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Nicole B. v. School District of Philadelphia

United States District Court, E.D. Pennsylvania

February 23, 2017

NICOLE B., individually and on behalf of her son, N.B., Plaintiff,


          Joyner, J.

         Before 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).[1] 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.

         I. Factual and Procedural Background

         This 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.[2]

         Plaintiff 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.

         Defendants 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 for decision.

         II. Attorneys' Fees and Costs

         Attorneys' 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.

         A. Legal Standard

         In 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)).

         The 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).

         We are 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).

         B. Application of Attorneys' Fees Standard

         1. Hourly Rates

          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, respectively.

         “[T]he 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. 19).[3]

         Plaintiff 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.

         We turn 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).

         a) David J. ...

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