Edward Clopp et al,



Atlantic County et al,



Civil Action No. 00-1103 (JEI)


2002 U.S. Dist. Lexis 18898

170 L.R.R.M. 3260


October 7, 2002, Decided



Joseph E. Irenas, District Judge:


Following a trial which lasted from March 11, 2002, through April 11, 2002, and which resulted in a jury verdict finding liability for retaliation against Defendant Atlantic County, Defendant moves for a new trial based on excessiveness and impropriety of the verdict, alleged errors in evidentiary rulings and the jury charge, insufficiency of the evidence, failure of the Plaintiffs to mitigate damages, and misrepresentations of fact by Plaintiffs' counsel during closing argument. In the alternative, Defendant seeks remittitur of the $300,000 in damages awarded to each Plaintiff. Because the findings of the jury were supported by substantial evidence and the trial was not infected by prejudicial error, Defendant's motion for a new trial will be denied. Defendant's motion for remittitur will, however, be granted and damages shall be remitted from $300,000 to $75,000 per Plaintiff.


Plaintiffs move for counsel fees as prevailing parties under the relevant statute, as well as for pre-judgment interest on the damages award. Because the request for fees and costs is reasonable, the Court will grant Plaintiffs' application in the amount of $196,894.55. Plaintiffs' motion for pre-judgment interest will be denied, as they have been adequately compensated through the damages award.




Plaintiffs Edward Clopp, Norris Justis, Robert Murie, and Iris Quezerque are corrections officers currently employed by Atlantic County at the Atlantic County Justice Facility. Each plaintiff is also a member of the Fraternal Order of Police, Atlantic Lodge # 34 ("F.O.P."), which is the authorized collective bargaining unit for corrections officers in Atlantic County.


In or about May of 1997, Plaintiffs participated as F.O.P. members in "informational pickets" in various public forums in Atlantic County, New Jersey. Plaintiffs alleged that Frank Mazzone, n1 then Warden of the Atlantic County Justice Facility, learned of their participation in the picketing and proceeded to engage in various forms of retaliatory behavior against them. In addition, Plaintiffs alleged that Mazzone retaliated against them for various other union activities in which they participated. The retaliation took many forms, depending on the individual Plaintiff, and included allegations of selectively imposed discipline.


Plaintiffs' brought suit on March 8, 2000, claiming, under 42 U.S.C. 1983, that Defendants deprived Plaintiffs of their rights under the First Amendment (Count I) and that Defendants conspired to interfere with Plaintiffs' civil rights in violation of 42 U.S.C. 1985(3) (Count II). Subsequently, Defendants filed a Motion to Dismiss, and in its June 26, 2000, Opinion, this Court dismissed Count II. Thus, only Plaintiffs' 1983 claims remained.


On August 9, 2001, this Court denied Defendant's motion for summary judgment and trial commenced on March 11, 2002. At the conclusion of the trial, the jury rendered a verdict against the County and awarded $300,000 to each Plaintiff in compensatory damages.




The standard for granting a motion for a new trial pursuant to Fed. R. Civ. P. 59 is less demanding than that for a judgment as a matter of law under Fed. R. Civ. P. 50(a). Lightning Lube, Inc. v. Whitco Corp., 802 F. Supp. 1180, 1185 (D.N.J. 1992) (citing 9 Charles A. Wright & Arthur A. Miller, Federal Practice and Procedure 2531, at 575 (1971)). Although a trial court has narrow discretion when ruling on a motion for judgment as a matter of law, a trial court ruling on a motion for a new trial is vested with wide discretion.


