IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALLEN E. ROBINSON : CIVIL ACTION

:

v. :

:

PATRICK V. FETTERMAN, et al. : NO. 04-3592

MEMORANDUM

Bartle, J. August , 2005

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. Fetterman, 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

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 plaintiff's motion for summary

judgment. We granted the defendants' motion for summary judgment

Case 2:04-cv-03592-HB Document 68 Filed 08/26/05 Page 1 of 11
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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 plaintiff's § 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 (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,

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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, plaintiff's 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

plaintiff's 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 twentytwo and one-half years of experience would receive an hourly rate

of $270-$310 per hour. 

Despite defendants' views regarding the quality of

plaintiff's counsel's representation, the fact remains that

plaintiff's 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, plaintiff's 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.

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We must next decide the number of hours reasonably

expended by plaintiff's counsel in the litigation. Hensley, 461

U.S. at 433. 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). 

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

plaintiff's 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

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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.

Defendants further object to 6 hours of entries which

include the filing of motions for extensions of time. 

Specifically, plaintiff's counsel filed motions to extend his

time to: (1) file plaintiff's motion for summary judgment; (2)

respond to defendants' motion for summary judgment; and (3) file

a reply brief. We find the motions for extension of time to be

reasonable and common requests. We are aware that many

unexpected events occur in the course of litigation and that

counsel may find themselves unavoidably behind schedule from time

to time. While the expenditure of 6 hours of time solely upon

these motions would be excessive, that is not what occurred here. 

The amount of time devoted to these motions is not individually

documented. Rather, they are included among numerous other

allowable and time-consuming tasks such as the summarization of a

Case 2:04-cv-03592-HB Document 68 Filed 08/26/05 Page 5 of 11
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deposition, research on a response to a motion to quash a

subpoena, and the drafting of a response to defendants' motion

for summary judgment. Looking at the nature of the other items

the 6 hours of time is not unreasonable. We will therefore

overrule the objection. 

Defendants challenge those entries of counsel related

to plaintiff's motion for summary judgment because of lack of

success. We must be careful to calculate the lodestar before

considering adjustments to exclude some or all of the time spent

on unsuccessful claims related to the prevailing claims. 

Windall, 51 F.3d at 1190; Rode v. Dellarciprete, 892 F.2d 1177,

1183 (3d Cir. 1990). Thus, our inquiry at this time must be

restricted to an assessment of whether the time spent on these

motions, successful or not, was "reasonably expended" or if it

was "excessive, redundant, or otherwise unnecessary." Hensley,

461 U.S. at 433-34; Windall, 51 F.3d at 1185.

There clearly were genuine issues of material fact that

did not warrant the filing of a summary judgment motion on behalf

of plaintiff. The time in connection with this motion was not

reasonably expended. Although by our calculations approximately

56 hours were spent on this motion and related tasks, the

defendants only request a reduction of 42 hours. We will sustain

this objection. 

The defendants oppose any award of fees in connection

with plaintiff's motions for reconsideration and for oral

argument on reconsideration. The time spent on these motions was

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unreasonable. Motions for reconsideration will only be granted

in very limited circumstances. Harsco v. Zlotnicki, 779 F.2d

906, 909 (3d Cir. 1985). In his motion for reconsideration,

plaintiff merely reargued points already set forth in his motion

for summary judgment. Previously made arguments will not be

considered on a motion for reconsideration. Id. The amount of

time spent on each of these motions are lumped with other entries

totaling 6.9 hours. Based upon our review of the nature of the

other entries, we will reduce the total by 3 hours for these

motions. 

Lastly, defendants object to the time expended on

plaintiff's motion for preliminary injunctive relief, the

proposed points for charge and the proposed jury interrogatories. 

Again, they argue that plaintiff was unsuccessful on his motion

for preliminary injunctive relief. Furthermore, they maintain

that the points for charge and the jury interrogatories were

unnecessary because plaintiff opted for a non-jury trial.

Ignoring the lack of success of the preliminary

injunction at this stage in the calculation, see Windall, 51 F.3d

at 1190, we nonetheless find that the time spent on this motion

was unreasonable. Plaintiff made conclusory and unsupported

allegations of irreparable harm. On the other hand, we find the

time for preparation of points for charge and jury

interrogatories to be reasonable. We required that they be

submitted prior to trial. Although plaintiff requested a nonjury trial on the day the trial was scheduled to begin, this

Case 2:04-cv-03592-HB Document 68 Filed 08/26/05 Page 7 of 11
1. Although additional entries relating to the preliminary

injunction, including a hearing, were listed, the defendants have

not specifically identified and objected to these items. We may

not reduce counsel fees sua sponte as unnecessary "in the absence

of a sufficiently specific objection to the amount of fees

requested." United States v. Eleven Vehicles, Their Equip. and

Accessories, 200 F.3d 203, 211 (3d Cir. 2000).

