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McGuire v. Neidig

United States District Court, W.D. Pennsylvania

April 7, 2017

SHANE MCGUIRE
v.
COLBY J. NEIDIG Date Time Keeper Narrative Hours Requested Hourly Rate Value Date Time Keeper Narrative Hours Requested Hourly Rate Value Date Time Keeper Narrative Hours Requested Hourly Rate Value Date Time Keeper Narrative Hours Requested Hourly Rate Value

          MEMORANDUM

          KEARNEY, J.

         Federal civil rights laws allow us to award reasonable attorney's fees and costs incurred by a citizen who convinces the jury a police officer deprived him of civil rights by engaging in excessive force. Civil rights litigation requires a citizen's vigorous advocacy against the state and we hesitate to second-guess the steps taken to persuade a jury. But citizens cannot compel police officers to pay fees and costs for efforts leading to unsuccessful claims.

         Our jury unanimously found off-duty Pittsburgh police officer Colby Neidig violated teenager Shane McGuire's civil rights by using excessive force upon him on November 12, 2012 in immediate response to Mr. McGuire's admittedly stupid pranks on the front porch of the Neidig family home on a weekend evening. Mr. McGuire is entitled to recover his fees and costs incurred in establishing Officer Neidig's excessive force acting under color of state law but not for time incurred solely pursuing dismissed parties, working with barred experts, or for clerical duties. Our accompanying Order balances these principles after review of detailed records and awards $170, 746.95 in reasonable fees and costs incurred by Mr. McGuire in prevailing on his civil rights excessive force claim against Officer Neidig.

         I. Background

         Mr. McGuire initially sued the City of Pittsburgh and its police officers Colby Neidig and David Blatt alleging: (a) Officer Neidig violated his civil rights by excessive force, assault, and battery; (b) Officer Blatt violated his civil rights by not intervening; (c) both police officers violated his civil rights through conspiracy, false arrest/imprisonment and malicious prosecution; both police officers are liable for false imprisonment under Pennsylvania Law; (d) both the City and officers owed damages under Pennsylvania malicious prosecution law; and, (e) the City should be separately liable under the civil rights law for failure to train, supervise, and discipline its officers.[1]

         We initially dismissed Mr. McGuire's claims against Officer Blatt before discovery.[2] Mr. McGuire then proceeded into discovery only against the City for failure to train, supervise, and discipline and against Officer Neidig for excessive force, assault, and battery.[3] Following discovery, we dismissed his claims against the City but allowed Mr. McGuire to try his civil rights excessive force and state law assault and battery claims against Officer Neidig who defended by arguing, among other things, he did not act under color of state law, an issue the parties vigorously disputed.[4] Before trial, we excluded Mr. McGuire's proffered expert testimony of criminologist Paul McCauley, PhD, FACFE, finding his opinions on the issues of excessive force and color of law constituted impermissible legal opinions.[5] Although the City listed Officer Blatt as a witness in its pretrial memorandum, the City did not call him as a witness.

         After trial, the jury found Officer Neidig acted under color of state law and used excessive force. We entered judgment in favor of Mr. McGuire for $75, 000 against Officer Neidig for violating Mr. McGuire's civil rights through excessive force under the Fourth Amendment.

         Mr. McGuire now moves for attorneys' fees and costs under 42 U.S.C. § 1988, 28 U.S.C. § 1920, and Federal Rule of Civil Procedure 54.[6] He requests $192, 115.00 in attorney's fees and $10, 171.97 in costs. As to attorney's fees, he calculates 358.3 hours of work at $450 per hour for Attorney Mark A. Eck, 142.6 hours at $200 per hour for Attorney Amanda Nese, [7] and 11.8 hours at $200 per hour for Attorney Katie Van Hoey.[8]

         Officer Neidig does not object to the reasonableness of the hourly rates. He objects to certain fees and costs expended on: (a) unsuccessful claims dismissed before trial against the City and Officer Blatt; (b) expert coordination with Mr. McCauley; (c) clerical tasks; (d) intraOffice conferences/communications; (e) excessive time preparing certain pleadings and documents; and (e) printing and color copying costs.[9] We agree in part.

