants are not
`
`entitled to qualified immunity.
`
`D. Attorneys’ Fees
`
`Alvarez seeks an award of attorneys’ fees and costs in the amount of $563,271.00 in fees
`
`and $31,847.18 in costs, as he was the prevailing party in this action. (Dkt. No. 174 at 15.)
`
`Defendants argue that the award of nominal damages does not entitle Alvarez to an award of
`
`fees. (Dkt. No. 183 at 17.) Defendants reserve the right to challenge the reasonableness of
`
`Alvarez’s requested fees if the Court deems him entitled to such an award. (Id. at 20 n.6.)
`
`“In any action or proceeding to enforce a provision of [S]ection[] . . . 1983 . . . the court,
`
`in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the
`
`costs . . . .” 42 U.S.C.A. § 1988(b). “The district court is given broad discretion in granting a fee
`
`award and assessing a reasonable fee under the circumstances of the case.” Luciano v. Olsten
`
`Corp., 109 F.3d 111, 115 (2d Cir. 1997).
`
`“[A] plaintiff who wins nominal damages is a prevailing party under § 1988.” Farrar v.
`
`Hobby, 506 U.S. 103, 112 (1992). However, “[i]n some circumstances, even a plaintiff who
`
`formally ‘prevails’ under § 1988 should receive no attorney’s fees at all. A plaintiff who seeks
`
`compensatory damages but receives no more than nominal damages is often such a prevailing
`
`party.” Id. at 115. Accordingly, courts in this Circuit have often declined to award fess where
`
`plaintiffs receive only nominal damages. See, e.g., Dingle v. City of N.Y., No. 10 Civ. 4, 2012
`
`WL 1339490, at *8 (S.D.N.Y. Apr. 17, 2012).
`
`Courts generally consider three factors to determine whether a plaintiff who receives only
`
`nominal damages is nonetheless entitled to an award of fees: “‘[1] the difference between the
`
`
`
`10
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 11 of 14
`
`judgment recovered and the recovery sought[,]’ ‘[2] the significance of the legal issue on which
`
`the plaintiff prevailed, and [3] the public purposes served’ by the litigation.” Id. at *5 (alteration
`
`in original) (footnotes omitted) (quoting Farrar, 506 U.S. at 121-122 (O’Connor, J.,
`
`concurring)).
`
`These factors, considered together, counsel in favor of awarding Alvarez some amount of
`
`attorneys’ fees in this action. The first factor—the difference between the actual and hoped-for
`
`recovery—does not weigh in Alvarez’s favor. Alvarez rejected a Rule 68 offer in the amount of
`
`$150,001.00 and demanded $1 million to settle the action prior to trial. (Dkt. No. 183 at 19.)
`
`His $1.00 nominal damages award is a far cry from the recovery he sought.
`
`The Court notes, however, that Alvarez sought only damages for pain and suffering; he
`
`did not seek any damages for economic loss, either in terms of foregone employment or medical
`
`expenses (likely due to the fact of his incarceration). The Court declines to speculate on whether
`
`such damages, had they been sought, would have been awarded by the jury; however, the
`
`relatively narrow scope of the prayer for damages helps to contextualize the jury’s nominal
`
`award.
`
`The second and third factors—the significance of the issue on which Alvarez prevailed
`
`and the public purposes served by the litigation—weigh in Alvarez’s favor. Alvarez earned a
`
`verdict against three Defendants that they used excessive force, deadly force, against him. The
`
`force used by these three Defendants was more severe than that allegedly used by the two
`
`Defendants against whom Alvarez did not prevail. The case involved issues of significant local
`
`and national importance—police use of deadly force—and meaningfully vindicated Alvarez’s
`
`constitutional rights. Alvarez’s verdict serves the public interest in monitoring police behavior
`
`and could lead to policy and practice changes within the department. See Diamond v. O’Connor,
`
`No. 05 Civ. 279, 2010 WL 9459022, at *2 (D. Vt. June 10, 2010) (“[Plaintiff]’s lawsuit
`
`
`
`11
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 12 of 14
`
`vindicated an important Constitutional right . . . . The judgment also alerts the City that . . .
`
`officers may require additional training and supervision to prevent violations of Constitutional
`
`rights.”), aff’d, 417 F. App’x 104 (2d Cir. 2011); Green v. Torres, 290 F. Supp. 2d 427, 430–31
`
`(S.D.N.Y. 2003) (“[T]here is a public interest in monitoring even modest police transgressions . .
`
`. .”), aff’d, 361 F.3d 96 (2d Cir. 2004). Moreover, a finding of constitutional violations by police
`
`officers may have second-order effects on private-market regulators of police behavior. See
`
`generally John Rappaport, How Private Insurers Regulate Public Police, 130 Harv. L. Rev. 1539
`
`(2017).
