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Mike Cvetko v. Derry Township Police

December 20, 2010

MIKE CVETKO, PLAINTIFF
v.
DERRY TOWNSHIP POLICE
DEPARTMENT, BRIAN K. GRUBB, MICHAEL HENRY, TODD HARRER, JOHN DOE, HERSHEY
ENTERTAINMENT & RESORTS, AND ROBERT MEALS, DEFENDANTS



The opinion of the court was delivered by: Magistrate Judge Prince

(JUDGE CONNER)

MEMORANDUM & ORDER

Now under consideration are the parties' filings concerning appropriate sanctions under Federal Rule of Civil Procedure 11 against plaintiff's counsel, Robert Mirin.

I. Background

What follows is a brief overview of the relevant procedural history. Plaintiff Mike Cvetko initiated this action on July 1, 2009, by filing a complaint (Doc. 1), which he amended (Doc. 5) and amended again (Doc. 16), each time in response to motions to dismiss from defendants (Docs. 3, 10). After defendants moved (Doc. 17) to dismiss the second amended complaint and the court granted the motion (Doc. 39), plaintiff moved to amend his complaint for a third time (Doc. 47), which the Court denied (Doc. 52) as failing to cure the defects that led to dismissal before.

Defendants sought sanctions under Rule 11 against both plaintiff Mike Cvetko and his attorney, Robert Mirin, in a motion filed May 10, 2010 (Doc. 41). The Court granted the motion against Mirin on August 24, 2010 (Doc. 61), holding that both Mirin and Cvetko had violated Rule 11, but imposing sanctions only on Mirin. Defendants' counsel was ordered to file a statement of its claim for sanctions, detailing expenditures on behalf of their clients in connection with the defense to this action, by September 15; counsel did so on this date (Doc. 65). Mirin timely filed an objection to defendants' declaration (Docs. 67, 68) on September 29, and a timely reply brief from defendants followed (Doc. 71) on October 6. On December 8, 2010, Honorable Christopher C. Conner issued an order (Doc. 73) dismissing plaintiff's motion for reconsideration of the order granting sanctions and remanding the matter of determining appropriate sanctions to the undersigned Magistrate Judge.

The matter is now ripe for disposition.

II. Discussion

Defendants' counsel submitted documentary evidence to show that they incurred a total of $49,346.86 in fees and costs in the course of defending their clients against plaintiff's claims. (Docs. 65, 65-2 to 65-6.) Mirin takes two approaches to challenging this valuation; each will be addressed in turn.

(A) A plaintiff's "special protection" in civil-rights claims Mirin argues that plaintiffs "generally have a special status in civil-rights litigation," which generally affords them protection from defendants' claims for fees, "so as to not instill fear in the hearts of people who have those claims," even if they are weak or ultimately prove unsuccessful. (Doc. 68, at 16.) He bases his argument entirely on Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), a case brought under the Civil Rights Act of 1964, in which the Court held: "[A] district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id. at 421.

First, Christiansburg is only loosely related to the present case. Christiansburg presented a Title VII claim in which defendants prevailed but did not seek Rule 11 sanctions; here, plaintiff's claims were under 42 U.S.C §§ 1983 and 1985(3), and he and Mirin have both already been held to have violated Rule 11. Second, to the extent that Christiansburg does apply, it goes completely against the case that Mirin is trying to make. Mirin's filings on behalf of his client have already been found frivolous, and under Christiansburg, Mirin's repeated protestations that the claims against defendants were brought in good faith would be of no avail. No less important is the mandate that if Rule 11 is violated, sanctions necessarily follow. Project 74 Allentown, Inc. v. Frost, 143 F.R.D. 77, 83 (E.D. Pa. 1992) (citing Cooter & Gell, 496 U.S. 384, 393 (1990); Perkins v. Gen. Motors Corp., 129 F.R.D. 655, 658 (W.D. Mo. 1990); Matthews v. Freedman, 128 F.R.D. 194, 206 n.3 (E.D. Pa. 1989)).

(B) Hours worked by defendants' counsel Mirin correctly notes that the "lodestar" of determining reasonable fees is the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Just as billing a client for "excessive, redundant, or otherwise unnecessary" hours violates an attorney's ethical obligation, counsel for a prevailing party has a duty to bill an adversary only for hours "reasonably expended." Id. at 434. The lodestar calculation may be adjusted upwards or downwards on the basis of a variety of factors, including the "results obtained." Id. at 434 & n.9 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717--19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 90 (1989)).

In the Third Circuit, "[t]he value of an attorney's time generally is reflected in his normal billing rate." Lindy Bros. Builders, Inc. v. Am. Radiators & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir. 1973). Here, defendants' counsel has submitted evidence showing that the total of 225.8 hours worked by three different attorneys were billed at rates varying from $170 to $260 per hour, with the vast majority of the billing at $205 to $220 per hour. (Young Aff., Sept. 15, 2010, Doc. 65-2, at ¶ 22.)

Mirin has submitted neither argument nor evidence to discredit this valuation of his opposing counsels' time. He points out that the Equal Access to Justice Act limits attorney's fees to $125 per hour, 28 U.S.C. § 2412(d)(2)(A)(ii), but this provision only applies to cases in which the United States is a party. Mirin also cites Napier v. Thirty or More Unidentified Federal Agents, Emps., or Officers, 855 F.2d 1080 (3d Cir. 1988), in which the court valued the services of a U.S. attorney at $100 per hour. Id. at 1092--93. This case helps Mirin no more than does Christiansburg or the Equal Access to Justice Act. First, the Napier court was presented with the unusual question of having to determine an hourly rate for a U.S. attorney, when U.S. attorneys are salaried rather than paid hourly. Id. at 1092. Second, the court's approval of a $100 hourly rate was made in 1988 for services rendered in 1986 and 1987. See id. at 1084--85 (describing the litigation underlying the United States' claim for sanctions under Rule 11).One hundred dollars in 1986 translates to about $195 in 2009 dollars, which is not greatly different from the $216 average hourly rate that defendants' counsel billed. See Bureau of Labor Statistics, U.S. ...


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