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HUGHES v. REPKO

July 11, 1978

John W. HUGHES and Cynthia B. Hughes, his wife, Plaintiffs,
v.
John S. REPKO and Mrs. John S. Repko, his wife, Defendants



The opinion of the court was delivered by: MARSH

In this housing discrimination suit, the plaintiffs were awarded $ 1,250 by a jury in their action under 42 U.S.C. § 1982 against defendant Mrs. Repko. Defendants prevailed in the conspiracy claim asserted against Mr. and Mrs. Repko under § 1985 and in the § 1982 action against Mr. Repko. The previous order of this court, to the extent it allowed a fee for plaintiffs' counsel, was vacated and remanded for further proceedings consistent with the opinion of the Court of Appeals, 578 F.2d 483 (3rd Cir. 1978). The relevant facts appear in the opinion of the Court of Appeals and in the previous opinion of this court, 429 F. Supp. 928 (1977).

The proper first step in calculating reasonable attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976 is calculation of the so-called lodestar. See Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3rd Cir. 1976) (Lindy II ). This requires the court to determine not only the number of hours actually devoted to the plaintiffs' successful claim, but also to decide whether it was reasonably necessary to spend that number of hours in order to perform the legal services for which compensation is sought. The burden of persuasion in this instance rests on the plaintiffs who seek a fee of $ 3,850 plus costs in the amount of $ 222.33.

 Plaintiffs rely on an affidavit of their counsel listing 55 hours of legal services. *fn1" According to this affidavit, approximately 10.2 hours of this time was in-court time, including one-half hour for the preliminary pretrial conference, one-half hour for argument on the motion for summary judgment, two hours for jury selection, 4.7 hours for trial on January 5, and 2.5 hours in court on January 6. The remainder of the time, or about 44.8 hours, is attributed to out-of-court matters. In our considered judgment, 44.8 hours of out-of-court time was more than was reasonably necessary to perform the legal services for which compensation is sought by plaintiffs.

 We reach this conclusion after the following analysis *fn2" of the number of out-of-court hours allocated by plaintiffs for particular legal services in connection with this case.

 The pleadings themselves are quite brief, and it was recognized early in the lawsuit that this was not a complicated matter and that only minimal discovery would be necessary (See Transcript and Memorandum of Pretrial Conference of April 20, 1976). Plaintiffs' counsel found it necessary to meet with his clients twice for a total of about two hours. By the time of trial, the file in this case consisted of a three-page complaint, a two-page answer, two pretrial statements of two or three pages each, a brief stipulation of facts, and four depositions of approximately 25 pages each.

 Against this background of uncomplicated issues of fact and law, we note that plaintiffs' counsel has attributed a total of about nine hours to his work in opposition to the defendants' motion for summary judgment. Counsel's research yielded a brief of five pages. Oral argument on the motion consumed a total of 35 minutes for both sides, including time spent correcting typographical errors in the depositions. Plaintiffs later submitted a supplemental brief consisting of a one-page letter to the court citing and discussing a single case. We believe nine hours to be considerably more time than was reasonably necessary to complete the work done in opposition to the motion for summary judgment. The time reasonably required for the legal services rendered in opposition to defendants' motion was no more than four hours, plus the one-half hour in court.

 We also note that counsel for plaintiffs has listed a total of 8.2 hours, or approximately one-fifth of his total out-of-court time, for post-trial work on the matter of attorney's fees after he was supplied with the 1976 Awards Act by the court. Counsel had done a significant amount of research on the issue of attorney's fees prior to the trial, as indicated by his seven-page trial brief (3.5 hours) which contains two pages on fee awards in discrimination cases. We believe that 8.2 hours was more time than was reasonably necessary to prepare the post-trial materials submitted by plaintiffs with respect to fees. *fn3" At most, 2.5 hours would be a reasonable time in which to set forth the number of hours expended and to prepare plaintiffs' post-trial memoranda on attorney's fees.

 For January 3, counsel has listed 6.2 hours for work on a variety of matters:

 
"Prepare for trial; order subpoena for Mrs. McDonald; pick jury; conference with Judge Marsh; complete Points for Charge; Memorandum of Law on Allowable Damages under Section 1982."

 The record shows that jury selection and the conference with the court lasted no more than two hours. The memorandum of law on damages is approximately two-typed pages consisting of a short discussion and a list of materials which were appended to the memorandum including photostatic copies of two chapters from the 1974 "Guide to Practice Open Housing Law" and a copy of the opinion of November 19, 1975 by Judge Rosenberg in Todd v. Lutz, 64 F.R.D. 150, a case brought by plaintiffs' counsel involving a refusal to lease a residence because of race. Counsel had previously spent one hour on December 31 working on plaintiffs' requested points for charge. We conclude that 6.2 hours was more time than was reasonably necessary to complete the matters listed for January 3. In addition to the two hours in court, no more than one hour was reasonably necessary for these matters.

 Counsel has allocated 1.8 hours on January 5 to preparation of his closing argument and to additional research on the issue of punitive damages. The court cannot ascertain how much of this time was spent in preparation of the summation (which lasted 14 minutes) and how much was spent on the additional research on punitive damages. While the court believes that counsel acted reasonably in attempting to supplement his previous research on punitive damages, the benefit of this additional research was never presented to the court in either written or oral form. The court concludes that no more than 1.2 hours was reasonably necessary for the out-of-court work listed for January 5.

 We note that plaintiffs' counsel spent 1.1 hours drafting and amending his pretrial narrative and list of witnesses. Subsequently, he spent a total of 2.4 hours working on the pretrial stipulation. Considering that the final product of this 2.4 hours was a stipulation which is taken virtually word-for-word from the previously prepared pretrial narrative, the court concludes ...


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