Free Reply to Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : : Plaintiffs, : : v. : : COLONEL L. AARON CHAFFINCH, individually : and in his official capacity as Superintendent of the : Delaware State Police; LIEUTENANT COLONEL : THOMAS F. MACLEISH, individually and in his : official capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, in his : official capacity as the Secretary of the Department of : Safety and Homeland Security of the State of : Delaware; and DIVISION OF STATE POLICE, : DEPARTMENT OF SAFETY AND HOMELAND : SECURITY, STATE OF DELAWARE, : : Defendants. : : CORPORAL B. KURT PRICE; CORPORAL WAYNE WARREN; and SERGEANT CHRISTOPHER D. FORAKER,

C.A.No.04-956-GMS

PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR ATTORNEYS FEES, INTEREST AND COSTS OF THE NEUBERGER FIRM PURSUANT TO 42 U.S.C. § 1988 AND FED.R.CIV.P. 54

I.

EACH PLAINTIFF IS A PREVAILING PARTY. The Court has entered judgment against the defendants. (D.I. 186). Their post-trial motion is

pending. The affirmation of the judgment by the Court is the only necessary predicate to a fee and costs award at this time. If the Court upholds the jury verdict, the changed legal relationship between the parties which the judgment evidences will be affirmed. The only condition precedent to determining the lodestar is a determination under 42 U.S.C. § 1988 whether plaintiffs are a prevailing party, which in light of the jury verdict and judgment in this case is self evident. "To qualify as a prevailing party, a civil rights plaintiff ... must obtain an enforceable judgment

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against the defendant from whom fees are sought." Farrar v. Hobby, 506 U.S. 103, 111 (1992). That enforceable judgment has already been obtained. (D.I. 186). Accordingly, plaintiffs are prevailing parties. The primary purposes of this lawsuit are found in the Wherefore Clause of the Complaint. (D.I. 1). Among other things, plaintiffs sought a declaration that their statutory and Constitutional rights had been violated (which is found in the jury interrogatory) and also compensatory damages. (D.I. 1). Here the Supreme Court has adopted what it has termed a "generous formulation," and it has held that parties may be considered "prevailing parties" for attorneys' fees purposes if they succeed on any significant issue in litigation that advances all or some of the benefits they seek to achieve. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This includes "some relief on the merits of [the] claim[,]" Hewitt v. Helms, 482 U.S. 755, 760 (1987), which "affects the behavior of the defendant toward the plaintiff[,]" Rhodes v. Stewart, 488 U. S. 1, 4 (1988) (emphasis in original), and which "changes the legal relationship between [the parties]." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). All that has been accomplished herein. The "actual relief" obtained in this lawsuit thus was "substantial" and "materially alter[ed] the legal relationship between the parties" by financially "modifying the defendant's behavior in a way that directly benefit[ed] the plaintiff[s]" and the community. Farrar, 506 U.S. at 111-12. No doubt sensing that they will lose their post trial motions, defendants argue that the Court should stay its hand and hold the fee and costs motion in abeyance until after they take an appeal. They argue that only after they have lost that appeal should the Court take up this stale file again and rule on fees and costs. Then another costly round of appeals will begin. But the authority for this convoluted manner of proceeding is rather thin and as a general rule does not support this position. (DAB at 5). The Third Circuit and Supreme Court cases cited by the defense are not to the contrary. In Sweitlowich v. County of Bucks, 620 F.2d 33, 34 (3d Cir. 1980) (DAB at 5), the Third Circuit held that a plaintiff who successfully appealed and overturned a defense verdict and judgment was not yet a prevailing party for fees purposes. Similarly, in Hanrahan v. Hampton, 446 U.S. 754, 758-59 (1980), the Supreme Court held that a plaintiff who prevails on an appeal which entitles him to a new trial is not yet a prevailing 2

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party. Unlike the plaintiffs in those cases, present plaintiffs have obtained both a jury verdict and the Court has entered judgment against defendants. This is more than sufficient to achieve prevailing party status. Farrar, 506 U.S. at 111; see Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1234 (10th Cir. 2001) ("[u]sually the litigant in whose favor judgment is rendered is the prevailing party for purposes of Rule 54(d)(1)") (quoting Wright & Miller, Federal Practice & Procedure, § 2667). "Disfavoring piecemeal appeals is a long-standing policy of the federal courts." Sussex Drug Products v. Kanasco, Ltd., 920 F.2d 1150, 1153 (3d Cir. 1990). Piecemeal proceedings or multiple appeals will serve neither the interests of judicial economy nor the "just" and "speedy" conclusion this litigation. Fed.R.Civ.P. 1. Given that all issues in this case are simultaneously ripe for adjudication, there is no need for two appellate panels to address our present suit in light of the thousands of cases which currently clutter the Third Circuit's docket. Fed.R.App.P. 4(a)(4)(A)(iii) also reflects the nationwide policy against such piecemeal appeals involving attorney's fees. The current version of that rule provides that there is no jurisdiction whatsoever for any appeal in a case in which a fee application is pending below, provided that the trial court under Fed.R.Civ.P. 58 extends the time for appeal, if it has ruled on other post trial motions but still has a fee application pending. Obviously, the appellate rules frown on piecemeal attorney's fees appeals unless highly unusual circumstances warrant it. Ours is not such a case, and the defendants have offered no reason either in the record or logic to convince the Court otherwise. Rather, resolving these issues now will further the policy against piecemeal appeals by "ensur[ing] efficient administration of scarce judicial resources." Lusardi v. Xerox Corp., 747 F.2d 174, 177 (3d Cir. 1984). In the same way, in light of the "unequal economic resources" of the parties in this case, resolution of the attorneys fees issue will "protect[ ] the judicial process and its participants from the delay which can prove advantageous to a well-financed litigant, and fatal to the less well-endowed." Id.

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II.

THE HOURLY RATE OF STEPHEN J. NEUBERGER IS REASONABLE AND SUPPORTED BY UNREBUTTED RECORD EVIDENCE. A. The Basics. "A district court may not set attorneys' fees based upon a generalized sense of

