The opinion of the court was delivered by: LUONGO
This action under the Civil Rights Act of 1871 was instituted on September 21, 1976 by Robert G. Keown and his wife, Isabel S. Keown, against Robert Storti, a Plymouth Township police officer, and against Mr. and Mrs. James Evans, Plymouth Township residents who operate a residential painting business from their home. In sum, Robert Keown, a salesman for advertising services, contended that he was unlawfully arrested by Storti at the Evanses' household while attempting to make a sale to the Evanses and that the Evanses conspired with Storti to accomplish this unlawful arrest. Isabel Keown, who had accompanied her husband to the Evanses' home, made the same contention, asserting that she also had been arrested. Robert Keown was charged by Storti with the summary offense of soliciting without a permit, but the charges were withdrawn when Keown appeared before a magistrate. The Keowns then sued.
The Keowns, the Evanses, and Storti all now have moved for allowance of costs and attorneys' fees.
Invariably, such motions compel a two-part inquiry. First, it must be determined whether the moving party is entitled to such an award. Under the "American Rule" adhered to by the Supreme Court, attorneys' fees normally are not recoverable in federal litigation in the absence of statutory authorization. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). This case is governed by the statutory authority to award attorneys' fees as part of the recoverable costs in the case under the Civil Rights Attorney's Fees Awards Act of 1976 (hereinafter, Fees Act), Pub.L. No. 94-559, 90 Stat. 2641, Amending 42 U.S.C. § 1988, which provides:
"In any action or proceeding to enforce a provision of (Inter alia, the Civil Rights Act of 1871), the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs."
If the entitlement question is answered affirmatively, the second question is the amount to be awarded. In this circuit, that question must be answered according to the "Lindy rules" promulgated by the Court of Appeals for the Third Circuit in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (1973) (Lindy I ), & 540 F.2d 102 (1976) (en banc) (Lindy II ), and its progeny.
Under the Fees Act, the basic prerequisite to entitlement is that the moving party be the "prevailing party" in the litigation. Even though plaintiffs are husband and wife, this requirement mandates different results with respect to each of them since only one of them was successful. Isabel Keown prevailed on none of her claims, and she therefore cannot recover counsel fees. Robert Keown was successful, but only to a limited extent. He prevailed against Storti, but not against the Evanses; with his wife, he sought damages in excess of $ 10,000, but he recovered far less than that amount. Nevertheless, I have no doubt that he is a "prevailing party" for purposes of this motion. In Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978), a case interpreting the Fees Act, the Court of Appeals provided the following guidance on the meaning of that term
"As in cases assessing other court costs, it is not always easy to determine who is the "prevailing party,' particularly where there are multiple claims and/or multiple parties, and where the petitioning party is not completely successful.
In order to apply the "prevailing party' language of the statute fairly, we think district courts should analyze the results obtained by the petitioning party on particular claims, regardless of the number of parties. Thus, in the context of an award sought after the entry of a final order, a prevailing party on a particular claim is one who fairly can be found by the district court to have essentially succeeded on such claim, as "claim' is used in Fed.R.Civ.P. 10(b). We say "essentially succeeded' because in many cases a party may prevail on his basic claim but not on all aspects thereof. Given the spirit and purpose of the statute, we think our test allows the district courts to meet their obligations under the Act." 578 F.2d at 486-487 (footnote omitted).
Robert Keown "essentially succeeded" on his unlawful arrest claim since the jury rendered a verdict in his favor on that claim and awarded him some of the relief sought. He therefore meets the statutory requirement.
Determination that the moving party prevailed in his suit does not automatically compel a decision that he is entitled to counsel fees; the award is discretionary. Nevertheless, when the moving party is the plaintiff, entitlement is presumed in the absence of strong countervailing considerations. The legislative history of the Fees Act makes clear that award of counsel fees should be allowed unless the award would be unjust. See, e.g., S.Rep. No. 94-1011, 94th Cong., 2d Sess. 4, Reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 5908, 5912.
