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Lohman v. Borough

July 30, 2008

NICHOLAS LOHMAN, PLAINTIFF,
v.
DURYEA BOROUGH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: A. Richard Caputo Date A. Richard Caputo United States District Judge

(JUDGE CAPUTO)

MEMORANDUM

Presently before the Court is Plaintiff Nicholas Lohman's motion for attorneys' fees and costs.(Doc. 109.)For the reasons set forth below, Plaintiff's petition will be granted in part and denied in part. Plaintiff's counsel will be awarded thirty thousand dollars ($30,000.00) in attorney's fees for her work and the work of her assistants. Plaintiff will be awarded four-thousand, two-hundred and fifty-one dollars and seventy-seven cents ($4251.77) in costs.

BACKGROUND

Plaintiff Nicholas Lohman brought an action against Duryea Borough, Duryea Borough Council, Ann Dommes, Lois Morreale, Frank Groblewski, Edward Orkwis, Robert Webb, Audrey Yager, and Joan Orloski alleging violations of the procedural component of the Fourteenth Amendment, First Amendment retaliation claims, publicity given to private life, and wrongful discharge. (Compl. Doc. 1.) In its November 29, 2007 Memorandum and Order, the Court granted Defendants' motion for summary judgment on the Fourteenth Amendment due process claims, the claim for publicity given to private life, and the wrongful discharge claim. (Mem. & Order, Nov. 29, 2007, Doc. 56. ) A jury trial was held on the remaining claims for First Amendment retaliation. Defendants Orwkis and Morreale were dismissed from the case on a Rule 50 motion after the close of Plaintiff's case. The jury then rendered a verdict on April 23, 2008 in favor of Plaintiff Lohman, for his First Amendment retaliation claim with respect to his assistance in filing a grievance, against Defendants Duryea Borough, Ann Dommes, Frank Groblewski, Audrey Yager, and Joan Orloski. (Doc. 102.) The jury found in favor of Defendant Robert Webb, however, on Plaintiff's claim of retaliation with respect to the assistance in filing a grievance. (Doc. 102.) The jury found in favor of all Defendants on Plaintiff Lohman's claims for First Amendment retaliation with respect to his union contract negotiations. (Doc. 102.) For Plaintiff's successful claims, the jury awarded damages for lost wages in the amount of seven-thousand, three-hundred and twenty dollars ($7320.00) against Defendants Duryea Borough, and one-thousand, two-hundred and twenty dollars ($1220.00) each against Ann Dommes, Frank Groblewski, Audrey Yager, and Joan Orloski. (Doc. 102.) The jury also awarded one dollar ($1.00) in nominal damages for damages other than wage loss against Defendants Duryea Borough, Ann Dommes, Frank Groblewski, Audrey Yager, and Joan Orloski. (Doc. 102.) On July 1, 2008, the Court granted in part Plaintiff's motion for prejudgment interest. (Doc. 120.)

In the present motion, Plaintiff requests attorneys' fees and costs in the amount of one-hundred and twelve-thousand, eight-hundred and eighty-three dollars and seventy-three cents ($112,883.73). (Doc. 109.) No other post-trial motions are pending, and no appeals have been taken. Therefore, the Court will decline Defendants' request to defer the ruling on attorney's fees. The motion is fully briefed and ripe for disposition.

DISCUSSION

The Court may award reasonable attorney fees and costs to the prevailing parties in §1983 cases. See 42 U.S.C. § 1988(b). Plaintiffs "may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). However, "[t]his is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is 'reasonable.'"Id.

I. Attorney's Fees - Reasonable Hours and Reasonable Fees

The United States Supreme Court has held that the "initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on litigation times a reasonable hourly rate." Blum v. Stetson, 465 U.S. 886, 888 (1984). This amount is known as the "lodestar" figure, which is presumed to be the reasonable fee. Pennsylvania v. Delaware Valley Citizens' Counsel, 478 U.S. 546, 565 (1986); Pennsylvania v. Delaware Valley Citizens' Counsel, 483 U.S. 711, 730-31 (1987).

In calculating the reasonable rate, the Court looks to the prevailing market rates in the relevant community. Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). The Court should considered the experience and skill of the prevailing party's attorney, and compare the rates to those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). The prevailing party bears the burden of demonstrating that the requested hourly rates are reasonable. Id.