what is customary or proper, but rather must rely upon the record." Smith v. Phila. Housing Auth., 107 F.3d 223, 225 (3d Cir. 1997) (emphasis in original) (internal bracketing omitted); accord Evans v. Port Auth. of N.Y. and N.J., 273 F.3d 346, 361 (3d Cir. 2001) (same). A record is required because such a determination is a question of fact. See Smith, 107 F.3d at 225 (noting that an "attorney's marketplace billing rate is a factual question"); Bell v. United Princeton Properties, Inc., 884 F.2d 713, 715 n.1 (3d Cir. 1989) (when factual accuracy of a representation is at issue, an affidavit is required). B. Plaintiffs Have Met Their Prima Facie Burden. "The party seeking fees bears the burden of producing sufficient evidence of what constitutes a reasonable market rate for the essential character and complexity of the legal services rendered in order to make out a prima facie case." Lanni v. N.J., 259 F.3d 146, 149 (3d Cir. 2001). As set forth in great detail in plaintiffs' Opening Memorandum of Law and its numerous attachments, plaintiffs have proven a prima facie case of the reasonableness of counsels' hourly rates. Attorneys Thomas S. Neuberger and William Ewing each have submitted declarations attesting to the reasonableness of Stephen J. Neuberger's market rate. Accordingly, plaintiffs have demonstrated their prima facie case. C. The Defense Has Defaulted and Failed to Carry Its Burden. "If the prima facie case has been made, the opposing party bears the burden of producing record evidence that will contest this rate." Id. (emphasis added). In other words, "[o]nce the plaintiff has made the prima facie showing with respect to the appropriate hourly rate, that rate may be contested, but only with appropriate record evidence. In the absence of such evidence, the plaintiff must be awarded attorneys' fees at [his] requested rate." Evans, 273 F.3d at 361 (internal punctuation omitted) (emphasis added).1

See also Washington v. Phila. County Court of Common Pleas, 89 F.3d 1031, 1036 (3d Cir. 1996) ("district court is not free to disregard attorney's affidavit when the other party `filed no affidavit and offered no testimony contesting the accuracy of the attorney's statement with respect to charges by 4

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In the face of this burden, the defense offers only rhetoric instead of the required record evidence. (See DAB at 6). They completely defaulted and have waived the issue by failing to meet their required evidentiary burden. Lanni, 259 F.3d at 149; Evans, 273 F.3d at 361. No declarations, affidavits or other sworn testimony were submitted. The defense has offered no record evidence whatsoever to contest the reasonableness of plaintiff's hourly rates. Accordingly, because the defense has failed to meet its burden and "plaintiff has made the prima facie showing with respect to the appropriate hourly rate ... plaintiff must be awarded attorneys' fees at [his] requested rate." Evans, 273 F.3d at 361 (internal punctuation omitted). Additionally, even if the defense had carried its burden, (which it has not), the State is wasting judicial resources by being inconsistent on the market rate issue. In March 2006, as part of the settlement following the state's unsuccessful appeal that was disposed of in Springer v. Henry, 435 F.3d 268 (3d Cir. 2006), the State of Delaware agreed and consented to Stephen Neuberger's hourly rate of $250. (T. Neuberger Decl. ¶ 32). Inconsistently however, the State now refuses to agree to the reasonableness of the exact same rates for the exact same counsel. III. THE NUMBER OF HOURS EXPENDED ARE REASONABLE. A. Introduction. "[A] court may not reduce counsel fees sua sponte as excessive, redundant, or otherwise unnecessary in the absence of a sufficiently specific objection to the amount of fees requested." U.S. v. Eleven Vehicles, Their Equipment and Accessories, 200 F.3d 203, 211 (3d Cir. 2000) (internal punctuation omitted). With the exception of the limited areas discussed below, the defense has raised no objection in our case, conceding that all other time was reasonably spent. In calculating the lodestar, "the district court may not award less in fees than requested unless the opposing party makes specific objections to the fee request." Id. As the Third Circuit has stated, when an opposing party has been afforded the opportunity to raise a material fact issue as to the accuracy of representations as to hours spent, or the necessity for their expenditure, and declines to do so, no reason occurs to us for permitting the trial court to disregard uncontested affidavits filed

comparable practitioners.'") (quoting Black Grievance Committee v. PECO, 802 F.2d 648, 652-53 (3d Cir. 1986)). 5

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by a fee applicant. Id. at 212; see also McDonald v. McCarthy, 966 F.2d 112, 119 (3d Cir. 1992) ("We hold that where a party fails to challenge the accuracy of representations set forth in a fee petition, the current submissions provide the necessary record basis for the district court's fee determination ... [the Court may not] disregard the uncontested affidavits filed by the plaintiff.") (internal punctuation omitted). "A district court may not `decrease a fee award based on factors not raised at all by an adverse party.'" Eleven Vehicles, 200 F.3d at 212 (quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). "The rationale for this prohibition is ... twofold. First, sua sponte reduction deprives the applicant of the right `to offer evidence in support of the reasonableness of the request.'" Eleven Vehicles, 200 F.3d at 212 (quoting Bell, 884 F.2d at 719). "Second, `because statutory fee litigation is adversarial litigation, there is no need to allow the district court to reduce a fee award on its own initiative.'" Id. Accordingly, because defendants have only objected to several limited areas and because, as explained below, those objections are without merit, the Court need only multiply the total number of hours by the market rate. As stated in plaintiff's Opening Memorandum on this issue (D.I. 188 at 11), the total number of hours after the exercise of billing judgment was 2340.5 and the total amount of fees that should be awarded to The Neuberger Firm is $643,476. B. The Time Spent on Summary Judgment Briefing Was Reasonable and Necessary to the Successful Litigation of This Case and So is Compensable. 1. The Law. "The purpose of [42 U.S.C.] § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances." Hensley, 461 U.S. at 429 (internal punctuation omitted). "[A] prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Id. (internal punctuation omitted). Putting to the side the district court cases cited by the defense (DAB at 6), under governing Third Circuit authority the "mere failure of certain motions ... is insufficient to warrant a fee reduction," and the critical issue is whether the hours spent were reasonable for the case. Blum v. Witco Chemical Corp., 829 6

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F.2d 367, 378 (3d Cir. 1987) (citing Hensley, 461 U.S. at 435). It is immaterial that the Court ultimately found there to be a genuine issue of material fact preventing summary judgment against defendants. As discussed below, the Third Circuit, other Circuits and the Supreme Court all favor "treating a case as an inclusive whole, rather than as atomized line-items." Commissioner, INS v. Jean, 496 U.S. 154, 161-62 (1990).2 In the Third Circuit, the "mere failure of certain motions ... is insufficient to warrant a fee reduction." Blum, 829 F.2d at 378 (and noting that "the Supreme Court has rejected the notion that the fee award should be reduced `simply because the plaintiff failed to prevail on every contention raised on the law suit'"). The Third Circuit has gone so far as to hold that the time spent on an unsuccessful summary judgment motion and brief is compensable even if it was never filed or considered on the merits, if it was later "relied" on in the course of the litigation. Planned Parenthood of Central N.J. v. Attorney General of the State of N.J., 297 F.3d 253, 271 (3d Cir. 2002). In Planned Parenthood, the Court found that since "the summary judgment brief was eventually submitted in lieu of a pre-trial brief, and a post-trial brief, the work was certainly `necessary' and `useful,'" and that a fee award was appropriate. Id. The Third Circuit approach is in accord with existing U.S. Supreme Court precedent on the topic. In Commissioner, INS v. Jean, 496 U.S. 154, 161-62 (1990), the Supreme Court noted that "fee-shifting statutes ... favor[] treating a case as an inclusive whole, rather than as atomized line-items." "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." Hensley, 461 U.S. at 435. "Normally, this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified." Id. "[T]he fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." Id.

