Full opinion text
FRANK A. KAUFMAN, Chief Judge. Plaintiff Korotki, pursuant to 42 U.S.C. §§ 1983 and 1985 and state based law, instituted this case seeking damages and injunctive relief against eleven defendants who may be grouped as the “Maryland defendants,” the “Delaware defendants,” the “Fenwick Island defendants” and one defendant, “Sussex' County, Delaware.” Subsequently, plaintiff entered into a Stipulation of Voluntary Dismissal of his claims against all of the Maryland and Delaware defendants and a Stipulation of Dismissal with defendant, Sussex County, Delaware, of his claims against that defendant. Accordingly, this case proceeded to trial only against the four Fenwick Island defendants who are the Town of Fenwick Island, Delaware (“Fenwick Island”); the Fenwick Island Police Chief, Cartwright; a Fenwick Island policeman, Goughan; and a Fenwick Island Alderman, Barton. In his complaint, plaintiff alleges that the Fenwick Island defendants subjected him to an unconstitutional arrest and to violations of his due process and equal protection rights and, inter alia, took such actions in violation of the Non-Resident Violator Compact in order to raise revenues for the Town’s treasury. Subject matter jurisdiction in connection with plaintiff’s 1983 and 1985 claims is present pursuant to 28 U.S.C. § 1343. Pendent jurisdiction exists over plaintiff’s state law conspiracy claim because the latter arises from a “common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). After a jury trial was held and the jury returned special verdicts under Federal Civil Rule 49(a), which verdicts were largely favorable to plaintiff and entitled plaintiff, under applicable principles of law, to judgments herein against defendants Goughan, Cartwright and Town of Fenwick Island, defendants filed a number of post-trial motions. Plaintiff has also pursued in the post-trial period his quest for attorneys’ fees pursuant to 42 U.S.C. § 1988. The jury’s answers to the special questions include awards of compensatory damages in the amount of $14,861.78 against each and all of the Fenwick Island defendants, punitive damages in the amount of $5,000 against each of the three individual defendants, and punitive damages in the amount of $100,000 against the defendant Town of Fenwick Island. I. FACTS The facts can be gleaned from the jury’s answers to Federal Civil Rule 49(a) special verdicts and from the stipulations entered into by the parties. On October 1, 1976 at approximately 4:30 p.m. plaintiff, accompanied by a female companion, was operating his 1976 Corvette automobile in the area of Fenwick Island, Delaware, in a southerly direction, en route to his condominium at the English Towers, Ocean City, Maryland. Defendant Goughan, a uniformed patrolman on the Fenwick Island police force, was operating a police vehicle owned by the Town of Fenwick Island. Travelling behind plaintiff’s vehicle, Goughan activated his siren and flashing lights and signaled to plaintiff to stop his vehicle by the side of the road. The jury found that plaintiff stopped his vehicle at “the earliest practicable opportunity” and that the stop occurred within the State of Maryland. After the stop, plaintiff, at Goughan’s request, handed his driver’s license and registration to Goughan. Goughan informed plaintiff that plaintiff had exceeded the 35 mile per hour posted speed limit in Fenwick Island, Delaware, and ordered plaintiff to return to the Fenwick Island Town Hall to stand trial immediately. The jury found that plaintiff was not speeding in Fenwick Island and that Goughan did not act with “a reasonable good-faith belief that Korotki was driving carelessly in Fen-wick Island, Delaware.” Plaintiff, at the place of the stop, with knowledge that Goughan was a Delaware — and not a Maryland — police officer, refused to return to Fenwick Island and requested, instead, that Goughan return plaintiff’s driver’s license and registration and issue to plaintiff a citation. The NonResident Violator Compact, then in effect between Maryland and Delaware, provides, inter alia, that a traffic offender apprehended in a state other than the state of his residence shall be afforded the opportunity (1) to stand trial immediately in the jurisdiction in which the offense occurred or (2) to receive a voluntary assessment form, (e.g. citation), and (a) to pay a fine by mail or (b) to appear for trial at a later date in the jurisdiction in which the offense occurred. Goughan refused plaintiff’s request and insisted that plaintiff immediately accompany Goughan to the Fen-wick Island Town Hall. Plaintiff, after stating to Goughan that plaintiff was going to drive his companion to the English Towers and that plaintiff would then meet Goughan at the Ocean City Police Department, drove from the scene of the stop, without Goughan’s permission, leaving plaintiff’s license and registration in Goughan’s possession, and headed toward the English Towers. The jury found that Goughan manuevered his vehicle in order to try to force Korotki to pull over to the side of the highway. The jury further found that Goughan “attempted to prevent the Korotki vehicle from turning into the entrance to the English Towers.” The jury did not accept the testimony of plaintiff and his companion that Goughan, while the two vehicles were proceeding between the place of the stop and English Towers, pointed a gun at the Korotki vehicle. After plaintiff reached the English Towers, Goughan drove to the Ocean City Police Department and attempted to contact Ocean City Police Commissioner Treadwell in order to have a warrant issued for plaintiff’s arrest. The Commissioner, upon the advice of the then State’s Attorney for Worcester County, Maryland, Crawford, refused to issue a warrant for plaintiff’s arrest. Thereafter, Goughan returned to the Fenwick Island Town Hall and contacted defendant Barton, then a judge of the Alderman’s Court in the Town of Fenwick Island. Barton, who had jurisdiction over traffic offenses committed within the incorporated limits of Fenwick Island, Delaware, and who was empowered to issue arrest warrants for persons committing offenses within the Town, placed a telephone call to the Ocean City Police Department in an effort to speak with Tread-well. This Court, pursuant to its reserved authority under Federal Civil Rule 49(a) and in general conformity with and in the absence of any evidence to the contrary, hereby determines that Barton placed the call in order (a) to ascertain the factual circumstances surrounding the inci-. dent and (b) to decide whether issuance of an arrest warrant was appropriate. It is to be noted that Barton did not reach Tread-well and did not issue a warrant for plaintiff’s arrest. Goughan next prepared two traffic citations against plaintiff. The first charged plaintiff with speeding in violation of Title 21, Section 4169(b) of the Delaware Code; the second charged plaintiff with careless driving in violation of Title 21, § 4176 of the Delaware Code. Goughan on October 1, 1976 also advised defendant Orr, then Chief Judge of the Justice of the Peace Court No. 2 in Nassau, Delaware, of the facts surrounding plaintiffs stop. Judge