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McLaughlin v. Fisher

September 9, 2008

JOHN MCLAUGHLIN; CHARLES A. MICEWSKI, PLAINTIFFS,
v.
MICHAEL FISHER; GERALD PAPPERT; BRUCE SARTESCHI; DAVID KWAIT; ROBERT VON SCIO; JAMES CAGGIANO, DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Now before the Court is the Defendants Fisher, Pappert, Sarteschi, Kwait, Von Scio, and Caggiano's Motion for Bill of Costs (Doc. 180) (the "Motion"). For the reasons discussed below, the Motion will be granted in part and denied in part. As a result, Defendants will be awarded costs of six-thousand six-hundred eighty dollars and forty cents ($6,680.40).

BACKGROUND

At the time litigation was commenced in this case, Plaintiffs were investigators for the Pennsylvania Attorney General's Bureau of Narcotics Investigations and Drug Control ("BNI"). At the onset of this litigation each of the Defendants worked in the Office of the Attorney General ("OAG") of the Commonwealth of Pennsylvania. Defendant Michael Fisher was the elected Attorney General and was the Attorney General during the course of the Trial.*fn1

Defendant Gerald Pappert was the First Deputy Attorney General of the Commonwealth of Pennsylvania, assuming that title in January 1997. Defendant David Kwait was the Chief of the Office of Criminal Investigations, Criminal Law Division, and had held that position since January 1997. Defendant James Caggiano was the Deputy Chief of the BNI's Criminal Law Division, and had served in that position since June 1997. Defendant Bruce Sarteschi served as the Director of Human Resources for the OAG, a position he held since 1980. An additional Defendant that has since been dismissed from the case, Charles Warner was the Assistant Deputy Chief of the BNI, and served in that position starting in January 1998. From May through December 1997, Warner served as Director of the OAG's Philadelphia office of the BNI. Warner reported to Defendant Kwait, who reported to William F. Ryan, Chief of the Office of Criminal Law.

On October 14, 1997, Plaintiffs McLaughlin and Micewski, along with Dennis McKeefery, filed the action entitled McLaughlin v. Watson, et al., No. 1:CV-97-1555 (M.D. Pa.). Plaintiffs alleged that the defendants in that case impeded their law enforcement efforts and destroyed their careers by engaging in a conspiracy to protect a Dominican Republic drug organization with ties to a Dominican political party.

In November 1997, Plaintiffs were transferred from their positions as narcotics agents in Philadelphia to other positions. On October 2, 1998, Plaintiffs filed the present action in the United States District Court for the Eastern District of Pennsylvania, alleging that the transfers were made in retaliation for the filing of the first lawsuit. This action was transferred to the United States District Court for the Middle District of Pennsylvania on March 30, 2000. (Doc. 1.)

On September 14, 2001, I granted Defendants' motion for summary judgment regarding Plaintiff Dennis McKeefery, and dismissed McKeefery from this action. (Doc. 17.) I denied Defendants Fisher, Pappert, Warner, Sarteschi, Kwait, and Caggiano's motion for summary judgment on May 20, 2002. (Doc. 33.) The case was tried in Wilkes-Barre, Pennsylvania the week of February 3 through 7, 2003. At the close of Plaintiffs' case, Defendants moved for judgment as a matter of law, pursuant to Rule 50 of the Federal Rules of Civil Procedure. The Court granted Defendants' motion for judgment as a matter of law as to Defendant Warner and dismissed Defendant Warner from the case. Defendants' motion for judgment as a matter of law was otherwise denied. (Doc. 55.) On February 7, 2003, the jury returned a verdict for the plaintiffs, awarding them a total of $1.5 million in compensatory and punitive damages. (Docs. 59-60.) Judgment was then entered in favor of Plaintiffs and against Defendants Fisher, Pappert, Sarteschi, Kwait, and Caggiano. (Docs. 61-70.)

Defendants appealed this Court's Order denying Defendants' motion for judgment as a matter of law to the Third Circuit Court of Appeals. On May 1, 2008, the Court of Appeals issued an Order reversing this Court's denial of the Defendant's motion for judgment as a matter of law and granted the motion in favor of the Defendants. (Doc. 182.) Plaintiffs then filed a Petition for Reargument in the Court of Appeals. Defendants filed the Motion currently under consideration on June 4, 2008, seeking six-thousand seven-hundred ninety-five dollars and ninety cents ($6,795.90) in costs from Plaintiffs. (Doc. 180). Plaintiffs submitted their Objections to the Bill of Costs ("Objections") on June 13, 2008. (Doc. 181.)

DISCUSSION

The Court will first address Plaintiffs' argument that the Defendants' Motion for Bill of Costs has been prematurely filed. Plaintiffs' argument is based on the continuing activity in the Third Circuit Court of Appeals, and contends that, because the Court of Appeals has not issued an order on the Plaintiffs' Motion for Reargument, the Defendants are not yet prevailing parties in this case. Plaintiffs offer no cases in support of their argument, but the Court does find decisions staying consideration of fees and costs until the final resolution of an appeal. See Local 827 Int'l B'hood of Elec. Workers v. Verizon N.J., Inc., No. 02-1019, 2006 U.S. Dist. LEXIS 56453, at *12-13 (D.N.J. Aug. 3, 2006); 1st Westco Corp. v. Sch. Dist. of Phila., No. 91-2727, 1993 U.S. Dist. LEXIS 5025, at *1 (E.D.Pa. Mar. 17, 1993).

However, the Court agrees with the Eastern District of Pennsylvania's decision in In re Unisys Corp. Retiree Medical Benefits ERISA Litigation which says that the weight of authority says that the usual course for Courts is to consider fees "promptly after the merits decision rather than stay [fee petitions] until resolution of the appeal." No. 03-3924, 2007 WL 4287393, at *2 (E.D.Pa. Dec. 4, 2007). In Unisys, the Court correctly notes that "a number of courts have found that a pending appeal, standing alone, is insufficient reason to postpone a fee decision for an indefinite period of time." Id. This understanding is also supported in cases arising in the Middle District of Pennsylvania. Notably, when denying a motion to stay a fee decision until resolution of an appeal in McCloud v. City of Sunbury, the Court stated that "[w]e do not recall any instance where we have stayed a motion for attorney's fees and expenses pending the outcome of an appeal." No. 04-cv-2322, 2006 WL 449198, at *1 (M.D.Pa. Feb. 23, 2006). Accordingly, the Court finds no merit in Plaintiffs' argument that Defendants' motion was prematurely filed.

The Court will now address the Plaintiffs' objections to the nature and amount of costs included in Defendants' Motion. ...


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