In ruling on a motion for a new trial, the trial court is permitted to consider the credibility of witnesses and to weigh the evidence. Where a motion for a new trial is based primarily on the weight of the evidence, however, the trial court's discretion is more limited. A court should grant such a motion "only if the record shows that the jury's verdict resulted in a miscarriage of justice, or when the verdict, on the record, cries out to be overturned or shocks the conscience." Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991). Because of the time-honored authority of the jury to render a verdict based on its collective wisdom, New Market Inv. Corp. v. Fireman's Fund Ins. Co., 774 F. Supp. 909, 917 (E.D. Pa. 1991), the trial court must exercise restraint to avoid usurping the jury's primary function. Borbley v. Nationwide Mutual Ins. Co., 547 F. Supp. 959, 980 (D.N.J. 1981). The Court must proceed with caution because:

[When a] trial judge grants a new trial on the ground that the verdict was against the weight of the evidence, the judge ... substitutes his own judgment of the facts and credibility of the witnesses for that of the jury ... Such an action effects a denigration of the jury system. Thus, close scrutiny is required in order to protect the litigant's right to a jury trial.

Lind v. Schendley Industries, Inc., 278 F.2d 79, 90 (3d Cir. 1960). Appellate deference to the trial judge's decision is normally appropriate because it is the district court that was able to observe the witnesses and follow the trial in a way that an appellate court cannot replicate by reviewing a cold record. Id.; Roebuck v. Drexel University, 852 F.2d 715 (3d Cir. 1988), citing Semper v. Santos, 845 F.2d 1233, 1237 n.5 (3d Cir. 1988).


Although Fed. R. Civ. P. 59 does not enumerate the bases for a new trial, the following have been recognized as being among them: the verdict is against the clear weight of the evidence; damages are excessive; the trial was unfair; and substantial errors were made in the admission or rejection of evidence or the giving or refusing of instructions. Lightning Lube, Inc., 802 F. Supp. at 1186.






Defendant argues that the jury's award of $300,000 to each Plaintiff is not rationally related to the evidence, that the evidence of emotional distress is speculative and cannot support such an award, that the damages are punitive and therefore improper, and that the awards are excessive. While this Court does affirm the decision of the jury, it agrees with Defendant in regard to the excessiveness of the awards and will use remittitur to reduce the total amount of damages.


Defendant argues that the fact that each Plaintiff received an identical award of $300,000 demonstrates that the awards cannot be rationally related to the specific injuries sustained by each Plaintiff. However, it is clear that the jury simply found that each Plaintiff suffered approximately the same level of damages. This is not surprising considering that the behavior of Mazzone began and ended at basically the same point in time for each Plaintiff (from the date of the picketing in March 1997 through Mazzone's departure in December 1999) and the fact that each Plaintiff received damages for similar forms of emotional distress based on Mazzone's actions. In Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 1998), the court held that identical awards for emotional distress should be upheld when the harms suffered by the plaintiffs are similar, stating that "the jury likely concluded that the emotional harm to each plaintiff was roughly equal given the similar treatment each plaintiff suffered at the hands of the defendants." This court will not order a new trial simply because each Plaintiff received the same level of damages.


Defendant also argues that the evidence of emotional distress was too speculative to support an award of damages. However, the jury did find that there was significant emotional distress on the part of the Plaintiffs and the Court will not overturn this judgment. In fact, all four Plaintiffs presented evidence that they had suffered emotional distress and it is not the job of this Court to order a new trial unless the clear weight of the evidence could not support such a claim. See Lightning Lube, Inc., 802 F. Supp. at 1186. That is not the case here, as each Plaintiff made some showing of emotional distress that the jury chose to account for. Plaintiff Justis presented evidence of increased stress in his marriage, embarrassment due to his financial situation, and emotional distress related to uncertainty over his employment situation. Plaintiff Clopp testified to physical manifestations related to his emotional distress (including weight gain and increased sleepiness). Plaintiff Quezergue presented evidence that she began taking medication for stress and had problems eating and sleeping. Plaintiff Murie testified that he suffered from stress that disrupted his family life.


It is important to note that the Third Circuit has held that it is not necessary for a plaintiff to present expert medical testimony in order to recover for emotional distress under civil rights laws. Bolden v. Southeastern Pennsylvania Transp. Auth., 21 F.3d 29, 34 (3d Cir. 1994). Therefore, the evidence presented by the Plaintiffs was sufficient to allow a jury to find that all four had suffered from emotional distress.


