DECISION AND ORDER
WILLIAM M. SKRETNY, United States District Judge.
After a four-day trial, a federal jury determined that Defendants Robert Anderson, Jr.,
Presently before this Court are several post-trial motions. First, Defendants move for Judgment as a Matter of Law and for a New Trial under Rules 50 and 59 of the Federal Rules of Civil Procedure. (Docket No. 170.) Second, Anello moves for attorneys' fees and costs under Rule 54 and 42 U.S.C. §§ 1983, 1988. (Docket No. 159.) Finally, Anello submits a Bill of Costs. (Docket No. 168.)
For the reasons set forth below, Defendants' motion is granted in part and denied in part; Anello's motion for attorneys' fees is granted, but with a reduced fee award; and Anello's Bill of Costs is granted, but with a reduced costs award.
On October 22, 2007, Anello attended the Niagara Falls City Council meeting and registered to speak during the "good of the community" segment. (Trial Transcript Volume 1 ("Tr. Vol. 1"), Docket No. 162, at 96, 103, 109; Trial Transcript Volume 2 ("Tr. Vol. 2"), Docket No. 163, at 307.) During that portion of the meeting, each speaker was allotted five minutes to speak on any topic pertaining to the good of the community that was not listed as a specific agenda item. (Tr. Vol. 1 at 102; Tr. Vol. 2 at 340, 341.)
Anderson was the chairman of the city council and presided over the October 22, 2007 meeting. (Tr. Vol. 2 at 338.) Fruscione and Robins were both sitting councilmen and present at the October 22, 2007 meeting. (Tr. Vol. 1 at 208, 223; Tr. Vol. 2 at 293-94, 329-30.)
Anello is an Italian-American, born in Sicily. (Tr. Vol. 2 at 375.) He attended the October 22, 2007 city council meeting for the specific purpose of speaking out against Anderson, whom Anello had heard from three different sources had been making disparaging comments about Italians. (Tr. Vol. 2 at 380-81, 383, 410-11, 416.) When his turn came, Anello went to the podium and read from prepared remarks. (Tr. Vol. 2 at 384, 385.) Anello's remarks and what ensued was recorded on video, which was shown to the jury multiple times during the trial.
Anello began his remarks by acknowledging Anderson, the council members, and his fellow citizens. (Tr. Vol. 2 at 390.) He then read the title of his remarks: "Guineas and Greaseballs: Where There's Smoke There's Fire." (Tr. Vol. 1 at 109, 110, 127; Tr. Vol. 2 at 390.) In a calm, direct, and non-threatening manner, Anello read from his prepared script:
(Video of October 22, 2007 Niagara Falls City Council Meeting ("Video"), Declaration of Joseph Brown, Exhibit F, Docket No. 32-2, at :00 to 1:38
At that point, before he was finished, Anello heard noise coming from the council dais. (Tr. Vol. 2 at 390-91.) Because he knew that his time had not expired, Anello interrupted his remarks to declare that he "had the floor." (Tr. Vol. 2 at 390-91.) Anderson then said, "No, you don't have the floor." (Tr. Vol. 1 at 131; Tr. Vol. 2 at 308, 367, 421.) But Anello refused to yield, which prompted Anderson to rise and signal Officer Franco Tallarico, a Niagara Falls police officer, to approach Anello. (Tr. Vol. 1 at 128-30, 196-97, 200; Tr. Vol. 2 at 350-51, 423.) Anello kept speaking, which then caused Robins to reach in front of Anderson and bang the chairman's gavel three times. (Tr. Vol. 2 at 308, 339, 352.) Undeterred, Anello continued to speak. (Tr. Vol. 2 at 314, 331, 421-22.)
Meanwhile, Fruscione testified that he was taken aback when he heard Anello speak the initial words "guineas" and "greaseballs." (Tr. Vol. 1 at 218-19.) He stopped listening to Anello at that point and thought that Anello was referring to himself and another councilman, both Italian-Americans, as a "guinea" and a "greaseball." (Tr. Vol. 1 at 252; Tr. Vol. 2 at 282-84.) Fearing that more disparaging comments were to come, Fruscione turned off the switch to the microphone recording Anello's remarks for later broadcast over a local cable television education channel, which was played in city schools. (Tr. Vol. 1 at 227; Tr. Vol. 2 at 278.) Fruscione did not tell anyone that he turned off the switch. (Tr. Vol. 1 at 227.) Turning off the recording microphone did not affect the amplification in the chamber, nor did it stop Anello from speaking. (Tr. Vol. 1 at 226-27.)
