United States District Court, W.D. North Carolina, Charlotte Division
ORDER AND AMENDED JUDGMENT
D. Whitney Chief United States District Judge.
MATTER is before the Court on Plaintiff's Motion to Elect
Remedies (Doc. No. 86), Plaintiff's Motion for
Attorney's Fees. (Doc. No. 56), and the remaining portion
of Plaintiff's Motion for Amended Judgment (Doc. No. 64)
related to the trebling of damages. Defendant opposes all
motions. For the reasons that follow, Plaintiff's Motion
to Elect Remedies is GRANTED, Plaintiff's Motion for
Amended Judgment (Doc. No. 64) is GRANTED IN PART as to
treble damages, and the Motion for Attorney's Fees is
GRANTED IN PART and DENIED IN PART. Also before the Court is
Defendant's Second Unopposed Motion to Supplement Record
on Appeal (Doc. No. 105). In light of the Fourth Circuit
Court of Appeal's dismissal of the original appeal (Doc.
No. 106), this motion is DENIED AS MOOT.
trial, a jury entered a verdict in favor of Plaintiff finding
Defendant terminated Plaintiff's employment and in doing
so, violated North Carolina's Retaliatory Employment
Discrimination Act (“REDA”) and Wrongful
Discharge in Violation of Public Policy (“WDPP”).
(Doc. No. 52, pp. 1-2). The jury found Plaintiff was entitled
to $65, 000 for the REDA claim and the wrongful discharge in
violation of public policy claim. Id. The jury also
returned a verdict in favor of Plaintiff for his battery,
negligent supervision, and retention claims and awarded him
$4, 000 for each count. Id. at 2-3. Following
post-trial motions, this Court reversed the jury verdict for
Plaintiff on his tort claims and affirmed the verdict with
respect to Plaintiff's REDA and WDPP termination claims.
(Doc. No. 85). The Court granted Defendant's Motion to
Order Plaintiff to Elect Remedies (id.), and
Plaintiff subsequently filed the instant motion. Plaintiff
has also requested attorney's fees under REDA; however,
because that motion could be impacted on Plaintiff's
election of remedies, the Court held ruling until now. In
short, Plaintiff seeks an award of attorneys' fees under
REDA in the total amount of $633, 099.95, based on a lodestar
fee and enhancements. The Court addresses these motions in
Motion to Elect Remedies and Motion to Amend
Plaintiff's motion elects to recover $250, 000 of the
jury's $681, 000 punitive damages award on his common law
WDPP claim, and, under the REDA, Plaintiff elects to recover
his untrebled compensatory damages in the amount of $65, 000
and statutory attorneys' fees. Plaintiff argues he is
required to elect his remedies-not his cause of action.
Plaintiff argues United Labs. v. Kuykendall, 335
N.C. 183, 194 (1993), suggests he can recover common law
punitive damages and statutory attorneys' fees here.
Plaintiff contends the sums do not amount to double recovery
and they have entirely distinct policy motivations. Defendant
disagrees, arguing Plaintiff's “mix and
match” approach “impermissibly cherry-picks the
verdict and violates well-founded principles that Plaintiff
concedes prohibit double recovery for the same injury.”
(Doc. No. 92, p. 1). In the alternative, Plaintiff elects to
recover compensatory damages ($65, 000), treble damages
($130, 000), and his attorneys' fees under REDA in the
event that the Court does not allow his first choice.
first to Plaintiff's request to elect both punitive
damages under the WDPP claim, as well as untrebled
compensatory damages and attorneys' fees on the REDA
claim, the Court disagrees with Plaintiff's
interpretation of and reliance on United Labs. In
that case, the North Carolina Supreme Court considered
“whether United, having succeeded at trial on both its
common law tortious interference claim and its unfair
practices claim, may recover both punitive damages in its
common law claim and untrebled compensatory damages and
attorneys fees in its unfair practices claim.”
United Labs., 437 S.E.2d at 378. The court explained
a party may not recover punitive damages for tortious conduct
and treble damages for a violation of Chapter 75 based on
that same conduct:
Where the same source of conduct gives rise to a
traditionally recognized cause of action, as, for example, an
action for breach of contract, and as well gives rise to a
cause of action for violation of G.S. 75-1.1, damages may be
recovered either for the breach of contract, or for violation
of G.S. 75-1.1, but not for both.
Marshall, 47 N.C.App. at 542, 268 S.E.2d at 103. We
held in Ellis that plaintiffs, who sued for libel
and for an unfair practice under Chapter 75 based on that
libel, had to elect between recovering compensatory and
punitive damages in the libel claim and treble damages in the
unfair practice claim. Ellis, 326 N.C. at 227-28,
388 S.E.2d at 132.
Ellis and Marshall are distinguishable.
[the defendant's] conduct which gives rise to an award of
attorneys fees is not the same conduct that gives rise to an
award of punitive damages. To recover punitive damages at
common law a plaintiff must show that the defendant acted in
a willful or oppressive manner. Hardy v. Toler, 288
N.C. 303, 218 S.E.2d 342. To recover attorneys fees for
unfair practices, however, the plaintiff must also show that
“there was an unwarranted refusal by [the defendant] to
fully resolve the matter which constitutes the basis of ...
the suit.” N.C. G.S. § 75-16.1(1). Since recovery
of attorneys fees requires proof different from that which
gives rise to punitive damages, the claims do not arise from
“the same course of conduct.” Marshall,
47 N.C.App. at 542, 268 S.E.2d at 103.
United Labs., 437 S.E.2d at 379-80.
permitting the election, the North Carolina Supreme Court
held, “[S]ince the conduct required for an award of
attorneys fees is different from the conduct required for an
award of punitive damages and since the two recoveries serve
different interests, permitting the plaintiff to recover both
will not result in ‘double redress for a single wrong .
. . .” Id. at 381 (quoting Smith
v. Oil Corp., 79 S.E.2d 880, 885 ( N.C. 1954)). The
court therefore stated the prevailing party was not required
to elect between the two and could recover punitive damages
in its tort claim and attorneys fees in its unfair practice
claim. United Labs., 437 S.E.2d at 381.
Labs is distinguishable from the case at bar. During
trial, Plaintiff relied on the same conduct to support his
claims under ...