United States District Court, E.D. Pennsylvania
February 20, 2004.
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
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
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
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.
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
as Exhibit D1. Both provide affidavits in support of their hourly
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
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,
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
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 note 5.
Hence, a substantial reduction is in order. We believe that $150 per hour
is, in fact, generous.
As for the time Mr. Puricelli spent in court, considering the quality
of his written work, the court was impressed with the transformation. Mr.
Puricelli was well prepared, his witnesses were prepped, and his case
proceeded quite artfully and smoothly. Although Mr. Puricelli fails to
state what hourly rate he customarily charges, the statements that he
provides in support of his fee do support such a rate. In our experience,
$300-$350 is on the high side of the customary rate, however considering
the complexity of this case, we believe $300 is justified for the work
that Mr. Puricelli did in court.
b. Hours Expended
In responding to the attorney fee petition, the Defendants also
complain that the hours charged were not reasonable. Although the
Defendants have expended a great number of pages addressing Mr.
Puricelli's hours, the only claim by the defense with respect to Mr. Erba
is that he was a "stealth attorney," who did not enter his appearance
until March 17, 2003. We decline to
reduce the number of hours Mr. Erba billed based on his delayed entry of
appearance. Mr. Erba had participated in conferences with the court prior
to that date and was obviously well versed in the facts and law of the
case. We find no justification for any reduction.
As previously mentioned, the Defendants have spent a great deal of time
challenging the hours Mr. Puricelli put into this case. First, they claim
that 12.6 of the hours billed by Mr. Puricelli are for activities
ordinarily performed by a paralegal, messenger, or secretary. See Exhibit
A, attached to Response to Fee Petition. After reviewing these entries,
we agree. Plaintiff's counsel responds that, as a solo practitioner, he
has no choice but to perform these duties. The Honorable Berle Schiller
recently addressed this issue and concluded that clerical tasks should
not be billed at a senior associate or paralegal rate. "Since the costs
of clerical work, such as filing and copying, are ordinarily considered
to be part of an attorney's rate as office overhead, they will not be
compensated." Sheffer v. Experian Information Solutions, Inc.,
290 F. Supp.2d 538, 549 (E.D. Pa. 2003)(citing Doe v. Ward, No. 98-1746,
2003 U.S. Dist. LEXIS 16651, at *31, 2003 WL 22187170, at *10 (W.D.Pa.
Sept. 16, 2003) (finding that clerical tasks are office overhead and
therefore incorporated into attorney's rate.) See also Missouri v.
Jenkins, 491 U.S. 274, 285-88, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)
(holding that "purely clerical or secretarial tasks should not be billed
at a paralegal rate, regardless of who performs them"); see also Halderman
v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3d Cir. 1995)
(holding that it is not appropriate to allow "the wasteful use of highly
skilled and highly priced talent for matters easily delegable to
non-professionals"). Thus, these hours will not be
Next, the Defendants complain about inflated time on three specific
dates for which Mr. Puricelli billed nineteen hours each day. The
Defendants argue that this is unreasonable considering the lack of
specificity in the description and the fact that this exceeds any other
single day's billable hours. Looking at Mr. Puricelli's submission, the
activities for these dates are described as: "Prep for trial, trial, prep
for next day." The court is well aware of Mr. Puricelli's activities from
9:00 a.m. to 5:00 p.m. on these days as they are the dates of the trial.
Moreover, we are sure that certain pre-trial rulings affected Mr.
Puricelli's strategy in presenting his case. Thus, he was required to
regroup after those decisions. Finally, considering the fact that Mr.
Puricelli failed to abide by the court's Scheduling Order for pretrial
submissions, we are not surprised that he was "burning the midnight oil"
to make up for lost time.
Next, the Defendants argue that Mr. Puricelli expended 10.9 hours for
activities unrelated to this action. The Defendants claim that 3.6 hours
were listed for the criminal expungement hearing on November 1, 2002. Due
to the lack of specificity, the Defendants argue that it is impossible to
assess whether this expungement hearing dealt with the theft of overtime,
which is related to this civil action, or another charge, which, they
argue, would not be related to this civil action. Considering the facts
of this case, of which we are so well aware, and the interrelationship
between the underlying facts in pressing the retaliation claim, we
believe this time is related to the retaliation claim.
We agree with the Defendants that the 5 hour spent reviewing newspapers
is more akin
to work a paralegal would do. Therefore, we will reduce the rate for this
time to $95.00.*fn3 See Halderman, supra; Lewis v. Babbitt, 1999 WL
551878 *2 (E.D. Pa. Jun. 11, 1999)(solo practitioner should not bill the
prevailing market rate for services that could be reasonably billed at a
Next, the Defendants argue that Mr. Puricelli lists 6.6 hours for
activities without specifying what, if any, relationship they have to
this case. Although these entries were quite vague in the petition for
attorneys' fees, counsel has adequately explained the relationship of
these activities with the trial of this case in his reply. We will,
therefore, permit these hours.
