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Romanus Miles v. Alfred Elliot et al.

November 14, 2011

ROMANUS MILES
v.
ALFRED ELLIOT ET AL.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

On March 10, 2011, I entered an Order (Dkt. No. 83) granting plaintiff Romanus Miles' motion for sanctions against defendants to the extent that it sought an award of plaintiff's reasonable expenses, including attorneys' fees incurred in conjunction with his motion for sanctions (Dkt. No. 73), his motion to compel interrogatory answers (Dkt. No. 54), his motion to compel production of documents and things (Dkt. No. 50), the deposition of Christopher Lewis originally scheduled for July 21, 2010, the Rule 30(b)(6) deposition of the City of Philadelphia originally scheduled for October 5, 2010 and the Rule 30(b)(6) depositions of designees Cesare, Long and Prendergrast. As directed, on March 31, 2011, plaintiff filed an affidavit and supporting documents setting forth a request for $66,998.45 in expenses and costs. On April 15, 2011, defendants lodged objections to plaintiff's requested fees, challenging the reasonableness of the hourly rates charged by plaintiff's attorneys and the amount of attorney time expended in conjunction with the foregoing items.*fn1 On April 27, I ordered plaintiff to supplement the record with evidence to support the reasonableness of the requested hourly rates. Plaintiff's counsel filed a second affidavit on May 4, 2011. On May 5, 2001, defendants filed a response to plaintiff's counsel's supplemental affidavit in which they reasserted their previous objections.

I. Standard for Rule 37 Fee Awards

Rule 37 of the Federal Rules of Civil Procedure provides for an award of reasonable expenses, including reasonable attorneys' fees for certain discovery violations. See, e.g., Fed. R. Civ. P. 37(a)(5) (award of fees following motion to compel); Rule 37(d) (award of fees for failure to attend deposition). "The decision to impose sanctions for discovery violations, as well as any determination as to what sanctions are appropriate, are matters generally entrusted to the discretion of the district court." Barbee v. SEPTA, 323 Fed. App'x 159, 162 (3d Cir. 2009). A party seeking fees pursuant to Rule 37 bears the burden of showing its request is reasonable. Reynolds v. Univ. of Pa., No. 06-1237, 2010 WL 4187873, at *4 (E.D. Pa. Oct. 25, 2010), citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990). The lodestar formula, which multiplies by a reasonable hourly rate the number of hours reasonably expended, provides the starting point for determining reasonable attorneys' fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Where an "adverse party raises objections to [a] fee request, the court possesses considerable discretion to adjust the award in light of those objections." Loesch v. City of Phila., No. 05-0578, 2008 WL 2557429, at * 2 (E.D. Pa. Jun. 25, 2008), citing Rode, 892 F.2d at 1183. The "Court has an independent duty to satisfy itself that the [ ] fees requested are reasonable." Alphonso v. Pitney Bowes, Inc., 356 F. Supp. 2d 442, 460 (D.N.J. 2005); cf. Mosaid Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595, 597 (D.N.J .2004) (citations and internal quotation omitted) ("Although the calculation of attorneys' fees and costs is an inexact science, . . . the amount awarded must still be reasonable.").

II. Hourly Rates

Counsel for plaintiff contend that the attorney's fee calculation here should be based on the usual hourly rates they charge to fee-paying clients: in excess of $405 for Andrew C. Whitney, in excess of $300 for Kristin M. Hadgis and Lauren K. Silvestri, and in excess of $255.00 for Squire J. Servance. (Dkt. No. 92, ¶¶ 4-7.) "The party requesting fees has the burden of demonstrating the reasonableness of the fees by submitting evidence of the appropriate hourly rate." Aerogroup Int'l v. Ozburn-Hessey Logistics, LLC, No. 08-4217, 2010 WL 4746246, at *5 (D.N.J. Nov. 15, 2010), citing Washington v. Phila. Cnty. Ct. , 89 F.3d 1031, 1035 (3d Cir. 1996). "To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence -- in addition to the attorney's own affidavits -- that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); see also Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001), citing Rode, 892 F.2d at 1183 (citations omitted) (same). Once the party seeking fees has established a reasonable hourly rate, the opposing party may dispute the rate with appropriate evidence. Smith v. Phila. Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997).

The attorney's usual billing rate provides a starting point, but this rate is not dispositive.

Pub. Interest Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995). In practice, "fees charged often are based on the product of hours devoted to the representation multiplied by the lawyer's customary rate. But the fee usually is discussed with the client, may be negotiated, and it is the client who pays whether he wins or loses." Blum, 465 U.S. at 895 n.11. "The object in awarding a reasonable attorney's fee . . . is to give the lawyer what he would have gotten in the way of a fee in an arm's length negotiation, had one been feasible. In other words the object is to simulate the market where a direct market determination is infeasible." In re Cont'l Ill. Secs. Litig., 962 F.2d 566, 572 (7th Cir. 1992). Here, because counsel represent plaintiff on a pro bono basis, there has been no negotiation or discussion with their client as to their fees. C.f. Betancourt v. Giuliani, 325 F. Supp. 2d 330, 333 (S.D.N.Y. 2004) ("[T]hat the fees here were not actually charged by [the firm handling the matter on a pro bono basis] to any client suggests that the Court must take a closer look as to whether the hourly rates are reasonable."). Where a client is not a fee-paying client, the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation inform the Court's determination of the attorney's reasonable rate. See, e.g. Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 555 (7th Cir.1999), citing People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1310-12 (7th Cir. 1996) ("[I]f the district court is unable to determine the attorney's actual billing rate because, for example, the attorney has no fee-paying clients, then the district court should look to the next best evidence[:] . . . rates similarly experienced attorneys in the community charge paying clients for similar work and evidence of fee awards the attorney has received in similar cases.").

