*1 LTD., limited GUIDES, a Colorado The doing business
liability company, Foote, House; Tseghe Plaintiffs/Appel
individually,
lants/Cross-Appellees, PROPERTY YARMOUTH GROUP INC.*;
MANAGEMENT, Tabor Cen Defendants/Ap L.P., Associates,
ter
pellees/Cross-Appellants. 99-1392, 99-1389, 99- 99-1388,
Nos. 99-1464. 99-1459 Appeals, Court
United States Circuit.
Tenth
July 2002. Management, Inc. Property Management, Property Group Yarmouth *The Inc., Lang LaSalle as Jones now known *4 ler, Lane, Greisen, LLP, Killmer & Den- ver, CO, Plaintiffs/Appel- for lants/Cross-Appellees. Ashe, Jr., Paul,
Robert Lawrence Has- Walker, LLP, Atlanta, tings, Janofsky & GA, (Kelly J. Koelker and Maureen E. O’Neill, Paul, Hastings, Janofsky & Walk- er, LLP, Atlanta, GA; Grunschlag, Dov M. Falconer, LLP, Steinhart & San Francis- co, California; Aab, and James L. Aab & Botts, Denver, CO, LLC, with him on the Associates, L.P.; brief for Tabor Center Gurr, H. Stacy, Pringle David Elzi & Den- ver, CO, Proper- for The Yarmouth Group Inc., ty Management, joins in the brief Associates, L.P.), Tabor Center for the *5 Defendants/Appellees/Cross-Appellants. McWILLIAMS, Before BRISCOE and JENKINS, Judges; Circuit and Senior Judge.** District BRISCOE, Judge. Circuit Guides, Tseghe Plaintiffs Foote and The (hereinafter Ltd., The Africa House d/b/a House) brought rights Africa a civil action Group defendants The Yarmouth Inc., Property Management, and Tabor Associates, L.P., alleging Center the de- fendants had violated U.S.C. Afri- intentionally and had interfered with prospective ca House’s business advan- tages conjunction with the defendants’ space for eviction and failure to lease retail Africa House. A found in favor of counts, Africa on all and and House plaintiff compensatory awarded each and punitive damages. Following post-trial mo- tions, the Foote as district court dismissed standing an lack of plaintiff individual for (David jury’s Darold W. Killmer H. Miller and to her. The vacated award brief), granted Mari Newman with him on the Mil- district court also Africa House’s ** Utah, Jenkins, sitting by designation. The Bruce S. United Honorable Judge States Senior District for the District of fees, merchandising mix and attorney although concerning it re- ment
request for rates, balance. and further requested duced the Africa interest
granted prejudgment In defendant Tabor Cen- October Housе. acquired the Tabor ter Associates Center In plaintiffs’ landlord. and became appeal defendants the district February Yarmouth as- defendant court’s denial of their motion for the management responsibilities sumed and motion for new trial as a matter of law improve profit- -In an effort to Center. remittitur, as the district court’s or as well Center, ability imple- Yarmouth plain- interest. The prejudgment award of in- leasing procedures new mented Foote as cross-appeal the dismissal of tiffs negotiating long-term leases with cluded and the reduction plaintiff an individual ap- future tenants. Yarmouth also jurisdiction pursuant attorney fees. Our existing negotiate tenants to new proached part, § 1291. affirm in We 28 U.S.C. short-term tenancies. long-term and part, and remand. reverse approach Yarmouth did not
Foote, in fact had no contact with her I. September ap- until 1996 when Foote possibil- to discuss proached Yarmouth Guides, Ltd., subchapter is a cor- S ity entering renewing or into a new under Colorado law poration organized lease. House, doing business as The meeting From this initial until late Octo- in African art and specializing retail store meetings ber Foote had several with Foote, immigrant Tseghe artifacts. representatives concerning of Yarmouth *6 is its sole shareholder and Ethiopia, from possibility leasing Ta- space president. In Foote entered into bor Center. Yarmouth would agreements lease separate two short-term clarify engage intentions or in its seri- Center, prior owners of the Tabor with negotiations. Foote ous and Yarmouth Denver, Colorado, a downtown mall in for a possible space discussed for relocation of occupy space Africa to 322 at the House business, but Yarmouth would not as- agreement The first short-term Center. space sure Foote would be avail- February through August ran from able, though undisputed it was even there 1993, and the second ran month-to-month many empty spaces were at the available in beginning September 1993. Under the During attempted Tabor these Center. leases, of a terms of the the rent consisted negotiations, representative a from Yar- approximately per amount of base $23 misrepresentations mouth