2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-3-2013

Robert Dee, Jr. v. Borough of Dunmore

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1596

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"Robert Dee, Jr. v. Borough of Dunmore" (2013). 2013 Decisions. Paper 1548.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1596

____________

ROBERT K. DEE, JR.,

 Appellant 

v.

BOROUGH OF DUNMORE; 

BOROUGH OF DUNMORE COUNCIL; JOSEPH LOFTUS; 

THOMAS HENNIGAN; JOSEPH TALUTTO; FRANK PADULA; 

LEONARD VERRASTRO; MICHAEL CUMMINGS, individually and as Councilman

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-05-cv-01342)

District Judge: Honorable A. Richard Caputo

____________

Argued November 13, 2013

Before: HARDIMAN, SHWARTZ and SCIRICA, Circuit Judges.

(Filed: December 3, 2013)

Cynthia L. Pollick (Argued)

The Employment Law Firm

363 Laurel Street

Pittston, PA 18640

Attorneys for Plaintiff-Appellant

Erin A. Brennan (Argued)

Karoline Mehalchick

Oliver, Price & Rhodes

1212 South Abington Road
2

Clarks Summit, PA 18411

Attorneys for Defendant-Appellee

____________

OPINION

____________

HARDIMAN, Circuit Judge.

Robert Dee, Jr., appeals the District Court’s order granting in part and denying in 

part his motion for attorney’s fees and costs. We will affirm. 

I

This case comes to us for the third time and, as we write only for the parties, we 

provide a brief recitation of the facts. 

The Borough of Dunmore suspended Dee, who was an Assistant Fire Chief, on 

June 27, 2005, for allegedly not completing two weeks of training and failing to obtain 

emergency medical technician certification. Three days later, The Scranton TimesTribune publicized Dee’s suspension and alleged unfitness for service. Dee then sued the 

Borough of Dunmore, Borough Manager Joseph Loftus, and five Borough councilmen in 

the United States District Court for the Middle District of Pennsylvania. Dee’s claims 

arose out of two factually distinct episodes: his suspension and the publicity surrounding 

it. A jury found that Dee’s suspension constituted a procedural due process violation 

cognizable under 42 U.S.C. § 1983. The jury found Defendants not liable, however, on 

the claims arising out of the publicity, which consisted of a First Amendment stigma-plus
3

claim and state law claims of invasion of privacy, defamation, and publicity given to a 

private life. The jury awarded Dee $150,000 in compensatory damages and $6,000 in 

punitive damages. 

Defendants moved for and the District Court granted a remittitur, reducing the 

compensatory damages award to $50,000 and dismissing the $6,000 punitive damages 

award. We affirmed the District Court’s remittitur last year. See Dee v. Borough of 

Dunmore, 474 F. App’x 85 (3d Cir. 2012). Dee opted for a new damages trial instead of 

the remitted award. Before the second trial began, Defendants filed a $60,000 offer of 

judgment pursuant to Fed. R. Civ. P. 68. After Dee rejected Defendants’ offer of 

judgment, the second jury awarded Dee $47,500 in compensatory damages. 

As a prevailing plaintiff in a case arising under 42 U.S.C. § 1983, Dee sought 

$230,162.50 in attorneys’ fees and $10,427.43 in costs pursuant to 42 U.S.C. § 1988. He 

also sought a 50 percent enhancement above the lodestar. The District Court granted Dee 

$60,000 in attorney’s fees and $6,938.56 in costs. Dee filed this timely appeal.1 

II

Whether the District Court applied the proper standards in calculating reasonable 

attorney’s fees is a question of law over which we exercise plenary review. Washington 

v. Phila. County Ct. of Common Pleas, 89 F.3d 1031, 1034–35 (3d Cir. 1996). We 

 

1

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction 

under 28 U.S.C. § 1291. 
4

review the attorney’s marketplace billing rate for clear error and the reasonableness of the 

District Court’s award of fees for abuse of discretion. Id.

III

Attorney fee awards pursuant to § 1988 are based on the lodestar, which is the 

product of the attorney’s hours and rate. There is a strong presumption that the lodestar 

is a reasonable fee. See City of Burlington v. Dague, 505 U.S. 557, 562 (1992). 

