RANK v. BALSHY

July 5, 1984

GARY W. RANK, Plaintiff
v.
JOHN C. BALSHY, DEAN B. SHIPE, THE ESTATE OF JOSEPH VanNORT, Defendants

The opinion of the court was delivered by: HERMAN

MEMORANDUM AND OPINION

 I. INTRODUCTION

 The above-captioned civil rights action was initiated on April 24, 1980. Prior to trial, certain defendants were dismissed. Following a lengthy trial, a jury returned a verdict of liability against the remaining Defendants: *fn1" John Balshy, Dean Shipe, and Joseph Van Nort. *fn2" The jury awarded $40,500.00 in compensatory damages and $15,000.00 in punitive damages.

 The sole issue before us now is Plaintiff's motion for attorney fees and costs. Plaintiff avers that his counsel fees total $119,475.50, which he believes should be multiplied by two for a total of $238,951.00. Plaintiff and his counsel also seek recovery of costs totalling $28,774.11. While Defendants do not contest Plaintiff's general right to recover attorney fees and costs pursuant to 42 U.S.C. ? 1988, Defendants strongly contest the reasonableness and the propriety of the fees and various costs.

 II. LEGAL ANALYSIS

 In any lawsuit in this country, the "American Rule" has been that each party ordinarily should bear its own counsel fees unless there is express statutory authority to the contrary. ALYESKA PIPELINE SERVICE CO. v. WILDERNESS SOCIETY, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). With federal civil rights actions, such a statute exists, which provides that "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. ? 1988. Although the statute is simply worded, the courts have been inundated with cases seeking to clarify the extent of this statute. As a result, certain principles have emerged.

 In general, the court must determine the lodestar, or base figure, of the requested attorney fee. This requires an analysis of how many hours were spent by which attorneys in what manner and the value of these services. LINDY BROTHERS BUILDERS, INC. OF PHILADELPHIA v. AMERICAN RADIATOR & STANDARD SANITARY CORP., 487 F.2d 161, 167 (3d Cir. 1973) (LINDY I). Accordingly, the courts must make a "twin inquiry into reasonableness: a reasonable hourly rate and a determination of whether it was reasonable to expend the number of hours in a particular case." URSIC v. BETHLEHEM MINES, 719 F.2d 670, 676 (3d Cir. 1983) (emphasis in original). See also HENSLEY v. ECKERHART, 461 U.S. 424, , 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983) ("The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.").

 In determining the lodestar, the court may exercise some discretion, but the court must abide by the appropriate standards and articulate its reasons to permit careful appellate review. URSIC, 719 F.2d at 675. While balancing numerous concerns, the trial courts have been cautioned not to become so enmeshed with a fee decision that it dwarfs the case in chief. LINDY BROTHERS BUILDERS, INC. v. AMERICAN RADIATOR & STANDARD SANITARY CORP., 540 F.2d 102, 116 (3d Cir. 1976) (en banc) (LINDY II) ("Once the district court determines the reasonable hourly rates to be applied, . . . it need not conduct a minute evaluation of each phase or category of counsel's work.").

 Regardless, as statutory fee cases have increased dramatically, the courts have been advised to "cast a critical eye on the award request." URSIC, 719 F.2d at 676. In the recent Supreme Court decision of HENSLEY v. ECKERHART, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983), the Court held that the amount of a fee should be determined on the facts of each case considering numerous factors. Twelve factors the court specifically noted are as follow:

(1) The time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

 Id. at 1937 n.3; URSIC, 719 F.2d at 675 n. 4. The United States Court of Appeals for the Third Circuit also has emphasized various concerns affecting a lodestar determination, including the reputation and status of the attorney and the general quality of a counsel's experience, knowledge, and legal talent. LINDY I, 487 F.2d at 167; LINDY II, 540 F.2d at 117.

