Opinion
05 Civ. 7713 (GEL).
March 1, 2007
OPINION AND ORDER
In this diversity action, the jury returned a verdict on January 10, 2007, awarding plaintiff Gala Jewelry, Inc., $277,960.50 on its claims that defendant Albert Harring, its salesman, lost a quantity of the company's jewelry by negligently and in breach of contract leaving the jewelry in his car, vulnerable to thieves, and awarding defendant Harring $2,313.66 on his counterclaim for unpaid commissions. Following the verdict, the parties engaged in negotiations over the form of judgment, and on February 14, 2007, plaintiff submitted a proposed judgment, along with a list of objections to the proposal that had been made by defendant. Although plaintiff does not explicitly state that the characterization of defendant's arguments in plaintiff's letter was authored or approved by defendant, the points are made clearly, and defendant has submitted no response to or amplification of the plaintiff's characterization. Defendant's objections to the form of judgment are overruled for the following reasons, and judgment will be entered in the form requested by plaintiff.
First, defendant objects to a grant of costs to plaintiff on the ground that plaintiff did not first timely submit the basis for the award of costs to the Clerk of this Court as required by Fed.R.Civ.P. 54(d) and Local Rule 54.1. But the procedure established by these rules is permissive, and the failure to follow it does not deprive the Court of power to tax costs.Deering, Milliken Co., Inc. v. Temp-Resisto Corp., 169 F. Supp. 453, 456 (S.D.N.Y. 1959).
Second, defendant objects to paying costs for a translator who attended to interpret portions of the testimony of a witness, Joe Chan, on the ground that the translator was "used very infrequently by Mr. Chan." It is true that Mr. Chan testified primarily in English. However, it was evident and not contested that English is not Mr. Chan's first language and that he occasionally had difficulty understanding questions or expressing himself in English, and the translator was called upon at times to interpret questions and answers. The translator was a necessary and valuable asset to the presentation of the evidence. There is no authority for rejecting the cost of an interpreter because the interpreter was needed for some but not all of a witness's testimony.
Third, defendant argues that an award of prejudgment interest will unjustly enrich plaintiff, because plaintiff has not yet paid its supplier for the missing jewelry. But this essentially recapitulates an argument, about whether plaintiff actually suffered damages, that was made to the jury and rejected in the jury's verdict. The jury quite reasonably found that plaintiff suffered actual loss in the amount specified in the verdict, and defendant's disagreement with that verdict is not relevant to whether interest should be awarded.
Fourth, defendant argues that an award of prejudgment interest is discretionary, citing Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir. 1998), and that the Court should decline to enter such an award because the jury may already have included interest in its verdict, citing Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 342 (2d Cir. 1989). This argument is doubly flawed. First, in this diversity case, the award of prejudgment interest is governed by New York law, and as the Second Circuit has recognized, New York law provides that in a breach of contract case, "prejudgment interest is available as of right." Id. Under New York law, "Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property." N.Y. C.P.L.R. § 5001(a) (emphasis added). Second, even assuming the Court had discretion on this issue, there would be no reason to decline to award such interest here. Unlike inTrademark, where a claim for interest was argued to the jury, 995 F.2d at 342, or Men's World Outlet, Inc. v. Estate of Steinberg, in which the judge's instructions to the jury permitted interest to be included in the verdict, 476 N.Y.S.2d 171, 172 (2d Dep't 1984), the verdict here is consistent with the evidence relating to the value of the missing jewelry, and neither plaintiff's counsel nor the Court suggested to the jury that interest should or could be an aspect of damages. Even where the award of damages is discretionary, the Second Circuit has pointed out that prejudgment interest is normally "an element of complete compensation" that should be awarded. Gierlinger, 160 F.3d at 873-74. That is so here, and there is no reason to deny an award of interest.
Fifth, defendant argues that plaintiff should not receive an award of costs because the defendant's verdict on the counterclaim renders plaintiff not the prevailing party, or in the alternative that defendant is entitled to his costs because of his successful counterclaim. The argument is frivolous. Defendant's "success" in this lawsuit consisted of receiving a verdict for unpaid commissions that were unpaid only because plaintiff withheld them against the repayment of its claim for damages, and which plaintiff freely conceded from the outset of the trial. This does not render defendant a prevailing party. See Imgarten v. Bellboy Corp., 383 F. Supp. 2d 825 (D. Md. 2005). In any event, defendant has submitted no documentation of any costs of his own. Plaintiff is the prevailing party on its claims, and is entitled to the award of its costs.
Finally, although not apparently raised by defendant, there is a subtle issue relating to the proper calculation of interest. By agreement of the parties, the defendant's counterclaim judgment is treated as a credit against plaintiff's much larger judgment. Plaintiff then seeks an award of interest on the net amount of the judgment from the date of its loss. It is arguable that the more correct calculation is more complex, and that interest should be awarded to plaintiff on the full amount of its verdict from the time of its loss, while defendant is entitled to interest on his verdict from the time of his loss. There is no reason why the amounts should cancel each other out, since the date of breach is different for the plaintiff's and the defendant's respective claims; and the more elaborate calculation could benefit either defendant or plaintiff depending on the timing of their respective losses.
It is also arguable, however, that by stipulating to allow a single judgment for the net amount of the verdict, the parties have implicitly agreed to the simpler interest calculation proposed by plaintiff. Even if they have not, neither party has raised this issue, or presented an analysis of the amount of interest that would be separately calculated on defendant's verdict, and so whichever party would be benefitted by a more complex calculation has waived the argument. Finally, it should be noted that given the relatively minimal amount of the counterclaim verdict, and the relatively short time period within which all of these events transpired, any variation in the ultimate award would be minimal.
Accordingly, defendant's objections will be overruled, and judgment entered in the form requested by plaintiff.
SO ORDERED.