         II. Analysis

         Under §1988, we may award a reasonable attorney's fee to Mr. McGuire after he prevailed against Officer Neidig in enforcing his civil rights.[10] In determining a reasonable fee, we use the lodestar method of calculating the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."[11] The fee applicant bears the ultimate burden of showing its fees are reasonable.[12] We may only reduce an award in response to a specific objection made by an opposing party.[13] We conduct "a thorough and searching analysis" of a fee application.[14]

         We may not award fees for work expended on unsuccessful claims which are "not related to the claims on which the attorney succeeded.'"[15] To reduce hours expended on unsuccessful claims, we must ensure the claims are sufficiently distinct from the successful claims.[16] In other words, the unsuccessful claims cannot "depend on the same sets of facts and legal theories as the claims on which the party has succeeded."[17] This is because time expended on related successful and unsuccessful claims is "difficult to divide ... on a claim-by-claim basis."[18] Mr. McGuire has the burden of proving "the time spent pursuing the unsuccessful claims contributed in any way to his success on his remaining claims."[19] "It is incumbent on the fee applicant... to 'maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.'"[20] If we lack specific time entries indicating how the attorneys spent time on distinct claims, we may reasonably use the information available to us to estimate a proper division of time.[21]

         A. We deduct fees incurred in suing the City and unrelated to work necessary to show color of state law.

         Officer Neidig seeks to deduct time Mr. McGuire's counsel expended on litigating the claims against the City because "the claims against the City are wholly separate and distinct from the claims against Officer Neidig."[22] Mr. McGuire argues it is irrelevant the claims are distinct because the discovery he sought from the City also related to the color of law and excessive force issues.[23]

         We will allow Mr. McGuire to recover fees expended on litigating the color of state law issues against the City, but not for unrelated work. We evaluated the time entries. Many efforts involved exploring Officer Neidig's duties as a state actor to assist in showing the jury how his actions on the weekend evening of November 12 derive from his police training. We heard credible testimony of Officer Neidig resorting to police training and acting as he would in pursuing a target for his police role. But Mr. McGuire has not shown some billing entries are compensable as related to Officer Neidig's state actor liability:

Date
Time Keeper
Narrative
Hours
Requested Hourly Rate
Value
7/14/2016
MAE
Review and analysis of Motion for summary judgment and brief filed on behalf of City of Pittsburgh.
2.40
450
1080.00
7/19/2016
ALP
Conducted research on municipality's liability in preparation of response in opposition to the City of Pittsburgh's Motion for summary judgment.
1.70
200
340.00
7/21/2016
ALP
Reviewed OMI and City documents in order to prepare response in opposition to the City of Pittsburgh's Motion for summary judgment.
2.50
200
500.00
7/29/2016
ALP
Prepared response in opposition to the City of Pittsburgh's Motion for summary judgment.
4.40
200
880.00
8/5/2016
ALP
Prepared response in opposition to City of Pittsburgh's Motion for summary judgment.
1.70
200
340.00
8/9/2016
ALP
Prepared response in opposition to the City of Pittsburgh's Motion for summary judgment.
6.50
200
1300.00
8/10/2016
ALP
Finalized response in opposition to the City of Pittsburgh's Motion for summary judgment.
5.90
200
1180.00
8/10/2016
MAE
Review and analysis of initial draft of response to City's Motion for summary judgment and proposed exhibits; review and corrections to same and discussion with office associate concerning needed changes.
3.40
450
1530.00
8/11/2016
ALP
Finalized response in opposition to City's Motion for summary judgment.
4.6
200
920.00
8/11/2016
MAE
Review of amended brief in opposition to City's Motion for summary judgment and corrections to same and additional discussion with office associate concerning amending same.
2.60
450
1170.00
8/12/2016
ALP
Final edits to response in opposition to City's Motion for summary judgment
1.70
200
340.00
8/12/2016
MAE
Continued review of response in opposition to City of Pittsburgh's Motion for summary judgment and corrections to same; review of relevant case law and exhibits and other information for attachment to response and discussion with office associate concerning same.
4.20
450
1890.00
8/19/2016
MAE
Review of relevant case law concerning scope of proof necessary as to City of Pittsburgh and preparation of targeted discovery to City.
5.20
450
2340.00
8/26/2016
ALP
Examination of the City's reply to McGuire's response in opposition to Motion for summary judgment.
0.20
200
40.00
8/26/2016
MAE
Review and analysis of City of Pittsburgh's brief in reply to plaintiff's response to Motion for summary judgment and various attachments thereto.
3.50
450
1575.00
9/1/2016
ALP
Reviewed case law cited in the City's reply brief.
0.40
200
80.00
9/2/2016
ALP
Prepared sur-reply brief to the City of Pittsburgh's reply brief.
2.70
200
540.00
9/6/2016
ALP
Revised sur-reply to the City's reply in support of MS J.
0.40
200
80.00
9/6/2016
MAE
Review and suggested corrections to sur-reply to City of Pittsburgh's response on Motion for summary judgment.
1.10
450
495.00
TOTAL
16, 620.00

