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Michael Mckenna, William Mckenna, and Raymond v. City of Philadelphia

October 25, 2012

MICHAEL MCKENNA, WILLIAM MCKENNA, AND RAYMOND CARNATION
v.
CITY OF PHILADELPHIA



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

Before the Court are applications for attorney's fees in a civil rights case brought against the City of Philadelphia by three former police officers. Submissions on the appropriate attorney's fees to award have come in from attorneys Brian Puricelli, Theodore Kravitz, and Annette Oakley, from the plaintiffs filing pro se, and from the defendant City. The Court will grant in part the fee requests of attorneys Puricelli, Kravitz, and Oakley, and deny the fee requests of Beth McKenna and Cynthia Palamone-McKenna.

I. Context

Because the fee applications at issue here come before the Court via an involved procedural history, before analyzing the petitions directly, a brief summary of the case and the fee petitions themselves is appropriate.

A. Background of the Case

The history of this case is reviewed here only in brief because the Court described the summary of events and procedural history of the litigation in detail in its Memorandum of Law describing why a new trial was not appropriate (Docket No. 307).*fn1 After an eight-day jury trial on the plaintiffs' claims for retaliation under Title VII, 42 U.S.C. § 2000e, et seq., the jury found in favor of all three plaintiffs and awarded non- pecuniary damages in the amount of $2,000,000 for Raymond Carnation, $3,000,000 for William McKenna, and $5,000,000 for Michael McKenna. After a subsequent evidentiary hearing, the Court awarded plaintiff Raymond Carnation back pay of $208,781. The Court then granted the City's motion to limit the jury verdict to $300,000 for each plaintiff under Title VII's statutory cap on non-pecuniary damages, 42 U.S.C. § 1981a(b)(3).

Accordingly, the Court entered a final judgment on July 24, 2009, awarding each plaintiff $300,000 in non-pecuniary damages and awarding Raymond Carnation $208,781 in back pay and $46,560 in pre-judgment interest on his back pay award. After trial and the entry of final judgment, on August 5, 2009, the plaintiffs filed "Plaintiff's Rule 15(b)(2) Motion to Amend the Pleading After Trial, and Motion to Enter Jury Award of Ten Million Dollars as a Pennsylvania Human Relations Claim Award and Final Judgment," (Docket No. 282). That motion argued that the Court should recognize termination claims for William and Michael McKenna and a PHRA claim for all plaintiffs, which would avoid the Title VII statutory cap. The Court denied that motion on August 25, 2009 (Docket No. 288), in an Order that noted the Court had previously addressed the substance of plaintiffs' arguments on those points in Orders dated May 15, 2007, and July 14, 2009.

On July 23, 2010, the plaintiffs filed a Second Amended Notice of Appeal (Docket No. 308) and on August 12, 2010, the City filed a Notice of Cross Appeal (Docket No. 311). The United States Court of Appeals for the Third Circuit denied both parties' appeals in August of 2011.*fn2 Accordingly, the Court's entry of final judgment remained unaltered.

B. History of the Fee Petitions

The parties' positions on the attorney's fees issues have evolved over time. The earliest petition for attorney's fees was filed by attorney Puricelli on May 19, 2008 (Docket No. 169), an updated petition was filed on May 28, 2009 (Docket No. 243), and a Supplemental Petition was filed by Puricelli on November 22, 2011 (Docket No. 334).

In the fee petitions prior to the Supplemental Petition, Puricelli sought fees on behalf of himself as well as his law partner (Thedore Kravitz), another attorney who assisted him with the case (Annette Oakley), and Cynthia Palamone-McKenna and Beth McKenna, who purportedly worked as legal assistants to Puricelli and are each married to one of the plaintiffs. On October 13, 2011, the plaintiffs filed pro se an Emergency Petition requesting a conference with the Court (Docket No. 321). At that conference, which the Court held on October 21, 2011, the plaintiffs explained that they were terminating Puricelli's representation of them and were concerned about receiving their judgment through Puricelli because of the disputes that had arisen between Puricelli and the plaintiffs. Specifically, Puricelli contended that the judgment should be disbursed through his law firm or placed in escrow because of an alleged contract that gave Puricelli discretion to accept either the Court awarded attorney's fees or forty percent of the total recovery, meaning attorney's fees combined with the judgment, as fees for his work in the case.*fn3

The plaintiffs disputed the validity of any such contract,*fn4 and conceded that their interest was solely in obtaining the judgment and that Puricelli would be entitled to any attorney's fees the Court awarded for his efforts.*fn5 In order to avoid being placed in the middle of an internal dispute between clients and their attorney, and in order to avoid further delays in the payment of a judgment to plaintiffs who had been litigating the case for years,*fn6 the Court ordered the City to pay the judgment to the plaintiffs directly and terminated Puricelli's representation of the plaintiffs, but explained that Puricelli could represent his own interests in the case regarding his fee petition.

After that conference with the Court, Puricelli filed his Supplemental Petition, in which he no longer asserted that Kravitz, Oakley, or either legal assistant was entitled to fees. Puricelli expressly mentioned his renunciation of fee claims for Kravitz and the two legal assistants in his petition, but removed the application for fees for Oakley without making any direct reference to doing so.

