2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-2-2009

Michael McKenna v. City of Philadelphia

Precedential or Non-Precedential: Precedential

Docket No. 08-4109

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4109

_____________

MICHAEL MCKENNA; BETH MCKENNA; 

TIMOTHY MCKENNA; PATRICIA SULLIVAN, 

 Appellants

v.

CITY OF PHILADELPHIA; ANDREW JERICHO; 

MARK STOOTS; CAPTAIN DEBORAH KELLY; 

2 JOHN DOE MALE POLICE OFFICERS

ONE WHITE AND ONE BLACK, Sued in official 

and individual capacity, Sued individually and jointly, 

Held liable individually and jointly;

JONATHAN JOSIE

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 07-110)

Honorable J. William Ditter, Jr., District Judge

 

Argued June 2, 2009
2

BEFORE: MCKEE, HARDIMAN, and GREENBERG, 

Circuit Judges

(Filed: October 02, 2009)

 

Brian M. Puricelli

691 Washington Crossing Road

Newtown, PA 18940

Brian K. Wiley (argued)

100 South Main Street

North Wales, PA 19454

 Attorneys for Plaintiffs-Appellants

Shelley R. Smith, City Solicitor

Jane L. Istvan (argued)

Senior Attorney, Appeals

City of Philadelphia Law Department

1515 Arch Street, 17th Floor

Philadelphia, PA 19102

 Attorneys for Defendants-Appellees

 

OPINION OF THE COURT

 
 The District Court set forth the background of the case in its 1

post-trial opinion denying plaintiffs’ motion for judgment as a

matter of law or for a new trial. McKenna v. City of

Philadelphia, Civ. No. 07-110, 2008 U.S. Dist. LEXIS 76766

(E.D. Pa. Sept. 30, 2008).

3

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on plaintiffs’

appeal from orders entered in this action under 42 U.S.C. §

1983, denying their motion for a judgment as a matter of law or

for a new trial and granting defendants partial summary

judgment and a partial judgment as a matter of law. In addition,

plaintiffs appeal from an order awarding them attorneys’ fees,

claiming that the award was inadequate. 

This case arose from encounters between the Philadelphia

police and revelers at an impromptu street celebration following

the Philadelphia Eagles’ National Football Conference

championship win on January 23, 2005.

1 The four plaintiffs —

Timothy McKenna; his parents, Michael and Beth McKenna

(hereinafter “Mr. and Mrs. McKenna”); and his aunt, Patricia

Sullivan — watched the game on television and then, bringing

two video cameras, left home to join thousands of other Eagles

fans celebrating in the streets of northeast Philadelphia in the

vicinity of Cottman and Frankford Avenues. Eventually, the
 Timothy’s family recorded the events of the evening on two 2

videotapes. In addition to the tape Mr. and Mrs. McKenna

recorded, Ms. Sullivan recorded a tape that partially captured the

events occurring at Cottman and Frankford Avenues. Ms.

Sullivan’s tape was played for the jury at trial. Sometime before

trial, however, the tape Mr. and Mrs. McKenna recorded

disappeared from their possession for reasons unknown to us. 

4

gathering started to get out of control, and plaintiffs crossed

paths with police officers attempting to disperse the crowd so

that injuries and property damage could be avoided. 

At the trial, plaintiffs and the officers offered what in

some respects were differing accounts of their encounter. They

all agreed, however, that during the encounter the police, in

particular Officer Andrew Jericho, arrested 17-year-old Timothy

McKenna. After they arrested Timothy, the police brought him

to the 15th District Headquarters (the “15th District”) for

processing. His parents arrived at the 15th District sometime

later. While arguing with Sergeant Mark Stoots regarding

Timothy’s status, Mr. McKenna was using his video camera to

film activities in the 15th District’s operations room, an area that

was not open to the public for unrestricted access but which

could be viewed through a window by occupants of the public

area of the 15th District building. After Sergeant Stoots

repeatedly asked Mr. McKenna to stop videotaping, Mr.

McKenna gave the camera to his wife to take to the car, but she

returned with the camera hidden under her jacket, still

recording. Ultimately, the police escorted Mr. and Mrs.

2

McKenna from the building after which they were free to go to
 Sergeant Josey’s name is misspelled as “Josie” in the 3

caption.

5

wherever they wished. The police, however, transported

Timothy to a hospital for evaluation because he complained of

injuries. Moreover, on their own initiative, Mr. and Mrs.