         These entries relate to Mr. McGuire hoping to prove the City's independent liability. We held Mr. McGuire could not establish claims against the City. Neither party presented evidence at trial regarding the City's liability. We deduct $16, 620 as expended entirely on estabishing the City's liability with no adduced facts the work also addressed Officer Neidig acting under color of state law.

         B. We deduct fees relating to Paul McCauley.

         Officer Neidig argues we should deduct fees expended on Mr. McGuire's proffered expert, Mr. McCauley, because we excluded his testimony. Mr. McGuire responds although we excluded Mr. McCauley's expert testimony, we should allow these fees because his counsel acted prudently by retaining Mr. McCauley. We stand by our February 14, 2017 Order precluding Mr. McCauley's expert testimony on the excessive force and color of law issues because his proposed opinions constituted improper legal opinions. These issues are unrelated to the jury's verdict because the jury never heard from Mr. McCauley or any similar expert.

         We deduct fees expended on retaining, working with and defending Mr. McCauley legal conclusions in the guise of an expert opinion:

Date
Time Keeper
Narrative
Hours
Requested Hourly Rate
Value
11/11/2014
ALP
Searched for experts to testify.
0.80
200
160.00
11/11/2014
MAE
Review of local databases and other sources concerning potential retention of case expert.
2.40
450
1080.00
11/17/2014
ALP
Review of various resumes of potential experts to retain in matter.
2.50
200
500.00
11/19/2014
MAE
Telephone call to Randall Paul McCauley concerning potential retention as expert in matter.
0.20
450
90.00
11/20/2014
MAE
Lengthy telephone conversation with Paul McCauley concerning background of matter and potential for representation in case.
0.80
450
360.00
11/21/2014
MAE
E-mail to Mr. McCauley of copy of complaint in anticipation of retention as expert.
0.40
450
180.00
11/24/2014
ALP
Prepared retainer letter for expert.
0.10
200
20.00
5/21/2015
MAE
Review and analysis of materials as received from expert concerning potential questioning during depositions.
3.20
450
1440.00
8/20/2015
MAE
E-mail exchanges with expert concerning court's opinion and discovery materials received and need for additional information.
0.60
450
270.00
4/13/2016
MAE
Discussion with expert Mr. McCauley concerning status of expert report.
0.3
450
135.00
4/15/2016
MAE
Receipt and review of draft of Mr. McCauley's expert report.
2.50
450
1125.00
4/18/2016
MAE
Review and analysis of initial draft of report from expert Mr. McCauley and notations on same.
2.50
450
1125.00
4/18/2016
ALP
Reviewed juvenile records in order to correct expert report of Paul McCauley.
0.30
200
60.00
4/22/2016
MAE
Continued review of draft of expert McCauley's report and discussion with Mr. McCauley concerning same and separate letter to Dr. Greg Habib concerning review of medical records for Shane and potential issuance of expert report as required by rules and forwarding of records and other information to Dr. Habib.
6.20
450
2790.00
2/7/2017
KMV
Examination of file materials related to the Defendant's Motion in limine to exclude the testimony of Paul McCauley.
1.50
200
300.00
2/7/2017
KMV
Begin research on case law related to Daubert challenges and Rules 702/704.
1.70
200
340.00
2/8/2017
MAE
Discussion with office associate concerning response to motion to strike testimony of Dr. McCauley, and strategy concerning handling same.
0.80
450
360.00
2/8/2017
KMV
Continued research on case law related to Daubert challenges and Rules 702/704.
0.50
200
100.00
2/10/2017
MAE
Review of proposed response concerning motion to strike Mr. McCauley.
0.80
450
360.00
TOTAL
10, 795.00

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