made to Foote foot, square and 15% of sales above a concerning the lease at 322 and com- space did not predetermined level. lease (1) mented that her store: did not “mix require any pay- Africa House to make (2) tenants; well” glam- with other was not operating mall to incur ments for costs or (3) (4) enough; go”; ourous “had to did any improvement expenses. or build-out (5) Center”; image not “fit the of Tabor tеrms, In exchange for these favorable (6) name; change should its devalued the provided lease the owners could ter- (7) Center; unsophisticat- Tabor was tenancy minate the or relocate the busi- Yarmouth also up blueprints ed. drew if days’ they ness with fifteen notice re- which did not include Foote’s store. any quired space 322 for reason. The 13, 1996, possibility dependant September of relocation was On General Nutri- (GNC), upon space judg- available and the owners’ tion Centers a national vitamin and chain, ten-year right into a lease interfered with the health entered lease real property, for 322 at an annual in violation of 42 space with Yarmouth U.S.C. 1982. for Africa House. Africa a charged brought rent double that House also claim alleging intentionally Foote was not informed of this lease while that the defendants had inter- negotiated Sep- prospective with Yarmouth. On fered with its she business advan- 24,1996, tages. arrived at her store tember Foote a man measure- making to find detailed A in jury found favor of both Foote and management ments. When she called to Africa on all House claims. The measurements, purpose find out the $200,000 awarded in compensatory dam- an attempt she was informed that it was $1,500,000 ages and in punitive damages to lower the insurance rates for the Center. Foote; $150,000 compen- and awarded in only It was later that Foote learned that $1,000,000 satory damages punitive GNC, space had been leased damages to Africa House. The defendants the measurements were made connec- remittitur, filed a motion for trial new or
tion with lease. which the district court denied. The de- September Yarmouth informed On fendants also filed motion for Foote that House would not be as matter of law. The district court long-term gross granted part, finding offered lease because its this motion $800,000. merged sales did not meet or exceed Foote’s claims with of Africa those and, therefore, Yarmouth was also reluctant to Afri- House she offer was without space standing. ca House a or a short-term The court different dismissed Foote and 14, 1996, lease. On October the defen- set aside the verdict and her terminating application dants served Foote with notice favor. The filed an space attorney pursuant her lease for 322. The termination fees to 42 U.S.C. 1988(b). any did not contain offer of reloca- The district court granted notice this lease, motion, though hourly tion or a short-term even but reduced the rates re- by quested. grant- other tenants who had been terminated The district court further options. plaintiffs’ prejudgment offered such ed the motion for Yarmouth were attorney negotiate hired an with interest. *7 eventually Yarmouth. Yarmouth offered II. space
Africa House a four-month lease for Center, rejected in 202 the but Foote the plaintiffs’ first address contention We due to short duration. lease its dismissing that the district court erred in 29, 1996, § § On October Foote filed the Foote’s 1981 and 1982 claims for lack complaint standing. Yarmouth of court against this action The district reasoned Associates, along necessary with that was because the and Tabor Center dismissal temporary injury by for a suffered Africa rath- application restraining was House order, Foote, than in that the defendants had hearing order. Before on the the er parties stipulated property to relocate the refused to contract with or lease business until Africa House rather than to Foote indi- space legal 202 issues were injuries claim for complaint, brought vidually, resolved. In the Foote and Foote’s plain- of that clаims on her own behalf and on behalf of was the result refusal. House, argue appeal on that Foote has stand- alleging Africa that the defendants tiffs (1) ing sole shareholder of Africa unlawfully right had interfered with the because as contract, injury and. separate to make and enforce a in violation House she suffered (2) House, 1981; § of Africa and unlawfully of 42 and distinct from that U.S.C. 1072 § claims under 1981 in her own assert discrimination standing that she has
further
§
discrimination is
guaranty
con-
1982 where such
right
signed
she
because
gave
employees.