The pro se plaintiffs filed a response on January 19, 2012 (Docket No. 341), arguing that Puricelli had no authority to withdraw the prior fee petitions because his representation of the plaintiffs had terminated so the fee petitions of Kravitz, Oakley, and the legal assistants still remained before the Court. In addition, the pro se plaintiffs highlighted certain entries in the attorney's fee applications that they considered inaccurate. The defendant City submitted its Response to the Supplemental Fee Petition on January 30, 2012 (Docket No. 344), arguing that nobody except Puricelli should receive fees and that his fees should be significantly reduced.

Puricelli then submitted a reply on April 3, 2012 (Docket No. 360), arguing that Kravitz, Oakley, and the legal assistants could advocate on their own behalf for their fees but that his requested fees were justified.

Attorneys Kravitz and Oakley have since submitted filings to the court advocating for their respective fees. On April 5, 2012, Kravitz submitted a filing regarding his attorney's fees (Docket No. 361). On April 24, 2012, Oakley filed a Motion to Intervene that also laid out her defense of her original attorney's fee petition (Docket No. 363). The City responded to that motion on May 10, 2012 (Docket No. 369) and Oakley filed a reply on May 18, 2012 (Docket No. 373). Finally, on May 15, 2012, Puricelli submitted Plaintiffs' Supplemental Time for Award for Attorney Fees (Docket No. 372), to which the city filed an objection on May 25, 2012 (Docket No. 374). Puricelli's filing was unauthorized because it was filed without leave of the Court after the extensive briefing on the fee petitions had closed. In addition, Puricelli's time report in this latest filing consists of tasks related to his disputes with his ex-clients and former colleagues. Accordingly, for both procedural and substantive reasons, the Court disallows Puricelli's May 2012 Supplemental Filing and considers the November 2011 Supplemental Petition the operative fee petition for Puricelli.

II. Analysis

Given the history of the fee petitions described above, although the Court considers the November 2011 Supplemental Petition to be the operative submission with respect to Puricelli's fee request, the Court considers the time entries submitted in the previous fee petitions as the operative requests for Kravitz, Oakley, and the two legal assistants.

As a threshold matter, the withdrawal or omission of the fee applications of the other parties in Puricelli's Supplemental Petition is not binding on those other parties given that Puricelli's representation of the plaintiffs had been terminated by that time.

Although redundancy is a concern in assessing fee petitions, the Court considers it reasonable that three attorneys would seek fees for presenting the plaintiffs' case. The attorneys conducted an eight-day jury trial and obtained a favorable verdict for each of the three plaintiffs. It also bears mentioning that the City had multiple attorneys working on its behalf during the trial and otherwise.

A. Legal Standard

Plaintiffs' right to attorney's fees derives from 42 U.S.C. §2000e-5(k), which permits a district court, in its discretion, to award the "prevailing party" in a Title VII suit "a reasonable attorney's fee." The standards governing such awards are the same as those for awards governed by 42 U.S.C. §1988, which similarly provides that prevailing parties in civil rights cases may receive "a reasonable attorney's fee." See Hensley v. Eckerhart, 461 US 424, 433 n.7 (1983).

A reasonable attorney fee is one that is, "adequate to attract competent counsel, but which do[es] not produce windfalls to attorneys." Pub. Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995).

Here, the plaintiffs are the prevailing party on their Title VII claims, although their efforts to secure a judgment for damages above the statutory cap of Title VII were largely unsuccessful. To decide the appropriate awards, the next step is to determine what the lodestar is for each by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley at 433 (1983). The petitioner must submit verified itemization of the hours worked at the rates claimed.

Id.

The defendant, if opposing the award, has the burden of challenging the reasonableness of the requested fee. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The District Court thereafter has considerable discretion to adjust the fee award in light of those objections. Id.

When reviewing fee applications, the Court conducts "a thorough and searching analysis." Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 703 (3d Cir. 2005). B. Kravitz and Oakley Awards Because the fee petitions for Mr. Kravitz and Ms. Oakley were straightforward in that their requested hourly rates were not disputed and their time entries referred to work done on the case either before or during the trial, the Court begins by calculating the awards for those attorneys before turning to the more complex issues raised by Mr. Puricelli's fee petition.

With respect to Mr. Kravitz, the Court awards $15,900. This figure was calculated by multiplying 63.3 hours by Kravitz's rate of $250/hour. The Court excised 6.3 hours from Kravitz's time entries that were dated August of 2006 because the case had not yet been remanded back to the Court from the Third Circuit at that point.

With respect to Ms. Oakley, the Court awards $24,050. This figure was calculated by multiplying 120.25 hours by her $200 hourly rate. Ms. Oakley's time entries claim 321.30 hours, but the Court excised 198.75 hours that relate to the preparation of a timeline or flowchart that Ms. Oakley was preparing but was never presented at trial*fn7 and another 2.3 hours because Ms. Oakley billed 9 hours for a meeting with Puricelli that Puricelli's entries list as lasting only 6.7 hours.

The Court considered Ms. Oakley's fee petition and the arguments she made in her Motion to Intervene (Docket No. 363) as well as her Reply (Docket No. 373) to the City's Opposition to her Motion (Docket No. 369). This Memorandum and Order resolves the outstanding fee petition issues in the case. Accordingly, Ms. Oakley's Motion to Intervene will be denied as moot.

