United States District Court, M.D. Pennsylvania
MARJORIE M. GILLESPIE, et al., Plaintiffs,
LORI DRING AND NANCY ASARO, Defendants.
RICHARD CAPUTO UNITED STATES DISTRICT JUDGE.
before me is Defendants' Application for Reasonable
Attorneys' Fees and Costs. (Doc. 119). Attorneys Rosenn,
Jenkins & Greenwald, LLP (“RJ&G”),
Michael Profita (“Profita” or “Attorney
Profita”), and R. Anthony Waldron
(“Waldron” or “Attorney Waldron”)
(collectively “Attorneys”) for Defendants Lori
Dring (“Dring”) and Nancy Asaro
(“Asaro”) (collectively “Defendants”)
seek $299, 123.18 in various fees and costs associated with
their representation of the Defendants in a land dispute
governed by a previously entered into Settlement Agreement
(Doc. 6-1 Ex. A (“the Agreement”)). (See
Docs. 119, 121, 133). The Attorneys and Defendants contend
that following the dismissal of Plaintiffs', including
named Plaintiff Marjorie M. Gillespie's
“Plaintiffs”) claims against the Defendants, that
the Attorneys are entitled to reasonable attorneys' fees
and costs according to the terms of the Agreement. (See
id.). In opposition, the Plaintiffs contend that: the
Attorneys are either not entitled to any or not entitled to
at least some of the listed fees; that the listed fees are
unreasonable; that this Application should be stayed; and, in
the alternative, that I should hold a hearing on the matter
before ruling on the Application. (See Doc. 128).
Because Defendants have not demonstrated their entitlement to
all fees and costs as requested, their Application for
Reasonable Attorneys Fees and Costs will be granted in part
and denied in part.
action arises out of claims brought by Plaintiff landowners
against the Defendants for failure to grant the Plaintiffs an
easement over a certain tract of land at Lake Ariel in Wayne
County, Pennsylvania. (See generally Doc. 1). The
parties are familiar with the factual background of this
long-standing dispute and I will only summarize the necessary
procedural history of the current action. The Plaintiffs'
claims, which, in part, sought to enforce the Agreement (Doc.
6-1 Ex A.) as it pertained to an easement over
Defendants' land and, in part, tried to equitably claim
an easement over the same land, were all dismissed first by
Motion to Dismiss, for failure to state a claim (See
Docs. 15, 16), and second, on a Motion for Summary Judgment.
(See Docs. 98, 99). In so ruling, I found that the
Defendants, according to the Agreement, had no duty to convey
the easement and were otherwise released from all other
claims brought by the Plaintiffs. (See Docs. 16,
Defendants, when answering the Complaint, filed a
counterclaim against the Plaintiffs for trespass on the same
disputed tract of land for which the Plaintiffs requested an
easement. (See Doc. 25). The Defendants, in their
Motion for Summary Judgment, also stated their intention to
seek attorneys' fees from the Plaintiffs. (See
Doc. 61). The same order which granted Defendants'
summary judgment on all of Plaintiffs' claims, however,
directed the Clerk to close the case without resolving the
counterclaim or request for fees. (See Doc. 99). As
such, Defendants filed a Motion for Reconsideration (Doc.
102), which was granted (Doc. 104), to resolve these
outstanding issues. The parties then entered into a
stipulation (Doc. 113), which I approved (Doc. 114),
dismissing the Defendants' counterclaim without prejudice
while also allowing the Defendants thirty days to submit an
application for attorneys' fees and costs.
soon thereafter appealed the ruling on the Motion for Summary
Judgment (Docs. 98, 99) to the Third Circuit. (See
Doc. 115). Defendants then filed the instant Application for
Reasonable Attorneys' Fees and Costs Pursuant to Section
14 of the Agreement on June 13, 2019. (Doc. 119). The
Application states that pursuant to the Agreement (Doc. 6-1,
Ex. A), which has governed all of the claims by the
Plaintiffs and against the Defendants, that Dring and Asaro
are entitled to all reasonable attorneys' fees accrued in
litigating the matter as well as all the fees expended in
obtaining these fees. (See Docs. 119, 121, 133).
