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Administratrix of the Estate of Steven Conway, Deceased v. Fayette County Children and Youth Services

August 31, 2011

ADMINISTRATRIX OF THE ESTATE OF STEVEN CONWAY, DECEASED, PLAINTIFF,
v.
FAYETTE COUNTY CHILDREN AND YOUTH SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Senior District Judge

OPINION AND ORDER OF COURT

OPINION

I. BACKGROUND

On June 16, 2008, Plaintiff, then John Doe,*fn1 first brought this action initially against Fayette County Children and Youth Services ("FCCYS") and David L. Madison as administrator of FCCYS. (ECF No. 1). On August 22, 2008, Plaintiff filed an Amended Complaint naming as Defendants, FCCYS, David L. Madison, as administrator of FCCYS, and adding Renee Coll, Brian Davis and Kim Schuessler as FCCYS caseworkers. (ECF No. 18). The Amended Complaint set forth the following four counts: 1) 14th Amendment procedural due process claim against Defendants for failure to provide Plaintiff a hearing, either before or after the children were placed with his parents; 2) 14th Amendment substantive due process claim for violating his right to the custody, care and control of his children via the policy and Defendants' alleged threats to place the children in protective custody if he had any contact with them; 3) 1st Amendment claim for violating his right to associate with his children via the policy; and 4) 5th Amendment claim for violating his privilege against self-incrimination.

The parties filed cross motions for summary judgment. (ECF Nos. 41 and 44). On November 22, 2010, I denied Defendant's Motion for Summary Judgment and granted in part and denied in part Plaintiff's Motion for Summary Judgment. Plaintiff's Motion for Summary Judgment was granted in the following respects:

a. summary judgment was granted in Plaintiff's favor as to his substantive due process claims as they relate to FCCYS' Protocol, Ms. Schuessler, and Ms. Coll;

b. summary judgment was granted in Plaintiff's favor as to his procedural due process claims;

c. summary judgment was granted in favor of Plaintiff holding that he did not waive his substantive and procedural due process rights; and

d. summary judgment in favor of Plaintiff was granted as to Plaintiff's First Amendment claim.

(ECF No. 61). Plaintiff's Motion for Summary Judgment was denied in all other respects. Thus, claims against both Brian Davis and David Madison as well as FCCYS, Coll and Schuessler remained.

Prior to trial, Plaintiff, now the Administratrix of the Estate of Steven Conway, voluntarily withdrew her claims against Brian Davis and David Madison. (ECF Nos. 74 and 114). As a result, the case proceeded to trial against FCCYS, Renee Coll and Kim Schuessler on damages only.

A jury trial was held from April 26 -- April 29, 2011. On May 2, 2011, the jury awarded Plaintiff $0.00 as compensatory damages as a result of Renee Coll's acts. (ECF No. 128). The jury awarded Plaintiff $0.00 as compensatory damages as a result of Kim Schuessler's acts. Id. The jury awarded Plaintiff $105,000.00 as compensatory damages as a result of FCCYS's acts. Id.

On May 17, 2011, Plaintiff filed a Petition for Attorneys' Fees pursuant to Rule 54(d) of the Federal Rules of Civil Procedure and 42 U.S.C. §1988 seeking an award of $445,060.60 in attorneys' fees and costs. (ECF No. 131). Defendants filed Objections thereto on June 7, 2011. (ECF No. 132). On July 7, 2011, Plaintiff filed a Response to Defendants' Objections. Therein, Plaintiff's counsel acknowledges that $5,650.00 should be deducted from the total for Mr. Walczak's attendance at two depositions that Ms. Rose conducted. (ECF No. 135, pp. 12 and 30). Counsel, however, seeks an additional $10,187.50 for time for preparing the Reply. Id. at p. 30. As a result, Plaintiff's counsel are seeking a total award of $448,348.10 (fees costs). A hearing on Plaintiff's Motion was held on August 23, 2011.

II. LEGAL ANALYSIS

Section 1988 of Title 42 permits a district court to award reasonable attorney's fees to prevailing parties in civil rights litigation. In cases such as this, a court uses the lodestar formula which requires multiplying the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 24, 433 (1983); Loughran v. Univ. of Pittsburgh, 260 F.3d 173, 176 (3d Cir. 2001). AA District Court has substantial discretion in determining what constitutes a reasonable rate and reasonable hours, but once the lodestar is determined, it is presumed to be the reasonable fee.@ Lanni v. New Jersey, 259 F.3d 146, 148 (3d Cir. 2001). Thereafter, a district court may adjust the fee for a variety of reasons, the most important factor being the Aresults obtained@ by the plaintiff. Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995).

