transactions involving mortgages on real property owned by defendant at 1010 Wyndon Avenue, Bryn Mawr, Pennsylvania. Following a hearing on the motion, this court found that only one of the transactions had been in violation of this court's injunction of November 19, 1982. Thus, although defendant was held in civil contempt, the motion for contempt was not entirely successful.
A fee award for prosecution of a motion for contempt is designed to repay the moving party for the costs of securing the contemnor's compliance with the court's order. Thompson v. Johnson, 410 F. Supp. 633, 643 (E.D. Pa. 1976). Therefore, plaintiff should not be compensated for efforts which did not result in a finding that defendant had violated an order of the court.
In the present case, this court found that defendant had violated this court's November 1982 injunction when defendant executed a third mortgage on the real property at 1010 Wyndon Avenue. Thus, plaintiff should be awarded attorney's fees incurred for the portion of the motion involving the third mortgage. However, costs related to the portion of the motion which sought to set aside the assignment of the second mortgage on the property at 1010 Wyndon Avenue should not be compensable since that transaction was not found to have violated this court's order.
Plaintiff's time sheets for the investigation and prosecution of the motion for contempt do not distinguish time spent on the successful portion of the motion from that spent on the unsuccessful portion. Because the motion was prosecuted as a whole, such figures do not exist. However, from this court's knowledge of the issues raised by the motion it is possible to estimate the proportion of time which would have been spent on each portion of the motion.
The issue on which plaintiff prevailed was clearly less complex than the issue upon which plaintiff proved unsuccessful. However, a significant portion of the time spent on the motion would have been expended even if the unsuccessful arguments had not been raised. For example, time spent in developing the facts surrounding the various mortgages on defendant's residence and the legal research into the general law of contempt would all have taken approximately the same amount of time and effort whether or not the unsuccessful portion of the motion had been included. Therefore, plaintiff will be awarded 65% of the reasonable attorney's fees incurred in the preparation and prosecution of the motion for contempt.
3) Attorney's Fees for Time Spent Preparing Fee Petition
As part of both the fee petition for the original action submitted under 15 U.S.C. § 77k and the fee petition for the contempt proceeding submitted under this court's general equitable powers, plaintiff seeks to recover for the time spent in preparation of the fee petitions. One of defendant's arguments in opposition to both motions is that time spent on such fee petitions is not compensable. As support for that proposition, defendant cites generally to the two seminal opinions in this Circuit on the issue of attorney's fees. Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973) and 540 F.2d 102 (3d Cir. 1976). However, as noted in a more recent Court of Appeals decision, Prandini v. National Tea Co., 585 F.2d 47, 52-54 (3d Cir. 1978), the fee award in the Lindy case was based upon the common fund doctrine. Thus, attorney's fees were awarded for services which benefited the fund by creating, increasing, or preserving that fund. But the time spent in connection with the fee application does not benefit the fund and, thus, should not be recoverable in a common fund case.
Prandini held that when the attorney's fees are statutorily authorized, as in the present case, "the time expended by attorneys in obtaining a reasonable fee is justifiably included in the attorneys' fee application and in the court's fee award." 585 F.2d at 53. See McMullen v. Thornburgh, 508 F. Supp. 1044 (E.D. Pa. 1983). In addition, time spent preparing a fee application following a successful contempt motion is compensable. Halderman v. Pennhurst State School and Hospital, 533 F. Supp. 649 (E.D. Pa. 1982). Therefore, reasonable attorney's fees incurred in the preparation of the fee petitions in the present case are recoverable.
4) Calculation of the Fee Award
The Lindy decisions, as refined by subsequent cases, specify a series of steps which the district court should take when calculating a fee award. First, the court determines the number of compensable hours spent on the case by examining the activities of counsel and deciding whether the hours expended were reasonably necessary to produce the results achieved. The court then determines the reasonable hourly rate of compensation for each attorney. The reasonable hours spent by each attorney are then multiplied by the compensation rate to arrive at the "lodestar." Finally, the lodestar figure may be adjusted to reflect the quality of the work, the contingent nature of success, or other factors.
Although a hearing may be necessary to develop the evidence upon which a fee award is to be based, such a hearing is not required if the underlying facts are presented in sufficient detail in the documentary evidence before the court and are not in dispute. Hummel v. Brennan, 83 F.R.D. 141 (E.D. Pa. 1979). Plaintiff's fee petition presents all of the information necessary to calculate an appropriate fee award, neither party has requested an evidentiary hearing, and defendant has not identified any facts in dispute. Therefore, a calculation of an appropriate fee award can be made upon the evidence presented in plaintiff's petition.
(a) Hours Reasonably Necessary to the Task
Plaintiff's fee petitions present, in great detail, the number of hours spent on particular days and the tasks performed during those time periods. The amount of detail presented is more than sufficient to satisfy the mandate of Lindy. Defendant suggests that plaintiff's failure to break down the hours spent in the month of April 1983 and the failure to specify the nature of the "memoranda" written in May 1983 should preclude compensation for that time.
Lindy teaches that
the first inquiry of the court should be into the hours spent by the attorneys -- how many hours were spent in what manner by which attorneys. It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney. But without some fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e.g., senior partners, junior partners, associates, the court cannot know the nature of the services for which compensation is sought.