Orr issued two warrants for plaintiffs ar-’ rest, based upon the two traffic citations issued by Goughan and Goughan’s report of plaintiff’s failure to obey Goughan’s order to accompany Goughan to the Fenwick Island Town Hall. Goughan caused a report to be filed with the Department of Public Safety of the State of Delaware, stating that plaintiff had failed to comply with the traffic citations. Pursuant to the Compact, the State of Delaware notified the State of Maryland Motor Vehicle Administration of plaintiff’s failure to comply with the Delaware citations. Based upon that notification, the Maryland Administrator initiated, in 1977, license suspension proceedings against plaintiff. After an administrative hearing and two unsuccessful appeals, plaintiff’s driving. license was ordered suspended unless plaintiff promptly appeared in a Delaware court in response to the Delaware citations. Thereafter, plaintiff filed a complaint in this Court, styled Korotki v. Intermann, B-77-1657, in which plaintiff, inter alia, sought relief pursuant to 42 U.S.C. §§ 1983 and 1985 for alleged violations of plaintiff’s constitutional rights arising from the above-described traffic incident. Specifically, plaintiff therein sought to enjoin the Delaware and Maryland authorities from taking any action affecting plaintiff’s driving privileges. In a Memorandum and Order filed on August 28, 1978, Judge Blair of this Court dismissed plaintiff’s complaint, holding that pursuant to the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its progeny, this Court would not enjoin the pending Maryland and Delaware state proceedings. In that connection, Judge Blair wrote: “The court finds that principles of comity and federalism require it to abstain from consideration of each of plaintiff’s claims until he has had an opportunity to assert his rights in appropriate state forums.” Subsequently, plaintiff, appearing in the Justice of the Peace Court Number Two for Sussex County in November, 1979, and in the Superior Court of Sussex County, Delaware, in July, 1980, was found not guilty of both the speeding and careless driving charges originally lodged against him. The Motor Vehicle Administration of the State of Maryland, upon notification of the outcomes of those Delaware court proceedings, withdrew the pending Maryland license suspension proceedings against plaintiff. The jury found, in ánswer to special questions, that Fenwick Island policemen, on or about October 1, 1976, followed a policy and a procedure of requiring out-of-state motorists, who were stopped by a Fenwick Island police officer on charges of speeding or careless driving, immediately to accompany the officer to the Fenwick Island Town Hall; that Fenwick Isiand policemen, on or about October 1, 1976, followed a policy and a procedure of pursuing out-of-state motorists from Delaware into Maryland in order to issue traffic tickets to motorists for careless driving or speeding and in order to require such motorists immediately to accompany the police officer to the Fenwick Island Town Hall; and that Fenwick Island policemen, as a matter of policy and practice in force and effect on or about October 1, 1976, did not comply with the terms of the Non-Resident Violator Compact. Further, the jury found that Police Chief Cartwright and Judge Barton personally participated in the adoption and enforcement of those policies and procedures; that Cartwright, Barton and the Town of Fenwick Island all knew, authorized or acquiesced in such policies and procedures; and that the Town of Fenwick Island directly participated in the formulation, adoption and enforcement of such policies and procedures. The jury additionally found that Goughan, Barton and Cartwright did not act in good faith in observing the Compact and that all three of the defendants as well as the Town itself acted intentionally, wantonly and willfully. Based upon those findings and in accordance with this Court’s instructions as to the law, the jury assessed the compensatory and punitive damages in the amounts set forth supra at 1367-1368. II. PLAINTIFF’S § 1985(3) CLAIM In addition to his claim pursuant to 42 U.S.C. § 1983, plaintiff seeks relief under 42 U.S.C. § 1985(3), alleging that the Town of Fenwick Island and the three individual defendants engaged in a conspiracy to discriminate against non-resident motorists by requiring the latter immediately to stand trial while at the same time permitting Delaware resident motorists to post nominal bond and to return for trial at a later date. Defendants argue that plaintiff has failed to allege, and prove an essential element in a § 1985(3) action, namely, class-based animus, as required by Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338.(1971). With the consent of the parties, this Court deferred determination, with regard to the § 1985(3) claim, pending the completion of the jury trial, indicating, however, during pretrial proceedings, that the Court was tentatively of the view that plaintiff had failed to allege and proffer the requisite class-based animus under § 1985(3), but that because plaintiffs conspiracy allegations could, in any event, go to the jury under a common law conspiracy theory, this Court would await the jury’s verdicts before determining the 1985(3) issues. With the trial concluded, it is evident that plaintiff has failed to state a claim under § 1985(3) because of the absence of essential class-based animus. In order to make out a § 1985(3) claim, a plaintiff must show first, that defendants engaged in a conspiracy which had the purpose of depriving the plaintiff of “equal protection of the laws, or of equal privileges and immunities under the laws,” 42 U.S.C. § 1985(3), and second, that the conspiracy was motivated, by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus ____” Griffin v. Breckenridge, 403 U.S. supra at 102, 91 S.Ct. at 1798. § 1985(3) creates “no substantive rights”, but merely “provides a remedy for violation of the rights it designates.” Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979). While Korotki has proven the existence of a conspiracy designed to interfere with his right to interstate travel, a right guaranteed by the Federal Constitution and recognized as falling within the protective ambit of § 1985(3), see United Brotherhood of Carpenters v. Scott, 463 U.S. 825, -, 103 S.Ct. 3352, 3358, 77 L.Ed. 1049, 1057 (1983); Griffin v. Breckenridge, 403 U.S. 88, 103, 91 S.Ct. 1790, 1799, 29 L.Ed.2d 338 (1971); Means v. Wilson, 522 F.2d 833, 838 (8th Cir.1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976), Korotki was not a member of any protected class; nor was he invidiously discriminated against as a member of any class. The class-based animus requirement set forth in Breckenridge is designed to prevent § 1985(3) from becoming a “general federal tort law.” Id. 403 U.S. at 102, 91 S.Ct. at 1798. In Breckenridge, the facts revealed an animus against blacks and those who supported them. In Breckenridge, Judge Stewart explicitly noted that the Court declined to “decide, given the facts of this case, whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable under the portion of § 