Johnson v. Hugo's Skateway

974 F.2d 1408

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 8, 1992
• Docket: Nos. 90-2499, 90-2509
• Status: Published

Opinions

OPINION

NIEMEYER, Circuit Judge:

A jury awarded James H. Johnson, a black male, $25,000 compensatory damages and $175,000 punitive damages for racially motivated harassment and intimidation by Hugo’s Skateway, a roller skating rink in Warrenton, Virginia, in violation of § 8.01-42.1 of the Virginia Code. In addition, the district court awarded $15,654 for attorneys fees and expenses, although Johnson had filed requests for almost $138,000. On appeal from the judgment, Hugo’s contends that (1) the evidence was insufficient to support the jury’s finding of a statutory violation, (2) the award of compensatory damages was excessive, and (3) the award of punitive damages, in addition to being excessive, violated the Due Process Clause of the Fourteenth Amendment. Johnson cross-appealed, contending that the district court abused its discretion in awarding him only $15,000 for attorneys fees.

The issues were argued before a panel of this Court which affirmed the judgment below, except that the award of punitive damages was remanded for reconsideration by the district court with directions to conduct a post-verdict review, applying “standards similar to those enumerated by the Alabama courts” as described in Pacific Mut. Life Ins. Co. v. Haslip, — U.S. -, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). 949 F.2d 1338 (4th Cir.1991). The Court en banc thereafter granted Hugo’s petition for rehearing, ordering that the earlier panel opinion be vacated and the case reheard by the Court en banc.

We now affirm the jury’s finding of liability and its award of compensatory damages. Because we conclude, however, that the scheme applied in this case for awarding punitive damages denied Hugo’s due process in violation of the Fifth Amendment,¹ we vacate the award of punitive damages and remand for a new trial on punitive damages. Finally, we remand for further consideration the district court’s award of attorneys fees and expenses.

I

James H. Johnson, also known as James H. Ferebee (Johnson), is an adult black male who on February 17,1989, joined four white friends for an evening of roller skating at Hugo’s Skateway in Warrenton, Virginia. Hugo’s is an asset of Lois Leasing Firm, Incorporated, which is in turn co-owned by Hugo and Edith Stribling. Johnson was the only black patron at Hugo’s that night, the only other black person in attendance at the rink that evening being a Hugo’s employee.

About an hour before closing time, Hugo’s assistant manager, Daniel Wright, at the direction of Edith Stribling, approached Johnson at rinkside and asked Johnson to accompany him off the skating floor. When doing so, however, Wright asked only that Johnson accompany him to the “back room.” Wright admitted that he never told Johnson why he wanted to see him. Johnson asked what he had done wrong and offered to correct any perceived misbehavior on his part or to leave the premises if Wright wished him to do so, but Wright did not request that Johnson leave.

Johnson, an out-of-towner, testified that he felt threatened by the white manager’s unexplained request, in an overwhelmingly white establishment, to accompany him to a “back room.” While Johnson had had occasion to visit a room in the rear of the building previously, there was no evidence that Johnson was familiar with the “back room” to which Wright asked him to proceed that night.

When Johnson failed to do as he was instructed, Edith Stribling called the Fau-quier County Sheriff’s office. Some fifteen to thirty minutes later, Deputy Sheriff R. Edward Wines arrived. Deputy Wines had known the Striblings for years, having been formerly employed by the Striblings as a private security guard. Before Deputy Wines arrived at the rink, Stribling did not attempt to talk to Johnson, who sat on a bench directly in front of the glass-enclosed office where Stribling worked.

Upon arriving at the rink, Deputy Wines immediately approached and spoke with Stribling, who directed his attention to Johnson. Thereafter Deputy Wines arrested Johnson by throwing him to the ground, placing him in a choke hold, and handcuffing him. Johnson was transported to a magistrate’s office and then to the Fauquier County jail where he was held overnight without bond.

