Summary
denying fees for preparation of expert report
Summary of this case from Roccisano v. Twp. of FranklinOpinion
Civil Action No. 04-697.
April 5, 2005
MEMORANDUM
Presently before this Court is the Plaintiff's Motion for an Award of Attorney Fees and Costs Pursuant to 42 U.S.C. § 1988.
Plaintiff Michael Vassallo filed the present civil rights action on February 17, 2004, alleging that he was falsely arrested and maliciously prosecuted by Defendant Detective Michael Fox for an incident that occurred at the Flatspin American Grill and Dance Hall on July 14, 2002. The case went to trial on February 28, 2005, which concluded on March 7, 2005, with a verdict from the jury awarding Plaintiff $100,000, of which $75,000 was compensatory damages and $25,000 was punitive damages.
Plaintiff comes now seeking a modification of the judgment to include attorney fees and costs. Defendant does not dispute that Plaintiff is entitled to fees, rather the amount to which Plaintiff is entitled is in dispute. Accordingly, I evaluate the application.
In evaluating the reasonableness of a claimed fee in cases like this, the "lodestar" formula is used, which multiplies the number of hours reasonably expended by a reasonable hourly rate. Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983);Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546 (1986)). "When the applicant for a fee has carried his burden of showing that the claimed rates and number of hours are reasonable, the resulting product is presumed to be the reasonable fee to which counsel is entitled." Id. (quotingDelaware Valley Citizens' Council, 478 U.S. at 564).
Generally, a reasonable hourly rate is calculated according to the prevailing market rates in the relevant community. Id. (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)). The court "should assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The starting point in ascertaining a reasonable hourly rate is the attorney's usual billing rate; however, the usual billing rate is not dispositive. Pub. Interest Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995). The prevailing party bears the burden of establishing by way of satisfactory evidence, in addition to the attorney's own affidavits, that the requested hourly rates meet this standard. Washington v. Phila. Cty. Ct. of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (citingBlum, 456 U.S. at 895 n. 11 (1984)).
Plaintiff suggests an hourly billing rate of $260. Although not supported by independent affidavits, Plaintiff's suggested rate is based upon the schedule of hourly rates charged to opposing parties in fee shifting cases by Community Legal Services, Inc. This schedule, which is based upon a Philadelphia law firm market survey, has been approved by both the Third Circuit and the Eastern District of Pennsylvania as a fair reflection of the prevailing market rates in Philadelphia. Maldonado, 256 F.3d at 187-88 (citing Phila. Hous. Auth., 832 F. Supp. 127, 129 (E.D. Pa. 1993); Swaayze v. Phila. Hous. Auth., 1992 WL 81598, at *2 (E.D. Pa. Apr. 16, 1992)). Defendant disputes this rate on the grounds that it is not supported by affidavits from other practitioners in the Philadelphia legal community with experience in civil rights law. Defendant argues that the acceptable range for attorneys in civil rights cases ranges from $150 to $275 per hour, Garner v. Meoli, 1998 U.S. Dist. LEXIS 14126 (E.D. Pa. Aug. 31, 1998) (DuBois, J.), and that because Plaintiff's counsel has failed to substantiate the rate, he should be entitled to no more than $150 per hour.
The Court sees no reason to refashion Plaintiff counsel's suggested rate. The Court notes that Defendant's suggested range falls within that propounded on the Community Legal Services. Even if this Court was to find Plaintiff's suggested rate to be unsubstantiated, it would be up to the discretion of the Court to select the appropriate rate. Becker v. Arco Chem. Co., 15 F. Supp. 2d 621, 628 (E.D. Pa. 1998) (citing Washington, 89 F.3d at 1036; Rode, 892 F.2d at 1183). In doing so, the Court may draw upon its personal knowledge of the facts and issues in the litigation. Id. (citing Bell v. United Princeton Props., Inc., 884 F.2d 713, 720 (3d Cir. 1989). Accordingly, the Court concludes that $260 per hour is a reasonable rate in this case, in light of Plaintiff counsel's experience and his performance at trial. Although this case presented few complex legal issues, it was factually complex and required much investigation. As such, the Court concludes that the rate is reasonable.
