The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION FOR NEW TRIAL; DENYING MOTION FOR ATTORNEY'S FEES AND NON-TAXABLE COSTS
Plaintiff Anthony Guy moves for a new trial regarding damages and for an award of attorney's fees and non-taxable costs. Defendants City of San Diego, Richard W. Garcia, David Maley, and Kevin Friedman oppose the motions. For the reasons set forth below, both motions are denied.
On February 19, 2008 an eight person jury returned a verdict acquitting all Defendants except defendant Officer David Maley, finding that he alone violated Plaintiff's Fourth Amendment right to be free from excessive force. The jury also found that Defendant Maley's conduct caused Plaintiff injury, damage, loss or harm. The jury originally determined that Plaintiff was entitled to zero dollars as a result of the injuries. Following the court's supplemental jury instruction concerning nominal or minimal damages, the jury returned a supplemental special verdict awarding Plaintiff one dollar in nominal damages.
Plaintiff now moves to set aside the jury's determination on damages and requests a new trial on damages. Plaintiff also requests an award of attorney's fees and non-taxable costs in the amount of $195,580.00 and $24,159.01, respectively. Defendants oppose both motions.
Plaintiff moves for a new trial on damages pursuant to Federal Rule of Civil procedure Rule 59 which provides, in relevant part:
(1) Grounds for New Trial. The court may, on motion grant a new trial on all or some of the issues - and to any party -as follows;
(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.
A trial court may grant a new trial, even though the verdict is supported by substantial evidence, if "the verdict is contrary to the clear weight of evidence, or is based upon evidence which is false, or to prevent, in the sound discretion of the trial court, a miscarriage of justice." Roy v. Volkswagen of America, Inc., 896 F.2d 1174, 1176 (9th Cir. 1990) (citations omitted), cert. denied, 500 U.S. 928 (1991). "The court is not justified in granting a new trial merely because it might have come to a different result from that reached by the jury." Id. (citations omitted). "[T]he hurdle that a motion for . . . a new trial must clear to be successful is a very high one." Bulgo v. Munoz, 853 F.2d 710, 717 (9th Cir. 1988).
Plaintiff raises two main arguments in support of his motion for new trial. First, Plaintiff argues that the nominal damage award is inconsistent with the jury's finding of liability and, alternatively, the weight of the evidence does not support the jury's nominal damage award. These arguments are not persuasive because the jury verdict is not contrary to the clear weight of the evidence. There is nothing inherently or factually inconsistent with a finding of liability accompanied by an award of nominal damages. Rather, such nominal damage awards are not uncommon in civil rights cases. For example, in Farrar v. Hobby, 506 U.S. 103 (1992) the Supreme Court affirmed the reversal of an award of attorney's fees in a civil rights case where, after ten years of litigation, the plaintiffs recovered only nominal damages. See Benton v. Oregon Student Assistance Com'n, 421 F.3d 901 (9th Cir. 2005) (affirming nominal award of $1 in civil rights action and reversing award of attorney's fees); Soffer v. City of Costa Mesa, 798 F.2d 361, 363 (9th Cir. 1986) (in civil rights case, noting that "[n]ominal damages were appropriate and not an abuse of discretion").
The court also concludes that sufficient evidence supports the jury's award of nominal damages. As noted by Defendants, during trial Plaintiff argued that he was severely battered and bruised as a result of excessive force used by the officers. However, there was substantial evidence that showed Plaintiff was involved in a separate altercation with a third party, then resisted arrest during his first contact with officers in the street, and then again at the second contact near the patrol car. Moreover, evidence established that it took three officers to control Plaintiff, all ample explanations for the cuts and bruises he sustained during his resistence of the officers. (Oppo. at p. 3:13-16). Defendants also identify that the jury could have determined that the excessive force related to the use of pepper spray and that the jury could have concluded that Plaintiff suffered only nominal injury due to this conduct. Similarly, the jury could have concluded that Plaintiff was physically injured at the time he resisted arrest and that the officers exercised the use of reasonable force during this period of time. For example, there was evidence that Plaintiff tried to head butt Defendant Maley when he was in the process of patting him down before placing him in the patrol car. When Officers Garcia and Friedman observed Plaintiff's resistence they came to Officer Maley's assistance. The jury could have reasonably concluded that the physical injuries suffered by Plaintiff were the result of the lawful use of force at that point in time. Indeed, the only force which all parties agreed was excessive consisted of officer Maley "throwing" Plaintiff to the ground when there existed an obvious need to subdue Plaintiff. However, there was no substantial evidence that Plaintiff suffered any of his injuries when "thrown" to the ground by the officer. Accordingly, based upon the clear weight of the evidence, the court concludes that the jury verdict is not susceptible to a Rule 59 attack.
Second, Plaintiff contends that the supplemental special verdict form "was improper because it limited the Jury's reconsideration" of damages. In pertinent part, the supplemental verdict form stated "What amount of nominal damages do you award . . . ?" (Motion at p.4:8). The court concludes that Plaintiff has waived any objection to this jury instruction. "A party must object to the form of special interrogatories in the trial court in order to preserve the issue." Saman v. Robbins, 173 F.3d 1150, 1155 (9th Cir. 1999). Here, Plaintiff agreed to the special verdict form at the time of trial and cannot now attack that verdict form. Furthermore, the principle for allowing a jury to award nominal damages in a civil ...