10-2312-cv
Wong v. Mangone

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after
January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s
Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either
the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a
summary order must serve a copy of it on any party not represented by counsel.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 6th day of December, two thousand eleven.

PRESENT:
          JOSÉ A. CABRANES,
          DEBRA ANN LIVINGSTON,
          SUSAN L. CARNEY,
                       Circuit Judges.

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AARON WONG,
          Plaintiff-Appellee,

                     -v.-                                                                                No. 10-2312-cv

JAMES MANGONE,
           Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                                 BERNARD V. KLEINMAN, Law Office of
                                                                         Bernard V. Kleinman, PLLC, White Plains,
                                                                         NY.

FOR PLAINTIFF-APPELLEE:                                                  ALAN D. LEVINE, Kew Gardens, NY.



        Appeal from a May 12, 2010 judgment of the United States District Court for the Eastern
District of New York (Jack B. Weinstein, Judge; Andrew L. Carter, Magistrate Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court is AFFIRMED.
        Defendant-appellant James Mangone appeals a May 12, 2010 judgment of the District Court
following a jury verdict awarding plaintiff-appellee Aaron Wong $200,000 in damages for violations
of 42 U.S.C. § 1981. Mangone also challenges the award of attorneys’ fees pursuant to 42 U.S.C.
§ 1988, calling the amount awarded excessive and unjustified under the facts and law.

                                           Background
        We assume the parties’ familiarity with the factual history and proceedings below. Briefly,
this case arises out of an altercation that took place between Wong and Mangone in the parking area
of a Staten Island apartment complex on May 16, 2003. Wong, a 5'9", 145-pound African-American
male, had been driving with his girlfriend on a nearby street and had turned into the residential
parking area to complete a cell phone call. While Wong was parked in the area and speaking on the
phone, Mangone, a 6'1", 250-pound white male, and a former New York City police officer, pulled
his truck into the parking spot directly in front of Wong’s car. Mangone exited his truck and
approached Wong’s car. Wong v. Yoo, 649 F. Supp. 2d 34, 45 (E.D.N.Y. 2009) (memorandum
opinion and order granting in part and denying in part defendants’ motion for summary judgment).
The parties dispute the nature of subsequent events.

        Wong claims that Mangone stuck his head through the driver’s side window of Wong’s car
and yelled words to the effect of,
               I’m tired of you niggers being here. I’m tired of you niggers always
               here with your coke and your crack, and you throw dirty [vials] on
               the floor and you take your dirty condoms after you finish fucking
               and put them on the floor. I’m tired of this shit. You niggers don’t
               belong here . . . . Do you know anybody here? I bet you don’t know
               anybody here. Who do you know here? You niggers don’t know
               anybody here.
Id. Mangone claims that he approached the car to inquire what Wong’s business was in the parking
lot but that he used a moderate tone and did not touch the car. Id.

        In any event, the exchange quickly escalated to a physical fight involving a range of
impromptu weapons, including the driver’s side mirror of Wong’s car, a circular saw, a metal pipe, a
wooden broom handle, and a baton. See id. at 46-51. Several uniformed police officers ultimately
arrived on the scene to find Wong face down on the ground. The officers concluded that Wong had
assaulted Mangone and arrested Wong. Id. at 48-49. Wong was later taken to the hospital at his
request, where he was diagnosed with a right mandible fracture. Id. at 50-51. He required multiple
hospital visits and surgeries to correct the damage. Id. at 51.
        Wong initiated an action against Mangone and several members of the Police Department of
the City of New York on October 25, 2004 alleging causes of action under 42 U.S.C. §§ 1981, 1983,
and 1985 arising from the encounter on May 16, 2003. He filed his third amended complaint on
April 27, 2007, on which defendants moved for summary judgment. On August 18, 2009, the
District Court (Charles P. Sifton, Judge, to whom this case was originally assigned) issued a lengthy

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opinion and order granting summary judgment on Wong’s 42 U.S.C. § 1985 claim but denying
summary judgment on Wong’s 42 U.S.C. §§ 1981 and 1983 claims against Mangone. Wong v. Yoo,
649 F. Supp. 2d 34 (E.D.N.Y. 2009).

        A jury trial took place before the District Court (Jack B. Weinstein, Judge) from April 19,
2010 through April 29, 2010. The jury returned a verdict against Mangone for violations of 42
U.S.C. § 1981 and awarded Wong $200,000 in damages—$183,000 in compensatory damages and
$17,000 in punitive damages. The District Court entered judgment to that effect on May 12, 2010.
On June 8, 2010, Mangone filed a motion seeking a new trial pursuant to Federal Rule of Civil
Procedure 59, which the District Court denied on October 6, 2010.