C. Fee Petitions of Cynthia Palamone-McKenna and Beth

McKenna

With respect to the fee petitions of Cynthia Palamone- McKenna and Beth McKenna, the Court will not award either of them fees. Although both fee petitions are submitted as petitions for fees for work performed as legal assistants, according to her own affidavit Beth McKenna's background is as a court reporter and notary public and not as a legal assistant, and the time entries for both women show the majority of their time was spent proofreading the plaintiffs' submissions to the Court. As both the City and Puricelli himself have noted, there seems to be no case law supporting the notion that the time spent by proofreading personnel can be charged to the defendant as attorney's fees.

Moreover, the fact that Cynthia Palamone-McKenna and Beth McKenna are the wives of two of the plaintiffs gives their work a different character than if they had been disinterested employees hired by Puricelli to assist with the case. Although the Court does not doubt that both women contributed to the plaintiffs' case, that work was done in a role more akin to an interested client or volunteer than as a professional legal assistant. Both Cynthia Palamone-McKenna and Beth McKenna included attending settlement conferences and the trial in their time entries. Such activities are characteristic of an interested party and not ones that a professional legal assistant would be included in.

Generally, pro se litigants cannot recover attorneys' fees. See Kay v. Ehrler, 499 U.S. 432, 438 (1991); Pitts v. Vaughn, 679 F.2d 311, 313 (3d Cir. 1982). Because the role that Cynthia Palamone-McKenna and Beth McKenna played in this case is more naturally analogized to that of a pro se litigant than a professional paralegal, the Court finds that they cannot recover attorney's fees for their efforts on behalf of their husbands' case.

Indeed, a general principle when considering attorney's fees is that "hours that would not generally be billed to one's own client are not properly billed to an adversary." Pub. Int. Research Group of N.J., Inc., 51 F.3d at 1188. Just as Cynthia Palamone-McKenna and Beth McKenna would not consider their husbands obliged to pay Mr. Puricelli for their time spent on the case, neither will the City be held responsible for compensating them in the form of attorney's fees. D. Puricelli Award Puricelli's Supplemental Petition was much more extensive and raised a number of lodestar issues not present in the fee petitions for Kravitz and Oakley. The nature of Puricelli's fee supplement raises three issues in particular:

unsuccessful claims, unnecessary or excessive work, and the appropriate hourly rate. Each of these issues is discussed below. Because of the length of Puricelli's fee petition, the Court will describe in general the principles it applied to these issues and include in an Appendix a table that lists the Court's conclusion on each of Puricelli's time entries.

1. Unsuccessful claims

Unlike that of Kravitz and Oakley, Puricelli's fee petition includes a number of entries for work done after the conclusion of the trial. That work was largely designed to avoid the statutory cap on Title VII claims, but ultimately the plaintiffs were only awarded $300,000 each along with backpay for Mr. Carnation. Thus, much of Puricelli's time after the trial was spent on unsuccessful attempts to avoid the statutory cap that reduced the original jury award.

The United States Court of Appeals for the Third Circuit, interpreting a Supreme Court precedent on the point, has held that fees should not be awarded for time that would not have been spent if the unsuccessful claim had not been pursued. Lanni v. New Jersey, 259 F.3d 146, 151 (3d Cir. 2001)("The District Court's downward adjustment was made under the rubric of Hensley v. Eckerhart, 461 U.S. 424, 433-35 (1983), which teaches that where a plaintiff prevails on one or more claims but not on others, fees shall not be awarded for time that would not have been spent had the unsuccessful claims not been pursued. The Hensley Court termed this a downward adjustment for 'limited success.' Id. at 436-37 . . . Accordingly, we find no abuse of discretion in connection with the Hensley reduction of the lodestar for limited success.").

Here, Puricelli's post-trial efforts to increase the plaintiffs' judgment represents time that would not have been spent if the unsuccessful claims in the form of back pay and Pennsylvania Human Relations Act ("PHRA") claims had not been pursued.

Those efforts included the plaintiff's appeal to the Third Circuit, although the Court does award Puricelli for his time spent defending against the defendant City's cross-appeal to the Third Circuit. For time entries that reflected efforts to both bring the appeal and defend against the City's appeal, the Court excises half of the time and grants an award for the other half.

Accordingly, the Court excises the following time entries for work done on those tasks when calculating Puricelli's award.

Time Spent on Unsuccessful Claims

Date of Description Time Comments Service Claimed

12/15/06 Start reply to 3.4 W&M

City response [to Termination motion to amend complaint]

12/18/06 Edit Reply to 1.2 W&M

City response Termination

12/18/06 Conf. w. TMK re: 0.5 W&M reply Termination

12/22/06 Edit convert & 2.1 W&M

File reply to Termination City response re: mo Amend

5/16/07 Order n memo in 0.4 W&M

(ECF) re: mo amd- Termination denied copy & distrib to client

5/17/07 Legal Research & 4.4 W&M file review for Termination mo reconsid/ stay

5/18/07 Draft mo recon/ 12.6 W&M omnibus mo Termination

5/19/07 Review draft stay 2.3 W&M mo & reconsid Termination w/TMK

5/19/07 Send draft to 0.3 W&M clients for Termination review comments

5/22/07 Client mtg re 3.2 W&M comments Termination

5/22/07 Edit motion 2.3 W&M

Termination

5/23/07 Final Edit, 0.5 W&M convert to pdf & Termination file omnibus mo

6/2/07 Tx from BM re: 0.1 W&M update-omnibus Termination motion

6/3/07 Tx from MM & RC 0.2 W&M re: update on Termination omnibus motion

6/11/07 City Response to 0.4 W&M omnibus motion in Termination ECF, copy & distribute to clients

