Jadwin v. County of Kern, et al., No. 1:2007cv00026 - Document 408 (E.D. Cal. 2010)
Court Description: Memorandum Decision and Order DENYING Plaintiff's motion for additional findings of fact and conclusions of law 399 , signed by Judge Oliver W. Wanger on 03/31/10. (Coffman, L)
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1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 DAVID F. JADWIN, D.O., Plaintiff, 5 v. 6 7 COUNTY OF KERN, 9 I. 10 12 13 14 15 16 17 MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF S MOTION FOR ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW (Doc. 399) Defendant. 8 11 07-CV 0026-OWW-DLB Before the ( Plaintiff ) court motion conclusions of law. INTRODUCTION is Plaintiff for David additional F. Jadwin, findings of D.O. s, fact and Plaintiff requests an award of liquidated damages under the Family and Medical Leave Act ( FMLA ) and prejudgment interest. The County of Kern ( County ) opposes the motion. The following background facts are taken from the parties submissions in connection with the motion and other documents on file in this case.1 18 19 20 21 22 23 24 II. A. BACKGROUND Procedural Background In this employment case, Plaintiff submitted several of his claims to a jury. favor of Plaintiff. On June 8, 2009, the jury returned verdicts in By stipulation, certain of Plaintiff s claims were not submitted to the jury for determination. Instead, as to 25 26 27 28 1 In connection with his motion, Plaintiff requests judicial notice of various documents on file in this case such as, among others, the operative complaint. (Doc. 400). Judicial notice is taken of the existence of these documents. 1 1 these claims, the parties agreed that they would be tried by the 2 court sitting without a jury. 3 and Conclusions of Law were issued on these claims. 4 Plaintiff filed his motion for additional findings of fact and 5 conclusions 6 determinations 7 addressed. 1. 8 law. made Because by the Plaintiff s jury, the jury Subsequently, motion involves findings must a. Claims At trial, Plaintiff presented five claims to the jury. 10 be Jury Trial 9 11 of On August 4, 2009, Findings of Fact As to each, for the most part, the jury found in Plaintiff s favor. i. 12 Oppositional Retaliation-FMLA/FEHA 13 The first claim the jury determined was Plaintiff s claim for 14 retaliation under the FMLA and the California Fair Employment and 15 Housing Act ( FEHA ) on the theory that Plaintiff engaged in 16 oppositional 17 management and, as a consequence, the County retaliated against 18 him. 19 against 20 discrimination, harassment or retaliation; (b) filing a charge with 21 the Department of Fair Employment and Housing; (c) filing a lawsuit 22 containing claims based on the 23 containing claims based on the 24 ( CFRA )2; and (e) filing a lawsuit containing claims based on the 25 FMLA. (Doc. 384 at 2.) 26 separately whether the retaliation for filing a lawsuit containing activity against the Medical Center On this claim, the jury found that the County retaliated Plaintiff for: (a) complaining FEHA; 2 (d) California internally filing Family a about lawsuit Rights Act On the verdict form, the jury was asked 27 28 County/Kern The CFRA is part of the FEHA. 2 1 claims based on the FMLA was willful, and the jury answered the 2 question yes. (Id. at 3.) 3 was defined as meaning that the County failed to act in good faith 4 and lacked reasonable grounds to believe that its actions complied 5 with the FMLA. (Doc. 386 at 17.) In the jury instructions, willful 6 As for the acts of retaliation, the jury determined that the 7 County engaged in retaliation by: (a) removing Plaintiff from his 8 position as Chair of the Pathology Department (at Kern Medical 9 Center); (b) creating a hostile work environment for Plaintiff; (c) 10 failing to renew his employment contract; and (d) placing Plaintiff 11 on paid administrative leave on December 7, 2006. (Doc. 384 at 4.) 12 The jury determined that Plaintiff s engagement in oppositional 13 activity was a motivating reason behind the County s retaliatory 14 actions. (Id. at 5.) 15 by 16 retaliatory conduct was a substantial factor in causing Plaintiff 17 harm or damage. (Id. at 6-7.) the County s 19 retaliatory ii. 18 The jury also found that Plaintiff was harmed conduct, and that the County s Medical Leave Retaliation-FMLA/CFRA On his second claim for retaliation for taking medical leave 20 under the FMLA or CFRA, the jury concluded that the County 21 retaliated against Plaintiff, i.e., took adverse employment action 22 against Plaintiff, by: (a) creating a hostile work environment for 23 Plaintiff; (b) removing him from his position as Chair of Pathology 24 at KMC; and (c) failing to renew his employment contract. (Doc. 384 25 at 8.) 26 under the FMLA was willful, and the jury answered yes. (Id.) 27 As to whether Plaintiff s taking of medical leave was a motivating 28 reason for any of the adverse employment actions identified The jury was separately asked whether any such retaliation 3 1 above, the 2 retaliatory conduct caused Plaintiff harm or damage, and that the 3 County s retaliatory conduct was a substantial factor in causing 4 Plaintiff harm or damage. (Id. at 9-11.) answered yes and found that the County s iii. Disability Discrimination-FEHA 5 6 jury Plaintiff s third claim was for discrimination based on a 7 mental disability (chronic depression). The jury concluded that 8 the County discriminated against Plaintiff based on his mental 9 disability by, among other things, removing him from his position 10 as Chair of the Pathology Department. (Doc. 384 at 14-15.) 11 jury determined that Plaintiff was harmed by the discrimination, 12 and that such discrimination was a substantial factor in causing 13 Plaintiff harm or damage. (Id. at 16-17.) iv. 14 15 The Failure To Make Reasonable Accommodation-FEHA Plaintiff s fourth was the disability failed to 17 depression). 18 had a mental condition (chronic depression) that limited his 19 ability to work full time and that County failed to provide 20 Plaintiff with a reasonable accommodation. (Doc. 384 at 18-19.) 21 The jury also determined that Plaintiff was harmed by the County s 22 failure to provide a reasonable accommodation, and that the failure 23 to provide a reasonable accommodation was a substantial factor in 24 causing Plaintiff harm or damage. (Id. at 20-21.) v. mental County reasonably 25 Plaintiff s that 16 26 accommodate claim (chronic The jury found that the County knew that Plaintiff Failure To Engage In An Interactive Process-FEHA Finally, the jury determined whether the County failed to 27 engage in an interactive process 28 concluded that Plaintiff had a mental disability that was known by 4 with Plaintiff. The jury 1 the County, 2 interactive process, and the County failed to participate in a 3 timely good-faith interactive process with Plaintiff to determine 4 whether 5 disability. (Doc. 384 at 22, 24-25.) 6 County s failure to participate in an interactive process with 7 Plaintiff harmed Plaintiff and was a substantial factor in causing 8 harm or damage. (Id. at 26-27.)3 a b. 9 that Plaintiff reasonable was willing accommodation to could participate be made in for an his The jury concluded that the Damages 10 As to damages, the jury made the following award: 11 If you have found that any discrimination or retaliation by Kern County was the cause of damage to Dr. Jadwin on any of his claims, what damages do you award? 