1985(3) before us.” Id. at 102 n. 9, 91 S.Ct. at 1798 n. 9. Recently, the Supreme Court has had another occasion to examine the “class-based animus” requirement in § 1985(3) actions. In United Brotherhood of Carpenters v. Scott, supra, the Court held that a conspiracy to harm the non-union employees of a non-union contractor does not embody the kind of class-based animus contemplated by § 1985(3), and that § 1985(3) does not reach conspiracies motivated by economic or commercial animus. In so holding, Justice White commented extensively as to the nature of the animus to which § 1985(3) is directed and the groups or classes sought to be protected by the statute. In so doing, the Justice referred to conditions as they existed in 1871 and to the legislative history of § 1985(3), observing that “it is a close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause____” Id. 463 U.S. at-, 103 S.Ct. at 3359, 77 L.Ed.2d at 1059. While noting the broad scope of § 1985(3) as originally introduced in Congress, the Justice accorded great weight to the “narrowing amendment”, id. at-, 103 S.Ct. at 3359, 77 L.Ed.2d at 1059, which was adopted in the final version of the statute, quoting as follows (at-, 103 S.Ct. at 3359, 77 L.Ed.2d at 1058) from Breckenridge, 403 U.S. at 102, 91 S.Ct. at 1798: The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose — by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. See the remarks of Representatives Willard and Shellabarger, quoted supra, at 100. The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all. Justice White also noted (463 U.S. at-, 103 S.Ct. at 3359, 77 L.Ed.2d at 1059) that while “there is some legislative history to support the view that § 1985(3) has a broader reach,” a broad interpretation of the statute did not appear warranted: The narrowing amendment, which changed § 1985(3) to its present form, was proposed, debated, and adopted there, and the Senate made only technical changes to the bill. Senator Edmunds’s views, since he managed the bill on the floor of the Senate, are not without weight. But we were aware of his views In Griffin, 403 U.S., at 102 n. 9 [91 S.Ct., at 1798 n. 9], and still withheld judgment on the question whether § 1985(3), as enacted, went any farther than its central concern — combatting the violent and other efforts of the Klan and its allies to resist and to frustrate the intended effects of the Thirteenth, Fourteenth, and Fifteenth Amendments. Lacking other evidence of congressional intention, we follow the same course here. Id. at---, 103 S.Ct. at 3359-60, 77 L.Ed.2d at 1059-60. In another portion of his opinion, Justice White wrote: [Bjoth [courts below] held that the section not only reaches conspiracies other than those motivated by racial bias but also forbids conspiracies against workers who refuse to join a union. We disagree with the latter conclusion and do not affirm the former. Id. at-, 103 S.Ct. at 3359, 77 L.Ed.2d at 1058. Near the end of his opinion in Scott, Justice White concluded that, assuming arguendo, § 1985(3) does reach conspiracies other than .those based on racial animus, “we thus cannot construe § 1985(3) to reach conspiracies motivated by economic or commercial animus.” Id. at-, 103 S.Ct. at 3360, 77 L.Ed.2d at 1060, and that group actions generally resting on economic motivations should be deemed beyond the reach of § 1985(3). Economic and commercial conflicts, we think, are best dealt with by statutes, federal or state, specifically addressed to such problems, as well as by the general law proscribing injuries to persons and property. Id. at —, 103 S.Ct. at 3361, 77 L.Ed.2d at 1061. Herein, plaintiff contends that the Town and the three individual Fenwick Island defendants engaged in a conspiracy against non-resident motorists in order to raise revenues for the Town’s coffers. Such “individiously discriminatory animus” is not of the nature required by Breckenridge and Scott; nor do non-resident drivers constitute a protected “Griffin” class. As Scott emphasizes, classes or groups protected under § 1985(3) are to be determined by reference to legislative history and to those groups involved in the struggle in the south in 1871. In enacting the Ku Klux Klan Act, the Reconstruction Congress sought to provide special federal assistance to those groups whose members had been historically disadvantaged and who required such assistance in protecting their civil rights. Non-resident drivers do not qualify as a historically disadvantaged group in need of special assistance in exercising their rights. A class protected by § 1985(3) must be “possessed of discrete, insular and immutable characteristics comparable to those characterizing classes such as race, national origin and sex.” Savina v. Gebhart, 497 F.Supp. 65, 68 (D.Md.1980) (Howard, J.) quoting from Bellamy v. Mason’s Stores, Inc., 368 F.Supp. 1025, 1028 (E.D.Va.1973) (Merhige, J.), aff'd. 508 F.2d 504 (4th Cir.1974). Non-resident drivers, to the extent that they constitute a group, do not possess “discrete, insular and immutable characteristics.” It is true that in some pre-Scott opinions, lower federal courts seemingly construed the class-based animus requirement quite broadly. See Means v. Wilson, supra, at 839-40; Azar v. Conley, 456 F.2d 1382 (6th Cir.1972); Folgueras v. Hassle, 331 F.Supp. 615 (W.D.Mich.1971). But in post-Scott opinions, lower federal courts have not so done. See in Wilhelm v. Continental Title Co., 720 F.2d 1173, 1175-77 (10th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1601, 80 L.Ed.2d 131 (1984), in which the Court concluded that “a class of ‘handicapped persons’ was not in the contemplation of Congress in 1871, and was not included as a class in what is now § 1985(3)” and wrote (at 1177); We are concerned with a statute enacted for a particular purpose and to meet particular conditions. The rights and privileges sought to be protected (as contrasted to the “class”) are diverse and with the constitutional overtones are to be construed broadly. However, the classes or groups to be protected are instead to be derived from statutory construction. This in our view the Supreme Court has done in Scott and Griffin. From Scott we repeat part of a quotation appearing above. Thus after referring to Griffin and noting that the Court there withheld judgment as to whether § 1985(3) “went any farther than its central concern — combatting the violent and 'other efforts of the Klan and its allies to resist and to frustrate the intended affects of the Thirteenth, Fourteenth, and Fifteenth Amendments. Lacking other evidence of congressional intention, we follow the same course here.” Thus the Court also withheld judgment, but the significant part of the statement is that the refusal to go farther was placed on the reason — lacking other evidence of congressional intention. Similarly, in Nilan v. De Meo, 575 F.Supp. 1225, 1226-27 (E.D.Pa.1983), Judge Poliak concluded that § 1985(3) did not, in light of Scott, apply to a conspiracy to deprive plaintiffs of their jobs because of their political affiliation and activity, despite previous Second and Third Circuit expressions of views to the contrary in a preScott