6/12/07 Review response 0.5 W&M

6/12/07 Review response 0.3 W&M w/TMK Termination

6/12/07 Client tel conf 0.7 W&M meeting re: City Termination response & any reply

6/14/07 Draft reply & 2.4 W&M legal research Termination for reply

6/17/07 Edit draft reply 3.2 W&M

6/18/07 Send draft reply 0.2 W&M to client & TMK Termination

6/19/07 Client conference 1.1 W&M re: edits to Termination reply

6/19/07 Review client & 0.5 W&M

TMK changes w/TMK Termination

6/20/07 Final read/edit; 1.3 W&M convert & file Termination

Termination

Termination

11/28/07 Order/Decision in 0.6 W&M

(ECF), copy, send Termination & review

12/2/07 Draft second 2.3 W&M motion for Termination reconsideration

12/3/07 Send draft mo to 0.2 W&M client for review Termination & input

12/3/07 Send second 0.1 W&M motion to TNK Termination [sic] for review

12/4/07 Mtg with clinet & 0.5 W&M

TMK re: reviews Termination for second mo reconsideration

12/5/07 Edit 0.7 W&M reconsideration Termination motion

12/7/07 Conform mo to PDF 0.2 W&M

& File ECF second Termination mo for reconsideration

12/13/07 Legal research 6.1 W&M re: mandamus n Termination Draft Mandamus petition

12/14/07 Draft mandamus 10.5 W&M petition, send to Termination clients

12/15/07 Client input on 2.3 W&M mandamus Termination received; edit petition

12/16/07 Meet w/TMK re: 0.3 W&M edits for Termination mandamus

12/17/07 Marshall exhibits 1.6 W&M for Pet mandamus Termination

12/19/07 Pet mandamus to 0.3 W&M clients for Termination review

12/20/07 Edit, copy & file 2.5 W&M

3rd Cir. (450.00) Termination for mandamus

1/29/08 Mandamus decision 0.3 W&M in [sic] denied, Termination advise clients

5/1/08 Prep tird [sic] 1.7 W&M mo limine Termination

5/1/08 Send 3rd limine 0.2 W&M to liens [sic] & Termination TMK & AO or [sic] review

5/1/08 Meet with TMK & 0.3 W&M

AO re: 3rd Limine Termination mo

5/1/08 Edits to 3rd 0.6 W&M

Limine Mo Termination

5/4/08 Edit 3rd Limine 0.6 W&M mo, conform & Termination file

5/19/08 Client contact WM 0.5 W re: case status & termination next hearing, B/F pay amend matter

5/19/08 Client Contact MM 0.3 M re: case status & termination next hearing, $issue of B/F pay

5/21/08 Legal research 1.2 PHRA mold award to state damage award

5/21/08 Draft motion & 2.3 PHRA

MOL for molding award

5/21/08 Cir draft of 0.6 PHRA reply & mo/mol to client for comment, review wiht client

5/22/08 Edit reply & 0.7 PHRA mo/mol with clients & TMK comments

5/22/08 Email WM re: amd 0.01 W mo for sick chk termination

5/22/08 Draft mo to amend 4.5 W add term for WM termination

5/22/08 Conf w/client & 0.3 W

TMK for review on termination mo amd recon

5/22/08 Make changes to 0.8 W mo & recon termination

5/22/08 Conform drafts 0.3 W

(mos & mols) to termination PDF & file

6/9/08 Recv & Read City 1.3 PHRA response to PHRA Issue

6/9/08 Client 1.6 PHRA conference, by phone separate, go over City response

6/11/08 Legal research, 3.4 PHRA review D law, do own research to support

6/12/08 Draft Reply 9.7 PHRA

6/13/08 Draft Edit 4.3 PHRA

6/15/08 Client review, 1.2 PHRA conference re: draft reply to PRHAC issue

6/16/08 Edit reply 3.6 PHRA w/client & TMK comment, file review with exhibits

6/17/08 Final Edit, 2.7 PHRA review & write to reply PHRA issue, conform & file

10/28/08 Mo for sanction, 8.8 W&M opp discovery & termination, City mo to dz RC PHRA claims

10/29/08 Edit mo reply, 3.4 W&M send to clerk CP termination, for proofing PHRA

10/30/08 Review edits & 0.3 W&M proof termination,

PHRA

10/31/08 Final edit & 0.5 W&M review, conform & termination, file Response PHRA

11/17/08 City response to 0.5 Entry of

Pltf filings, judgment, review W&M termination, PHRA

11/17/08 Meet with AO re: 0.8 W&M reply, email termination, reply to clients PHRA & discuss with all clients

11/17/08 Assign reply MOL 0.1 W&M to AO termination,

PHRA

11/18/08 Review AO reply 0.4 W&M

MOL & send to CP termination, for proofing PHRA

11/19/08 Review edits & 0.2 W&M proofing termination,

PHRA

11/19/08 Assign AO to 0.1 W&M edits for mol termination,

PHRA

11/20/08 Review edits 0.2 W&M conform & file termination,

PHRA

2/10/09 Client contact 0.2 W re: Ray Ss dock termination Bill damages

2/19/09 Review 02/25/01 0.5 W transcript on termination term issue in WMMC case

2/20/09 Legal research 2.3 W&M re: term amend & termination prej/delay issues to facts here