`
`Considering these factors together confirms that Alvarez is entitled to some amount of
`
`attorneys’ fees. At Defendants’ request, the Court defers the question of whether the fees
`
`Alvarez requests are reasonable until the parties have had an opportunity to fully brief this issue.3
`
`(See Dkt. No. 183 at 20 n.6.)
`
`Alvarez also seeks an award of costs. Federal Rule of Civil Procedure 54(d)(1) provides:
`
`“Unless a federal statute, these rules, or a court order provides otherwise, costs—other than
`
`attorney’s fees—should be allowed to the prevailing party.” Costs are generally awarded even
`
`where a prevailing party recovers only nominal damages, see Dingle, 2012 WL 1339490, at *8
`
`(citing LaBounty v. Rivera, No. 95 Civ. 2617, 1999 WL 1129063, at *8 (S.D.N.Y. Dec. 8,
`
`
`3
`In determining the reasonableness of a fee award, the “most important factor . . .
`is ‘the degree of success obtained.’” LeBlanc–Sternberg v. Fletcher, 143 F.3d 748, 760 (2d Cir.
`1998) (quoting Pino v. Locascio, 101 F.3d 235, 237 (2d Cir.1996)). “The degree of success
`inquiry enters into the fee analysis in two separate ways, as part of the initial lodestar calculation
`as well as part of the broader determination as to whether the plaintiff achieved ‘a level of
`success that makes the hours reasonably expended a satisfactory basis for making a fee award.’”
`Green v. Torres, 59 F. App’x 400, 402 (2d Cir. 2003) (quoting Hensley v. Eckerhart, 461 U.S.
`424, 434 (1983)). “[T]he full lodestar may constitute an ‘excessive’ fee award where the
`‘plaintiff has achieved only partial or limited success.’” Green v. Torres, 361 F.3d 96, 99 (2d
`Cir. 2004) (quoting Hensley, 461 U.S. at 436) (affirming a district court decision reducing a
`lodestar calculation by twenty percent to account for claims dropped before trial).
`
`
`
`12
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 13 of 14
`
`1999)), and Defendants here have not argued otherwise. Accordingly, Alvarez is entitled to an
`
`award of costs. The Court also delays its determination of the reasonableness of the request for
`
`costs until the parties have briefed this issue.
`
`E.
`
`Post-Offer Costs
`
`Finally, Defendants seek compensation for costs incurred after their Rule 68 offer of
`
`judgment. (Dkt. No. 183 at 21.)
`
`Federal Rule of Civil Procedure 68(d) provides: “If the judgment that the offeree finally
`
`obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred
`
`after the offer was made.” Fed. R. Civ. P. 68(d). “Rule 68 reverses Rule 54(d) and requires a
`
`prevailing plaintiff to pay a defendant’s post-offer costs if the plaintiff’s judgment is less
`
`favorable than the unaccepted offer.” Stanczyk v. City of N.Y., 752 F.3d 273, 281 (2d Cir. 2014).
`
`Here, Defendants served an offer of judgment pursuant to Rule 68 for $150,001.00 plus
`
`fees and costs. (Dkt. No. 183 at 21.) Plaintiff declined the offer and was ultimately awarded
`
`$1.00 in damages against Defendants. As this judgment was less favorable than the unaccepted
`
`offer, Defendants are entitled to post-offer costs.
`
`Alvarez argues that any award of costs should not include costs relating to two of
`
`Defendants’ expert witnesses, criminalist Diana Ho and firearms expert George Krivosta, as
`
`Defendants “did not prevail on these aspects of their case at all.” (Dkt. No. 186 at 16.)
`
`However, Rule 68 makes no such distinction, and Alvarez fails to cite to any authority
`
`suggesting otherwise.
`
`III.
`
`Conclusion
`
`For the foregoing reasons, Alvarez’s motion for a new trial is DENIED and his request
`
`for fees and costs is GRANTED. Defendants’ motion for judgment as a matter of law is
`
`DENIED and their request for costs is GRANTED. Defendants are directed to file supplemental
`
`
`
`13
`
`

`

`Case 1:11-cv-05464-JPO Document 192 Filed 04/27/17 Page 14 of 14
`
`briefing on the reasonableness of the fee and costs award, along with their application for costs,
`
`within 30 days of the date of this Opinion and Order; any response from Alvarez shall be filed
`
`within 14 days thereafter.
`
`The Clerk of Court is directed to close the motions at Docket Number 173 and Docket
`
`Number 182.
`
`SO ORDERED.
`
`Dated: April 27, 2017
`New York, New York
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`____________________________________
`
` J. PAUL OETKEN
`
` United States District Judge
`
`
`
`
`
`
`
`
`
`
`14
`
`