context. Judge Poliak noted (at 1227) that Scott “expressed the Supreme' Court’s considerable reluctance to involve the federal courts in policing politics through section 1985(3)’s tort remedy.” In sum, Korotki’s § 1985(3) claim fails for two reasons. First, conspiracies motivated by commercial-type animus are not actionable under § 1985(3) in the wake of Scott; and second, non-resident motorists do not constitute a cognizable class within the meaning of the statute. Accordingly, defendants’ motion to dismiss plaintiff’s § 1985(3) claim is granted. However, while plaintiff has failed to allege or proffer a § 1985(3) conspiracy claim, plaintiff has introduced sufficient evidence to sustain the jury’s finding as to a civil conspiracy, based upon Maryland common law. “A civil conspiracy is a combination of two or more persons by an agreement or understanding to accomplish an unlawful act or to use unlawful means to accomplish an act not in itself illegal, with the further requirement that the act or the means employed must result in damages to the plaintiff.” Green v. Washington Suburban Commission, 259 Md. 206, 221, 269 A.2d 815 (1970). In this case, plaintiff has established that defendants engaged in the practice of and followed the policy of depriving non-resident motorists such as Korotki of the benefits of the Compact, thereby violating those non-residents’ rights and causing damage to Korotki. Accordingly, Korotki has proved the tort of common law conspiracy under Maryland law. III. PUNITIVE DAMAGES AGAINST A MUNICIPALITY In a post-trial motion, defendants moved to strike the $100,000 award of punitive damages assessed against Fenwick Island, asserting for the first time in this case that punitive damages are not recoverable against a municipality in a § 1983 action and citing to City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). In Newport, the municipality cancelled a license for a rock music concert because the City Council feared that the concert would draw large, unruly crowds. The concert promoter, alleging that the City’s actions violated his first amendment rights, brought suit under § 1983. The jury, answering Rule 49(a) questions, awarded punitive damages of $275,000, including a $200,000 punitive damages award against the City. The City thereafter moved for a new trial, arguing that punitive damages could not be awarded against a municipality. In holding that “a municipality is immune from punitive damages under 42 U.S.C. § 1983,” id. at 271, 101 S.Ct. at 2762, Justice Blackmun examined the legislative history of § 1983 in order to determine whether there existed any legislative intent with regard to allowance of punitive damages against a municipality. Concluding that “municipal immunity from punitive damages was well established at common law by 1871,” id. at 264, 101 S.Ct. at 2758, Justice Blackmun wrote that ‘Congress would have specifically so provided had it wished to abolish the doctrine.’ ” 453 U.S. at 263, 101 S.Ct. at 2757, citing to Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967), and then concluded: We see no reason to believe that Congress’ opposition to punishing innocent taxpayers and bankrupting local governments would have been less applicable with regard to the novel specter of punitive damages against municipalities. Id. 453 U.S. at 266, 101 S.Ct. at 2759. In that context, Justice Blackmun considered whether public policy concerns underlying punitive damages, namely, retribution and deterrence, dictated a contrary result, and found no rationale supporting a punitive damages award harmonious with the policies of § 1983. The Justice concluded that the retribution rationale for punitive damages would not be served by awarding such damages against a municipality because the economic burden would fall on the taxpayers who were “blameless.” Id. at 267, 101 S.Ct. at 2760. As to the deterrence rationale for such an award, the Justice noted that punitive damages assessed against a municipality might not deter individual wrongdoers. Justice Blackmun also wrote (at 267, 101 S.Ct. at 2760) that— punitive damages imposed on a municipality are in effect a windfall to a fully compensated plaintiff, and are likely accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill. Neither reason nor justice suggests that such retribution should be visited upon the shoulders of blameless or unknowing taxpayers. As far as this Court is informed, no court in the wake of Newport has yet to find a situation which has called for the application of the footnote 29 possibility stated by Justice Blackmun. In Webster v. City of Houston, 689 F.2d 1220 (5th Cir.1982), reh’g granted, 711 F.2d 35 (5th Cir.1983), the City engaged in a practice of employing “throw-downs,” whereby a police officer who killed or injured an unarmed suspect would “throw down” a weapon at the suspect’s side in order to cover up any police misdeed. Although the City’s practice, which resulted in loss of life, was labeled “reprehensible,” the Fifth Circuit held that it does “not rise to the level of outrageous conduct to which [footnote 29] referred”, 689 F.2d at 1229, and also emphasized that § 1983 was “enacted in a time of frightening violence, to ensure the most basic constitutional rights of citizens in southern states. If the members of Congress who drafted that Act did not intend to establish a rule of punitive damages, we believe that it would take a far more serious violation that we confront to ground punitive damages against Houston.” Id. (emphasis added). Accordingly, Judge Brown in Webster struck the punitive damages portion of the jury award. In Heritage Homes v. Seekonk Water District, 670 F.2d 1, 2 (1st Cir.), cert. denied, 457 U.S. 1120, 102 S.Ct. 2934, 73 L.Ed.2d 1333 (1982), plaintiff, a developer, argued that the case fell within Newport’s footnote 29 because the taxpayers themselves discriminated against the developer in voting to exclude him from the district because he was willing to sell homes to black persons. The court rejected that argument, stating: [w]e conclude that the facts of this case do not fit into any exception that the Court is likely to carve out of its broad holding that “a municipality is immune from punitive damages under 42 U.S.C. § 1983.” Id. [453 U.S.] at 271 [101 S.Ct. at 2762]. Of the thousands of members of the Water District, only some 80 to 85 attended the crucial meeting. Of these 66 voted to exclude and 8 voted to include Heritage Homes. Absent widespread knowledgeable participation by taxpayers, the analogy to municipal officials seems apt: to award punitive damages against the Water District would not serve the purposes of punishment or deterrence. As the Court observed, “blameless or unknowing” taxpayers would be punished by imposing punitive damages here. The actions of a small claque of voters would burden several thousand nonparticipants, many of whom presumably were unaware of the entire controversy. Id. at 2 (footnote omitted). In Wade v. Cicero, Illinois, 571 F.Supp. 157, 158-59 (N.D.Ill.1983), the Court held that if Newport’s footnote 29 did create an exception, the facts of that case did not bring it within such an