Defendant argues that should a new trial not be granted by this Court the damages awarded to the Plaintiffs should be remitted. "A remittitur is in order when a trial judge concludes that a jury verdict is 'clearly unsupported' by the evidence and exceeds the amount needed to make the plaintiff whole, i.e., to remedy the effect of the employer's discrimination." Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1100 (3d Cir. 1995), citing Spence v. Board of Educ. of Christina School Dist., 806 F.2d 1198, 1201 (3d Cir. 1986). A court should not lower a damage award merely because it would have chosen to award less money, but there must be a "rational relationship between the specific injury sustained and the amount awarded." Gumbs v. Pueblo Intern., Inc., 823 F.2d 768, 773 (3d Cir. 1987). A court may look at awards in similar cases in determining whether an award is excessive. Sassaman v. Heart City Toyota, 879 F. Supp. 901, 911 (N.D. Ind. 1994); Abrams v. Lightolier, 841 F. Supp. 584, 593 (D.N.J. 1994), aff'd 50 F.3d 1204 (3d Cir. 1995); Garrison v. Mollers North America, Inc., 820 F. Supp. 814, 822 (D.Del. 1993). Remittitur is favored where the jury makes an excessive award and "the surplus cannot be ascribed to a particular, quantifiable error." Datskow v. Teledyne Cont. Motors Aircraft Prod., 826 F. Supp. 677, 690 (W.D.N.Y. 1993).


Looking at the facts and circumstances of this case and the evidence presented at trial, the Court finds that the jury's award of compensatory damages was clearly excessive and concludes that remittitur is an appropriate remedy. In setting a new figure, the Court relies primarily on an evaluation of the evidence presented in this case and only secondarily on awards in comparable cases. We also give due deference to the jury's obvious findings that a significant award was called for and that each Plaintiff suffered an equivalent amount of damages. Taking into account all of these factors, this Court will remit the damages to $75,000 per Plaintiff.


While there is credible evidence of emotional distress and other injuries, including financial consequences as a result of selectively imposed discipline, suffered by each Plaintiff, none of the Plaintiffs suffered physical injury or a loss of employment. In addition, there are doubts as to whether all of the emotional distress testified to by the Plaintiffs can be directly traced to the actions of Mazzone. There was evidence introduced indicating that the Plaintiffs were under additional stresses not attributable to any retaliation by Mazzone.


An award of $75,000 per Plaintiff is also more in line with other awards in cases brought under 42 U.S.C. 1983 where plaintiffs suffered similar harms. See, e.g., Young v. City of Little Rock, 249 F.3d 730, 736 (8th Cir. 2001) (upholding total damages of $100,000 for plaintiff who was falsely incarcerated after ordered released and who also suffered serious psychological harm); Mathie v. Fries, 121 F.3d 808, 813-14 (2d Cir. 1997) (upholding award of only $275,000 in compensatory damages for plaintiff who was sexually assaulted by a prison director and suffered from post-traumatic stress disorder); Forsyth v. City of Dallas, Tex., 91 F.3d 769, 774 (5th Cir. 1996) (upholding award of $75,000 to plaintiff who "suffered depression, sleeplessness, and marital problems" and $100,000 award to plaintiff who "suffered depression, weight loss, intestinal troubles, and marital problems"); Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994) (upholding award of $25,000 for plaintiff who suffered from weight loss, insomnia, and stomach problems); Hogan v. Franco, 896 F. Supp. 1313, 1325-26 (N.D.N.Y. 1995) (award of $200,000 where plaintiff suffered real physical injuries as well as emotional distress). An award of $300,000 for each of the Plaintiffs in this case would be particularly excessive when seen in comparison to the other 1983 cases described above.


Plaintiffs cite the case of Blakely v. Continental Airlines, Inc., 992 F. Supp. 731 (D.N.J. 1998), to argue that damages here should not be remitted. However, in Blakely the jury originally returned a verdict of $500,000 (which was remitted to $250,000) for compensatory damages and the court noted the strong evidence of real psychological problems and physical manifestations of those problems, including the need for psychotropic medication on the part of the plaintiff. 992 F. Supp. at 739-40. None of the Plaintiffs in this case have been able to show such severe injuries. Plaintiffs also cite Evans v. Port Authority of New York and New Jersey, 273 F.3d 346 (3d Cir. 2001), but fail to note that in that case the original jury award was over $1,000,000 and was remitted to $375,000. In addition, the plaintiff in Evans had been subjected to a long period of racially discriminatory conduct in the workplace, a very different charge from the retaliation claim present in this case.