The District of Delaware has held the same. See Ballen v. Martin Chevrolet-Buick of Del., 1998 WL 1013874, at *2 (D.Del. Sept. 17, 1998) ("Section 1988 rewards a plaintiff who ultimately prevails - who wins the war - - without deducting for lost battles along the way"). 7

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In the same way, other courts also have held that time spent on failed motions is recoverable under attorneys' fees statutes. The defense claim that the summary judgment time was "frivolous" (DAB at 6) is remarkably similar to a claim the Seventh Circuit rejected in Uniroyal Goodrich Tire Co. v. Mutual Trading Corp., 63 F.3d 516 (7th Cir. 1995). There, the defendants argued that fees should be denied for time spent on allegedly "failed and useless activities." Id. at 526. The Seventh Circuit rejected this approach, stating that Common sense ... informs us that such a rule is inappropriate. There is a significant difference between frivolous claims and colorable but unsuccessful claims. Were we to deem unreasonable the reimbursement of fees incurred for the latter, we would be discouraging the type of representation attorneys are duty-bound to provide. So long as statutes allow prevailing parties to recover attorneys' fees "reasonable" in amount, we are not prepared to link our definition of "reasonable" to whether the fees are incurred in pursuit of a successful task. Id.; see also Aston v. Secretary of Health and Human Services, 808 F.2d 9, 11-12 (2d Cir. 1986) (finding that time spent "unnecessarily moving for summary judgment" was recoverable); Wales v. Jack M. Berry, Inc., 192 F.Supp.2d 1313, 1321 (M.D.Fla. 2001) (citing Hensley, 461 U.S. at 440, and noting that "time is not excluded simply because a motion is denied or a task proves unsuccessful"). The cornerstone of the defense argument is Judge Robinson's opinion in Fini v. Remington Arms Co., 1999 WL 825604 (D.Del. Sept. 24, 1999), which is cited for the proposition that motions that have been denied are not compensable. (DAB at 6-8). But this District Court opinion is contrary to the authority discussed above. Second, and more importantly, three years later, the Third Circuit overruled it when it issued its opinion in Planned Parenthood, 297 F.3d 253, with a holding contrary to that of the Fini case. In Planned Parenthood, the Third Circuit found that because an unsuccessful summary judgment brief was "relied" on during a later part of the case, it was "necessary," "useful" and thus the time spent on it was fully compensable. Id. at 271. This Circuit precedent is decisive for our current issue. 2. The Time Spent at Summary Judgment Was Both Useful and Necessary To Other Parts of the Litigation. Unfortunately for defendants, the work done by plaintiffs at summary judgment was "relied" upon during several later stages of the case and thus was both "necessary" and "useful" to the

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successful completion of this litigation. Accordingly, it is fully compensable under Planned Parenthood. Id. First, the very same factual and legal record compiled by plaintiffs in support of their motions for summary judgment, was necessary to oppose and ultimately defeat the defense's own motions for summary judgment on these same issues. Plaintiffs moved for summary judgment on their Free Speech and Petition Clause retaliation counts in three areas. (1) That they had engaged in protected speech and petition clause activity.3 (2) that no reasonable jury could conclude that their protected activity was not a substantial or motivating factor in the retaliation against them.4 (3) That defendants had waived their same decision anyway affirmative defense by failing to raise it in their Answer.5 (See Price at D.I. 84; Foraker at D.I. 64). Defendants also moved for summary judgment on the following grounds on plaintiffs' Free Speech and Petition Clause counts: (1) That plaintiffs had not engaged in protected petition clause activity;6 (2)

Such a purely legal question, Hill v. City of Scranton, 411 F.3d 118, 127 (3d Cir. 2005), is entirely appropriate for summary judgment and the Court has granted summary judgment on this issue in the past. See Springer v. Henry, 2002 WL 389136 (D.Del. March 11, 2002). Given that this factor does not require that "but for" causation be proven, Suppan v. Dadonna, 203 F.3d 228, 236 (3d Cir. 2000); see Hill, 411 F.3d at 126 n.11 ("`Substantial factor' does not mean `dominant' or `primary' factor."), but instead only requires a plaintiff to prove that their protected activity "played a role" in the adverse action, Miller v. Cigna, Corp., 47 F.3d 586, 597 n.9 (3d Cir. 1995) (en banc); see Suppan, 203 F.3d at 236, moving on this issue is certainly not frivolous as the defense claims. It was not unreasonable for plaintiffs to move on this issue, even though defendants denied that plaintiffs' protected activity was the `but for' cause of the retaliation against them, because `but for' causation was not required and there was an extraordinary amount of causation evidence - eleven separate categories. (See Price at D.I. 84; Foraker at D.I. 64). Given that this is an "affirmative defense," Nicholas v. Pa. State Univ., 227 F.3d 133, 144 (3d Cir. 2000), that Fed.R.Civ.P. 8(c) explicitly requires that a party plead all such affirmative defenses in their answer, and that although raising several affirmative defenses in their answer, the defendants did not raise this one, it was not frivolous of plaintiffs to move on this ground as well. To the extent the defense may claim that the time plaintiffs spent briefing the free speech protected activity issue is not compensable because defendants did not move on it (and this is the sole area where the briefing does not overlap for present purposes), such a position is in error. Even though the Court initially denied plaintiffs' summary judgment motion (D.I. 135), in its later written opinion (D.I. 167), the Court nonetheless responded to plaintiffs' motion on this issue and held as a matter of law that 9
6 5 4

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that there was no causal evidence with which to establish that plaintiffs' protected activity was a substantial or motivating factor; (3) that defendants would have made the same decision anyway; (4) that no adverse action was taken against plaintiffs; (5) that defendants were entitled to qualified immunity; and (6) that Chaffinch had a First Amendment right to defame Sgt. Foraker.7 (See Price at D.I. 81; Foraker at D.I. 62). It is clear that these areas overlap with the areas moved on by plaintiffs. Accordingly, because the same facts and law were necessary to defeat the defense's own summary judgment motions, plaintiffs' motions were useful and necessary, and thus are fully compensable. Second, the summary judgment time was useful and necessary to sift through the voluminous discovery record so that it could be reviewed and organized for use at trial. In addition to more than 24,000 pages of documentary discovery, sixteen witness and party depositions also had to be reviewed and organized for use in briefing. Similarly, the voluminous medical records of the numerous comparators also were organized and used at summary judgment. This briefing was subsequently used again at trial: (1) as a roadmap for the issues presented to the jury in opening and closing arguments; (2) as a road map and guide in the preparation of the testimony of nearly every one of plaintiffs' trial witnesses (with the exception of the spouses and experts); (3) as a guide to the medical records that were key to understanding the comparators which were presented at trial; and (4) in preparation of numerous demonstrative exhibits used during the trial. Accordingly, this work was relied upon at a later stage and is thus compensable. Third, as the defense neglects to mention, much of plaintiffs' summary judgment briefing was directly incorporated into plaintiffs' trial briefs, schedule (i) (1) of the pretrial order, in both cases. Fourth, much of both the factual and legal analysis also was incorporated into schedule (b) of the pretrial order, contested issues of fact and law. Fifth, that same law was useful and key to the jury prayers on the various aspects of First

they had "clearly engaged" in protected First Amendment free speech. Price v. Chaffinch, 2006 WL 1313178, *3 (D.Del. May 12, 2006). Thus, it is clear that plaintiffs prevailed on this issue.
7