12 13 Mental and emotional distress and suffering. $0.00 14 15 Reasonable value of necessary medical care, treatment, and services received to the present time. $30,192.00 16 17 18 19 20 21 22 Reasonable value of necessary medical care, treatment and services which with reasonable probability will be required in the future. $0.00 Reasonable value of earnings and professional fees lost to the present time. $321.285.00 Reasonable value of earnings and professional fees which with reasonable probability will be lost in the future. $154,080.00 23 Total damages. $505,457.00 24 25 3 26 27 28 The jury found against the County on its defense that Plaintiff s employment contract was not renewed by reason of Plaintiff s conduct and alleged violation of the employer s rules and contract requirements and/or that Plaintiff s behavior was the cause of the nonrenewal of his contract. 5 1 (Doc. 384 at 29.) On June 18, 2009, a Partial Judgment On 2 Verdicts Of Trial Jury (hereafter Partial Judgment ) was entered 3 in favor of Plaintiff and against the County in the amount of 4 $505,457. (Doc. 389.) 5 2. 6 On June 19, 2009, after the Partial Judgment was entered, the 7 parties filed their briefing as to claims which the parties agreed 8 were to be tried by the court sitting without a jury. 9 to be decided by the court without a jury included Plaintiff s 10 claim for interference with his rights under the FMLA/CFRA and a 11 deprivation of Plaintiff s due process rights under the Fourteenth 12 Amendment (made actionable via 42 U.S.C. § 1983). 13 his FMLA/CFRA claim, Plaintiff contended that the County interfered 14 with (or violated) his rights under the FMLA/CFRA by: (i) requiring 15 him to take more FMLA/CFRA leave than medically necessary to 16 address the circumstance that precipitated his need for leave 17 (i.e., that the County required Plaintiff to take full-time leave 18 instead of extending Plaintiff's reduced work schedule leave); and 19 (ii) mislabeling some of his medical leave as "personal necessity 20 leave" instead of properly designating it FMLA/CFRA leave. 21 respect to the Fourteenth Amendment, Plaintiff claimed that his 22 placement on administrative leave with pay deprived him of property 23 without due process in violation of the Fourteenth Amendment. 24 Plaintiff requested injunctive relief with respect to his FMLA/CFRA 25 claim and damages with respect to his due process claim. 26 Bench Trial The claims With respect to With On August 8, 2009, Findings of Facts and Conclusions of Law 27 were issued on the submitted claims. 28 injunctive relief, it was determined that Plaintiff lacked standing 6 As to the FMLA/CFRA claim for 1 to assert his claim or, assuming standing existed at the time of 2 the operative pleading, the claim had become moot. 3 procedural due process claim, it was determined that Plaintiff s 4 due 5 recovery, Plaintiff was awarded only nominal damages.4 6 B. process rights were violated. However, to As to the avoid double Plaintiff s Motion 7 1. 8 On August 10, 2009, Plaintiff filed his motion for additional 9 Liquidated Damages And Prejudgment Interest findings of fact and conclusions of law. In his motion, Plaintiff 10 ultimately requests that the court enter a judgment for Plaintiff 11 for FMLA liquidated damages in the amount of Plaintiff s economic 12 damages of $505,457.00 [the total sum of the jury award], plus pre- 13 judgment interest . . . . (Doc. 399 at 9.) 14 Plaintiff requests that certain additional findings of fact and 15 conclusions of law be made. 16 proposes that the court find as follows: 17 18 19 20 21 22 To reach this result, As to findings of fact, Plaintiff 1. Defendant County was at all relevant times aware of the prohibitions against retaliation contained in FMLA. This was established at trial by the testimony of numerous key officers of Kern Medical Center, as well as by deposition testimony excerpts that were read into the record. 2. Per the jury s verdicts, Defendant County retaliated against Plaintiff for engaging in certain oppositional activities in violation of FMLA. See Doc. 384, p. 2. 23 3. Per the jury s verdicts, such retaliation was willful. See Doc. 384, p. 3. 24 4. Per the jury s verdicts, Defendant County retaliated 25 4 26 27 The jury had already determined, in the jury trial portion of the case, that Plaintiff was harmed by his placement on paid administrative leave. The jury awarded Plaintiff as much damages for this harm as the jury determined was warranted. 28 7 1 against Plaintiff for taking medical leave under FMLA. See Doc. 384, p. 8. 2 3 5. Per the jury s verdicts, such retaliation was willful. See Doc. 384, p. 8. 4 . . . . 5 As to the conclusions of law, Plaintiff proposes that the court 6 conclude: 7 8 9 10 11 12 13 14 15 16 17 18 19 1. Defendant County s retaliations against Plaintiff, in violation of FMLA, for complaining internally about medical leave retaliation and filing a lawsuit containing claims based on FMLA, were willful within the meaning of FMLA, justifying an award of liquidated damages. Defendant County did not meet its substantial burden of proof to show that its violations of FMLA were in good faith and based on reasonable grounds, and therefore failed to overcome the strong presumption in favor of awarding liquidated damages under FMLA. 2. Defendant County s retaliations against Plaintiff, in violation of FMLA, for taking medical leave were willful within the meaning of FMLA, justifying an award of liquidated damages. Defendant County did not meet its substantial burden of proof to show that its violations of FMLA were in good faith and based on reasonable grounds, and therefore failed to overcome the strong presumption in favor of awarding liquidated damages under FMLA. 3. Plaintiff is entitled as a matter of law to prejudgment interest from the date the right to recover vested. 21 4. Plaintiff is entitled to recovery of liquidated damages under FMLA in an amount equal to Plaintiff s economic damages plus pre-judgment interest at the prevailing California rate of 10%. 22 The County objects to Plaintiff s request for liquidated damages 23 under the FMLA on numerous grounds, procedural and substantive. As 24 to the former, the County contends that Plaintiff s motion was 25 untimely filed. 26 damages awarded by the jury are not eligible for inclusion in an 27 FMLA liquidated damages calculation. 28 no liquidated damages can be awarded in any event under the FMLA 20 As to the latter, the County argues that certain 8 The County also argues that 1 because Plaintiff advanced multiple non-FMLA theories of liability 2 and the general jury verdict did not specify which damages were 3 caused by the FMLA violations. 4 specifically address Plaintiff's request for prejudgment interest. The County's opposition does not 5 2. Additional Briefing 6 Plaintiff s motion was unaccompanied by a notice of motion 7 requesting a hearing date, and in his briefing, Plaintiff did not 8 otherwise request a hearing. 