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 This case, Docket Number 4:07-cv-512, was before the Honorable Malcolm Muir.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

THOM LEWIS, : 4:07-cv-2011

:

Plaintiff, :

:

v. : Hon. John E. Jones III

:

JESSE SMITH, et al., :

:

Defendants. :

MEMORANDUM AND ORDER

August 6, 2010

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is the Joint Motion for Sanctions on behalf of

Defendants Dan Flaherty and Frank Sterner (Doc. 33) filed on February 22, 2010. 

The Motion has been fully briefed by the parties and is therefore ripe for our

review. The Motion shall be granted to the extent set forth hereinafter.

I. PROCEDURAL HISTORY

A summary of the procedural history of this matter and a prior related matter

is necessary to the disposition of this Motion. On March 19, 2007, Plaintiff Thom

Lewis filed a Complaint in the United States District Court for the Middle District

of Pennsylvania against numerous defendants (“hereinafter “Lewis I”).1

 Plaintiff,

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through counsel Don A. Bailey, Esq. (“Attorney Bailey”), alleged a violation of his

civil rights related to his “kennel License,” and sued for relief pursuant to 42

U.S.C. § 1983. In Lewis I, the Plaintiff accused the defendants of using his kennel

license to traffic in illegal dogs and of being parties to an illegal dog-selling ring

which allegedly included members of the Attorney General’s office.

On March 26, 2007, Lewis filed an Amended Complaint in Lewis I. 

Thereafter, on July 27, 2007, Judge Muir granted the Commonwealth defendants’

motion to dismiss for failure to state a claim with respect to all but one of the

Commonwealth defendants. 

On August 13, 2007, Dan Flaherty and Frank Sterner, defendants in Lewis I,

filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P.

12(b)(6). Rather than oppose the motion, Lewis filed a Second Amended

Complaint, without requesting leave of Court. Judge Muir sua sponte issued an

Order striking the Second Amended Complaint, and, in an abundance of fairness to

Lewis, provided him an opportunity to file an opposition brief to Flaherty and

Sterner’s motion to dismiss. Thereafter, on October 18, 2007, Judge Muir granted

Flaherty and Sterner’s motion to dismiss. 

On July 28, 2009, Judge Muir granted the remaining Commonwealth

defendant’s motion for summary judgment, thereby closing the case in Lewis I.

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Lewis did not file an appeal of the Orders of dismissal in Lewis I.

On November 2, 2007, Lewis filed a new action that was assigned to the

undersigned (“Lewis II”). The new action asserted the same or substantially

similar claims as Lewis I, and included some of the same defendants that were

dismissed from Lewis I, including Flaherty and Sterner.

On February 5, 2008, Defendants Flaherty and Sterner filed a motion to

dismiss in Lewis II, alleging, inter alia, that Lewis’ claims were barred by the

doctrines of res judicata and/or collateral estoppel based upon Judge Muir’s

previous ruling in Lewis I. 

On February 14, 2008, counsel for Flaherty and Sterner sent a letter to

Attorney Bailey, requesting that he withdraw the new action. Attorney Baily did

not respond to the letter.

By Order dated August 7, 2008, this Court granted Flaherty and Sterner’s

motion to dismiss, finding that Lewis II was barred by the doctrine of res judicata. 

 On September 17, 2008, Lewis filed an appeal to the Third Circuit Court of

Appeals to contest this Court’s dismissal of Lewis II. The Third Circuit affirmed

our August 7, 2008 dismissal of Lewis’ claims against Flaherty and Sterner. The

Third Circuit specifically concluded that “[i]f Lewis disagreed with the Lewis I

court’s rulings, he should have moved for reconsideration or filed an appeal rather

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 Flaherty and Sterner sought an award of $39,565.84 for attorney’s fees and costs in the

Third Circuit pursuant to Fed. R. App. P. 38, 42 U.S.C. § 1988 and 28 U.S.C. § 1927 from Thom

Lewis and his counsel, Don Bailey. United States Magistrate Judge Timothy R. Rice was

appointed as a special master to recommend resolution of the attorney’s fees and costs motion. 