McKenna and Ms. Sullivan also went to the hospital seeking

evaluation and treatment. When the family returned to the 15th

District, the police released Timothy to his parents. Though the

police filed disorderly conduct charges against Timothy, a local

court dismissed the complaint for lack of prosecution after the

police did not appear for several scheduled proceedings.

On January 10, 2007, the four plaintiffs filed a complaint

in the District Court alleging that the City of Philadelphia

(hereinafter, the “City”) and various police officers directly had

committed or were responsible for multiple violations under

section 1983 of their constitutional rights during the course of

the foregoing events. The City successfully moved for summary

judgment on plaintiffs’ claims against it, but the case then

proceeded to trial against defendants Captain Deborah Kelly,

Officer Jericho, Sergeant Stoots, and Sergeant Jonathan Josey3

on claims of Fourth Amendment malicious prosecution, false

arrest, excessive force, and First Amendment retaliation. The

First Amendment claim alleged that defendants improperly

delayed Timothy’s release in retaliation for Mr. McKenna’s

action in bringing a prior lawsuit against the City, and for the

McKennas’ refusal to stop videotaping the operations room at

the 15th District where the police were holding Timothy. 
6

At the trial the District Court granted Officer Jericho’s

motion for judgment as a matter of law on the malicious

prosecution claim and granted judgment in favor of Sergeant

Stoots and Sergeant Josey on supervisory liability claims. The

Court also granted judgment as a matter of law in favor of

Captain Kelly, finding that there was no evidence that she

witnessed either the arrest or an improper delay in Timothy’s

release.

On September 14, 2007, following a five-day trial on the

remaining claims, the jury found in favor of defendants on all

charges except Timothy McKenna’s false arrest claim against

Officer Jericho. The jury awarded Timothy $150,000 in

damages on that claim. 

Subsequently, Timothy’s attorney, Brian Puricelli, filed

a fee petition pursuant to 42 U.S.C. § 1988, seeking $181,340

for representation of Timothy. Moreover, he separately filed a

bill of costs with the Clerk of the District Court seeking the

taxation of costs, but only against Officer Jericho, the sole

defendant who had been held liable in the case. In a post-trial

motion, plaintiffs also raised multiple grounds for the grant of

a judgment as a matter of law and, in the alternative, a new trial.

On September 30, 2008, the District Court denied plaintiffs’

post-trial motions and, in a separate opinion and order, awarded

them $27,178.75 in attorneys’ fees, explaining at length its

reasons for awarding so much less than the amount sought in the

fee application. See McKenna v. City of Philadelphia, Civ. No.

07-110, 2008 U.S. Dist. LEXIS 76769 (E.D. Pa. Sept. 30, 2008).

The Court declined to rule on Timothy’s request for costs,

noting that the Clerk of its Court had not yet taxed costs and
 Plaintiffs’ notice of appeal recites that they are appealing 4

from the order denying them a new trial or a judgment as a

matter of law and from the order awarding attorneys’ fees as

well as from “rulings made pretrial . . . and during trial.” App.

at 67. Thus, we treat this appeal as encompassing all of the

issues raised in their brief, including those that go beyond the

three matters the notice of appeal specifically cited. See Pacitti

v. Macy’s, 193 F.3d 766, 776–77 (3d Cir. 1999). We note that

even though all plaintiffs join in all aspects of the notice of

appeal, the three unsuccessful plaintiffs do not contend that they

would be entitled to attorneys’ fees if we affirm on the

substantive disposition of this case in the District Court.

7

that, therefore, under the procedure outlined in Eastern District

Local Rule 54.1(b), there was nothing for it to review. 

Subsequently, plaintiffs filed an appeal challenging

certain aspects of both orders. For the reasons we discuss

below, we will affirm the District Court’s award of attorneys’

fees and its denial of plaintiffs’ motion for a judgment as a

matter of law or for a new trial and will dismiss the appeal

insofar as plaintiffs are seeking costs for the District Court

proceedings.4

 

II. JURISDICTION

The District Court had jurisdiction over plaintiffs’ section

1983 claims pursuant to 28 U.S.C. §§ 1331 and 1343, and we
 Defendants concede, citing Budinich v. Becton Dickinson & 5

Co., 486 U.S. 196, 200–03, 108 S.Ct. 1717, 1721–22 (1988),

that the costs issue is an “ancillary matter” like a dispute over

statutory attorney’s fees that “should not undermine the finality

of the fee award.” Appellees’ br. at 2. We agree and apply that

principle to the entire appeal.

