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MOODY v. TOWNSHIP OF MARLBORO

June 13, 1994

MICHAEL MOODY, Plaintiff,
v.
TOWNSHIP OF MARLBORO, et al., Defendants.



The opinion of the court was delivered by: CLARKSON S. FISHER

 FISHER, District Judge

 A jury verdict of $ 780, or a week's pay to the plaintiff, is followed here by an application for attorney's fees in the amount of $ 175,793.75. Of course, this application is hotly resisted.

 Plaintiff, a patrolman in the Marlboro Police Department, brought various federal and state claims against his employers in response to disciplinary action taken against him, including a five-day suspension, resulting from his criticism of and opposition to a monthly summons-production policy which plaintiff alleged constituted an illegal quota system. Specifically, the present action involved claims under the federal and state constitutions, 42 U.S.C. §§ 1983 and 1985 and New Jersey's Conscientious Employee Protection Act ("CEPA"), as well as intentional torts. On September 18, 1992, the jury returned a verdict and found, by way of interrogatories, a violation of plaintiff's First Amendment rights and a violation of CEPA. Judgment in the amount of $ 780.00 was entered in favor of plaintiff and against defendants, Township of Marlboro, Township of Marlboro Police Department, Joseph Walker and Donald Andrews. All of the other claims were ultimately dismissed.

 By order dated January 20, 1993, the court granted defendants' motion for judgment notwithstanding the verdict on plaintiff's First Amendment claim, and judgment was entered in favor of defendants. The court also denied plaintiff's motion for a new trial on plaintiff's CEPA claim and reserved on plaintiff's motion for attorneys' fees under 42 U.S.C. § 1988 and N.J.S.A. 34:19-5(e) pending appeal of the judgment notwithstanding the verdict. By order dated February 15, 1994, the Third Circuit Court of Appeals affirmed this court's order dated January 20, 1993. Plaintiff now moves for a total award of $ 175,793.75, representing full award of attorney's fees as well as an enhancer of the lodestar figure to compensate for the delay in receipt of payment of counsel fees and costs, after deductions for services it claims are related solely to the First Amendment claim. Both parties acknowledge that N.J.S.A. 34:19-5(e) is the sole legal authority for any award of fees in the wake of the Court of Appeals' disposition in this matter.

 Plaintiff contends that its CEPA claim and First Amendment claim were so connected-being based on a common core of fact--that no exclusions are warranted and that plaintiff, by virtue of its recovery on the CEPA claim, is a "prevailing party" for purposes of entitlement and calculation of reasonable attorney's fees (citing Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)). Defendants assert that the award of attorney's fees under N.J.S.A. 34:19-5(e) is strictly in the court's discretion. Defendants urge that the court exercise its discretion not to award any fees under that statute, since the plaintiff lost on all federal claims, both in trial court and on appeal, the total amount of the award ($ 780.00) is nominal and the CEPA claims were a minor part of the entire action. These competing arguments clearly suggest that a dispute exists between the parties respecting the legal standards that this court should employ in determining plaintiff's entitlement to fees under N.J.S.A. 34:19-5(e).

 
N.J.S.A. 34:19-5 provides, in pertinent part, that:
 
Upon a violation of any of the provisions of this act, an aggrieved employee may, within one year, institute a civil action in a court of competent jurisdiction . . . . The court may. . . order:
 
a. An injunction to restrain continued violation of this act;
 
b. The reinstatement of the employee to the same position held before the retaliatory action;
 
c. The reinstatement of full fringe benefits and seniority rights;
 
d. The compensation for lost wages, benefits and seniority rights;
 
e. The payment by the employer of reasonable costs, and ...

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