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Buffington v. PEC Management II, LLP

United States District Court, W.D. Pennsylvania

February 20, 2014

THERESA BUFFINGTON, Plaintiff
v.
PEC MANAGEMENT II, LLP d/b/a BURGER KING, Defendant

OPINION

MAURICE B. COHILL, Jr., Senior District Judge.

Pending before the Court is Plaintiff, Theresa Buffington's ("Buffington") Motion for Attorney's Fees and Expenses [ECF No. 106] pursuant to 42 U.S.C § 12205 ("Attorney's Fees") which states, "In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, ..."

On October 4, 2011, Buffington filed a Complaint in Civil Action [ECF No. 1] seeking compensatory and punitive damages, as well as costs and attorneys' fees, as a result of being terminated by PEC Management II, LLP ("PEC") the Defendant Buffington alleged that she was terminated because of her association with a person with a disability, namely her son who had cancer, violating the Americans With Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. § 120101, et. seq., and the Pennsylvania Human Relations Act, as amended ("PHRA"), 43 P.S. § 951 et. seq. PEC denied all allegations asserting that Buffington was terminated due to a violation of company policy.

A jury trial was conducted in October 2013 and on October 18, 2013 the jury rendered a verdict in favor of Buffington awarding her front pay of $115, 000 and compensatory damages of $70, 000. The parties stipulated to back pay damages of $43, 156.06. [ECF No. 106 at 2]. The Americans with Disabilities Act of 1990, 42 U.S.C. § 12205 authorized district courts to award reasonable attorneys' fees to the prevailing party of the litigation.

In her Motion for Attorneys' Fees Buffington requests reimbursement for the following attorneys' fees and costs:

Attorney David Spear: 651.30 hours at $400 per hour: $260, 520 Attorney Erin B. Freiz: 397.33 hours at $180 per hour: $71, 520 Attorney Jessica Michael: 140.4 hours at $180 per hour: $25, 272 Attorney Elena Rovner: 6.8 hours at $180 per hour: $1, 224 Attorney Jennifer Mees: 48.4 hours at $180 per hour: $8, 712 Total Goldman Schafer & Spear P.C. fees: $367, 248.00 Total costs: $11.259.23 Total fees and costs: $378, 507.23

Plaintiff substantiates her claim for attorneys' fees by offering affidavits of the attorneys who billed the hours as well as affidavits of other attorneys, which state that the hourly rates billed by the law firm of Goldman Schafer & Spear, P.C. is fair and reasonable. [Id. at 5-7] and related Exhibits. Plaintiff also submitted a Declaration from Attorney Christian Bagin [ECF No. 106 at Exhibit 5], which states that the billable rate of Attorney Spear ("Spear") is "reasonable and well within the range of prevailing rates for employment lawyers with comparable skill and experience in the Pittsburgh market." Id . at 4. PEC objects to the fees and costs sought. PEC first contends the hours for which Plaintiff seeks reimbursement are excessive, unwarranted and/or not reasonably expended. Second, PEC claims that certain of the costs for which Plaintiff seeks reimbursement are improper. Finally, PEC contests the hourly rate assigned to Spear because it is not appropriate in the forum in which the litigation took place. [Defendant's Response in Opposition to Plaintiff's Motion for Attorneys' Fees, ECF No, 108]. Plaintiff filed a Reply to Defendant's Response [ECF No. 112] on January 10, 2014 and Defendant filed a Sur-reply to Plaintiff's Reply [ECF No. 115] on January 27, 2014. Based on the reasoning provided below, we will grant in part and deny in part Plaintiff's Motion for Attorneys' Fees and Costs.

I. Relevant Facts.

PEC is a franchisee of Burger King Corporation with its headquarters located in Erie, Pennsylvania [PEC's Concise Statement of Material Facts, ECF No. 33, at 1]. Buffington was employed by PEC in a restaurant management capacity from December 2003 until November 2010 Id . at 2]. Buffington first was the General Manager of the Beaver Falls Burger King. She was transferred from Beaver Falls to the Ellwood City restaurant in June 2006 and worked there until she was terminated. [Id. at 3]. Buffington lives in Ellwood City, Pennsylvania [Plaintiff's Reply ECF No. 112 at 8], which is approximately 102 miles (1 hour and 39 minutes) from Erie [ECF No. 112 at 8] and approximately 30 miles from Pittsburgh. [Id. at 14.] Buffington hired Spear as her attorney in the matter. Spear is based out of Pittsburgh, Pennsylvania approximately 2 hours from Erie, Pennsylvania. [ECF No. 112 at 8]. Matthew McCullough ("McCullough"), the attorney for PEC, is based out of Erie, Pennsylvania where the litigation took place. Because PEC is located in Erie this case was properly brought in the Western District of Pennsylvania, Erie Division. [ECF No. 108 at 9

