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Sixth Angel Shepherd Rescue, Inc. v. Bengal

United States District Court, Third Circuit

September 23, 2013

SIXTH ANGEL SHEPHERD RESCUE, INC., et al., Plaintiffs,
v.
GEORGE BENGAL, et al., Defendants.

MEMORANDUM

BERLE M. SCHILLER, J.

Sixth Angel Shepherd Rescue, Inc. (“Sixth Angel”) and Terry Silva brought this action asserting constitutional and state law claims against George Bengal, Nicole Wilson, and the Pennsylvania Society for the Prevention of Cruelty to Animals (“PSPCA”) based on Defendants’ confiscation of Plaintiffs’ three dogs. The Court granted Plaintiffs’ request for a preliminary injunction and ordered Defendants to return the dogs to Plaintiffs. Now before the Court is Plaintiffs’ motion for attorney’s fees and costs, which the Court will grant. Plaintiffs are awarded $50, 418.75 in attorney’s fees and $1, 344.50 in costs.

I. BACKGROUND

On April 16, 2010, Plaintiffs sued Defendants, claiming that Defendants improperly confiscated three of Plaintiffs’ dogs in violation of state law and Plaintiffs’ constitutional rights. (Compl. ¶¶ 7, 40, 61-105.) Specifically, Plaintiffs sued under 42 U.S.C. § 1983, alleging that Defendants took Plaintiffs’ dogs “in violation of Plaintiffs’ constitutional rights to property and liberty with procedural and substantive due process.” (Id. ¶¶ 7, 72.) In addition, Plaintiffs asserted claims for conversion and bailment based on Defendants’ failure “to care for the live property of the Plaintiffs.” (Id. ¶¶ 97, 100-105.) Plaintiffs sought damages and an injunction ordering Defendants to return the dogs. (Id. ¶¶ 56, 105.)

On April 21, 2010, Plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction. Following a hearing, the Court granted Plaintiffs’ request for a preliminary injunction based on the conversion claim, and ordered Defendants to return the dogs to Plaintiffs. See Sixth Angel Shepherd Rescue, Inc. v. Bengal, Civ. A. No. 10-1733, 2010 WL 2164521 (E.D. Pa. May 27, 2010). The Court did not consider the merits of Plaintiffs’ claims under 42 U.S.C. § 1983. Id. Defendants appealed, and the Court’s decision was affirmed by the Third Circuit. Sixth Angel Shepherd Rescue, Inc. v. Bengal, 448 F. App’x 252 (3d Cir. 2011).

On April 30, 2013, the Court held a telephone conference with the parties, who informed the Court that the only remaining issues were attorney’s fees and costs. Plaintiffs filed a motion for attorney’s fees and costs on May 29, 2013, requesting $75, 495 in attorney’s fees and $4, 420 in costs. (Pls.’ Pet. for Att’y’s Fees ¶ 19.) On June 25, 2013, the Court ordered Plaintiffs to file a more detailed itemization of costs, excluding costs that Plaintiffs were already granted by the Third Circuit.

On August 9, 2013, Plaintiffs filed an amended motion for attorney’s fees and costs, requesting $84, 665 in attorney’s fees and $5, 786 in costs. (Pls.’ Supplement to Pet. for Att’y’s Fees Ex. 2 [Billing Records 2] at 11.) In responses filed June 21, 2013, and August 21, 2013, Defendants concede that Plaintiffs are entitled to attorney’s fees and costs, but object to the number of hours spent, the hourly billing rate Plaintiffs propose, and the amount of costs. (Defs.’ Resp. to Pls.’ Pet. for Att’y’s Fees [Defs.’ First Resp.]; Defs.’ Resp. to Pls.’ Supplemental Pet. for Att’y’s Fees [Defs.’ Second Resp.].) Defendants also request that the Court reduce Plaintiffs’ attorney’s fees by $6, 919.06, the cost of the veterinary care administered to Plaintiffs’ dogs after Defendants confiscated them. (Defs.’ Second Resp.)

II. DISCUSSION

A. Attorney’s Fees

Attorney’s fees generally are not recoverable on a conversion claim in Pennsylvania. See In re U.S. Physicians, Civ. A. Nos. 99-4094, 98-34011, 2002 WL 31866247, at *3 (E.D. Pa. Dec. 20, 2002) (“[T]here is no statute providing for recovery of counsel fees to the successful litigant in an action for conversion . . . .”); see also Trizechahn Gateway LLC v. Titus, 976 A.2d 474, 482-83 (Pa. 2009) (noting that Pennsylvania follows the federal “American Rule” regarding attorney’s fees, under which “a litigant cannot recover counsel fees from an adverse party unless there is express statutory authorization, a clear agreement of the parties, or some other established exception”).