There is conflicting evidence as to Edith Stribling’s motivation for sending the assistant manager to get Johnson off the skating floor or calling the sheriff to effectuate Johnson’s removal from the rink. Edith Stribling testified that she saw Johnson, skating too fast, come up behind and lift a child out of Johnson’s way so that he could skate through. This dangerous activity was, according to Stribling, the reason for her actions. The assistant manager, Daniel Wright, indicated that he was sent to get Johnson because Johnson was skating in the center of the rink, an area designated for “special” skating, which had become too crowded.

Other evidence as to Stribling’s motivation came from one of her former employees who testified that Stribling made derogatory comments about mixed-race couples and that the Striblings were “biased against blacks.” Other testimony was offered that Stribling sent Wright to remove Johnson “shortly after” Johnson and a white female companion were seen skating together in the center of the rink.

Johnson filed this suit against both Hugo’s and Deputy Wines in the district court on November 13,1989, alleging deprivation of his civil rights under 42 U.S.C. ; false arrest and false imprisonment under Virginia common law; and racially motivated harassment and intimidation in violation of § 8.01-42.1 of the Virginia Code. Johnson also charged Deputy Wines with assault and battery under Virginia common law. At trial, the district court directed a verdict in favor of Hugo’s on the false arrest, false imprisonment, and § 1983 claims, and the jury returned a verdict against Hugo’s for racially motivated harassment and intimidation, awarding Johnson $25,000 compensatory damages and $175,000 punitive damages. The jury returned a verdict against Deputy Wines on all but the racial harassment and intimidation claim, and it awarded Johnson $200 compensatory and $500 punitive damages. On Johnson’s application for attorneys’ fees and expenses in the amount of $114,-778, as amended by a supplemental application for an additional $23,199, the district court awarded Johnson $15,654. The Commonwealth of Virginia was permitted to intervene in this case under 28 U.S.C. § 2403(b) in response to the constitutional challenge to the punitive damages provisions of Va.Code Ann. § 8.01-42.1.

II

Hugo’s contends first that the jury’s verdict against it was not supported by substantial evidence of acts of “intimidation or harassment” against Johnson which were “motivated by racial ... animosity.” See Va.Code Ann. § 8.01-42.-1(A).² In resolving this issue we must view all of the evidence in the light most favorable to Johnson, drawing all reasonable inferences in Johnson’s favor, and then determine whether a reasonable jury could have found a verdict in Johnson’s favor. See Foster v. Tandy Corp., 828 F.2d 1052, 1055 (4th Cir.1987). When isolating Hugo’s conduct from that of Deputy Wines, the question in this case becomes a close one, involving the sufficiency of circumstantial evidence and rational inferences to be drawn therefrom. Nevertheless, being mindful of the Seventh Amendment’s commission of factual questions to the jury and of our limited role of review, we conclude that the evidence was sufficient to support the verdict.

When Johnson arrived at Hugo’s Skate-way on February 17, 1989, Edith Stribling, one of the owners of Hugo’s, was working at the cash register and accepted Johnson’s payment for himself and two of the white women who accompanied him. According to testimony, Stribling’s views as to the propriety of interracial couples had been previously made known to her employees by comments such as “Did you see that hussy with that nigger?” Johnson was an accomplished skater and later that evening he endeavored to teach skating techniques to one of the women. The lesson was conducted in the center of the rink, a section set off by painted lines for skaters who would “like to do something a little out-of-the-ordinary.” The lesson was described by a Hugo’s employee as follows: “They [were] skating — one would get at one end, and one would go to the other. And they would come to the middle and meet, and they would grab hands and spin around in circles.”

Shortly after this, the rink’s assistant-manager, at Stribling’s behest, came up to Johnson and without explanation told Johnson “they wanted to see him in the back room.” Although the manager was an “elderly man,” Johnson stated that he was threatened and intimidated by him, a statement which the jury might have deemed credible. Johnson responded to the manager,

What am I doing wrong? Am I doing anything wrong? You know, tell me what I’m doing wrong because, you know, I can correct it. Or if you want me to, I’ll just leave. Whatever you want me to do, I’ll do.

