The opinion of the court was delivered by: POLLAK
LOUIS H. POLLAK, UNITED STATES DISTRICT JUDGE.
Presently pending before the court are the court's sua sponte order for plaintiffs' attorney to show cause why sanctions pursuant to Federal Rule of Civil Procedure 11 should not be imposed for filing the complaint in this action; defendants' petition for attorney's fees and costs pursuant to Rule 11, 28 U.S.C. § 1927, and 42 U.S.C. § 1988;
plaintiffs' motion for attorney's fees pursuant to 42 U.S.C. § 1988; and plaintiffs' application for delay damages pursuant to Pennsylvania Rule of Civil Procedure 238.
Plaintiffs, Joseph Costello and Michael Caponigro, brought suit for injuries allegedly sustained during plaintiffs' arrest in October 1985. Named as defendants were Philadelphia's Deputy Sheriff Frank Daddario, the City of Philadelphia, Philadelphia's Sheriff and Undersheriff, and seven Philadelphia police officers. Plaintiffs alleged violations of the first, fourth, fifth, eighth, and fourteenth amendments to the United States Constitution and of 42 U.S.C. §§ 1983, 1985, 1986 and 1988; plaintiffs also alleged state law assault and battery by the officers and state law negligence in training the officers and sheriffs by the City and supervising officers. At the close of a five-day jury trial, on consent of all parties, the court: (1) dismissed the claims against all defendants but Deputy Sheriff Daddario, and (2) instructed the jury only on plaintiffs' section 1983 claim against Deputy Sheriff Daddario. The jury returned a verdict of $ 637 in compensatory and $ 10,000 in punitive damages for plaintiff Costello, and $ 10,321 in compensatory and $ 10,000 in punitive damages for plaintiff Caponigro.
For the reasons that follow, I will grant attorney's fees to plaintiffs pursuant to 42 U.S.C. § 1988, but will not award any other sanctions, fees, or damages.
I. Rule 11 Sanctions Against Plaintiffs' Attorney
This court ordered plaintiffs' attorney, Clifford Cohn, Esq., to show cause why Rule 11 sanctions should not be imposed on the basis of his inclusion in the complaint of the seven police officers named as defendants. The order to show cause noted that both plaintiffs testified that they had no knowledge of being injured by any of the named police officers and that the plaintiffs did not inform Mr. Cohn of any such injury. Costello testimony, N.T. 1-6 (Dec. 8, 1988); Caponigro testimony, N.T. 33-34, 39 (Dec. 9, 1989). In addition, plaintiffs presented no evidence at trial that linked their injuries to the defendant police officers.
At the show cause hearing, Mr. Cohn disclosed the information upon which he had relied in drafting the complaint. This information consisted largely of the police reports filed by the various officers at the scene, recording both the events on the day plaintiffs were arrested and subsequent interviews with Deputy Sheriff Daddario and witnesses. Opp. to Order, Exhs. A-E, I. In drafting the complaint, Mr. Cohn had also relied on plaintiff Caponigro's hospital admission records, which stated that Mr. Caponigro was "hit by a night stick" in a "fight with police." Exh. F. At the hearing, Mr. Cohn stressed that the pressures of filing a timely complaint prevented him from conducting further investigation prior to filing. Mr. Cohn noted that neither of his clients could identify any particular officer as having assaulted him, with the result that Mr. Cohn could not -- in drafting the complaint under time pressures for filing that precluded further investigation -- responsibly omit from the category of named defendants any of the police officers present when plaintiffs were arrested.
Upon review of the records provided by Mr. Cohn, I conclude that his inclusion as defendants of all officers present at the plaintiffs' arrest was, to the best of his knowledge, information, and belief at the time the complaint was filed, "well grounded in fact and . . . warranted by existing law." Fed. R. Civ. Proc. 11. Although it may be said that Mr. Cohn did not work very hard to distinguish those persons who were realistic targets of this civil suit from others whose roles were peripheral,
general descriptions of actions by "police" in the record provide some justification for Mr. Cohn's selection of defendants. Thus, at the time counsel prepared the complaint, he reasonably could have believed that inclusion of all seven police officers was proper to preserve all possible claims within the statute of limitations. See Advisory Committee Note to Fed. R. Civ. Proc. 11 ("The court should avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading . . . was submitted"); Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 540 (3d Cir. 1985).
I will therefore not impose Rule 11 sanctions on Mr. Cohn for the filing of the complaint. As the motion for Rule 11 sanctions by the dismissed defendants presents the same information upon which the court relied in its order to show cause, and is likewise rebutted by the evidence provided at the show cause hearing, defendants' motion for Rule 11 sanctions is denied.
II. Defendants' Fees under 28 U.S.C. § 1927
In addition to moving for sanctions under Rule 11, the dismissed defendants move for fees and costs pursuant to 28 U.S.C. § 1927, which allows the court to order an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously . . . to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927.
Defendants contend that Mr. Cohn behaved vexatiously in three ways: (1) in naming ten defendants -- seven police officers, the Sheriff and Undersheriff, and the City -- who were dismissed from the action; (2) in refusing to stipulate to the substitution of an arbitrator, yet later filing no response to the defendants' motion for substitution; and (3) in producing a report by plaintiff Caponigro's chiropractor that the court refused to admit as an expert report. Defendants calculate that their counsel expended 39.47 unnecessary hours in response to the above actions by plaintiffs' counsel. Def. Motion, Exh. A.
In determining whether imposition of the sanctions contemplated by section 1927 is called for, the question to be addressed is whether the attorney sought to be sanctioned is fairly chargeable with "actions taken which are tantamount to willful bad faith." Baker Indus. v. Cerberus Ltd., 764 F.2d 204, 209 (3d ...