A federal judge appeared to write the final chapter of “Monica Raab v. City of Ocean City” on April 6 when he ruled that everybody must pay their own bills from a lawsuit that stretched for more than three years and included more than $500,000 in combined attorney fees.
But Raab appealed U.S. District Court Judge Robert B. Kugler’s decision on May 4. She still wants Ocean City to pay for her attorneys.
Ocean City filed a cross-appeal on May 5. The city still wants Raab to pay for its attorneys.
And the saga continues.
The case illustrates the staggering costs of litigation that must be borne by Ocean City’s insurer and ultimately passed on to Ocean City taxpayers in the form of higher premiums.
It began five years ago on the morning of May 11, 2010, on West Atlantic Boulevard, a quiet north-end side street, when an Ocean City police officer began writing a ticket for an illegally parked garden trailer.
Raab claimed in an 11-count lawsuit filed in November 2011 that Patrolman Jesse Scott Ruch used excessive force and left her with permanent injuries as he tried to handcuff her after she confronted him about the ticket. Police reports and attorneys for the city suggest Raab was uncooperative, hysterical and a danger to her own safety.
In January, Raab accepted a $150,001 settlement to dismiss her claim against Ruch. By the time of the settlement, all but one count (including all counts against the City of Ocean City) had been dismissed by Kugler. He signed an order of dismissal for the case on Jan. 21, 2015.
All that remained was an argument over who pays the lawyers.
Raab seeks $229,316.50 in attorney fees and another $30,420.09 in costs. Her attorney, Paul R. Rizzo of the firm DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum of Warren, N.J., argued, in part, that she is a “prevailing party” in the suit.
But Kugler ruled on April 6 that the “plaintiff’s motion must be denied because she is not a prevailing party.”
“Plaintiff has not obtained a judgment on the merits; rather, Plaintiff and Officer Ruch entered into a private settlement agreement,” Kugler wrote in his opinion. “This Court did not facilitate the settlement, has never seen the settlement agreement, nor was it aware of any terms contained within the agreement when the Order was issued.”
_____
Sign up for free daily news updates from Ocean City.
_____
The City of Ocean City seeks to recover $206,782.30 in fees. Attorney Michael Barker argued that the city is a prevailing party not only because the all claims against the city were dismissed by the judge but because they were without foundation.
“Plaintiff’s claims against Ocean City may have been weak, but the Court cannot conclude that they were frivolous or without foundation,” Kugler wrote in denying the city’s motion to recover attorney fees. “Indeed, a district court must exercise caution in awarding fees to a prevailing defendant so as not to discourage legitimate lawsuits that may not be ‘airtight’ … for seldom can a prospective plaintiff be sure of ultimate success.”
The judge went on to note that a month prior to his confrontation with Raab, Ruch had been issued a performance notice, “wherein he was counseled by his supervisors for his lack of assertiveness and inability to take command in handling an unrelated incident.”
“Although the Court ultimately concluded that these facts did not sufficiently establish a policy or custom on behalf of Ocean City for inadequate training and supervision, it was not unreasonable for Plaintiff to argue such based upon these facts,” Kugler wrote.
A separate law firm, Reynolds and Horn of Marlton, represented Ruch for part of the lawsuit. The city will indemnify its employee and pay his separate legal fees through its Atlantic County Municipal Joint Insurance Fund (JIF).
Invoices requested by OCNJ Daily as of Oct. 30, 2014 show the city paid more than $274,000 for the combined fees of the city’s firm and Ruch’s firm. Those bills will continue to mount as the case has continued for an additional seven months.