Nevertheless, a court may adjust this figure upward or downward when the lodestar is 

unreasonable. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Under the Hensley 

framework, the petitioner’s “results obtained” in the action, which is the level of the 

prevailing party’s success, is a “crucial” factor. Id. at 430, 434. 

Courts apply a burden-shifting analysis to calculate the lodestar. The petitioner 

must produce evidence that the hours spent and rate charged are reasonable. Rode v. 

Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Once the petitioner has done so, the 

burden shifts to the respondent to challenge the attorney’s hours, hourly rate, and the 

reasonableness of the product of those numbers. Id. Following an objection to a fee 

request, district courts have discretion to adjust the hours and rates and to increase or 

decrease the lodestar based on other considerations raised by the respondent. Id.

A

Here, the District Court approved 370.85 hours for Dee’s attorney, Cynthia 

Pollick, along with 234.7 hours for her legal assistants and 129.95 hours for her legal 
5

researchers. The District Court reviewed Pollick’s time records for Dee’s case and 

subtracted the hours Defendants rightly challenged as “excessive, redundant, or otherwise 

unnecessary.” See Pub. Interest Research Group v. Windall, 51 F.3d 1179, 1188 (3d Cir. 

1995) (quoting Hensley, 461 U.S. at 433–34). 

We hold that the District Court did not abuse its discretion by making these 

deductions. The District Court subtracted four-tenths of one hour that Pollick billed for 

speaking with Dee’s mother because the conversation had no relationship to the case and 

removed 2.2 hours that Pollick spent speaking with the news media because that time was 

not compensable. Dee claims entitlement to 10 hours for his attorney’s preparation of the 

fee petition, but these hours were billed after the offer of judgment and, as explained in 

note 3, were therefore properly excluded by the District Court. He also contends that the 

District Court erred by crediting Pollick with 12.5 hours instead of 24.5 hours for her 

preparation for an appellate argument because we once found 26 hours to be a reasonable 

amount of time spent on appellate argument preparation. See Maldonado v. Houstoun, 

256 F.3d 181, 187 (3d Cir. 2001). Dee fails, however, to explain why Maldonado is 

similar enough to this appeal to support the same result.

We also affirm the District Court’s halving of 88.2 hours that overlapped with 

another case that his attorney prosecuted. On the same day Pollick filed Dee’s case, she 

filed a lawsuit on behalf of Edward Smith, a captain for the Borough of Dunmore Fire 

Department. See Smith v. Borough of Dunmore, No. 3:05-CV-1343, 2007 WL 762930 
6

(M.D. Pa. Mar. 7, 2007). When the Borough of Dunmore suspended Dee, it also 

suspended Captain Smith, and The Scranton Times-Tribune covered the suspension of 

both men. Id. at *1. The cases were consolidated for discovery, and many of the hours 

Pollick spent on Dee’s case also served Smith’s case. 

When Pollick prepared Smith’s fee petition, she included in full some of the hours 

that benefitted both cases. Where certain hours benefit two cases, each fee petition 

should request half of the time. The District Court found 128.2 hours on Pollick’s bill for 

Smith’s case that also benefitted Dee and subtracted half, 64.1 hours, from the total 

recoverable hours for Smith. See Smith v. Borough of Dunmore, No. 3:05-CV-1343, 

2008 WL 4542246, at *4 (M.D. Pa. Oct. 9, 2008). Despite the fact that Pollick was paid 

for 50 percent of the Smith time entries, her fee petition in Dee sought payment in full for 

many of these same hours. This was plainly improper. Defendants objected to 88.2 

hours in Dee’s fee petition that were beneficial to both cases, and the District Court 

subtracted 44.1 hours from the total hours.

Dee neither disputes the propriety of halving jointly beneficial hours nor argues 

that the District Court erred in classifying any of the hours as such. Rather, he claims the 

District Court should have credited him the 64.1 hours it deducted from Smith’s fee 

petition. This argument fails to recognize the independence of the two fee petitions. It 

was incumbent upon the District Court to review Dee’s fee petition on its own merits. 
7

Defendants objected to 88.2 hours, and the record supports the District Court’s 

conclusion that those hours were, in fact, jointly beneficial.2

For the reasons stated, we find no error in the District Court’s calculation of the 

number of compensable hours worked by Dee’s legal team.3

B

We turn next to Dee’s challenge to the District Court’s decision to fix an hourly 

rate of $250 instead of the $300 requested. We hold that this finding was not clear error. 