2/23/09 Review prior 2.1 W&M orders, memos & termination trans (9/29/01 argument) re: front/back pay all

6/5/09 Conform 0.6 W&M supplemental termination, response to City PHRA post hearing brief

6/20/09 Notice in, via 0.2 PHRA

ECF, from city, review & advise clients

6/21/09 Read notice & 2.4 PHRA decision, legal research on cases

6/21/09 Client contact 1.3 PHRA

(all there) re: Notice & decision discussed, plus reply

6/22/09 Review def 3.4 PHRA documents/trial books & attachment to motion

6/22/09 Draft started for 4.3 PHRA reply to notice

6/22/09 Send draft to be 0.1 PHRA reviewed & edited (Beth & Cynthia)

6/22/09 Draft review 0.3 PHRA returned & reviewed

6/23/09 Edit draft & 2.1 PHRA resent for review, proof & edits (to Cynthia & Beth)

6/23/09 Edit/proofing 0.4 PHRA returned & reviewed, Conformed to PDF, scan exhibits, file

6/26/09 ECF in from City, 2.1 PHRA review memo, review case law cited

6/27/09 Draft reply to 6.3 PHRA

City memo on exhaustion, EEOC & Discipline matters

6/27/09 Forward draft to 0.1 PHRA client for comments & to CP & BM for edits

6/29/09 Edits & comments 0.9 PHRA back, edit draft with comment from client

6/29/09 Send draft edited 0.1 PHRA to clients for review & to CY & BM for proofing

6/30/09 Received proofing 1.6 PHRA

& comments, edit reply to add additional argument

7/1/09 Review Edits from 0.5 PHRA

CP, conform to PDF & file w/Ct through ECF

8/2/09 Meet clients re: 5.5 Entry of post trial judgment, motions & appeal; W&M draft post trial termination, motions PHRA

8/2/09 Legal research, 3.2 W&M re 15B mo & more termination, time for PT MOL PHRA

8/3/09 Start 15b Mo 6.8 W&M termination, PHRA

8/4/09 Edit mo 15b 9.7 W&M termination, PHRA

8/4/09 Edit 15b mo & 2.5 W&M send for termination, proofreading PHRA (Cynth & Beth)

8/5/09 Review proofing 3.5 W&M

(Cynthia & Beth) termination, on 15b and modify PHRA (edit) & file

8/6/09 Work on post- 4.2 Entry of trial Mo. judgment,

W&M termination, PHRA

Edit, File Post termination, trial mo PHRA

8/16/09 Draft memo with 10.8 Entry of

CP & BM judgment,

W&M termination, PHRA

8/10/09 Final review & 2.1 W&M

8/17/09 Edit memo & 12.0 Entry of research law judgment,

W&M termination, PHRA

8/19/09 Review Ct 9.4 Entry of transcripts, edit judgment, MOL, send draft W&M to clients termination,

PHRA

8/20/09 Clerks office to 3.5 Entry of see file re: judgment, minutes & ev Ct W&M wants about PAHRA termination,

PHRA

8/20/09 Confer with 2.5 Entry of clients & staff judgment, re: MOL, 1997 W&M PAHRA Amd case termination,

PHRA

8/21/09 BM to Clerk ofc 0.5 W&M review file - termination, receive status PHRA report

8/21/09 Praecipe, re: 0.6 W&M

Pending amd mo - termination, no opp by city PHRA

8/21/09 Review client 8.7 Entry of suggs, edit, ret judgment, to clients for W&M proof by CP & BM termination,

PHRA

8/22/09 Review file, 12.9 Entry of docket & court judgment, transcripts, edit W&M memo termination,

PHRA

8/23/09 Client conf re: 0.7 Entry of

MOL to be filed judgment, 8/24 W&M termination, PHRA

8/24/09 Edit Prof back, 6.1 Entry of review edit on judgment, Memo, conform to W&M PDF & file termination,

PHRA

8/24/09 City opp to Amd 0.4 Entry of

(city) & City judgment, posttrial MOL in W&M ECF - send to termination, clients PHRA

8/25/09 Prepare & file 0.8 Entry of

NOA & Amended judgment, Notice of Appeal W&M termination, PHRA

8/25/09 ECF in from 0.1 Entry of

Clerk, Re: Notice judgment, of Appeal W&M termination, PHRA

9/23/09 Opening papers, 1.6 Entry of

3c. prepare judgment, issues & opening W&M papers termination,

PHRA

9/28/09 ECF Mess in from 0.1 Entry of clerk, re: Appeal judgment, docket, review W&M termination, PHRA

10/7/09 Prepare 0.2 Entry of

Transcript Order judgment, form W&M termination, PHRA

12/09 Stay Appeal Order 0.1 Entry of review & inform judgment, client W&M termination, PHRA

1/28/10 ECF in re: Stay 0.1 Entry of appeal order from judgment, 3c W&M termination, PHRA

1/28/10 Advise client of 0.3 Entry of stay order judgment,

W&M termination, PHRA

7/23/10 2nd Amended 0.3 Entry of

Notice of Appeal judgment, prepared & filed W&M termination, PHRA

8/30/09 Briefing schedule 0.3 Entry of (Appeal) in, review & judgment, inform clients W&M termination, PHRA

