Thursday, October 7, 2010

Mahach-Watkins v. Depee, 593 F.3d 1054 (9th Cir.)

Plaintiff, the mother of her deceased son, filed a 1983 Fourth Amendment excessive force and wrongful death case against a CHP officer in conjunction with a state law wrongful death claim. In the course of duty, the officer shot the deceased man during a struggle with him and, as expected, the facts were in dispute. The jury voted a "favorable verdict" (the panel definition) on the wrongful death claim and one of the 1983 wrongful death claims. The jury awarded the plaintiff one dollar on each claim. The court awarded attorney fees and costs in excess of $136,000 pursuant to 42 U.S.C. 1988. The officer appealed.
According to the Ninth Circuit panel, the plaintiff received a"favorable" verdict. If one dollar is a favorable verdict, the English language has no meaning. What really happened at trial is the plaintiff's lawyer knew the case was lost and pleaded for a nominal award-the jury not knowing this verdict meant the right to seek attorney fees. The Supreme Court has not looked with favor at this kind of case where a nominal damage award allows attorney fees; Farrar v. Hoby, 506 U.S. 101 (1992). " If a district court choses to award fees after judgment for nominal damages it must [identify] the litigation succeeded in addition to obtaining a judgment for nominal damages."

The Supreme Court denied cert.; Depee v. Mahach-Watkins, 2011 WL 55395 (U.S.)

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