Since Johnson refused to go to “the back room,” Stribling called the sheriff and, when Deputy Wines arrived at the rink, she instructed that Johnson be removed, despite a rink policy that skaters be warned up to three times for their misbehavior prior to their exclusion from the rink. A jury might reasonably have determined that the acts of sending the manager to intimidate Johnson and calling the sheriff to request Johnson’s removal from the rink constituted “acts of intimidation or harassment” under Va.Code Ann. § 8.01-42.1(A).

Furthermore, in light of the racial slurs used by Stribling, the testimony of a former employee who considered Stribling biased against blacks, the fact that ejection slips recorded the race of persons removed from the rink, and Hugo’s failure to post signs stating “Hugo’s Skateway admits and serves all persons on the same terms, without regard to race or color” or instruct its employees to admit and treat persons equally, as required by a consent order issued in April 1979, the jury reasonably could have found that the acts of harassment or intimidation by Hugo’s were “motivated by racial ... animosity.” Va.Code Ann. § 8.01-42.1(A).

Hugo’s argues that evidence of the 1979 consent order should not have been placed before the jury, claiming that its admission was contrary to Federal Rules of Evidence 408, 404(b), and 403. However, we will not reverse such an evidentiary decision made by the district court unless the decision constitutes “an abuse of discretion ‘amounting to manifest error.’ ” Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652, 654-55 (4th Cir.1988) (quoting Bituminous Constr., Inc. v. Rucker Enters., Inc., 816 F.2d 965, 968 (4th Cir.1987)).

In this case, evidence of the consent order was not admitted to prove the truth of the matters on which compromise had been reached, in violation of Fed.R.Evid. 408, i.e., that Hugo’s had in the past discriminated against blacks. Indeed, the district court repeatedly cautioned the jury that evidence of the consent agreement could only be considered to determine whether Hugo’s had posted the signs or instructed their employees as required by the agreement, which bore directly on the rink owners’ racial animus on February 17, 1989. See Yates v. Evatt, — U.S. -, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991) (discussing the “sound presumption of appellate practice, that jurors are reasonable and generally follow the instructions they are given”). The admission of this past conduct evidence was thus justified under Rule 404(b), which allows evidence of other wrongs for purposes such as proof of motive and intent. See United States v. Gilbert, 668 F.2d 94, 97 (2d Cir.1981) (admitting civil consent decree under Rules 408 and 404(b) to show defendant knew of SEC reporting requirements), cert. denied, 456 U.S. 946, 102 S.Ct. 2014, 72 L.Ed.2d 469 (1982). Given the probative value of the evidence that Hugo’s failed to comply with terms of the consent decree on the issues of motive and intent and the district court’s efforts to minimize any prejudicial effect on the defendants by way of instructions to the jury, we cannot say that the district court abused its discretion in determining that the relevance with regard to Hugo’s motive and intent outweighed the prejudicial effect of the consent decree’s admission into evidence. See Fed.R.Evid. 403. See also United States v. Heyward, 729 F.2d 297, 301 n. 2 (4th Cir.1984) (“The trial court has wide discretion [in applying Rule 403] and its determination will not be overturned except under the most ‘extraordinary’ of circumstances.”), cert. denied, 469 U.S. 1105, 105 S.Ct. 776, 83 L.Ed.2d 772 (1985).

Hugo’s also maintains that, even if the jury’s determination of liability was proper, the award of compensatory damages was demonstrably excessive, particularly in view of the small award returned by the jury against Deputy Wines. Deputy Wines was assessed only $200, whereas the jury required Hugo’s to pay compensatory damages in the amount of $25,000. Hugo’s urges that the only possible explanation for the disparity is that the acts of Deputy Wines inflamed the passions and biases of the jury to the point that the jury punished Hugo’s for Wines’ behavior.