Agreement in relevant part states:
The United States District Court for the Middle District of
Pennsylvania shall have exclusive jurisdiction over any
action or proceeding involving the interpretation or breach
of this Agreement, and the parties hereto submit to the
personal jurisdiction of such Court. The Prevailing party in
any such action shall be entitled to recover reasonable
attorneys' fees from the other party.
(Doc. 6-1 Ex. A). In their application, Defendants request a
total of $299, 123.18 in legal fees and costs. (Doc. 133 at
19). Of these fees, RJ&G claims $239, 649.61 in fees and
$10, 398.76 in costs for a total of $250, 048.37 for all work
done on this matter, including the instant fee litigation.
(See Doc. 133-2). RJ&G staffed two partners, two
associates, and two paralegals on the matter at rates ranging
from $100 to $285 an hour. (See Docs. 122-2; 122-3
Exs. G, M; 133-1 Ex. D). Attorney Profita then claims $42,
087.31 in fees and $781.06 in costs, for the same period, at
rates of at least $375 an hour, which is a reduction in his
typical fee. (See Docs. 122-2 Ex. B; 122-3 Exs. C,
H). Finally, Attorney Waldron claims $2, 000 in fees at a
rate of $200 an hour for preparing a title report connected
to the litigation and for other fees accrued in creating the
report. (See Docs. 122-3 Ex. I; 133-5). Defendants
attached affidavits prepared by themselves, their billing
departments, and an independent lawyer all swearing to the
reasonableness of their fees. (See Docs. 122-3;
133-1 - 133-8). Defendants have also attached detailed
billing records and invoices for the matter, redacting
certain line items for which they are not seeking
reimbursement. (See Docs. 122-1, 122-2; 133-1 Exs.
Plaintiffs responded to this application on August 1, 2019
stating first that the Defendants were not prevailing parties
under the Agreement. (See Doc. 128). The Plaintiffs
further contend that, should I consider the Defendants to be
the prevailing parties, the fees are nonetheless
unreasonable. (Id.). To the extent some fees might
be reasonable, the Plaintiffs would, in the alternative, seek
to stay the Application pending the outcome of their appeal
or would have me hold a hearing before deciding on the
Application. (Id.). The Defendants filed their Reply
Brief in support of their application on September 5, 2019
waiving certain fees for unrelated billings, while also
elaborating on the fees relating to this fee litigation.
(See Doc. 133). The Application has been fully
briefed and is ripe for review.
opposing the Application, Plaintiffs first claim that the
Defendants were not the “prevailing parties”
under the Agreement and are therefore not entitled to any
attorneys' fees. (Doc. 128 at 12-15). The Plaintiffs base
this argument primarily on an interpretation of Federal Rule
of Civil Procedure 41 which states that a notice of dismissal
by a party acts as an adjudication on the merits when that
party has previously dismissed an action based on the same
claim. (Id.); see also Fed. R. Civ. P. 41.
Plaintiffs claim that, when executing the original Agreement
(see Doc. 6-1 Ex. A) and releasing their claims, the
Defendants dismissed an action against the Plaintiffs based
on the same claim as was brought as a counterclaim in this
litigation, which was then also dismissed. (Doc. 128 at
12-15) (“[I]n other words, the previous litigation was
between the same parties, dealt with the same claim, and the
dismissal in the current suit now operates as an actual
adjudication on the merits.”). Therefore, Plaintiffs
believe that the current stipulation to dismissal (Doc. 114)
acts as an adjudication on the merits. (See id.).
The Plaintiffs further believe that an adjudication on the
merits in their favor and a summary judgment in the
Defendants' favor makes it “less clear” who
the prevailing party is under the Agreement. (See
Defendants have responded, stating: (a) that by
“successfully defending all of the Plaintiffs'
claims, ” they were clearly the prevailing parties; and
(b) that the previous trespass claim was not based on the
same claim as that which was dismissed by the Agreement.
