Tenth Circuit Reduces Attorney Fees under Federal Rule of Civil Procedure 68 in Police Excessive Force Settlement
Norman T. Sussman and his wife Gabriele had been long-time vocal critics of officials of the Village of Roy, New Mexico, Harding County, New Mexico, the Harding County Sheriff’s Office and others.
During a February 18, 1993 arrest, Sussman "suffered injuries as a result of being beaten, stomped, fired upon with a stun gun, and knocked to the ground face first. He lost consciousness, suffered an asthmatic attack, and had to be treated for a concussion, the asthma attack, bruises and contusions, and psychiatric trauma."
Sussman was charged with assaulting a police officer but the charges were dismissed for lack of probable cause. Sussman and his wife then brought federal suit on November 10, 1993, alleging excessive force, retaliation, selective and malicious prosecution and various state law claims.
Pursuant to Federal Rule of Civil Procedure (FRCP) 68, on March 14, 1994, Defendants presented Plaintiffs an offer of judgment of "$100,000, and attorneys' fees and costs in an amount to be determined by the court." Plaintiffs accepted the offer on April 11, 1994, on the condition that they would receive $3,500 in attorneys' fees for the period of March 14 to April 11, 1994.
On May 24, 1994, the Judgment was entered, providing that Norman Sussman would recover $75,000 from Defendants and Gabriele would receive $25,000, and plaintiffs would recover their costs, including reasonable attorneys' fees.
On October 5, 1995, the district court awarded Plaintiffs $86,487.42 in attorneys' fees, up to September 13, 1994, rather than applying the agreed upon March 14, 1994 cutoff date.
The Tenth Circuit vacated, holding that the lower court erred in failing to apply the FRCP 68 cutoff. The court instructed the lower court to "reduce the judgment by making a redetermination of fees and costs incurred by plaintiffs up to March 14, 1994. To this sum, the $3,500 amount for attorneys' fees for the period of March 14 to April 11, 1994… shall be added."
The court rejected all of Defendants' remaining challenges to the fee award, finding that the trial court did not abuse its discretion. See: Sussman v. Patterson, 108 F.3d 1206 (10th Cir. 1997).
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Related legal case
Sussman v. Patterson
|Cite||108 F.3d 1206 (10th Cir. 1997)|
|Level||Court of Appeals|