A prevailing party is not automatically entitled to compensation for attorney's fees in their entirety; rather the party seeking such attorney's fees bears the burden to prove the reasonableness of its requests.*fn2 Interfaith Community Organization v. Honeywell, 426 F.3d 694, 712 (3d Cir. 2005); Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Where documentation is inadequate, a prevailing party's hours may be reduced. Hensley, 461 U.S. at 433. If the opposing party makes specific objection then the court must "go line by line through the billing records." Evans v. Port Auth. of N.Y. and N.J, 273 F.3d 346, 362 (3d Cir. 2001).

Here, the parties disagree both as to what constitutes reasonable rates in this case, as well as what constitutes the number of hours reasonably expended. (ECF No. 132). Additionally, Defendants submit that due to Plaintiff=s lack of complete success, a reduction of the lodestar is appropriate. Id. I will address each challenge seriatim.

A. Reasonable Hourly Rates

Defendants first object to the hourly rates requested by Plaintiff's attorneys. (ECF No. 132, pp. 1-7). In assessing the reasonableness of hourly rates I must determine what constitutes a Areasonable market rate for the essential character and complexity of the legal services rendered....@ Lanni, 259 F.3d at 149, citing, Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997). I do this by Aassessing the experience and skill of the prevailing party=s attorneys and compare the rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.@ Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). The starting point is the hourly rate usually charged by the attorney, but this is not dispositive. Public Interest, 51 F.3d at 1185. Of importance, the Third Circuit noted that there is a distinction between the rate that a private client may be willing to pay and the appropriate amount that can be charged to an adversary. See, Daggett v. Kimmelman, 811 F.2d 793, 799-800 (3d Cir. 1987); see also, Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)(fee shifting "statutes were not.intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client"). Plaintiff bears the burden of establishing the reasonable current*fn3 market rate. Id.; Evans, 273 F.3d at 361.

In this case, Plaintiff was represented by attorney Vic Walczak and attorney Sara Rose during this case. Plaintiff urges that the following represents reasonable current market rates for them:

Attorney Walczak $500.00 per hour

Attorney Rose $325.00 per hour (ECF No. 131). Additionally, Plaintiff was represented by attorney Ilene Fingeret and paralegal Linda Sikora in connection with her Petition to Allow Register of Wills Grant Letters of Administration to her in the estate of John Doe, the original Plaintiff in this action. (ECF No. 131). Plaintiff urges that the following represents reasonable current market rates for the attorney and paralegal that performed work in this regard:

Attorney Fingeret $250.00 - $275.00 per hour Paralegal Sikora $145.00 per hour Id. I note that Defendants do not challenge the reasonableness of the fees charged by attorney Fingeret and paralegal Sikora. See, ECF No. 132. I have reviewed their declarations and attorney Fingeret's CV submitted in support thereof. I find that attorney Fingeret's hourly rate of $250.00 and paralegal Sikora's hourly rate of $145.00 are reasonable for estate work.

Defendants, however, do object to the reasonableness of attorney Walczak's and attorney Rose's hourly rate. As a result, I will address these attorneys separately.

1. Attorney Walczak

Defendants object to attorney Walczak's requested rate of $500 per hour. (ECF No. 132, pp. 2-5). Defendants point out that no other attorney in the Western District of Pennsylvania has ever been awarded $500 per hour by a court. In support, Defendants cite various cases suggesting that the reasonable rate of a skilled attorney in complex federal matters is $350-$400 per hour. (ECF No. 132, pp. 3-4). For example, in Lining v. Temporary Personnel Services, Inc., the court rejected a requested hourly rate of $425 per hour for an employment attorney, Sam Cordes, and found $400 to be a more accurate depiction of the attorney's current market rate given his skill, experience and reputation. Civ. Action No. 07-1724, 2008 WL 2996871 (W.D. Pa. July 31, 2008). Therein, Judge Fischer noted that sworn statements of other attorneys in the market are not helpful and are no more than "opinions." Id. at 5, citing, Williams v. City of Pittsburgh, 2000 U.S. Dist. LEXIS 6739, at *5 (W.D. Pa. 2000).

Defendants acknowledge that Mr. Walczak has been awarded $450 per hour in Codepink Women Peace v. U.S. Secret Service, 2010 WL 2196262 (W.D. Pa. June 1, 2010), but suggests that the case is distinguishable because, as the court noted, the work was compressed into a relatively short period of time while in this case there were no time constraints. (ECF No. 132, p. 4). Additionally, Defendants argue that there is no justification for a $50 increase in such a short period of time. Id. at 4-5.

In response, Mr. Walczak provided affidavits from four attorneys, Robert Cindrich, Tim O'Brien, Michael Malakoff, and Ellen Doyle, to support his position that $500 per hour is a ...


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