which
rise to a
on the race of one of its
tract in her 1993 lease
based
Ass’n, Inc.,
and distinct from
Health
duty separate
Group
See Gersman v.
special
(D.C.Cir.1991),
on
to Africa House.
F.2d 1565
vacated
that owed
931
1068, 112
grounds, 502 U.S.
S.Ct.
other
standing
of
de
review issues
We
(1992).2
960,
ques
In the instant
Foote
the failure
defendants
discrimination based on her race. Howev with or lease to Africa House and was a
er,
party seeking
product
to contract with the
of the economic
which
property,
corporation.
defendants and to lease
and thus were suffered
alleged
rights
victim of the
discrimina
suffered no violation of her contract
direct
tion,
any way
corporation,
right
was Foote’s
Africa or
to lease that was
House,
from
rather
than Footе herself.1 We different
the violations claimed
claim
agree
standing
House has
to Africa House. Her
is derivative of
*8
Order,
Stipulated
standing
bring
§
According to the
Pretrial
suit under
1981 because
1.
§
plaintiffs'
regard
the
with
injury
claims
1981
the
it suffered fell "within the zone of
§
are that “defendants have denied
statute,”
and
1982
protected
interests
the
in that the
opportunity
the
The Africa House
rent or
"solely
termination
of the contract was
be-
negotiate
space
for the rental of retail
at The
cause an individual associated with CSI was
Shops
App.
Center."
at 61.
Tabor
1073 A party Africa House and she does not have Id. is entitled to judgment that of as a to sue on her own behalf. See if standing only matter of law is no legally there Co., 268, v. Amoco Oil 118 F.3d Bellows evidentiary sufficient basis for the claim. (5th Cir.1997) (holding plaintiff 276-77 Stores, Inc., Hampton v. Dillard Dept. 247 a president corporation (10th who was Cir.2001). 1091, F.3d 1103 no individual cause of 51% shareholder had § 1981 for emotional distress
action under § A 1981 or plaintiff 1982 arising against discrimination from prove by must a preponderance of the race). corporation based on intentionally evidence the defendant against discriminated him or her on the that she argues Foote also has basis of race. See Stewart v. Adolph standing guarantee аs the result of her (10th Co., 217 Coors F.3d Cir. corporation’s 1993lease. we 2000). proof may Such come from either reject that a stockholder’s sta premise direct or indirect evidence. Hampton, 247 guarantor gives tus as a the stockholder F.3d at 1107. When asked review the against status to assert an individual claim sufficiency of the evidence 1981 and a party third where harm is derivative § 1982 claims based on indirect discrimi corporation. of that suffered See nation, we assume that plaintiff met Co., Sparling v. 864 F.2d Constr. Hoffman his or her burden of proving prima facie Ash, Cir.1988); v. Nicholson trial, claim and properly the claim went to (Colo.App.1990). 800 P.2d only leaving question of whether the guarantor previous Foote’s status as plaintiff presented sufficient evidence to significance lease is of no to her claim that jury’s support the determination that the the defendants refused to contract or lease adverse action was taken on the basis of corporation. to her 1108; Stewart, race. Id. at 217 F.3d at We hold the district court did not 1288. dismissing err in Foote as an individual plaintiff setting aside the whole, Based on the record as a we awarded to her. conclude there was sufficient evidence from which a could infer that
III. defendants discriminated next consider the Although undisputed We defendants’ House. evidence that them judgment always contention motion for indicated that Africa House was an Center, a matter of law should grant have been excellent tenant at the Tabor identify ed because there although was insufficient evidence the defendants could not jury’s finding legitimate why to sustain the of intentional reason she would not be future, reviewing race discrimination. In the dis tenant appropriate 50(b) trict denial of a Rule motion no attempt court’s defendants made to discuss the law, apply possibility as matter of we of a future lease. The defen- the same standard as the district court. dants told Foote that Africa House was States, Inc., Tyler eligible long-term Mountain for a it lease because RE/MAX (10th Cir.2000). sales; enough gross did not have annual We *9 record, however, they review all the evidence in