The "Third Circuit has held that where the facts as to compensatory damages are in dispute, a court may not remit a plaintiff's damages without her consent, but must offer the plaintiff an option between accepting the remittitur or submitting to a new trial." Blakey v. Continental Airlines, Inc., 992 F. Supp. 731, 741 (D.N.J. 1999)(citing Scott v. Plante, 641 F.2d 117, 136-37 (3d Cir.1981), vacated on other grounds, 458 U.S. 1101, (1982)). Accordingly, the Court's denial of Defendant's motion for a new trial will be conditioned upon Plaintiffs' filing of an acceptance of a remittitur of damages exceeding $75,000 per Plaintiff. Should Plaintiffs not consent, a new trial as to both liability and damages will be held.


Defendant also claims that the damages awarded are punitive in nature and therefore inappropriate. As this Court has remitted the damages to an amount that is appropriate for compensatory damages for similar plaintiffs in 1983 cases the Defendant's argument is now moot and need not be addressed.




The Defendant argues that the Court erred in a number of ways during trial. The Defendant states that the Court erred in its jury charge regarding Mazzone's status as a policy maker and in its admission of evidence that the Defendant believes was highly inflammatory and unrelated to the proceedings.


Notwithstanding the fact that Defendant fails to note which jury charge it is objecting to, this Court finds that its charge in 13 regarding Mazzone's status as a policy maker was not in error. While a municipality cannot be held liable for the actions of an employee under 1983 on a respondent superior theory, it can be held liable when an employee is implementing municipal custom or policy. Monell v. Dep't of Social Services of the City of New York, et al., 436 U.S. 658, 691, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). When a municipal employee is a policymaker then that employee's actions will lead to municipal liability. City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988). The question of whether an employee can be classified as a policymaker is answered by looking to the relevant state law. Id. at 123.


The Third Circuit has implied that an employee is a policymaker when that person has "final authority to establish municipal policy with respect to the action." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997). The Supreme Court has made clear that when making such a determination it is only necessary for the employee to have final authority over the particular issue in the case and that when looking at state law the purpose is to determine whether the employee's position gives that person final authority based on the structure of the governmental entity that the employee is a part of. McMillian v. Monroe County, Ala., 520 U.S. 781, 785-86, 138 L. Ed. 2d 1, 117 S. Ct. 1734 (1997).


It is clear in this case that Mazzone did have final authority on the issues that are the basis for the claim. As the person ultimately in charge at the Atlantic County Justice Facility it was Mazzone who had final authority regarding the manner in which the facility was managed. Defendant has not indicated to this Court anyplace in the trial record where there is evidence of another person who had final authority over the management of the corrections officers employed at the facility. The fact that any discipline could be challenged through the collective bargaining process is irrelevant, as that is a method of challenging policy that has already been made, not a method of making policy. In addition, any discipline imposed by Mazzone was certainly an "official proclamation, policy or edict," another requirement if an employee's actions are to leave the municipality liable, Robinson, 120 F.3d at 1296, because it was a directive of Mazzone in his official capacity as warden as to how to enforce the facility's disciplinary procedures.


Defendant also makes a number of claims of error by this Court regarding the admission of what it calls highly inflammatory evidence unrelated to any 1983 violation. Specifically, Defendant objects to the admission of the disciplinary files of four corrections officers, the testimony of Plaintiff Quezergue regarding her medical condition, the testimony of Plaintiff Murie regarding Mazzone's alleged interference with the union election, and the testimony of the Plaintiffs to events which occurred prior to the spring of 1996. Defendant's claims of error are not correct and, even if the Court were to find its rulings in error, these errors would not be so prejudicial as to warrant a new trial.


