Ferraro v. Kelley, CIVIL ACTION NO. 08-11065-DPW

LOUIS FERRARO, PATRICIA FERRARO, Plaintiffs,

v.SEAN M. KELLEY, Defendant.

CIVIL ACTION NO. 08-11065-DPW

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Dated: February 8, 2011

MEMORANDUM AND ORDER

Plaintiffs Louis Ferraro and his wife, Patrice Ferraro, brought this action against Massachusetts State Trooper Sean M. Kelley, alleging that Trooper Kelley slammed Mr. Ferraro's fingers in the cell door while he was in custody, causing him permanent injury. Having prevailed at trial, Mr. Ferraro now seeks attorney's fees pursuant to 42 U.S.C. § 1988. For the reasons cited below, I will grant Plaintiff's petition with certain adjustments.

I. BACKGROUND

The facts as developed at trial are as follows. Louis Ferraro was arrested for driving under the influence and taken to the Andover State Police Station on December 14, 2006. During booking, Trooper Kelley requested Ferraro to remove his belt, his watch, and his shoes. Ferraro complied with Kelley's requests. However, when Kelley instructed Ferraro to remove his wedding band, Ferraro refused to do so and the two began to struggle.

Trooper Kelley then placed cuffs around Ferraro's ankles and took him to a cell with the assistance of Trooper James A. Leduc. Once in the cell, Kelley forcibly removed Ferraro's wedding ring from his left hand finger. As Ferraro was trying to stand on his feet, he lost his balance because of the cuffs. He eventually stopped himself from falling by placing his left hand against the door jamb. Meanwhile, Kelley slammed the cell door shut, severing the tips of Ferraro's third and fourth fingers. Ferraro was later taken to the hospital, but the doctors were unable to reattach the tips of his fingers. As a result of the incident, Ferraro has suffered great pain and has been unable to perform certain daily tasks.

Louis Ferraro and his wife brought a seven-count complaint, on June 23, 2008, alleging violation of 42 U.S.C. § 1983 (Count I), violation of Massachusetts Civil Rights Act, codified as Mass. Gen. Laws ch. 12, § (Count II), assault (Count III), battery (Count IV), intentional infliction of emotional distress (Count V), loss of consortium (Count VI) and negligence pursuant to Mass. Gen. Laws ch. 258, § 1 and seq. (Count VII) against both Kelley and Leduc. The negligence claim was dismissed on December 8, 2008 in light of Rivera v. Com. of Mass., 16 F. Supp. 2d 84 (D. Mass. 1998), and re-filed in the suffolk superior Court for the Commonwealth of Massachusetts. In addition, all claims against Trooper Leduc were dismissed by Plaintiffs on November 13, 2009.

A three-day jury trial was held before me from May 3 to May 5, 2010. During that trial, Plaintiffs waived all remaining counts alleged in the original complaint, with the exception of the § 1983 claim. After deliberations, the jury attempted to return a first verdict in favor of Plaintiffs, finding that Trooper Kelley had slammed Mr. Ferraro's fingers in the cell door intentionally or with deliberate indifference. In this verdict, the jury awarded "$5,000" to Mrs. Ferraro for loss of consortium, but granted "$0" in damages to Mr. Ferraro. Because the jury had found that Trooper Kelley had violated Mr. Ferraro's constitutional rights, but yet refused to award him any damages-let alone nominal damages — I determined the verdict to be defective and sent the jury back for further deliberation.

Shortly thereafter, the jury inquired about the amount Mr. Ferraro "ha[d] to pay out of pocket for his medical bills." After consultation with counsel, I informed the jury in writing that the medical bills were contained in the exhibits introduced into evidence. In addition, I instructed the jury that "if [they found] a constitutional violation..., but [we]re unable to establish and agree upon a damage figure in specific numbers without speculation, [they could] award nominal damages of $1.00." In response, the jury successfully returned a second verdict finding the constitutional violation and awarding $14,330.25, the total of the medical bills introduced intoevidence, to Mr. Ferraro, and $2,500 to Mrs. Ferraro for loss of consortium. I entered judgment in favor of Plaintiffs reflecting the jury's second verdict on May 6, 2010.

II. DISCUSSION

Plaintiff¹ filed a request for attorney's fees seeking to recover $79,732.50² in legal services and $3,644.72 in expenses.

Defendant Kelley challenges the requested fees on grounds that they are excessive, duplicative, unrelated to the single successful claim, or otherwise based on time records lacking the required degree of specificity and details. To provide context, before turning to the calculation of attorney's fees, I will address how Plaintiff qualifies as a "prevailing party" entitled to attorney's fees and costs under 42 U.S.C. § 1988.