9 opposition deadline was set by minute order. With no hearing date requested, an After Plaintiff s 10 motion was received, a minute order was entered that required 11 [a]ny opposition to be submitted by August 25, 2009. (Doc. 402.) 12 The County timely filed its opposition on August 25, 2009. 13 however, did not end the briefing. That, 14 Even though the minute order did not authorize or set a 15 deadline for a reply brief, Plaintiff filed a reply on August 31, 16 2009. 17 first time, an extraordinary and fundamental defect in Plaintiff s 18 case, the County later filed a Special Supplemental Memorandum In 19 Opposition To Plaintiff s Reply Memorandum. 20 with a Sur-Reply To Defendant s Special Supplemental Memorandum In 21 Opposition To Plaintiff s Reply Memorandum. 22 was submitted. Believing that Plaintiff s reply brief exposed, for the Although 23 no further briefing beyond Plaintiff rejoined No further briefing an opposition was 24 authorized by the court, given that both parties went beyond what 25 was 26 additional briefs, discretion is exercised to consider the entirety 27 of the briefing to the extent it is helpful to resolving the issues ordered and neither sought 28 9 court approval to file their 1 before the court and in the interests of justice.5 2 III. 3 4 5 A. DISCUSSION AND ANALYSIS Preliminary Procedural Matter Timeliness In the briefing, Plaintiff claims to be moving under Rule 6 52(b) for additional findings of fact and conclusions of law. 7 the time Plaintiff s motion was filed, that section provided as 8 follows: 9 10 11 At On a party's motion filed no later than 10 days after the entry of judgment, the court may amend its findings--or make additional findings--and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59. 12 Fed. R. Civ. P. 52(b). 13 amended. 14 must be filed from no later than 10 days to no later than 28 days 15 after the entry of judgment. 16 The Effective December 1, 2009, Rule 52(b) was The amendment changed only the time by which the motion County argues that the judgment applicable to 17 Plaintiff s motion, i.e., the judgment Plaintiff really seeks to 18 add to or amend, is the Partial Judgment entered on June 18, 2009. 19 According to the County, Plaintiff had until 10 days after entry of 20 the Partial Judgment on the jury s verdicts to file his motion 21 under Rule 52(b).6 Plaintiff, however, waited until seven weeks 22 5 23 24 25 26 27 28 In expected. the future, faithful 6 adherence to court orders is The County claims that the applicable 10-day deadline to file Plaintiff s 52(b) motion is set forth in Rule 54(d). (Doc. 403 at 2.) This may be a typo, but if not, the County s contention is plainly erroneous. Rule 52(b), on its face, supplies the applicable deadline 10 days under the old version of the rule, 28 days under the new version. Accordingly, there is no need, and it is improper, to resort to Rule 54(d) to determine the deadline by 10 1 after to file his motion, i.e., until August 10, 2009. On the 2 County s reasoning, even if amended Rule 52(b) and its new 28-day 3 time period applied, Plaintiff s motion, having been filed seven 4 weeks after the Partial Judgment, would still be untimely. In response, Plaintiff argues that the time period did not, 5 6 and cannot, begin to run from the Partial Judgment. According to 7 Plaintiff, the Partial Judgment did not constitute a judgment 8 under Rule 52(b) and thus did not trigger Rule 52(b). 9 argument is confusing because, based on Plaintiff s logic, the 10 Findings of Fact and Conclusions of Law, which adjudicated less 11 than all the claims in the case, would also not constitute a 12 judgment and would not trigger Rule 52(b). 13 argument and apart from whether Plaintiff s motion was timely under 14 Rule 52(b), a review of the substance of Plaintiff s motion reveals 15 that it cannot be brought under Rule 52(b). Plaintiff s Apart from this 16 Rule 52 applies only to actions tried without a jury or with 17 an advisory jury. Fed. R. Civ. P. 52(a); see also Torres v. City 18 of 19 (concluding, in a civil rights case, that Rule 52 did not apply 20 because the "case was being tried to a jury" and thus the district 21 court should not have issued findings of fact and conclusions of 22 law under Rule 52 in response to a Rule 50(a) motion raising a 23 qualified immunity defense); Tsai v. Rosenthal, 297 F.2d 614, 618 24 (8th Cir. 1961) ( Rule 52 applies only to . . . actions tried to a 25 court without jury. ). Los Angeles, 548 F.3d 1197, 1205 n.5 (9th Cir. 2008) Plaintiff s motion, however, cannot be 26 27 28 which to file a Rule 52(b) motion. Even if Rule 54(d) had any applicability (which it does not), there is no 10-day time limit mentioned in Rule 54(d). 11 1 regarded as requesting a mere addition to or amendment of the 2 Findings of Fact and Conclusions of Law entered in the bench trial 3 portion of this case. 4 substance, an attempt to supplement or augment the judgment entered 5 on the jury s verdicts, i.e., to amend the Partial Judgment. To the contrary, Plaintiff s motion is, in 6 The bench trial portion of this case addressed Plaintiff s 7 FMLA/CFRA interference claim for injunctive relief and Plaintiff s 8 procedural due process claim. Only nominal damages were awarded in 9 the bench trial portion of the case, and that was only on 10 Plaintiff s procedural due process claim. 11 additional findings of fact and conclusions of law, however, 12 requests that the damages the jury awarded be augmented pursuant to 13 the 14 pertinent part, the FMLA provides: FMLA s interest and liquidated Plaintiff s motion for damages provisions. 15 Any employer who violates section 2615 of this title shall be liable to any eligible employee affected-- 16 (A) for damages equal to-- 17 18 19 20 21 22 23 24 25 26 27 28 (i) the amount of-(I) any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or (II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks (or 26 weeks, in a case involving leave under section 2612(a)(3) of this title) of wages or salary for the employee; (ii) the interest on the amount described in clause (i) calculated at the prevailing rate; 12 In 1 and 2 (iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and 3 4 5 6 7 8 9 10 (B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion. 11 12 29 U.S.C. § 2617(a)(1)(A)-(B)(emphasis added). 13 for prejudgment interest and liquidated damages under the FMLA is 14 premised on the theory that the damages the jury (not the court) 15 awarded ($505,457) are all attributable to the FMLA violations 16 which the jury (not the court) determined the County had committed. 17 Plaintiff, in substance, seeks to supplement or amend the Partial 18 Judgment entered on the jury s verdicts by adding to it interest 19 and liquidated damages under the FMLA. That Plaintiff's Rule 52(b) 20 motion is tied to the jury s verdicts, and not the bench trial 21 portion of this case, is made pellucid by the fact that there are 22 no FMLA damages in the Findings of Fact and Conclusions of Law from 23 which to compute interest or liquidated damages under the FMLA. 24 Plaintiff request Apart from the FMLA and its interest and liquidated damages 25 provisions, Plaintiff seeks prejudgment 26 supplemental state law damages claims. (Doc. 399 at 7-8.) However, 27 these claims were tried to the jury (not the court). 