the con at the same time offered a it and all struing long-term inferences drawn there lease to another business whose favorably year-to-date from most to nonmoving approximately sales were $20,000 party, making credibility and refrain from whose ratio less and rent-to-sales weighing comparable. attempted determinations or the evidence. was When Foote lease, told IV. she was a short-term pursue to be- unavailable or was- spaces were there was next contend The defendants only temporаry a lease offered grudgingly jury’s support the evidence to insufficient time, defen- though, at the same even Af- they interfered with determination for soliciting other tenants dants were advan- prospective House’s business rica the de- point, At one leases. short-term court erred and that the district tages, misrepresentations made fendants as a judgment denying their motion taking why they were concerning They to that claim. matter of law as business, telling her of her measurements failed to introduce that Africa House argue pur- for insurance were the measurements induced or the defendants evidence they actually prepara- were poses when not to person a third otherwise caused for a new tenant. tion prospective a busi- into or continue enter Further, from which a there is evidence relationship. ness race and the jury infer that Foote’s cоuld record, of the we After a careful review clientele race of Africa House’s perceived support any to find evidence are unable discriminatory con- for this the basis were jury’s appeal, On verdict. testimony from Jana There" was duct. point any. evi- similarly fails to House long- offered a a tenant who was Thorpe, support the verdict. dence would which lease, that she asked whether when term result, jury’s verdict a we reverse the As long- would be offered business Foote’s on this issue. lease, was told that the business term she proposed image of the Tabor “didn’t fit the V. interpreted App. at 1343. She
Center.” that “Africa House to mean this statement argue that The defendants next image fit the of the Tabor Center didn’t trial court committed several the district Africa House was a store owned [because] which, individually and cumulative errors things from person that sold black party seeks ly, require reversal. “When black, Id. at Africa and had customers.” of a denial of of a verdict or ‘reversal testimony was also that Yar- 1344. There claiming trial new trial’ a motion for told Foote that her management mouth errors, alleged trial it ‘must establish the well,” glam- “mix was not business did not clearly prejudicial were both errors Center, enough, ourous and devalued ” Indus., Baty v. Willamette erroneous.’ same time tenants who were while Cir.1999) Inc., (10th 1232, 1247 172 F.3d encouraged sign not black leases. were Jones, 587, 591 (quoting Gust Further, management at various stated Cir.1998)). name “Africa House” should times changed. be First, that it defendants assert to allow the at tri- for the district court
Reviewing
presented
the evidence
was error
al,
opinion testimony of three witnesses:
say
points
lay
we cannot
that “the evidence
Pankoff, and David
Thorpe, Phil
way,
susceptible
but one
and is
to no rea-
Jana
Rule of Evidence
supporting
plain- Fine. Under Federal
[the
sonable inferences
“(a) rationally based
Hampton,
lay opinion
The defendants further con complain tend that vorable verdict to about improper the district court abused its dis granted plaintiffs’ during opening cretion when it comments mo statement and by closing argument tion in limine to finding risky exclude made bound relief’) Rights granted the Colorado Civil decision and should not be Commission there was no cause to believe that Finally, the defendants contend defendants had discriminated allowing the district court erred in plaintiffs in leasing decision. Howev plaintiff Foote to remain as a in the case. er, the decision of whether to admit or They argue presence that her in the case findings rights exclude of a civil commis jury. confused the at no time sion lies within the sound discretion of the trial during object did the defendants Denny district court. See v. Hutchinson presence Foote’s plaintiff. as a Under the Corp., Sales 821-22 circumstances, there was no error. Cir.1981). sought The defendants to admit finding grounds on the that might