(See Doc. 133 at 2-4).
relevant part, the Agreement states that “the
prevailing party” in any action involving
“interpretation or breach of [the] Agreement . . .
shall be entitled to recover reasonable attorney's fees
from the other party.” (Doc. 6-1 Ex. A).
“‘Prevailing party is commonly defined as
‘a party in whose favor a judgment is rendered,
regardless of the amount of damages awarded.'”
Profit Wize Marketing v. Weist, 812 A.2d 1270, 1275
(Pa. Super. 2002) (quoting Black's Law Dictionary, 7th
ed. at 1145). The application of the term prevailing party
“is [ ] limited to those circumstances where the fact
finder declares a winner and the court enters judgment in the
party's favor.” Id. at 1275-76; see
also Zavatchen v. RHF Holdings, Inc., 907 A.2d 607,
610-11 (Pa. Super. 2006) (holding that it is not an abuse of
discretion to find that defendant parties are not prevailing
when no judgment is entered in their favor and when the
plaintiff's claims are not frivolous).
a failure to recover on a counterclaim does not make the
defendant unable to recover its costs in defending an action.
Burgess v. Senior, 64 Pa. D. & C. 167, 169 (Pa.
Ct. Comm. Pl. 1945); Stahl et al. v. Erie Delivery
Co., 31 Pa. D. & C. 429, 437 (Pa. Ct. Comm. Pl.
1937). Courts have considered defendants to be prevailing
parties despite the presence of counterclaims where
plaintiffs are the initial agressors in the action and where
the defendant's counterclaims ought to be tried, based on
factual overlap, in the same action. Id.; see
also Tyler v. O'Neill, 112 Fed.Appx. 158, 161-63 (3d
Cir. 2004) (holding, in a federal context, that defendant was
still prevailing party where counterclaims involved the same
issues as the claims brought against the defendant).
judgment was entered in favor of the Defendants on the
Plaintiffs' original claims, thereby making the
Defendants the prevailing party as it pertains to the defense
of those claims. See Gardner v. Clark, 33 Pa. D.
& C.3d 662, 664-665 (Pa. Ct. Comm. Pl. 1985) (holding
that defendant was a prevailing party for successfully
getting claims dismissed on a motion for summary judgment);
Zavatchen, 907 A.2d at 611 (recognizing that
prevailing on summary judgment could justify finding that
defendants were prevailing parties); see also Lynn v.
Smith, 664 F.Supp. 929, 929-30 (M.D. Pa. 1986) (holding
that, federally, defendants can be prevailing parties if they
prevail on a motion for summary judgment). Further, the
counterclaim brought by the Defendants arose out of the same
facts as the Plaintiffs' claims and will not disrupt the
finding that the Defendants are the prevailing party. See
Burgess v. Senior, 64 Pa. D. & C. at 169.
their assertions under Rule 41, the Plaintiffs omit from the
citation of the rule that a “notice of dismissal,
” and not a stipulation to dismissal
“operates as a an adjudication on the merits.”
Fed.R.Civ.P. 41(a)(1)(B). I also take notice of the fact that
“Rule 41(a)(1) was intended to eliminate the annoying
of a defendant by being summoned into court in successive
actions and then, if no settlement is arrived at, requiring
him to permit the action to be dismissed and another one
commenced at leisure.” Cooter & Gell, 496
U.S. 384, 397 (1990) (internal quotations and citations
omitted). Moreover, Rule 41(a)(1) is “aimed at curbing
abuses of the judicial system” so as to prevent
duplicative or serial litigation. Id. at 398;
see also Orman v. Citimortgage, 2016 WL 1592948, at
*6 (E.D. Pa. 2016).
the Defendants did not initiate a suit nor did they endeavor
to harass the Plaintiffs. In fact, the counterclaim was
dismissed shortly after the Motion for Summary Judgment was
decided. The aim of Rule 41(a)(1) was to prevent misuse of
the judicial process which the Defendant has not been accused
of here. Because the Defendants prevailed on summary judgment
and because Rule 41 does not apply to the present action, the
Defendants will be considered the “prevailing
party” for the purposes of the Agreement and the
stipulation to dismissal of the counterclaim will not be
considered an adjudication on the merits.