The trial judge’s determination that a jury’s award of compensatory damages is not excessive will not be set aside unless “ ‘the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice.’ ” Johnson v. Parrish, 827 F.2d 988, 991 (4th Cir.1987) (quoting Aetna Casualty & Sur. Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir.1941)). Clearly there is a sizable disproportionality of the awards of compensatory damages given by the jury against Hugo’s and Deputy Wines, especially when one considers that only Wines physically harmed Johnson. In rendering its verdict, however, the jury found Hugo’s but not Wines culpable for racial harassment or intimidation. As the district court stated when it denied Hugo’s motion for judgment n.o.v., the jury simply could have chosen to view the racial harassment and intimidation as the more heinous wrong and awarded compensation accordingly. Because of the difficulty in measuring the amount appropriate to compensate for the emotional injuries resulting from these sorts of wrongs and the rational basis for distinguishing between the harm caused by Wines and that caused by Hugo’s, we cannot conclude that the award against Hugo’s was excessive.

Ill

Hugo’s next maintains, in reliance upon the Supreme Court’s decision in Pacific Mut. Life Ins. Co. v. Haslip, — U.S. -, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), and ours in Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991), that the punitive damages award against it cannot stand because Virginia’s scheme for awarding punitive damages provides insufficient standards for fixing the amount of such awards in violation of the Due Process Clause of the Fourteenth Amendment.³

In Haslip, the Supreme Court upheld Alabama’s scheme for awarding punitive damages against an attack that punitive awards in Alabama had become the product of “unbridled jury discretion” in violation of the Due Process Clause. Although the Court acknowledged that unlimited jury discretion in the assessment of punitive damages could result in a constitutionally infirm award, Haslip, — U.S. at -, 111 S.Ct. at 1043, it concluded that Alabama’s scheme, with its particular procedural and substantive protections, did not “cross the line into the area of constitutional impropriety.” Id. at -, 111 S.Ct. at 1046. While the Alabama jury instructions considered in Haslip resembled those typically given elsewhere, the almost de novo post-verdict and appellate reviews conducted by Alabama’s trial courts and the Supreme Court of Alabama provided “a sufficiently definite and meaningful constraint on the discretion of Alabama fact finders in awarding punitive damages” to satisfy due process. Id. at -, 111 S.Ct. at 1045. Under Alabama’s two-level review of punitive damages awards, the trial courts and the Supreme Court of Alabama review facts, take new evidence, find additional facts, and actually adjust jury awards of punitive damages. See Mattison, 947 F.2d at 104. Undertaking a constitutional calculus that considered all aspects of Alabama’s scheme (the jury instructions, the trial level post-verdict review, and the appellate review) in light of due process considerations of adequate guidance and reasonableness in effect, the Supreme Court concluded that punitive damages awarded in Alabama may have been close to the line of constitutional impropriety but did not “cross the line.” Haslip, — U.S. at -, 111 S.Ct. at 1046.

In Mattison, we applied the Haslip calculus to South Carolina’s scheme for awarding punitive damages, as applied in a federal court with diversity jurisdiction, and concluded that it violated the Due Process Clause of the Fifth Amendment. The South Carolina jury instructions authorized the jury to award such amount of punitive damages “as you believe will serve to punish ... and deter.” Mattison, 947 F.2d at 100. The jury was permitted to consider the defendant’s ability to pay, but no other constraint or instruction guided the jury. Because the case was tried in federal court, the state post-verdict review process which proved so critical in Haslip was supplanted by federal rules and procedures for reviewing verdicts.⁴ The combination of undirected jury instructions and federal review standards (which themselves provide little constraint in reviewing jury findings, as mandated by the Seventh Amendment) was thus held to deny the defendant due process.

Hugo’s argues that the “standardless” jury instructions given in accordance with state-formulated instructions in this case, in combination with the limited scope of review afforded by Rules 50(b) and 59 of the Federal Rules of Civil Procedure, provide even less definition than the scheme found unconstitutional in Mattison. We agree.

