Opinion
Civ. No. 99-601, SECTION "C" (5).
January 26, 2000.
MEMORANDUM OPINION
The purpose of this memorandum opinion is to explain the Court's resolution of the parties' disagreements over the wording of the judgment in this case.
The parties disagree on two issues: (1) whether Defendant is liable for prejudgment interest from the date the underlying case, Finister v. Floridi, Civ. Action 97-1627 ("underlying case"), was filed — May 20, 1997 — until the date this action was filed — February 22, 1999; and (2) whether Intervenor is entitled to attorney's fees and costs. The Court's resolution of these two issues can be found in the judgment and is explained below.
I. Defendant's Liability for Prejudgment Interest
Plaintiff Antonio Frere and Intervenor Derrick Finister argue that Defendant Sheriff Harry Lee should be liable for prejudgment interest from the date the underlying case was filed until the jury rendered a verdict in this case. Sheriff Lee, however, argues that he should be liable for prejudgment interest only from the time this case was filed because either or both Messrs. Frere and Finister could added him as a party in the underlying suit and thus put him on notice of his potential liability but did not.
It is first necessary to examine the complaints of both the Plaintiff and the Intervenor to see whether either asserted a claim for the interest in dispute. Mr. Frere's complaint failed to assert a claim for indemnification of the full judgment in the underlying case and thus never asserted a claim for prejudgment interest from the time the underlying case was filed and the time the instant case was filed. See Pl.'s Cmpl., Rec. Doc. 1. Mr. Finister's complaint, however, specifically prayed for judgment of the full amount of the jury verdict in the underlying case including prejudgment interest. See Int.'s Cmpl., Rec. Doc. 13, at 6 ¶ 16(2).
Intervenor specifically prayed for, inter alia, "judgment in favor of Intervenor Derrick Gerard Finister and against defendant Harry Lee, individually and in his official capacity of Jefferson Parish Sheriff, in the amount of $305,910.77, plus prejudgment interest, and subject to an appropriate credit." Int.'s Cmpl., Rec. Doc. 13, at ¶ 16(2).
An intervenor has equal standing with the other litigants in a suit. While an intervenor cannot change the issues framed by the parties, an intervenor, once admitted to a suit, may litigate fully as if he had been an original party. See League of United Latin American Citizens v. Wilson, 131 F.3d 1297, 1304 (9th Cir. 1997). See also Alvarado v. J.C. Penney Co., 997 F.2d 803, 805 (10th Cir. 1993); Brown v. Demco, Inc., 792 F.2d 478, 480-81 (5th Cir. 1986); 7C Charles A. Wright Arthur R. Miller, Federal Practice Procedure § 1920 (1986). The petition for intervention, or the intervenor's complaint, essentially sets up an action within an action and thus entitles an intervenor to have the issues raised therein tried and determined. See Alvarado, 997 F.2d at 805.
In particular, an intervenor of right must be treated as an original party because he, by definition, has a right to appear in the case and have his rights in the case adjudicated. See generally Brown, 792 F.2d at 480-81; 7C Wright Miller § 1921. Accordingly, an intervenor of right may assert compulsory and permissive counterclaims, additional claims, cross-claims, and third-party claims. See 7C Wright Miller § 1921. See, e.g., Exchange National Bank of Chicago v. Abramson, 45 F.R.D. 97, 103-04 (D.Minn. 1968) (permissive counterclaim allowed to stand where brought by intervenor of right); United States ex rel. Foster Wheeler Corp v. American Surety Co. of New York, 25 F. Supp. 700, 701 (E.D.N.Y. 1938) (Federal Rules of Civil Procedure were designed to enable the whole controversy to be tried in one action, and thus it is consistent with that purpose to permit an intervenor to assert claims).
Intervention of right is provided for in Federal Rule of Civil Procedure 24(a). That rule provides the following:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Fed.R.Civ.P. 24(a). For a discussion of 24(a)(2), see Atlantis Development Corp. v. United States, 379 F.2d 818, 825-29 (5th Cir. 1967).
Fed.R.Civ.P. 13(a) (b) respectively. An intervenor of right, just as an original party, is required to assert a compulsory counterclaim or be forever barred. See 7C Wright Miller § 1921.
If Mr. Finister's intervention in the instant case was one of right, he was thus entitled to bring a claim for interest that the Plaintiff, Mr. Frere, never asserted. Mr. Finister obtained a judgment against Mr. Frere in the underlying case. In the instant action, Mr. Frere sought indemnification from Sheriff Lee for the judgment entered against him in the underlying case. Without Mr. Frere securing indemnification from Sheriff Lee, Mr. Finister could only rely on garnishment of Mr. Frere's wages to obtain the judgment. Such a process apparently would have stretched over many decades before Mr. Finister received the full amount due him. Therefore, when Mr. Frere brought suit against Sheriff Lee in the instant case, Mr. Finister intervened to secure his interest in the "property or transaction [that was] the subject of the action" because "the disposition of the action may [have] as a practical matter impair[ed] or impede[d] [his] ability to protect [his] interest" in the judgment to which he was legally entitled. Fed.R.Civ.P. 24(a). Thus, it is quite clear that Mr. Finister's intervention in the instant case was an intervention of right, which therefore permitted him to bring an additional claim for interest.