 Further considerations exist in calculating a lodestar. First, a party must adequately document the hours worked or suffer a reduction in his award request. HENSLEY, 103 S. Ct. at 1939. Moreover, hours that are not reasonably expended must be excluded from the lodestar. Overstaffed cases that include excessive, redundant, or otherwise unnecessary billed hours cannot be fully compensated. Id. at 1939-40. While duplicative efforts on some matters surely will be helpful to trial counsel, not all such efforts are reasonably necessary and recoverable under the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. ? 1988. M.S.R. IMPORTS, INC. v. R.E. GREENSPAN CO., INC., 574 F. Supp. 31, 34 (E.D. Pa. 1983) (one day assistance of senior co-trial counsel in short, uncomplicated trial excluded from fee award).

 As the Supreme Court and the Third Circuit have emphasized, the key word in consideration of a fee petition is "reasonable." HENSLEY, 103 S. Ct. at 1939; URSIC, 719 F.2d at 678. "Billing judgment" is an important component in setting a fee. "'Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.'" HENSLEY, S. Ct. at 1940, quoting, COPELAND v. MARSHALL, 205 U.S. App. D.C. 390, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc) (emphasis in original); URSIC, 719 F.2d at 678.

 In a well-reasoned and common-sense opinion, Judge Weis further observed the following:

It should be noted that the lodestar computation is a two-edged sword. A fee applicant cannot demand a high hourly rate - which is based on his or her experience, reputation, and a presumed familiarity with the applicable law - and then run up an inordinate amount of time researching the same law. Double dipping, in any form, cannot be condoned. Our cases supply no authority for rewarding non-stop meter running in law offices. See PRANDINI I [ PRANDINI v. NATIONAL TEA CO., 557 F.2d 1015 (3d Cir. 1977)], at 1020.

Nor do we approve the wasteful use of highly skilled and highly priced talent for matters easily delegable to non-professionals or less experienced associates. Routine tasks, if performed by senior partners in large firms, should not be billed at their usual rates. A Michelangelo should not charge Sistine Chapel rates for painting a farmer's barn.

 URSIC, 719 F.2d at 677.

 Finally, in determining the lodestar, the court must consider the extent to which the prevailing party succeeded on the merits. HENSLEY, 103 S. Ct. at 1940, 1943; INMATES OF ALLEGHENY COUNTY JAIL v. PIERCE, 716 F.2d 177, 180 (3d Cir. 1983) (modifying HUGHES v. REPKO, 578 F.2d 483 (3d Cir. 1978), to the extent that all hours attributed to unsuccessful claims were excluded mechanically from fee award). In HENSLEY, the Court held that:

where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.

 HENSLEY, 103 S. Ct. at 1943; INMATES OF ALLEGHENY COUNTY JAIL, 716 F.2d at 180.

 In addressing this aspect, no precise rule or formula exists. Specific hours may be identified and excluded from the lodestar or the award may be reduced to reflect limited success. HENSLEY, 103 S. Ct. at 1941. Since counsel generally devotes his time to a case as a whole, it may be difficult to separate claims and the hours expended on them. When claims involve a common core of facts and related legal theories, the court should focus on the overall relief obtained in relationship to the reasonable hours expended, keeping the degree of success as the most critical factor. Id. at 1940-41. Clearly a mathematical approach of comparing the number of successful claims to the total number of claims raised is improper. Id. at 1940-41 n.11; INMATES OF ALLEGHENY COUNTY JAIL, 716 F.2d at 181.

 Upon careful examination of the above factors and considerations, the court can determine a reasonable lodestar figure. The court's task in an attorney fee award, however, is not completed until the court separately addresses whether the lodestar should be increased or decreased due to special circumstances. In LINDY I and LINDY II, the Third Circuit held that the lodestar could be augmented, or decreased, upon consideration of the contingency nature of the action and the quality of the work performed. LINDY I, 487 F.2d at 168; LINDY II, 540 F.2d at 117-18.

 Any increase or decrease based upon the quality of work is to reflect only exceptional services, be it unusually good or unusually poor. BLUM v. STENSON, 465 U.S. 886, , 52 U.S.L.W. 4377, 4380, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984); URSIC, 719 F.2d at 674; LINDY II, 540 F.2d at 118. Since "quality" is a factor in determining the lodestar (i.e., a high hourly rate presumes high quality work), an attorney must demonstrate either service or a result of a superior nature. *fn3" BLUM, 52 U.S.L.W. at 4380; URSIC, 719 F.2d at 674. If the court decides to use a multiplier to augment the award, the reasons for the court's ruling must be explained. *fn4" BLUM, 52 U.S.L.W. at 4379-81; LINDY II, 540 F.2d at 118.

