United States District Court, E.D. Pennsylvania
NICOLE B., individually and on behalf of her son, N.B., Plaintiff,
THE SCHOOL DISTRICT OF PHILADELPHIA, et al., Defendants.
the Court are Plaintiff's Motion for Attorney's Fees
and Costs (Doc. No. 19), Defendant's Response in
Opposition thereto (Doc. No. 22), and Plaintiff's Reply
in Further Support thereof (Doc. No. 23). For the reasons
set forth below, the Plaintiff's motion is GRANTED IN
PART. The Court awards Plaintiff $19, 894.50 in
attorneys' fees and costs.
Factual and Procedural Background
action was brought by Plaintiff Nicole B., individually and
on behalf of her minor son, N.B., against the School District
of Philadelphia; Jala Pearson, the principal of William C.
Bryant School at the time in question; and Jason Johnson, a
teacher at Bryant at the time in question.
filed her initial complaint in state court on April 29, 2014.
She filed a third and final amended complaint on February 17,
2016, bringing claims under the Pennsylvania Human Relations
Act, Pennsylvania tort law, and Pennsylvania contract law.
removed the case to this court on March 30, 2016. Plaintiff
moved to remand the case to state court on April 29, 2016 and
for attorneys' fees. We granted that motion on June 20,
2016 and, finding that Defendants lacked an objectively
reasonable basis for seeking removal, ordered the parties to
submit additional briefing on the amount of reasonable
attorneys' fees. See Nicole B. v. Sch. Dist. of
Phila., No. 16-CV-1457, 2016 WL 3456924, at *5 (E.D. Pa.
2016). That briefing is now complete and the matter is ripe
Attorneys' Fees and Costs
fees and costs may be awarded under 28 U.S.C. § 1447(c)
where the removing party lacked an objectively reasonable
basis for seeking removal. Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005). We have already
determined that a fee award is proper in this case. Defendant
does not now object to an award of attorneys' fees;
rather, it challenges the requested fees as excessive,
contending: (1) the hourly rates used for each attorney
involved were excessive and unreasonable; and (2) the number
of hours claimed to be expended working on the matter were
unjustified and unreasonable.
calculating an attorneys' fees award, we apply the
“lodestar” formula, which multiplies “the
number of hours reasonably expended on litigation . . . by a
reasonable hourly rate.” Hensley v. Eckerhart,
461 U.S. 430, 433 (1983). To determine a reasonable hourly
rate, the court starts with the attorneys' usual billing
rate. Pa. Envtl. Def. Found. v. Canon-McMillan
School, 152 F.3d 228, 231 (3d Cir. 1998). We then
consider the prevailing market rates in the relevant
community. Id. With respect to the number of hours
expended, the court should “review the time charged,
decide whether the hours set out were reasonably expended for
each of the particular purposes described and then exclude
those that are ‘excessive, redundant, or otherwise
unnecessary.'” Id. at 232 (citing Pub.
Interest Research Group of N.J., Inc. v. Windall, 51
F.3d 1179, 1188 (3d Cir. 1995)).
party seeking attorneys' fees has the burden of producing
“evidence supporting the hours worked and the rates
claimed.” Rode v. Dellarciprete, 892 F.2d
1177, 1183 (3d Cir. 1990). The burden then shifts to the
opposing party to challenge, by affidavit or brief with
sufficient specificity to give fee appellants notice, the
reasonableness of the requested fee. Id. Once the
adverse party raises objections to the fee request, the court
possesses considerable discretion to adjust the award in
light of those objections. Id. Indeed, courts have
“a positive and affirmative function in the fee fixing
process, not merely a passive role.” Loughner v.
Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001).
mindful, however, that “[a] request for attorney's
fees should not result in a second major litigation.”
Hensley, 461 U.S. at 437. “Many fee
applications are decided on the basis of affidavits without
the need for a hearing.” Blum v. Witco Chem.
Corp., 829 F.2d 367, 377 (3d Cir. 1987). “A
hearing must be held only where the court cannot fairly
decide disputed questions of fact without it.”
Id. Neither party has requested a hearing in this
case. Because we conclude that we can fairly decide the
issues on the basis of the current record, we will not hold a
hearing. See J.S. ex rel. Snyder v. Blue Mountain Sch.
Dist., No. 3:07CV585, 2014 WL 1321116, at *4 (M.D. Pa.
Mar. 31, 2014).
Application of Attorneys' Fees Standard
Plaintiff seeks an hourly rate of $495 for the services of
lead counsel David J. Berney, Esq. and an hourly rate of $325
for the services of Morgen-Black Smith, Esq. Defendant
objects to both numbers and contends that reasonable hourly
rates for Mr. Berney and Ms. Black-Smith are $385 and $185,
burden is on the fee applicant to provide 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). In support of the requested rates, Plaintiff
submitted affidavits from Mr. Berney and Ms. Black-Smith, as
well as affidavits from Alan Yatvin, Esq. (supporting the
reasonableness of Mr. Berney's requested billing rate),
Paul Messing, Esq. (supporting the reasonableness of Ms.
Black-Smith's requested billing rate), and Judith Gran,
Esq. and Jennifer Clarke, Esq. (each of whom supports the
reasonableness of both billing rates). (Doc. No.
also submitted a copy of the Community Legal Services (CLS)
Attorneys Fees Schedule for 2014. This Court routinely looks
to the CLS Attorneys Fees Schedule for guidance in setting
reasonable attorneys' fees in comparable cases. See
Navarro v. Monarch Recovery Mgmt. Inc., No. CIV.A.
13-3594, 2014 WL 2805244, at *4 (E.D. Pa. June 20, 2014)
(collecting cases); see also Maldonado v. Houstoun,
256 F.3d 181, 187-88 (3d Cir. 2001) (relying on CLS fee
schedule to fix hourly rates). Under the CLS schedule,
attorneys with 21-25 years of experience command a rate of
$520 to $590 per hour and attorneys with 5-10 years of
experience command a rate of $265 to $335 per hour. Because
Mr. Berney has 23 years of experience and Ms. Black-Smith has
10 years of experience, the CLS schedule tends to corroborate
the reasonableness of Plaintiff's proffered affidavits
and requested hourly rates. We thus have no difficulty
finding that Plaintiff has established a prima facie case
that her requested hourly rates are reasonable.
next to Defendant's arguments. “Once the plaintiff
has established her prima facie case, the defendant may
contest the reasonableness of the rate with
‘appropriate record evidence.'” Carey v.
City of Wilkes-Barre, 496 Fed.Appx. 234, 237 (3d Cir.
2012). Having established its prima facie case, the burden
shifts to the defendant to challenge the reasonableness of
the requested fee, and we may only decrease the award based
on factors raised by the adverse party. M.W. v. Sch.
Dist. of Phila., No. CV 15-5586, 2016 WL 3959073, at *2
(E.D. Pa. July 22, 2016); E.C. v. Sch. Dist. of
Phila., 91 F.Supp.3d 598, 603 (E.D. Pa. 2015),
aff'd sub nom. E.C. v. Phila. Sch. Dist., No.
15-1825, 2016 WL 1085498 (3d Cir. Mar. 21, 2016). “In
the absence of such evidence, the plaintiff must be awarded
attorney's fees at her requested rate.” Smith
v. Phila. Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997).
David J. ...