9/19/09 Read DC Decision 6.9 Entry of (Appeal) on PT motoins; judgment, read City's PT W&M Motion termination,

PHRA

9/20/09 Electronic Legal 4.2 Entry of (Appeal) Research of law, judgment, current status, W&M review Court's termination, law PHRA

9/21/09 Conform Form of 3.6 Entry of (Appeal) Brief - per ct judgment, rule - create W&M brief outline termination,

PHRA

9/21/09 Draft Brief 12.6 Entry of (Appeal) judgment,

W&M termination, PHRA

9/26/09 Redline back from 2.1 Entry of (Appeal) Beth, review judgment,

W&M termination, PHRA

10/1/09 Edit Draft/Brief 7.8 Entry of (Appeal) judgment,

W&M termination, PHRA

10/7/09 Opening papers, 1.2 Entry of (Appeal) prepared, judgment,

Marshall orders, W&M Decl. done & termination, papers filed PHRA

10/15/09 Marshall Joint 4.8 Entry of (Appeal) Appendix judgment, documents W&M termination, PHRA

10/16/09 Continue Marshall 3.5 Entry of (Appeal) documents judgment,

W&M termination, PHRA

10/19/09 Organize Joint 5.9 Entry of (Appeal) Appendix for judgment, numbering W&M termination, PHRA

10/20/09 Prepare cover & 2.6 Entry of (Appeal) index for joint judgment, appendix, conform W&M master JA termination,

PHRA

10/22/09 Joint Appendix to 0.8 Entry of (Appeal) printer judgment,

W&M termination, PHRA

10/27/09 Edit draft 5.6 Entry of (Appeal) judgment,

W&M termination, PHRA

11/1/09 Brief work, draft 12.6 Entry of (Appeal) judgment,

W&M termination, PHRA

11/3/09 Brief work draft 9.0 Entry of (Appeal) judgment,

W&M termination, PHRA

11/4/09 Brief work draft 10.4 Entry of (Appeal) judgment,

W&M termination, PHRA

11/7/09 Edit draft 3.4 Entry of (Appeal) judgment,

W&M termination, PHRA

11/8/09 Edit Brief & send 6.7 Entry of (Appeal) to Alice judgment,

W&M termination, PHRA

11/10/09 Return from 2.3 Entry of (Appeal) Alice, review judgment,

Edits & add W&M termination, PHRA

11/10/09 Brief to proofer 0.1 Entry of (Appeal) judgment,

W&M termination, PHRA

11/11/09 Review 1.7 Entry of (Appeal) proofs/edit judgment,

W&M termination, PHRA

11/11/09 Check current 2.0 Entry of (Appeal) law, print sign judgment,

W&M termination, PHRA

11/11/09 Brief to 0.9 Entry of (Appeal) printer/binder judgment,

W&M termination, PHRA

11/12/09 Review brief 2.1 Entry of (Appeal) back, prepare judgment, electronic brief W&M termination, PHRA

11/12/09 Scan JA 4.2 Entry of (Appeal) judgment,

W&M termination, PHRA

11/12/09 Electronic 0.9 Entry of (Appeal) filings brief & judgment, appendix, service W&M to brief on Ct. & termination, City PHRA

1/6/10 Printer binding 2.7 Entry of (Appeal) cost reprint Vol judgment,

5- deliver by W&M hand termination,

PHRA

2/1/11 Outline for 1.7 Entry of (Appeal) issues & Reply judgment,

Brief (step 3 W&M brief) termination,

PHRA

2/1/11 Draft step three 4.1 x Entry of (Appeal) brief .5 = judgment,

2.05 W&M termination, PHRA

2/2/11 Draft step three 3.2 x Entry of (Appeal) brief .5 = judgment,

1.6 W&M termination, PHRA

2/3/11 Draft work on 2.7 x Entry of (Appeal) step three brief .5 = judgment,

1.35 W&M termination, PHRA

2/7/11 Edit draft step 8.4 x Entry of (Appeal) three .5 = judgment,

4.2 W&M termination, PHRA

2/7/11 Sent step three 0.2 x Entry of (Appeal) brief for .5 = judgment, proofing 0.1 W&M termination, PHRA

2/10/11 Proof back, 0.4 x Entry of review .5 = judgment,

0.2 W&M termination, PHRA

2/10/11 Edit, check law, 1.4 x Entry of (Appeal) printsign, send .5 = judgment, to printers 0.7 W&M termination, PHRA

2/12/11 Conform step 0.7 x Entry of (Appeal) three, PDF, file .5 = judgment, step 3 brief 0.35 W&M termination, PHRA

7/9/11 Prep for argument 4.6 x Entry of (Appeal) .5 = judgment,

2.8 W&M termination, PHRA

7/10/11 Prep for argument 2.3 x Entry of (Appeal) .5 = judgment,

1.15 W&M termination, PHRA

7/11/11 Argument portal 6.3 x Entry of (Appeal) to portal cost - .5 = judgment,

Train $11.50 3.15 W&M termination, PHRA

8/17/11 Decision 0.6 x Entry of (Appeal) .5 = judgment,

0.3 W&M termination, PHRA

8/17/11 Client call on 0.4 x Entry of (Appeal) decision .5 = judgment,

0.2 W&M termination, PHRA

8/17/11 Send form of 0.2 Entry of (Appeal) rehearing to judgment, client W&M termination, PHRA

