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Ivan Velius v. Township of Hamilton

June 22, 2012

IVAN VELIUS,
PLAINTIFF,
v.
TOWNSHIP OF HAMILTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS, Senior District Judge:

Two issues remain for resolution in this Section 1983 suit: Plaintiff's motion for attorneys' fees pursuant to 42 U.S.C. § 1988, and Plaintiffs' application for attorney's fees pursuant to Local Appellate Rule 108.1.*fn1 For the reasons set forth below, Plaintiff's motion and application are both denied.

I.

As the facts of this case have been recited in Velius v. Twp. of Hamilton, 754 F. Supp. 2d 695 (D.N.J. 2011) and Velius v. Twp. of Hamilton, 2012 U.S. App. LEXIS 5009 (3d Cir. March 9, 2012), the Court outlines only the essential factual background. Plaintiff Ivan Velius, while under the influence of alcohol, was involved in a traffic accident on January 7, 2007. After fleeing the scene, Plaintiff was stopped by Defendant officers Smyth, Jacobi, and Zippilli after the three were notified of Plaintiff's erratic driving. Upon being pulled over, Plaintiff claimed, the Officers dragged him from his truck and handcuffed him too tightly, refusing to lessen the restraints despite repeated complaints. The officers claimed Velius refused to exit his truck and when forcibly removed, Plaintiff and the arresting officer fell to the ground.*fn2

At trial resolving Plaintiff's § 1983 excessive force claim, the jury found that Defendants Smyth and Zippilli violated Plaintiff's right not to be subjected to excessive force and failed to intervene to stop the use of excessive force.*fn3 The verdict form, however, did not require the jury to specify whether liability lay in one of the officer's unreasonable taking of Plaintiff from his vehicle, or the unreasonable tightness of the handcuffs.*fn4 The jury further found that Defendants had not caused any injury to Plaintiff. Consequently, Plaintiff was awarded nominal damages in the amount of $1.00.

The Court granted Plaintiff's motion for attorneys' fees but awarded only $2,259; Plaintiff sought $82,600. Plaintiff appealed the Court's award and Defendants filed a cross-appeal, claiming that no fee was warranted. Defendants also appealed the Court's jury instructions and its refusal to enter judgment in their favor based on qualified immunity. The Third Circuit affirmed the Court's judgment in favor of Plaintiff but vacated the attorneys' fee award and remanded for a de novo reconsideration.

II.

"In any action . . . to enforce a provision of section[]. . . 1983 . . . of [Title 42]. . . the court in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988.

III.

Under the "American rule," parties are ordinarily responsible for their own attorneys' fees.*fn5 Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 163 (2002) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975)). 42 U.S.C. § 1988(b), however, creates an exception to this rule whereby litigants who prevail in § 1983 suits may have their attorneys' fees included in the cost of litigation. See, e.g., Solomen v. Redwood Advisory Co., 223 F. Supp. 2d 681, 682 (E.D. Pa. 2002). "[I]n order to qualify for attorney's fees under § 1988, a plaintiff must be a prevailing party." Farrar v. Hobby, 506 U.S. 103, 109 (1992). The Supreme Court has clarified that a judgment for damages in any amount, "whether compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay." Id. at 113. Consequently, "[a] plaintiff who wins nominal damages is a prevailing party under § 1988," id., and thus may have his attorney's fees included in the cost of litigation.

Although the award of only nominal damages "does not affect the prevailing party inquiry, it does bear on the propriety of fees awarded under § 1988." Farrar, 506 U.S. at 114. In fact, "a nominal damages award is presumptively a technical victory that does not merit an award of attorneys' fees." Velius, 2012 U.S. App. LEXIS 5009, at *19. Consequently, Plaintiff's $1 victory is presumptively a technical one that does not merit an award of attorneys' fees.

The presumption, however, is only that: a presumption. The Third Circuit has not recognized "any rule strictly governing when a nominal damages award signals de minimis success."*fn6

Velius, 2012 U.S. App. LEXIS 5009, at *19. Rather, district courts have substantial discretion to decide whether no fee or ...


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