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Brown v. City of Pittsburgh

May 27, 2010


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer


I. Introduction

In this memorandum opinion, the Court considers the Motion for Attorney's Fees and Non-Taxable Costs and Supplement thereto filed by Plaintiff, Mary Kathryn Brown*fn1 ("Brown") against Defendant City of Pittsburgh, Pittsburgh City Council, and Mayor Luke Ravenstahl ("the City" or "Defendants"). (Docket Nos. 90, 97). After considering the motion, the briefs, and the exhibits submitted by the parties, as well as the parties' arguments presented at a hearing held on April 15, 2010, the Court will grant Plaintiff's motion and supplement, and will award Plaintiff's attorney fees and costs aggregating $208,601.69.

II. Background

This case revolved around Ordinance No. 49, which supplements the Pittsburgh Code of Ordinances, Title 6, enacted by the City of Pittsburgh in December 2005 establishing two types of zones around hospitals, medical offices and clinics - a fifteen foot buffer zone and a hundred foot bubble zone. See Pittsburgh, Pa., Code Tit. 6, §§ 623.01-623.07. On October 27, 2006, Brown brought suit against the City under 42 U.S.C. § 1983 contending that the Ordinance violated her civil rights under the United States and Pennsylvania Constitutions, as well as the Pennsylvania Religious Freedom Protection Act, 71 Pa. Stat. Ann. §§ 2401-2407. After she filed her Verified Complaint (Docket No. 1), the City moved for partial dismissal of her claims. (Docket No. 17). Thereafter, Brown filed a motion for a preliminary injunction seeking to prevent the City from enforcing the Ordinance against her. (Docket No. 22). On February 22, 2008, this Court denied the motion, finding the Ordinance facially valid and that Brown had failed to show that the City had applied or would apply it an unlawful manner against her. (Docket Nos. 67, 68). The Court also dismissed several counts of Brown's Complaint and ordered her to file an amended complaint. (Docket Nos. 69, 70). Brown appealed both Orders, but filed her Amended Complaint. (Docket Nos. 71, 72).

On October 30, 2009, the United States Court of Appeals for the Third Circuit reversed this Court's denial of preliminary injunctive relief, finding that, although the provisions individually were facially constitutional, the combination of the two zones was unconstitutional. Brown v. City of Pittsburgh, 586 F.3d 263 (3d. Cir. 2009). After facially striking down the combination of the two zones, the Court of Appeals concluded that neither provision alone infringed upon rights guaranteed by the Equal Protection Clause, the Free Exercise Clause, or Pennsylvania's Religious Freedom Protection Act. Id. In light of the Ordinance's severability provision, Pittsburgh, Pa., Code Tit. 6, § 623.06, the Court of Appeals remanded the matter, directing that on remand the City should inform the Court of its preferred zone, and the Court shall enjoin enforcement of the other. Brown, 586 F.3d 263. The Court of Appeals further vacated this Court's rejection of Brown's as-applied challenge to the particular clinic locations where Brown protested, but affirmed the Court's ruling on Brown's as-applied challenge based on selective enforcement of the statute by City police officers. Id. The appellate court declined to consider Brown's appeals from this Court's orders partially dismissing her Complaint. Id.

On December 17, 2009, after being advised of the City's preference as to which zone should remain, the Court permanently enjoined in toto section 623.03 of the Ordinance, i.e. the one hundred foot bubble zone.*fn2 (Docket No. 85). This case was then referred to Magistrate Judge Robert C. Mitchell for purposes of holding a mediation conference in an effort to resolve the parties' dispute regarding attorney's fees and costs. (Docket No. 81). A mediation conference was held January 6, 2010; however, the issue of attorney's fees was not resolved. (Docket No. 88). Thus, Brown filed her Motion for Attorney Fees and Non-Taxable Costs, with supporting documentation including billing statements and declarations on February 8, 2010. (Docket Nos. 90, 90-1 through 90-22). The City filed its Response on March 8, 2010, with supporting exhibits and the declaration and audit report of James Schratz, Esquire.*fn3 (Docket Nos. 93, 93-1 - 93-11). Brown filed a Reply on March 19, 2010, with a supplemental fee statement and other supporting documentation. (Docket Nos. 97, 97-1 - 97-17). The Court granted the City leave to file a sur-reply, but it declined to do so. (Docket No. 96). A hearing was held on Brown's motion on April 15, 2010, during which the City offered as an exhibit without objection the transcript from the preliminary injunction evidentiary hearing held on March 23, 2007. (Docket No. 98; Transcript of Oral Argument held 4/15/10, hereinafter "Trans.," at pgs. 3-6; see also Docket No. 53).

In support of her motion, Brown submitted an 84-page itemized billing statement, which details the tasks completed and hours charged by her counsel beginning on December 1, 2005 and ending on February 8, 2010, as well as her counsel's litigation expenses.*fn4 (Docket No. 90-1). With her Reply, she supplemented her fee request with a 15-page itemized billing statement detailing the hours charged by her counsel since the filing of her original motion on February 8, 2010 until March 19, 2010.*fn5 (Docket No. 97-1). These two billing statements chronologically set forth the time spent daily by each individual counsel and staff member, the fee for that time based on each individual's hourly rate, as well as the nature of the work performed. (Id.). A summary of each individual staff's time spent and related fee as presented to the Court are as follows: Individual Time Requested (Amt. Reduced by Counsel) Total Fee Requested

K. Theriot 0.00 (.10) 0.00

D. Cortman 336.40 (38.90) 117,740.00

J. Shafer 0.00 (7.90) 0.00

J. Tedesco 0.00 (21.00) 0.00

E. Murray 327.30 (111.90) 73,642.50

J. Bolinger 83.40 (16.00) 18,765.00

T. Chandler 0.00 (.20) 0.00

T. Barham 75.40 (42.90) 16,965.00

D. Hacker 0.00 (3.20) 0.00

M. Sifert 3.10 (2.50) 232.50

E. Brown 27.30 (8.40) 2,047.50

S. Hamilton 64.20 (5.00) 4,815.00

D. Farney 0.00 (.10) 0.00

R. Tebault 0.00 (.10) 0.00

J. Young 2.00 (2.20) 150.00

T. Boggs 8.10 (5.20) 607.50

L. Morgan 0.00 (.40) 0.00

L. Paladin 52.65 (12.75) 13,162.50

J. Fox-Cid 3.10 (2.50) 325.50

D. Grubbs 1.00 (.50) 105.00

M. Sharp 0.00 (1.20) 0.00 Totals: 983.95 (282.95) 248,558.00 (Docket Nos. 97 at 19, 97-1, 97-2, 97-17). Brown therefore requests $248,558.00 in fees and $8,991.24 in costs,*fn6 aggregating $257,549.24. (Id.). Brown supports her request for costs in a 5-page list of expenses, filed with her Reply. (Docket No. 97-17). The total sum of fees sought, as pointed out by Brown, was reduced by "billing judgment" ...

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