ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 72-466)
Before Seitz, Chief Judge, and Rosenn and Garth, Circuit Judges.
Plaintiff Gordon Baughman ("plaintiff") appeals from an order of the district court assessing attorneys' fees and costs against defendant Wilson Freight Forwarding Company, now known as Wilson Freight Lines, Inc. ("Wilson"). Wilson cross-appeals from the same order, which the district court entered after a jury verdict finding that Wilson had violated the antitrust laws. The district court assessed the attorneys' fees and costs in accordance with Section 4 of the Clayton Act, which provides in pertinent part that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . shall recover . . . the cost of suit, including a reasonable attorney's fee." 15 U.S.C. § 15 (1976).
The factual background of this case is set forth fully in the prior opinions of both our court and the district court that considered questions of liability and damages. Baughman v. Cooper-Jarrett, Inc., 391 F. Supp. 671 (W.D.Pa.1975), Vacated in part and remanded, 530 F.2d 529 (3d Cir.), Cert. denied, 429 U.S. 825, 97 S. Ct. 78, 50 L. Ed. 2d 87 (1976). We therefore shall set out only those facts relevant to this appeal before proceeding to consider that petition for attorneys' fees.
Plaintiff worked for Cooper-Jarrett, Inc., as an over-the-road truck driver. In October, 1970, Cooper-Jarrett fired plaintiff after he had been involved in several work-related disputes with management. Following a grievance proceeding that upheld the propriety of the discharge, plaintiff applied for work with several other trucking firms in western Pennsylvania. He was unsuccessful in obtaining employment as a trucker.
Plaintiff believed that his failure to find work was the result of a conspiracy to blacklist him by the trucking firms to which he had applied, a conspiracy instigated by Cooper-Jarrett. Consequently, plaintiff sought legal assistance, but for several months could not find an attorney willing to represent him. Finally, after repeated requests, attorney Paul A. Simmons, a member of a Washington County, Pennsylvania, law firm, agreed in February of 1972 to take plaintiff's case.
Plaintiff filed his complaint in federal district court on June 12, 1972, against four defendants: Cooper-Jarrett, Inc.; Matlack, Inc.; National Freight Lines, Inc.; and Brauns Baking Company, also known as Continental Baking Company (hereinafter "Brauns"). In one of the two claims, plaintiff alleged that the four defendants had conspired to blacklist him from employment in violation of §§ 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2 (1976). In the second claim, plaintiff alleged a state-law cause of action against the four defendants charging them with tortious interference with plaintiff's business relationships. Plaintiff alleged both diversity and pendent jurisdiction over this state-law claim.
On September 11, 1972, the district court allowed the plaintiff to file an amended complaint. This amended complaint was identical to the first complaint, except that it added Wilson as a defendant under both claims.
Attorney Simmons left the practice of law to become a state judge on June 1, 1973. On that date, Simmons turned plaintiff's case over to attorney John W. McIlvaine, who has served as plaintiff's attorney since that time.
At the close of the presentation of the evidence to the jury at trial, the district court granted Brauns' motion for a directed verdict, but submitted the case against the remaining defendants to the jury. The jury found in favor of one defendant, National Freight Lines, Inc., on both claims. It found Cooper-Jarrett, Matlack, and Wilson to be liable on the antitrust claim. And the jury found only Cooper-Jarrett to be liable on the state-law claim, thus finding in favor of the other defendants on that claim.
Upon post-trial motions, the district court held there was enough evidence to support the verdict of the jury, and so denied defendants' motions for judgment N. o. v. But solely because of an improper closing argument by plaintiff's attorney, the district court granted defendants a new trial: "(W)e find that the appeals to passion and prejudice were so gross as to unfairly prejudice the defendant (Sic ) and so permeated the entire argument that they could not possibly be neutralized by cautionary instructions from the court." Baughman v. Cooper-Jarrett, Inc., No. 72-466, op. at 23 (W.D.Pa., August 20, 1974) (unpublished opinion).
Plaintiff's case went to trial for a second time in October, 1974, against the three remaining defendants on the antitrust claim, Cooper-Jarrett, Matlack, and Wilson, and against Cooper-Jarrett only on the state-law claim. After the jury was sworn, but before plaintiff's opening statement, Cooper-Jarrett and Matlack settled all claims against them. In return for $37,500 from Cooper-Jarrett and $22,500 from Matlack, plaintiff executed a joint tortfeasor release in favor of those two defendants in settlement of all claims. The settlement agreement specifically included attorneys' fees and costs. And plaintiff specifically reserved all his rights against Wilson, with whom settlement negotiations had proved unsuccessful.
At some point after plaintiff received the $60,000 settlement from Cooper-Jarrett and Matlack, he paid $20,000 to attorney McIlvaine as an attorney's fee. The only money plaintiff had previously paid either of his attorneys was $500 that he advanced to Simmons against costs.