The jury in this case was instructed by the district court that it was permitted to award punitive damages to punish and to deter the defendants’ conduct if the conduct was “maliciously or wantonly or oppressively done.”⁵ As to the amount, the complete instruction directed, “[Y]ou may add to the award of actual damages such amount as you shall unanimously agree to be proper as punitive or exemplary damages.” No guidance about what to consider in fixing the “proper” amount was given, but, as is standard in instructing a jury, the jury was admonished that when deliberating it must fix the amount “with calm discretion and sound reason” and never out of “sympathy or bias or prejudice.”

Given this instruction to the jury, which in essence embodied no standard for quantitatively assessing punitive damages against Hugo’s, the only possible source of constraint on the amount of the award of punitive damages in this case was the trial court’s review for “excessiveness” under Rules 50(b) and 59 of the Federal Rules of Civil Procedure, as well as our review of the district court’s decision under an abuse of discretion standard.⁶ As Mattison made clear, the degree of scrutiny afforded by these processes is insufficient to remedy an instruction which leaves the jury with nearly absolute discretion to enter any amount of punitive damages it deems “appropriate to punish and deter.” See 947 F.2d at 101. Thus, under the reasoning of Haslip and Mattison, we conclude that the scheme utilized to award punitive damages in this case violated the Due Process Clause of the Fifth Amendment.

This conclusion, however, does not compel final judgment for Hugo’s on the issue of punitive damages, as requested by Hugo’s. For we do not necessarily agree that Virginia’s scheme for awarding punitive damages, as applied in the state courts of Virginia, is also constitutionally inadequate and that, therefore, no punitive damages award by a federal court applying Virginia law could stand. While the jury instructions regarding punitive damages given by the district court in this case were undoubtedly the same as, or quite similar to, those given by the state trial courts in Virginia, the factors applied by Virginia’s courts in the post-verdict review process, which appear to provide more constraint on the verdict than was permitted the district court by Federal Rules of Civil Procedure 50(b) and 59, were not considered at any step of the trial. Consequently, to determine whether remand for a new trial is appropriate in this case, we consider (1) whether the district court should have incorporated the post-verdict criteria of Virginia’s law into the instructions it gave to the federal jury and (2) whether their addition may allow an award of punitive damages without violating the Due Process Clause of the Fifth Amendment.

The principles of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), require a federal court in a diversity case to respect and enforce state-created rights in a manner such that litigation of state-based rights in federal court does not yield results materially different from those attained in the state courts.⁷ The Supreme Court, addressing the substantial variations that were then perceived between state and federal litigation, overruled the rule of Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), and established a rule, without drawing hard lines, that “federal courts are to apply state ‘substantive’ law and federal ‘procedural’ law.” Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965). Generally, then, federal courts applying state-created law are still to conduct those trials under federally established rules of procedure.

The allocation between judge and jury of the fact-finding responsibility is a procedural matter, see Burcham v. J.P. Stevens & Co., Inc., 209 F.2d 35, 40 (4th Cir.1954) (“Whether a question is one for the decision of the court or of the jury is a question of federal practice as to which we are governed by federal and not by state decisions.”), and, in the federal context, is largely informed by the principles embodied in the Seventh Amendment. See Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537, 78 S.Ct. 893, 900, 2 L.Ed.2d 958 (1958). Although a state court in assessing punitive damages may apportion fact-finding responsibilities between judge and jury,⁸ we have held that in a federal court the jury performs those functions. See Defender Indus., Inc. v. Northwestern Mut. Life Ins. Co., 938 F.2d 502, 507 (4th Cir.1991) (en banc). Under these principles a district court applying state law may look beyond the state-formulated jury instructions to the state’s post-verdict review criteria when incorporating into its instructions the state’s substantive punitive damages law, as required by Erie. See Mattison, 947 F.2d at 108-09. We thus conclude that if state law assigns the trial or appellate court a post-verdict role in assessing the reasonableness of a punitive damages award and specifies certain factors to be considered in making that assessment, then this body of substantive law must also be applied in federal court, but in a manner that permits consideration by the jury as the sole fact finder, rather than by the judge.⁹ See Mattison, 947 F.2d at 108-110.