The defense also moved on plaintiffs' state law claims. 10

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Amendment retaliation (such as adverse action, substantial or motivating factor, and same decision anyway), punitive damages and other First Amendment issues.8 Sixth, much of the work product from summary judgment briefing has been recycled and used again in the post-trial briefing. For example, plaintiffs' moved at summary judgment on the issue of their having engaged in protected petition clause activity. As a result of the Court' invitation in its summary judgment ruling, plaintiffs renewed that motion post-trial and defendants moved on that ground as well. Seventh, all this time was devoted generally to the litigation as a whole. It was not on any claim for which there was limited or no success in the case. Instead, it was devoted to the retaliation legal theories on which plaintiffs prevailed at trial. This work and time was completely related to successful claims in the case. It is not separable from the claims on which plaintiffs were successful and is fully compensable. See Ballen, 1998 WL 1013874, *2 ("Section 1988 rewards a plaintiff who ultimately prevails - - who wins the war - - without deducting for lost battles along the way"). C. The Time Related to Media Activity Has Already Been Removed in the Exercise of Billing Discretion. The defense also claims that plaintiffs should not be compensated for time related to contacts with the news media. (DAB at 10-11). Plaintiffs do not contest the claim that media efforts are not compensable under 42 U.S.C. § 1988. That is why The Neuberger Firm already excised all time related to media efforts during the exercise of billing discretion prior to submission of their attorneys fees motion. As plaintiffs' original motion and supporting pleadings make clear, the total time invested in this case by The Firm was 2549.5 hours. (T. Neuberger Decl. ¶¶ 27, 38). However, billing discretion was then exercised and 8% of the total hours - which is 209 hours - removed, leaving the lodestar total of 2340.5 hours. (T. Neuberger Decl. ¶¶ 27, 38). The hours challenged by defendants related to media relations have already been removed in the exercise of billing discretion. Those hours were not included in plaintiffs

Such as the defense request for a jury instruction on Chaffinch's First Amendment right to defame Sgt. Foraker, a request rejected by the Court, and a request they have renewed post-trial. The basis for plaintiffs' written submissions on the issue was the legal research done at summary judgment. 11

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lodestar totals submitted to the Court. Thus, it is clear that the defense is objecting to time that has already been removed and which plaintiffs are not seeking reimbursement for. Accordingly, the defense objections on this ground are improper.9 D. State Law Claims. The defense also claims that plaintiffs cannot recover for time spent on matters exclusively related to their state law claims. (DAB at 11-12). Again, plaintiffs do not dispute this. 1. The Defamation Claim is a Lesser Included Part of the First Amendment Retaliation Claims. However, under the facts of our case, all facts related to Sgt. Foraker's state law defamation claim are encompassed within the larger First Amendment retaliation claim - for which fees are recoverable under §1988. In other words, under the facts of our case, the defamation claim is a lesser included part within the larger First Amendment retaliation counts. Thus, all facts and time related to prosecution of the defamation claim are still actionable under the First Amendment retaliation claim.10 Thus, even without the state law defamation count, plaintiff still would have presented the same evidence because it pertains to his retaliation claims - that defendant Chaffinch went on a local, national and international media campaign and defamed Sgt. Foraker by blaming him for the disaster at the FTU in retaliation for his earlier lawsuit and for speaking out about the FTU. Indeed, defense counsel himself has already admitted that the defamation claim is a lesser included part of the larger retaliation counts. As he said at trial, the claims and damages overlap and cover the same conduct. For example, in Mr. Ellis' words, "I mean the defamation claim and the First Amendment claim are both saying Foraker is damaged goods ... It's duplicative ... the damages for the defamation is going to be folded into the larger claim." (Ellis 2397-98).11 Thus, it is clear that plaintiffs lodestar should not be reduced.

As plaintiffs' opening brief (D.I. 188) makes clear, Tab B to Exhibit 1 to the opening brief consists of a "chronological listing describing all time spent on these two cases" before the exercise of billing discretion. (D.I. 188 at ¶¶ 25,26).
10

9

The same holds true for the invasion of privacy claim.

Thus, it is clear that the defense request to reduce all time expended by 1/8 (DAB at 11-12) is arbitrary, misguided and clearly mistaken. 12

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2. Mr. Haverly Handled All Briefing Related to the State Law Claims. Although The Neuberger Firm took primary responsibility for all summary judgment briefing, Mr. Haverly wrote the portions of the summary judgment briefing related to the state law defamation and invasion of privacy claims. Accordingly, none of The Neuberger Firm's time relates to these two state law claims. Mr. Haverly will explain in his own fees and costs Reply the specifics of how he removed all improper time from his lodestar.12 E. Prejudgment Interest. Upon review of the Third Circuit authority cited by the defense, plaintiffs withdraw their request for prejudgment interest on the non-pecuniary damages awarded to plaintiffs. Although plaintiffs did not intend to request it, to the extent that their motion is somehow read to be requesting prejudgment interest on the future economic damages awards to plaintiffs Cpl/3 Price and Cpl/3 Warren, such a request is withdrawn. However, an award of prejudgment interest to Sgt. Foraker on his economic damages award is appropriate. The Court instructed the jury that it could award Sgt. Foraker "lost earnings or other benefits" which he has suffered in the past or will suffer in the future. (Jury Instructions 2499-2500) (emphasis added). As plaintiffs have discussed in other post-trial briefing (D.I. 216 at 31-32), it is probable that the jury very well may have intended its economic damages award to Sgt. Foraker to compensate him for having had to already use his hard earned vacation, sick and accumulated time in order to stay on the payroll from October/November 2005 until the date of trial.13 This is certainly one likely interpretation of the jury's verdict. Accordingly, prejudgment interest on these amounts should be awarded