See also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416-17, 98 S. Ct. 694, 697, 54 L. Ed. 2d 648 (1978) (applying same standard under 1964 Civil Rights Act); Fed.R.Civ.P. 54(d) (expressing general standard with respect to costs). In this case, there are no special factors which weigh against the award of fees to Robert Keown, and he therefore is entitled to them.
As already noted, in this circuit the award of attorney's fees is governed by rules set forth in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I ), & 540 F.2d 102 (3d Cir. 1976) (en banc) (Lindy II ). In addition, the Third Circuit has addressed the attorney's fee question in a number of other opinions. See, e.g., Tranberg v. Tranberg, 456 F.2d 173 (1972); Merola v. Atlantic Richfield Co., 493 F.2d 292 (1974) (Merola I ), & 515 F.2d 165 (1975) (Merola II ); Estien v. Christian, 507 F.2d 61 (1975); Walter v. Netherlands Mead N.V., 514 F.2d 1130, 1143, Cert. denied, 423 U.S. 869, 96 S. Ct. 133, 46 L. Ed. 2d 99 (1975); United States Steel Corp. v. United States, 519 F.2d 359 (1975); NBO Industries Treadway Cos. v. Brunswick Corp., 523 F.2d 262, 279 (1975), Vacated on other grounds sub nom., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977); SEC v. Aberdeen Securities Co., 526 F.2d 603 (1975); In re Meade Land and Development Co., 527 F.2d 280 (1975) (Meade Land I ), & 577 F.2d 858 (1978) (Meade Land II ); Pitchford v. PEPI, Inc., 531 F.2d 92, 109-11 (1975), Cert. denied, 426 U.S. 935, 96 S. Ct. 2649, 49 L. Ed. 2d 387 (1976); Atlantic & Gulf Stevedores, Inc. v. Director, 542 F.2d 602, 609-11 (1976); Rogers v. Exxon Research and Engineering Co., 550 F.2d 834, 842 (1977), Cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 770 (1978); Richerson v. Jones, 551 F.2d 918, 928-29 (1977); Prandini v. National Tea Co., 557 F.2d 1015 (1977); Kutska v. California State College, 564 F.2d 108 (1977); Rodriguez v. Taylor, 569 F.2d 1231, 1244-50 (1977), Cert. denied, 436 U.S. 913, 98 S. Ct. 2254, 56 L. Ed. 2d 414 (1978); Shlensky v. Dorsey, 574 F.2d 131, 149-52 (1978); Hughes v. Repko, 578 F.2d 483 (1978); Shannon v. HUD, 577 F.2d 854 (1978) (per curiam). These cases provide considerable guidance on proper computation of the fee. Computation is a two-step process: first, the court must objectively determine the reasonable value of the attorney's services; 4 then, the court must decide whether this value should be adjusted to take certain special factors into account. The data necessary to make this computation must be included in the record through affidavits, stipulations, or a hearing. Estien, 507 F.2d at 64; See Lindy I, 487 F.2d at 169-70. The Court of Appeals has repeatedly emphasized that "(t)he district court must make a separate inquiry and findings of fact with respect to each of (the) factors" used in computing the fee. Shlensky, 574 F.2d at 151; See Prandini, 557 F.2d at 1018-19.
1. Objective assessment of reasonable value
The reasonable value of an attorney's services is a product of two components, the compensable time devoted to the case by the attorney and the hourly rate that reasonably should be charged for those services. Plaintiffs' counsel has submitted two affidavits in which he asserts that he spent 85.6 hours on plaintiffs' case and that the reasonable hourly rate for his services is $ 50; the total fee request, therefore, is $ 4,280.
Rather than reproduce the affidavits in their entirety, I shall note only those portions that present difficulty. The first is that portion dealing with events in late 1975 and early 1976:
It is obvious that the bulk of these entries is not directly related to this case. Instead, the entries deal with representation of Robert Keown on the soliciting without a permit charge that was filed by Storti. That was a different case in a different court. The counsel fee charged as a result of that proceeding might have been included in the damages sought from the jury since it was pecuniary loss suffered by Keown as a result of Storti's misconduct. To that extent, it is subsumed into the $ ...