Next, the Defendants argue that the time Mr. Puricelli spent observing
Mr. Devore's arbitration should be disallowed. Mr. Puricelli played no
active roll in the arbitration. In response to the objection, Mr.
Puricelli argues that attending the arbitration allowed him to assess
Mr. Miller's performance: "how he would prepare his case, present his
case, and make arguments about the evidence." See Plaintiff's Reply, at
7. We reject Plaintiff's justification. If we were to accept such an
argument, counsel could easily sit in on any trial to "get a feel" for
his opposition. Moreover, we note that Plaintiff's counsel spent an
additional 8.3 hours reading the arbitration transcripts on November 19,
2002. We will strike the 9 hours spent on March 7, 2002, but will permit
the .2 hour in August when counsel discussed the arbitration decision
with defense counsel. We can understand the necessity for such
discussions to determine trial strategy.
The Defendants also ask the court to disallow the time Plaintiff's
counsel spent preparing an unsuccessful motion for summary judgment. We
decline to make such a reduction. The motion at issue involved a due
process challenge to the proceedings surrounding the Plaintiff's
termination. In fact, the Defendants were successful in their
cross-motion on the same issue. Although the Plaintiff was not
successful, the motion could hardly be called frivolous. Moreover, the
court did use the Plaintiff's motion in ruling on the Defendants'
motion. Hence, these hours will not be reduced.
Next, the Defendants challenge a total of 34.8 hours that the
Plaintiff's counsel billed for activities that were in response to court
directives. As previously mentioned, the Plaintiff was required to file
an Amended Complaint because the original Complaint was missing
paragraphs and pages. Since the time spent amending the complaint and
filing it with the court was necessitated by counsel's carelessness, we
will strike the entries relating to the Amended Complaint, a total of
12.4 hours. Although the Defendants have also identified time related to
the initial complaint, we will permit those hours.
Similarly, the Defendants request a reduction for the hours expended by
Plaintiff's counsel in responding to a motion to compel discovery.
Reviewing the filings, that motion was granted in part and denied in
part. Plaintiff objected to the compound nature of the interrogatories
and was partially successful in his objections. Therefore, we see no need
for a reduction.
Next, the Defendants challenge the hours spent on matters involving the
District Attorney's Office. Since the District Attorney's Office was not
a party and, according to the Defendants, the Plaintiff could have
obtained the requested documents from his criminal
attorney, they argue that the court should reduce counsel's hours
by 20.5 hours. We will decline to make such a reduction. The information
that Plaintiff sought was necessary to formulate the discrimination claim
and establish comparator evidence.*fn4
On April 14, 2003, Mr. Puricelli filed a "Memorandum in Response to the
Defendants' Response on the Issue of Attorney Fees," in which he includes
a petition for an additional 30.8 hours. Although Defendants' filed a Sur
Response, it is not clear that they have taken the opportunity to address
this additional time. Because we anticipate an additional fee petition
based on the time counsel has now expended due to the City's breach of
the settlement agreement, we will not address these hours in this
The result of the deductions from Mr. Puricelli's hours and reductions
to his billing rate is as follows:
Hours Excluded Completely 32.1 0
Written Work to be Billed at $150 per hour 209.67 31,450.50
Work to be Billed at Paralegal Rate of $95 .5 47.50
Work to be Billed at $300 per hour 470.43 141,129
This results in a total of $172,627 for Mr. Puricelli. Mr. Erba's fee
will not be reduced. He billed 56.8 hours at $350 per hour for a total of
Thus, the total award of attorneys' fees is $192,507.
Plaintiff's' counsel have also filed a bill of costs, to which the
Defendants object. In general, the Defendants argue that the costs are
improper because Mr. Erba presented the Bill of Costs, yet he did not
enter his appearance until the jury had returned its verdict. We reject
this argument. It is clear that the costs listed in Mr. Erba's "Statement
of Expended Costs," were incurred in this case. More specifically, the
Defendants claim Plaintiff's counsel have failed to support the amount
charged for subpoena fees and exemplification and copies. In response,
the Plaintiff's counsel have provided adequate support for all but $40.00
for a subpoena fee to the Equal Employment Opportunity Commission. The
cancelled check that was promised in the Response to Defendants'
Objections has never been received. Thus, we will reduce the costs by
An appropriate Order follows.
AND NOW, this 20 day of February, 2004, upon consideration of the
Plaintiff's "Motion in Support of Plaintiff's Request for Attorney Fees
and Litigation Costs," the Response, the avalanche of filings that
followed the Request, and for the reasons stated in the accompanying
Memorandum, IT IS HEREBY ORDERED that Plaintiff's Motion is GRANTED WITH
MODIFICATION. The Defendants' request for a reduction in the lodestar is
GRANTED IN PART AND DENIED IN PART. Plaintiff is awarded fees totaling
$192,507. Counsel may file a supplemental request for fees for the time
expended on the case after March 18, 2003. Costs in the amount of
$6,679.71 are also awarded to the Plaintiff.