On July 28, 2010, Magistrate Judge Rice issued a Report and Recommendation (“R&R”)

recommending that Flaherty and Sterner be awarded $28,041.71 in fees and costs to be paid by

Attorney Bailey. Within the R&R, Magistrate Judge Rice concluded that Attorney Bailey

“unreasonably and vexatiously multiplied the appellate litigation by presenting claims which

were not well grounded in existing law, “and that “improper legal tactics employed by the

Appellant establishe[d] the bad faith that has characterized this appellate litigation.” Report and

Recommendation, No. 08-3800, July 28, 2010, pp. 14 -15. On August 5, 2010, the Third Circuit

adopted Magistrate Judge Rice’s R&R. (Doc. 58).

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 Plaintiff filed an opposition to the Defendants’ revised statement of fees sought, to

which Defendants filed a reply. (Docs. 52, 56, and 57). Thus, this issue is fully ripe before the

Court.

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than file a second action.” (Doc. 33, Ex. K., p. 6).2

Thereafter, Defendants Flaherty and Sterner filed the instant motion for

attorneys fees. Upon review of the Motion, we issued an Order requiring the

Defendants to file a supplemental submission cataloging the fees billed in Lewis II

only, inasmuch as we do not have jurisdiction to award fees incurred in Lewis I. 

(Doc. 51). On June 21, 2010, the Defendants filed a supplemental submission

indicating that they seek $22,939.69 for fees and costs incurred in this matter. 

(Doc. 52).3

II. DISCUSSION

A. 28 U.S.C. § 1927 Anaylsis

28 U.S.C. § 1927 authorizes a court to impose sanctions upon an attorney

who “unreasonably and vexatiously” multiplies the proceedings in a case. To

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make an award under this statute, a court must find that the attorney acted with bad

faith. See Baker Industries, Inc. v. Valley Fair, 764 F.2d 204, 206 (3d Cir. 1985). 

Bad faith may be shown though the “intentional advancement of a baseless

contention that is made for an ulterior purpose, e.g. harassment or delay.” Ford v.

Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986). “When a claim is advocated

despite the fact that it is patently frivolous or where a litigant continues to pursue a

claim in the face of an irrebuttable defense, bad faith can be implied.” Loftus v.

Southeastern Pa. Transp. Auth., 8 F. Supp. 2d 458, 461 (E.D. Pa. 1991), aff’d, 187

F.3d 626 (3d Cir. 1999), cert. denied, 528 U.S. 1047 (1999). Bad faith is a factual

determination. Evidence of bad faith includes: (1) the claims advanced were

meritless; (2) counsel knew or should have known the claims were meritless; and

(3) the motive for filing the suit was for an improper purpose, such as harassment.” 

See In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 278 F. 3d

175, 188 (3d Cir. 2002). Moreover, this Court also possesses the inherent power to

impose sanctions on litigants and attorneys to “deter abuse of judicial process.” 

Quiroga v. Hasbro, Inc., 934 F.2d 497, 505 (3d Cir. 1991).

Flaherty and Sterner argue that Attorney Bailey acted in bad faith, thus

satisfying the prerequisite to sanctions under 28 U.S.C. § 1927, by filing and

persisting in litigating Lewis II, in the face of the motion to dismiss on res judicata

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 It is well to note that Attorney Bailey was sanctioned for similar conduct in Beam v.

Downey, 151 Fed. Appx. 142 (3d Cir. 2005).

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 Astonishingly, in the briefing on the instant motion, Attorney Bailey continues to argue

that Lewis II was not barred by res judicata.

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 The Defendants originally requested that we award them all attorneys fees and costs

incurred in defending both Lewis I and Lewis II. However, as noted above, we do not find that

sanctioning Attorney Bailey for the fees incurred by the Defendants in Lewis I is appropriate in

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grounds and defense counsel’s letter to Attorney Bailey requesting that he

withdraw the action inasmuch as it was barred by the rulings made by Judge Muir

in Lewis I. We concur with the Defendants’ assessment and find that Attorney

Bailey’s filing of Lewis II, and persistence in the lawsuit, is sanctionable under

section 1927. As noted by the Third Circuit, rather than filing an appropriate

motion to reconsider or appeal in Lewis I, Attorney Bailey filed a subsequent,

frivolous action before this Court that was barred by res judicata grounds.4

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filing of Lewis II forced the Defendants to incur additional expenses, that, quite

simply, they never should have been forced to incur in the first place. Thus, we

find that sanctions under section 1927 are entirely appropriate in this circumstance

because Attorney Bailey unreasonably and vextatiously multiplied this litigation by

filing a second lawsuit that was clearly barred by res judicata.