In his Reply, Mr. Haverly also will address the issue of why his participation and attendance at trial and several of the depositions was not excessive and instead was both necessary and required. However, counsel notes that even on the days when Mr. Haverly was not actively examining witnesses, Mr. Haverly was actively participating in other important ways at the counsel table during trial and the depositions. Plaintiffs submit that a November 1, 2005 date would be the appropriate date from which to compute Sgt. Foraker's prejudgment interest. 13
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to Sgt. Foraker from November 1, 2005 until the May 31, 2006 jury verdict.14 F. Post-Judgment Interest. Defendants do not challenge that plaintiffs are entitled to postjudgment interest running from the May 31, 2006 jury verdict into the future, nor could they. See 28 U.S.C. § 1961. CONCLUSION For the reasons discussed above and in plaintiffs' opening memorandum, it is respectfully requested that up to May 31, 2006, the Court: (a) make an award of attorneys fees and law clerk and paralegal services to The Neuberger Firm in the amount of $ 643,476.00, (b) make an award of expenses and costs for this case in the amount of $38,729.01, ( c) award post-judgment interest on those amounts from the date of the jury verdict on May 31, 2006 and (d) award prejudgment interest on the liquidated damages award to Sgt. Foraker, between November 1, 2005, through May 31, 2006, compounded semiannually. Respectfully Submitted, THE NEUBERGER FIRM, P.A. /s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Dated: July 14, 2006 Attorneys for Plaintiffs

The Court has discretion when it comes to awarding prejudgment interest. Savarese v. Agriss, 883 F.2d 1194, 1207 (3d Cir. 1989). Exercising that discretion, the Court is not bound by the postjudgment interest requirement contained in 28 U.S.C. § 1961(b) regarding compounding the interest annually as the defense suggests. (DAB at 14). Instead, the Court may exercise its discretion in requiring that the award be compounded "semi-annually" as it did in the Springer post-trial opinion. Springer v. Henry, 2004 WL 2127172, *17 (D.Del. Sept. 16, 2004); cf. Kraemer v. Franklin and Marshall College, 941 F.Supp. 479, 487 (E.D.Pa. 1996) (rejecting a defense request to compound prejudgment interest annually and instead compounding it quarterly). 14

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Unreported Opinions

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II. Attorneys' Fees Briefs and Other Related Documents Only the Westlaw citation is currently available. United States District Court, D. Delaware. John BALLEN, Plaintiff, v. MARTIN CHEVROLET-BUICK OF DELAWARE, a Limited Partnership, Defendant. No. CIV. A. 94-484 MMS. Sept. 17, 1998. Ballen seeks $119,459.50 in fees and $4,666.08 in costs based on 542.95 hours of legal work.FN1

FN1. Martin Chevrolet does not object to the $4,666.08 in costs. Ballen, as the prevailing party, is entitled to an award of reasonable attorneys' fees. See 42 U.S.C. § 2000e-5(k).FN2 In determining "reasonable" attorneys' fees in a given case, the Supreme Court has instructed, "[t]he most useful starting point ... is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." FN3 See Blum v. Stenson, 465 U.S. 886, 888 (1984) (citing Hensley v. Echerhart, 461 U.S. 424, 433 (1983)).FN4 From that amount, district courts, in their discretion, may deduct the value of hours inadequately documented or "not reasonably expended." Hensley, 461 U.S. at 433. The Supreme Court exhorted prevailing counsel to exercise "billing judgment" and not to request hours that may be considered "excessive, redundant, or otherwise unnecessary." Id. at 433-34.

Michael R. Ippoliti, Esq., Wilmington, Delaware; Of Counsel: Alan Epstein, Esq., of Jablon, Epstein, Wolf & Drucker, Philadelphia, Pennsylvania; attorneys for plaintiff. David S. Lank, Esq., of Theisen, Lank, Mulford & Goldberg, Wilmington, Delaware; attorney for defendant. MEMORANDUM OPINION SCHWARTZ, Senior District J. I. Introduction *1 John Ballen ("Ballen"), a resident of the State of Delaware, sued Martin Chevrolet-Buick of Delaware, L.P. ("Martin Chevrolet"), a Pennsylvania limited partnership, on September 26, 1994, alleging racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Civil Rights Act of 1866, 42 U.S.C. § 1981. On March 27, 1997, judgment was entered against Martin Chevrolet in the amount of $239,048.00: $44,048 in back pay, $35,000 in general compensatory damages for emotional distress and humiliation, and $160,000 in punitive damages. Before the Court is Ballen's motion for attorneys' fees.

FN2. 42 U.S.C. § 2000e-k(5) states in pertinent part: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs .... FN3. The product of these two components is commonly referred to as the "lodestar". See City of Burlington v. Dague, 505 U.S. 557, 559 (1992). FN4. Both Blum and Hensley were decided under 42 U.S.C. § 1988, the civil rights

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fee-shifting statute; however, the Supreme Court stated the standards set forth therein were applicable "in all cases in which Congress has authorized an award of fees to a `prevailing party." ' Hensley, 461 U.S. at 433 n. 7. Therefore, the standard articulated above applies in the present case. Martin Chevrolet does not object to the billing rates advanced for any of plaintiff's attorneys, except for those of lead plaintiff's counsel, Alan Epstein ("Epstein"), Esq. Specifically, Martin Chevrolet contends that Epstein should be paid only $250 per hour, as opposed to the $275 per hour which Ballen requests. Further, Martin Chevrolet disputes various portions of time expended on the matter; most significantly, 105 hours spent by Epstein and 32 hours spent by his associate Scott Burr ("Burr"), Esq., in preparation for and during the first trial, which ended in a hung jury. Lastly, Martin Chevrolet objects to 68.5 hours expended by local counsel, Michael Ippoliti ("Ippoliti"), Esq., because they are excessive given his position as local counsel, and the 28.5 hours expended by Ballen's former counsel, Michael P. Maguire (`Maguire"), Esq., because those hours involve time spent when the case was in administrative posture or are not sufficiently detailed.

vacated a district court's award that reduced Epstein's hourly rate to $175 from a requested $250 and $275 per hour. Based largely on affidavits submitted by other attorneys in the civil rights field, the appellate court found that the plaintiff had satisfied his burden of establishing "the community billing rate," and that plaintiff's counsel's fees were within that rate. Id. at 1036. Quoting from yet another Third Circuit Court of Appeals opinion concerning a fee application by Epstein, the court opined that the district court should not adjust the requested rate downward when "the plaintiff has met his prima facie burden under the `community market rate' lodestar test, and the opposing party has not produced contradictory evidence ...." Id. (quoting Griffiths v. Cigna Corp., 77 F.3d 462 (3d Cir. November 30, 1995) (unpublished)). The Third Circuit Court of Appeals has "recognized that billing rates are usually reflective of market rates." Keenan v. City of Philadelphia, 983 F.2d 459, 475 (3d Cir.1992) (citing Lindy Bros. Builders, Inc. v. American Radiator and Standard Sanitary Corp ., 487 F.2d 161, 167 (3d Cir.1973)). In the case at bar, Epstein has presented affidavits-apparently the same affidavits submitted in the Griffiths case-to the effect that $250 per hour was a reasonable rate in his field; however, Epstein is now requesting attorney's fees reflecting a $275 per hour billing rate. In support of this increased billing rate, Epstein has submitted his own affidavit, a Community Legal Services Survey, and two supplemental affidavits from Alice Ballard, Esq. and Lorrie McKinley, Esq. Martin Chevrolet is willing to stipulate to $250 per hour, but objects to the $275 rate.FN5