 In their brief, plaintiffs contend that 28 U.S.C. § 1920 “does 6

not require a request for approval of a Bill of Cost[s] to first go

to the Clerk; rather it grants a choice to the prevailing party to

ask the Clerk or a Judge of the United States Courts to award the

Costs.” Appellants’ br. at 16. We can understand the basis for

that contention, inasmuch as section 1920 provides that “a judge

or clerk . . . may tax costs.” This language, however, merely

8

have jurisdiction pursuant to 28 U.S.C. § 1291 to review the

orders challenged on this appeal, except we lack jurisdiction

over the District Court’s action in deferring disposition of

Timothy’s request for it to fix costs. Under the procedures

outlined in Fed. R. Civ. P. 54(d)(1) and Local Rule 54.1(b), the

Clerk taxes costs, and then, if there is an objection to the Clerk’s

action, the District Court reviews the Clerk’s award. Here, the

District Court declined to take any action on Timothy’s request

for costs because the Clerk had not yet taxed costs. Thus,

because neither the Clerk nor the District Court has made any

determination of whether Timothy is entitled to costs, let alone

settled on the quantum of the costs, there is not a final order on

the costs issue for us to review. Therefore, to the extent that 5

Timothy seeks a review of the disposition on his application for

costs, we will dismiss the appeal without prejudice to further

proceedings with respect to costs in the District Court.6
indicates which officers have the authority to tax costs, and does

not grant the prevailing party a choice between the two. We do

not believe that Congress intended to preclude the adoption of

Fed. R. Civ. P. 54(d)(1) or a comparable district court rule

requiring that the clerk make the initial determination of the

entitlement to and the quantum of costs. In any event, in the

absence of a clear congressional direction, we will not require

a district court to follow a procedure that would allow a litigant

to determine whether a clerk or a judge must decide the issue. 

 We recognize that a reader might find it strange that we first

7

address the attorneys’ fees issue but in doing so we follow the

order of the issues that plaintiffs advance in their brief. 

9

III. DISCUSSION

A. Attorneys’ Fees 

We exercise plenary review in considering whether the

District Court applied the proper legal standards in determining

the fee award, and we review the reasonableness of the fee

award for abuse of discretion. Jama v. Esmor Corr. Servs.,

7

Inc., 577 F.3d 169, 173 (3d Cir. 2009). We will conclude that

there has been an abuse of discretion if a reasonable person

could not have adopted the District Court’s view of the

appropriate amount of an award. Rode v. Dellarciprete, 892

F.2d 1177, 1182–83 (3d Cir. 1990). We review the Court’s

factual findings on an attorneys’ fee application, “including [the

Court’s] determination of an attorney’s reasonable hourly rate

and the number of hours he or she reasonably worked on the
10

case,” for clear error. Interfaith Cmty. Org. v. Honeywell Int’l,

Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005). 

The District Court awarded fees pursuant to 42 U.S.C. §

1988, which provides that prevailing parties in civil rights cases

may be granted “a reasonable attorney’s fee.” The starting point

for determining the amount of a reasonable fee is the lodestar,

which courts determine by calculating the “number of hours

reasonably expended on the litigation multiplied by a reasonable

hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.

1933, 1939 (1983). Hensley instructs that courts are to exclude

from the determination of the lodestar any hours not reasonably

expended. Hours subject to exclusion under Hensley include

those deemed “excessive, redundant, or otherwise unnecessary.”

Id. at 434, 103 S.Ct. at 1939–40.

A court’s calculation of the lodestar, however, does not

end its inquiry on a fee application. A district court can adjust

a fee award upward or downward based upon the results

obtained in a case. Id. at 434, 103 S.Ct. at 1940. In addition, an

attorney’s work on unsuccessful claims not related to the claims

on which the attorney succeeded is not compensable, because

such work “cannot be deemed to have been expended in pursuit

of the ultimate result achieved.” See id. at 434–35, 103 S.Ct. at

1940 (internal quotation marks omitted). Moreover, as we have

held, “the District Court has a positive and affirmative function

in the fee fixing process, not merely a passive role” and “should

reduce the hours claimed by the number of hours spent litigating

claims on which the party did not succeed, that were distinct

from the claims on which the party did succeed, and for which

the fee petition inadequately documents the hours claimed.”
 It well may be that the City will satisfy any judgment against 8

Officer Jericho and so, effectively, filed the objections on its

own behalf. As a matter of convenience we will refer to the

objections to the fee application as if the City filed them on

behalf of all defendants as, indeed, the objections recite.

