Free Motion to Alter Judgment - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant. MOTION TO ALTER OR AMEND JUDGMENT AND SUPPORTING BRIEF Pursuant to Rules 59(e) of the Federal Rules of Civil Procedure, Defendant, City and County of Denver, Colorado ("Denver"), by and through its counsel, hereby moves ­ as an alternative to, and only if the Court denies Denver's Motion and Supporting Brief for New Trial Because of Attorney Misconduct ­ for an order altering or amending the judgment in this case. The reason for this Alternative Motion is that the amount of damages awarded by the jury is a clear legal error, in that it is almost triple the maximum amount of damages that could have been properly awarded in light of the evidence. In support of this Motion, Denver states the following: D.C.COLO.LCivR 7.1 CERTIFICATION In accordance with D.C.COLO.LCivR 7.1, on December 4, 2006, counsel for Denver spoke with counsel for Plaintiff, William R. Cadorna ("Cadorna") about this Motion. Cadorna's counsel stated that Cadorna opposed the Motion. 1. Fed. R. Civ. P. 59(e) "authorizes a trial court to amend or alter a judgment

in the event of . . . a need to correct a clear error of law or prevent manifest injustice. 12

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James Wm. Moore, Moore's Federal Practice ¶ 59.30[5][a] (3d ed. 2006); 11 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2810.1, at 124-25 (2d ed. 1995). The amount awarded by the jury is greatly excessive, legally erroneous, and manifestly unjust. 2. Cadorna brought two claims under the Age Discrimination in Employment

Act, 29 U.S.C. §§ 621-34 ("ADEA"): a wrongful termination claim, and a claim for failure to reinstate. For the two claims together, Cadorna was only entitled to recover

"damages for back pay, which include damages for lost wages, salary and benefits, between the date of March 15, 2003, and the date of your verdicts [June 29, 2006]" ("Cadorna's Damages"). (Jury Instruction No. 26 (Ex. A).) 3. At trial, the only evidence presented on the amount of Cadorna's

Damages was Exhibit 57, a two-page document entitled "Cash Benefits if Member had not Retired." (See Ex. B.) Thus, the only basis for calculating the amount of

Cadorna's Damages was Exhibit 57. 4. The information contained on Exhibit 57 allows an exact calculation of

Cadorna's Damages, that is, the lost wages, salary, and benefits Cadorna would have received from March 15, 2003 through June 29, 2006, if he had continued to be employed as a firefighter by the City and County of Denver. That calculation is as follows: COMPENSATORY DAMAGES I. LOST WAGES/SALARY 5. Cadorna's lost wages/salary from March 15, 2003 through June 29, 2006,

were $194,053.50.

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a.

Cadorna's lost wages/salary from March 15 to December 2003

were $44,545.50, Cadorna's annual salary ($56,268), minus the monthly salaries he received for January 2003 ($4,689) and February 2003 ($4,689), and minus one-half the salary Cadorna received for March 2003 ($2,344.50). b. Cadorna's lost wages/salary for 2004 were $57,894, the total of

Cadorna's lost wages/salary for the first six months of 2004 ($28,674) and Cadorna's lost wages/salary for the second six months of 2004 ($29,220). c. d. Cadorna's lost wages/salary for 2005 were $60,684.00. Cadorna's lost wages/salary from January 1 through June 29, 2006,

were $30,930, one half of Cadorna's 2006 annual salary ($61,860). 6. The lost wages/salary from March 15, 2003, to June 29, 2006, therefore,

were $194,053.50, the total of Cadorna's lost wages/salary for 2003 ($44,545.50), his lost wages/salary for 2004 ($57,894), his lost wages/salary for 2005 ($60,684), and his lost wages/salary from January 1 through June 29, 2006 ($30,930). II. LOST BENEFITS 7. Exhibit 57 also shows that an employment benefit received by Cadorna

while he was employed as a firefighter by Denver was that Denver paid a portion of Cadorna's health insurance costs. The amount of health insurance contributions that Cadorna lost between March 15, 2003 and June 29, 2006, were $26,986.33. a. Cadorna's lost health insurance contribution from March 15 to

December 2003 was $5,940.25, the amount of the annual health insurance contribution ($7,503.48) minus the monthly contributions by

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Denver for January 2003 ($625.29) and February 2003 ($625.29), and minus one-half the monthly contribution by Denver for March 2003 ($312.65). b. Cadorna's lost health insurance contribution for 2004 was