Having concluded that a federal court should incorporate the whole scheme established by a state’s substantive law, we next turn to Virginia’s scheme for awarding punitive damages. We note at the outset that neither Virginia’s Supreme Court nor its legislature has spoken to the scope of review of a jury’s award of punitive damages in light of the Haslip decision. Cf. Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350, 354 (1991) (establishing eight factor post-trial review of punitive damages awards in wake of Haslip); Alexander & Alexander, Inc. v. B. Dixon Evander & Assoc., Inc., 88 Md.App. 672, 596 A.2d 687, 711-12 (Spec.App.) (establishing “proper guidance” for jury’s consideration of punitive damages awards in wake of Haslip), cert. denied, 323 Md. 1, 590 A.2d 158 (1991); Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897, 908 (1991) (establishing “a new system for the review of punitive damages” in wake of Haslip). It would appear that the Haslip decision has, at least, compelled most state courts which have subsequently faced the due process issue to reconsider the constitutionality of their schemes for assessing punitive damages. In the absence of a definitive statement from Virginia’s highest court, it is thus one part of our duty to predict the effect, if any, that the Haslip decision might have upon Virginia law. See Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th Cir.1992) (In defining substantive state law, if unclear, federal courts must predict the decision of the state’s highest court.).

It is clear that Virginia has made the choice to employ punitive damages as a means to punish malicious, wanton, or reckless behavior which falls within the jurisdiction of the Commonwealth and to provide the proceeds of the punishment to the victims of such behavior. See, e.g., Wallen v. Allen, 231 Va. 289, 343 S.E.2d 73, 78 (1986). Moreover, with regard to the award of punitive damages in the area of racial harassment or intimidation, the Virginia legislature has explicitly spoken. See Va.Code Ann. § 8.01-42.1(B). Furthermore, unlike South Carolina’s scheme for reviewing a jury’s assessment of punitive damages that we found lacking in Matti-son, Virginia’s scheme has never left the award of punitive damages to the unbridled discretion of the jury. See Stubbs v. Cowden, 179 Va. 190, 18 S.E.2d 275, 280 (1942). Indeed, at one time or another Virginia courts have applied almost all of the Matti-son factors to reverse a jury’s award of excessive punitive damages. Compare Mattison, 947 F.2d at 110 (considering (1) the relationship of punitive damages to the harm caused (proportionality); (2) other penalties assessed for the punished behavior; (3) benefits obtained from the wrongful conduct and costs incurred by the victim to redress it; and (4) limitations based on the wrong-doer’s ability to pay)¹⁰ with Stubbs, 18 S.E.2d at 280 (upholding trial court’s decision to set aside punitive damages verdict based on proportionality and ability of defendant to pay); Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 746-47 (reversing jury award of punitive damages based on lack of “some reasonable relationship” between actual damages sustained and the amount of punishment required), cert. denied, 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 643 (1985); and Tazewell Oil Co., Inc. v. United Virginia Bank, 243 Va. 94, 413 S.E.2d 611, 621-22 (1992) (upholding trial court’s decision to limit punitive damages award based on double recovery by plaintiff). This suggests, at least, an amenability of the Virginia courts to the use of a Haslip-type inquiry, even if the law would not necessarily appear explicitly to direct in each case the same sort of review deemed acceptable by the Supreme Court in Haslip.

Thus, we can safely say that the substantive law of Virginia contemplates punitive damages awards which are proportional to the award of compensatory damages given in a particular case, see Stubbs, 18 S.E.2d at 280; that do not afford double recovery to the plaintiff, see Tazewell Oil, 413 S.E.2d at 621-22; and that are given only after consideration of the effect of the award on the defendant, see Harris, 325 S.E.2d at 747. Furthermore, while we find no Virginia case directly on point, based on the Commonwealth’s expressed preference for authorizing punitive damages for violation of the statute involved in this case, see Va.Code Ann. § 8.01-42.1(B), and our view of the Supreme Court’s decision in Haslip, we also expect that Virginia would consider as part of its double recovery analysis other civil or criminal penalties levied on the defendant and, as part of its proportionality analysis, the benefits derived from the wrongful conduct and plaintiff’s costs in redressing the wrong. Cf. Harris, 325 S.E.2d at 747 (requiring relationship between the amount of punitive damages awarded and “the measure of punishment required”).