11

Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir.

2001). 

Here, Timothy’s trial attorney, Brian M. Puricelli,

requested a total fee award of $181,340, comprising $171,040

for 427.6 hours of his own work and $10,300 for 41.2 hours

logged by his co-counsel, Theodore M. Kravitz. The City,

though entirely successful as an entity, filed detailed objections

to the fee petition, in theory on Officer Jericho’s behalf, and

suggested that an appropriate award would be $19,506.08.8

After making several sets of deductions and adjustments to the

fee request, the Court awarded Timothy a total attorneys’ fee of

$27,178.75, representing $25,602.50 for Puricelli’s work and

$1,576.25 for Kravitz’s work. Bearing in mind that our review

of the Court’s award is quite deferential, we now examine its

adjustments. 

1. Deductions for Hours Not Reasonably Expended

The District Court began by applying Hensley to exclude

from the lodestar those hours that were not reasonably expended

in the pursuit of Timothy’s successful claim, a process that

entailed reviewing the time charged, deciding whether the hours

set out were reasonably devoted to each of the particular
 In this regard plaintiffs’ attorney originally submitted to the 9

District Court an uncorrected and mistake-filled draft of his fee

application. That Court understandably was disturbed by this

submission and by what it perceived as counsel’s sloppy work

throughout the case. We are satisfied that a court can consider

the quality of an attorney’s filings when fixing fees.

Nevertheless, we should not be understood as reaching our

conclusion on a punitive basis. 

 Plaintiffs point out that Puricelli is 54 years old “but despite 10

his age it remains that he, like many fifty, sixty, and seventyyear-olds, (even those on the bench) is able to work hard and

long hours.” Appellants’ br. at 34 (emphasis added). We in no

way suggest that we believe that Puricelli’s age required him to

spend extra time on this case, though we acknowledge that at

least some judges in their seventies or older have difficulty

working the same number of hours or at least with the same

efficiency that they worked when younger.

12

purposes described, and then excluding the hours that were

“excessive, redundant, or otherwise unnecessary.” See 461 U.S.

at 434, 103 S.Ct. at 1939–40. See also Loughner, 260 F.3d at

178. In making this determination, the Court excluded a

substantial portion of the hoursthe attorneys billed for preparing

the complaint, the proposed jury instructions, and the fee

petition after concluding that the fee request included excessive

time for these undertakings in light of the nature and quality of

the work produced. After reviewing the documents in question 9

and the Court’s discussion of them, we cannot quarrel with its

finding that some of the time claimed was excessive and was not

reasonably expended. 

10
 These are the precise rates that Puricelli requested that the 11

District Court apply. In making his request, however, Puricelli

did not apply the $300 rate to any of his hours, instead achieving

the $171,040 figure by multiplying all 427.6 hours by his top

rate of $400. Thus, Puricelli’s initial fee request was,

undeniably, excessive, and his complaints about the stark

difference between his request and the District Court’s award

ring somewhat hollow. In any event, an attorney making a fee

application in a statutory fee-shifting case should not be able to

use an outlandish application as an initial bargaining position in

the same way that an attorney for a plaintiff in a personal injury

case might make a grossly inflated opening demand in

negotiations for a settlement.

13

2. Adjustments to Hourly Rates

After the District Court reduced the hours allowed for the

preparation of the complaint and eliminated the hours spent

preparing the proposed jury instructions and fee petition, it

arrived at a lodestar of 352.1 hours for Puricelli and 28.7 hours

for Kravitz. Next, the Court determined a proper hourly rate for

each attorney for his different types of work. Based on the rate

Puricelli requested, along with his experience and what he had

been paid for work on other cases in the same legal market, the

Court concluded that Puricelli should receive $400 per hour for

work in court and $300 per hour for trial-preparation work.11

The Court concluded that $250 per hour was an appropriate rate

for Kravitz. In the case of both attorneys, however, the Court

decided to award fees at a reduced rate of $150 per hour for 15.8
14

hours that they spent performing clerical tasks such as faxing,

emailing, filing, scanning, assembling, and conforming. Also,

because the fee application failed to break down trial time by

category to reflect time spent in and out of court, the Court used

its own records to estimate the proper separation of time for

those periods and awarded fees accordingly. 