Once Officer Tallarico reached Anello, he repeatedly told him that he had to stop speaking and step away from the podium. (Tr. Vol. 1 at 197.) Anello refused, insisting that he "had the floor." (Tr. Vol. 1 at 197.) Officer Tallarico then forcibly removed Anello from the council chamber in handcuffs and thereafter arrested him for resisting arrest and disorderly conduct. (Tr. Vol. 2 at 396-99; 436-38.) Anello never finished his remarks. (Tr. Vol. 2 at 394.)
Anello testified that he felt "embarrassed," "abused," "bad," "terrible," "degraded," "humiliated," and "like scum" after this incident. (Tr. Vol. 2 at 398, 399, 400.) He described the emotional toll this incident took on him as follows.
(Tr. Vol. 2 at 402-03.)
As far as his reputation in the community, Anello testified that
(Tr. Vol. 2 at 403-04.)
After this incident, Anello stopped attending council meetings, because he thought that Defendants would prevent him from participating. (Tr. Vol. 2 at 400, 405-406.) He had previously attended six to eight council meetings a year for the past 20 years or so. (Tr. Vol. 2 at 417.) Anello also stopped volunteering on community boards and he discontinued his partnership in Leadership Niagara, a community service organization. (Tr. Vol. 2 at 401-02.)
Anello's son (also named Matteo Anello) testified consistent with his father concerning the effect this incident had on him, including that Anello became more introverted and his interest in public affairs "took a negative hit." (Tr. Vol. 2 at 445, 447, 448, 450, 451.)
A. Defendants' Motion for Judgment as a Matter of Law and for a New Trial
Defendants seek judgment as a matter of law or a new trial. They argue that (1) neither Fruscione nor Robins violated Anello's First Amendment rights, (2) each defendant is entitled to qualified immunity, (3) the compensatory damages award is excessive, and (4) the punitive damages award is unwarranted and excessive. Each argument is addressed in turn.
1. Legal Standards
Rule 50(a)(1) of the Federal Rules of Civil Procedure permits a court to render judgment as a matter of law and vacate a jury's verdict if it finds that "a reasonable jury would not have a legally sufficient evidentiary basis" to reach its conclusion. The standard is well settled:
The moving party must, however, fulfill the procedural prerequisite of moving for judgment as a matter of law before the case is submitted to the jury.
The standard under Rule 59, which permits a court to "grant a new trial on all or some of the issues,"
2. Fruscione and Robins
Defendants Fruscione and Robins argue that they are entitled to judgment as a matter of law because the facts adduced at trial demonstrate that they did not violate Anello's First Amendment Rights.
"Under the prevailing constitutional framework, speech restrictions imposed by the government on property that it owns are analyzed under a `forum based approach.'"
Here, because the City of Niagara Falls invited public discourse on two limited subjects — agenda items and the good of the community — the city council meeting was a limited public forum for purposes of the First Amendment.
"`[I]n a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.'"
Fruscione argues that he did not violate Anello's First Amendment right to free speech. The only action Fruscione took in relation to Anello's remarks was to turn off the microphone that was recording the proceedings for later broadcast over a local cable television education channel. (Tr. Vol. 1 at 227; Tr. Vol. 2 at 278.) It is undisputed that turning off this microphone did not affect the amplification of Anello's remarks in the chamber nor did it stop Anello from speaking. (Tr. Vol. 1 at 226.) In fact, no one knew at the time that Fruscione had turned off the recording microphone. (Tr. Vol. 1 at 227.) At no time did Fruscione prevent Anello from speaking or continuing to speak. (Tr. Vol. 1 at 222, 245-46, 249-50.)
When this Court denied Fruscione's motion for summary judgment, it did so based on its understanding that Fruscione admitted that he turned off Anello's microphone.