it VI. contain statements to the commission that testimony would contradict Foote’s at trial. We next consider the defendants’ evidence, The district court argument compensatory damages excluded the that the sup- but stated that it would entertаin a motion awarded to Africa House were not *11 Scheuerman, her- er, and Foote Kathleen jury The by sufficient evidence. ported However, financial consultants that, com- while determining in self. instructed was (1) new busi- suggested consider and Gaiter it could damages, Warren pensatory Africa help and would losses, profits strategies lost which including ness financial (2) name, business, repu- most of these its good loss of House increase and expenses; jury ulti- adopted, not tation, integrity. strategies were honor or business $150,000 more compensatory in made suggestions in fact the were mately awarded alleged actions year prior to the damages. than one no They expressed of the defendants. jury’s a award uphold We will or loss concerning profits lost opinion clearly it is erroneous damages unless name, integ- honor or good Africa House’s support the evidence to is no or there Scheuerman, an Similarly, Kathleen rity. Presbyterian v. Brown award. See House, only of Africa testified employee Services, 1324, 1330 101 F.3d Healthcare space in new was that the business Cir.1996). (10th of dam amount “[T]he space, as it was the old profitable supported be by jury can awarded ages testimony way supports in no her tending to sus evidence by any competent presented profits award for lost above Yeary, v. Capital Corp. tain it.” Advantor any Kaempfer, provide nor does it by Dr. Cir.1998) (10th (quot 136 F.3d name, reputa- good of a loss of evidence Longacre, ing Bennett v. tion, integrity. honor or (10th Cir.1985)). testimony sup- to Finally, Foote’s fails Kaempfer testified as Dr. William those cal- port profits lost over and above ultimately profits, lost to Africa House’s and does not men- by expert, culated her a result of the profits as fixing the lost good any damage to Africa House’s tion $75,316.95. The conduct at defendants’ name, honor, integrity. or As reputation, testimony was argue that this defendants result, conclude there is insufficient we However, jury apparently unreliable. dam- compensatory evidence to sustain “It is within testimony found the credible. $75,316.95, and over and age award above purview of the virtually exclusive the district remand with directions damages.” fix credibility evaluate reducing the com- court enter a remittitur (Hold Holdings Intern. United Wharf to Africa pensatory damages awarded Cir.2000). 1207, 1230 ings), 210 F.3d or, in the alterna- House to that amount Thus, testimony was suffi Kaempfer’s Dr. tive, trial. order a new $75,316.95 compensato support cient to ry damages. VII. not, however, reach the same
We do contend that the remaining The defendants regarding conclusion motion $74,683.05 denying court erred their compensatory district law, arguing con- as a matter jury. plaintiffs awarded damages awarded to punitive supported tend that the award is Warren, by the evidence.3 supported Gait- House are not testimony of Andrew Lewis object on plaintiffs argue themselves failed 3. The that defendants failed response sup- in their to the defendants' this basis raise the issue of insufficient evidence 50(b) such circum- port punitive damages Rule motion. Under in their Fed.R.Civ.P. stances, motions, 50(a) plaintiffs may not assert the fail- not have and therefore should the defendants to raise the insufficient allowed to in a Fed R. ure of been raise issue motion, 50(b) non-moving party appeal. evidence issue. When the Civ. P. or on *12 sufficient evidence ex “Whether VIII. ques is a support punitive
ists
The defendants next contend that
Fitzgerald
de
tion of law reviewed
novo.”
district court abused its discretion when it
Co.,
v. Mountain States Tel. & Tel.
68 F.3d
applied
state law rate of interest
Cir.1995).
(10th
1257,
have
1262
We
held
compute the
prejudgment
award of
inter-
in
punitive damages
that the standard for
est to Africa House. The district court
claiming
actions
a violation of federal civil
applied a 9% interest rate to the prejudg-
rights
requires
the discrimination
ment interest award pursuant to Colo.Rev.
malicious, willful,
must
in
have been
§
Stat. Ann.