In the circumstances confronting the District Court, it

was entirely appropriate for the Court to separate time for incourt work, trial preparation, and clerical tasks for compensation

at different rates. See Loughner, 260 F.3d at 180 (“A claim by

a lawyer for maximum rates for telephone calls with a client,

legal research, a letter concerning a discovery request, the

drafting of a brief, and trial time in court is neither fair nor

reasonable.”). “A District Court’s determination of market

billing rates ‘is a factual question which is subject to a clearly

erroneous standard of review.’” Jama, 577 F.3d at 180 (quoting

Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d Cir.

1997)). The Court reached a reasonable rate for each of the

separate types of tasks performed, amply supported by its

findings and well within its discretion, and we see no error in its

reductions. 

3. Reduction for Unsuccessful Trial Claims

The District Court also made a downward adjustment of

the requested fee to reflect Timothy’s lack of success on claims

distinct from his successful false arrest claim. The propriety of

this action depends upon whether the unsuccessful claims were,

in fact, distinct. Hensley cautions that courts should not reduce

fees simply because some of a prevailing party’s related claims
15

are unsuccessful. See 461 U.S. at 434–35, 103 S.Ct. at 1940.

For example, where a plaintiff’s claims involve “a common core

of facts” or are based on “related legal theories, . . . [m]uch of

counsel’s time will be devoted generally to the litigation as a

whole, making it difficult to divide the hours expended on a

claim-by-claim basis.” Id. at 435, 103 S.Ct. at 1940. However,

where a party brings claims that do not depend on the same sets

of facts and legal theories as the claims on which the party has

succeeded, fees should not be awarded for work on those

unrelated claims because the work “cannot be deemed to have

been expended in pursuit of the ultimate result achieved.” See

id. (internal quotation marks omitted). 

In a multi-party case, the proper allocation is of critical

importance. The District Court must ensure that a partially

successful defendant is not required to provide compensation for

an attorney’s unrelated efforts on behalf of an unsuccessful

plaintiff, or in pursuit of the unsuccessful claims of an only

partially victorious plaintiff, as section 1988 provides that only

a “prevailing party” may be granted a reasonable attorney’s fee.

Here, of course, inasmuch as only one claim by one plaintiff

succeeded in the District Court, the Court faced a difficult task

in sorting out the work that was fairly compensable, which could

include only the work that reasonably was expended in pursuit

of the sole successful claim. See Hensley, 461 U.S. at 435, 103

S.Ct. at 1940. Moreover, a plaintiff has the burden to establish

“that the time spent pursuing the unsuccessful claims

contributed in any way to [his] success on his remaining

claims.” Id. 

The District Court determined that Timothy’s successful
16

false arrest claim did not share a common core of facts with his

own unsuccessful claims or with the other three plaintiffs’

unsuccessful claims. Therefore, the District Court ruled that the

time spent in pursuit of these unsuccessful claims was not

compensable under Hensley. See id. at 435, 103 S.Ct. at 1940.

In reviewing the District Court’s conclusion, we note that

the unsuccessful malicious prosecution and First Amendment

retaliation claims concerned separate incidents that occurred

after Timothy’s arrest, and plaintiffs brought them under

separate legal theories. On the other hand, the excessive force

claims concerned events that were temporally proximate to

Timothy’s wrongful arrest. Nonetheless, we conclude that the

District Court did not abuse its discretion in concluding that

these claims did not share a common core of facts with the

successful false arrest claim. Establishing relatedness on a

claim-by-claim basis in the attorneys’ fees context is a factintensive determination that rightfully belongs within the

District Court’s discretion, given the trial court’s “superior

understanding of the litigation and the desirability of avoiding

frequent appellate review of what essentially are factual

matters.” Id. at 437, 103 S.Ct. at 1941. Here, the District Court

reasonably concluded that Timothy failed to carry his burden to

establish that the time spent pursuing the unsuccessful claims

contributed in any way to his success on the false arrest claim,

and that therefore no fees should be awarded for time spent on

those unsuccessful claims. 

After reaching this conclusion, the District Court then

had to determine what portion of the time billed was attributable

to the unsuccessful claims. In the absence of proper records
 Moreover, as defendants point out, using a strict 12

mathematical ratio of successful to unsuccessful claims would

have dictated an adjustment below one-quarter of the lodestar,

given that the one successful plaintiff out of four was successful

on only one of his three claims. 

