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Swartz v. Di Carlo

United States District Court, N.D. Ohio, Eastern Division

June 20, 2019

JAMES SWARTZ, JR. ET AL., Plaintiff,
MARK A. DI CARLO, Defendant.


          Christopher A. Boyko United States District Judge.

         On September 28, 2018, a jury found Defendant Mark A. DiCarlo liable for Defamation and awarded Plaintiffs damages in the amount of $150, 000 in total compensatory damages and $100, 000 in total punitive damages. Plaintiffs' then moved post-trial for prejudgment and postjudgment interest (ECF # 247), costs and attorneys' fees (ECF #'s 248 and 251). The Court now issues its Order on the above Motions as follows:

         Prejudgment Interest

         Plaintiffs move for prejudgment interest under Ohio Revised Code Section 1343.03 for Defendant's alleged failure to negotiate settlement in good faith. Plaintiffs ask that they be awarded prejudgment interest, calculated from the filing of the Complaint. Plaintiffs attach correspondence between Plaintiffs' counsel and Defendant outlining ongoing discovery issues and disputes. Plaintiffs further attach an affidavit of their former counsel, outlining his attempts to resolve discovery issues with Defendant and attesting to Defendant's delays in addressing them.

         “Under Ohio law, an award of prejudgment interest must be made if the court finds ‘that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case.'” Clay v. Ford Motor Co., 215 F.3d 663, 672-73 (6th Cir. 2000) quoting Ohio Rev.Code Ann. § 1343.03(C)(1) (Anderson 1993). “The party requesting prejudgment interest has the burden of proving that it made a good faith effort to settle and that the other party failed to make a good faith effort to settle.” Clay, 215 F.3d at 673 citing Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 635 N.E.2d 331, 348 (1994). “If a party has (1) fully cooperated during discovery, (2) rationally evaluated its risks and potential liability, (3) not attempted to unduly delay the proceedings, and (4) in good faith, made a settlement offer or responded to the other party's offer, that party has not failed to make a good faith effort to settle the case.” Clay, 215 F.3d at 673 citing Kalain v. Smith, 25 Ohio St.3d 157, 495 N.E.2d 572, 574 (1986). “If a party has a good faith, objectively reasonable belief that [it] has no liability, [it] need not make a monetary settlement offer.” Id.

         Ohio Revised Code Section 1343.03(C) requires the Court hold an evidentiary hearing before ruling on a Motion for Prejudgment Interest. Parties may waive the oral hearing requirement. Therefore, the Court orders the parties to confer and submit to the Court no later than July 1, 2019, agreed upon, proposed dates for an evidentiary hearing on Plaintiffs' Motion for Prejudgment Interest. If the parties agree to waive an evidentiary hearing, the parties shall submit no later than July 1, 2019, any evidentiary materials they wish the Court to consider before it rules on the Motion.

         Postjudgment Interest

         Plaintiffs further ask the Court for an award of postjudgment interest pursuant to 28 U.S.C. §1961 which reads in pertinent part: “Interest shall be allowed on any money judgment in a civil case recovered in a district court ..... Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment.” The purpose of post-judgment interest is “to compensate the successful plaintiff for being deprived of compensation for the loss from the time between the ascertainment of the [judgment] and the payment by the defendant.” Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835-36, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990). The statute effectively “remov [es] the award of such interest from the discretion of the District Court.” Comerica Bank v. Stewart, No. 09 CV 13421, 2009 WL 4646894, at *3 (E.D. Mich. Dec. 8, 2009) quoting Caffey v. Unum Life Ins. Co., 302 F.3d 576, 586 (6th Cir.2002).

         Defendant's arguments opposing the Motion appear limited to arguing against good faith efforts to settle which applies solely to Plaintiffs' Motion for Prejudgment Interest. Because the statute authorizes post-judgment interest and establishes the rate, the Court grants Plaintiffs' post-judgment interest at the statutory rate as described in 28 U.S.C. § 1961 from the date of judgment until the judgment is satisfied.


         Pursuant to Fed.R.Civ.P. 54(d)(1), Plaintiffs move the Court for costs in the amount of $4, 374.12, including costs for transcription and videotaping depositions, copying and trial exhibits. These costs are itemized and supported by the declaration of Plaintiffs' counsel as follows:

Deposition transcript costs

$ 1943.65

Costs to videotape deposition

$ $1, 436.00

Copy costs

$ 994.47

         Defendant opposes costs for videotaping the deposition, contending it was unnecessary because Defendant's deposition was not used at trial. He also challenges the costs of copying exhibits that were never used at trial and the costs for binders, tabs and CD sleeves. Defendant further challenges the costs of the deposition due to its length (nearly six hours) because Plaintiffs took several breaks and asked repetitive questions.

         Plaintiffs respond that Defendant's deposition was absolutely necessary to their case in chief to establish certain elements of Plaintiffs' claim under oath. Furthermore, Plaintiffs contend videotaping the deposition was necessary given the emotional nature of the claim, the nature of the defamatory statement directed at Plaintiffs, the attacks directed at Plaintiffs' counsel and to “promote civility.” Breaks were necessary due to the amount of material to cover and the length of the deposition in order to give deponent, counsel and the court reporter time to rest. Plaintiffs also respond that the length of the deposition was due in large part to Defendant's repetitive answers and baseless ...

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