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JORDAN v. DORSEY

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


May 14, 1984

SANDRA JORDAN, et al.
v.
JOSEPH DORSEY, et al.

The opinion of the court was delivered by: LORD, III

Lord, S.J.

 In May, 1981, plaintiffs, low income tenants in Delaware County, Pennsylvania, brought this action under 42 U.S.C. § 1983 seeking to enjoin defendants' practices of filing, entering, and executing upon confessed judgments for the possession of real property without giving plaintiffs any notice or a reasonable opportunity to defend against such action.

 On June 8, 1983, after temporary injunctive relief had been granted and after a long period during which the parties attempted to settle this case, I entered an order granting plaintiffs' motion for summary judgment, holding, in relevant part, that:

 

Defendants' practices in filing, entering and executing upon confessed judgments without providing an opportunity for a prejudgment entry challenge by tenants [as] to whether the waiver was knowingly and intelligently given violate plaintiffs' rights to due process of and equal protection of law guaranteed by the Fourteenth Amendment to the United States Constitution.

 Plaintiffs now move for the award of attorney's fees.

 42 U.S.C. § 1988 provides that in civil rights suits, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." Attorney's fees should be awarded to a prevailing party unless special circumstances would make such an award unjust. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (1968).

 Defendants do not contend that plaintiffs were not prevailing parties under § 1988. Rather, the defendants contest their liability for and the amount of the attorney's fees.

 I. Justness of Award

 A. Defendants Dorsey and Taylor

 Defendant Dorsey is the director of the Office of Judicial Support of Delaware County and defendant Taylor is the sheriff of Delaware County. These defendants argue that in entering and executing upon confessed judgments they were merely performing ministerial duties in compliance with the Pennsylvania Rules of Civil Procedure and thus should not be required to pay attorney's fees.

 Good faith compliance with state law does not shield an individual from an award of attorney's fees. In Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980), the Supreme Court of Virginia was sued for its role in promulgating, interpreting, and enforcing an allegedly unconstitutional disciplinary rule of the Virginia Code of Professional Responsibility. The United States Supreme Court held that although the Virginia Supreme Court was immune from damages liability for acts performed in its legislative and judicial roles, it was not immune from suit in its enforcement role. Id. at 734-36. In its analysis of the award of attorney's fees, the Court stated at 739:

 

We are not convinced that it would be unfair to award fees against the State Bar, which by statute is designated as an administrative agency to help enforce the State Bar Code. Fee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or an injunction. Nor would we disagree had the District Court awarded fees not only against the Bar but also against the Virginia Court because of its own direct enforcement role.

  Defendant Dorsey was responsible for recording judgments entered by confession and defendant Taylor was responsible for executing upon such judgments. It was these actions that I found violative of due process in granting plaintiffs' motion for summary judgment. The fact that defendants may have been performing ministerial functions in good faith compliance with state law does not immunize them from liability for attorney's fees. See, e.g., Coalition for Basic Human Needs v. King, 691 F.2d 597, 602 (1st Cir. 1982); Johnson v. Mississippi, 606 F.2d 635, 637 (5th Cir. 1979); Finberg v. Sullivan, 555 F. Supp. 1068, 1070 (E.D. Pa. 1982), aff'd, 707 F.2d 1390 (3d Cir. 1983). Permitting a good faith defense would frustrate the purpose of the Civil Rights Attorney's Fees Awards Act in encouraging the vigorous enforcement of the civil rights laws. See Teitelbaum v. Sorenson, 648 F.2d 1248, 1251 (9th Cir. 1981).

 B. Defendant Apartment Communities Corporation

 Although Apartment Communities Corporation (ACC) did not contest plaintiffs' motion for summary judgment, it now argues that, as a private landlord, it was not acting under "color of state law" in filing confessed judgments and thus cannot be held to have violated § 1983. It therefore argues that this court lacks subject matter jurisdiction over plaintiffs' claim against ACC, thus precluding an award of attorney's fees against ACC. I disagree.

 ACC cites Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978) in support of its argument. In Flagg Brothers, plaintiff claimed that a warehouseman's proposed sale under New York Uniform Commercial Code § 7-210 of goods entrusted to him for storage violated the due process clause of the fourteenth amendment. The Court held that the action of the warehouseman pursuant to the state statute, without more, was insufficient to justify his characterization as a "state actor," and thus no due process claim was presented.

 Flagg Brothers, by its own language, is not controlling in this case. The Court stated that "it must be noted that respondents have named no public officials as defendants in this action. . . . This total absence of overt official involvement plainly distinguishes this case from earlier decisions imposing procedural restrictions on creditors' remedies. . . ." Id. at 157. *fn1"

 Rather, this case is governed by the more recent Supreme Court decision in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). In Lugar, a creditor, pursuant to state law, sought prejudgment attachment of the debtor's property. The prejudgment attachment procedure required only that the creditor allege in an ex parte petition, a belief that the debtor might dispose of his property in an effort to defeat his creditors. Acting on the petition, a clerk of the state court issued a writ of attachment, which was then executed by the county sheriff. The debtor then brought a § 1983 action alleging that the creditor, acting jointly with the state, deprived him of property without due process of law.

 The Court concluded that the debtor had presented a valid § 1983 cause of action, stating that "we have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a 'state actor' for purposes of the Fourteenth Amendment." Id. at 941. The Court noted that the rule in these cases is the same as that articulated in Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) for equal protection deprivations:

 

"'Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents, '" quoting United States v. Price, 383 US 787, 794 [16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966)].

 Lugar v. Edmondson Oil Co., supra 457 U.S. at 941.

 The conclusion that ACC is a state actor for purposes of this § 1983 action is amply supported by the line of garnishment and prejudgment attachment cases in which the Supreme Court entertained and adjudicated debtor claims that private creditors had violated constitutional standards of due process. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). In each of these cases, state officials aided the creditor in securing the disputed property.

 Thus, ACC's contention that this court lacks subject matter jurisdiction of plaintiffs' claim against ACC must be rejected. ACC filed the confessed judgments which were then entered by the Office of Judicial Support of Delaware County and then executed upon by the county sheriff. The due process violation was a result of ACC's joint participation with state officials.

 II. Reasonableness of Fees

 An award of attorney's fees is initially determined by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, , 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40, 50 (1983); Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir. 1973) (Lindy I). The resulting figure, or "lodestar," can then be adjusted upward or downward based upon a variety of factors, including the degree of success or the unusual quality of legal services. Hensley v. Eckerhart, supra, 103 S. Ct. at 1940; Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (en banc) (Lindy II).

 A. Hours Plaintiffs were represented by Delaware County Legal Assistance Association (DCLAA). Over the course of the litigation, three attorneys from DCLAA participated in this case. Each has submitted an affidavit detailing the number of hours expended on this case, which can be summarized as follows: Mary Beth Seminario Year Hours Rate Total 1981 40.8 $110.00 $ 4,488.00 1982 49.3 110.00 5,423.00 1983 n2 27.2 110.00 2,992.00 n3 117.3 $12,903.00 Margaret Lenzi 1981 3.7 110.00 407.00 1982 41.0 110.00 4,510.00 1983 12.7 110.00 1,397.00 n4 57.4 6,314.00 Michelle Terry 1982 16.2 75.00 1,215.00 1983 13.0 75.00 975.00 n5 29.2 2,190.00 $21,407

19840514

© 1992-2004 VersusLaw Inc.



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