Thus, even viewing the trial evidence in the light most favorable to Anello, there is insufficient evidence to permit a reasonable jury to find in his favor against Fruscione. Fruscione's act of turning off the recording microphone, no matter what the motivation, did not prevent Anello from speaking, did not restrict Anello's speech in any way, and did not otherwise impact Anello's ability to relay his remarks during the council meeting. No evidence was presented that Anello even knew his remarks were being recorded or that he spoke that evening with the specific intent of having his remarks recorded and broadcast over the cable television station. In short, Anello presented no evidence that Fruscione acted to restrict or curtail his speech. Fruscione is therefore entitled to judgment as a matter of law on Anello's First Amendment claim and he will be dismissed from this suit.
Like Fruscione, Robins argues that he is entitled to judgment as a matter of law, because his conduct did not violate Anello's First Amendment right to free speech. Robins is the councilman who banged the chairman's gavel three times in an effort to stop Anello from speaking. (Tr. Vol. 2 at 308, 339.) Robins testified that as chairman, it was Anderson's job, not his, to use the gavel during the council meetings. (Tr. Vol. 2 at 294.) Nevertheless, Robins took it upon himself to reach for and use the gavel in an effort to silence Anello, because Robins did not like the words Anello used and he felt that Anello was attacking council members. (Tr. Vol. 2 at 295, 310-11.) Robins testified that he used the gavel to halt what he believed to be Anello's personal attack on Anderson and to restore order in the chamber after Anello refused to abide by Anderson's directive to stop speaking. (Tr. Vol. 2 at 310-11,314-15, 320, 322, 331.)
Viewed in the light most favorable to Anello, sufficient evidence was presented at trial to permit a reasonable jury to find that Robins violated Anello's right to free speech. Unlike Fruscione, the jury could reasonably have found that Robins acted directly to restrict or stop Anello's speech by banging the gavel. It is of no moment that Robins lacked procedural authority under the council's rules to use the gavel; the jury could nonetheless have found him to be a state actor impinging Anello's First Amendment rights.
Based on the trial evidence, the jury could reasonably have found that Robins intervened contemporaneously with Anderson to silence Anello due to the "specific motivating ideology or the opinion or perspective of the speaker."
But contrary to Robins's characterization of Anello's remarks as "using racial slurs," the jury heard evidence that Anello was not using the terms as racial slurs, but rather, was simply identifying the derogatory terms that Anello understood Anderson to be using in the community. (Tr. Vol. 1 at 112; Tr. Vol. 2 at 381, 383, 410-11.) Even Anderson admitted as much, testifying that he understood Anello's remarks to be accusing him of saying negative things about the Italian community. (Tr. Vol. 2 at 349.) And although it is true that Anello did not stop speaking in response to Robins's use of the gavel, the jury could reasonably have concluded that Robins nevertheless infringed on Anello's right to free speech by restricting and interrupting his remarks and joining in Anderson's directives and eventually successful efforts to silence him by banging the gavel. Thus, viewed in the light most favorable to Anello, sufficient evidence was presented at trial for the jury to find that Robins violated his free speech rights. Robins is therefore not entitled to judgment as a matter of law.
3. Qualified Immunity
Fruscione, Robins, and Anderson argue that, even assuming that Anello suffered a First Amendment deprivation, they are entitled to qualified immunity. At trial, the jury rejected Defendants' qualified immunity defenses. (Docket No. 157.)
Officials are protected from § 1983 liability on the basis of qualified immunity if (1) their actions did not violate clearly established law, or (2) it was objectively reasonable for them to believe that their actions did not violate the law.
Robins argues that he is entitled to qualified immunity because he banged the gavel after Anderson declared that Anello no longer had the floor and that he did so with no intent to stop Anello from speaking. He further asserts that he is entitled to qualified immunity because it was not clearly established that "merely banging a gavel," with no other action, violates the First Amendment.