$8,028.72. c. Cadorna's lost health insurance contribution for 2005 was

$8,510.40. d. Exhibit 57 does not state the monthly amount of Denver's health

insurance contributions for 2006. Assuming that a jury could extrapolate such an amount by taking the 2005 amount ($709.20) and adding to it the average amount of the increases in contributions between 2003 and 2005 ($41.96), the extrapolated amount of lost health insurance contributions from January 1, 2006, through June 29, 2006, would be $4,506.96. 8. The lost health insurance contributions from March 15, 2003, to June 29,

2006, therefore, were $26,986.33, the total of Cadorna's lost health insurance contributions for 2003 ($5,940.25), his lost health insurance contributions for 2004 ($8,028.72), his lost health insurance contributions for 2005 ($8,510.40), and his extrapolated lost health insurance contributions from January 1, 2006 through June 29, 2006 ($4,506.96). III AVOIDED EMPLOYEE PENSION CONTRIBUTIONS 9. Although Cadorna lost the benefit of Denver's payment of salary and

health insurance contributions, Exhibit 57 shows that Cadorna also avoided the obligation to contribute to the pension plan in which he was a member. As a result,

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Cadorna avoided $15,524.28 in pension contributions that should be offset against his lost salary and benefits. The calculation of Cadorna's avoided pension contributions is as follows: a. The pension contributions avoided by Cadorna from March 15 to

December 2003 were $3,563.64, the amount of the annual pension contributions ($4,501.44) minus the monthly contribution made by Cadorna for January 2003 ($375.12) and February 2003 ($375.12), and minus one-half the monthly contribution by Cadorna for March 2003 ($187.56). b. The pension contributions avoided by Cadorna for 2004 were

$4,631.52. c. The pension contributions avoided by Cadorna for 2005 were

$4,854.72. d. The pension contributions avoided by Cadorna from January 1

through June 29, 2006, were $2,474.40, one half of the total amount of contributions that would have been paid by Cadorna for 2006. 10. The pension contributions avoided by Cadorna from March 15, 2003, to

June 29, 2006, therefore, were $15,524.28, the total of Cadorna's avoided pension contributions for 2003 ($3,563.64), the pension contributions avoided by Cadorna in 2004 ($4,631.52), the pension contributions avoided by Cadorna in 2005 ($4,854.72), and the pension contributions avoided by Cadorna from January 1 through June 29, 2006 ($2,474.40).

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IV.

PENSION PAYMENTS TO CADORNA 11. Exhibit 57 identifies pension payments received by Cadorna from his

pension plan. This Court ruled that these pension payments were payments from a collateral source and thus could not be used as an offset of Cadorna's damages. (Tr. 1516:14-1519:2.) (See Ex. C.) As a result of the Court's ruling, the pension payments received by Cadorna are neither damages nor offsets to damages. V. TOTAL COMPENSATORY DAMAGES 12. Thus, the information contained on Exhibit 57, viewed in a light most

favorable to Cadorna, supports a maximum damages award of the following: (1) the amount of Cadorna's lost wages/salary ($194,053.50), plus (2) the amount of his lost health insurance contributions ($26,986.33), minus (3) the amount of pension payments avoided by Cadorna ($15,524.28). That amount is $205,515.55. 13. The jury's damages award to Cadorna was $610,571, almost three times

the maximum amount the jury could have awarded Cardona based on the evidence. Therefore, it clearly exceeds the maximum amount of damages allowed, it is a clear error of law, and the award constitutes manifest injustice. 14. If the Court denies Denver's motion for a new trial, the compensatory

damages award should be reduced to $205,515.55. LIQUIDATED DAMAGES 15. The judgment entered by this Court awarded Cadorna liquidated damages

in the amount of $610,571. If liquidated damages are awarded, the amount is to be equal to the amount of compensatory damages. See 29 U.S.C. § 216(b) (incorporated in 29 U.S.C. § 626(b) (authorizing "an additional equal amount as liquidated

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damages")). Thus, the reduction in compensatory damages required by the evidence also mandates a reduction in the award of liquidated damages. I. THE DIVISION OF DAMAGES BETWEEN CLAIMS 17. The jury's damages award was divided between Cadorna's two claims.