Defendants further requests a twenty percent reduction in Plaintiff's rate below that calculated by the Court, arguing that Plaintiff seeks to recover the costs of ministerial and secretarial tasks at attorney rates. I find no merit to the argument. In setting a reasonable fee, courts examine whether a paralegal, clerk, or less-senior attorney could have performed some litigation tasks. See Becker, 15 F. Supp. 2d at 632. However, a review of the chargeable time submitted by Plaintiff shows a dearth of tasks regularly assigned to paralegals or low level associates. Plaintiff seeks recovery for two instances of legal research. On July 15, 2004, Plaintiff's counsel conducted 3.8 hours of legal research and prepared a memo on qualified immunity, and part of a 7.0 hour entry dedicated to counsel's response in opposition to the motion for summary judgment. Neither entry is unreasonable. Furthermore, as the case required little in terms of document review and other ministerial functions, there are no grounds to adjust the rate based upon the tasks performed. Plaintiff will recover for attorney activities at attorney rates.
Once a reasonable hourly rate is set, the Court next turns to the number of hours reasonably expended. In calculating the hours reasonably expended, the Court will "review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are excessive, redundant, or otherwise unnecessary."Maldonado, 256 F.3d at 184 (quoting Windall, 51 F.3d at 1188) (internal quotation marks omitted). "Hours that would not generally be billed to one's own client are not properly billed to an adversary." Id. Hours may also be excluded for claims "which were unsuccessful and that are distinct in all respects from claims on which the party did succeed." Becker, 15 F. Supp. 2d at 634 (quoting Washington 89 F.3d at 1044).
Plaintiff seeks reimbursement for 209.4 hours expended by his attorney in the present matter. Defendant objects to a total of 28.6 of those hours: 5.7 hours of pre-answer motions practice, 5.9 hours expended on discovery activities, 8.3 hours expended preparing a response to the motion for summary judgment, and 6.6 hours expended on preparation of the joint pretrial order. None of the objected to hours appears excessive, redundant, or otherwise unnecessary. Although Plaintiff did not initially prevail in the pre-answer motions practice, he was successful once an amended complaint was filed. He has obtained excellent results from jury trial and should, therefore, recover a fully compensatory fee.See Depenbrock v. Cigna Corp., No. 01-6161, 2005 WL 636701 (E.D. Pa. Mar. 18, 2005) (quoting Hensley, 461 U.S. at 435) (noting that success on the merits, even if partial and only after prevailing on appeal, is enough to permit a full fee recovery as the result is all that matters). The time spent on discovery and investigation was reasonably necessary, even if several witnesses were not called at trial. The time spent on the response to the motion for summary judgment and the joint pretrial order appear reasonable in light of the number of witnesses necessary to establish Plaintiff's case. Plaintiff has reduced his changeable hours to reflect the Court's entry of summary judgment in favor of the City of Philadelphia. However, to the extent that Defendant raises further objection to them, I conclude that the claims are factually related and difficult to separate, making them not distinct in all respects. Accordingly, I will not reduce the requested hours.
As I have found the hourly rate of $260 to be reasonable as well as Plaintiff's 209.4 hours expended in this case, I conclude that an award of $54,444.00 in attorney fees is appropriate and will be entered.
Additionally, Plaintiff seeks reimbursement for $2,500 in expert fees for the preparation of his expert report. However, the provisions of 42 U.S.C. § 1988 which provide for the recovery of expert witness fees does not apply to an action brought under 42 U.S.C. § 1983. As a result, while Plaintiff may recover an expert witness fee, he may do so only to the extent permitted by 28 U.S.C. § 1821, or $40 per day. See W. Va. Univ. Hosps. v. Casey, 885 F.2d 11, 32-35 (3d Cir. 1989). As the right to recover all other traditionally recoverable costs has been waived, I will enter an award of $40 for Plaintiff's expert's appearance.
An appropriate Order follows.
ORDER
AND NOW this 5th day of April, 2005, upon consideration of the Plaintiff's Motion for an Award of Attorney Fees and Costs (Doc. No. 42) and the Response in opposition thereto, it is hereby ORDERED that:1. the Motion is GRANTED IN PART;
2. the Judgment is modified to include attorney fees of $54,444.00 and witness fees of $40.