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B. Award of Attorneys Fees

Next we must determine whether the amount requested by Defendants is a

reasonable attorney’s fees award.6

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this case. While we recognize that reason for sanctioning Attorney Bailey in this case relates to

the litigation of Lewis I, we find it is beyond this Court’s reach to sanction him relative to that

lawsuit. Additionally, although sought by Defendants on the instant motion, we shall decline to

award attorney’s fees relevant to the Plaintiff’s attempts to appeal to the United States Supreme

Court.

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“In general, a reasonable fee is one which is adequate to attract competent

counsel, but which does not produce windfalls to the attorneys.” Pub. Interest

Research Group v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995) (internal quotation

omitted). A court typically calculates the appropriate award by determining a

lodestar. The lodestar is calculated by determining the product of an appropriate

hourly rate and a reasonable number of hours expended. The party seeking fees

has the burden of producing “sufficient evidence of what constitutes a reasonable

market rate for the essential character and complexity of the legal services

rendered. . . .” Knight v. Drye, 2009 U.S. Dist. LEXIS 82369 (M.D. Pa. Sept. 10,

2009) (quoting McCutcheon v. America’s Servicing Co., 560 F.3d 143, 150 (3d

Cir. 1990)). Once the prevailing party’s burden has been met, the opposing party

bears the burden of producing sufficient evidence to challenge that amount. 

McCutcheon, 560 F.3d at 150. If the opposing party does not challenge the

amount, or does not provide sufficient evidence to challenge the amount, the

district court need not make an independent lodestar determination, though the

calculation of fees nonetheless is within the court’s discretion. Id.

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A reasonable hourly rate is typically based on the prevailing rates in the

relevant community, and “[t]he court should assess the experience and skill of the

prevailing party’s attorneys and compare their rates to the rates prevailing in the

community for similar services. . . .” Maldonado v. Houstoun, 256 F.3d 181, 184

(3d Cir. 2001). “Thus determination of the market rate first requires determination

of the relevant market.” Windall, 51 F.3d at 1186. In determining the reasonable

hourly rate, courts can start by considering “the attorney’s usual billing rate, but

this is not dispositive.” Maldonado, 256 F.3d at 185 (quoting Windall, 51 F.3d at

1185). As previously mentioned, the prevailing party bears the burden of

establishing “by way of satisfactory evidence in addition to the attorney’s own

affidavits that the requested hourly rates meet [the above-mentioned] standard.” 

Id. (quoting Washington v. Philadelphia Cty. Ct. of Common Pleas, 89 F.3d 1031,

1035 (3d Cir. 1996)) (internal quotation omitted).

In addition to determining a reasonable hourly rate, a court is charged with

calculating the hours that are reasonably expended by the prevailing party. “Hours

are not reasonably expended if they are excessive, redundant, or otherwise

unnecessary.” Rode v. Dellarciprete, 802 F.2d 1177, 1183 (3d Cir. 1990). As

such, a party should not be responsible for those hours that are not reasonable or

are excessive under the circumstances.

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The amount reached by employing this framework and calculating the

lodestar is typically “presumptively reasonable.” Interfaith Cmty. Org. V.

Honeywell Int’l, Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005). Nonetheless, after

calculating the lodestar, a district court’s discretion then comes into play and the

court may then increase or decrease the total award based upon other factors such

as the relative success of the prevailing party. See In re Diet Drugs, 582 F.3d 524,

540 (3d Cir. 2009). 

1. Reasonableness of Hourly Rates

Counsels’ hourly rates are reported as follows: Attorney Montgomery, $250

per hour; Attorney Coble, $130 to $180 per hour; Attorney Skojoldal, $160 per

hour; Attorney Susan Longnaker, $120 per hour; Attorney Schertz, $150 to $180

per hour; and Attorney Hoffman, $405 per hour. (Doc. 52, Exhibit A). Defendants

submitted the declaration of Attorney Montgomery that avers she charged the

Defendants $250.00 per hour in this matter, which is a significant discount from

her usual and customary rates that have ranged from $315.00 to $370.00 per hour

from 2007 to the present. Attorney Montgomery’s declaration also avers that her

rate of $250.00 in this matter is less than the rate that is reasonable and appropriate

for an attorney with her experience in the Harrisburg legal market. (Doc. 52,

Exhibit C). 