17

separating time spent on plaintiffs’ claims individually, the

District Court concluded that one-quarter of the lodestar

appropriately reflected the hours the attorneys reasonably

expended representing Timothy on his lone successful claim —

a reduction which Puricelli contends was arbitrary and

mathematical. As the Court acknowledged, “[o]f course, a fee

award should not be calculated using a simple mathematical

approach based on the ratio between a plaintiff’s successful and

unsuccessful claims.” McKenna, 2008 U.S. Dist. LEXIS 12

76769, at *41. It is incumbent on the fee applicant, however, to

“maintain billing time records in a manner that will enable a

reviewing court to identify distinct claims.” Hensley, 461 U.S.

at 437, 103 S.Ct. at 1941. 

Puricelli did not attempt to omit from his fee petition

time spent on unsuccessful claims and failed to maintain records

with sufficient specificity to allow the Court to perform this

calculation with precision. Nonetheless, rather than merely

considering the ratio of successful to unsuccessful claims, the

Court compared the time spent on Timothy’s deposition and on

his claims at trial with time spent on the non-prevailing parties’

depositions and claims, and it also took into account the amount

of the recovery on Timothy’s successful claim. In the absence

of specific time entries to indicate how the attorneys spent their
Nevertheless it should not be overlooked that the awarding 13

of an attorney’s fee is a judicial action and, regardless of the

parties’ indifference to it, a court need not lend its imprimatur to

an inappropriate order merely because there was no objection to

its entry. See Thompson v. City of Atlantic City, 921 A.2d 427,

430, 441 (N.J. 2007) (finding that notwithstanding principles of

comity, state court had authority to vacate settlement agreement

sanctioned by federal court where settlement agreement was “so

infected with conflicts of interest that it [was] void as a matter

of state law.”). 

18

time on the distinct claims, the Court reasonably used the

information available to it to estimate a proper division of time.

In this regard, we cannot say that its findings were clearly

erroneous. 

In sum, we find that all of the District Court’s deductions

and adjustments were well reasoned and amply supported by the

record. 

4. Defendants’ Objections to the Fee Award

In a statutory fee case, once the fee petitioner “submit[s]

evidence supporting the hours worked and rates claimed,” id. at

433, 103 S.Ct. at 1939, the party opposing the fee application

has the burden to challenge the reasonableness of the requested

fee. See Rode, 892 F.2d at 1183. A district court should not

“decrease a fee award based on factors not raised at all by the

adverse party.” Bell v. United Princeton Props., Inc., 884 F.2d 13

713, 720 (3d Cir. 1989). Timothy claims that defendants voiced
 In fact, defendants argued for a greater reduction in hours 14

and a greater reduction in total fees than the District Court

made, as defendants asked the District Court to make a total

award of $19,506.08 as opposed to the Court’s award of

$27,178.75. 

19

“few objections” to his requested fees, and contends that the

District Court erred in adopting a method of reaching a

reasonable fee award different from the method suggested by

defendants. Appellants’ br. at 18. 

We find, however, that defendants’ detailed objections

sufficiently raised the issues that the District Court subsequently

addressed. In addition to seeking reduction of the lodestar based

on unsuccessful claims, defendants explicitly objected to the

excessiveness of the hours spent in light of the quality of the

work produced, noting that “Mr. Puricelli’s written work,

including the complaint, motions, jury instructions, and the

instant petition for attorneys’ fees, is careless, vague,

ambiguous, unintelligible, verbose, and repetitive,” and pointing

to several specific instances where these filings were inaccurate

and confusing. See App. at 98. Clearly, defendants’ objections

were sufficiently specific to provide Puricelli with notice that he

should be prepared to defend the hours billed for preparation of

the complaint, the jury instructions, and the fee petition, which

were the three filings for which the Court deducted hours. 

14

Defendants made two further requests, asking for a

reduction of hours based on the questionable accuracy of the

attorneys’ time records, and for the District Court to address
20

other specific objections to the total compensation requested by

reducing the total hourly rate uniformly to a blended rate of

$255. As we held in Bell, the type of reduction made by a

district court need not be exactly the same as that requested by

the adverse party, “as long as the fee applicant is given

sufficient notice to present his or her contentions with respect to

the reduction that the district court ultimately makes.” 884 F.2d

at 722. The Court’s decision to address defendants’ objections

by scrutinizing the time records, eliminating excessive hours,

and applying task-appropriate hourly rates was well within its

discretion. 