A. Hourly Rate The Third Circuit Court of Appeals has held that "a reasonable hourly rate is calculated according to the prevailing market rates in the community." Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir.1996). "The prevailing party bears the burden of establishing by way of satisfactory evidence, `in addition to [the] attorney's own affidavits,' ... that the requested hourly rates meet this standard." Id. (citation omitted). *2 Washington is particularly relevant to the present case because it concerned a prior fee application made by Epstein, plaintiff's lead counsel in the present case. In Washington, the Third Circuit Court of Appeals

FN5. In calculating its billing, Epstein's firm appropriately used the lower rate of $250 for 2.70 hours of work done before the increase in his fees from $250 to $275 per hour went into effect. D.I. 89, at Exh. 2. The Court finds that Epstein has clearly made out his prima facie case that $275 per hour is the appropriate hourly rate on which to base attorneys' fees for his work on this case. Martin Chevrolet has submitted no

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affidavits which refute the $275 hourly rate. While, as noted in Washington, an attorney's own affidavit is insufficient to prove the prevailing market rate, the survey and supplemental affidavits, along with the passage of time since the previous cases were adjudicated, support Epstein's contention that his current market rate of $275 per hour is the prevailing market rate.

*3 Martin Chevrolet requests that the Court reduce the amount of compensable time for local counsel, Ippoliti, from 63.8 hours to 5 hours. The 63.8 hours break down into 46 hours for reviewing correspondence and pleadings and 17.8 hours for trial attendance. Martin Chevrolet finds this billing duplicative, stating "the local firm was simply base tending by signing off on pleadings." D.I. 93, at ¶ 16. The Court disagrees with Martin Chevrolet's characterization of the role of local counsel. As noted by plaintiff, the local rules of this Court require, among other things, that local counsel attend court proceedings and sign all papers filed with the Court. Del. L.R. 83.5(d). Further, signing of pleadings by local counsel means counsel has made certain representations to the court. See Fed.R.Civ.P. 11(b). The Court therefore deems time spent by local counsel reviewing correspondence and pleadings, as well as time in Court, eminently reasonable in light of local counsel's responsibilities. There is also rejected Martin Chevrolet's assertion that the Court must discount time Ippoliti spent at the trials because this Court excused him pursuant to local rules. The mere fact that this Court did not require local counsel's presence has no bearing on whether it was reasonable for Ippoliti to remain at trial to render assistance to plaintiff's lead counsel. Martin Chevrolet's request for reduction of compensable time for local counsel will therefore be denied.

B. Number of Hours Spent Each of the time components to which Martin Chevrolet objects as unreasonable will be individually considered below.

1. Hours Spent on Trial Which Ended in a Hung Jury Martin Chevrolet objects to 105 hours spent by Epstein, and 32 hours spent by his associate Burr, preparing for and attending a trial which ended in a hung jury. An argument similar to this one was rejected in Buffington v. Baltimore County, 913 F.2d 113, 128 n. 12 (4th Cir.1990), cert. denied, 499 U.S. 906 (1991). In the context of a request for attorney's fees under 42 U.S.C. § 1988, the Fourth Circuit Court of Appeals upheld an award of attorney's fees that included time spent on a trial which ended in a mistrial. In Buffington, the court stated: "Section 1988 rewards a plaintiff who ultimately prevails-who wins the war-without deducting for lost battles along the way." Id. The Court agrees with that rationale, and believes this holding applies equally to a motion for attorney's fees brought under the Title VII counterpart to § 1988. Therefore, the Court will not deduct either the 105 hours spent by Epstein or the 32 hours spent by Burr on the first trial which ended in a hung jury; the Court does not find it unreasonable for Epstein to have been aided by an associate during trial.

3. Time Billed for Ballen's First Counsel Ballen has also claimed attorneys' fees for time spent on the case by his first counsel, Maguire. Martin Chevrolet's objection is two-fold. First, Martin Chevrolet objects to 28.55 hours spent on the case "while it was in an administrative posture with the Delaware Department of Labor." D.I. 93, at ¶ 20. Second, Martin Chevrolet objects to these hours because they are not sufficiently particularized. D.I. 93, at ¶ 22.

2. Local Counsel Billable Hours

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The Court first notes that while Maguire apparently spent 28.55 hours on the case before the federal court complaint was drafted and filed, the record does not indicate that these hours were spent solely on tasks related to the administrative process. In fact, Maguire filed the federal complaint on September 26, 1994 while Ballen's first contact with Epstein was not until March 20, 1995, D.I. 89, at Exh. 2. Indeed, much of the 28.55 hours were apparently spent investigating the case-2.5 hours for the initial meeting with the client, 12.75 hours for interviews with witnesses and 4.6 hours for communications with Martin Chevrolet's defense counsel. Maguire allocated only 8.7 hours to dealing with the Delaware Department of Labor and the EEOC. D.I. 89, at Exh. 2. In the Court's opinion, the hours other than the 8.7 hours spent dealing with administrative agencies were hours reasonably spent by an attorney investigating his case and conferring with his opponent before crafting a complaint. Moreover, Martin Chevrolet's position that work spent "in administrative posture" is not recoverable under the attorneys' fee statute is contrary to Supreme Court case law, and is therefore meritless. In New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63 (1980), the Court held, in the context of Title VII, that attorneys' fees were available for work done at the state administrative level. While the rationale of the case was based in part on the language permitting a prevailing party to recover attorneys' fees in "an action or proceeding under this Title," see id. at 62, the Court does not believe the holding is intended to be limited to administrative work that culminates in an administrative hearing. As the Supreme Court noted, Title VII requires initial resort to state and federal administrative agencies before proceeding to court. See id. at 61-65 (outlining in detail the complex interplay among state and local agencies, the EEOC and the judicial system in the Title VII scheme). Contact with these administrative agencies may take many forms-from the informal conference to a more formal hearing. Indeed, the Supreme Court has upheld the award of attorneys' fees even for time spent submitting comments in administrative, non-mandatory, non-adversarial rulemaking proceedings where counsel might further or protect their client's position. See

Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 561 (1986). In any event, a rule denying attorneys' fees to Title VII plaintiffs for work performed at the administrative level "would force the complainant to bear the costs of mandatory state and local proceedings and thereby would inhibit the enforcement of meritorious discrimination claims." Id. at 63.FN6 Accordingly, the Court will not deny attorneys' fees based on work performed at the administrative level.