The Court must also determine whether the number of hours spent on the litigation was a reasonable number of hours. The Court "should review the time charged, decide whether the hours claimed were reasonably expended for each of the particular purposes described, and then exclude those that are 'excessive, redundant, or otherwise unnecessary.'" Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995) (citations omitted). Thus, a trial court will "exclude from this initial fee calculation hours that were not reasonably expended on the litigation." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Thus, using the lodestar methodology, the Court can calculate a reasonable attorney's fee. Here, Plaintiff suggests a rate of three-hundred dollars ($300.00) per hour, for a total of three-hundred and fifty-six (356) hours.

A. Reasonable Hours

Defendants argue that the number of hours requested by Plaintiff Lohman should be further reduced as a number of these hours overlap with the case of Guarnieri v. Duryea Borough, et al. Defendants also argue that a number of hours should be reduced as inappropriate, such as time spent speaking to the press. Finally, Defendants argue that some of Plaintiff's time entries are excessive, and therefore should be reduced. The district court is to exclude from its fee calculation hours that were not "reasonably expended." Hensley, 461 U.S at 434. Therefore, the Court will address Defendants' arguments in turn.

1. Overlap with Guarnieri Case

First, Defendants argue that a number of Plaintiff's hours are duplicative of the Guarnieri v. Duryea Borough, et al. case. Plaintiff has submitted a document detailing eighty-eight (88.00) hours of work in the year 2006 done in support of both Plaintiff Lohman and the companion case of Charles Guarnieri. Plaintiff admits that these eighty-eight (88.00) hours of work were done in support of both cases, and Defendants object to a full recovery of these hours so as not to duplicate fees. Plaintiff requests that all fees be granted to either Lohman or Guarnieri, and that the fee request not be split in half. However, to split these hours in half is the most logical and fair way to deal with these fees. If the clients were paying the fees direclt,y neither client would be charged the full amount for work done in support of the two (2) cases; counsel would likely charge each client half of the full amount. Therefore, the Court will treat the fees in the manner in which the clients would be treated. See Pub. Interest Research, 51 F.3d at 1188. Such a reduction would not be a "global" reduction, as suggested by the Plaintiff. Rather, it is a reflection of the way in which a client would be billed. The number of hours will be divided in half, and Plaintiff's fees for hours worked on both Lohman and Guarnieri will be reduced to forty-four (44.00) hours.

Defendants also indicate that an additional fifteen and eight-tenths (15.80) hours of Ms. Pollick's time should be reduced as duplicative of the Guarnieri case. Attorney Pollick has indicated that eighty-eight (88.00) hours of her work were duplicative. But, her list of duplicative hours only considers work done in the year 2006. She lists no duplicative work for the years 2005, 2007, or 2008. The Court has reviewed the specific objections Defendants have made to duplicative time entries. The Court finds that the complained of time in 2005 is duplicative of the Guarnieri case. The hours billed to Lohman were also billed to Guarnieri, for the same amount of time and with the same description. Therefore, the 2005 hours complained of will be reduced by fifty percent (50%). The hours will be reduced from two and four-tenths (2.40) hours to one and twotenths (1.20) hours.

Defendants also claim that a number of hours in March and April 2008 were duplicative. After comparing the hours submitted for the Guanrieri and Lohman cases, the Court notes that the hours that were included in both time sheets were the two (2.00) hours on March 24, 2008, the two-tenths (0.20) hours on March 26, 2008, and the one (1.00) hour on April 3, 2008. The other hours complained of were not listed in the Guarnieri time sheets, and therefore are not duplicative. Therefore, the Court will only reduce hours on those three (3) days, from three and two-tenths (3.20) hours to one and six-tenths (1.60) hours.

In total, the Court will reduce Plaintiff's hours by forty-six and eight-tenths (46.80) hours based on duplicativeness.

2. Inapplicable Hours

Second, Defendants argue that Plaintiff has requested attorney's fees for time that is inapplicable to the Plaintiff's case. The contested time includes telephone calls with the press and correspondence regarding the case of Charles Guarnieri. "'Hours that would not generally be billed to one's own client are not properly billed to an adversary.'" Maldonado, 256 F.3d at 184 (quoting Pub. Interest Research, 51 F.3d at 1188). Generally, press communications are not compensable. See Heavens v. Golfview Estates, Inc., Nos. 96 C 1294, 96 C 1318, 1997 WL 156486 (N.D. Ill. Mar. 31, 1997) (holding that generally press communications are not compensable, unless instigated by the opposing party). Therefore, the Court will not consider any time that Plaintiff's counsel spent speaking with the press. The number of hours claimed by Plaintiff for time with the press is two and nine-tenths (2.90) hours. This time will not be considered in Plaintiff's request for attorney's fees.