However, attorney’s fees may be awarded to a prevailing party in an action to enforce 42 U.S.C. § 1983. See 42 U.S.C. § 1988(b). If a party alleges both a claim under § 1983 and a non-fee eligible claim, and the court decides only the non-fee eligible claim, the prevailing party may recover attorney’s fees if: (1) the § 1983 claim was substantial and (2) the non-fee eligible claim arose from a “common nucleus of operative fact.” See Maher v. Gagne, 448 U.S. 122, 132 n.15 (1980); see also Rogers Grp., Inc. v. City of Fayetteville, 683 F.3d 903 (8th Cir. 2012). If a federal claim is substantial enough to support supplemental jurisdiction over a related state law claim, then it is substantial enough to support an award of fees to a party who prevails only on the state law claim. See Rogers Grp., 683 F.3d at 912; see also Fross v. Cnty. of Allegheny, 848 F.Supp.2d 547, 552 (W.D. Pa. 2012).

Plaintiffs meet Maher’s requirements of substantiality and relatedness. Plaintiffs’ § 1983 claim is sufficiently substantial because it conferred jurisdiction on the Court over the state law claim of conversion. See Sixth Angel Shepherd Rescue, 448 F. App’x at 253 (“The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367.”). The § 1983 claim and the conversion claim also arose from a “common nucleus of operative fact.” See Maher, 448 U.S. at 132 n.15. Both claims arose from the seizure of Plaintiffs’ dogs by the Pennsylvania Bureau of Dog Law Enforcement. Therefore, Plaintiffs are eligible for attorney’s fees under § 1988 so long as they prevailed on their state law claim.

1. Prevailing party status

Defendants concede that Plaintiffs are a prevailing party. (Defs.’ Second Resp.) The Court’s own analysis leads to the same conclusion. To be a “prevailing party, ” the plaintiff must “at a minimum, . . . be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). That change must “achieve[ ] some of the benefit the part[y] sought in bringing the suit.” Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 228 (3d Cir. 2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The change also must be “judicially sanctioned, ” and not simply result from a voluntary change in the defendant’s conduct. Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001). If fees are sought based on interim relief, such as a preliminary injunction, that relief must be “derived from some determination on the merits.” Singer Mgmt. Consultants, 650 F.3d at 229.

The Third Circuit has held that “the ‘merits’ requirement is difficult to meet in the context of TROs and preliminary injunctions, as the plaintiff in those instances needs only to show a likelihood of success on the merits (that is, a reasonable chance, or probability, of winning) to be granted relief.” Id. However, in “rare situation[s], ” a grant of a preliminary injunction may be a merits-based determination supporting an award of attorney’s fees. Id.; see also People Against Police Violence v. City of Pittsburgh, 520 F.3d 226 (3d Cir. 2008) (upholding an award of attorney’s fees to the plaintiff, who won a preliminary injunction in a case that never proceeded to judgment).

In granting Plaintiffs’ motion for a preliminary injunction, this Court made a merits-based determination that entitles Plaintiffs to attorney’s fees. The Court found that “[d]efendants unquestionably deprived Plaintiffs of their right in their property, an intrusion to which Plaintiffs certainly did not consent, and for which Defendants fail to offer any lawful justification.” Sixth Angel Shepherd Rescue, 2010 WL 2164521, at *3. Plaintiffs “well exceeded their burden of proving a likelihood of success on the merits of their conversion claim.” Id. Because the Court finds that Plaintiffs were the prevailing party, the Court will determine the amount of attorney’s fees to award Plaintiffs.

2. Hours spent on litigation

“The starting point for determining the amount of a reasonable fee is the lodestar, which courts determine by calculating the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” McKenna v. City of Phila., 582 F.3d 447, 455 (3d Cir. 2009). When calculating the lodestar, a court should exclude hours that are “excessive, redundant, or otherwise unnecessary.” Id. A court should also “reduce the hours claimed by the number of hours spent litigating claims on which the party did not succeed, that were distinct from the claims on which the party did succeed, and for which the fee petition ...


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