28 state law claim tried to the court sitting without a jury was 13 interest on his The only 1 Plaintiff s claim under 2 compensatory 3 prejudgment interest can be computed. 4 that Plaintiff s Rule 52(b) motion seeks to augment the Partial 5 Judgment entered on the jury s verdicts awarding damages, not the 6 Findings of Fact and Conclusions of Law issued in the bench trial.7 7 A review of the substance of Plaintiff s motion reveals that 8 Plaintiff is seeking to augment, with interest and additional 9 damages, the Partial Judgment entered on the jury s verdicts, not 10 the Findings of Fact and Conclusions of Law issued in the bench 11 trial. 12 jury or an advisory jury, Plaintiff cannot use Rule 52(b) to alter 13 or amend the Partial Judgment entered on the jury s verdicts. 14 Plaintiff cannot otherwise use Rule 52 to amend the Findings of 15 Fact and Conclusions of Law because the interest and augmented 16 damages Plaintiff seeks arise out of the jury trial portion of this 17 case and the jury s damage awards, not the bench trial or any bench 18 trial damages. 19 Findings of Fact and Conclusions of Law which adds interest and 20 damages to the jury s (not the court s) damage awards. 21 these reasons, Plaintiff s motion is not properly asserted under 22 Rule 52(b). damages the were CFRA for awarded equitable on this relief. claim on No which This further establishes Because Rule 52 applies only to actions tried without a Rule 52(b) does not permit an amendment of the For all 23 7 24 25 26 27 28 Plaintiff s motion does not include any request for prejudgment interest on the nominal damages awarded in the bench trial portion of this case on his procedural due process claim. This is understandable. Prejudgment interest is an element of compensatory damages. See Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 (1989). Nominal damages, by contrast, are not compensatory in nature. They are awarded to vindicate rights. Cummings v. Connell, 402 F.3d 936, 942 (9th Cir. 2005). 14 1 Despite incorrectly labeling his motion as a Rule 52(b) 2 motion, there is authority suggesting that discretion exists to 3 treat Plaintiff s motion as one made under the appropriate rule or 4 source of authority. See Credit Suisse First Boston Corp. v. 5 Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005) (deciding to look 6 beyond the motion s caption to its substance to determine whether 7 it should be treated as a motion under Rule 59 or Rule 54) 8 (internal quotation marks omitted); Craft v. Campbell Soup Co., 177 9 F.3d 1083, 1084 n.4 (9th Cir. 1999) (treating a motion for summary 10 judgment as a de facto motion to compel arbitration), abrogated on 11 other grounds by Circuit City Stores, Inc. v. Adams, 532 U.S. 105 12 (2001); Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 13 n.2 (9th Cir. 1995) (treating a motion to dismiss for lack of 14 jurisdiction as one for failure to state a claim); Monte Vista 15 Lodge v. Guardian 16 Cir. 1967) ( [A] party should not be bound at his peril to give the 17 proper nomenclature for his motion. . . . So long as he makes a 18 timely motion and states the grounds therefor, the court should 19 grant relief appropriate thereto. ). 20 what rule or authority, if any, is Plaintiff s motion properly 21 brought, and is Plaintiff s motion timely? 22 Life Ins. Co. of Am., 384 F.2d 126, 129 (9th The question remains: under Post-trial motions for prejudgment interest are typically 23 governed by Rule 59(e), whether the prejudgment interest is 24 discretionary, Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 25 (1989), or mandatory, McCalla v. Royal MacCabees Life Ins. Co., 369 26 F.3d 1128, 1131 (9th Cir. 2004). See also Adidas Am., Inc. v. 27 Payless Shoesource, Inc., No. 01-1655-KI, 2009 WL 30226, at *7 (D. 28 Or. Feb. 9, 2009). Similarly, Rule 59(e) has been considered the 15 1 proper basis of a post-judgment motion for statutory liquidated 2 damages. See., e.g., Reyher v. Champion, 975 F.2d 483, 489 (8th 3 Cir. 1992) (concluding that Rule 59(e) applied to a post-judgment 4 motion for mandatory liquidated damages under the ADEA). 5 Rule 59(e) in this case, however, is problematic because there is 6 no judgment within the meaning of Rule 59(e) to alter or amend. Applying 7 As explained in Balla v. Idaho State Board of Corrections, 8 Rule 59(e) provides: A motion to alter or amend the judgment shall be served not later than 10 [now 28] days after entry of the judgment. Fed. R. Civ. P. 59(e) (emphasis added). Rule 59(e) clearly contemplates entry of judgment as a predicate to any motion. Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 812 (9th Cir. 1981) ( Stephenson ), overruled in part on other grounds, In re Washington Public Power Supply System Securities Litigation, 823 F.2d 1349, 1350-52, 1358 (9th Cir. 1987) (en banc). 9 10 11 12 13 14 15 16 17 18 19 20 21 The word judgment as used in the Federal Rules of Civil Procedure is defined in Rule 54(a). A judgment includes a decree and any order from which an appeal lies. Fed. R. Civ. P. 54(a). Thus, the word judgment encompasses final judgments and appealable interlocutory orders. As we stated in Stephenson, the requirement of a judgment as a prerequisite to moving for reconsideration under Rule 59(e) protects against the specter of piecemeal review. Stephenson, 652 F.2d at 812. This is so because the denial of a Rule 59(e) motion is itself a final, appealable judgment. In Stephenson, we observed that were we to permit Rule 59(e) motions without entry of judgment, litigants could obtain appellate review of partial judgments by simply appealing a Rule 59(e) order, completely bypassing the requirements of Rule 54(b) and 28 U.S.C. § 1291. 652 F.2d at 812. 22 869 F.2d 461, 466-67 (9th Cir. 1989) (citations omitted). 23 the Partial Judgment entered on the jury s verdicts was not a final 24 judgment 25 Judgement itself states that final judgment shall be entered 26 after the conclusion of the bench trial portion of the case. (Doc. 27 389 at 2.) or an appealable interlocutory Under Rule 54(b): 28 16 order. The Here, Partial 1 2 3 4 5 6 7 When an action presents more than one claim for relief--whether as a claim, counterclaim, crossclaim, or third-party claim--or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities. 8 No party requested certification of the Partial Judgment under Rule 9 54(b), nor did the court determine that final judgment should be 10 entered under Rule 54(b) or that there was no just reason for 11 delay. Because the Partial Judgment entered on the jury s verdicts 12 was not a final judgment or appealable interlocutory order, it was 13 not a judgment under Rule 59(e). 14 supply the appropriate basis for Plaintiff s motion. 15 With respect to non-final Accordingly, Rule 59(e) cannot orders, such as the Partial 16 Judgment, the Ninth Circuit has recognized that [a]s long as a 17 district court has jurisdiction over the case, then it possesses 18 the inherent procedural power to reconsider, rescind, or modify an 19 interlocutory order for cause seen by it to be sufficient. City of 20 Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 21 2001) 22 (emphasis added). 23 law and is not abridged by the Federal Rules of Civil Procedure. 