fees. (Appendix A attached.) The United States argues that it should be compensated $7,510 based on a reasonable rate of compensation for an attorney with more than ten years of litigation experience ($100 per hour) and the total number of hours expended on this case (75.1 hours). The United States made no request for an adjustment of the lodestar fee of $7,510.
A. Number Of Hours Reasonably Expended In This Litigation
Neither P. Campana nor A. Campana seriously challenge any particular item on the United States' Bill of Costs. Instead, the Campanas have made a blanket assertion that "the allegations upon which the Defendant would have this Court find that both he, [plaintiff] and his counsel acted in 'bad faith' would be insufficient factors upon which to base such a finding." (D.I. 38 at 10.) Although the Campanas have failed to set forth with any clarity reasons to adjust the award suggested by the United States in its Bill of Costs, this Court finds that some adjustment in the amount of the award is necessary. First, in an effort to give the Campanas the benefit of any doubt with respect to the issue of when they were given "notice" of the defense of judicial immunity, the 20 hours of time requested by the United States prior to the filing of its Motion to Dismiss (wherein the defense was actually raised) will be deleted. Secondly, the party seeking an award of fees should submit evidence supporting the hours worked and the rates claimed. Where the documentation of hours is inadequate, the court may reduce the award accordingly. Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). In the present case, the United States has submitted a Bill of Costs based upon an estimate of the amount of time the Assistant United States Attorney spent on this case. This estimate is based upon a "general record" of the amount of time allocated to the case by the Assistant United States Attorney. (The record does indicate that the estimate of 75.1 hours is a conservative one, not taking into account any time spent on: written correspondence, research and writing of the brief with respect to the motion for attorneys' fees and the Bill of Costs, telephone conversations between Zubrod and the Department of Justice lawyers concerning judicial immunity or any printing or reproduction costs. (D.I. 49 at 14-23.)) Because the United States failed to contemporaneously document the number of hours spent by the Assistant United States Attorney, this Court finds that the number of hours claimed should be further reduced by 25% to insure that the number of hours expended on this suit is reasonable. Therefore, 41.3 hours should be allowed. (55.1 hours x 75% = 41.3 hours.)
B. Reasonable Hourly Rate
At the evidentiary hearing, the United States presented as an expert witness, Smith B. Gephart, Esquire, an attorney who has been practicing law in the Middle District of Pennsylvania, Dauphin County, for 18 years. Mr. Gephart testified that an attorney with the experience of Mr. Zubrod (a lawyer for 11 years, an Assistant United States Attorney for five years with substantial litigation experience in the defense and prosecution of criminal cases and the defense of civil cases) (D.I. 49 at 10-14) would have a billing rate between $100 and $120 per hour. (Id. at 7.) Because the Campanas have failed to produce any evidence to rebut this claim, the Court finds that $100 per hour is a reasonable hourly rate consistent with charges being made by law firms in the Middle District of Pennsylvania, Dauphin County.
Therefore, for purposes of this motion, the computation of attorneys' fees is determined as follows: 41.3 hours reasonably expended multiplied by a reasonable hourly rate of $100 equals $4,130 which will be the total fees awarded in this case.
C. Apportionment Of Fees And Expenses Between P. Campana And His Counsel
Pursuant to 28 U.S.C. § 1927 and the Court's inherent power as stated in Alyeska Pipe Line Services and Roadway Express, Inc., the Court has authority to hold a party or his counsel or both personally liable for attorneys' fees. Lewis v. Brown & Root, Inc., 711 F.2d 1287, 1289, 1292 (5th Cir. 1983) (upholding award of attorneys' fees under § 1927 against plaintiff and his attorney jointly and severally), cert. denied, 464 U.S. 1069, 104 S. Ct. 975, 79 L. Ed. 2d 213 (1984), modified, 722 F.2d 209 (5th Cir. 1984)(per curiam) (remanding for trial court to determine whether attorneys' fees for entire proceeding or just a portion of it should be awarded), cert. denied, 467 U.S. 1231, 104 S. Ct. 2690, 81 L. Ed. 2d 884 (1984); see also Tedeschi v. Barney, 757 F.2d 465 (2d Cir. 1985) and Taylor v. Belger Cartage Service, Inc., 102 F.R.D. 172 (W.D. Mo. 1984).
P. Campana engaged his father, A. Campana, to represent him. P. Campana, also an attorney, should equally share in the responsibility for his counsel's actions. It is clear from the record that P. Campana as much as A. Campana acted in bad faith in pursuing this case once they had definitive notice by motion that Judge Muir would raise the defense of judicial immunity. There is evidence in the record that both Campanas were involved in the research and preparation in the filing of the case, although it is difficult to determine exactly what part P. Campana played in the prosecution of this case. Nevertheless, P. Campana did testify that "whatever Ambrose Campana did, I approve of it." (D.I. 49 at 113, 128.) Therefore, the Court finds that the total attorney fee of $4,130.00 should be assessed against P. Campana and his attorney, A. Campana, jointly and severally.
This opinion shall constitute the findings of fact and conclusions of law as required by Rule 52(a), Fed.R.Civ.P.
A judgment will be entered in accordance with this opinion.
BILL OF COSTS
Motion For Protective Order
and Brief filed 3/30/83 2 hours
Petition For Removal filed 3/30/83 1 hour
Motion To Designate A U.S. District
Judge From Outside The Middle District
of Pennsylvania filed 3/30/83 2 hours
Motion To Quash Subpoena and Brief
filed 4/11/83 and 4/18/83 6 hours
Travel to and from Williamsport,
Pennsylvania for hearing on Motion To
Quash Subpoena 4/24 to 4/25 4 hours
Hearing on Motion to Quash Subpoena
(4/25/83) 1 hour
Motion To Dismiss, Or, In The
Alternative, For Summary Judgment and
Brief filed 5/11/83 30 hours
Reply Brief filed 6/17/83 2.5 hours
Brief In Opposition To Plaintiff's
Motion To Amend Judgment 10 hours
Third Circuit Appellee's Brief 8 hours
Motion For Leave To File Supplemental
Appendix plus preparation of
Supplemental Appendix 2 hours
Telephone Conversations with
Judge Muir (12) 3.6 hours
Telephone Conversations with Attorney
for Williamsport Sun Gazette and with
Clerk of Court personnel regarding
affidavits for Motion to Quash Subpoena 3 hours
TOTAL HOURS 75.1
© 1992-2004 VersusLaw Inc.