Nevertheless, Messrs. Finister and Frere, through Mr. Finister's claim, are not automatically entitled to the disputed interest by merely making a claim for it and obtaining a jury verdict in their favor. "Absent statutory mandate, the award of prejudgment interest generally is discretionary with the trial court." Whitfield v. Lindemann, 853 F.2d 1298, 1306 (5th Cir. 1988). The civil rights statutes under which Messrs. Finister and Frere brought their claims for deprivation of their constitutional rights to due process do not mandate an award of prejudgment interest. 42 U.S.C. § 1983, 1988. See, e.g., Hale v. Fish, 899 F.2d 390, 404 (5th Cir. 1990) (denial of prejudgment interest to § 1983 plaintiffs who prevailed on claims that their arrest for aggravated kidnapping was in violation of their constitutional rights was not an abuse of district court's authority to fashion relief); Breaux v. City of Garland, No. 94-CV-2291D, 1997 WL 726447 (N.D.Tex. 1997) (district court, in its discretion, declined to award prejudgment interest to plaintiffs on their § 1983 claims). Therefore, this Court may exercise its reasoned discretion in its determination of the amount of prejudgment interest to award.
"Prejudgment interest is not granted `according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness.'" Whitfield, 853 F.2d at 1306 (internal citations omitted). In the instant case, the Court determines that it is fair and equitable for Mr. Frere alone to be liable for interest on the verdict in the underlying case from the time the underlying suit was filed until the time the instant action for indemnification was filed. Mr. Finister dismissed Sheriff Lee as a defendant in the underlying suit. Mr. Frere could have brought a cross-claim against Sheriff Lee when Lee was a defendant in the suit or a third-party claim against Lee after Lee was dismissed. Nevertheless, none of these possibilities occurred. Messrs. Frere and Finister only implicated Sheriff Lee's interests when they asserted claims against him in the instant case. Because Sheriff Lee could have been on notice of his potential liability from the filing of the underlying suit, it is unfair to hold him responsible for interest from the time that suit was filed until the time this suit was filed. Therefore, in the judgment attached, this Court denies prejudgment interest from the time the underlying suit was filed — May 20, 1997 — until the time this suit was filed — February 22, 1999.
There is no dispute over whether Messrs. Frere and Finister are entitled to prejudgment interest from the date this suit was filed — February 22, 1999 — until the date the jury rendered its verdict — December 14, 1999. The Court, in the judgment attached, grants an award of prejudgment interest for that period. That period of time encompasses 296 days. The Court determines that it would be most equitable to apply a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price from the last auction of fifty-two week United States Treasury bills settled immediately prior to the filing of this case on February 22, 1999. That rate of interest was 4.584%. The Court further determines that it would be most equitable to compound such interest yearly. Three-hundred thousand dollars compounded yearly at an interest rate of 4.584% for 296 days is $11,152.31. Therefore, in the judgment in this case, the Court awards $11,152.31 in prejudgment interest in addition to the jury's verdict of $300,000.
II. Intervenor's Right to Attorney's Fees and Costs
Title 42 of the United States Code, Section 1988, provides that a court, "in its discretion, may allow the prevailing party [in a civil rights suit] . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. The cases have uniformly held that an intervenor is entitled to attorney's fees under § 1988 where the intervenor has substantially contributed to the favorable resolution of the case so as to be a "prevailing party." See, e.g., Equal Opportunity Employment Commission v. Clear Lake Dodge, 60 F.3d 1146, 1153 (5th Cir. 1995) (affirming entitlement of employee-intervenor in Title VII employment discrimination case where intervenor was "prevailing party"); ECOS, Inc. v. Brinegar, 671 F. Supp. 381, 387-88 (M.D.N.C. 1987) (intervenors that were party to litigation to stop proposed highway construction were entitled to attorney's fees under 42 U.S.C. § 1988 because they were "prevailing parties" within the meaning of the statute); Gautreaux v. Chicago Housing Authority, 610 F. Supp. 29, 30-31 (N.D.Ill. 1985) (intervenor in civil rights action against municipal housing authority and United States Department of Housing and Urban Development was entitled to attorney's fees under 42 U.S.C. § 1988 because it was a "prevailing party" within the meaning of the statute). But see Seattle School District No. 1 v. State of Washington, 633 F.2d 1338, 1349 (9th Cir. 1980), probable jurisdiction noted by 454 U.S. 890, 102 S.Ct. 384, 70 L.Ed.2d 204 (1981), judgment aff'd by 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982) (affirming District Court's denial of attorney's fees to intervenors in education civil rights case because their minimal involvement was insufficient to deem them "prevailing parties").
The same principle applies to awards of attorney's fees in Voting Rights Act cases. See also Donnell v. United States, 682 F.2d 240, 246 (D.C. Cir. 1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1190, 75 L.Ed.2d 436 (1983) (intervenors in Voting Rights Act case similarly entitled to attorney's fees if "prevailing parties" under 42 U.S.C. § 19731(e), as well as 42 U.S.C. § 1988).
Typically, a party is considered "prevailing" for purposes of an award of attorney's fees where that party has "succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (citation omitted).
In the instant case, Intervenor fully participated in the litigation, from filing pleadings, including dispositive motions, to participating at trial by, inter alia, calling and questioning witnesses and delivering independent opening and closing statements. It is thus beyond dispute in the case at bar that Intervenor s substantial efforts in preparation and at trial of this case qualify him as a "prevailing party." Accordingly, the Court finds that Intervenor is entitled to attorney's fees and costs under 42 U.S.C. § 1988.
III. Conclusion
In resolution of the matters in dispute between the parties, the Court has (1) entered judgment in this case for Plaintiff Antonio Frere and against Defendant Sheriff Harry Lee in the amount of the jury's verdict, $300,000, plus prejudgment interest from the date this suit was filed until the date the jury rendered its verdict, $11,152.31, plus attorney's fees and costs; and (2) granted Intervenor Derrick Finister his attorney's fees and costs in this case.
New Orleans, Louisiana, this 25 day of January 2000.