A. Plaintiff is a "Prevailing Party"

Under the "American Rule, " each party generally bears its own attorney's fees in the absence of any express statutory authority to the contrary. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 245 (1975). In response to Alyeska, Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, codified as 42 U.S.C. § 1988, to provide "effective access to the judicial process" for individuals whose civil rights have been violated. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H. R. Rep. No. 94-1558, p. 1 (1976)); De Jesus Nazario v. Morris Rodriguez, 554 F.3d 196, 199 (1st Cir. 2009) (same). Section 1988 provides that in federal civil rights actions "the court may, in its discretion, allow the prevailing party... a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b) (2000). A party qualifies as a "prevailingparty" when it "succeed[s] on any significant issue in litigation which achieves some of the benefit [it] sought in bringing suit." Hensley, 461 U.S. at 433 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)); Boston's Children First v. City of Boston, 395 F.3d 10, 14 (1st Cir. 2005) (same).

In this case, Defendant does not contest that Plaintiff is a prevailing party. See Diffenderfer v. Gomez-Colon, 587 F.3d 445, 453 (1st Cir. 2009) ("A plaintiff who receives a favorable judgment on the merits of a claim is the classic example of a

'prevailing party.'"). Rather, he urges that Plaintiff obtained such modest success that a reduction must be made in the amount of fees and expenses requested. See Section II.B.3.b & c infra. Defendant's objections are therefore "directed to the amount of

[the] attorney's fees award, not its availability." Jesus Nazario, 554 F.3d at 202; Farrar v. Hobby, 506 U.S. 103, 114

(1992) ("Once civil rights litigation materially alters the legal relationship between the parties, the degree of the plaintiff's overall success goes to the reasonableness of a fee award under Hensley v. Eckerhart.") (internal quotation and citation omitted). Accordingly, I now turn to the question whether the amount of attorney's fees requested is reasonable.

B. The Calculation of the Lodestar

The reasonableness of a fee is generally assessed by the so-called "lodestar method, " which consists of multiplying "thenumber of hours reasonably expended on the litigation... by a reasonable hourly rate." Hensley, 461 U.S. at 433. "In crafting its lodestar, the trial court may adjust the hours claimed to remove time that was unreasonably, unnecessarily or inefficiently devoted to the case, and subject to principles of interconnectedness, the trial court may disallow time spent litigating failed claims." Jesus Nazario, 554 F.3d at 207 (internal citation omitted). "It also may adjust the lodestar itself, upwards or downwards, based on any of several different factors, including the results obtained and the time and labor actually required for the efficacious handling of the matter." Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008).

1. Reasonableness of Hours Expended

The contemporaneous billing records from Denner Pellegrino, LLP and Sinsheimer & Associates, LLP³ indicate that Attorney Robert Sinsheimer spent 110.20 hours⁴ on this case, Attorney Lauren Thomas 108.80 hours, ⁵ Attorney Tanya Austin 14.30 hours⁶and K.⁷ Sheehan, a paralegal, 13.55 hours.⁸ Defendant's sole argument to show that the hours expended are unreasonable turns on the contention that the case was overstaffed.

It is well-settled that fee-shifting statutes are not designed "to serve as full employment or continuing education programs for lawyers or paralegals." Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992). Therefore, "a court should not hesitate to discount hours if it sees signs that a prevailing party has overstaffed a case." Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 297 (1st Cir. 2001). Nevertheless, "[g]iven the complexity of modern litigation, the deployment of multiple attorneys is sometimes an eminently reasonable tactic" which does not warrant the reduction of attorney's fees. Id.

"In short, the district court must weigh and consider the claim of overstaffing, using its intimate knowledge of the case, and make specific findings thereon." Poy v. Boutselis, 352 F.3d 479, 490 (1st Cir. 2003).

In an effort to demonstrate overstaffing, Defendant singles out certain entries that appear to be duplicative. One of the identified entries dated November 14, 2008 — described as "Telephone call to both opposing counsel; Edit scheduling report; Appearance; Telephone call to client — was entered twice, once for an unidentified person bearing the initials "DR" and the other for Attorney Thomas. (Decl. of Robert Sinsheimer, Ex. 2, p. 2.) Another entry identified by Defendant, which consists of "Review case cited by court regarding jurisdiction" dated November 17, 2009, was also entered twice, once for "DR" and the other for Attorney Thomas. (Jd. at 3.) In his Reply, Plaintiff recognized that these entries were clerical errors and agreed to disregard the attorney's fees resulting from them-i.e., $177.⁹In any event, the hours...