Opinion
97 Civ. 0264 (LAK)
October 17, 2000
ORDER
Plaintiff moves, pursuant to Rule 54(b), to revise the Court's order of September 5, 2000, which denied plaintiff's motion for a new trial and granted defendants' motion for attorney's fees in an amount to be fixed later, to the extent that the order found that plaintiff asked his psychiatrist to advise the New York Workers' Compensation Board that his mental distress was caused by an on-the-job accident and then offered the same psychiatrist at trial to testify that the mental distress was caused by the later termination of his employment. Defendants move to fix the amount of attorney's fees.
Plaintiff also seeks revision of the Court's comment regarding the psychiatrist's testimony at trial.
The basis for plaintiff's motion is what he describes as "newly discovered evidence" the fact that the Workers' Compensation Board file in fact contains both the short version of the psychiatrist's report, which attributed plaintiff's distress solely to the accident, and a longer version, which attributed it differently. But there is no reason to revise the Court's views for two independently sufficient reasons.
First, the application is insufficient. While the Court assumes arguendo that the strict standards of Rule 60(b) are not fully applicable to an application pursuant to Rule 54(b), the fact remains that a party must be held to some standard of diligence in the presentation of evidence lest litigation routinely take place in a piecemeal fashion, as each side offers evidence it thinks sufficient to its purposes and then seeks additional evidence only after losing. Here, the Workers' Compensation Board file was available to plaintiff at all times. He knew in advance of trial that his submissions to that agency would be at issue in this case. He knew at trial of the precise point at issue here. Even after trial, he knew that defendants were relying on the inconsistency between what he said in court and what took place between him, his psychiatrist and the Board in support of their motion for attorney's fees. Yet he did not even bother referring to the Board file until after he lost both at trial and on the attorney's fee motion. It is simply too late to reopen the issue.
Second, even if the Court were disposed to consider the alleged new evidence, it would find no basis in it to alter its previous conclusion. The fact remains that DX Q is a letter, obviously written by plaintiff and found in his psychiatrist's file on him, in which the author requested the psychiatrist to write to the Board and tell it "that if it wasn't for the accident, I would not have experienced the chemical imbalance and depression." The short version of the psychiatrist's writeup, which made precisely this representation to the Board, appeared in both the psychiatrist's and the Board's files, thus demonstrating that she did just what he asked. That the longer version also appeared in both files, with its more elaborate attribution of causation, does not detract from the Court's conclusion that plaintiff all too obviously was willing to say whatever served his interests, first to the Compensation Board and then to the Court and jury, irrespective of truth and consistency. In any case, the other grounds upon which the Court relied in awarding attorney's fees are unaffected by this dispute and independently support the award.
Plaintiff's motion is denied.
Defendants seek an award of attorney's fees and expenses of $350,000, which is less than the total cost of defending this case. The Court accepts their hourly rates as reasonable and their contemporaneous records as accurate. Plaintiff nevertheless raises a host of objections, principal among them that the fees sought are not specifically related to the specific deficiencies the Court found in plaintiff's case and that plaintiff lacks the ability to pay any substantial award.
It is difficult for the Court to understand how plaintiff can assert that the fees sought do not relate to the deficiencies found in plaintiff's case. The Court, after all, has determined that "there was no basis whatever for pursuing at trial any claim against Columbia Pictures, Inc." and that "[t]he claim against Sony was frivolous and . . . pursued by Parker in bad faith" for a host of reasons. The entire cost of defense thus was attributable to the deficiencies in plaintiff's case. Moreover, it is far from self evident that the fees that may be awarded pursuant to 42 U.S.C. § 12205, even in light of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), are limited only to the incremental costs of responding to those portions of the plaintiff's case that are "frivolous, unreasonable, or groundless . . ." Nevertheless, there is no need to decide any of those questions.
The plaintiff's submission demonstrates his inability to pay any substantial award, at least without the gravest hardship. He owns three older and well-used vehicles, a house with modest equity, and few other assets while owing substantial debts. In view of the Court of Appeals' admonition that fee awards, particularly to prevailing defendants, invoke the equitable discretion of the court and that any fee award "should not hesitate to take the relative wealth of the parties into account," Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992) (quoting Faraci v. Hickey-Freeman Co., 607 F.2d 1025, 1028 (2d Cir. 1979)), the Court cannot blind itself to this fact. Accord, Charves v. Western Union Tel. Co., 711 F.2d 462, 465 (1st Cir. 1983). Nor can the Court properly ignore the fact that the only real significance of a fee award far in excess of plaintiff's means would be the ability it would give the defendants to seek to coerce plaintiff into foregoing an appeal, an end quite different from Section 12205's objective of compensating the defendants for costs that were incurred needlessly as a result of plaintiff's actions. In all the circumstances, therefore, the Court grants defendants' motion to fix the award of attorney's fees and costs to the extent that it awards defendants attorney's fees and costs in the aggregate amount of $12,500. The Court is confident that this figure is far below the lodestar, even assuming that all of plaintiff's objections to defendants' calculation were meritorious. It is high enough, given plaintiff's financial circumstances, to punish him for and deter others from frivolous litigation yet it is small enough to avoid subjecting him to utter financial ruin.
This order having disposed of all pending matters, the Clerk shall enter final judgment and close the case.
SO ORDERED.