B. Review of Denial of Motion for a New Trial, Including

Subsumed Arguments

Although their arguments before this Court primarily

have been directed towards the issue of attorneys’ fees, plaintiffs

also appeal the denial of their motion for a new trial, asserting

several grounds for error by the District Court. The standard of

review on a motion for a new trial is abuse of discretion, except

where a district court bases its denial of the motion on an

application of law, in which case an appellate court’s review is

plenary. Curley v. Klem, 499 F.3d 199, 205–06 (3d Cir. 2007).

To the extent that this appeal involves review of a summary

judgment or the granting or denying of a judgment as a matter

of law, we exercise plenary review, see Lightning Lube, Inc. v.

Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993), and to the extent

that it involves review of evidentiary rulings we use an abuse of

discretion standard, see Acumed LLC v. Advanced Surgical

Servs., 561 F.3d 199, 211 (3d Cir. 2009). As we discuss below,
 We note that plaintiffs raise certain issues for our 15

consideration only if we “remand for a new trial . . . to avoid a

waiver of the issues.” Appellants’ br. at 41. We are puzzled by

this statement as some of plaintiffs’ contentions if accepted

would be grounds for a new trial. Accordingly, we have

considered these issues, nevertheless recognizing that our

review may be more extensive than plaintiffs as appellants ask

us to make it. 

 All plaintiffs brought excessive force claims but only 16

Timothy McKenna could relate the claim to his arrest, as

defendants did not arrest the other plaintiffs.

21

plaintiffs’ arguments are without merit.15

1. Excessive Force Claims

The District Court properly rejected Timothy McKenna’s

argument that it should have instructed the jury, which rejected

plaintiffs’ excessive force claims, that any amount of force used

to effect an arrest without probable cause is per se excessive.16

Timothy’s statement of the law is unsupported by citation, and,

moreover, is wrong. As the Court correctly concluded, the jury

was required to review any excessive force claims under a

totality of the circumstances test, as enunciated in Graham v.

Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989), to

determine whether the force used was reasonable. See Papineau

v. Parmley, 465 F.3d 46, 62 (2d Cir. 2006). 

The District Court also correctly rejected plaintiffs’
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argument that they are entitled to a new trial on all of their

excessive force claims because they presented evidence to show

that force was used against them, whereas defendants did not

“present[] any lawful basis to use such force against them.”

Appellants’ br. at 46. Although there was in fact evidence that

the police did not use excessive force, the Court noted, correctly,

that the jury was not required to accept plaintiffs’ evidence

whether or not contrary evidence was presented. 

2. Supervisory Liability

Plaintiffs contend that because they presented evidence

that supervisors witnessed relevant misconduct, the District

Court erred in granting defendants’ motion for judgment as a

matter of law on their supervisory liability claims. To be liable

in this situation, a supervisor must have been involved

personally, meaning through personal direction or actual

knowledge and acquiescence, in the wrongs alleged. See Rode

v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Here, the

only record citation that plaintiffs offer in support of their

argument that supervisors witnessed misconduct is Mr.

McKenna’s testimony that Sergeant Josey was in the vicinity of

the arrest at some point after Timothy was handcuffed (i.e., after

Timothy’s arrest). This is not a legally sufficient evidentiary

basis for a reasonable jury to find in favor of the plaintiffs and

does not provide us with a reason to reverse the Court’s grant of

judgment as a matter of law on this issue. 

3. Exclusion of Police Directives on Use of Force

Plaintiffs allege that the District Court erred when it
23

excluded evidence of Philadelphia Police Department directives

on the appropriate use of force. The Court ruled that even if the

directives were relevant, they were subject to exclusion under

Rule 403 of the Federal Rules of Evidence, which permits the

exclusion of relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” A trial court is afforded

substantial discretion when striking a Rule 403 balance with

respect to proffered evidence, see United States v. Eufrasio, 935

F.2d 553, 572 (3d Cir. 1991), and “a trial judge’s decision to

admit or exclude evidence under Fed. R. Evid. 403 may not be

reversed unless it is arbitrary and irrational,” Bhaya v.

Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990)

(internal quotation marks omitted). Here, the Court concluded

that the directives had the potential to lead the jury to equate

local policy violations with constitutional violations, and that

this risk of confusing the issues substantially outweighed the

directives’ probative value. We do not find that in making this

determination the Court abused its discretion. Moreover,

plaintiffs could have offered evidence of police practice

standards in other ways; for example, plaintiffs had the

opportunity to — and did — cross-examine police witnesses

about proper police conduct.