24 Id. at 887. 25 final order, Rule 54(b) authorizes a district court to revise a 26 non-final 27 adjudicating all the claims. Fed. R. Civ. P. 54(b); see also Am. (internal quotation marks omitted) (emphasis removed) This inherent power is grounded in the common In addition to the inherent power to modify a non- order at any time 28 17 before entry of a judgment 1 Cas. Co. of Reading, Pa. v. Kemper, 07-CV-1149-PHX-GMS, 2009 WL 2 1651284, at *2 (D. Ariz. June 12, 2009); Am. Rivers v. NOAA 3 Fisheries, No. CV-04-00061-RE, 2006 WL 1983178, at *2 (D. Or. July 4 14, 2006). 5 interlocutory order at any time before entry of a final judgment. 6 Grunwald, 400 F.3d at 1124 (internal quotation marks omitted). Under Rule 54(b) a district court can modify an 7 The court still has jurisdiction over the case, and a final 8 judgment adjudicating all of Plaintiff s claims has not been 9 entered. Accordingly, whether Plaintiff s motion is treated as 10 appealing to the court s inherent authority to modify a non-final 11 order, or a motion under Rule 54(b), Plaintiff s motion is timely. 12 As to inherent authority, a district court may reconsider and 13 modify an interlocutory 14 sufficient, even in the absence of new evidence or an intervening 15 change in or clarification of controlling law. Abada v. Charles 16 Schwab & Co., Inc., 127 F. Supp. 2d 1101, 1102 (S.D. Cal. 2001); 17 see also Santa Monica Baykeeper, 254 F.3d at 885. 18 should generally leave a previous decision undisturbed absent a 19 showing that it either represented clear error or would work a 20 manifest 21 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 22 (1988)). injustice. decision Abada, 127 F. for any Supp. 2d reason at it deems But a court 1102 (citing 23 Rule 54(b) does not address the standards which a court should 24 apply when assessing a motion to modify an interlocutory order; 25 however, courts look to the standards under Rule 59(e) and Rule 26 60(b) for guidance. See Cal. Dept. of Toxic Substances Control v. 27 Payless Cleaners, No. CIV. S-02-2389, 2007 WL 2712172, at *2 (E.D. 28 Cal. Sept. 14, 2007); Am. Rivers, 2006 WL 1983178, at *2. 18 Under 1 Rule 59(e), it is appropriate to alter or amend a judgment if (1) 2 the district court is presented with newly discovered evidence, (2) 3 the 4 decision that was manifestly unjust, or (3) there is an intervening 5 change in controlling law. United Nat l Ins. Co. v. Spectrum 6 Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009) (internal 7 quotation marks omitted). 8 provide relief from a final judgment, order or proceeding if the 9 moving party can show: (1) mistake, inadvertence, surprise, or district court error or made an initial Rule 60(b) permits a district court to excusable 11 reasonable diligence, could not have been discovered in time to 12 move 13 misrepresentation, or misconduct by an opposing party; (4) the 14 judgment is void; (5) the judgment has been satisfied, released, or 15 discharged; it is based on an earlier judgment that has been 16 reversed or vacated; or applying it prospectively is no longer 17 equitable; or (6) any other reason that justifies relief. Fed. R. 18 Civ. P. 60(b). 21 new trial newly under discovered Rule evidence 59(b); (3) that, fraud . . with . , The following analysis applies these standards. 19 20 a (2) clear 10 for neglect; committed B. FMLA Liquidated Damages With respect to liquidated damages under the FMLA, Plaintiff s 22 motion presents at least two issues. 23 damages the jury awarded are potentially eligible for inclusion in 24 a liquidated damages computation under the FMLA? 25 those 26 liquidated damages under the FMLA? damages 27 1. 28 Under identified, can First, what amount of the Plaintiff Second, with lawfully be awarded Eligible Damages the FMLA, when an employer 19 violates § 2615, the 1 aggrieved employee can recover damages equal to the amount of 2 either: (I) any wages, salary, employment benefits, or other 3 compensation denied or lost to such employee by reason of the 4 violation; or (II) in a case in which wages, salary, employment 5 benefits, or other compensation have not been denied or lost to the 6 employee, any actual monetary losses sustained by the employee as 7 a direct result of the violation, such as the cost of providing 8 care, up to a sum equal to 12 weeks (or 26 weeks, in a case 9 involving leave under section 2612(a)(3) of this title) of wages or 10 salary for the employee. 29 U.S.C. § 2617(a)(1)(A)(i)(I)-(II) 11 (emphasis added). 12 interest. 13 described in clause (i), i.e., on the amount described in either 14 (I) or (II), delineated above. § 2617(a)(1)(A)(ii). The damages figure is then used to compute The employee is entitled to interest on the amount Next, the damages figure and the interest are then combined to 15 16 provide the liquidated damages amount. Under the FMLA, the 17 employee is entitled to an additional amount as liquidated damages 18 equal to the sum of the amount described in clause (i) and the 19 interest described in clause (ii). § 2617(a)(1)(A)(iii). 20 With respect to damages, as the County correctly argues, 21 Plaintiff claims loss of compensation under § 2617(a)(1)(A)(i)(I). 22 Plaintiff claims that his wrongful demotion and wrongful placement 23 on administrative leave resulted in lost compensation on which he 24 presented evidence at trial. (See Doc. 399 at 2.) Plaintiff claims 25 he 26 compensation lost as a result [of the FMLA violations] as well as 27 liquidated damages in an equal amount plus pre-judgment interest. 28 (Doc. 404 at 3.) is entitled to the recovery of lost wages and other Because Plaintiff is claiming wages, salary, 20 1 employment benefits, or other compensation denied or lost to such 2 employee by reason of the [FMLA] violation this case falls under 3 § 2617(a)(1)(A)(i)(I). 4 FMLA damages under § 2617(a)(1)(A)(i)(II), and any damages under 5 this section cannot be used for purposes of computing liquidated 6 damages under the FMLA. As a result, Plaintiff is not entitled to 7 At trial, the jury awarded damages in the amount of $30,192 8 for the [r]easonable value of necessary medical care, treatment, 9 and services received to the present time. This amount is not 10 eligible for inclusion in a liquidated damages computation under 11 the FMLA. Assuming this damage ($30,192) resulted from an FMLA 12 violation, this 13 2617(a)(1)(A)(i)(II), not (I). Because this is a compensation loss 14 case under § 2617(a)(1)(A)(i)(I), the $30,192 awarded for the 15 [r]easonable value of necessary medical care, treatment, and 16 services received to the present time is not recoverable as FMLA 17 damages. type of damage falls, if at all, under § 18 This leaves two amounts the jury awarded that are potentially 19 eligible for inclusion in an FMLA liquidated damages computation. 20 The jury awarded $321.285 for the [r]easonable value of earnings 21 and professional fees lost to the present time and $154,080 for 22 the [r]easonable value of earnings and professional fees which 23 with reasonable probability will be lost in the future. 24 respect to the latter amount, these damages also cannot be included 25 in an FMLA liquidated damages computation. With 26 In February 2010, during the pendency of Plaintiff s motion, 27 the Ninth Circuit decided Traxler v. Multnomah County, __ F.3d __, 28 2010 WL 669251 (9th Cir. Feb. 26, 2010). 