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Smith v. Bell Atlantic6/10/2005
ably expended and multiply it by a reasonable hourly rate, taking into account factors such as "complexity, the result obtained, and the experience, reputation, and ability of the lawyer." Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. at 324.
Smith argues that, because she was required by statute to bring her administrative claim before she could pursue her case in court, she is entitled to the fees and costs she incurred while the case was pending before the MCAD. We think, however, that the judge had discretion to consider the unfavorable MCAD finding in calculating a reasonable fee. Likewise, the judge's reduction for lack of success on some aspects of Smith's claims was well within the permissible bounds of her discretion. See Wynn & Wynn, P.C., v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 676 (2000).
Contrary to the company's position, the judge also acted within her discretion in awarding Smith fees and costs in connection with posttrial matters. That the company's motion for judgment notwithstanding the verdict was partially granted was reflected in the judge's calculations.
d. Prejudgment Interest
Smith argues that prejudgment interest should have been calculated from the date she filed her MCAD charge. We find no merit in this position.
The parties assume that an award of prejudgment interest in cases of this nature is governed by G. L. c. 231, § 6H, rather than § 6B. See Kuppens v. Davies, 38 Mass. App. Ct. 498, 500 & n.6 (1995). Regardless, both sections provide that interest is to be determined "from the date of commencement of the action." These words are to be interpreted literally. See Gill v. North Shore Radiological Assocs., 385 Mass. 180, 182 (1982).
The question remains, however, whether "commencement of the action" can be construed to refer to the initial filing of the claim with the MCAD. We agree with the analysis of the First Circuit in Blockel v. J.C. Penney Co., 337 F.3d 17, 29-31 (1st Cir. 2003), where, confronted with the identical question -- whether prejudgment interest runs from the date of the filing of a complaint under G. L. c. 151B, § 9, or from the filing of the charge with the MCAD -- the court held that "commencement of the action" logically refers to initiation of the lawsuit in court and not to the filing of the precourt agency action. See also Thibodeau v. Seekonk, 52 Mass. App. Ct. 69, 72 n.4 (2001), and cases cited. Compare Franklin Publishing Co. v. Massachusetts Commn. Against Discrimination, 25 Mass. App. Ct. 974, 974-975 (1988) (interest computed from date of original MCAD charge in case heard to conclusion by the MCAD). The trial court's computation of prejudgment interest was correct.
6. Conclusion
The corrected judgment entered on July 7, 2003, is affirmed. The parties shall bear their own legal fees and costs relating to this appeal.
So ordered.
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