9/7/11 Edit Rehearing 1.4 Entry of (Appeal) Petition, conform judgment, add law & file W&M termination, PHRA

9/14/11 Decision in on 0.2 Entry of (Appeal) rehearing, inform judgment, clients W&M termination, PHRA

9/21/11 Mandate/Judgment 0.1 Entry of (Appeal) in judgment,

W&M termination, PHRA

Total Time 414.26 Excised as Unsuccessful

2. Adjustments for unnecessary or excessive work The Supreme Court has instructed that it is proper to exclude from the lodestar calculation all hours that were not "reasonably expended." Hensley, 461 U.S. at 434, quoting S. Rep. No. 94-1011, p. 6 (1976). These include hours that are "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. See also, McKenna v. City of Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009) ("Hensley instructs that courts are to exclude from the determination of the lodestar any hours not reasonably expended. Hours subject to exclusion under Hensley include those deemed excessive, redundant, or otherwise unnecessary." (internal citations and quotations omitted)). Here, the Court finds that several of Puricelli's time entries reflect hours that are excessive or redundant.

The plaintiff filed numerous motions for reconsideration that essentially tried to re-litigate settled issues, such as the judgments limiting the jury award. As noted in the Appendix, such time entries are excised on both the grounds that they were excessive and because they were unsuccessful.

The plaintiffs also brought a series of frivolous motions during the case. Examples of such motions include ones that alleged misconduct by the City without any basis and others that quoted a seemingly random IRS employees to make a misguided point about the City's pursuit of tax information for Mr. Carnation. The City already spent time responding to these unnecessary motions and should not now be responsible for compensating Puricelli for the hours he spent working on them. Accordingly, the Court excises those time entries as excessive and redundant.

Finally, the Court recognizes that the pro se plaintiffs dispute a handful of Puricelli's entries where he billed time for things like client meetings the plaintiffs contend did not occur. Although the Court appreciates the pro se plaintiffs' views, the Court accepts Puricelli's entries as reflecting time he actually worked unless there is a discrepancy with court records. Entries with such discrepancies, which include entries dated before the case was remanded to this Court and time entries related to a court conference that was not scheduled, will be excised by the Court as excessive.

The following table lists the entries the Court excises as for being excessive. The entries listed in italics are also excluded on the basis that the work related to claims that were unsuccessful.

Time Excised as Excessive

Date of Description Time Comments Service Claimed

8/11/06 Client WM 4.8 Pre-remand, conferences not atty

8/11/06 Meet w/Ted 1.6 Pre-remand,

Kravitz not atty (partner) re case in

8/12/06 Review Doc 12.9 Pre-remand, not atty

8/13/06 Review Doc 10.7 Pre-remand, not atty

8/14/06 Review Doc 10.1 Pre-remand, not atty

8/15/06 Review Doc 8.3 Pre-remand, not atty

8/16/06 Review Doc 4.1 Pre-remand, not atty

8/18/06 Meet w/TMK 2.5 Pre-remand, re review of not atty doc

8/19/06 Meet 5.3 Pre-remand, w/Michael not atty McKenna

8/19/06 Meet TMK re: 3.7 Pre-remand,

2d client, not atty pos conflict a trial issues

8/19/06 Review Doc 14.8 Pre-remand, not atty

8/20/06 Review Doc 9.7 Pre-remand, not atty

8/24/06 Review Doc 8.2 Pre-remand, not atty

8/25/06 Review Doc 11.4 Pre-remand, not atty

8/26/06 Meet w/Ray 4.9 Pre-remand,

Carnation not atty

8/27/06 Review Doc 5.8 Pre-remand, not atty

8/28/06 Review Doc 6.6 Pre-remand, not atty

8/29/06 Review 3rd 1.2 Pre-remand,

Cir decision not atty memorandum

9/11/06 Prep 0.3 Different subpoena lawsuit paperwork

12/2/07 Draft 2nd 2.3 Multiple

Motion for reconsid. reconsiderat requests ion

12/3/07 Send draft 0.2 Multiple mo to client reconsid. for review & requests input

12/3/07 Send 2nd 0.1 Multiple motion to reconsid. TMK for requests review

12/4/07 Mtg w/client 0.5 Multiple

& TMK re: reconsid. reviews for requests

2nd mo reonsiderati on

12/5/07 Edit 0.7 Multiple reconsiderat reconsid. ion motion requests

12/7/07 Conform mo 0.2 Multiple to PDF & reconsid. File ECF 2nd requests mo for reconsiderat ion

12/12/07 Order in re: 0.3 Multiple

2nd mo reconsid. reconsiderat requests ion, review & send to clients & TMK

12/13/07 Post mtg 1.4 Excessive/ w/clients in unnecessary office re: conf call & mandamus

12/13/07 Legal 6.1 Excessive/ research re: unnecessary mandamus & draft Mandamus petition

12/14/07 Draft 10.5 Excessive/ mandamus unnecessary petition, send to clients

12/15/07 Client input 2.3 Excessive/ on mandamus unnecessary received, edit petition

12/16/07 Meet w/TMK 0.3 Excessive/ re: edits unnecessary for mandamus

12/17/07 Marshall 1.6 Excessive/ exhibits for unnecessary Pet mandamus

12/19/07 Pet mandamus 0.3 Excessive/ to clients unnecessary for review

12/20/07 Edit, copy & 2.5 Excessive/ file 3rd Cir. unnecessary for mandamus

1/29/08 Mandamus 0.3 Excessive/ decision unnecessary denied; advise clients

2/23/08 Prepare for 1.9 Docket shows final pretr. no conf. conf.