Reasonableness of Fees and Costs
Attorneys in this case collectively request a total of $299,
123.18 in fees and costs. (Doc. 133 at 19). Lawyers from
RJ&G request $239, 649.61 in fees as calculated by their
Accounts Receivable Manager Polly A. Butler
(“Butler”). (Doc. 133-2). Butler arrived at this
calculation by taking the collective hours billed and to be
billed on the case at the rates listed below and then reduced
the fees by those hours which were expended on matters
irrelevant to the current claim, though Butler does not
explicitly detail which hours she reduced. (Id.).
Butler then applied a 6.4% “courtesy reduction”
to the remaining balance. (Id.). RJ&G had six
people staffed on this matter; Partner Garry S. Taroli
(“Taroli” or “Attorney Taroli”), who
requests a $285 hourly fee; Partner Robert N. Gawlas
(“Gawlas” or “Attorney Gawlas”), who
requests a $275 hourly fee; Associates Robert L. Gawlas
(“Associate Gawlas”) and Daniel A. Taroli
(“Associate Taroli”), who request a $175 hourly
fee; and paralegals Helen P. Chvotzkin and Tania Garrity, who
request a $100 and $110 hourly fee, respectively.
(See Docs. 122-2; 122-3 Exs. G, M; 133-1 Ex. D).
has presented the hours they worked on this case to me in the
form of a “Unbilled Recap of Time Detail” or
“Time Detail” (“the Detail”) which
purports to account for every potentially billable hour in
the case. (See Docs. 122-2; 133-1). Hours not being
charged are redacted from the Detail. (See Docs.
122-3 Ex. F (Butler Declaration); 133-2 (Butler Supplemental
Declaration)). Further, every billed hour on the Detail
corresponds to an actually charged line item on an invoice
sent or to be sent to the client, also provided.
(See Docs. 122-1, 122-2, 133-1 Exs. B-D).
all the visible, non-redacted, and potentially relevant hour
totals in the Detail, the professionals from RJ&G have
billed and could further bill a collective 1142.80 hours, for
which they do not seek full reimbursement. (See
Docs. 122-2, 133-1 Ex. D) (adding all hours from the Detail
which were billed or could be billed by Partners Gawlas and
Taroli, Associates Gawlas and Taroli, and Paralegals
Chvotzkin and Garrity). Lawyers from RJ&G further request
$10, 398.76 in costs. (Doc. 133-1 Ex. F) (Butler
Profita requests $44, 448.75 in fees based on rates ranging
from $375 to $425 an hour for a cumulative 129.20 relevant
billable hours. (Docs. 122-3 Ex. H; 133-4). Attorney Profita
also applied a discount for certain billed hours. (Doc. 122-3
Ex. H). Attorney Profita further requests $781.06 in costs.
(Id.; Doc. 133-4). Attorney Waldron finally seeks
$2, 000 in fees based on 10 hours worked at a rate of $200 an
hour. (Doc. 122-3 Ex. D).
the Defendants have represented the total fees sought to be
$299, 123.18, I note that the actual totals represented by
the individual costs and fees requested are $297, 278.18.