Again, however, Robins minimizes his role and assumes the evidence in the light most favorable to him, not in the light most favorable to Anello, as is required on this motion. As explained above, the jury could reasonably have concluded that Robins and Anderson acted contemporaneously and together in attempting to silence Anello. Further, although Robins testified that he did not intend to silence Anello (Tr. Vol. 2 at 326), he also testified that he banged the gavel to stop Anello from personally attacking council members and to restore order, both of which could occur only by silencing Anello, (Tr. Vol. 2 at 310-11, 314-15, 320, 331). The jury also heard Officer Tallarico testify that he understood Robins's banging of the gavel to mean that Anello's time to speak was concluded and he had to sit down and stop speaking. (Tr. Vol. 1 at 136-38.) The jury could reasonably have viewed this evidence, in light of the clearly established First Amendment standard, and concluded that it was not objectively reasonable for Robins to believe that his actions did not violate the law. Consequently, Robins is not entitled to qualified immunity.
Anderson asserts that he too is entitled to qualified immunity. His argument hinges almost entirely on his insistence that his decision to silence Anello was reasonable, because Anello used "vile and horrible" and "inflammatory" words, and Anderson had the discretion to ensure that the council meeting was conducted in an orderly and dignified fashion.
What Anderson ignores, however, is the evidence presented to the jury that Anello did not use the terms "guineas" and "greaseballs" in an offensive or inflammatory way, but rather, attributed the use of those words to Anderson, who Anello claimed had used them in derogatory reference to Italian-Americans. Anello himself is an Italian-American. (Tr. Vol. 2 at 375.) He registered to speak at the council meeting because he thought it important for the good of the community that it be known that Anderson was using the slurs "guinea" and "greaseball" in reference to Italian-Americans. (Tr. Vol. 2 at 381, 383, 410-11, 416.) And contrary to Anderson's characterization that Anello was disruptive, witnesses testified that Anello spoke in a calm, direct, non-threatening manner. (Tr. Vol. 1 at 152, 215; Tr. Vol. 2 at 294, 342-43.)
From the context of Anello's remarks and considering his own Italian-American heritage, the jury could reasonably have found that Anello opposed the use of these derogatory terms, not that he was using them inappropriately or offensively. (Tr. Vol. 1 at 112.) For example, Officer Tallarico testified that he understood Anello's remarks to concern Anderson's ignorance toward Italian-Americans. (Tr. Vol. 1 at 142-43, 145.) And Anderson himself testified that he understood Anello's remarks to be discrediting him and accusing him of using these terms to refer to the Italian-American
Thus, the jury heard sufficient evidence to conclude that it was the viewpoint, content, and perspective of Anello's remarks that prompted Anderson to silence him, not simply Anderson's benign desire to maintain decorum as chairman of the council. And because it is clearly established that the "government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction," Anderson is not entitled to qualified immunity.
4. Compensatory Damages
Defendants argue that the compensatory damages award, which is now reduced to $20,000 with the dismissal of Fruscione, is excessive and requires remittitur to the nominal amount of $1.
"A jury has broad discretion in measuring damages,"
Remittitur, "a limited exception to the sanctity of jury fact-finding",
Defendants first argue that a $20,000 award is excessive because Anello cannot recover "damages based on the abstract `value' or `importance' of constitutional rights," which is correct.
Defendants next argue that the jury's compensatory damages award cannot stand, because this Court erred in permitting Anello to introduce evidence concerning his arrest, which Defendants peg as the sole cause of Anello's injuries. In particular, Defendants contend that this Court erred in permitting Anello to introduce the entire video of the incident in question and by not giving the jury a curative instruction. But as this Court explained at trial, Defendant's view of causation in this case is too cabined. Having heard the trial evidence, the jury could reasonably have found that Anderson's and Robins's conduct caused Officer Tallarico to stop Anello from speaking and forcibly remove him from the chamber in violation of Anello's First Amendment rights. Stated differently, Anderson and Robins wrongfully caused Officer Tallarico to engage with Anello. In this continuum, Anello's theory of compensatory damages as proximately caused by Defendants was sufficient for submission to the jury. This argument therefore does not warrant a new trial or remittitur of the compensatory damages award.
Third, Defendants argue that the compensatory damages award fails to reflect separate consideration of each individual defendant by the jury. This argument is wholly speculative. This Court specifically instructed the jury to consider each defendant individually, and a jury is presumed to follow a court's instruction.
Finally, this Court cannot conclude as a matter of law that the jury's compensatory damages award of $10,000 per each defendant is "so high as to shock the judicial conscience and constitute a denial of justice."
Emotional distress awards within the Second Circuit can "generally be grouped into three categories of claims: `garden-variety,' `significant' and `egregious.'"