II. Legal Analysis

For purposes of attorneys' fees, a plaintiff is considered a prevailing party if she succeeds on any significant issue which achieves some of the benefit sought in bringing suit. See Farrar v. Hobby , 506 U.S. 103, 109 (1992). An award for attorneys' fees to a prevailing party is calculated using the lodestar approach under which "a court determines the reasonable number of hours expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart , 461 U.S. 424, 433 (1983); Interfaith Community Org. v. Honeywell Intl, Inc. , 426 F.3d 694, 703 n. 5 (3d Cir. 2005). "The district court has the discretion to make certain adjustments to the lodestar." Rode v. Dellarciprete , 892 F.2d 1177, 1183 (3d. Cir. 1990). "Attorneys seeking compensation must document the hours for which payment is sought with sufficient specificity Washington v. Phila. Cnty. Court of Common Pleas , 89 F.3d 1031, 1037 (3d Cir. 1996) (quoting Keenan v. City of Phila. , 983 F.2d 459, 472 (3d Cir. 1992)). In assessing whether an attorney's time was "reasonably expended, " the Court must ask whether the attorney exercised "billing judgment."

[c]ounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.

Hensley , 461 U.S. at 434 (quoting Copeland v. Marshall , 641 F.2d 880, 891 (D.C. Cir. 1980) (en bane)). The fee applicant must "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. Stetson , 465 U.S. 886, 896 n. 11 (1984). "The party opposing the fee award has the burden to challenge by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee.'" Rode v. Dellarciprete , 892 F.2d at 1183. Determining a reasonable hourly rate generally "is calculated according to the prevailing market rates in the relevant community." Loughner, 260 F.3d at 180. "In most cases, the relevant rate is the prevailing rate in the forum of the litigation." Interfaith Cmty. Org. v. Honeywell Int'l, Inc. , 426 F.3d 694, 705 (3d Cir. 2005).

A three-step burden-shifting framework is followed to arrive at the appropriate hourly rate. First, the prevailing party must establish a prima facie case by producing sufficient evidence of a reasonable market rate for the essential character and complexity of the services rendered. See Lanni v. New Jersey , 259 F.3d 146, 149 (3d Cir. 2001). Second, if a prima facie case has been established, the opposing party must produce record evidence to contest this rate. See id. Finally, if the reasonable market rate is in dispute, the Court must decide the appropriate market rate based on the record.

This issues to be determined by the Court in this case are: (1) Whether the proper forum for determining the reasonable billable hourly rate for Plaintiff's attorney is the Western District of Pennsylvania as a whole, which includes Pittsburgh or whether the proper forum is Erie, where the litigation took place; (2) What the reasonable hourly billable rate would be for an attorney of like background, experience, and expertise to Attorney Spear; and (3) Whether the hours billed and fees and costs requested by Plaintiff are reasonable and appropriate for this case.

A. Hourly Rate of Plaintiffs Attorney

a. Relevant Forum

Plaintiff asserts that the billable rate of Spear of $400.00 is appropriate. The Third Circuit has held that a requested fee was reasonable under the Community Market Rate Rule, based upon affidavits of other plaintiffs' attorneys performing similar legal work in the community. See Washington v. Philadelphia County Ct. of Common Pleas , 89 F.3d 1031, 1035 (3d Cir. 1996). In support of Plaintiffs assertion she has submitted affidavits of all the attorneys who billed the hours in relation to this case, including Spear. [ECF No. 106, Exhibits 1, 5, 7, 8, 10, 12]. In addition, Plaintiff included Exhibit affidavits of other attorneys endorsing the rates billed by Spear and his associate attorneys in this case. See Id . at 2-4, 6, 9, 11, 13. Defendant objects to the affidavits submitted by the billing attorneys because they are self-serving and may be rejected by the Court. See e.g. Homes v. Millcreek Township Sch. Dist. , 205 F.3d 583, 595 (3d Cir. 2000). [ECF No. 108 at 19 n.5]. Defendant further notes that of the affidavits of support authored by peer attorneys only swear to ...


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