13-21-101. The defendants
disregard
rights of
gross
plain
of the
argue that the district court should have
tiff.
247
Hampton,
See
F.3d at 1115.
applied the rate of
for post-judg-
interest
ment awards found in
§
28 U.S.C.
1961
conclude that
this
We
standard
jurisdiction
because the district court’s
was
punitive damages
cannot be satisfied
based on a federal question jurisdiction
by
showing
of intentional discrimination
diversity jurisdiction.
rather than
Otherwise, every jury
alone.
in a
verdict
§
successful
1981 or
1982 claim would
agree that a
rate of
federal
We
include an
of
In
punitive damages.
award
interest rather than the
applies
stаte rate
stead,
plaintiff
we believe that a
must
jurisdiction
where
is based on a federal
prove that the defendant acted with mali
question, and therefore the district court
cious,
gross disregard
willful or
of a plain
in
erred
determining
it was bound to
rights
tiffs
over and above intentional dis
apply the state rate of interest. See Car
crimination.
penters Dist. Council New Orleans &
of
evidence,
In examining
Vicinity
Stores, Inc.,
we
Dept.
v. Dillard
15
(5th Cir.1994)
1275,
not persuaded
plaintiffs
are
F.3d
1288
(stating that
malicious,
proved
the defendants acted
governs
range
“federal law
of reme
dies,
willful or gross disregard
rights.
of their
including the allowance and rate of
prejudgment
interest,
While the indirect evidence
this case is
where a cause of
action,
case,
sufficient to establish that the defendants
as in this
arises out of federal
statute”).
intentionally
Industries,
discriminated
See also U.S.
Inc. v.
race,
Co.,
plaintiffs
1223,
оn the basis of
is
there
no Touche Ross &
854 F.2d
1254
(10th Cir.1988)
evidence which would show that
the de
(stating that an award of
fendants acted malicious or willful
prejudgment
dis
interest
in a federal securi
regard
law),
of Africa
rights.
by
House’s
As
re
ties law claim is controlled
federal
sult, we reverse the district
by implication
court’s denial
overruled
on other grounds
by
defendants’ motion for
as
Bank
Central
Denver v. First Inter
of
Denver,
a matter of law
164,
million
state Bank
511 U.S.
114
$1
of
1439,
(1994).
punitive damages
awarded to Africa S.Ct.
fails to raise the aof Rule beau v. 18 F.3d 109 motion, 50(b) opposition Illinois, 692, motion in (7th to a Rule Collins v. 830 F.2d 698 party argument cannot raise waiver as an 1987); Mercy-Prov Cir. v. Sisters Beauford appeal. Runyon, on 568, See Williams v. 130 F.3d Detroit, Inc., ince 816 F.2d n. 1108 3 (3d Cir.1997); Thompson & Wallace (6th 1987); Kimberly-Clark Cir. Halsell v. Memphis, Corp., Inc. v. Falconwood (8th 1982). Corp., 683 F.2d 293-95 Cir. (5th 1996); Abell, F.3d Cir. Whelan v. Therefore, we will address the issue. (D.C.Cir.1995); 48 F.3d 1251-53 Gi calculat- attorney fees were rates at which See interest. prejudgment fix the rate of under 42 Inc., award T.A.O., of its purposes ed for Towerridge, Inc. v. 1988(b). Cir.1997) had re- (stating where 758, 764 U.S.C. federal governed of 482.70 hours rate for a total prejudgment quested fees any hour, rate to choose law, per is free a court attorney Darold Killmer $250 plaintiff *13 fairly compensate the would which Miller at by attorney David hours 309.55 v. UNUM also Jones delay); see for the by attor- hour, hours and 118.60 per $250 America, 130, 139 Ins. Co. per hour. The at ney of Newman $115 Life Mari Cir.2000) there is (2d (holding that because Killmer’s and Mil- reduced court district to control purports that no federal statute and reduced hourly rates to $200 ler’s interest, rate the prejudgment rate of the $100, finding that hourly rate to Newman’s district of the to the discretion is left evi- produce to had failed plaintiffs the court). rates were higher that the showing dence that the contend also The defendants reasonable. awarding prejudg- in court erred