exception. Plaintiffs there argued that the citizens of the town had “promoted a climate of racial hatred such that the municipal officials ... were merely ratifying the egregiously discriminatory views of Cicero’s citizens.” Id. at 159. The court noted that plaintiffs had not alleged that “ ‘the taxpayers are directly responsible’ for the challenged actions,” and that indirect responsibility would not' suffice under footnote 29. The court wrote: Again, without meaning to denigrate the seriousness of these allegations, we do not believe that they impute direct responsibility to all of the taxpayers of Cicero. See Heritage Homes, supra. If footnote 29 creates an exception at all, the exception would appear to be applicable more in the case, say, of a referendum in which the voters overwhelmingly mandated an unconstitutional action. See Webster, supra, at 1231 n. 1 (Goldberg, J., specially concurring). Id. at 159. In the within case, as in Wade, there is no evidence that the taxpayers of Fenwick Island were themselves directly responsible for the policy of violating the non-resident Violator Compact. While plaintiff contends that the unlawful policies and practices of Fenwick Island were based upon the desire of Fenwick Island to keep its tax rates low and its revenues high, that does not add up to direct responsibility or to “widespread knowledgeable participation by taxpayers.” See Heritage Homes, supra. If the conduct in Webster, which resulted in loss of life, did not satisfy the “outrageous abuse” standard of footnote 29, then, a fortiori, the conduct complained of here would appear to fall short of the mark. In a pretrial proceeding in this case, at a time when Newport was pending in the Supreme Court, this court called that case to the attention of counsel. However, no objection was raised, before or during trial or in connection with preparation of jury instructions or formulation of special questions, by the Town of Fenwick Island or by any other defendant, to the introduction of evidence relevant to plaintiff’s claim for punitive damages against the Town of Fenwick Island or to the submission of any special questions relating to that claim. Accordingly, the question arises as to whether defendant Town of Fenwick Island’s motion is barred by Federal Civil Rule 51, which provides in relevant part: Rule 51. Instructions to Jury: Objection No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of. the jury. The object of this rule is to afford the trial judge an opportunity upon second thought, and before it is too late, to correct any inadvertent or erroneous failure to charge. The rule also serves to lessen the potential burden of appellate courts by diminishing the number of rulings at the trial which they may be called upon to review. Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir.1955) (Magruder, C.J.). See 9 Wright & Miller, Federal Practice and Procedure, Civil § 2551 at 623 (1971). A similar Rule 51 contention was raised in Newport, in which respondents asserted that “the punitive damages issue was not properly preserved for review before this Court.” 453 U.S. at 255, 101 S.Ct. at 2753. In rejecting that position, Justice Blackmun emphasized that the district court had refused to rely upon the Rule 51 bar and had, instead, “reached and fully adjudicated” the merits, id. at 256, 101 S.Ct. at 2754, in the context of defendant City of Newport’s post-trial motion. In so doing, the Justice observed (at 256 n. 12, 101 S.Ct. at 2754 n. 12): The District Court may have been influenced by the unusual nature of the instant situation. Ordinarily, an error in the charge is difficult, if not impossible, to correct without retrial, in the light of the jury’s general verdict. In this case, however, we deal with a wholly separable issue of law, on which the jury rendered a special verdict susceptible of rectification without further jury proceedings. In the within case, the jury also returned answers to special questions pursuant to Federal Civil Rule 49(a). In response to questions in which the issues were separately framed, the jury returned a punitive damages award of $100,000 against the Town of Fenwick Island. That award can, as was the case in Newport, be vacated without the need to convene another jury. Further, in any event, this case also fits into the “plain error” exception of Rule 51, an exception which may and should be invoked when the error is obvious and prejudicial or where “a miscarriage of justice” would result if the error went unremedied. See, e.g., Cruthirds v. RCI, Inc., 624 F.2d 632, 635 (5th Cir.1980); Barger v. Mayor and City Council of Baltimore, 616 F.2d 730, 733 (4th Cir.) (Winter, J.) cert. denied, 449 U.S. 834, 101 S.Ct. 105, 66 L.Ed.2d 39 (1980) quoting from United States v. The Board of Education of the County of Mineral, 253 F.2d 760, 765 (4th Cir.1958). In Miller v. Premier Corp., 608 F.2d 973, 983 (4th Cir.1979), Judge. Phillips wrote that where “the instruction plainly misstated fundamentally controlling substantive principles governing [defendant’s] right to recover on its counterclaims,” the plain error in the instruction would overcome the bar of Rule 51. Similarly, in Williams v. City of New York, 508 F.2d 356, 361-62 (2d Cir.1974), the Second Circuit applied the plain error exception to a punitive damages instruction which had permitted the jury to find the City liable for such damages on the basis of its agents' wrongdoings. In Williams, the Second Circuit disapproved of the punitive damages award against the City because “the demonstrable deviation of the court’s instruction here from the appropriate standard, the serious harm suffered by the defendant as a result of this error, and the remediability of this error without a new trial below, combine to justify overlooking counsel’s failure timely to object in this instance.” Id. at 362. Herein, also, the punitive damages award would substantially harm the Town of Fenwick Island. Accordingly, Rule 51 does not stand in the way of this court’s favorable determination of the post-trial motion of defendant Town of Fenwick Island. Therefore, the punitive damage award against the Town will be set aside insofar as plaintiff’s § 1983 claim is concerned. Nor are punitive damages available to plaintiff against the Town of Fenwick Island in connection with plaintiff’s state law-based contentions. As a federal court not sitting in a diversity context, but exercising pendent jurisdiction, this Court must apply the conflict of laws rule of the State of Maryland, the forum state. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); System Operations Inc. v. Scientific Games Development Corporation, 555 F.2d 1131, 1136 (3d Cir.1977); Cf. Klaxon v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The rule of lex loci delicti is well established in Maryland and requires application of the substantive tort and damages law of the state in which the wrong occurs. In Hauch v. Connor, 295 Md. 120, 123, 453 A.2d 1207 (1983), the Court of Appeals of Maryland recently reaffirmed the continued vitality of the lex loci delicti rule as a means of determining the applicable tort law: With regard to tort conflicts principles, we reject the position of the Restatement and adhere to the rule that the substantive tort law of the state where the wrong occurs governs. The rule of lex loci delicti is well established in Maryland. When its rationale has been put into question, “this Court has consistently followed the rule,” White v. King, 244 Md. 348, 352, 223 A.2d 763 (1966)1 In this case, the jury found that the wrong occurred in Maryland. Under Maryland law, a municipality may not be sued for punitive damages. Herilla v. Mayor and City Council of Baltimore, 37 Md.App. 481, 492, 378 A.2d 162 (1977), in which Chief Judge Gilbert of the Court of Special Appeals wrote: Generally, in the absence of statutory authority, exemplary or punitive damages may not be recovered against a municipality, [citations omitted].- There is no such statutory authority in Maryland, ____ Thus, plaintiffs state-based claims for punitive damages against defendant Town of Fenwick Island, as well as plaintiffs § 1983 claims for such damages against that defendant, may not prevail. Accordingly, the motion of defendant Town of Fenwick Island to strike the jury’s $100,000 award against it will be granted. IY. JUDICIAL IMMUNITY OF DEFENDANT BARTON Although defendant Barton did not actually issue a warrant for plaintiff’s arrest, the jury awarded plaintiff compensatory and punitive damages against defendant Barton. In a post-trial motion, defendant Barton contends that that award cannot stand in the face of his entitlement to absolute judicial immunity. In answer to special questions, the jury found that Barton knew of and participated in the policy and procedure of requiring non-resident drivers to stand trial immediately, and that he (Barton) acted in furtherance of that policy by placing a telephone call to Maryland State Commissioner Treadwell, presumably to secure a warrant for plaintiffs arrest. Plaintiff, in response to defendant Barton’s claim of judicial immunity, argues that Barton acted in the clear absence of jurisdiction and also that Barton’s placement of a telephone call to Commissioner Treadwell did not constitute a “judicial” act. Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978). In 1872, the Supreme Court wrote that it was “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself,” Bradley v. Fisher, 13 Wall 335, 347, 20 L.Ed. 646 (1872), quoted from Stump v. Sparkman, supra, 435 U.S. at 355, 98 S.Ct. at 1104. The Court in Bradley held that “judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” 13 Wall at 351, 20 L.Ed. 646, also quoted from Stump v. Sparkman, supra, 435 U.S. at 355-56, 98 S.Ct. at 1104-05 (footnote omitted). Further, the Court has specifically held that judicial immunity is applicable to suits under § 1983 of the Civil Rights Act. Pierson v. Ray, 386 U.S. 547, 548, 554-55, 87 S.Ct. 1213, 1215, 1217-18, 18 L.Ed.2d 288 (1967). Judicial immunity is applicable to judges at all levels. “A judge, of whatever status in the judicial hierarchy, is immune from suit for damages resulting from any act performed in the judicial role.” Ammons v. Baldwin, 705 F.2d 1445, 1447 (5th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 999, 79 L.Ed.2d 232 (1984) (Rubin, J.). Cases are legion in holding that judicial immunity extends to aldermen and justices of the peace. Accordingly, in the within case defendant Barton enjoys judicial immunity unless he acted in the clear absence of all jurisdiction or his actions did not constitute judicial acts. In Stump v. Sparkman, supra, 435 U.S. at 357 n. 7, 98 S.Ct. at 1105 n. 7, Justice White noted the difference between acts done in error or in excess of jurisdiction, which are covered by judicial immunity, and acts done clearly without jurisdiction, to which no immunity attaches: In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. [Bradley] [13 Wall] at 352 [20 L.Ed. 646]. In Simons v. Bellinger, 643 F.2d 774, 786 (D.C.Cir.1980), Judge Richey, sitting by designation, wrote that “with respect to immunity, ‘jurisdiction’ ought to be defined broadly to include acts ‘having more or less connection with the general matters committed by law’ to the official’s supervision,” quoting from Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896), and went on to note that .. an act is within the official’s jurisdiction if it is not ‘manifestly or palpably beyond his authority.’” Id. Similarly, in Fanale v. Sheehy, 385 F.2d 866, 868 (2d Cir.1967), Judge Hays observed, in a case brought under sections 1983 and 1985(3), that “[e]ven if the justice of the peace was in error in resolving these’ questions of jurisdiction, he is not liable under the Civil Rights Act. Where jurisdiction depends on the resolution of factual issues or involves debatable questions of law, judges do not lose their immunity.” In Fanale, Judge Hays held that a justice of the peace who, plaintiff alleged, inter alia, signed a defective information, was entitled to absolute immunity. In Pagano v. Hadley, 535 F.Supp. 92, 96 (D.Del.1982), Judge Stapleton commented: “An actual absence of jurisdiction ... will not deprive a judge of absolute immunity if there is some rational basis upon which the judge might have concluded that he possessed jurisdiction.” In this case, defendant Barton did not act in the clear absence of all jurisdiction. While scant evidence was adduced at trial as to Alderman Barton’s jurisdiction, the parties have submitted in the post-trial period copies of relevant state and local laws which delineate the scope of an alderman’s jurisdiction in Delaware. Under those laws, defendant Barton had jurisdiction over traffic offenses occurring within the Town of Fenwick Island and was responsible for signing arrest warrants and hearing traffic cases. The Charter of the Town of Fenwick Island, Delaware provides that the elected Town Alderman “shall have jurisdiction and cognizance of all breaches of the peace and other offenses committed within the. limits of the Town so far as to arrest and hold to bail or fine and imprison offenders of all fines, penalties and forfeitures described by this Charter or ordinances enacted hereunder.” Further, the Delaware Ordinances in effect in October, 1976, contained a section entitled “Special Provisions Applying to Alderman’s Court No. 34, Sussex County, Delaware.” That section provided that.the Alderman has “power and authority to hold for bail, and fine, or compel the attendance of persons accused of violations of the Town ordinances by service of process either within or without the limits of the Town, and compel the attendance of witnesses, and hold or punish for contempt.” Furthermore, Charles M. Oberly, III, Attorney General for the State of Delaware, has submitted an opinion letter to counsel for defendant Barton in which he states that “an alderman has the right to issue a warrant for an arrest occurring within the jurisdiction of the particular locality even if the arrest should occur outside the locality.” In light of the above, it appears that defendant Barton had jurisdiction to issue warrants for offenses committed within the Town of Fenwick Island and likely had jurisdiction, to do the same with regard to offenses which