This Court concluded during trial that the disciplinary files of officers Gregg, Ranson, Phillips, and McNew were properly admitted based on the fact that these employees were in similar situated employment situations. n2 Defendant has not offered any argument as to why this decision was not correct and this Court will not reverse its ruling and find for a new trial.


The testimony of Plaintiff Quezergue was properly admitted by this Court. In order to prove her claim of emotional distress Plaintiff Quezergue was allowed to testify as to her emotional distress without submitting medical records or having a medical expert testify regarding such distress. It is an established rule of law that medical records and expert testimony are not necessary when attempting to prove emotional distress. Bolden, 21 F.3d at 34; Busche v. Burkee, 649 F.2d 509, 519 (7th Cir. 1981). Therefore, the Court was correct in admitting such evidence. In addition, in 15(C) of the jury charge the Court specifically instructed the jury that, "you should not find that plaintiffs are entitled to any compensation for the treatment of any specific physical or emotional injuries or for any medical expenses allegedly incurred as a result of those injuries." The charge went on to instruct the jury that it could award damages for general emotional distress. This charge is a correct statement of the law as it should be applied to Quezergue's testimony and served to properly frame the issue for the jury.


The Defendant argues that because it was not permitted to call a witness to rebut Plaintiff Murie's testimony regarding interference with the union election there should be a new trial. This charge is unfounded as the jury charge instructed the jury on how to deal with this issue. In 12 of the jury charge the jury was told that, "Plaintiffs do not assert that Warden Mazzone in any way influenced the outcome of the union election or the decision to suspend plaintiffs from the union, and you should disregard any evidence to the contrary."


Defendant also objects to testimony regarding events which occurred before the spring of 1996. The Court permitted this testimony in order to allow the Plaintiffs to establish the intent or state of mind of the Defendant. This is a proper form of evidence and it was not admitted as a means of determining damages. The jury was charged in 15(A) that it could "not consider any actions occurring prior to March of 1997 in calculating an award of damages."


In addition to the arguments noted above, even if the rulings were in error this Court sees no reason to order a new trial. In all four cases of supposed error by this Court in admitting evidence or testimony, the Defendant has failed to show that even if the Court did err, the errors were so prejudicial that a new trial should be granted. The Federal Rules of Civil Procedure specify that "no error in either the admission or exclusion of evidence and no error or defect in any ruling or order ... is ground for granting a new trial ... unless refusal to take such action appears to the court inconsistent with substantial justice." Fed. R. Civ. P. 61. None of the alleged errors detailed above would be inconsistent with substantial justice. "With respect to an evidentiary error, the test ... is that a new trial must be granted unless 'it is highly probably that [the erroneous ruling] did not affect the [objecting party's] substantial rights'" Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600, 601-02 (E.D.Pa. 1989) (quoting McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985)).


Had the rulings involved more significant pieces of evidence it is possible that the Defendant's substantial rights would have been violated. However, the Defendant has not challenged the admission of any evidence regarding any disciplinary actions or other retaliatory actions taken by Warden Mazzone. In addition, in almost every ruling objected to by the Defendant there was a jury charge reinforcing the proper rule of law to the jury. Accordingly, while this Court finds that its rulings on the admissibility of evidence and testimony during trial were correct, it also finds that even if the rulings were in error, those errors were not inconsistent with substantial justice.




Defendant argues that the Plaintiffs were not able to establish a causal connection between their conduct and the alleged retaliation, and so therefore a new trial should be ordered. This argument fails, as there was enough evidence for the jury to find that there was a causal connection. Therefore, no new trial will be ordered on this issue.


In analyzing a claim of retaliation, a three-step process is used. The plaintiff must show that the activity in question is protected and that the protected activity was a substantial or motivating factor in the alleged retaliatory action, while the defendant can show that he or she would have engaged in the same actions even if the plaintiff had not engaged in the protected activity. See Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995); Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993); Kadetsky v. Egg Harbor Township Bd. of Educ., 82 F. Supp.2d 327, 335 (D.N.J. 2000). Defendant is specifically raising an issue regarding the third part of the three-step process and is arguing that there is not enough evidence to show that the Plaintiffs' participation in the protected activity can be shown to have caused the Defendant's actions that are at issue in this case.