district claim the date that the interest ment from discretionary the light “In of profits as the lost rather than decision, accrued court’s we of the district nature the that because They argue occurred. award under 42 attorney’s an fee review at the time the all occur profits did not lost 1988(b) of discre § for an abuse U.S.C. in- accrued, awarding prejudgment claim Edmond, City v. 160 tion.” Robinson of the claim accrued date terest from the Cir.1998). (10th 1275, We re 1280 F.3d plaintiffs. the a windfall to gives findings factual for court’s view the district error, legal conclu and the court’s clear in prejudgment purpose of “ novo. Id. sions de wronged the compensate ‘to terest is monetary being deprived party for appli files an A claimant who loss the time of the of his loss from value ” 1988(b) under attorney for catiоn fees judgment.’ Anixter payment to the of fee is prove has burden the that.the 1549, Co., F.2d Prod. 977 Home-Stake A rate is the Id. reasonable. reasonable Cir.1992) (10th Indus (quoting U.S. 1554 com rate in the relevant market prevailing 1256). tries, appears It 854 F.2d at Monahan, 73 F.3d Malloy v. munity. may in the case hand the district court Cir.1996). this To meet 1018 law found apply state have felt bound to burden, claimant the must: the Ann. 13-21-101 Colo.Rev.Stat. interest, which prejudgment of calculation satisfactory evidence—in addi- produce to be interest
provides
prejudgment
for
affidavits—
attorney’s own
tion to the
the
ac
from the date
action
calculated
in line with
requested
the
rates are
remand,
district
we direct the
crued. On
community
prevailing
those
of
award
timing
court to consider
by lawyers of reason-
services
similar
interest that will serve
prejudgment
of
skill,
experience
ably comparable
Africa House for
fairly cоmpensate
in this
A
determined
rate
reputation.
its
monetary
value
deprivation
reason-
normally
to be
way is
deemed
loss.
to—for
conve-
referred
able
market
prevailing
rate.
nience—as
IX.
Stenson,
n.
Blum v.
U.S.
also
contend
(1984).
79 L.Ed.2d
reducing
104 S.Ct.
district court erred
Here, the evidence fails to show that the
the district court enter a remittitur
requested rates were reasonable. While
order reducing the compensatory damages
Killmer submitted
affidavit as to the
$75,316.95
awarded to Africa
or,
House to
prevailing rates at
firm
his
and another
alternative,
to grant a new trial.
firm,
charged by attorneys
local
the rates
We AFFIRM the district court’s denial of
firm ranged
only
at the other
from
.$160
the defendants’ motion for a new trial for
per
An
Lynn
hour.
affidavit from
$190
alleged evidentiary errors. We RE-
Killmer,
Feiger,
partner
a former
stated VERSE the district court’s denial of the
only
charged
that she
per hоur for
$310
defendants’ motion for judgment as a mat-
type
same
of work. While
evi-
this
ter of law as
punitive
to the
rate,
dence
Feiger’s
serves to establish
it
awarded to Africa House and VACATE
does not establish the
charged
rates
were
the award of punitive damages. We RE-
*14
charged by
consistent with rates
compar- VERSE the district
granting
court’s order
ably
lawyers in
community.
skilled
prejudgment
interest at
the state rate
Similarly,
only
appro-
evidence of the
from the
accrued,
date the claim
and RE-
priateness
hourly
of Newman’s
rate was MAND for a determination of the rate of
provided
the affidavit of Killmer.
prejudgment interest and for a determina-
tion of the date or dates of accrual. We
that,
The defendants contend
in
AFFIRM the district court’s award of at-
rates,
relying
stead of
on their asserted
torney fees.
the district court incorrectly relied on its
However,
own knowledge.
we are unper
JENKINS, Senior District Judge,
by
argument.
suaded
this
a
Where
dis
concurring and dissenting.
trict court does not have before it ade
quate
prevailing
rates,
evidence of
I concur
majority
market
with the
opinion with
may
factors,
the court
use other
one
exception.
relevant
modest
I would reverse
including its own
the order
knowledge, to establish
of the court
dismissing
below
rate. See Case v.