21 In Traxler, the court 1 concluded that front pay under the FMLA is not a type of damage 2 that falls under § 2617(a)(1)(A)(i)(I) or (II). 3 of 4 2617(a)(1)(B). Id. at *2-5. 5 that falls under § 2617(a)(1)(B) is not eligible for inclusion in 6 a liquidated damages computation because liquidated damages under 7 the 8 2617(a)(1)(A)(i)(I) or (II). See 29 U.S.C. § 2617(a)(1)(A)(iii). front FMLA pay can is only an equitable accrue remedy Rather, an award available under § An equitable award, like front pay, from an amount awarded under § In his trial brief, Plaintiff stated that he is entitled to 9 10 front pay under the FMLA. (Doc. 325 at 11.) 11 put 12 Stephanie Rizzardi, who testified that she calculated future losses 13 based on the salary and other forms of compensation (such as 14 professional fees) Plaintiff lost by virtue of not having his 15 contract renewed, i.e., what he expected to receive had he remained 16 employed with the County. 17 this loss out to February 2016, Plaintiff s worklife expectancy.8 18 The expert also prepared a damages report, which was submitted into 19 the evidence. (Exhibit No. 451.1-451.6.) 20 Plaintiff s evidence regarding future losses, it is apparent that 21 the $154,080 the jury awarded for the [r]easonable value of 22 earnings and professional fees which with reasonable probability 23 will be lost in the future represents an award of front pay. 24 Accordingly, even assuming it stems from an FMLA violation, the 25 $154,080 amount is not eligible for inclusion in a liquidated on evidence of his future losses At trial, Plaintiff through his economist, Plaintiff s damages expert projected Given the nature of 26 27 28 8 February 2016 is obviously a point in time well beyond the trial in this case. 22 1 damages computation under the FMLA.9 2 2. 3 Under the FMLA, interest and liquidated damages are keyed to 4 the amount of damages under § 2617(a)(1)(A)(i)(I) or (II). Because 5 this is a compensation loss case under § 2617(a)(1)(A)(i)(I), 6 Plaintiff is entitled to interest on any wages, salary, employment 7 benefits, or other compensation denied or lost to such employee by 8 reason of the violation, § 2617(a)(1)(A)(i)(I) (emphasis added). 9 See § Liquidated Damages 2617(a)(1)(A)(ii). Plaintiff is also entitled to an 10 additional amount as liquidated damages equal to the sum of any 11 wages, salary, employment benefits, or other compensation denied or 12 lost 13 2617(a)(1)(A)(i)(I) (emphasis added), and the interest on that 14 amount. See § 2617(a)(1)(A)(iii). to such employee by reason of the violation, § 15 When an employee has been damaged by reason of an FMLA 16 violation, [l]iquidated damages are awarded presumptively to [the] 17 employee . . . unless the employer demonstrates that its violation 18 was in good faith and that it had a reasonable basis for believing 19 that its conduct was not in violation of the FMLA. Cooper v. 20 Fulton County, Ga., 458 F.3d 1282, 1287 (11th Cir. 2006); see also 21 Traxler, 2010 WL 669251 at *5 (stating that an FMLA violation 22 subjects an employer to liquidated damages unless the employer can 23 prove that its employment action was taken in good faith and that 24 it had reasonable grounds for believing that [its action] was not 25 a violation ) (alteration in original) (quoting § 26 27 9 Even if this amount could be included in a liquidated damages computation, this would not change the result. 28 23 1 2617(a)(1)(A)(iii)). Under the statute, whether the employer acted 2 in good faith and had a reasonable basis for believing that its 3 conduct was not in violation of the FMLA are determinations made by 4 the court. See § 2617(a)(1)(A)(iii) (providing that liquidated 5 damages are to be awarded except that, when the employer proves to 6 the satisfaction of the court that the act or omission which 7 violated section 2615 of this title was in good faith and that the 8 employer had reasonable grounds for believing that the act or 9 omission was not a violation of section 2615 of this title, such 10 court may, in the discretion of the court, reduce the amount of the 11 liability . . . . ) (emphasis added). 12 determined 13 meaning, for purposes of trial, that the "County failed to act in 14 good faith and lacked reasonable grounds to believe that its 15 actions complied with the FMLA." (Doc. 386 at 17.) 16 appear that the court has any discretion to depart from these jury 17 determinations. See Morgan v. Family Dollar Stores, Inc., 551 F.3d 18 1233, 1282-83 (11th Cir. 2008); Arban v. West Publ g Corp., 345 19 F.3d 390, 408 (6th Cir. 2003); Brinkman v. Dep t of Corr., 21 F.3d 20 370, 372-73 (10th Cir. 1994). 21 there is no reason to ignore, or to decline to adopt, the jury s 22 determinations. However, regardless of the willful nature of the 23 FMLA violations, the threshold inquiry in this case is whether any 24 damages the jury awarded are damages that occurred by reason of, 25 § 2617(a)(1)(A)(i)(I), an FMLA violation. 26 27 The that County the County s contends FMLA At trial, however, the jury violations were willful, It does not Even if such discretion existed, that Plaintiff is not entitled to liquidated damages under the FMLA because there is no way of 28 24 1 knowing whether 2 $321.285 and the $154,080 amounts)10 represent damages attributable 3 to an FMLA violation. 4 FMLA 5 differentiate its damages and specify whether the damages it 6 awarded were attributable to an FMLA violation or something else. 7 The County s argument is persuasive. theories the of lost compensation the jury awarded (the Plaintiff advanced multiple FMLA and non- liability at trial, and the jury did not 8 The words by reason of are synonymous with because of. See 9 Gross v. FBL Fin. Servs., Inc., __ U.S.__, 129 S. Ct. 2343, 2350 10 (2009). Reviewing the jury instructions and the jury verdict, it 11 cannot be concluded that the damages the jury awarded were because 12 of an FMLA violation. 13 As to damages, the jury was instructed that [i]f you find for 14 the plaintiff on any of the plaintiff s claims, you must determine 15 the plaintiff s damages. 16 damages by a preponderance of the evidence. 17 amount of money that will reasonably and fairly compensate the 18 plaintiff for any injury caused by the defendant. (Doc. 386 at 29) 19 (emphasis 20 pertaining 21 discrimination or retaliation by Kern County was the cause of 22 damage to Dr. Jadwin on any of his claims, what damages do you 23 award. (Doc. 384 at 29) (emphasis added.) 24 the verdict form did not require the jury to specify what amount of 25 damages, if any, was attributable to any FMLA violation. added.) to In damages The plaintiff has the burden of proving the jury states: verdict If you Damages means the form, have the found question that any The instructions and The jury 26 27 10 The County appears to include both amounts in its analysis. 