FN6. The Court recognizes the holding of Carey has been limited by subsequent Supreme Court cases. See, e.g., North Carolina Department of Transportation v. Crest Street Community Council, 579 U.S. 6 (1986); Webb v. Dyer County Bd. of Education, 471 U.S. 234 (1985). However, the Court believes the narrowest holding of Carey that attorneys' fees are available for work in the state administrative setting as required by Title VII survives. See Crest Street, 479 U.S. at 15 ("A court hearing on one of the civil rights claims covered by [42 U.S.C.] § 1988 may still award attorneys' fees for time spent on administrative proceedings to enforce the civil rights claim prior to the litigation. See Carey, supra (so holding under identical language of Title VII)."). *4 Martin Chevrolet also argues that Maguire's portion of the billing petition should be rejected because it is inadequately detailed and insufficiently specific. The Court disagrees. The Third Circuit Court of Appeals has stated that "specificity should only be required to the extent necessary for the district court `to determine if the hours claimed are unreasonable for the work performed." ' Washington, 89 F.3d at 1037 (quoting Rode, 892 F.2d at 1190 (citing Pawlak v. Greeenwalt, 713 F.2d 972, 978 (3d Cir.1983))). Maguire's billing statement includes entries for an initial interview with client, an interview with the Delaware Department of Labor, witness interviews, communications with the DDOL, the EEOC and defense counsel, preparation of

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the complaint and review of the answer, which total 34.25 hours. These entries are sufficiently detailed and specific for this court to determine that these hours were reasonably spent commencing a Title VII lawsuit. In conclusion, the Court fines the hourly rates as well as the hours spent were reasonable. Plaintiff's fee petition will be granted. An appropriate order will issue. D.Del.,1998. Ballen v. Martin Chevrolet-Buick of Delaware Not Reported in F.Supp., 1998 WL 1013874 (D.Del.) Briefs and Other Related Documents (Back to top) · 1:94cv00484 (Docket) (Sep. 26, 1994) END OF DOCUMENT

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Briefs and Other Related Documents Only the Westlaw citation is currently available. United States District Court, D. Delaware. Ernest O. FINI, Jr., Plaintiff, v. REMINGTON ARMS COMPANY, INC., Defendant. No. Civ.A. 97-12-SLR. Sept. 24, 1999.

connection with the latter. Defendant has filed motions to alter or amend the judgment and for judgment as a matter of law on the breach of the covenant of good faith and fair dealing claim and the promissory estoppel claim. (D.I.108, 109, 110) For his part, plaintiff has filed motions for attorneys' fees and costs, as well as motions relating to the amount of monetary damages to be paid by defendant. (D.I.111, 112, 119, 124) Each of these motions shall be addressed seriatim.

Thomas Stephen Neuberger, of Wilmington, Delaware, and William J. Rodgers, John P. Lohrer, and Christopher P. Edelson, of Collier, Shannon, Rill & Scott, PLLC, Washington, D.C., for plaintiff. Kathleen Furey McDonough, and Jennifer Gimler Brady, of Potter Anderson & Corroon, LLP, Wilmington, Delaware, and Allan L. Shackelford, and Alexander L. Maultsby, of Smith Helms Mulliss & Moore, L.L.P., Greensboro, North Carolina, for defendant. MEMORANDUM OPINION ROBINSON, J. I. INTRODUCTION *1 Pending before the court are various motions filed by the parties post trial. The jury returned a verdict in favor of plaintiff Ernest O. Fini, Jr., finding that defendant Remington Arms Company, Inc. willfully discriminated against plaintiff because of his age and awarding plaintiff $135,503 for lost earnings, $323,132 for future lost earnings, and $263,733 for lost pension benefits. The jury also found that plaintiff proved the elements of his claims for promissory estoppel and breach of the covenant of good faith and fair dealing. Plaintiff was awarded $722,368 in connection with the former and $577,895 in

II. DEFENDANT'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW ON PLAINTIFF'S PROMISSORY ESTOPPEL CLAIM A. Standard of Review

In order to prevail on a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50, the moving party must prove that there is insufficient evidence upon which a reasonable jury could properly base its verdict, viewing the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in favor of the non-movant. See Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 269-70 (3d Cir.1995). In making such a determination, "the court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version." While a "scintilla of evidence is not enough to sustain a verdict of liability," the question is "whether there is enough evidence upon which the jury could properly find a verdict for that party." Id. (citing Lightning Lube, Inc. v. Witco Co., 4 F.3d 1153, 1166 (3d Cir.1993)).

B. Discussion

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The elements of a promissory estoppel claim require evidence that: (1) a promise was made; (2) the promisor reasonably expected to induce action or forbearance on the part of the promisee; (3) the promisee in fact relied on the promise and took action to his detriment; and (4) the only way to avoid injustice is to enforce the promise and make it binding. See Hunter v. Diocese of Wilmington, C.A. No. 961-Kent, 1987 WL 15555, at *6 (Del. Ch. Aug. 4, 1987) (citing Chrysler Corp. v. Quimby, 144 A.2d 123 (Del.1958)). As to the first element, in the absence of "evidence of falsity or fraud," "[m]ere expressions of opinion, expectation or assumption are insufficient.... [Rather, p]romissory form is required...." Reeder v. Sanford Sch., Inc., 397 A.2d 139, 141 (Del.Super.1979); accord Peterson v. Beebe Med. Ctr., Inc., C.A. No. 91C-07-147, 1992 WL 354087, at *4 (Del.Super.Nov. 13, 1992). As to the third element, plaintiff must prove that his reliance was "reasonable." Keating v. Board of Educ., C.A. No. 12589, 1993 WL 460527, at *4 (Del. Ch. Nov. 3, 1993). A plaintiff must prove all four elements of promissory estoppel "by clear and convincing evidence." Id.; accord Reeder, 397 A.2d at 141. *2 The sole evidence of record cited by plaintiff is his trial testimony as follows: Q. In September of 1995, were you ever on a trip with Tommy Millner? A. Yes, sir. Q. And was there one or more of those trips in September of '95? A. In terms of leaving the state of Delaware or getting away from the corporation any significant distance, there was one trip. Q. And where was that to? A. It was to outside of New Haven, Connecticut. Q. And during that trip, did you have any discussion with Tommy Millner about your position in the Remington Arms Company? A. Yes, sir. Q. And would you please describe or tell the jury, not describe to them, tell the jury where that occurred and what was said? A. Art Wheaton, the vice president, Tommy Millner,