To give effect to Virginia’s substantive law of punitive damages, amplified as we expect it would be upon Virginia’s review of the implications of Haslip, and to assign the fact-finding responsibility in accordance with federal procedural law, a federal district court applying Virginia’s law of punitive damages shall instruct the jury to consider what are essentially the same four factors described in Mattison, 947 F.2d at 110, in making a punitive damage assessment. Because the jury was not so instructed in this case, we vacate the punitive damages award and order a new trial on them.

IV

Finally, on cross-appeal, Johnson contests the district court’s limitation on his attorneys fees and expenses to $15,654 in the face of an initial request of $114,778 and a supplemental request of an additional $23,199.

Section 8.01-42.1(B) of the Virginia Code gives to the trial court discretion to make “an award of the cost of the litigation and reasonable attorneys’ fees in an amount to be fixed by the court.” Such discretionary fee awards are reversed on appeal only if “ ‘under all the facts and circumstances [the award] is clearly wrong.’ ” Lea v. Cone Mills Corp., 467 F.2d 277, 279 (4th Cir.1972) (quoting United States v. Anglin & Stevenson, 145 F.2d 622, 630 (10th Cir.1944), cert. denied, 324 U.S. 844, 65 S.Ct. 678, 89 L.Ed. 1405 (1945)). Because the exercise of discretion in awarding attorneys fees typically is based on first-hand knowledge of the case and factors bearing on the reasonableness of a fee, we will not ordinarily disturb the award “even though we might have exercised that discretion quite differently.” National Wildlife Fed’n v. Hanson, 859 F.2d 313, 317 (4th Cir.1988).

In this case the district court found Johnson’s fee application to be “manifestly excessive,” noting that the case was an uncomplicated assault action infected by racial animus, which should have taken much less than the 914.5 hours of work claimed by counsel for Johnson. Moreover, Johnson’s counsel apparently asked the district court, as it asks us, to ignore the fact that much of the work done on this case was performed in anticipation of the litigation against Deputy Wines, with whom it appears Johnson ultimately reached a settlement for an unknown amount of money. Considering the standard of review, we find no fault with the district court’s decision to reduce Johnson’s fee application on these grounds.

It would appear, however, that the district court may also have reduced the ultimate fee award as a result of Johnson’s success on only one of the Three counts raised against Hugo’s, despite the fact that he received a sizable verdict and that all three counts arose from “a common core of facts.” See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Abshire v. Walls, 830 F.2d 1277, 1282-83 (4th Cir.1987). Because the extent to which that impermissible factor contributed to the final fee award, if at all, is not clear from the record, and in light of our understanding that a second supplemental fee request, not yet considered by the district court, is still pending, we remand the entire attorneys fees issue to the district court for further consideration, as needed, when it considers the second supplemental request and any further requests for fees and expenses.

V

Accordingly, we affirm the judgment insofar as it reflects the jury’s finding of liability and award of compensatory damages. We vacate the award of punitive damages and remand for a new trial on punitive damages. Finally, we remand for further consideration the district court’s award of attorneys fees.

JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR PARTIAL NEW TRIAL AND RECONSIDERATION OF THE AWARD OF ATTORNEYS FEES.

1 . Although Hugo’s claims that the "standard-less" instructions to the jury in this case resulted in an award of punitive damages which violated the Due Process Clause of the Fourteenth Amendment, because the governmental action involved a federal tribunal, we conduct our analysis under the Due Process Clause of the Fifth Amendment.