28 25 1 was permitted to award damages on any of Plaintiff s claims based 2 on any discrimination or retaliation FMLA or non-FMLA they 3 found 4 undifferentiated verdict form makes it impossible to determine 5 whether 6 violation or some other non-FMLA violation. caused the Plaintiff damages the damage. jury The awarded use were of based the on general an FMLA 7 In Lilley v. BTM Corp., 958 F.2d 746, 753 (6th Cir. 1992) a 8 jury returned a general verdict in favor of the plaintiff on an age 9 discrimination claim and a retaliatory discharge claim. The jury 10 also reached a general verdict on the issue of willfulness. In 11 reviewing the jury verdict regarding willfulness, the court stated: 12 Since the . . . jury returned a general verdict, it is impossible 13 to determine whether its finding [of willfulness] pertained solely 14 to the retaliatory discharge claim, solely to the discrimination 15 claim, or to both. Id; see also Jones v. Miles, 656 F.2d 103, 106 16 (5th Cir. 1981) ( Because only a general verdict was returned . . 17 . it is impossible to tell which theory of liability was adopted by 18 the jury . . . . ). 19 Similarly here, it is impossible to determine from the general 20 damages verdict form whether the damages the jury awarded pertain 21 solely to an FMLA violation, solely to a non-FMLA violation (e.g., 22 a FEHA violation), or to both. 23 the County s failure to engage in an interactive process with 24 Plaintiff (a FEHA violation), its failure to provide Plaintiff with 25 a 26 discrimination against Plaintiff based on his mental disability 27 (also a FEHA violation), sealed Plaintiff s fate with the County reasonable accommodation The jury could have believed that (a 28 26 FEHA violation), and its 1 and caused the damages which the jury awarded. Given the general 2 verdict, it cannot be ascertained that the damages the jury awarded 3 were because of an FMLA violation. 4 Plaintiff argues that the failure to specifically allocate the 5 damages across Plaintiff s claims is not fatal to his entitlement 6 to liquidated damages. 7 8 9 10 11 12 Plaintiff argues that he has asserted various theories of liability arising from the same set of employment actions. These theories of liability are therefore overlapping and redundant as to the same set of damages arising from the same set of adverse employment actions. In other words, the fact that Plaintiff prevailed on his Medical Leave Retaliation claim, disability discrimination claims, and procedural due process violation claim simply means there are alternative theories of liability for recovering the same damages. To require allocation of damages across redundant and overlapping claims, as Defendants suggests, would be reversible error. 13 (Doc. 404 at 2.) For at least a couple of reasons, Plaintiff s 14 argument is unpersuasive. 15 First, an allocation of damages across redundant and 16 overlapping claims has been and can be done by asking the jury to 17 specify the claims on which they award damages and the amount. For 18 example, in Mangold v. California Public Utilities Commission, 67 19 F.3d 1470, 1477 (9th Cir. 1995), plaintiffs Maurice Crommie and 20 Arthur Mangold pursued redundant and overlapping claims against the 21 California Public Utilities Commission under the ADEA, the FEHA, 22 and California common law. The jury s verdict awarded damages 23 separately under each claim, as follows: 24 25 26 27 ADEA Federal Law Damages: Mr. Crommie Loss of earnings and Benefits: Liquidated $63,460 $63,460 28 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Damages: Mr. Mangold Loss of earnings and Benefits: Liquidated Damages: FEHA State Law Damages: Mr. Crommie Loss of earnings and Benefits: Emotional Distress: Mr. Mangold Loss of earnings and Benefits: Emotional Distress: California Law, Wrongful Employment Action in Violation of Public Policy: Mr. Crommie Loss of earnings and Benefits: Emotional Distress: Mr. Mangold Loss of earnings and Benefits: Emotional Distress: $65,462 $65,462 $63,460 $25,000 $68,590 $30,000 $63,460 $25,000 $68,590 $30,000 15 16 Id. at 1477 (emphasis added). 17 Ninth Circuit noted that since the Plaintiffs could not obtain 18 double recovery, the court entered judgment in favor of Mr. Crommie 19 for $88,460 ($63,460 loss of earnings plus $25,000 emotional 20 distress under FEHA) and $63,460 liquidated damages under ADEA. 21 Similarly, it awarded Mr. Mangold $98,590 ($68,590 loss of earnings 22 plus $30,000 emotional distress under FEHA) and $65,462 liquidated 23 damages under ADEA. Id. at 1478-79. 24 objection to the style of the jury verdict which allocated damages 25 separately across redundant and overlapping claims. 26 27 Similarly, in In discussing the jury verdict, the Farrell v. The Ninth Circuit raised no Tri-County Metropolitan Transportation District, 530 F.3d 1023, 1024 (9th Cir. 2008), 28 28 1 plaintiff Frank Farrell pursued multiple claims under the FMLA and 2 Oregon s Family Leave Act ( OFLA ). 3 were submitted to the jury, the jury awarded plaintiff $1,110 in 4 lost wages specifically under the FMLA. Although FMLA and OFLA claims 5 Here, Plaintiff submitted redundant and overlapping claims to 6 the jury, but the jury did not award damages specifically under the 7 FMLA or the FEHA (or the CFRA). 8 it would have not been reversible error to require the jury to 9 allocate damages 10 claims. Following Ninth Circuit precedent, Plaintiff could have 11 opted for the approach taken in Mangold and Farrell and utilized a 12 verdict form which segregated the damages under each of his claims. 13 The verdict form which Plaintiff requested (Doc. 348 at 122; Doc. 14 377 at 109) and the parties ultimately agreed upon,11 however, did 15 not segregate damages between Plaintiff s claims. 16 under no duty, in this civil case, to sua sponte recommend a 17 different verdict form. across Contrary to what Plaintiff argues, Plaintiff s redundant and overlapping The court was 18 Even though, under the FMLA, there is a presumption in favor 19 of liquidated damages, this presumption only operates when the 20 requisite foundation an award of damages under the FMLA exists. 21 Given the general verdict in this case, whether or to what extent 22 the damages the jury awarded were based on an FMLA violation cannot 23 be determined. In addition, without knowing whether or to what 24 25 11 26 27 In Plaintiff s Sur-Reply, Plaintiff acknowledges that the parties had expressly agreed to use of a single verdict question on the damages and that the County agree[d] to the undifferentiated jury verdict. (Doc. 406 at 1.) 28 29 1 extent 2 violation, any award of liquidated damages under the FMLA runs the 3 risk 4 exclusively awarded on Plaintiff s non-FMLA claims. 5 reasons, Plaintiff s request for an award of liquidated damages 6 under the FMLA cannot be granted. 7 directed to the court s inherent authority to modify a non-final 8 order 9 liquidated damages under the FMLA is DENIED. 10 B. the of or damages the improperly a motion jury doubling under Rule awarded the were amount based the of jury an FMLA may have For these Whether construed as a motion 54(b), Plaintiff s request for Prejudgment Interest 11 Unlike his request for liquidated damages, Plaintiff s request 12 for prejudgment interest applies to all of his claims submitted to 13 the 14 Plaintiffs FMLA claims, 29 U.S.C. § 2617(a)(1)(A)(ii), as well as 15 his state law claims under the FEHA and the CFRA, Cal. Civ. Code § 16 3287(a). 