began, but were not completed, within the incorporated limits of the Town. While the jury has determined that the stop of plaintiff’s vehicle occurred in Maryland, the alleged act of speeding began in Fenwick Island. Thus, defendant Barton seemingly had subject matter jurisdiction to issue a warrant for an offense which took place in Fenwick Island and to investigate such an offense in an effort to determine whether probable cause for arrest existed. In any event, it cannot be said that Alderman Barton acted in the clear absence of jurisdiction; rather, at most, there existed doubt as to his jurisdiction. Under prevailing case law, the existence of such doubt is insufficient to deprive defendant Barton of judicial immunity. That is true in spite of the provisions of Section 709 of Title 21 of the Laws of Delaware; which, plaintiff argues, prohibited defendant Barton from issuing a warrant for plaintiffs arrest and required him, instead, to issue to plaintiff a traffic citation to permit plaintiff to go on his way. Thus, plaintiff contends that Section 709, which conforms to the terms of the Compact, but which contains no language limiting the jurisdiction of judicial officers, sufficiently deprived defendant Barton of jurisdiction to issue an arrest warrant so as to bar Barton’s assertion of judicial immunity. In support of that contention, plaintiff relies on two cases, Rankin v. Howard, 633 F.2d 844, 849 (9th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2020, 68 L.Ed.2d 326 (1981) and Schorle v. City of Greenhills, 524 F.Supp. 821, 828 (S.D.Ohio 1981). Both, however, are distinguishable on their facts. In Rankin, plaintiff claimed that the judge conspired, and agreed in advance, to issue a particular ruling, that the judge had actual knowledge that the jurisdictional allegations presented to him were fraudulent, and that Kansas law clearly prohibited the judge’s actions. The court in Rankin recognized that a judge is liable for “a clearly inordinate exercise of unconferred jurisdiction”, 633 F.2d at 849, quoting from Turner v. Raynes, 611 F.2d 92, 95 (5th Cir.1980), but did not suggest such liability simply because the judge erred in determining his jurisdictional reach. In Schorle, the judge was required to transfer any case in which the defendant asserted his right to jury trial. The defendant did assert that right; but the trial court, nevertheless, heard the case non-jury. Under those circumstances, said the federal district court, the state trial judge was not immune from a § 1983 attack. A more recent Ninth Circuit case, O’Neil v. City of Lake Oswego, 642 F.2d 367 (9th Cir.1981), has expanded upon the “express deprivation of jurisdiction” exception to judicial immunity and has illustrated its narrow scope. O’Neil involved a state statute which expressly required a charging affidavit before jurisdiction would be conferred upon a judge to issue contempt charges against a defendant. Although the judge in O’Neil conceded that he had acted without the affidavit, the Ninth Circuit held the judge immune. In so doing, Judge Ferguson drew a distinction between “a rule of law expressly depriving [the court] of jurisdiction” and a case in which the court “does not comply with all the requirements of the statute conferring jurisdiction.” Id. at 369 (footnote omitted). In so doing, Judge Ferguson wrote (at 369-70): In the first [situation] the court usurps authority, while in the latter it discharges, albeit imperfectly, the purpose for which it is constituted. As to the case at bar, nowhere in § 709 of Title 21 of the Delaware Code is there any language which expressly or even impliedly deprives judges of jurisdiction over the issuance of arrest warrants in traffic cases. Section 709 goes no further than to state that a police officer “may” issue summonses for traffic offenses and offer the alleged violator the option of accepting a voluntary assessment. Moreover, subsection (1) of Title 21, § 709 states that the “procedure prescribed is not exclusive of any other method prescribed by law for the arrest and prosecution of persons violating this Title.” Accordingly, section 709 which sets forth principles of law without addressing or, in any way, limiting a judicial officer’s jurisdiction, does not constitute an unequivocable deprivation of jurisdiction. There is also a question as to whether defendant Barton’s acts constituted judicial acts, because “[i]t is only for acts performed in his ‘judicial’ capacity that a. judge is absolutely immune.” Stump v. Sparkman, 435 U.S. at 360, 98 S.Ct. at 1106. “Whether an act by a judge is a ‘judicial’ one relate[s] to the nature of the act itself, i.e. whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Id. at 362, 98 S.Ct. at 1107. Here, both factors indicate that defendant Barton’s act of calling Commissioner Treadwell was a judicial act, as it was preparatory to the issuance of a warrant. Issuance of a warrant is the type of act which judicial officers are often called upon to perform and for which they have been accorded immunity. In Stump v. Sparkman, 435 U.S. at 363 n. 12, 98 S.Ct. at 1108 n. 12, Justice White wrote: That there were not two contending litigants did not make Judge Stump’s act any less judicial. Courts and judges often do act ex parte. They issue search warrants in this manner, for example, often without any ‘case’ having been instituted, without any ‘case’ ever being instituted, and without the issuance of the warrant being subject to appeal. Yet it would not destroy a judge’s immunity if it is alleged and offer of proof is made that in issuing a warrant he acted erroneously and without principle. While defendant Barton did not actually issue a warrant for plaintiff’s arrest, he had the duty, in determining whether to issue a warrant, to determine both the law applicable to plaintiff’s alleged misconduct and whether or not probable cause existed. See, e.g., Scott v. Dixon, 720 F.2d 1542, at 1546 (11th Cir.1983). Thus, Alderman Barton was acting in accordance with his judicial duties in making the telephone calls he placed. Further, it is to be noted that defendant Goughan dealt with Alderman Barton on a judicial basis. Barton, as a judicial officer, had a right to take what he considered appropriate investigatory steps before taking or declining to take the action Goughan sought. The fact that Barton may have acted out of malice or in furtherance of a conspiracy does not deprive him of judicial immunity. In Harper v. Merckle, 638 F.2d 848, 856 n. 9 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981), the court observed that even a judge who “is approached qua judge by parties to a case ... for the purpose of conspiring to violate § 1983 is properly immune from a damage suit.” In Scott v. Dixon, 720 F.2d 1542, 1547 (11th Cir.1983), reh’g denied, 729 F.2d 1468 (11th Cir.1984), the court held that a state court clerk, who acted in a judicial capacity, was immune to suit even if he conspired with another by issuing a criminal arrest warrant to collect a debt. In sum, defendant Barton’s placement of the telephone call to Commissioner Treadwell was a judicial act taken by Alderman Barton to aid him in determining