After an eight-day trial, the jury returned a verdict against Wilson and fixed damages at $25,000. The district court denied Wilson's motion for judgment N. o. v., again finding the evidence sufficient to support the verdict. After trebling the award and then off-setting the amount received in settlement, the district court entered judgment against Wilson in the amount of $25,200. Baughman v. Cooper-Jarrett, Inc., 391 F. Supp. 671 (W.D.Pa.1975).
We upheld the jury verdict on appeal. Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531-33 (3d Cir.), Cert. denied, 429 U.S. 825, 97 S. Ct. 78, 50 L. Ed. 2d 87 (1976). But because the district court had erred in computing the amount of the settlement to be offset against the damage award, we vacated that part of the district court's judgment and remanded with directions to enter judgment against Wilson for $30,600. Id. at 533-35. Both the order appealed from and our opinion "left undetermined the amount of an award of attorney's fees recoverable pursuant to 15 U.S.C. § 15." Id. at 531 n.2.
Thus plaintiff recovered a total of $90,600: $60,000 in settlement from Cooper-Jarrett and Matlack; and $30,600 upon the verdict against Wilson.
The Supreme Court denied Wilson's petition for certiorari in October, 1976, thus concluding this litigation on the merits.
PLAINTIFF'S PETITION FOR ATTORNEYS' FEES AND COSTS
In November, 1976, plaintiff filed a petition with the district court seeking attorneys' fees and costs from Wilson. Plaintiff sought compensation for 1,253 hours of attorney time at the rate of $275 per hour, or a total fee of $344,575. Plaintiff also sought costs totaling $2,807.54. Plaintiff attached exhibits to his petition setting forth the hours spent on a day-by-day basis, with general descriptions of how the time was spent, and itemizing the costs claimed. Plaintiff's claim included seven hours for preparation of the fee petition.
The district court held an evidentiary hearing on the fee petition. At that hearing, Judge Simmons testified that he initially had been reluctant to accept plaintiff's case because he did not wish to undertake a complex antitrust action where there was no guarantee of payment and where the chances for success seemed slim. Judge Simmons testified as to his general experience and qualifications as an attorney, and emphasized his expertise in handling large, multi-party antitrust cases. He testified concerning the complexity of the issues involved in the case, the nature of the work performed, and the reasons supporting some of the claims in the fee petition.
Judge Simmons provided information on the general fee schedules of attorneys in western Pennsylvania from 1972 to 1976, but he stated that because so few firms were capable or anxious to handle such complex antitrust litigation, he would have charged plaintiff $110 per hour over twice what he stated the average hourly fee to be had plaintiff been able to pay. Judge Simmons said that because of the contingent nature of the case and because of the high quality of the work, he had multiplied the $110 per hour figure by a factor of 2.5 to reach the $275 per hour figure claimed in the fee petition.
Attorney McIlvaine also testified about the nature of the work performed for plaintiff, and stated the reasons for certain claims made in the petition. McIlvaine offered to allow Wilson to inspect his contemporaneous time records upon which the petition for fees had been based, and he testified generally as to the nature of the issues in the case and quality of the work performed.
Wilson offered no testimony. The district court refused to accept into evidence the bills submitted to Wilson by its attorney for the work performed in this case, and Wilson offered nothing else into evidence.
In determining plaintiff's legal fee the district court purported to follow the principles we announced in Lindy Brothers Builders of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I ); Lindy Brothers Builders of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (en banc) (Lindy II ); and Merola v. Atlantic Richfield Co., 515 F.2d 165 (3d Cir. 1975) (Merola II ).
The court began its analysis by calculating the number of hours to be credited to plaintiff's attorneys for their work in preparation of the entire case. This is the first step in calculating the lodestar (hours of service times hourly rate), which in turn is the first step in calculating a reasonable fee under our decisions. The court held that all the hours claimed in the fee petition, as properly calculated, had been verified at the hearing as having been expended in the case. The court rejected Wilson's assertion that plaintiff had overstated the hours spent as having "no basis in the record," Baughman v. Wilson Freight Forwarding Co., 79 F.R.D. 520 at 523, (W.D.Pa., 1977), and noted that Wilson had failed to examine plaintiff's attorneys' records, though such records had been made available for inspection.
The district court, however, did deduct 68.5 hours, one-half of the 137 hours spent on the first trial, because the "necessity of a retrial was caused solely by the conduct of (the) plaintiff's counsel in his address to the jury as the result of which the court has determined that at least half the time spend (Sic ) in the first trial was wasted." Baughman v. Wilson Freight Forwarding Co., supra, at 524. The court refused to deduct more than 68.5 hours, however, because it believed that the evidence developed at that trial, which was sufficient to have supported the finding of liability had counsel not erred, was of importance at ...