It is not the duty of this Court to substitute its own judgment on issues of fact for that of the jury. As long as the jury did not find against the clear weight of the evidence on the issue of causation this Court should not order a new trial. See Lightning Lube, Inc., 802 F. Supp. at 1186. In this case, the clear weight of the evidence does not indicate that the jury was mistaken in finding causation. There was evidence presented at trial indicating that all four Plaintiffs were selectively disciplined (or targeted for discipline) in retaliation for their union activities.


In addition, the Defendant has not offered any arguments stating that the actions taken by Mazzone against the Plaintiffs would have occurred even without their union activity. Under the three-part test detailed above, the burden of disproving causation is on the defendant to show, by a preponderance of the evidence, that the actions it took would have occurred even without the protected behavior. See Watters, 55 F.3d at 892. Considering that there was evidence linking the actions of Mazzone to the Plaintiffs' union activities and that the Defendant has failed to provide any evidence of other possible reasons for Mazzone's actions this Court will not disturb the verdict of the jury since it is not against the clear weight of the evidence.




Defendant argues that Plaintiffs Justis and Quezergue failed to mitigate their damages and so therefore a new trial should be granted. n3 The Court will not grant a new trial based on any alleged failure to mitigate damages since the jury's finding on this issue is not against the clear weight of the evidence.


In a 1983 case there is a duty on the part of plaintiffs to attempt to mitigate their damages. Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994). At trial, the burden of proving that there has been a failure to mitigate falls on the defendant. Id. at 1119.


The Court's jury charge, in 15(B), clearly stated that "if you decide that a reasonable plaintiff would take steps necessary to appeal and/ or grieve any discipline that he or she feels was unfairly imposed, you may find that such plaintiff could have mitigated his or her damages but did not." As is appropriate, this instruction left it up to the jury to decide whether the Plaintiffs attempted to mitigate their damages. The jury was well aware of its duty in this area and proceeded to find for the Plaintiffs. There was evidence presented that the two Plaintiffs in question made at least a minimal effort to mitigate their damages, even if they may not have exhausted their administrative remedies. The Court does not find that the clear weight of the evidence is opposed to the jury's findings on this issue.




Finally, the Defendant would have this Court order a new trial based on the argument that Plaintiffs' counsel made misrepresentations during her closing argument. As with the other arguments for a new trial presented by the Defendant, the standard for ordering a new trial is that any such misrepresentations must have resulted in a trial that was unfair or substantial errors must have been made in allowing such misrepresentations to be recited to the jury. See Lightning Lube, Inc., 802 F. Supp. at 1186. In the case of Fineman v. Armstrong World Industries, Inc., the court held that the "improper conduct by plaintiffs' trial counsel so pervaded the trial as to infect the jury's verdict." 980 F.2d 171, 206 (3d Cir. 1992).


The same cannot be said in this case. Defendant identifies a number of statements of Plaintiffs' counsel during closing argument that it claims are misrepresentations. The Defendant fails to explain, however, how any of these alleged misrepresentations confused or contaminated the jury process. Plaintiffs' counsel is allowed during closing argument to make inferences based on admitted evidence, and that is precisely what counsel was doing in many of the disputed statements. In addition, this Court does not find that the statements, even if they are incorrect or misleading and taken individually or as a whole, are enough to have truly infected the jury's verdict. There was enough evidence presented at trial that could lead a reasonable jury to find for the Plaintiff. The Court will not order a new trial based on the alleged misrepresentations of Plaintiffs' counsel that, even if true, most likely did not affect the ultimate findings of the jury.




Fee shifting in favor of a prevailing plaintiff is permitted under 1983 based on 42 U.S.C. 1988. Having obtained a judgment in their favor, Plaintiffs now seek a reasonable amount of money for attorney fees, costs, and litigation expenses. The Court will grant Plaintiffs' application for a fee award.