and myself had traveled to upstate Connecticut to meet with a writer who was going to do a book on the history of the Remington Arms Company. And I had driven to Connecticut and then met with them there and traveled to the writer's with them and back to [the] New Haven Airport. While we were in the airport, a number of subjects were discussed just casually, and mentioned to Mr. Millner now that it was known that we were moving, how my people were faring, myself included, with regard to the move. And Tommy again was most complimentary and said that everything was fine, all the recommendations I had made had gone forward, and that all my people, myself included, were being, would be asked and receive a letter to go to North Carolina. Q. When you referred to your people, you were referring to whom? A. My entire organization of the direct reports to me. Not the nonexempt or the hourly wage, they knew they would not be invited, it was not a good business practice. But all the exempts in my group were to be making the trip. Myself, according to Mr. Millner, myself included. (D.I. 123 at 39-40) (emphasis added). Plaintiff further testified that he relied to his detriment on this conversation, as follows:Q. Now, between that period of time between the conversation you had with Tommy Millner, the president of Remington, [at] the New Haven Airport and the conversation you had with Mr. Haskins on October 6, 1995, you did not turn down any job offers with any other company, did you? A. No. Q. And, in fact, during that period of time, you weren't aware of any open jobs with any other company, were you, that you hadA. Yes, I was. Q. And what job was that? A. Browning. Q. And is that the job that you talked with Mr. Moser about or the job that you talked with someone else about? A. The job that Mr. Forson took. Q. But during that period of time, you did not, in fact, receive and refuse any sort of job offer from the-

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A. No, sir. (D.I. 123 at 116) This testimony on cross-examination follows from his direct examination:Q. Mr. Fini, do you know a Mr. William Forson? A. Yes, sir. Q. Do you know where Mr. Forson works? *3 A. He currently works for Browning FN. Q. Say that again? A. Browning FN. It is a division of Kiot, which owns the Browning USA Firearms Company. They have a law enforcement division which is in South Carolina. Q. Did you ever have any conversations with Mr. Forson about your potential employment at Browning? A. Yes, sir. Q. Would you tell the jury about those conversations? A. Mr. Forson was leaving the Remington Arms Company and had secured a position at Browning, Browning USA at that time, in Utah, and he was moving there. And I asked of him if there were any positions available at that time, this was around October, early October. Q. Of what year? A. Of 1995. And Bill informed me that there were no positions currently available, that he had filled the last one. (D.I. 123 at 75-6) According to his trial testimony, Mr. Millner does not recall either the trip or the conversation he allegedly had with plaintiff on or about September 25, 1995. (D.I. 118 at 26) The evidence of record demonstrates that the decision to eliminate plaintiff's position was made by Robert Haskin, a decision that was communicated to plaintiff on or about October 6, 1995. (D.I. 114 at 19; D.I. 118 at 24-5, 153-54, 162; D.I. 123 at 47, 56, 74, 115) The court concludes that, even when the evidence is viewed in the light most favorable to plaintiff and all reasonable inferences are drawn in favor of plaintiff, there is insufficient evidence of record upon which a reasonable jury properly could have found that plaintiff proved by clear and convincing evidence the elements

of promissory estoppel. First, there is no allegation that the alleged promisor, Mr. Millner, acted with falsity or fraud; therefore, promissory form was required. Accepting plaintiff's testimony for what it is, at best plaintiff has proved that, in a casual setting, Mr. Millner believed or expected that all of plaintiff's people, including plaintiff, would be invited to North Carolina. Even if plaintiff's recollection and characterization of the conversation were accepted as true, there is absolutely no evidence that Mr. Millner "reasonably expected to induce action or forbearance" on plaintiff's part by this statement. Again, even if the court were to assume such motivation on Mr. Millner's part, there is no evidence of any job openings plaintiff could have pursued during the eleven (11) days between the September 25 conversation and the October 6 termination. The mere possibility that there could have been job openings for plaintiff to pursue cannot rise to the level of reasonable, detrimental reliance contemplated under Delaware case law.FN1 Finally, given plaintiff's inconsistent postures vis-a-vis his willingness to relocate to maintain employment, the court finds the aura of injustice under the facts of record less than compelling.

FN1. See, e.g., Keating, 1993 WL 460527, at * 5-6, where the promisor made multiple, specific representations regarding continued employment and the promisor purchased a car in reliance on the promise of future employment. III. DEFENDANT'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW ON PLAINTIFF'S COVENANT OF GOOD FAITH AND FAIR DEALING CLAIM A. Standard of Review

*4 The standard of review for this motion has been adequately addressed above, in connection with plaintiff's promissory estoppel claim.

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B. Discussion In Delaware, there is a "heavy presumption that a contract for employment, unless otherwise expressly stated, is at-will in nature, with duration indefinite." E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 440 (Del.1996). Even with the at-will presumption, "every employment contract, including an at-will contract, contains an implied covenant of good faith and fair dealing" which may be applied in four narrowly defined categories, where: (1) the termination violated public policy; (2) the employer misrepresented an important fact and the employees relied "thereon either to accept a new position or remain in a present one"; (3) the employer used its superior bargaining power to deprive an employee of clearly identifiable compensation related to the employee's past service; or (4) the employer falsified or manipulated a record to create fictitious grounds to terminate the employee. Layfield v. Beebe Med. Ctr., Inc., C.A. No. 95C-12-007, 1997 WL 716900, at * 3-4 (Del.Super. July 18, 1997) (quoting Pressman, 679 A.2d at 442-44). The Delaware Supreme Court has explained in this regard that "[d]islike, hatred or ill will, alone, cannot be the basis for a cause of action for termination of an at-will employment." Pressman, 679 A.2d at 444. Rather, in order to claim a breach of the covenant, the employer's conduct "must constitute `an aspect of fraud, deceit or misrepresentation." ' Layfield, 1997 WL 716900, at *4 (quoting Pressman, 679 A.2d at 440). In the case at bar, plaintiff grounded his breach of the covenant claim on the same evidence relied upon to support his promissory estoppel claim, that is, "that Mr. Millner misrepresented to [plaintiff] that he [ (plaintiff) ] would be invited to move to North Carolina." (D.I. 134 at 10) Plaintiff cites to Broksky v. Hercules, Inc., 966 F.Supp. 1337 (D.Del.1997), for the proposition that the covenant of good faith and fair dealing applies "when `the employer misrepresent[s] some important fact, most often the employer's present intentions, and the employee relies thereon either to accept a new position or remain in a present one." ' Id.

at 1351 (quoting Pressman, 679 A.2d at 442). The court in Brodsky goes on to explain, however, that this exception is applicable only when "the employer ... make[s] a misrepresentation which is targeted to ensnare a specific employee and alter in some way his status as an at-will employee." Id. As explained in the preceding discussion, there is no evidence of record that Mr. Millner intentionally used deceptive words to specifically ensnare plaintiff to continue his employment to his detriment. Indeed, there is no direct evidence linking Mr. Millner's conversation with Mr. Haskin's decision at all. Even if the court accepts plaintiff's recollection and characterization of Mr. Millner's alleged conversation, there is no evidence of record to support the requirement that, as a result of the conversation, plaintiff's status as an at-will employee was altered. See id. at 1351-52 and the cases discussed