         Wong also filed a motion for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. The
Magistrate Judge reduced Wong’s requested hourly rate from $400 to $375. Wong v. Yoo, No. 04-cv-
4569, 2010 WL 4137532, at *2 (E.D.N.Y. Oct. 19, 2010). The Magistrate Judge reviewed Wong’s
contemporaneous time entries, and determined “a fee award of 397.5 hours at $375/hr. and 50.9[]
hours of travel time at $187.5/hr. is appropriate,” for a total award of $158,606.25 in attorneys’ fees.
Id. at *3-4. The Magistrate Judge also granted Wong $8,680.11 in reasonable expenses. Id. at *4.
The Magistrate Judge entered the award of $167,286.36 in fees and expenses in a judgment on
November 9, 2010.

        On appeal, Mangone challenges the May 12, 2010 judgment awarding Wong $200,000 in
damages for violations of 42 U.S.C. § 1981, the October 6, 2010 judgment denying his Rule 59
motion for a new trial, and the November 9, 2010 judgment awarding Wong $167,286.36 in
attorneys’ fees and expenses.

                                                    I.
        “We will overturn a [jury] verdict only if there is such a complete absence of evidence
supporting the verdict that the jury’s findings could only have been the result of sheer surmise and
conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable
and fair minded men could not arrive at a verdict against him.” Gronowski v. Spencer, 424 F.3d 285,
292 (2d Cir. 2005). In determining whether a jury verdict should be affirmed, we “view the facts of
the case in the light most favorable to the prevailing party.” Kosmynka v. Polaris Indus., Inc., 462 F.3d
74, 77 (2d Cir. 2006).

        In this case, there was not such a complete absence of evidence supporting Wong’s
42 U.S.C. § 1981 claim that the jury could only have reached its verdict based on sheer surmise and
conjecture. Indeed, it was the presence of a genuine issue of material fact on Wong’s 42 U.S.C.
§ 1981 claim that prompted the District Court to deny summary judgment on the claim. See Wong v.
Yoo, 649 F. Supp. 2d 34, 68-70 (E.D.N.Y. 2009).



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          Section 1981 provides a remedy “against private actors who intentionally discriminate on the
basis of race or ethnicity.” Bologna v. Allstate Ins. Co., 138 F. Supp. 2d 310, 322 (E.D.N.Y. 2001)
(citing, inter alia, 42 U.S.C. § 1981; Runyon v. McCrary, 427 U.S. 160, 168-75, (1976); Albert v. Carovano,
851 F.2d 561, 571 (2d Cir. 1988)). To establish a claim under § 1981, a plaintiff must allege facts in
support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or
more of the statutorily enumerated activities. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d
1085, 1087 (2d Cir. 1993), cert. denied, 516 U.S. 824 (1995). The enumerated activities include the
rights “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and property.” 42 U.S.C. § 1981(a).

         The first and third elements of 42 U.S.C. § 1981 are not in dispute. It is uncontested that
Wong is a member of a racial minority, satisfying the first element. As to the third element—that
the discrimination concerned one or more of the statutorily enumerated activities—Wong’s account
of the events provides evidence sufficient to support a claim under the “equal benefit” clause of
§ 1981—namely, that he was deprived of the right “to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C.
§ 1981(a). In this Circuit, the equal benefit protections of § 1981(a) do not require state action and
may be asserted against private individuals, such as Mangone. See Phillip v. Univ. of Rochester, 316 F.3d
291, 294-95 (2d Cir. 2003). A § 1981 violation may occur when a private individual injures “the
security of persons and property” in violation of a state law, and does so with a racially
discriminatory purpose. Pierre v. J.C. Penney Co., 340 F. Supp. 2d 308, 313 (E.D.N.Y. 2004); see also
Bishop v. Toys “R” US, LLC, No. 04-cv-9403, 2009 WL 440434, at *6 (S.D.N.Y. Feb. 19, 2009); Jones
v. J.C. Penney’s Dep’t Stores, Inc., No. 03–CV–920A, 2007 WL 1577758, at *18 (W.D.N.Y. May 31,
2007), aff’d, 317 F. App’x 71 (2d Cir. 2009). Wong adduced evidence sufficient to permit a
reasonable fact-finder to find that Mangone violated New York State laws prohibiting assault and
battery, which are “clearly intended for the ‘security of persons.’” Pierre, 340 F. Supp. 2d at 312-13.

        Mangone’s appeal focuses on the sufficiency of evidence presented in support of the second
element required to support a § 1981 claim—intent to discriminate on the basis of race. To satisfy
the intent prong of § 1981, discriminatory intent on the basis of race must be a substantial or
motivating factor behind the behavior complained. See Tolbert v. Queens College, 242 F.3d 58, 69 (2d
Cir. 2001). Wong and his girlfriend testified that Mangone, upon first encountering them and
without provocation, directed racial epithets toward Wong and used other racially charged language
to express anger at Wong’s presence in the parking lot. This testimony, if credited, provides
sufficient evidence that Mangone acted with substantial racial animus or was otherwise motivated by
the requisite discriminatory intent.