whether or not to issue a warrant of arrest. Accordingly, defendant Barton is entitled to absolute immunity from money damages. Therefore, the jury’s punitive damages award against him is hereby stricken. V. QUALIFIED “GOOD FAITH” IMMUNITY OF DEFENDANTS GOUGHAN AND CARTWRIGHT In post-trial motions, defendants have further argued that defendants Goughan and Cartwright are entitled to qualified good faith immunity under the principles of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), because they acted without malice. The jury, however, found to the contrary. As to defendant Goughan, the jury concluded that he did not act in good faith in ordering plaintiff to go to the Fenwick Island Town Hall and in all of his subsequent actions. Indeed, the jury did not even believe that defendant Goughan had a reasonable good faith belief that plaintiff was speeding. The jury also found that defendant Goughan acted intentionally, willfully and wantonly to do damage to plaintiff Korotki. Those jury findings are not against the weight of the evidence in this case. The same is true as to defendant Cartwright. The jury found that he did not act in good faith and that he acted intentionally, willfully and wantonly to do damage to persons such as plaintiff. The jury also determined that defendant Cartwright directly participated in the adoption and enforcement of the policy to violate the. Compact. Those findings are not against the weight of the evidence. Accordingly, defendant Goughan’s and defendant Cartwright’s post-trial motions for relief on grounds of qualified immunity are denied. VI. COMPENSATORY DAMAGES The only item of compensatory damages which defendants claim to be excessive is the award of $5,000,, representing counsel fees paid to Mr. Wimbrow for his legal services in connection with defending plaintiff Korotki on the speeding and careless driving charges in the Delaware courts. Defendants have contended that, with the exception of two and one-half hours of research relating to Maryland law, Mr. Wimbrow’s work was duplicative of the work of other attorneys — work which is the basis of other jury awards in favor of plaintiff and against the Fenwick Island defendants in this case — and that Wimbrow’s hourly rate of nearly $200 per hour is exorbitant and was even more so in 1979 when he provided his services to plaintiff Korotki. During a post-trial hearing held in this case on January 20, 1984, this court indicated that it did not believe Mr. Wimbrow’s work was duplicative, that Mr. Fifer was entitled to have Mr. Wimbrow as co-counsel assist him in handling a difficult case, and that plaintiff was entitled to compensatory damages for the total number of hours expended by Mr. Wimbrow in connection with the Delaware traffic case, i.e. approximately twenty-five hours. This court did suggest during the January 20, 1984, proceeding that the $200 per hour fee paid to Mr. Wimbrow appeared excessive. While this court is not free to set aside a jury verdict simply because the court would have awarded a different amount of damages than the jury, it has the power and also the duty to cure an excessive verdict either by granting a new trial or by denying a new trial conditioned upon the plaintiff’s filing a remittitur of the excessive portion of the damages. 11 Wright & Miller, Federal Practice & Procedure § 2815 at 99-100 (1973). Although this court may not deprive the parties to a jury trial under the Seventh Amendment, “a remittitur may be assessed in an amount that will bring the verdict on damages to the maximum amount which the jury could have awarded under the evidence introduced at trial.” Call Carl, Inc. v. BP Oil Corporation, 403 F.Supp. 568, 578 (D.Md.1975) (Young, J.), aff'd. in relevant part, 554 F.2d 623 (4th Cir.1977), cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280 (1977). See also 11 Wright & Miller, Federal Practice & Procedure § 2815 at 104-05 (1973). A remittitur gives the plaintiff a choice. “He can refuse to accept the reduced amount of damages and instead proceed to trial.” 11 Wright & Miller, supra, at 105 (footnote omitted). Alternatively, if he agrees to the remittitur, no new trial is required. A new trial as to all issues is mandatory only when the excessive verdict results from passion and prejudice on the part of the jury — passion and prejudice which may have affected the jury’s findings on all or at least other issues including issues of liability. Such passion and prejudice did not exist in this case. Indeed, there is little or no reason to believe that the jury’s determination of the Wimbrow fee, or the jury’s answer to any Rule 49(a) questions, was grounded in passion or prejudice. In Great Coastal Express, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 511 F.2d 839, 847 (4th Cir.1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 799 (1976), Judge Widener noted that “it may be regarded as settled that if an .error at the trial requires a new trial on one issue, but this issue is separate from the other issue in the case and the error did not affect the determination of the other issues, the scope of the new trial may be limited to a single issue,” quoting from 11 Wright & Miller, Federal Practice & Procedure, Civil (1973) at 93. See also Call Carl, Inc. v. BP Oil Corporation, supra at 578; 6A Moore’s Federal Practice, 2d Ed., 1974 ¶ 59.06. Moreover, where, as here, special verdicts were used to determine components of damages, any new trial may usually be limited to consideration of the challenged component. See Hartke v. McKelway, 526 F.Supp. 97, 105 (D.D.C.1981), aff'd., 707 F.2d 1544 (D.C.Cir.), cert. denied, — U.S. -, 104 S.Ct. 425, 78 L.Ed.2d 360 (1983), in which the trial court had submitted the case to the jury with a special verdict- form which required the jury to separate the damages awarded into various components, such as medical expenses and pain and suffering. In Hartke, Judge Oberdorfer concluded that the jury’s medical expenses award was excessive and granted defendant’s motion for new trial on the single issue of the amount of medical expenses incurred by plaintiff unless plaintiff would agree to the remittitur. Similarly, in Brink’s, Inc. v. City of New York, 546 F.Supp. 403, 414-15 (S.D.N.Y.1982), the court ordered a new trial limited solely to the amount of punitive damages, in a case in which the jury had returned special verdicts segregating the damages into punitive and compensatory components. In so doing, Judge Weinfeld stated: Upon further consideration of the entire record and the component elements which should be taken into account, the motion for a new trial is granted unless the City agrees to a remittitur to reduce the punitive damage verdict to the sum of $1,500,000. If the City does not consent to the remittitur within ten days from the date of this opinion, a new trial is ordered limited solely to the amount of punitive damages. The jury’s finding that the City has established its burden of proof on the issue of punitive damages shall remain undisturbed. 546 F.Supp. at 415. In Maxey v. Freightliner Corp., 727 F.2d 350 (5th Cir.1984), the Fifth Circuit held that if plaintiff refused to accept