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Denise Carey v. City of Wilkes-Barre and Mayor Thomas M. Leighton

May 19, 2011

DENISE CAREY,
PLAINTIFF
v.
CITY OF WILKES-BARRE AND MAYOR THOMAS M. LEIGHTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

I. Introduction

Before the court is Plaintiff's motion for attorney fees and costs for a successful verdict on her behalf in a First Amendment Retaliation claim. The matter is briefed and is ripe for disposition.

Defendants oppose the amount requested by Plaintiff claiming that (1) the billing rate is unreasonable; (2) the fee should be reduced because of the limited success of Plaintiff's claims; (3) Plaintiff should not be compensated for press communications; (4) Plaintiff's billing entries in response to Defendants' renewed motion for judgment notwithstanding the verdict are excessive; (5) Plaintiff should not be compensated for time related to case number 3:05-CV-2534 (related to this objection is Defendants' request that the fees should be reduced by 50 percent because the time spent was duplicative to the work performed in case number 3:05-CV-2534); (6) Plaintiff should not be compensated for transcribing council meeting minutes; and (7) Plaintiff's travel time is unreasonable and excessive.

II. Discussion

A. Billing Rate

In determining a reasonable fee, the court begins by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A party opposing the fee petition may challenge, by affidavit or brief with sufficient specificity, the reasonableness of the requested fee. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).

Generally, a reasonable hourly rate is calculated according to the prevailing market rates in the community.*fn1 Once the lodestar, i.e. the reasonable hours expended multiplied by a reasonable hourly rate, is calculated, the court must determine if the fee should be reduced based on the following factors: (1) time spent pursuing unsuccessful claims distinctly different and unrelated to the "ultimate result achieved"; (2) time and labor required; (3) novelty and difficulty of the questions; (4) the skill requisite to perform the legal service properly; (5) the preclusion of employment by the attorney due to acceptance of the case; (6) the customary fee; (7) whether the fee is fixed or contingent; (8) time limitations imposed by the client or the circumstances; (9) the amount involved and the results obtained; (10) the experience, reputation, and ability of the attorneys; (11) undesirability of the case; (12) the nature and length of the professional relationship with the client; and (13) awards in similar cases. City of Riverside v. Rivera, 477 U.S. 561, 568 & n.3 (1986) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)); Hensley, 461 U.S. at 429-30 & n.9.

Plaintiff seeks attorney's fees on an hourly rate of $300.00. Defendant claims this is not the prevailing rate for an attorney in the Middle District of Pennsylvania with similar skills and experience as Plaintiff's counsel and in light of Plaintiff's limited success. In support, Defendants cite to Moore v. Susquehanna Area Regional Airport Auth. , No. 1:02-CV-0535, WL 2430790 (M.D. Pa. 2005), where a rate of $200.00 per hour was a reasonable rate. In another case, Svecz v. Commw. of Penna. Dept. of Corr., No. 3:98-CV-1177 (M.D. Pa., Nov. 17, 2003), a rate of $165.00 was determined to be a reasonable rate in a Middle District of Pennsylvania employment discrimination case.

The above cases were based on market rates that preceded the instant case by six and eight years. However, in the more recent case of Lohman v. Dwyea Borough, No. 3:05-CV-1423 (M.D. Pa., July 30, 2008), Plaintiff's counsel was awarded counsel fees at the rate of $215.00 per hour.

In a recent case of Lewis v. Smith, et al., No. 08-3800 (3d Cir., July 28, 2010), a United States magistrate judge, sitting as a special master for the Third Circuit Court of Appeals, found that the prevailing rates for practitioners in the Harrisburg legal community was $300 per hour. The attorneys involved in that case are well-known to this court. One has been in practice since 1976 and the other since 1989. They are highly skilled and respected in the Harrisburg region. This court recognizes that years in a successful practice is not the only element to use in determining the hourly rate. The court must consider factors such as skill and experience. Student Public Interest Research Group of New Jersey v. AT&T Bell Laboratories, 842 F.2d 1436 (3d Cir. 1988).

Throughout the briefing on this issue, contrasts have been made between Barry Dyller and Plaintiff's counsel, Cynthia L. Pollick. Dyller is reported to have been in practice for more than fifteen (15) years longer than Pollick, has tried ninety cases, and has represented clients in over one hundred civil rights cases. Dyller has been on the executive board of the Civil Rights section of the American Association for Justice, chair-elect of its Civil Rights section, and chairman in July 2009. Attorney fee rates for Dyller have been approved in amounts ranging from $300.00 to $375.00 per hour. (Affidavit of Barry N. Dyller, Ex. C to Affidavit of C. Pollick (doc. 167-2).)

Pollick counters that she has been in practice eleven years, has four years in human resources experience, a Master's Degree in Trial Advocacy, is a graduate from Gerry Spence's Trial Lawyers College in employment and labor law, in one year won four jury civil rights trials and has achieved four precedential opinions from the Third Circuit Court of Appeals. (Plf.'s Reply Brief, Doc. 183 at p.2.)

It is this court's opinion that Pollick's length of practice and experience does not entitle her to a $300.00 per hour rate. A rate of ...


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