Manville Sales Corp. v. Paramount Systems, Inc.

124 F.R.D. 595, 1989 U.S. Dist. LEXIS 1874, 1989 WL 21798
CourtDistrict Court, E.D. Pennsylvania
DecidedFebruary 28, 1989
DocketCiv. A. No. 86-4157
StatusPublished
Cited by1 cases

This text of 124 F.R.D. 595 (Manville Sales Corp. v. Paramount Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manville Sales Corp. v. Paramount Systems, Inc., 124 F.R.D. 595, 1989 U.S. Dist. LEXIS 1874, 1989 WL 21798 (E.D. Pa. 1989).

Opinion

MEMORANDUM AND ORDER

EDWIN E. NAYTHONS, United States Magistrate.

On December 14, 1988, this Court issued a Memorandum and Order granting defendants’, Paramount Systems, Inc., et al. (“Paramount”), motion for sanctions against plaintiff, Manville Sales Corporation (“Manville”), for testifying falsely under oath and for withholding discovery information. Sanctions in the form of costs and counsel fees were entered against Manville pursuant to Fed.R.Civ.P. 37(d), and counsel for Paramount were ordered to submit an affidavit accompanied by a statement listing costs and counsel fees incurred in bringing their motion against Manville.

Pursuant to my Order, Paramount submitted the Affidavit (Affidavit # 1) of Manny D. Pokotilow, Esquire, counsel for defendants, representing defendants’ expenses and attorneys’ fees incurred in connection with their motion for sanctions. Manville filed timely objections (hereinafter referred to as “Manville’s Objections”) to Paramount’s statement of expenses and attorneys’ fees, and categorized them as follows:

1. Defendants have improperly included expenses and fees associated with the depositions of Powers, Savage, Brandt, and Doyle.
2. Defendants have improperly included the fees associated with Manville’s successful appeal of the Magistrate’s original order.
3. Defendants improperly included fees for the February motion to declassify the video tape.
4. Defendants charged excessive amounts of time to the various motions and papers.
5. There is no evidence that defendants were billed the $15,102.62 allegedly expended by defendants’ counsel.

Manville’s Objections, at 1-2.

In response to plaintiff’s objections, defendants filed a reply (hereinafter referred to as “Paramount’s reply”), and plaintiff thereafter filed a surrebuttal brief. Lastly, subsequent to the February 10, 1989 hearing on counsel fees, defendants submitted a second affidavit (Affidavit # 2) of Manny D. Pokotilow, Esquire, detailing attorneys’ fees expended through February 10, 1989.

For the reasons set forth below and upon consideration of the affidavits and briefs of the parties, and the testimony adduced at the hearing, this Court has determined that it shall grant defendants’ request in part and deny it in part.

In Affidavit # 1, Mr. Pokotilow asserts that the total legal fees expended on behalf of the defendants amounts to $13,095.50. That figure is based on 13.5 hours of work by Mr. Pokotilow1 at a rate of $225.00 per hour; .6 of an hour of work by Alan H. Bernstein, Esquire2 at a rate of $225.00 [598]*598per hour; 82.4 hours of work by Max Goldman, Esquire3 at a rate of $120.00 per hour; and, one hour of work at a rate of $35.00 per hour performed by Linda Shapiro, a paralegal with Caesar, Rivise. Furthermore, Mr. Pokotilow asserts that taxable costs in the amount of $2007.12 were incurred in bringing defendants’ motion, thereby making the total sum $15,102.62. This amount combined with the additional $6,057.50 requested in Affidavit # 2 brings the overall sum requested to $21,160.12.

Under Federal Rules of Civil Procedure 37(d), a party failing to act “as designated” shall be required by the Court to pay the reasonable expenses, including attorney’s fees, caused by the “failure”, unless the Court finds that the “failure” was substantially justified. In calculating what constitutes a reasonable attorney’s fee, this Court is guided by the Third Circuit Court of Appeals’ “lodestar” method set out in Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167-168 (3d Cir.1973) (Lindy I).4

Calculation of the lodestar amount involves a “twin inquiry into the reasonableness: a reasonable hourly rate and a determination of whether it was reasonable to expend the number of hours in a particular case.” Ursic v. Bethlehem Mines, 719 F.2d 670, 676 (3d Cir.1983) (Emphasis in original). The determination of whether the hours expended by the party seeking attorney’s fees were reasonable is a factual determination, and thus, must be based on the evidence presented by the parties. Cunningham v. City of McKeesport, 753 F.2d 262, 266-67 (3d Cir.1985), cert. denied 481 U.S. 1049, 107 S.Ct. 2179, 95 L.Ed.2d 836 (1987). A court may not disregard the unchallenged assertions of a party as to its fees. Id. at 267. However, where the opposing party puts the factual issue of the reasonableness of the fee in dispute, the Court may, as the trier of fact, reject the proffered evidence as to the reasonableness of the fee. Ranco Industrial Products Corp. v. Dunlap, 776 F.2d 1135, 1141 (3d Cir.1985).

In the case at hand, Paramount’s fee request was supported by the affidavits of Mr. Pokotilow and the testimony of Mr. Pokotilow at the hearing. However, Man-ville challenged the reasonableness of the requested fee both in its objections and in its surrebuttal brief, and by the cross-examination of Mr. Pokotilow at the hearing.

For the sake of clarity, I will address each of Manville’s five objections individually and interject my own opinion as to the reasonableness of the attorneys’ fees and expenses requested by Paramount.

I. MANVILLE’S OBJECTIONS TO PARAMOUNT’S STATEMENT OF ATTORNEY’S FEES AND COSTS

A. Fees and Expenses Associated with the Taking of Depositions by Paramount Should not be Included

Plaintiff argues that this particular attorney fee and expense amount requested by defendants should be excluded since “defendants took these depositions primarily to obtain information relating to their antitrust and unfair competition counterclaims” and that “information regarding the declassification of the video tape was an insignificant part of the depositions.” Manville’s Objections, at 3. This Court is in agreement with Manville that the depositions taken by Paramount were most definitely not taken for the sole purpose of preparing Paramount’s motion for sanctions and the declassification of the video tape. While this Court does acknowledge defendants’ argument, both through their reply and through Mr. Pokotilow’s testimony at the hearing, that had it not been for the false testimony of Randall P. Crothers [599]*599regarding the confidentiality of the video tape, the four depositions would never have been necessary, I nevertheless shall not order Manville to assume all the expenses and fees associated with the taking of the depositions. I find that these depositions were not

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Bluebook (online)
124 F.R.D. 595, 1989 U.S. Dist. LEXIS 1874, 1989 WL 21798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manville-sales-corp-v-paramount-systems-inc-paed-1989.