Ms.
Sch. Dist.
Foote’s
award and reinstate her
Unified
233,
(10th Cir.1998).
No.
compensatory
We conclude that the district court did in finding not err failed Section 1981 persons states “[a]ll satisfy their burden establishing of ... shall have ... right the same to make of requested attorney reasonableness and enforce ... enjoyed contracts as is fees and in reducing those according rates (1994). white 42 citizens.” U.S.C. 1981 knowledge its own of prevailing Section 1982 states that “[a]ll citizens of market rate. the United States shall have the same right ... enjoyed by as is white citizens
X. inherit, lease, sell, thereof to purchase, hold, The decision of the district court dis- convey personal and real proper- (1994). missing Foote for lack of standing ty.” is AF- 42 U.S.C. 1982 Initially FIRMED. We VACATE the pursuant Rights enacted to the Act Civil of 1866, and direct the district court to dismiss sections 1981 and 1982 were “intend- Africa House’s claim of protect] intentional inter- ed ... [to citizens of the United ference with prospective in enjoyment business advan- States rights certain with- tages. We REVERSE the district race, court’s out discrimination on account of col- or, denial of request servitude,” the defendants’ previous a or condition of Cruikshank, remittitur and 542, REMAND with directions United States v. 92 U.S. 1080 because, Arlington claims (1875), and 1982 because
555,
or
L.Ed.
23
588
be
characteristics,
cannot
corporation
a
explains,
St Heights
ancestry
ethnic
or
their
of racial dis-
Al-Khazraji,
target
481 U.S.
or victim
direct
College v.
Francis
(1987),
2022, L.Ed.2d
the Court
Ar-
95
582
604, 107 S.Ct.
crimination.
a
whether a
[African-Americans]
“confer on
address
Heights
and to
did not
lington
enjoyed by
equivalent
if it were
standing
civil status
have
would
corporation
Stengel,
v.
discrimination,
persons.” Valle
white
target of racial
an indirect
(3d Cir.1949).
af
protection
697,
standing
is,
corporation
a
has
whether
roots in
its
finds
by these statutes
forded
injury
as lost
such
it suffers
when
Amend
Fourteenth
the Thirteenth
discrimina-
from
resulting
unlawful
profits
McCrary, 427 U.S.
v.
Runyon
ments. See
protected
at member
tion directed
168-72,
49 L.Ed.2d
96 S.Ct.
Heights
Arlington
indi-
since
class. Cases
Amendment);
(Thirteenth
v.
(1976)
Jones
harmed
that is
corporation
cate that
437-44,
Co.,
Mayer
392 U.S.
H.
Alfred
standing to liti-
discriminatory action has
(1968)
2186,
fendants Ms. Foote House.
tract with Africa injury resulting has an
asserting that she disciiminato-
directly from defendants’ her, and dis- separate
ry conduct towards *17 Africa House— n from that suffered tinct Bellows or dealt with in
an issue raised NELSON, being claim Barbara Jenenne than her Rather or Gersman. House,” Plaintiff-Appellee, if that of of “derivative deriva- House’s claim is anjdhing, Africa Ms. discrimination the unlawful tive of dealing firsthand experienced individually GERINGER, and in his Jim could Africa House
with the defendants. capacity State as Governor partic- her no contract without make BOENISCH, in his of- Wyoming; ED defen- jury found that the The ipation. capacity Adjutant General of as ficial to ob- Ms. Foote’s efforts frustrated dants Guard; Wyoming National lease, of Ms. and did so because tain a new Defendants-Appel- Wyoming, State race, harming Ms. thereby both Foote’s lants. House. Foote and Africa Association Guard Foote’s National Ms. majority dismisses States, Amicus Curiae. United merely of the economic product “a
harm