-8-

request required the consent of the defendants. Fed. R. Civ. P.

38(d). The total of these entries is 5.1 hours. Based upon our

review of the nature of the tasks entered we will eliminate 2

hours for the preliminary injunction.1 

Plaintiff has requested an hourly rate of $325 and a

total of 207.8 hours. We have determined that a reduction of

52.75 hours is warranted. Therefore, the lodestar is $325 x

155.05, or $50,391.25. 

We may adjust the lodestar if it "is not reasonable in

light of the results obtained." Rode, 892 F.2d at 1183; see also

Hensley, 461 U.S. at 434-37. We may consider whether the

plaintiff has achieved only partial success, Hensley, 461 U.S. at

436, and the amount of damages awarded as compared to the amount

of damages requested. Washington v. Philadelphia County Court of

Common Pleas, 89 F.3d 1031, 1042-43 (3d Cir. 1996). We may not,

however, adjust the lodestar to reflect a certain ratio between

the fees and damages awarded. Washington, 89 F.3d at 1042-43. 

Plaintiff raised numerous claims and was only

successful on two, albeit significant, claims. He was

unsuccessful on his state law claims for battery, malicious

prosecution, false arrest, and excessive force. He was also

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unsuccessful on his § 1983 claims under the First and Fourth

Amendments to the extent they were based upon his arrest in 2000

and on § 1983 claims for excessive force and malicious

prosecution. Plaintiff's complaint requested damages in excess

of $150,000 while he was only awarded $41,000. Nonetheless, the

claims for relief all involved "a common core of facts" and were

"based on related legal theories .... making it difficult to

divide the hours expended on a claim-by-claim basis." Hensley,

461 U.S. at 435. Taking the degree of success of the litigation

into account we will reduce the lodestar by 10%.

Plaintiff has moved for two upward adjustments. He

requests one based upon the quality of his counsel's

representation and another based upon the contingent nature of

the claims. We will deny these requests. "The quality of

representation, ... generally is reflected in the reasonable

hourly rate. It, therefore, may justify an upward adjustment

only in the rare case where the fee applicant offers specific

evidence to show that the quality of service rendered was

superior to that one reasonably should expect in light of the

hourly rates charged and that the success was exceptional." Blum

v. Stenson, 465 U.S. 886, 899 (1984) (internal quotations

omitted). Our Court of Appeals has reiterated that

"[c]ontingency multipliers will be granted only in rare cases." 

Rode, 892 F.2d at 1184. This is not such a rare case. 

Finally, plaintiff requests costs in the amount of

$2,231.35. Defendants object to the cost of the deposition

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transcript of Lt. Presto. The entry, dated April 27, 2005, lists

a total cost of $932 for four deposition transcripts, including

that of Lt. Presto. No separate charge for Lt. Presto's

deposition transcript is outlined. We have already determined

that the deposition of Lt. Presto was unnecessary. Where

documentation is inadequate we may reduce an award accordingly. 

See Hensley, 461 U.S. at 433. The defendants have requested a

deduction of $150. The plaintiff does not dispute this charge

for his deposition. We will therefore deduct $150 from the

requested costs. The total costs awarded are therefore

$2,081.35.

Accordingly, we will award plaintiff, as the prevailing

party, counsel fees in the amount of $45,352.13 and costs in the

amount of $2,081.35 for a total of $47,433.48.

Case 2:04-cv-03592-HB Document 68 Filed 08/26/05 Page 10 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALLEN E. ROBINSON : CIVIL ACTION

:

v. :

:

PATRICK V. FETTERMAN, et al. : NO. 04-3592

ORDER

AND NOW, this day of August, 2005, for the

reasons set forth in the accompanying Memorandum, it is hereby

ORDERED that:

(1) the motion of plaintiff Allen E. Robinson for 

counsel fees pursuant to 42 U.S.C. § 1988(b) is GRANTED in part

and DENIED in part;

(2) plaintiff is awarded counsel fees in the amount 

of $45,352.13; and 

(3) plaintiff is awarded costs in the amount of 

$2,081.35.

BY THE COURT:

______________________________ 

 J.

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