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DEVORE v. CITY OF PHILADELPHIA

February 20, 2004.

JOHN DEVORE
v.
CITY OF PHILADELPHIA, et al



The opinion of the court was delivered by: JACOB HART, Magistrate Judge

MEMORANDUM AND ORDER

We review the history of this case only briefly here as we have set forth the facts in the opinion disposing of the post-verdict motions. After an eight day trial in this Title VII/§ 1983 case, the jury returned a verdict for the Plaintiff against the City of Philadelphia, John Timoney, John Norris, Thomas Healey, and Joseph Sweeney. Although the jury did not find the Defendants liable for racial discrimination, they did find that the Plaintiff's civil rights had been violated.*fn1 After the court molded the verdict, the Plaintiff's award was $354,167, not including interest. We now consider the Plaintiff's Petition for Attorneys' Fees.

The Plaintiff has requested a total of $233,540 in attorneys' fees and $6,719.71 in costs. The Defendants object to the fees and costs for several reasons: (1) the hourly rates charged by counsel are not reasonable and are not supported by sufficient evidence; (2) the Plaintiff was not completely successful in his suit; and (3) the hours charged are not reasonable.

  Although the Defendants argue that the results of the litigation do not support the conclusion that Plaintiff was "successful," we believe that a jury verdict for $430,000, including punitive damages against the former Police Commissioner, does qualify the Plaintiff as the Page 2 prevailing party for purposes of an award of attorneys' fees. If the Plaintiff was not the prevailing party, as the Defendants now allege, one wonders why the Defendants sought a new trial.

 I. Lodestar

  The logical starting point for determining attorneys' fees is the number of hours expended multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This calculation results in the "lodestar," which is presumptively correct but which may be adjusted should the court find such adjustment appropriate. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). In reviewing fee requests, Plaintiff's counsel have the burden of showing that their fee request is proper and supported by evidence. Id. "Once the adverse party raises objections to the fee request, the district court has a great deal of discretion to adjust the fee award in light of those objections." Id.

  a. Hourly Rate

  "Generally, a reasonable hourly rate is to be calculated according to the prevailing market rates in the relevant community." Rode, 892 F.2d at 1183. In making this determination, "the court should assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Id. Here, Plaintiff's counsel have requested an hourly rate of $300 for Mr. Puricelli, and $350 for Mr. Erba. Both attorneys have provided declarations in support of their fee request. Mr. Erba supplemented his request with a fee award in a civil rights case, wherein he requested and was granted a billing rate of $350 an hour. See Bianchi v. City of Philadelphia, 99-2409 (Order of May 28, 2002, Brody, J.), attached to Petition Page 3 as Exhibit D1. Both provide affidavits in support of their hourly rates.

  With respect to Mr. Erba, the Defendants argue that, unlike the Bianchi case, Mr. Erba did not appear in court, draft pleadings, or conduct discovery in this case. "In the instant matter, his participation can best be described as Mr. Devore's stealth attorney." See Defendants' Response, at 10. Thus, considering his limited role in this case, argue the Defendants, the hourly rate of $350 is unjustified. We disagree. Although Mr. Erba was not the lead counsel in this case, on the occasions when he participated in conferences with the court, he was well versed in the case and the applicable law. Mr. Erba provides the statements of two reputable attorneys who are familiar with him and prior cases of his. They attest to the fact that $350 per hour is a reasonable fee considering his experience and the rate for such expertise in the field of employment law. See Verified Statements of Stephen Pennington and Gerald Williams, attached to Petition as Exhibit E. We conclude that Mr. Erba's hourly rate is reasonable.

  The Defendants vehemently take exception to Mr. Puricelli's fee of $300 per hour. The Defendants begin with the following: "Mr. Puricelli's requested hourly rate is not reasonable in light of the quality of his written work and the end results of this litigation." See Response, at 2. With respect to the former, we could not agree more. With respect to the latter, we disagree wholeheartedly.

  Mr. Puricelli's written work is careless, to the point of disrespectful. The Defendants have described it as "vague, ambiguous, unintelligible, verbose and repetitive." See Response, at 2. We agree. Although the Defendants have taken issue with some of the typographical errors present in Mr. Puricelli's filings, the problems with his pleadings have gone beyond typos.

  At the outset, the court ordered the Plaintiff to file an amended complaint because Page 4 paragraphs and pages were missing from that filed with the court and sent to defense counsel. Moreover, although we recognize the complicated nature of this case, lying at the crossroads of § 1983 and Title VII, some of the Amended Complaint was nearly unintelligible. In ruling on the Motion to Dismiss the Amended Complaint, the Honorable Stewart Dalzell, to whom the case was assigned prior to its referral to the undersigned, noted that the court was "puzzled" by some of the Plaintiff's arguments in opposition to the motion to dismiss and found others "odd." See Order on Motion to Dismiss (Jan. 30, 2001, Dalzell, J.). Mr. Puricelli's lack of care caused the court, and I am sure, defense counsel, to expend an inordinate amount of time deciphering the arguments and responding, accordingly.

  As previously mentioned, Mr. Puricelli's filings are replete with typographical errors and we would be remiss if we did not point out some of our favorites. Throughout the litigation, Mr. Puricelli identified the court as "THE UNITED STATES DISTRICT COURT FOR THE EASTER [sic] DISTRICT OF PENNSYLVANIA." Considering the religious persuasion of the presiding officer, the "Passover" District would have been more appropriate. However, we took no personal offense at the reference. In response to the attorneys' fees petition, the Defendants note that the typographical errors in Mr. Puricelli's written work are epidemic. In response to this attack, Mr. Puricelli writes the following:
As for there being typos, yes there have been typos, but these errors have not detracted from the arguments or results, and the rule in this case was a victory for Mr. Devore. Further, had the Defendants not tired [sic] to paper Plaintiff's counsel to death, some type [sic] would not have occurred. Furthermore, there have been omissions by the Defendants, thus they should not case [sic] stones.
If these mistakes were purposeful, they would be brilliant. However, based on the history of the case and Mr. Puricelli's filings, we know otherwise. Finally, in the most recent letter to the Page 5 court, asking that we vacate the settlement agreement, Mr. Puricelli identifies the undersigned as "Honorable Jacon [sic] Hart." I appreciate the elevation to what sounds like a character in the Lord of the Rings, but alas, I am but a judge.

  In his reply to the Defendants' response to the petition for attorneys' fees, Plaintiff's counsel argues that his typographical errors require no more than a $20 per hour reduction. We disagree. As we previously stated, Mr. Puricelli's complete lack of care in his written product shows disrespect for the court. His errors, not just typographical, caused the court a considerable amount of work. See infra, at ...


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