The attorney’s reasonable hourly rate is the prevailing rate in a legal market for an 

attorney of similar experience and skill. Maldonado, 256 F.3d at 184. “[A] district court 

may not set attorneys’ fees based upon a generalized sense of what is customary or 

proper, but rather must rely upon the record.” Coleman v. Kay, 87 F.3d 1491, 1510 (3d 

Cir. 1996). The defendant may contest the plaintiff’s prima facie case only with 

 

2

In fact, our independent review of the record demonstrates that Dee was paid for 

duplicative time entries to which Dunmore failed to object. For example, Pollick billed 

both Smith and Dee for two-tenths of one hour for correspondence with the Borough of 

Dunmore and the Pennsylvania Attorney General on July 1, 2005. See App. at 66; 

Plaintiff’s Exhibit A at 1, Smith v. Borough of Dunmore, No. 3:05-CV-1343 (M.D. Pa. 

Oct. 9, 2008). Defendants objected in Smith but not Dee that the time was jointly 

beneficial to both cases, thus Pollick was paid 0.3 hours for actually working 0.2 hours. 

See App. at 112; Defendants’ Exhibit C at 1, Smith v. Borough of Dunmore, No. 3:05-

CV-1343 (M.D. Pa. Oct. 9, 2008). 

3 Dee also claims the District Court erred by subtracting the hours Pollick worked 

after Defendants made their Rule 68 offer of judgment. We reject this argument out of 

hand. Rule 68(d) requires the offeree to bear costs after the offer is rejected if the 

plaintiff’s judgment is not more favorable than the defendant’s offer of judgment. The 
8

appropriate record evidence, and in the absence of such evidence, the petitioner must be 

awarded fees at the requested rate. Smith v. Phila. Hous. Auth., 107 F.3d 223, 225 (3d 

Cir. 1997). 

In support of his requested rate, Dee submitted an affidavit from Pollick and a 

sworn declaration from an attorney in Shavertown, Pennsylvania, stating that $300 was 

reasonable. Defendants disagreed, arguing that Pollick’s reasonable hourly rate was 

$215. In support of this assertion, Defendants cited three cases in which Judge A. 

Richard Caputo, the same district judge deciding Dee’s fee petition, found $215 to be a 

reasonable hourly fee for Pollick. See Defendants’ Brief in Opposition to Plaintiff’s 

Motion for Attorney Fees and Costs at 5–6, Dee v. Borough of Dunmore, No. 05-CV1342, 2013 WL 685144 (M.D. Pa. Feb. 25, 2013). The District Court disagreed with 

both sides, settling on $250 as a reasonable hourly rate. 

Citing the fact that Defendants did not submit affidavits contesting Pollick’s 

evidence in support of a $300 rate, Dee argues the District Court failed to rely on record 

evidence in decreasing Pollick’s fee. The record evidence supporting a decrease from 

Dee’s requested $300 rate consists of the three prior cases by Judge Caputo setting 

Pollick’s rate at $215 which Defendants raised and the two cases Judge Caputo cited in 

the opinion below. The first of the cases Judge Caputo cited is a prior case in which he 

 

Defendants made a valid offer of judgment of $60,000, which Dee rejected, and that offer 

exceeded the $47,500 jury verdict. 
9

set Pollick’s rate at $250. In the second prior case, another district judge in the Middle 

District of Pennsylvania set Pollick’s rate at $225. 

We first opined on whether a district court’s prior determination of a particular 

attorney’s hourly rate constituted record evidence for a subsequent fee petition in Black 

Grievance Committee v. Philadelphia Electric Co., 802 F.2d 648 (3d Cir. 1986), vacated 

on other grounds, 483 U.S. 1015 (1987). In that case, petitioners sought fees at their 

attorneys’ regular hourly billing rates, which they submitted to the court in affidavits. 

The Philadelphia Electric Company (PECO) contested the hourly rates for two of the 

Committee’s three attorneys by citing two cases in which the same district court assigned 

the same attorneys a lower hourly rate than what the Committee sought for those 

attorneys. 802 F.2d at 651–52. The district court found that the prior cases established 

the attorneys’ market rates for the months covered by those prior cases and accordingly 

reduced the attorneys’ rates for the months that were contemporaneous with the Black 

Grievance Committee’s case. Id. at 652. The district court went on to find there was 

“insufficient evidence” to support the rates claimed by those attorneys for the time 

immediately after the two prior cases ended, and the court lowered the rate from the 

Committee’s requested rate to an hourly rate in between that rate and the rate in the prior 

cases. Id. at 652–53. 