17 on all of Plaintiff s claims submitted to the jury, the fact that 18 the 19 Plaintiff s various claims does not outright preclude an award to 20 Plaintiff 21 prejudgment interest is, however, problematic. 22 jury. jury 1. Under theory, prejudgment interest is available on Because prejudgment interest is theoretically available did for not specifically prejudgment allocate interest. the damages Plaintiff s among request for Prejudgment Interest a. 23 24 In FMLA the FMLA, an employee is entitled to interest, 25 calculated at the prevailing rate, 29 U.S.C. § 2617(a)(1)(A)(ii), 26 on the amount of any wages, salary, employment benefits, or other 27 compensation denied or lost to such employee by reason of the 28 30 1 [FMLA] violation, § 2617(a)(1)(A)(i)(I). See § 2617(a)(1)(A)(ii). 2 The FMLA does not define the term prevailing rate. Several 3 federal as 4 prevailing rate. Finnerty v. Wireless Retail, Inc., No. 2:04-cv- 5 40247, 2009 WL 256855, at *3 (E.D. Mich. Aug. 18, 2009); Thom v. 6 Am. Standard, Inc., No. 3:07 CV 294, 2009 WL 961182, at *6 (N.D. 7 Ohio Apr. 8, 2009); Hite v. Vermeer Mfg. Co., 361 F. Supp. 2d 935, 8 949 (S.D. Iowa 2005), aff d, 446 F.3d 858 (8th Cir. 2006). courts have used state law interest rates the 9 Here, the jury did not specifically allocate the amount of 10 damages attributable to an FMLA violation, making it impossible to 11 select 12 exclusively under the FMLA. 13 interest could be theoretically awarded under the FMLA is the 14 $321.285 the jury awarded for the reasonable value of earnings and 15 professional fees lost to the present time. 16 amounts, 17 2617(a)(1)(A)(i)(I), 18 "[r]easonable value of necessary medical care, treatment, and 19 services received to the present time" is not recoverable as 20 damages under the FMLA and, by extension, interest could not be 21 awarded on this amount under the FMLA. Because the $154,080 the 22 jury value 23 professional fees which with reasonable probability will be lost in 24 the future" represents an award of front pay, this amount falls 25 under § 2617(a)(1)(B) and could not be included in a prejudgment 26 interest computation under § 2617(a)(1)(A)(ii). 27 any amount because awarded b. for on this which is the the to award prejudgment interest The only amount on which prejudgment a compensation jury s award "[r]easonable California law 28 31 As to the other loss of case $30,192 of under for earnings § the and 1 With respect to Plaintiff s state law claims, a federal court 2 exercising supplemental jurisdiction over state law claims is bound 3 to apply the law of the forum state to the same extent as if it 4 were exercising its diversity jurisdiction. Bass v. First Pac. 5 Networks, Inc., 219 F.3d 1052, 1055 n.2 (9th Cir. 2000); see also 6 Mangold, 67 F.3d at 1478 ("The Erie principles apply equally in the 7 context of pendent jurisdiction."). 8 (Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)), "federal 9 courts sitting in diversity apply state substantive law and federal 10 procedural law." In re Larry's Apartment, L.L.C., 249 F.3d 832, 837 11 (9th Cir. 2001) (internal quotation marks omitted). 12 interest is substantive for Erie purposes. In re Exxon Valdez, 484 13 F.3d 1098, 1101 (9th Cir. 2007). 14 applicable to prejudgment interest on Plaintiff s state law claims. 15 As to his state law claims, citing Currie v. Workers Comp. 16 Appeals Board, 24 Cal. 4th 1109, 1115 (2001) and California Civil 17 Code § 3287(a), Plaintiff argues that in an action to recover 18 backpay, interest is recoverable on each salary or pension payment 19 from the date it was due. (Doc. 399 at 8.) Currie determined 20 that, 3287, 21 interest could be recovered on a backpay amount awarded to a 22 plaintiff who was wrongfully denied reinstatement. 23 employer s refusal to reinstate the plaintiff violated California 24 Labor Code § 132a. pursuant to California Pursuant to Erie principles, Civil Prejudgment This makes California law Code § prejudgment There, the 25 California Civil Code § 3287(a) provides: 26 Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular 27 28 32 day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any such debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state. 1 2 3 4 5 Currie supports Plaintiff s position that, if any backpay the 6 jury awarded was for a FEHA/CFRA violation, Plaintiff can obtain 7 prejudgment interest on this amount under § 3287(a). Under 8 California law, the applicable prevailing prejudgment interest rate 9 appears to be seven percent per annum. Pro Value Properties, Inc. 10 v. Quality Loan Service Corp., 170 Cal. App. 4th 579, 582 (2009); 11 see also Michelson v. Hamada, 29 Cal. App. 4th 1566, 1585 (1994).12 12 Plaintiff s reliance on Currie and California Civil Code § 13 3287(a) is nevertheless problematic because, even assuming any 14 backpay awarded in this case is linked to a FEHA/CFRA violation, 15 the jury awarded backpay in one lump sum $321,285 without 16 specifying which particular adverse employment action(s) caused 17 what amount of backpay damages. Because this case involves 18 multiple adverse employment actions that occurred at different 19 points in time not just a one-time wrongful denial of 20 reinstatement as in Currie the generalized backpay award makes it 21 difficult to compute prejudgment interest. 22 Under California Civil Code § 3287(a), Plaintiff can, in 23 theory, recover prejudgment interest on backpay awarded to him. 24 This interest runs from the day the right to recover the backpay 25 26 27 12 Plaintiff cites no authority for the proposition that the prevailing California rate is ten percent per annum. 28 33 1 vested in him. § 3287(a). The jury s verdict does not, however, 2 specify the particular adverse employment action(s) on which they 3 based their backpay award, nor the amount of backpay attributable 4 to any particular adverse employment action(s), making it difficult 5 to determine when Plaintiff s entitlement to any discrete amount of 6 the awarded backpay vested in Plaintiff. 7 three adverse employment actions that could have lead to an award 8 of backpay are Plaintiff s wrongful removal from his position as 9 Chair of the Pathology Department, his wrongful placement on 10 administrative, and the wrongful non-renewal of his contract, all 11 of which occurred on different dates (July 2006, December 2006, and 12 October 2007 respectively). 13 awarded consists of backpay damages caused by these different 14 events, what amount of backpay did the jury attribute to each 15 event? 16 address these issues and prejudgment interest cannot be computed at 17 this time. In this case, at least To the extent the $321,285 the jury The current state of the briefing does not adequately 18 Whether construed as a motion directed to the court's inherent 19 authority to modify a non-final order or a motion under Rule 54(b), 20 Plaintiff's request for prejudgment interest is DENIED WITHOUT 21 PREJUDICE. 22 // 23 // 24 25 26 27 28 34 IV. CONCLUSION 1 2 For the reasons stated: 3 1. 4 5 6 Plaintiff s motion for liquidated damages under the FMLA is DENIED. 2. Plaintiff s motion for prejudgment interest is DENIED WITHOUT PREJUDICE. 7 8 SO ORDERED Dated: March 31, 2010 9 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35
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