2 . In full, section 8.01-42.1(A) of the Virginia Code provides:

An action for injunctive relief or civil damages, or both, shall lie for any person who is subjected to acts of (i) intimidation or harassment or (ii) violence directed against his person; or (iii) vandalism directed against his real or personal property, where such acts are motivated by racial, religious, or ethnic animosity.

3 . For the reasons given in footnote 1, above, we consider this claim under the Due Process Clause of the Fifth Amendment.

4 . When Mattison was initially tried, South Carolina’s post-verdict review process provided the trial court with discretion to review the award only for excessiveness. See Mattison, 947 F.2d at 100 (citing Hicks v. Herring, 246 S.C. 429, 144 S.E.2d 151, 154 (1965)). By the time a panel of this Court resolved the due process issue on appeal, however, the Supreme Court of South Carolina had adopted a more detailed post-verdict review process to comply with Haslip. See id. 947 F.2d at 106 (citing Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991)).

5 . Hugo’s has not contended that this instruction, based on Virginia common law, was erroneously given, and in the absence of further defining language in Va.Code Ann. § 8.01-42.1(B) (authorizing awards of punitive damages for violations of that statute), we agree with the parties’ assumption that the statute incorporates the Virginia common law of punitive damages, including its standards for award and restrictions on amount. Under Haslip the instruction would satisfy the requirements of due process for determining whether to award punitive damages. See Haslip, — U.S. at -, 111 S.Ct. at 1044.

6 .Under Virginia law there is actually a third limit on the jury’s discretion in fixing an amount of punitive damages — a statutory cap of $350,000, applicable to any action accruing on or after July 1, 1988. See Va.Code Ann. § 8.01-38.1. We cannot say, however, that the mere existence of the cap will in every case, or even in this case, insulate from attack an otherwise arbitrary award of punitive damages.

7 . Although federal jurisdiction in this case was invoked under 28 U.S.C. §§ 1331 & 1343 based on the counts brought under 42 U.S.C. § 1983, the statutory claim on which Johnson succeeded against Hugo's is a pendent state claim. Accordingly, the federal court was required to apply state law as would a court exercising diversity jurisdiction under 28 U.S.C. § 1332. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).

8 . The states are not bound by the U.S. Constitution to give the same degree of deference to the jury’s decisions as are the federal courts. See U.S. Const.amend. VII; see also Mattison, 947 F.2d at 99 n. 1 (noting that the Seventh Amendment does not bind the states).

9 .For example, in Haslip the Supreme Court upheld Alabama's scheme, despite jury instructions which gave broad discretion to the jury, in light of the seven-factor review of the punitive damages award by the trial court, in addition to appellate review of the trial court’s decision. If the same case were later to arise in federal court in Alabama, Erie would require the same factors considered by the court under state law to be considered in assessing punitive damages in federal court and, in our view, federal procedure would require that these factors be given to the jury for consideration and be reviewed by the district court under the standards given in FedJR.Civ.P. 50(b) and 59.

10 . More completely, the four aspects given in Mattison for jury instructions are:

(1) Relationship to harm caused: Any penalty imposed should take into account the reprehensibility of the conduct, the harm caused, the defendant’s awareness of the conduct’s wrongfulness, the duration of the conduct, and any concealment. Thus any penalty imposed should bear a relationship to the nature and extent of the conduct and the harm caused, including the compensatory damage award made by the jury.

(2) Other penalties for the conduct: Any penalty imposed should take into account as a mitigating factor any other penalty that may have been imposed or which may be imposed for the conduct involved, including any criminal or civil penalty or any other punitive damages award arising out of the same conduct.

(3) Improper profits and plaintiff’s costs: The amount of any penalty may focus on depriving the defendant of profits derived from the improper conduct and on awarding the costs to the plaintiff of prosecuting the claim.

(4) Limitation based on ability to pay: Any penalty must be limited to punishment and thus may not effect economic bankruptcy. To this end, the ability of the defendant to pay any punitive award entered should be considered.

947 F.2d at 110.