Defendants also note that several entries are inapplicable to Plaintiff Lohman's case, and only apply to the case of Charles Guarnieri. Specifically, the Defendants point to correspondence regarding health care enrollment forms, a call regarding an appointment with Charles Guarnieri, and travel to Wilkes-Barre for jury selection. The issue of healthcare enrollment was not raised in the Lohman case, and is only applicable to the Guarnieri case. Therefore, seven-tenths (.70) hours of time claimed regarding healthcare enrollment will be disregarded. Similarly, the telephone call to Charles Guarnieri regarding his appointment also goes to the Guarnieri case, and that two-tenths (.20) hours of time will be disregarded. Finally, the one (1.00) hour of time logged for travel to and from Wilkes-Barre for jury selection on April 7, 2008 will be disregarded, as only the Guarnieri jury was chosen on April 7th.

Therefore, the Court will disregard a total of four and eight-tenths (4.80) hours of time listed by the Plaintiff as inapplicable.

3. Excessive Hours

Defendants further argue that a number of Plaintiff's time entries are excessive. First, Defendants argue that the time Attorney Pollick worked on the trial dates is excessive. Ms. Pollick requests fees for 15.60 hours on April 18, 2008, 18.60 hours worked on April 19, 2008, 17.00 hours worked on April 20, 2008, 18.00 hours worked on April 21, 2008, and 19.40 hours worked on April 22, 2008.

Plaintiff argues that the number of hours requested on these dates is not excessive as "Plaintiff's counsel does not take breaks, nor leave the courthouse during the trial day for lunch. Plaintiff's counsel is forced to burn the midnight oil since she has to prepare for all witnesses and argument because she stands alone at trial." (Pl.'s Br. at 15, Doc. 118.) Although the Court notes that Attorney Pollick was the only attorney representing the Plaintiff, the time requested on the days of trial is excessive. The Court finds that a fourteen (14.00) hour day during the day of trial is appropriate. Therefore, for April 18 through April 22, the Court will consider fourteen (14.00) hours per day. This is a reduction of eighteen and six-tenths (18.60) hours, from eighty-eight and six-tenths (88.60) hours to seventy (70.00) hours.

Defendants also note that Plaintiff's counsel asserts she worked thirteen and one- tenth (13.10) hours on April 6, 2008. (Doc. 109 Ex. A.) However, Plaintiff's counsel also asserted in her time sheets for the Guarnieri attorney's fees petition that she worked eleven and one-half (11.50) hours in support of Guarnieri. (Guarnieri v. Duryea Borough, et al., 05-CV-1422, Doc. 122.) Thus, Plaintiff is asserting she worked over twenty-four and six-tenths (24.60) hours in one day. This is not possible. Therefore, the Court will reduce the requested hours on April 6, 2008 by seven and one-tenth (7.10) hours to five

(5) hours.

Defendants also argue that Plaintiff's time spent on the opposition to Defendant's summary judgment motion was excessive. Plaintiff's counsel asserts that she spent twenty-four (24) hours preparing the brief in opposition. Defendants argue that this is unreasonable. However, the Court disagrees, and finds that twenty-four (24) hours spent in preparation of an opposition to a summary judgment motion is not unreasonable.

Defendants also argue that fourteen (14.00) hours spent in preparation for voir dire on April 6, 2008 and April 20, 2008 is excessive. The Court agrees. The Court will reduce the amount of hours for voir dire from fourteen (14.00) hours to four (4.00) hours, a reduction of ten (10.00) hours.

Finally, Defendants argue that excessive time was listed for May 16, 2006 and September 14, 2006. Defendants argue that Plaintiff's counsel submitted time sheets reflecting that she worked on attorney's fees motions in the Guarnieri case on those dates. However, the time listed on those two (2) dates were submitted on the time sheet that Plaintiff's counsel agreed was done in support of both the Lohman and Guarnieri cases. ...


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