4. Malicious Prosecution Claim

Timothy argues that the District Court improperly granted

judgment as a matter of law in favor of defendants on Officer

Jericho’s Fourth Amendment malicious prosecution claim. To
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prevail on a malicious prosecution claim under section 1983, a

plaintiff must show that: (1) the defendants initiated a criminal

proceeding; (2) the criminal proceeding ended in the plaintiff’s

favor; (3) the proceeding was initiated without probable cause;

(4) the defendants acted maliciously or for a purpose other than

bringing the plaintiff to justice; and (5) the plaintiff suffered

deprivation of liberty consistent with the concept of seizure as

a consequence of a legal proceeding. Estate of Smith v.

Marasco, 318 F.3d 497, 521 (3d Cir. 2003). 

Timothy contends that the Court made two errors in its

disposition of the malicious prosecution claim, but neither

contention has merit. First, Timothy argues that the Court erred

in basing its dismissal of the claim on insufficient evidence of

malice, where defendants’ arguments were based on Timothy’s

failure to establish a deprivation of liberty. However, nothing

in Fed. R. Civ. P. 50(a)(2) precludes a court from granting or

denying judgment as a matter of law on a basis modified from

that which a movant has advanced. Second, although Timothy

contends that the Court erred in finding that there was

insufficient evidence of malice to support a malicious

prosecution claim, he supports this contention only with the

vague assertions, without citation, that “the record was replete

with sufficient evidence for malice to be found,” appellants’ br.

at 43, and that because the Court charged the jury on punitive

damages, “there must have been sufficient evidence of malice in

the record,” id. at 44. Unfortunately for him, he does not direct

our attention to the place in the trial transcript of almost 1,000

pages where the evidence to which he refers is located, and we

are not aware of any such evidence. Accordingly, faced with

wholly unsupported allegations of error, we will affirm the
 Though our outcome does not depend on this point, we think 17

that Sergeant Stoots’s reasons for not allowing the videotaping

were completely reasonable.

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Court’s decision on this issue. 

5. First Amendment Claims

Finally, plaintiffs challenge certain evidentiary rulings

and jury instructions regarding their First Amendment retaliation

claims. First, the District Court properly denied plaintiffs’

request to admit, as rebuttal evidence, testimony from a former

sergeant from another police district within Philadelphia that he

would have permitted videotaping of his operations room.

Plaintiffs offered this testimony to rebut the testimony of

Sergeant Stoots. The District Court ruled that the proposed

rebuttal testimony was not appropriate for that purpose,

however, because Sergeant Stoots did not testify that Police

Department policy prohibited him from allowing videotaping in

the operations room. Sergeant Stoots testified only that, in his

19 years as an officer, he never had permitted anyone to

videotape in the operations room, and he gave his own reasons

for that position (i.e., that the areas being videotaped by the

McKennas, which were not in the public area of the 15th

District, contained other juveniles who were being held,

undercover officers, and paperwork containing officers’

names). The Court reasonably concluded that the proffered 17

testimony would not have rebutted this point, and did not abuse

its discretion in declining to permit the jury to hear it. 

Second, the District Court properly rejected plaintiffs’
26

claim that the jury instructions and verdict sheet, by using the

term “improper delay” without defining “improper,” confused

the jury on the issue of retaliation. When the jury asked the

Court to define “improper delay,” it did so by explaining that

“improper” meant “whether or not it was retaliation.” App. at

1034. The Court then explained that the reasons for the

retaliation could be the videotaping and the prior lawsuit.

Overall, the Court’s instructions on retaliation and on the

meaning of “improper delay” were perfectly clear, and it did not

abuse its discretion by denying plaintiffs’ request to strike the

word “improper.”

IV. CONCLUSION

We have considered plaintiffs’ remaining arguments but

reject them as being without merit. In accordance with the

foregoing, we will affirm the District Court’s orders of

September 30, 2008, awarding attorneys’ fees and denying

plaintiffs’ motion for judgment as a matter of law or for a new

trial, and will affirm all other orders challenged on this appeal.

However, inasmuch as the Court’s action in deferring the issue

of costs is not ripe for our review, we will dismiss the appeal to

the extent that it raises the costs issue.