(Tr. Vol. 2 at 402-03.)
As far as his reputation in the community, Anello testified that
(Tr. Vol. 2 at 403-04.)
After this incident, Anello stopped attending council meetings, because he thought that the defendants would prevent him from participating. (Tr. Vol. 2 at 400, 405-406.) He had previously attended six to eight council meetings a year for the past 20 years or so. (Tr. Vol. 2 at 417.) Anello also stopped volunteering on community boards and he discontinued his partnership in Leadership Niagara, a community service organization. (Tr. Vol. 2 at 401-02.) Anello's son further testified that this incident caused Anello to become more introverted and his interest in public affairs "took a negative hit." (Tr. Vol. 2 at 445, 447, 448, 450, 451.)
Based on this evidence, it cannot be concluded that a $20,000 compensatory damage award, which falls below the typical range of recovery for "garden variety" emotional distress damages, is "so high as to shock the judicial conscience and constitute a denial of justice."
5. Punitive Damages
Last, Defendants seek remittitur or a new trial on punitive damages. Defendants claim that the now $50,000 punitive award is excessive and should be set aside. This Court agrees.
"Awards of punitive damages are by nature speculative, arbitrary approximations."
A court's authority to limit an award derives in part from the Due Process Clause of the Fourteenth Amendment.
The three guideposts articulated by the Supreme Court in
The degree of reprehensibility of the defendant's misconduct is "[p]erhaps the most important indicum of the reasonableness of a punitive damages award."
The Supreme Court has outlined five factors relevant to determining the reprehensibility of a defendant's conduct.
The First Amendment violation here, while serious, cannot be cataloged as reprehensible. Although Defendants demonstrated indifference to or reckless disregard of well-settled principles of free speech, they did not evince an indifference to anyone's health or safety. From the evidence, the jury could reasonably have concluded that Anderson and Robins silenced Anello due to the content of his speech, the very hallmark of a First Amendment violation. This was an isolated incident and there was no evidence of malice toward Anello beyond Anderson and Robins not agreeing with his viewpoint. Thus, while the jury could reasonably conclude that Anderson and Robins blatantly violated Anello's First Amendment rights, it cannot be said that their conduct was particularly reprehensible, deceitful, or the like.
The next factor is proportionality. "Courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered."
The jury awarded Anello a total of $50,000 in punitive damages and $20,000 in compensatory damages, resulting in a ratio of 2.5 to 1. Under the circumstances of this case, this is excessive. As such, a reduction in the punitive damages award is necessary to achieve greater proportion to the harm that Defendants caused.
The third, and arguably least important, guidepost assesses the "disparity between the punitive damages award and the `civil penalties authorized or imposed in comparable cases.'"
Considering the totality of the circumstances, including the limited degree of reprehensibility, the singular nature of the violation, the compensatory award, and the ultimate purpose of punitive damages — to punish and deter future misconduct — this Court finds that remittitur is warranted. Specifically, this Court finds that a $10,000 punitive damages award against each defendant (for a total of $20,000 in punitive damages), resulting in a 1 to 1 ratio, sufficiently preserves and respects the jury's determination that punitive damages are needed to punish and deter Defendants from engaging in future First Amendment violations while not being excessive. If Anello does not accept this remittitur, this Court will vacate the punitive damages award and conduct a new trial limited to the question of punitive damages.
B. Anello's Motion for Attorneys' Fees
Anello seeks attorneys' fees in the total amount of $278,434. Defendants vigorously oppose this request.
To ensure that federal rights are adequately enforced, a prevailing party in a civil rights action may recover, subject to the court's discretion, "a reasonable attorney's fee."
In this circuit, if a court finds a fee award to be appropriate, it will set a "reasonable hourly rate," bearing in mind all the case-specific variables.
Here, despite Defendants' arguments to the contrary, Anello is clearly a prevailing party. A party is a prevailing party if the party "succeeds on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."
But for a variety of reasons, Anello's fee request is unreasonable.