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Consequently, we find that the hourly rates for Attorneys Montgomery,

Coble, Skjoldal, Longnaker and Schertz reasonable as they fall well below the

accepted hourly rates for practitioners in the Harrisburg legal community. The

higher amount of Attorney Hoffman’s rate, however, is not supported by the

exhibits submitted with Defendant’s Motion. Attorney Hoffman performed 5.3

hours of work in total in this matter, and his work pertained exclusively to the

drafting the reply brief on this motion. There is no evidence that Attorney

Hoffman’s work on this Motion is specialized work or that the Motion presented

complex legal issues warranting specialized services at a higher rate. See

Washington v. Phila. Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996); 

Institutionalized Juveniles v. Sec. of Pub. Welfare, 758 F.2d 897, 924 (3d Cir.

1985); Prandini v. Nat’l Tea Co., 585 F.2d 47, 54 (3d Cir. 1978). Thus, because

the basis for Attorney Hoffman’s rate is unsupported by evidence, we shall reduce

his rate to match Attorney Montgomery’s rate of $250, which, as noted, we find to

be reasonable 

2. Hours Reasonably Expended

Defendants request compensation for 121.15 hours of work on this matter,

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 As previously noted, we shall not entertain the Defendants’ request for fees generated in

either Lewis I or the attempted writ of certiorari to the United States Supreme Court.

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Lewis II, including the hours expended on the instant sanctions motion.7 As

required, the Defendants have submitted evidence supporting the hours worked in

the form of detailed timesheets/invoices. Despite Attorney Bailey’s baseless

protestations to the contrary, we find that the Defendant’s fee petition is

accompanied by “fairly definite information as to hours devoted to various general

activities . . . and the hours spent by various classes of attorneys.” United Auto.

Workers Local 259 Soc. Sec. Dept. v. Metro Auto Ctr., 501 F.3d 283, 291 (3d Cir.

2007) (quoting Evans v. Port Auth., 273 F. 3d 346, 361 (3d Cir. 2001)).

We have examined the Defendants’ detailed fee invoices. (Doc. 52, Exhibit

A) The March 31, 2009 invoice reflects work done from the inception of the case

(the first billed entry is January 9, 2008) through the filing and briefing of the

motion to dismiss (the final entry on this invoice is May 15, 2008), totaling 25.9

hours. Encompassed within these 25.9 hours was Attorney Montgomery’s

preparation for and participation in the Rule 16 conference of attorneys, research

for and preparation of the Defendants’ successful motion to dismiss, and the

preparation of a motion to stay discovery, the latter two tasks performed by

Attorneys Coble and Montgomery. We do not find that 25.9 hours of work,

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 There are two invoices dated March 31, 2010. The first invoice is number 670308D. 

The second invoice is numbered 670364D. To avoid confusion, we shall refer to these invoices

as the “first” and “second” March 31, 2010 invoices.

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including motion practice, performed by two attorneys over the course of five

months is unreasonable. Thus, we shall not make any reductions to the March 31,

2009 invoice and shall award the total amount of fees billed on this invoice of

$5,011.00

The January 30, 2009 invoice reflects work performed from September 8,

2008 through November 26, 2008 and mainly involves the research and initial

drafting of the instant Motion. The total time billed on this invoice by Attorneys

Schertz, Skjoldal and Longnaker is 46.4 hours. Upon our review of this invoice,

we find that a portion of the hours billed by Attorney Schertz are duplicative and

excessive. Given the straightforward nature of the sanctions motion, we find in

particular that Attorney Schertz’s reported hours for research and drafting of the

motion are greater than necessary to perform these tasks. Thus, we shall reduce

Attorney Schertz’s hours on the January 30, 2009 invoice from 34.4 hours to 24.4

hours. Accordingly, on this invoice, we shall correspondingly reduce the amount

of attorneys’ fees from $5,832.00 to $4,332.00.

