NOT RECOMMENDED F OR P UBLICATION File Na me: 12a1019n.06 No. 10-2528 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT J ONATH AN B EL L , Plaintiff-Appellant,

v. PREFI X, I

NCORPORATED, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : SI L ER and MOORE, Circuit J udg es; VAN TA TENHOV E, District J udg e. * SILE R , Circuit J udg e. Following a favor able jury verdic t in his Family and Medica l L eave Act (F ML A) case ag ainst Prefix, I ncorpor ated, J onathan Be ll appea ls the district court’s use of the statutory lang uag e of 2 8 U. S

. C

. § 1961 to calc ulate prejudg ment interest under 29 U.S.C. § 2617(a) (1)( A). F or the followingrea sons, we AF F IRM the district court’s judg ment. I. On Novemb er 18, 2009, the jury returne d a verdic t in favor of Be ll, finding that Prefix violated the FMLA and awa rding him $14,563.00 in damag es. When the parties could not ag ree on

a proposed judgme nt, the court enter ed one of its own draf ting, including “judg ment of $29,126.00, plus double the amount of prejudg ment interest awa rded, is enter ed in favor of Plaintiff” and “The

The Honor able Gr eg ory

F. Va n Tatenhove , United States District J udg e for the Easter

n * District of Ke ntucky , sitti ng by desig nation.No. 10-2528

Bell v. Pre

fix, Inc. Court awa

rds Plaintiff prejudg ment interest on the verdic t at an interest rate to be calc ulated pursuant to 28 U.S.C. § 1961[ .]” Be fore entry of a final j udg ment, Be ll moved under Fe dera l Rule of C ivil Procedu re 59(e) to alter or amend the still -pending judgme nt. The motion ar gu ed for prejudg ment interest to be calc ulated under 29 U.S.C. § 2617(a) (1)( A)(ii) at the “pre vailing rate ” and contende d that rate should eq u ate to the “then- exis ting prime rate .” Prefix asser ted that, if the court awa rded prejudg men t interest , t h at i n t ere st should be calc ulated at the money judgme nt interest rate under Michig an Compil ed L aws § 6000.6013(6) , rathe r than the f eder al prime re serve rate
. The court g rante d Be ll’s motion for prejudg ment interest for the period betwee n August 8, 2005, and November 25, 2009, but deter mined the appropr iate measure of that interest to be based

on the statutory lang uag e of 28 U.S.C. § 1961. That same day , the court enter ed its final judgme nt. The parties disag ree d about the proper calc ulation, and Be ll filed a motion sty led “Plaintiff’s Motion to Enter J udg ment with the Amount of Prejudg ment Intere st Calculated in Acc ordanc e with this Co u rt ’s Opinion and Orde r . . . and J udg ment
. . . .” Acc ording to Be ll, the amount of prejudg ment interest should be $4,148.88, resulting in a total fig ure due of $37,423.76. In response , Prefix explained that it calc ulated the amount of prejudg ment interest as $182.43 by rely ing on the rate specifie d by the federa l re s er v e for the calendar wee k ending November 20, 2009. The court denied B ell’s motion, finding Pref ix ’s ca lculation to be cor

rec t. II. We r eview a district c ourt’s awa rd of pre judgme nt interest for a

buse of discretion. Gentek Bldg. Products, Inc. v. Sherwin-W illiams Co. , 491 F.3d 320, 333 (6th Cir. 2007). A district court

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Bell v. Pre

fix, Inc. may awa rd prejudg ment interest “at its discretion in acc ordanc e with g ener al equitable principles.” Ford v. Uniroyal Pension Plan , 154 F.3d 613, 616 (6th Cir. 1998). In FML A case s, liability must include prejudg ment interest “ca lculated at the preva iling rate .” 29 U.S.C. § 2617(a) (1)( A)(ii). The statute does not define “the preva iling rate ,” see id. , and trial courts have exercised their discretion to find differ ent methodologie s of calc ulation appropr iate in differ ent contexts. See, e.g. , Finnerty

v. W ireless Retail, Inc. , No. 2:04-CV-40247, 2009 WL 2568555, at *3 (E.D. Mich. Aug

. 18, 2009) (slip copy ) (state statutory rate ); Mary- Jo Hyldahl v. AT& T

, No. 07-14948-B C, 2009 WL 2567197, at *5 (E.D. Mich. Aug

. 17, 2009) (slip copy ) (sec tion 1961(a) rate ); Verhoff v. Time W arner Cable, Inc. , No. 3:05-CV-7277, 2007 WL 2815216, at *1-2 (N.D. Ohio Sept. 26, 2007) (unre ported) (state statutory rate ); Kill ian v. Y

oruzo Automotive Tenn., Inc

. , No. 4:02-CV-039, 2006 WL 3694488, at *5 (E.D. Tenn. Nov. 6, 2006) (unre ported) (sec tion 1961(a) rate ); Hite v. Verme er Mfg. Co. , 361 F. Supp. 2d 935, 949 (S.D. I owa 2005) (state statutory rate ); Rice v. Sunrise Express, Inc. , 237 F. Supp. 2d 962, 970-71 (N.D . I nd. 2002) (pr ime rate ). Be ll has provided no persua sive leg al rea soning for finding that the district court abused its discretion by selec ting the section 1961 statutory rate
. B e ll r e li e s h e avily on out-of-c ircuit prec edents from non-F ML A ca ses, and these have little impact. See F irst N at’l Bank of Chicago v. Standard Bank & Trust , 172 F.3d 472, 480 (7th Cir. 1999) (Expedited Funds Availability Act case ); McKelv y

v. Metal Container Corp. , 854 F.2d 448, 453 (11th Cir. 1988) (Ag e Discrimination in Employ ment Act case ); EEOC v. Guardian Pools, Inc. , 828 F.2d 1507, 1512 (11th Cir. 1 9 8 7 ) (Title VI I discrimination case ). Although the Seventh Circuit, in F irst National Bank of Chicago , did not apply section 1961 to c alculate prejudg ment interest, it r ecognized the ability of district courts to e ng ag e - 3 -No. 10-2528

Bell v. Pre

fix, Inc. in the s etting of interest rates. First Nat’l Bank of Chicago , 172 F.3d at 480. Fur t h er , t he dis trict court in the instant case did not dec ide on a spe cific inter est rate beca use the case was “close ,” the deter mining fa ctor in First Nat ional Bank of Chicago

. See id. L ikewise, Be ll neg lects to explain why , as a fac tual matter, the prejudg ment interest calc ulation constituted an abuse of discretion. He offe rs only brief and g ener alized comments about the burdens he bore during the time period and why a g reater awa rd of prejudg ment interest would make him whole. Be ll also argues that the district court abused its discretion by not appending the prime rate into the l ater application of section 1961 to calc ulat e prejudg ment interest. Howeve r, none of t he out-of-c ircuit case s cited by Be ll involved FMLA damage s or appending the p ri m e rate somehow into a section 1961 calc ulation of prejudg ment interest. The Seventh Circuit’s decisi o n even specific ally allows that district courts may eng ag e in “re fined rate -setting ” when appropr iate. First Nat’l Bank of Chicago , 172 F.3d a t 480. T he court acte d well within its di scre tion by considering all arguments advanc ed by Be ll c are fully , study ing the authority provided by him with his motion, and deter mining that no authority tender ed supports importing the prime rate into the section 1961 calc ulation. AF F IRMED

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