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Leslie C. Pelzer v. City of Philadelphia

February 17, 2011

LESLIE C. PELZER
PLAINTIFF,
v.
CITY OF PHILADELPHIA, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Timothy R. Riceu.s. Magistrate Judge

MEMORANDUM OPINION

Plaintiff Leslie Pelzer seeks an award of $343,051.00 in attorneys' fees and $29,159.07 in costs as a prevailing party pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and Federal Rule of Civil Procedure 54(d)(1). Following a nine-day trial, a jury awarded Plaintiff $138,000 in damages from defendant Marvin Burton, a Philadelphia police officer, for his use of excessive force when he fatally shot Plaintiff's son, Raymond Pelzer, in violation of 42 U.S.C. § 1983. The jury also found Officer Burton had not committed assault or battery, and defendants Sylvester Johnson and the City of Philadelphia had not violated the law by failing to provide adequate training or policies regarding foot pursuits.

For the following reasons, I will grant Pelzer's requests for attorneys' fees and costs, but I will reduce the fee award to reflect reasonable hourly rates and the limited nature of Pelzer's success. I also will reduce the costs to eliminate items that are not taxable under the law.

Background

On April 27, 2006, Burton shot and killed Pelzer, who had fled from police during an investigatory stop in West Philadelphia. See Pelzer v. City of Phila., No. 07-0038, 2011 WL 93054, at *1-3 (E.D. Pa. Jan. 11, 2011). Pelzer was unarmed at the time, and his encounter with Burton and the other officers was not precipitated by any violent, or otherwise serious, criminal behavior. Id.

In the wake of her son's death, Plaintiff sued Burton, former Police Commissioner Sylvester Johnson, and the City of Philadelphia, bringing the following claims: (i) excessive force, in violation of 42 U.S.C. § 1983, against Burton; (ii) battery, in violation of Pennsylvania law, against Burton; (iii) assault, in violation of Pennsylvania law, against Burton; (iv) failure to train, in violation of § 1983, against Johnson and the City; (v) deficient policies or customs, in violation of § 1983, against Johnson and the City; and (vi) claims for wrongful death and survival damages against all defendants. See Complaint at ¶¶ 35-60, Pelzer v. City of Phila., No. 07-0038 (E.D. Pa. Jan. 4, 2007) [hereinafter Complaint].

The claims against Johnson and the City were based on allegations that Philadelphia police officers did not receive adequate training on how to safely conduct foot pursuits of fleeing suspects, that the Philadelphia Police Department had not adopted adequate policies governing foot pursuits, and that these failures had caused Burton to use excessive force against Pelzer. See Pelzer v. City of Phila., 656 F. Supp. 2d 517, 532-38 (E.D. Pa. 2009) (Stengel, J.).

Defendants sought summary judgment, which was granted only as to the wrongful death and survival claims against Johnson and the City. See id. at 540. All other claims were tried before a jury, starting on October 1, 2010. See Minute Entry, ECF No. 86, Pelzer v. City of Phila., No. 07-0038 (E.D. Pa. Oct. 1, 2010). After hearing six days of witness testimony, argument by counsel, and instruction on the law, the jury deliberated for two-and-one-half days before returning its verdict. See Pelzer, 2011 WL 93054, at *7. The jury found Burton liable for using excessive force, and awarded Plaintiff compensatory damages of $138,000. See Civil Judgment, Pelzer v. City of Phila., No. 07-0038 (E.D. Pa. Oct. 15, 2010) [hereinafter Judgment]. On all other claims -- including assault and battery against Burton, and the § 1983 claims against Johnson and the City -- the jury found in favor of Defendants. Id. No punitive damages were awarded.

Defendants correctly concede Plaintiff is a "prevailing party" entitled to an award of attorneys' fees. See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Attorneys' Fees at 5, Pelzer v. City of Phila., No. 07-0038 (E.D. Pa. Feb. 7, 2011) [hereinafter Fee Response]. In her fee petition, Plaintiff contends she is entitled to the full amount of fees incurred in connection with this action, even though the jury returned a defense verdict on four of the five claims it considered. See Plaintiff's Memorandum of Law in Support of Motion for Attorneys' Fees & Costs at 4-6, Pelzer v. City of Phila., No. 07-0038 (E.D. Pa. Nov. 22, 2010) [hereinafter Fee Petition]. Plaintiff argues all five claims had "common core facts and related legal theories," making them so intertwined that she could not have succeeded in her claim against Burton "without all of the evidence discovered and produced at trial." Id. at 4-5. She requests her attorneys be compensated at the following rates: $500 per hour for Mark B. Frost, $450 per hour for Gregg L. Zeff, and $350 per hour for Daniel Hartstein.*fn1

Defendants object to Plaintiff's fee request, asserting: (1) the fees should be reduced by eighty percent to reflect Plaintiff's limited success; (2) the hourly rates sought are unreasonable and should be reduced for each attorney; and (3) the hourly rates sought should be "blended" and reduced by an additional ten percent because certain tasks performed by counsel were akin to "junior associate," "paralegal," or "secretarial" work. See Fee Response at 7-20.

As to Plaintiff's Bill of Costs, Defendants articulate the following objections:

(1) Plaintiff's limited success means she is not a "prevailing party" for purposes of Rule 54(d)(1);

(2) Plaintiff is not entitled to costs associated with her unsuccessful claims; (3) the Bill of Costs is not adequately itemized or supported by documentation; (4) Rule 54(d)(1) does not permit taxation of parking, travel, lodging, other unspecified expense, investigatory costs, or expert fees. See Defendants' Objections to Plaintiff's Bill of Costs at ΒΆΒΆ ...


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