The jury awarded Cadorna $100,000 on his first claim for discriminatory termination, and $510,571 on his second claim for discriminatory failure to reinstate. Exhibit 57 discloses that both of those awards are excessive as a matter of law. 18. Cadorna's two claims cover the exact same damages ­ back pay, which

include damages for lost wages, salary and benefits" (Jury Instruction No. 26 (Ex. A)), for two different periods of time. The first claim ­ discriminatory termination ­ runs from March 15, 2003, to January 30, 2004, the date of Judge Criswell's Findings, Conclusions and Decision. (See Ex. D.) The second claim ­ discriminatory failure to reinstate ­ runs from January 31, 2004 to June 29, 2006.1 II. TOTAL DAMAGES ON FIRST CLAIM 19. Exhibit 57 shows that Cadorna's damages on his first claim are as follows: (a) 49,324.50 in lost salary ($44,545.50 for March 15, 2003 through December 31, 2003, plus $4,779 for January 1, 2004 through January 31, 2004); plus (b) $6,609.31 in lost health insurance contributions ($5,940.25 for March 15, 2003 through December 31, 2003, plus 669.06 for January 1, 2004 through January 31, 2004); minus (c) $3,949.60 in avoided employee pension contributions ($3,563.64 for March 15, 2003 through December 31, 2003, and $385.96 for January 1, 2004 through January 31, 2004).
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For convenience of calculation, the ending date for Cadorna's first claim is rounded off to January 31, 2004, the beginning date for Cadorna's second claim is rounded off to February 1, 2004, and the ending date for Cadorna's second claim is rounded off to June 30, 2006.

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20. 21.

Thus, Cadorna's damages on his first claim are $51,984.21. The jury award of $100,000 ­ almost twice the amount supported by the

evidence ­ exceeds the maximum amount of damages allowed, is a clear error of law, and constitutes manifest injustice. The award should be reduced to $51,984.21.

Further, because the award of liquidated damages is to be equal to the award of compensatory damages, the liquidated damages award applicable to Cadorna's first claim should likewise be reduced to $51,984.21. Thus, the total amount of the judgment on Cadorna's first claim ­ reflecting both compensatory and liquidated damages ­ should equal $103,968.42. 22. Exhibit 57 shows that Cadorna's damages on his second claim are as

follows: (a) $144,729 in lost salary ($53,115 for February 1, 2004 through December 31, 2004, plus $60,684.00 for January 1, 2005 through December 31, 2005, plus $30,930 for January 1, 2006 through June 29, 2006); plus (b) $20,377.02 lost health insurance contributions ($7,359.66 for February 1, 2004 through December 31, 2004, plus $8510.40 for January 1, 2005 through December 31, 2005, plus $4,506.96 for January 1, 2006 through June 29, 2006); minus (c) $11,574.68 in avoided employee pension contributions ($4,245.56 for February 1, 2004 through December 31, 2004, plus $4,854.72 for January 1, 2005 through December 31, 2005, plus $2,474.40 for January 1, 2006 through June 29, 2006). 23. $153,531.34. 24. The jury award of $510,571 ­ three and a third times greater than the Thus, Cadorna's compensatory damages on his second claim are

amount supported by the evidence ­exceeds the maximum amount of damages

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allowed, is a clear error of law, and constitutes manifest injustice. The compensatory damages award on Cadorna's second claim should be reduced to $153,531.34. 25. Further, Cadorna's liquidated damages should be reduced to an equal

amount: $153,531.34. Thus, the total award of compensatory and liquidated damages on Cadorna's second claim should be reduced to $307,062.68.2 ACCORDINGLY, for the reasons set forth above, if the Court denies Denver's motion for a new trial, Denver requests that the Court reduce the total judgment ­ reflecting both compensatory and liquidated damages ­ to $411,031.10: $51,984.21 in compensatory damages and $51,984.21 in liquidated damages on Cadorna's first claim; and $153,531.34 in compensatory damages and $153,531.34 in liquidated damages on Cadorna's second claim. Respectfully submitted this 11th day of December, 2006. BROWNSTEIN HYATT & FARBER, P.C. s/ Richard Barkley_________________ Richard P. Barkley Hamid M. Khan 410 17th Street, 22nd Floor Denver, Colorado 80202 (303) 223-1100 s/ Christopher Lujan________________ Christopher M.A. Lujan, Esq. Asst. City Attorney, Litigation Section City and County of Denver 201 West Colfax, Department 1108 Denver, Colorado 80202 ATTORNEYS FOR DEFENDANT

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Denver has filed a motion for judgment as a matter of law on Cadorna's second claim. If the Court grants that motion, in whole or in part, the award of compensatory damages, liquidated damages, or both, on Cadorna's second claim, would be reduced to zero. 9

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 11th day of December, 2006, a true and correct copy of the foregoing MOTION TO ALTER OR AMEND JUDGMENT AND SUPPORTING BRIEF was served via the CM/ECF system to the following: Mark E. Brennan, Esq. Mark E. Brennan, P.C. P.O. Box 2556 Centennial, Colorado 80161 Email: [email protected] s/_Melissa Brenneman___________ Melissa Brenneman

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