In calculating any fee award under 1983, the Court begins by multiplying the number of hours of work reasonably incurred by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). The product is known as the "lodestar." Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Std. Sanity Corp., 487 F.2d 161, 168 (3d Cir. 1973). The plaintiff must provide the Court with adequate documentation for the hours requested. Hensley, 461 U.S. at 433. The Court, of course, must exclude any hours that are "excessive, redundant, or otherwise unnecessary." Id. at 434. However, the Court may not sua sponte reduce a request for attorney's fees. Bell v. United Princeton Properties Inc., 884 F.2d 713, 719 (3d Cir. 1989). Only if the defendants challenge the hours or "if the hours expended are within the judge's personal knowledge" may the court reduce them. Cerva v. E.B.R. Enterprises, Inc., 740 F. Supp. 1099, 1103 (E.D.Pa. 1990).


The Court finds that Plaintiffs' counsel is entitled to attorney fees and costs in the amount of $196,894.55. The breakdown of these fees and costs is described below:

Michelle Douglass -- 794.9 hours @ $ 225/hr --$ 178,852.50

A. Michael Barker -- 6.3 hours @ $ 225/hr -- $ 1,417.50

Joseph Scott -- 10.7 hours @ $ 175/hr -- $ 1,872.50

Jodi Cohen -- 1.4 hours @ $ 175/hr -- $ 245.00

Paralegal -- 48.0 hours @ $ 75/hr -- $ 3,600.00

Costs -- $ 10,907.05

$ 196,894.55 [Total]


Plaintiffs' counsel has submitted to the Court a detailed accounting of these fees and costs and the Court is satisfied that counsel is asking for a reasonable amount. Defendant has raised a number of objections to the hours that Plaintiffs' counsel has billed, arguing that many of the entries are inadequately documented, excessive or redundant, or duplicative. However, in her reply brief, Plaintiffs' counsel adequately addressed these issues and the Court is satisfied that counsel has accurately and reasonably detailed her time spent working on this case.


Defendant also argues that Plaintiffs' counsel should not be awarded fees for her time spent obtaining and reviewing Plaintiff Quezergue's medical records and her time spent preparing an exhibit which was not admitted at trial. The Court disagrees and will allow Plaintiffs' counsel to collect fees for this work. The Court is satisfied that the medical records, while not admitted at trial, were helpful to counsel in understanding her client's alleged emotional distress. As such, they were properly used by counsel in preparing for trial and counsel can bill for her time spent on them.


As for the inadmissible exhibit, Plaintiffs' counsel claims that the exhibit was helpful to her in preparing for trial, even though it was not admitted. More importantly, the exhibit was prepared to support a claim upon which the Plaintiffs ultimately prevailed at trial. Only when a particular claim is unsuccessful should the fees spent in pursuing that claim be disallowed. Texas State Teachers Ass'n v. Garland Independent School District, 489 U.S. 782, 789, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989); Hensley, 461 U.S. at 436. The mere fact that an exhibit was not allowed should not lead to a reduction in fees. Throughout trial there will always be rulings on the admissibility of various pieces of evidence and it would certainly not be an appropriate use of a court's time to have to go through bills for legal services and deduct time spent on every piece of evidence or testimony that was ultimately not admitted at trial.


This Court will also not reduce Plaintiffs' counsel's fees for what the Defendant considers unreasonable costs. The Court is satisfied with counsel's explanation of her travel expenses to and from trial. In addition, the Court will not reduce fees based on the argument that Plaintiffs' counsel unnecessarily delayed trial and caused the trial to be unnecessarily long. As the statements made from the bench during trial suggest, the length of the trial was the responsibility of both parties and the Court will not reduce Plaintiffs' counsel's fees as a result.


