Robinson v. Fetterman

387 F. Supp. 2d 432, 2005 U.S. Dist. LEXIS 18229, 2005 WL 2077264
District Court, E.D. Pennsylvania·Decided August 26, 2005·No. Civ.A. 04-3592·Published·Cited by 5 cases

Opinion

MEMORANDUM

BARTLE, District Judge.

Before the court is the motion of plaintiff Allen E. Robinson for counsel fees and costs in the amount of $76,438.60 pursuant to 42 U.S.C. § 1988(b). He was the prevailing party at the trial of this civil rights action.

Robinson sued the defendants, Pennsylvania State Troopers Patrick V. Fetter-man, John Rigney, and Gregg Riek, under to 42 U.S.C. § 1983 for violating his constitutional right under the First Amendment to free speech and his constitutional right *435 under the Fourth Amendment to be secure against unreasonable seizures. Specifically, he alleged that on two occasions, while videotaping the officers as they performed truck inspections along a highway, he was falsely arrested, subjected to excessive force, and maliciously prosecuted. He also brought state law claims against the defendants for battery, malicious prosecution, false arrest and excessive force. All parties filed motions for summary judgment. We denied the plaintiffs motion for summary judgment. We granted the defendants’ motion for summary judgment on the state law claims and on the federal claims to the extent that they were based upon his arrest on June 20, 2000.

On the eve of trial the parties, at the initiation of plaintiff, waived their right to a jury trial and proceeded to trial before the court. On July 19, 2005 we found that the defendants had violated Robinson’s First Amendment right to freedom of speech and that they had falsely arrested him in violation of the Fourth Amendment. We found in favor of the defendants on plaintiffs § 1983 claims for excessive force and malicious prosecution. We awarded Robinson $35,000 in compensatory damages and $6,000 in punitive damages.

Title 42 U.S.C. § 1988(b) provides that “[i]n any action or proceeding to enforce a provision of section[ ] ... 1983 ... the court, in its discretion, may allow the prevailing party, ... a reasonable attorney’s fee as part of the costs.... ” In calculating a reasonable attorney fee we must begin with the lodestar which is obtained by multiplying a reasonable hourly rate by the number of hours reasonably expended on the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

In determining the appropriate hourly rate, we are to consider both the attorney’s usual billing.rate and the prevailing market rates in the relevant community. Pennsylvania Envtl. Def. Found. v. Canon-McMillan Sch. Dist., 152 F.3d 228, 232 (3d Cir.1998) (citations omitted). The fee applicant must produce sufficient evidence of what constitutes a reasonable hourly rate. Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d Cir.1997). Once the fee applicant meets this burden he must be awarded attorney’s fees at the requested rate absent some opposition by the defendant supported by appropriate evidence. Id.

Here, plaintiffs counsel has twenty-two and one-half years of experience. The request is for an hourly rate of $325. Plaintiff has supported this calculation with affidavits of two civil rights attorneys in the Philadelphia area. The defendants contest the hourly rate because they do not believe that plaintiffs attorney exhibited the skill of. a lawyer who has been practicing for twenty-two and one-half years. They also provide a fee schedule published by Community Legal Services, Inc., which reflects that an attorney in the Philadelphia area with twenty-two and one-half years of experience would receive an hourly rate of $270-$310 per hour.

Despite defendants’ views regarding the quality of plaintiffs counsel’s representation, the fact remains that plaintiffs counsel has over two decades of legal experience. .Furthermore, simply because plaintiff counsel’s requested rate exceeds that listed on the Community Legal Services, Inc. fee schedule by $15 does not make the requested rate unreasonable. Indeed, as noted above, plaintiffs counsel has provided two affidavits in support of the reasonableness of his requested rate while the defendants have produced no affidavits to the contrary. We determine that the appropriate hourly rate is $325.

*436 We must next decide the number of hours reasonably expended by plaintiffs counsel in the litigation. Hensley, 461 U.S. at 433, 103 S.Ct. 1933. In calculating the number of hours reasonably expended, ‘“[t]he district 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.” ’ ” Public Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir.1995) (quoting Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933). Specifically, we should deduct for “[e]xcessiveness of time spent in light of an applicant’s expertise.” Bell v. United Princeton Properties, Inc., 884 F.2d 713, 721 (3d Cir.1989). “A fee applicant cannot demand a high hourly rate^—which is based on his or her experience, reputation, and a presumed familiarity with the applicable law—and then run up an inordinate amount of time researching that same law.” Id. (citation omitted). The total number of hours for which counsel fees are sought amount to 207.8.

Defendants object to the 15.7 hours spent by plaintiffs counsel conferencing with plaintiff and drafting and filing the complaint. We agree that based upon counsel’s experience some of the time spent by him was clearly excessive. We will reduce the time by 5 hours.

Defendants next object to a 5.5 hour entry on February 7, 2005 for the deposition of two officers and a conference with plaintiff. Defendants maintain that the deposition of Lt. Presto, which took 45 minutes, was unnecessary because he was not present at any time when plaintiff encountered the defendants. We agree that there is no evidence in the record that Lt. Presto was a witness to what occurred or could reasonably have been expected to provide any relevant information in the case. His deposition was therefore unnecessary. We will deduct 45 minutes from the time expended.

With respect to the same 5.5 hour entry, the defendants also request a reduction of two hours because they “doubt [plaintiff] would spend 2 hours in a conference with the attorney that would cost him $650.00.” (Defs.’ Opp’n at 8). This objection is without merit and will be denied.

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Robinson v. Fetterman, 387 F. Supp. 2d 432, 2005 U.S. Dist. LEXIS 18229, 2005 WL 2077264 (E.D. Pa. 2005).

387 F. Supp. 2d 432 (Robinson v. Fetterman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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