 III. FACTUAL ANALYSIS: ATTORNEY FEES

 A. Case History

 To properly understand the issues presented by the petition for attorney fees, it is necessary to examine the underlying basis of this civil action. On March 23, 1979, Helen Horn was found murdered in her home. Following an investigation by the Pennsylvania State Police, Plaintiff, Gary W. Rank, was arrested and charged with her murder. Following a ten-day trial, a jury acquitted Plaintiff.

 Approximately one year after the death of Mrs. Horn, Plaintiff filed this civil rights action in April 1980. Plaintiff alleged that four Pennsylvania State Police officers and their employer issued and executed search warrants knowing the alleged facts to be false; obtained an arrest warrant without having probable cause; prevented Plaintiff from seeing his counsel; fabricated, destroyed, or concealed evidence in the criminal murder trial; and assaulted and battered Plaintiff. Plaintiff further averred that the Commonwealth of Pennsylvania had failed to exercise due care in selecting, training, and maintaining control of the state policemen. Additionally, Plaintiff claimed that Dauphin County and the warden of Dauphin County Jail failed to exercise due care in the selection, supervision, and control of county jail personnel. *fn5"

 Following an unopposed motion to dismiss, the court dismissed Defendants Dauphin County and the warden of Dauphin County Jail from the action on June 20, 1980. Thereafter, the individual State Police officers, the Pennsylvania Department of State Police, and the Commonwealth of Pennsylvania moved for dismissal. The individual officers' motions were denied but the court granted the Commonwealth's and State Police Department's motions in a September 23, 1980, order.

 Upon the conclusion of discovery, a jury trial commenced on October 13, 1982. The principal issues raised were whether the State Police officers knowingly had insufficient probable cause to obtain the arrest and search warrants and whether the officers had fabricated or planted certain pieces of evidence. Most of the testimony focused on whether the officers had planted Rank's fingerprints on a cellar windowpane and doorjamb at the crime scene and whether blue fibers allegedly found on a cellar window actually existed. At the close of Plaintiff's case, the court dismissed all pendent state claims and the excessive use of force, the malicious prosecution, and the right to counsel claims. Moreover, at the close of all evidence, the court entered a directed verdict in favor of Defendant Holtz.

 On November 5, 1982, the jury returned a verdict on liability in favor of Plaintiff and against officers Balshy, Shipe, and VanNort. Following a trial on damages, the jury awarded $13,500.00 in compensatory damages and $5,000.00 in punitive damages against each Defendant for a total of $40,500.00 in compensatory damages and $15,000.00 in punitive damages. Thereafter, numerous post-trial motions were filed by the parties but were denied by the court on September 29, 1983. No decision on Plaintiff's motion for attorney fees and costs was made at that time pending the submission of further affidavits and briefs.

 B. The Lodestar Calculation In consideration of Plaintiff's request for attorney fees, we first address the question of the reasonable value of the lodestar. During the four years this case was in litigation, two attorneys acted on Plaintiff's behalf: Gilbert B. Abramson and Philip L. Blackman. n6 A summary of the time allegedly expended by each, in addition to their requested hourly rate, is as follows: GILBERT B. ABRAMSON, ESQUIRE 1980 37.2 hours x $120/hour= $ 4,464.00 1981 23.4 hours x $120/hour= 2,808.00 1982 232.4 hours x $150/hour (out of court)= 34,860.00 15-1/2 days x $1,300/day (in court)= n7 20,150.00 1983 10.0 hours x $150/hour= 1,500.00 TOTAL $63,782.00 PHILIP L. BLACKMAN, ESQUIRE 1980 12.5 hours x $90/hour= $ 1,125.00 1981 97.2 hours x $100/hour= 9,720.00 1982 277.2 hours x $120/hour= 33,264.00 1983 77.3 hours x $120/hour= 9,276.00 TOTAL $53,385.00

19840705

© 1992-2004 VersusLaw Inc.