Defendant's final argument is that Plaintiff's counsel has charged an unreasonably high rate per hour for her services. This Court disagrees and finds that the rate of $225.00 per hour is reasonable for an attorney of Ms. Douglass' experience and skill. Attorney's fees shall be established at the current rate for such services rather than at the rate in effect at the time the services were rendered, in order to account for the delay in payment which occurs when no fees are collected until the end of trial or later. Rendline v. Pantzer, 141 N.J. 292, 337, 661 A.2d 1202 (1995). In addition, the rate for such fees should be based on the prevailing market rate for attorneys in the same community and should take into account the attorney's experience and skill. Id. at 337. Plaintiffs' counsel has attached four certifications from other attorneys supporting her hourly rate. In addition, she has detailed her strong experience in the field of employment law. Accordingly, the Court finds that the rate charged by counsel is reasonable based on the circumstances.




Plaintiffs have moved for pre-judgment interest on their damage awards. Such an award is within the discretion of the trial court. Pressler, 1995 N.J. Court Rules 4:42-11(a); Ambromovage v. United Mine Workers, 726 F.2d 972, 981-82 (3d Cir. 1984). The purpose of an award of pre-judgment interest is to compensate the plaintiffs for the defendant's use of plaintiffs' money after the cause of action accrued but before judgment was entered. In this case, Plaintiffs have received adequate compensation for their injuries and an award of pre-judgment interest would not be appropriate. Accordingly, this Court will not award any pre-judgment interest to the Plaintiffs.




Because the jury's findings were adequately supported by the evidence presented at trial, and because there was no prejudicial legal error, the Defendant's motion for a new trial will be denied. Defendant's motion for remittitur of damages will be granted and such damages will be remitted to $75,000 per plaintiff. Plaintiffs' application for counsel fees and costs will be granted, while Plaintiffs' motion for pre-judgment interest will be denied.

Dated: October 7, 2002


Joseph E. Irenas, U.S.D.J.


Order Denying Defendant's Motion For A New Trial,

Granting Defendant's Motion For Remittitur Of Damages,

Granting Plaintiffs' Application For Attorney's Fees and Costs

And Denying Plaintiffs' Motion For Pre-Judgment Interest

Irenas, District Judge:


This matter having appeared before the Court upon Defendant Atlantic County's post-trial motion for a new trial or, in the alternative, for a remittitur of damages and Plaintiffs' Edward Clopp, Norris Justis, Robert Murie and Iris Quezerge's post-trial motion for attorney's fees and costs and pre-judgment interest on their award, and the Court having reviewed the submissions of the parties, for the reasons set forth in an Opinion issued by this Court, which findings of fact and conclusions of law are incorporated herein by reference, and for good cause appearing,


IT IS on this 7th day of October, 2002,



1. Defendant's motion for a new trial is DENIED;


2. Plaintiffs' damages award is REMITTED to $75,000 per Plaintiff;


3. Plaintiff is hereby awarded ATTORNEY'S FEES AND COSTS in the amount of $196,894.55;


4. Plaintiffs' motion for pre-judgment interest is DENIED;


5. Plaintiffs shall notify the Court within thirty days from the date of this Order whether they accept the remittitur of the damages award. If Plaintiffs reject remittitur, a new trial shall be held on the issues of liability and damages.





1 On March 29, 2001, Plaintiffs filed a Stipulation of Dismissal with Prejudice as to Frank Mazzone. Thus, only Defendants Atlantic County ("County") and the Atlantic County Department of Safety (the "Department of Safety") remain. However, the County has represented to this Court that the Department of Public Safety is not itself a legal entity. (Pls.' Br. in Opp. at 1). Accordingly, the Court, in this Opinion, confines references to the County.


2 In order to compare the treatment of other employees at the same facility to the treatment experienced by the Plaintiffs, those other employees must be "similarly situated" to the Plaintiffs. See Bennun v. Rutgers State Univ., 941 F.2d 154, 177-78 (3d Cir. 1991) (holding that "similarly situated" does not mean "identically situated").

3 Defendant's Brief in support of its motion for a new trial, in its section on mitigation of damages, relies almost entirely on the case of Izquiredo v. City of Wilmington, 68 F. Supp.2d 392 (D.Del. 1992). Unfortunately for Defendant, this case has nothing to do with the issue of mitigation of damages and cannot help Defendant's motion on this issue.