        The weight and persuasiveness of evidence presented at trial is not a proper ground on
which to disturb the jury verdict. See, e.g., Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)
(“[D]etermining the weight and credibility of [a witness’s] testimony . . . belongs to the jury, who are

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presumed to be fitted for it by their natural intelligence and their practical knowledge of men and
the ways of men.”); Nimely v. City of New York, 414 F.3d 381, 397-98 (2d Cir. 2005).

        Accordingly, the jury verdict is adequately supported by the evidence.

                                                    II.
         We review a district court’s denial of a Rule 59 motion for a new trial under a “clear abuse of
discretion” standard. See, e.g., Smith v. Lightning Bolt Prod., 861 F.2d 363, 370 (2d Cir. 1988); see also
Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (explaining the term of art “abuse of discretion”). The
district court is obligated to grant a motion for a new trial only if it is convinced that the jury has
reached a seriously erroneous result, or that the verdict constitutes a miscarriage of justice. Smith,
861 F.2d at 370.

        Mangone argues that the jury reached a “seriously erroneous” result because the jury relied
exclusively on allegations made by Wong and his girlfriend and ignored evidence to the contrary by
Mangone’s witnesses. This argument is without merit. The jury’s credibility determinations are
entitled to deference. See, e.g., Mickle v. Morin, 297 F.3d 114, 120 (2d Cir. 2002); Bevevino v. Saydjari,
574 F.2d 676, 683 (2d Cir. 1978).

        Accordingly, the District Court did not err in denying Mangone’s motion for a new trial.

                                                   III.
           The standard of review with respect to awards of attorneys’ fees is also abuse of discretion.
See, e.g., Matthew Bender & Co. v. West Publ’n Co., 240 F.3d 116, 121 (2d Cir. 2001). A district court
abuses its discretion if it relies on “an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); cf. Sims, 534
F.3d at 132.

                                                    A.
          We address, as an initial matter, this Court’s jurisdiction to hear Mangone’s appeal from the
attorneys’ fees judgment of November 9, 2010. In June 2010, Mangone filed a notice of appeal
regarding the merits judgment entered May 12, 2010. The notice referred to an attorneys’ fee in a
general way: “Notice is hereby given that James Mangone hereby appeals . . . from the decision and
judgment of this Court, after jury verdict in favor of the Plaintiff in the amount of $200,000 and
attorney fees and costs, under 42 U.S.C. § 1981.” After the November 9, 2010 judgment granting
attorneys’ fees to Wong, Mangone neither amended his June notice of appeal nor filed a new notice
of appeal referring to the judgment on the issue of attorneys’ fees. In failing to do so, Mangone fell
short of strict compliance with Federal Rule of Appellate Procedure 3(c)(1)(B), which requires that a
notice of appeal “designate the judgment, order, or part thereof being appealed.” Fed. R. App.
P. 3(c)(1)(B).

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         We note, however, that in July 2010, the Clerk of our Court stayed activity on the appeal
until the fees decision was filed, and the District Court advised the parties that it wished the appeal
of fees to be included in the merits appeal. Our Clerk and the parties interacted repeatedly
thereafter in ways that made clear their shared intention that the notice of appeal’s general reference
to attorneys’ fees would be read, by mutual assent, as implicitly incorporating and referring to the
November 9, 2010 judgment on attorneys’ fees. In these circumstances, we reach the fees issue on
its merits.

                                                   B.
        The Magistrate Judge thoroughly analyzed Wong’s motion for attorneys’ fees, examining all
of the factors that are to be considering in making such a determination. See Simmons v. New York
City Transit Auth., 575 F.3d 170, 175-76 (2d Cir. 2009); Arbor Hill Concerned Citizens Ass’n v. Cnty of
Albany, 493 F.3d 110, 114 n.3, 117-18 (2d Cir. 2007); Johnson v. Georgia Highway Express, Inc., 488 F.2d
714, 717-19 (5th Cir. 1974). Based on this analysis, the Magistrate Judge reduced the hourly fee
requested from $400 to $375, taking into consideration that Wong’s attorney is a solo practitioner,
that hourly rates in the Eastern District of New York are generally lower than those charged and
awarded in the Southern District of New York, and that the attorney was not successful on all of
Wong’s claims or against any defendant named in the action other than Mangone. See Wong v. Yoo,
No. 04-cv-4569, 2010 WL 4137532, at *2 (E.D.N.Y. Oct. 19, 2010). The Magistrate Judge also
made adjustments for duplicative hours. Id. at *3. The fee award was not based on an erroneous
view of the law or a clearly erroneous assessment of the evidence.

       Accordingly, neither the Magistrate Judge nor the District Court abused its discretion in
awarding Wong $167,286.36 in attorneys’ fees and expenses.

                                             Conclusion
       We have considered all of Mangone’s arguments on appeal and find them to be without
merit. For the reasons stated above, the order of the District Court is AFFIRMED.




                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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