Citing to the hourly rates set forth in a 2010 survey of associate attorney billing rates in the National Law Journal, plaintiff's counsel assert that their requested hourly rates are in line with the hourly rate of "other quality corporate law firms in Philadelphia, such as Dechert, Ballard Spahr, Blank Rome, Cozen O'Connor, Duane Morris, Montgomery, McCracken, Walker & Rhoads, Pepper Hamilton and Saul Ewing." (Dkt. No. 92, ¶¶ 10-12.) In further support of their argument that their fees should be calculated by applying the hourly rates they charge to fee- paying clients, plaintiff's counsel set forth their experience in the second affidavit of counsel for plaintiff. Andrew C. Whitney graduated from law school in 2005, ordinarily represents corporations in intellectual property disputes and complex commercial litigation, successfully represented a plaintiff in another section 1983 action and currently represents a plaintiff in a Bivens action. (Dkt. No. 92, ¶ 4.) Attorneys Kristin M. Hadgis and Lauren K. Silvestri graduated from law school in 2008. (Dkt. No. 92, ¶¶ 5-6.) Each clerked for a judge on this Court for one year prior to joining Morgan Lewis in 2009. Id. Hadgis focuses her practice on products liability and financial services litigation. (Dkt. No. 92, ¶ 5.) Silvestri focuses her practice on complex commercial litigation and products liability litigation. (Dkt. No. 92, ¶ 6.) Squire J. Servance also graduated from law school in 2008. (Dkt. No. 92, ¶ 7.) He clerked for Judge Jerome A. Holmes of the U.S. Court of Appeals for the Tenth Circuit prior to joining Morgan Lewis in 2009. Id. He is an associate in the firm's intellectual property practice group. Id.

Although Whitney has represented another client in a section 1983 action, counsel for plaintiff have not provided evidence of the rate billed by Whitney, if any, for his services in that matter. Counsel for plaintiff also have not provided any evidence that Hadgis, Silvestri or Servance have specific experience with section 1983 litigation. Nor have they set forth any evidence of rates billed by others in their firm for handling similar civil rights matters. Further, plaintiff's counsel have not offered any additional evidence to demonstrate that their usual hourly rates fall within a range that is reasonable within this geographic area for the specific type of legal work at issue in this action. Absent any such evidence, I find that plaintiff's counsel have not shown that their usual hourly rates are the reasonable rates to be applied here. C.f. Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 208 (E.D.N.Y. 2007) (reducing the requested hourly rate where "no proof is offered that these attorneys were able to bill any other client for the kind of litigation services rendered on behalf of plaintiffs at the claimed rates nor have plaintiffs submitted affidavits from other attorneys who charge at comparable rates for comparable work").

Defendants contend that in determining the reasonable hourly rates to be applied in this case I should instead look to the rates awarded to attorneys who participate in the Prisoner Civil Rights Panel program in the Eastern District of Pennsylvania. Counsel for plaintiff were appointed to represent plaintiff as a member of the Panel program. Accordingly, defendants contend that the reasonable hourly rate in this case should be consistent with the dictates of the Prison Litigation Reform Act. Pursuant to the PLRA, "the 'reasonable' hourly rate for prisoner civil rights litigation cannot be 'an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18, for payment of court-appointed counsel.'" Hernandez v. Kalinowski, 146 F.3d 196, 201 (3d Cir. 1988), quoting 42 U.S.C. § 1997e(d)(3). Defendant contends that under this standard, the approved hourly rate for each of plaintiff's attorneys should be $187.50 per hour.

Counsel for plaintiff counter that the PLRA does not establish the reasonable rate to be applied to attorneys' fees awarded in connection with plaintiff's action, in which plaintiff asserts claims for civil rights violations occurring prior to his incarceration. In Hall v. Galie, No. 05-975, 2009 WL 722278, at * 7 (E.D. Pa. Mar. 17, 2009), my colleague Judge Pratter held that under the "whole act" rule, "PLRA limitations on attorney's fees do not apply to actions based exclusively upon pre-incarceration civil rights violations." Accordingly, while the PLRA limitations on attorneys' fees are not mandatory in this action, the rates billed by the community of attorneys participating in the Panel program and litigating matters similar to the matter at issue here informs my determination of the applicable reasonable hourly rate.

Having considered both plaintiff's and defendants' submissions, I conclude that the following hourly rates are reasonable: $305 for Andrew C. Whitney, $225 for Kristin M. Hadgis and ...


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