Black Grievance Committee held that prior cases are record evidence only to the 

extent they overlap with the fee petitioner’s case. We found that the hourly billing rate in 
10

the prior cases PECO cited established a factual basis for the attorneys’ respective market 

rates only for the duration of those cases and not for the time after the prior cases 

concluded. Id. at 652. Because PECO provided no other record evidence contesting the 

Black Grievance Committee’s evidence for the attorneys’ rates, the Committee’s 

affidavits were uncontested for the time that was not contemporaneous with the prior 

cases, and we instructed the district court to use the rates averred by the Committee. Id.

at 652–53. 

Unlike the error committed by the district court in Black Grievance Committee, 

here Judge Caputo did not err by reducing Pollick’s hourly rate in reliance on his prior 

cases because they are contemporaneous with Dee’s case, which ran from the filing of the 

complaint in July 2005 to Defendants’ offer of judgment in October 2010. The cases 

Defendants cited for a prior rate of $215 were litigated from July 2005 to April 2008.4 

The case Judge Caputo cited for a prior rate of $250 spanned March 2006 to February 

2012. See Supinski v. United Parcel Service, No. 06-CV-00793, 2012 WL 2905458 

 

4

The Lohman and Guarnieri lawsuits ran from July 2005 to April 2008. See 

Guarnierei v. Borough, No. 3:05-CV-1422, 2008 WL 4541999 (M.D. Pa. Oct. 9, 2008); 

Guarnieri v. Borough, No. 3:05-CV-01422, 2008 WL 4132035 (M.D. Pa. Sept. 2, 2008); 

Lohman v. Borough, No. 3:05-CV-1423, 2008 WL 2951070 (M.D. Pa. July 30, 2008); 

Lohman v. Borough, No. 3:05-CV-1423, 2007 WL 4260943 (M.D. Pa. Nov. 29, 2007). 

The Smith lawsuit ran from July 2005 until November 2007. See Smith v. Borough of 

Dunmore, No. 3:05-CV-1343, 2008 WL 4542246 (M.D. Pa. Oct. 9, 2008).
11

(M.D. Pa. July 16, 2012); Supinski v. United Parcel Service, No. 3:CV-06-0793, 2008 

WL 5510545 (M.D. Pa. Feb. 13, 2008).5 

Accordingly, we hold that the District Court applied the correct standards from 

Black Grievance Committee in setting a reasonable attorney’s fee for Pollick, and that it 

did not clearly err by settling upon a $250 hourly rate. The District Court stated it did not 

accept the $300 rate because that rate was unreasonably high, and its reduction from 

Dee’s prima facie case is supported by record evidence.6

C

After multiplying attorney Pollick’s hours and rate, the District Court established a 

lodestar amount of $123,310. Finding that such a fee would be unreasonably high, the 

District Court decreased the lodestar to $60,000. Dee claims this decision was an abuse 

of discretion. 

 

5 Dee cites our decision in Washington v. Philadelphia County Court of Common 

Pleas, 89 F.3d 1031 (3d Cir. 1996), to argue the District Court’s decrease was 

unsupported by record evidence, but this case is distinguishable. In Washington, we 

vacated and remanded the district court’s reduction of an attorney’s hourly rate because 

the reduction was based on two prior cases that were later discredited, which left the 

district court’s determination of the hourly rate unsupported. 89 F.3d at 1035–36. In this 

case, however, we have not vacated the hourly rate calculations in the prior cases the 

District Court relied on.

6

In Smith v. Borough of Dunmore, 633 F.3d 176 (3d Cir. 2011), Pollick implied 

Judge Caputo may have had a discriminatory motive because he once authorized a higher 

fee for a male attorney with similar experience. We said then that “[t]he bald suggestion 

of discrimination is devoid of any support in the record and unworthy of further 

comment.” Smith, 633 F.3d at 184 n.8. Pollick reprises that argument in this appeal, but 

it fares no better for the same reason. 
12

Although the lodestar carries a strong presumption of reasonableness, Rode v. 

Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990), other considerations may lead the 

court to reduce it. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Supreme Court 

emphasized that when the plaintiff’s lawsuit contains “distinctly different claims for 

relief that are based on different facts and legal theories,” the unsuccessful claims cannot 

be considered to have been litigated in furtherance of the result achieved and should be 

excluded. Id. at 434–35. If the district court decreases the lodestar, it may not reduce an 

award by a particular percentage or amount in an arbitrary or indiscriminate fashion—

even if the decrease is made for justifiable reasons. Prandini v. Nat’l Tea Co., 585 F.2d 

47, 51 (3d Cir. 1978). 

Here, we find no abuse of discretion in the District Court’s reduction of the 

lodestar in light of Dee’s failure to prevail on the factually distinct claims. Dee was 

unsuccessful on his First Amendment claim and on his state law claims for invasion of 

privacy, defamation, and publicity given to a private life. His successful procedural due 

process claim is factually distinct from his unsuccessful claims because the procedural 

due process claim stemmed from his eight-day suspension, whereas his unsuccessful 

claims all arose out of the publicity following the suspension. Significantly, we endorsed 

a similar downward departure from the lodestar in Dee’s companion case, Smith v. 

Borough of Dunmore, 633 F.3d 176 (3d Cir. 2011). There, we affirmed Judge Caputo’s 

reduction of the lodestar from $72,261 to $20,000 because Captain Smith succeeded on 
13

only one of his six claims, and the five unsuccessful claims arose out of the factually 

distinct publicity from the suspension. 633 F.3d at 184. The similarity of the two cases 

yields the same result in this appeal. 

Dee claims the District Court made an unlawful double deduction by eliminating 

18.1 hours from the lodestar for his unsuccessful claims and then anchoring the reduction 

from the lodestar in part on those same unsuccessful claims. There is no precise formula 

for accounting for the plaintiff’s unsuccessful claims, and the District Court has 

considerable discretion in this regard. Hensley, 461 U.S. at 436–37. The District Court 

excised only the hours that were readily identifiable as solely related to the unsuccessful 

claims. Accordingly, the District Court’s reduction from the lodestar was necessary to 

account fully for Dee’s limited success. 

In addition to Dee’s limited results obtained, the District Court considered some of 

the factors from the Fifth Circuit’s influential decision in Johnson v. Georgia Highway 

Express, Inc., 488 F.2d 714 (5th Cir. 1974). Dee argues this was error because the 

Supreme Court “eliminated the evaluation of the Johnson factors,” Br. of Appellant at 10, 

in Perdue v. Kenny A., 559 U.S. 542, 551 (2010). We disagree. While Perdue noted the 

objective quality and predictable results from the lodestar approach over Johnson’s openendedness, the Supreme Court held that deviations from the lodestar may still be 

permissible “in those rare circumstances in which the lodestar does not adequately take 

into account a factor that may properly be considered in determining a reasonable fee.” 
14

Id. at 554. This holding is consistent with Hensley, which instructed that “[t]he district 

court also may consider other factors identified in [Johnson], though it should note that 

many of these factors usually are subsumed within the initial calculation of hours 

reasonably expended at a reasonable hourly rate.” 461 U.S. at 434 n.9. The District 

Court’s analysis adhered to this standard; it relied on the relative ease of litigating a 

procedural due process claim, the fact that Pollick did not demonstrate any special ability 

in her prosecution of the case, and the fact that Dee’s case was not an undesirable case. 

The last factor recognizes that Congress enacted § 1988 to encourage the litigation of 

cases that otherwise may not be brought. Because none of these factors was incorporated 

into the District Court’s lodestar analysis, we find no error in the legal standards the 

District Court applied. 

We have long cautioned against arbitrary departures from the lodestar. See 

Prandini, 585 F.2d at 51; Lindy, 540 F.2d at 115. And we have vacated and remanded 

fee petitions for terseness when a district court’s vague analysis leaves us without a basis 

for review. See Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 196 (3d Cir. 2000). 

Here, although the District Court calculated the lodestar with meticulous detail, it 

decreased the lodestar by more than half with only a few sentences of explanation. 

Although it would have been better for the District Court to say more in this regard, its 

reduction is supported in law and fact. Accordingly, we hold that it did not abuse its 

discretion in failing to provide a more fulsome justification. 
15

IV

For the reasons stated, we will affirm the judgment of the District Court.