See Moffitt v. Tunkhannock Area School District,
2017 WL 319154, at *8 (M.D. Pa. 2017) (correcting
mathematical inaccuracies in a request for fees).
contend that, to the extent fees should be awarded, some
attorneys' rates are unreasonable and, for those rates
that are reasonable, the Defendants have made claims for more
than they are entitled. (Doc. 128 at 15-19).
reasonableness of the rate, the Plaintiffs only contend
specifically that Attorney Profita's hourly rate of $425
“is clearly an excessive rate for the Middle District
of Pennsylvania, ” especially as compared to the rates
of Attorneys Gawlis and Taroli. (Id. at 18-19). For
reasonableness of the hours expended, Plaintiffs claim that
the Defendants are attempting to collect fees unrelated to
the instant litigation, such as “fees relating to
Culotta, Cardinal Lane, Swingle, Lehutsky, and the
preparation of a title report by R. Anthony Waldron.”
(Id. at 17). For these fees, the Plaintiffs claim
that they “relate to an unrelated quiet title action
for the Cardinal Lane property . . . as well as an unrelated
legal malpractice action.” (Id.).
Plaintiffs claim that, to the extent that billed or billable
hours relate to the current suit, they overlap with services
rendered for a separate matter which they refer to as the
“ALO litigation.” (Id.). Specifically,
Plaintiffs claim that listings involving Motions for Election
of Remedies, which were filed in both cases, were potentially
billed inappropriately and should be reduced to the extent
time was spent on the Motion from ALO litigation as opposed
to the instant litigation. (Id.).
also point to the “Grodack litigation, fees relating to
individuals who reside on the West Shore Strip who may have
entered into agreements with Dring and Asaro, including
Barone and Gardner, and the Keystone Landfill
Condemnation” as fees not attributable to this action.
(Id. at 18). Plaintiffs also seek access to the
redacted (and unbilled) records of the Defendants because,
while they are not being billed, they may provide clarity as
to what services apply to which litigation. (Id. at
18). Plaintiffs also contend that the Defendants needlessly
employed two law firms which may have been conducting the
same work on the matter. (Id. at 18).
finally contend that Defendants should only be compensated
according to their degree of success trying the claim and as
such, because Defendants were either not the prevailing
parties in the suit or because they did not prevail on all of
their claims, their recovery should be reduced. (Id.
at 15-16). To this end, Plaintiffs also believe that
Defendants recovery should be reduced to the extent the
Plaintiffs were the only parties, of all the parties
involved, not to breach the Agreement, and thus, Defendants
should receive an equitable deduction in fees. (Id.
respond to these contentions first, by saying that they
should receive no deduction as they are clearly the
prevailing party, including with regards to fees for the
counterclaim. (Doc. 133 at 4-5). They then say that the
allegedly unrelated suits are in fact related to the instant
litigation and that any matter relating to “Cardinal
Lane” was billed appropriately. (Id. at 6-7).
Defendants also contend that any objections concerning
overlap with the ALO litigation are not relevant because
everything was billed separately. (Id. at 7-8). For
the claims that representation by two separate firms was
duplicative, Defendants simply claim that this is common
practice and that Attorney Profita had experience with and
historical knowledge of the particular issues involved which
was necessary to defend against the claims. (Id. at
9-10; see also Doc. 133-4).
further seek no fees for any redacted line items and
“for the sake of judicial economy, ” will
withdraw requests for fees relating to “the Grodack
litigation, West Shore residents pursuing agreements with
Dring/Asaro, including Barone and Gardner, and the Keystone
Landfill Condemnation.” (Id. at 8-9).
Defendants also state that Attorney Profita is only seeking a
$375 hourly rate. (Id. at 10).
starting point for a court's determination of reasonable
attorney fees is to calculate the ‘lodestar' by
multiplying the number of hours reasonably expended by a
reasonable hourly rate.'” Borrell v. Bloomsburg
University, 207 F.Supp.3d 454, 506 (M.D. Pa. 2016)
(quoting Arlington Indus., Inc. v. Bridgeport Fittings,
Inc., 2014 WL 2860863, at *5 (M.D. Pa. June 23, 2014),
amended, 2014 WL 2991813 (M.D. Pa. 2014),
aff'd,612 Fed.Appx. 612 (Fed.
Cir. 2015) (“Arlington”)). The lodestar