2/24/08 Final 5.3 Docket shows pretrial no conf. conf.

5/1/08 Prep tird 1.7 Multiple

[sic] mo reconsid. limine requests

5/1/08 Send 3rd 0.2 Multiple limine to reconsid. clients & requests TMK & AO for review

5/1/08 Meet w/TMK & 0.3 Multiple

AO re: 3rd reconsid. limine requests motion

5/1/08 Edits to 3rd 0.6 Multiple

Limine Mo reconsid. requests

5/4/08 Edits to 3rd 0.6 Multiple

Limine Mo reconsid. requests

5/22/08 Email WM re: 0.01 Multiple amd mo for reconsid. sick chk requests

5/22/08 Draft mo to 4.5 Multiple amend add reconsid. term for WM requests

5/22/08 Conf 0.3 Multiple w/client & reconsid. TMK for requests review on mo and recon

5/22/08 Make changes 0.8 Multiple to mo amd reconsid. recon requests

5/22/08 Conform 0.3 Multiple drafts (mos reconsid. & mols) to requests PDF & file

7/10/08 Draft 6.9 Unnecessary,

Motion, frivolous Declarations (IRS discovery issues)

7/10/08 Tx from 0.4 Unnecessary,

RC&WM & frivolous email from (IRS CP re IRS discovery visit issues)

7/11/08 Meet w/RC 1.2 Unnecessary, re: IRS frivolous visit & Dec (IRS discovery issues)

7/12/08 Edit Motion 6.9 Unnecessary,

& Draft MOL frivolous

(IRS discovery issues)

7/13/08 Review edit 0.4 Unnecessary, by clients, frivolous TMK & CP (IRS edit MOL, MO discovery issues)

7/13/08 Conduct 4.4 Unnecessary, legal frivolous research & (IRS edit MO discovery issues)

7/14/08 Final review 2.8 Unnecessary,

& edit of frivolous MO, MOL & (IRS conform discovery Exhibits issues)

7/14/08 File MO, MOL 0.2 Unnecessary,

& exhs, ECF frivolous Receipt to (IRS file discovery issues)

7/14/08 Dec from WM 0.3 Unnecessary,

McK frivolous

(IRS discovery issues)

7/31/08 Mo for 0.7 Unnecessary, sanction frivolous from City, (IRS review discovery issues)

7/31/08 Call each 0.8 Unnecessary, client frivolous advised each (IRS of sanction discovery discuss issues) w/each

7/31/08 Check law, 0.7 Unnecessary, legal frivolous research, & (IRS draft Reply discovery to Response issues)

8/13/08 Legal 0.2 Unnecessary,

Research frivolous (assign AO) (IRS discovery issues)

8/13/08 Legal 3.5 Unnecessary, research by frivolous AO (IRS discovery issues)

8/14/08 Conf AO re 0.2 Unnecessary, legal frivolous research (IRS result & discovery assign draft issues) reply

8/15/08 Review 1.3 Unnecessary, draft, frivolous forward to (IRS clerk for discovery proofing issues)

8/16/08 Review edits 0.5 Unnecessary, by clerk CP frivolous

(IRS discovery issues)

8/16/08 AO final 2.3 Unnecessary, write frivolous

(IRS discovery issues)

8/16/08 Meet w/AO, 0.2 Unnecessary, assign final frivolous write for (IRS reply discovery issues)

8/17/08 Review final 1.1 Unnecessary, write, frivolous conform & (IRS file discovery issues)

8/22/08 ECF in from 0.7 Unnecessary,

City re: frivolous response to (IRS Reply, discovery review issues)

8/22/08 Meet w/AO 0.4 Unnecessary, re: reply by frivolous City, call (IRS clients & discovery email copies issues)

10/27/08 Prep & send 0.3 Unnecessary, request frivolous conference (IRS made to ct discovery issues)

10/28/08 Mo for 8.8 Multiple sanction, reconsid. opp requests discovery & City mo to dz RC claim

10/29/08 Edit mo 3.4 Multiple reply, send reconsid. to clerk CP requests for proofing

10/30/08 Review edits 0.3 Multiple

& proof reconsid. requests

10/31/08 Final edit & 0.5 Multiple review, reconsid. conform & requests file Response

11/7/08 City reply 0.3 Unnecessary, brief to frivolous Pltf mo (IRS discovery & discovery sanction, issues) reviewed

11/7/08 Email reply 0.1 Unnecessary, city reply frivolous to clients (IRS discovery issues)

11/8/08 Discuss city 1.3 Unnecessary, reply w/all frivolous clients (IRS discovery issues)

11/8/08 Discuss City 0.2 Unnecessary, reply w/AO frivolous re: check (IRS law discovery issues)

11/8/08 AO legal 1.2 Unnecessary, research frivolous

(IRS discovery issues)

11/9/08 Meet w/AO 0.3 Unnecessary, re: research frivolous result (IRS discovery issues)

11/9/08 Assign memo 0.2 Unnecessary, re sanction frivolous discovery, (IRS etc. discovery issues)

11/11/08 Memo to CP 0.1 Unnecessary, for proofing frivolous re discovery (IRS ...


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