The first issue is the reasonableness of the hourly rates claimed. Anello claims an hourly rate of $250 per hour for trial counsel Jeanne M. Vinal, Esq.; $225 per hour for Louis H. Siegel, Esq., who assisted Jeanne M. Vinal; and $200 for Matthew P. Pynn, Esq., who was Plaintiff's first attorney. (Declaration of Jeanne M. Vinal, Esq. ("Vinal Decl."), Docket No. 159-1, ¶¶ 5, 7; Declaration of Louis H. Siegel, Esq. (Siegel Decl."), Docket No. 166, ¶ 4.) There is no material dispute concerning the reasonableness of these rates.
But Anello has not submitted hourly rates for the other legal professionals that he claims worked on his case, including Gregg S. Maxwell, Esq., Greg M. Vinal, Esq., Brian T. Cook, Esq., and two paralegals.
The second issue is the reasonableness of the time expended. The party seeking attorney's fees must support the number of hours expended with "contemporaneous time records ... [that] specify, for each attorney, the date, the hours expended, and the nature of the work done."
But "the district court is not obligated to undertake a line-by-line review of [an] extensive fee application."
Defendants have filed a lengthy submission highlighting the various deficiencies in Anello's fee request. (
Several examples will demonstrate the across-the-board deficiencies in Anello's fee submission. Vinal & Vinal billed 47.5 hours preparing for and attending 19 court conferences, two of which did not occur. (Brown Decl., ¶¶ 9-12.) For each conference, no matter what its purpose or duration, precisely 2.5 hours were billed. (
Vinal & Vinal also billed an inordinate amount of time for discovery-related and routine tasks. (Brown Decl., ¶¶ 23-43, 44-54.) For example, it billed 17 hours to
Vinal & Vinal also seeks attorneys' fees for tasks related to its own inability to comply with the court's orders. This includes 9.8 hours related to Defendants' Motion to Compel (Brown Decl., ¶¶ 19-22) and 85.8 hours related to Anello's compliance with this Court's pretrial orders (
Anello's response to this litany of documented discrepancies is limited to defending the need to research First Amendment issues and blaming Defendants for engaging in litigation tactics that, in Anello's view, justify the billings. (Declaration of Jeanne M. Vinal ("Vinal Decl."), Docket No. 181.) None of the discrepancies identified above are specifically addressed, though it is admitted that "[w]e do not enter the time from time sheets into the computer contemporaneously, but we do use handwritten time sheets ... we gave up our computer program for generating bills which we have previously used and therefore used an ordinary spreadsheet." (
Remarkably, Anello also represents that "Defendant [sic] offers no substantive arguments on any particular portion of Plaintiff's request for fees" and "Defendant's [sic] ... offer absolutely no examples or make any claims with regard to specific inclusions in our submission." (Plaintiff's Reply Memorandum of Law, Docket No. 182.) This is astounding considering the 32-page Brown Declaration, which painstakingly details the failings of Anello's fee submission, as excerpted above.
Vinal & Vinal claim 844.9 hours of work by Jeanne Vinal; 91 hours by Greg Vinal; 96.6 hours by Maxwell; 5 hours by Cook; and 45.1 hours by paralegals. This Court will reduce Jeanne Vinal's billings by 85.8 hours, to account for Vinal & Vinal's billings related to its own inability to comply with the court's orders. It will also reduce Greg Vinal's billings by 19 hours, to account for duplication when both he and Louis H. Siegel, Esq. unnecessarily attended trial together for two days to "second chair" Jeanne M. Vinal. This results in 759.1 hours for Jeanne M. Vinal and 72 hours for Greg M. Vinal.
Overall, this leaves Vinal & Vinal with 932.7 attorney hours (at their respective rates) and 45.1 paralegal hours, resulting in $227,012.50. This amount must be further reduced to account for the unrebutted excessive, redundant, vague, and unnecessary time entries, and to account for attorney time unnecessarily spent on routine clerical and non-billable tasks. In this Court's view, an additional 50% across-the-board reduction in hours is necessary to bring Vinal & Vinal's fee request into the realm of reasonableness. Vinal & Vinal will thus be awarded a fee of $113,506.25. This fee is in addition to the $9,120 fee for Matthew P. Pynn (Docket No. 159-2) and the $5,625 fee for Louis H. Siegel (Siegel Decl., ¶¶ 4, 5), both of which this Court finds reasonable and sufficiently supported. No interest is awarded on these fees.
