The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER ON PERCENTAGE OF DAMAGES APPLIED TO ATTORNEYS' FEES
Plaintiff, Mindy Kahle, brought a claim pursuant to 42 U.S.C. § 1983 against defendants Jermaine Leonard and Deputy Tim Malone for violating her civil rights.*fn1 In her complaint, Kahle alleged that while she was a pretrial detainee at the Pennington County Jail correctional officer trainee Leonard forced her to engage in nonconsensual sexual contact. Kahle further alleged that Malone, as the correctional officer training Leonard, failed to supervise Leonard, thereby allowing the nonconsensual sexual contact to occur.
Defendant Malone moved for summary judgment, in part based on his assertion that he was protected from suit by qualified immunity. This court denied Malone's motion for summary judgment and Malone appealed. The Eighth Circuit affirmed the denial of summary judgment in Kahle v. Leonard, 477 F.3d 544 (8th Cir. 2007). Malone subsequently petitioned the Eighth Circuit for a rehearing en banc, and when that was denied unsuccessfully petitioned the Supreme Court for a writ of certiorari.
After Malone's appeal rights were exhausted, a trial was scheduled. During the trial, Kahle submitted evidence in support of her claims of violation of her civil rights, of civil battery, and of intentional infliction of emotional distress against Leonard. Additionally, Kahle presented evidence on her claim of failure to supervise against Malone. The jury found in favor of Kahle on the three claims she asserted against Leonard. The jury found in favor of Malone on Kahle's failure to supervise claim. The jury awarded Kahle $600,000 in actual damages and $500,000 in punitive damages.
This court then determined that Kahle was entitled to attorneys' fees in the amount of $175,668.75 and sales tax of $10,540.13*fn2, for a total attorneys' fees award of $186,208.88. The court applied one percent of Kahle's $1.1 million judgment ($11,000) to attorneys' fees, leaving Leonard responsible for $175,208.88 in attorneys' fees and sales tax, in addition to the $1.1 million judgment. On appeal, the judgment was affirmed in all respects, except for the percentage of damages to be applied to Kahle's attorneys' fees under 42 U.S.C. § 1997e(d)(2). Kahle v. Leonard, 563 F.3d 736, 743 (8th Cir. 2009). This issue was remanded to this court to apply the factors articulated in Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir. 1984) (per curiam) and other relevant considerations. The Westerhaus factors are: "(1) the degree of culpability or bad faith, (2) the ability of the opposing part[y] to satisfy an award of attorneys' fees, (3) whether an award of attorneys' fees against the opposing part[y] could deter other persons acting under similar circumstances, and (4) the relative merits of the parties' positions." Kahle, 563 F.3d at 743.
Leonard moves to strike plaintiff's response brief contending that it raises entirely new and inappropriate claims and issues. As support for his motion, Leonard relies on F.T.C. v. Neiswonger, 580 F.3d 769, 775 (8th Cir. 2009). Neiswonger, however, addressed an issue that was raised for the first time in a reply brief, not a response brief as was the case here. A party responding to an argument raised by the other party has a right to raise its defense in a responsive brief.
Leonard further contends that plaintiff is improperly attempting to introduce the issue of insurance coverage into the litigation. Leonard argued in his brief that, "[h]is ability to satisfy an award of attorney's fees is minuscule." (Docket 274 at 30). Thus, he made this evidence relevant.
Furthermore, the second Westerhaus factor is the ability of the opposing party to satisfy an award of attorneys' fees. As a result, whether a party has insurance coverage that would satisfy an award of attorneys' fees is relevant. See Teamsters Local No. 145 v. Kuba, 631 F. Supp 1063, 1073 (D. Conn. 1986) (court instructed defendants in an ERISA case to provide "information concerning their ability to satisfy an award of attorneys' fees by insurance or otherwise"). The motion to strike this portion of Kahle's response is denied.
Lastly, Leonard argues in his motion to strike that unsuccessful settlement negotiation discussions should not be considered by the court. Leonard is correct that the success or unsuccessfulness of settlement negotiations is not a factor for the court to consider under the Westerhaus factors. Thus, the only issue is whether settlement negotiations are otherwise relevant. Kahle contends that settlement negotiations have been found relevant by other courts for the purpose of determining the size of a reasonable attorneys' fees award. See Lohman v. Duryea Borough, 574 F.3d 163 (3d Cir. 2009); Moriarty v. Svec, 233 F.3d 955, 967 (7th Cir. 2000); Parke v. First Reliance Standard Life Ins. Co., 368 F.3d 999, 1012 (8th Cir. 2004). But this court has already determined the size of the attorneys' fees award, so that issue is no longer relevant. Kahle has not identified any other relevant purpose for the evidence at this stage of the proceedings.
Therefore, the court grants Leonard's motion to strike that portion of Kahle's response and affidavit that addresses the settlement negotiations issue.
42 U.S.C. § 1997e(d)(2) states that, "[w]henever a monetary judgment is awarded [in an action brought by a prisoner], a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of the attorney's fees awarded against the defendant." Prior to Kahle, no circuit court had articulated factors for a district court to apply when determining an appropriate percentage under § 1997e(d)(2). Kahle, 563 F.3d at 743. The Eighth Circuit has now ...