The first March 31, 20108

 invoice reflects work performed by Attorneys

Montgomery and Schertz from February 2, 2010 to February 23, 2010. The total

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 There are also two May 17, 2010 invoices. The first is number 677825D and the second

is number 677829D. They shall be referred to as the “first” and “second” May 17, 2010

invoices.

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amount of hours billed on this invoice is 18.45 and the tasks performed involve the

revisions to, and filing of, the instant Motion. Once again, we find the amount of

hours reported by Attorney Schertz on this invoice to be excessive in light of their

duplicative nature. Thus we shall reduce Attorney Schertz’s hours on this invoice

from 15.65 hours to 7.8. Accordingly, on this invoice, we shall reduce the amount

of attorneys’ fees from $3,517.00 to $2,104.00.

The second March 31, 2010 invoice reflects work performed by Attorneys

Montgomery and Schertz from March 15, 2010 to March 17, 2010. The total

number of hours billed on this invoice is 15.30 hours. On this invoice there

appears to be duplicative billing for the same task (i.e. revisions to the brief in

support of the instant motion) by Attorneys Montgomery and Schertz. 

Accordingly, we shall reduce Attorney Montgomery’s hours on this invoice from

4.3 hours to 3 hours and Attorney Schertz’s hours from 11 to 9. As a result, on the

second March 31,2 010 invoice, we shall correspondingly reduce the amount of

attorneys’ fees from $3,055.00 to $2,370.00.

The first May 17, 2010 invoice9

 reflects work performed by Attorneys

Montgomery and Schertz from April 1, 2010 to April 27, 2010 and encompasses

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2.5 hours of work. The work performed on this invoice involves the review of

Plaintiff’s opposition brief and calculation of filing deadlines. We find the time

billed for the tasks performed on this invoice to be reasonable and shall award the

entire amount of the invoice of $520.00.

The second May 17, 2010 invoice reflects worked performed by Attorneys

Montgomery and Schertz from May 5, 2010 to May 13, 2010 and totals 7.3 hours

of work. In this time frame, Attorneys Montgomery and Schertz performed

research for and drafted the reply brief on the instant Motion. We find that the

time entries appear reasonable and are not excessive. Thus, we shall award the

total amount of this invoice of $1,419.00.

The final invoice submitted is dated June 21, 2010 and reflects 5.3 hours of

work performed by Attorney Hoffman from May 4, 2010 to May 7, 2010. 

Attorney Hoffman’s work was limited to the preparation of the reply brief on the

instant motion. We find the time entries on this invoice to be reasonable. 

However, as noted above, we have reduced Attorney Hoffman’s rate from $405 per

hour to $250 per hour. Thus, the amount of this invoice shall be reduced from

$2,146.50 to $1,325.00.

To review, we shall award the following amount of fees:

March 31, 2009 Invoice: $5,011.00

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January 30, 2009 Invoice: $4,332.00

March 31, 2010 (1) Invoice: $2,104.00

March 31, 2010 (2) Invoice: $2,370.00

May 17, 2010 (1) Invoice: $520.00

May 17, 2010 (2) Invoice: $1,419.00

June 21, 2010 Invoice: $1,325.00

__________________________________________

Fee Total: $17,801.00

Defendants are seeking an additional award of costs, in the total amount of

$1,439.19. A review of the invoices submitted by Defendants reveals that this

amount is comprised of costs associated with computer assisted legal research (i.e.

Westlaw and/or Lexis Nexis), document reproduction, PACER charges, and

postage. We do not find that the types of costs billed nor the amount of the costs

billed to be excessive. Accordingly, we shall award the Defendants the full

amount of the costs they seek, $1,439.19. 

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Thus, the total amount of attorneys’ fees and costs awarded to the

Defendants against Attorney Bailey pursuant to 28 U.S.C. § 1927 is as follows:

Fee Total: $17,801.00

Costs Total: $ 1,439.19

_____________________________

TOTAL: $19,240.19

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendants’ Motion for Sanctions (Doc. 33) is GRANTED to the

following extent:

a. The Defendants are awarded $19,240.19 in attorneys’ fees and

costs to be paid by Attorney Donald A. Bailey.

s/ John E. Jones III

John E. Jones III

United States District Judge

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