In all, Defendants are responsible for Anello's attorneys' fees in the amount of $128,251.25 for this litigation that is now approaching its seventh anniversary.
C. Anello's Bill of Costs
Anello has submitted a Bill of Costs for $3,342.79. (Docket No. 168.) Defendants
The party seeking to recover costs bears the burden of adequately documenting and itemizing the costs requested.
Anello seeks to recover $3,342.79 in costs, including $350 for the filing fee; $140
Anello may recover the $350 filing fee. He may also recover for service of a subpoena, but only in the amount of $55, which is what the U.S. Marshal would have charged for service, not $140.
The remainder of Anello's Bill of Costs must, save one minor charge for copying costs, be disallowed.
First, Anello seeks $1,393.20 for transcripts. This district's Guidelines for Bill of Costs ("the Guidelines"), which governs Bills of Cost under Rule 54 of the Local Rules of Civil Procedure for the Western District of New York, requires the following documentation (or explanation) to recover transcript costs: the transcript prepared (or copied); the number of pages in the transcript; the per page rate; and the total cost of the transcript.
Here, Anello includes invoices totalling only $495.75. Thus, $897.45 will be disallowed for complete lack of documentation. As to the remaining $495.75, this Court finds that the documentation provided, which consists of two invoices that simply list the name of the deponent and the total cost of the transcript, is insufficient. No information is provided concerning the number of pages in the transcript or the per-page rate, as required by the Guidelines. Consequently, no costs for transcripts will be permitted.
Second, Anello seeks $114.30 for printing costs. The only documentation provided is an invoice for $129.36 relating to the printing of Anello's brief to the Second Circuit. These costs, however, are only recoverable in the Second Circuit.
Next, Anello seeks $25 for docket fees under 28 U.S.C. § 1923, but he does not identify the item docketed, as required by the Guidelines. This cost will therefore be disallowed.
Fifth, Anello seeks $690 for court-appointed experts. The invoice in support of this claim lists $360 in mediation fees, which are not taxable as costs, as stated in the Guidelines, § 3. Consequently, this cost will not be permitted.
Finally, Anello seeks $450.80 in "other costs," which, from the submitted documentation, include an unspecified attorney-admission fee of $216 and travel expenses of $234.80, neither of which are taxable as costs. Both will therefore be disallowed for lack of sufficient documentation and as barred under the Guidelines, § 3.
All told, Anello will be awarded costs in the amount of $469.69.
As determined by the jury, Defendants Anderson and Robins violated Anello's First Amendment right to free speech. For the reasons stated above, that determination is supported by the evidence adduced at trial and Defendants Anderson and Robins are not entitled to judgment as a matter of law or a new trial. Defendant Fruscione, however, did not violate Anello's free speech rights. He is therefore entitled to judgment as a matter of law and dismissal from this suit.
Anello also presented sufficient evidence supporting the jury's compensatory damages award of $10,000 per defendant. The jury's punitive damages award, however, requires remittitur to $10,000 per defendant, for the reasons set forth above.
Finally, Anello is entitled to recover his reasonable attorneys' fees and costs, which for the reasons stated above, this Court finds to be a total of $128,251.25 and $469.69, respectively.
IT HEREBY IS ORDERED, that Defendants' Motion for Judgment as a Matter of Law and for a New Trial (Docket No. 170) is GRANTED in part and DENIED in part, consistent with this Decision and Order. Defendant Fruscione is granted judgment as a matter of law and is DISMISSED from this case. A new trial on punitive damages will be scheduled by separate order if Plaintiff does not accept this Court's remittitur of punitive damages to a total award of $20,000. Plaintiff shall file a notice within 10 days of the entry date of this Decision and Order advising whether he will accept the remittitur.
FURTHER, Plaintiff's Motion for Attorney Fees and Costs (Docket No. 159) is GRANTED. Defendants must pay Plaintiff a total of $128,251.25 in attorneys' fees, consistent with this Decision and Order.
FURTHER, that Plaintiff's Bill of Costs (Docket No. 168) is GRANTED. Defendants must pay Plaintiff a total of $469.69 in costs, consistent with this Decision and Order.
FURTHER, that the stay of execution and enforcement of judgment granted in this Court's  Order is VACATED.