SIXTH ANGEL SHEPHERD RESCUE, INC. et al v. BENGAL et al

Filing 84

MEMORANDUM AND/OR OPINION RE: FEES AND COSTS. SIGNED BY HONORABLE BERLE M. SCHILLER ON 9/23/2013. 9/23/2013 ENTERED AND COPIES E-MAILED.(tomg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SIXTH ANGEL SHEPHERD RESCUE, :
INC., et al.,
:
Plaintiffs,
:
:
v.
:
:
GEORGE BENGAL, et al.,
:
Defendants.
:

CIVIL ACTION

No. 10-1733

MEMORANDUM
Schiller, J.

September 23, 2013

Sixth Angel Shepherd Rescue, Inc. (“Sixth Angel”) and Terry Silva brought this action
asserting constitutional and state law claims against George Bengal, Nicole Wilson, and the
Pennsylvania Society for the Prevention of Cruelty to Animals (“PSPCA”) based on Defendants’
confiscation of Plaintiffs’ three dogs. The Court granted Plaintiffs’ request for a preliminary
injunction and ordered Defendants to return the dogs to Plaintiffs. Now before the Court is
Plaintiffs’ motion for attorney’s fees and costs, which the Court will grant. Plaintiffs are awarded
$50,418.75 in attorney’s fees and $1,344.50 in costs.
I.

BACKGROUND
On April 16, 2010, Plaintiffs sued Defendants, claiming that Defendants improperly

confiscated three of Plaintiffs’ dogs in violation of state law and Plaintiffs’ constitutional rights.
(Compl. ¶¶ 7, 40, 61-105.) Specifically, Plaintiffs sued under 42 U.S.C. § 1983, alleging that
Defendants took Plaintiffs’ dogs “in violation of Plaintiffs’ constitutional rights to property and
liberty with procedural and substantive due process.” (Id. ¶¶ 7, 72.) In addition, Plaintiffs
asserted claims for conversion and bailment based on Defendants’ failure “to care for the live

property of the Plaintiffs.” (Id. ¶¶ 97, 100-105.) Plaintiffs sought damages and an injunction
ordering Defendants to return the dogs. (Id. ¶¶ 56, 105.)
On April 21, 2010, Plaintiffs filed a motion for a temporary restraining order and/or
preliminary injunction. Following a hearing, the Court granted Plaintiffs’ request for a
preliminary injunction based on the conversion claim, and ordered Defendants to return the dogs
to Plaintiffs. See Sixth Angel Shepherd Rescue, Inc. v. Bengal, Civ. A. No. 10-1733, 2010 WL
2164521 (E.D. Pa. May 27, 2010). The Court did not consider the merits of Plaintiffs’ claims
under 42 U.S.C. § 1983. Id. Defendants appealed, and the Court’s decision was affirmed by the
Third Circuit. Sixth Angel Shepherd Rescue, Inc. v. Bengal, 448 F. App’x 252 (3d Cir. 2011).
On April 30, 2013, the Court held a telephone conference with the parties, who informed
the Court that the only remaining issues were attorney’s fees and costs. Plaintiffs filed a motion
for attorney’s fees and costs on May 29, 2013, requesting $75,495 in attorney’s fees and $4,420
in costs. (Pls.’ Pet. for Att’y’s Fees ¶ 19.) On June 25, 2013, the Court ordered Plaintiffs to file a
more detailed itemization of costs, excluding costs that Plaintiffs were already granted by the
Third Circuit.
On August 9, 2013, Plaintiffs filed an amended motion for attorney’s fees and costs,
requesting $84,665 in attorney’s fees and $5,786 in costs. (Pls.’ Supplement to Pet. for Att’y’s
Fees Ex. 2 [Billing Records 2] at 11.) In responses filed June 21, 2013, and August 21, 2013,
Defendants concede that Plaintiffs are entitled to attorney’s fees and costs, but object to the
number of hours spent, the hourly billing rate Plaintiffs propose, and the amount of costs. (Defs.’
Resp. to Pls.’ Pet. for Att’y’s Fees [Defs.’ First Resp.]; Defs.’ Resp. to Pls.’ Supplemental Pet.
for Att’y’s Fees [Defs.’ Second Resp.].) Defendants also request that the Court reduce Plaintiffs’

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attorney’s fees by $6,919.06, the cost of the veterinary care administered to Plaintiffs’ dogs after
Defendants confiscated them. (Defs.’ Second Resp.)
II.

DISCUSSION
A.

Attorney’s Fees

Attorney’s fees generally are not recoverable on a conversion claim in Pennsylvania. See
In re U.S. Physicians, Civ. A. Nos. 99-4094, 98-34011, 2002 WL 31866247, at *3 (E.D. Pa. Dec.
20, 2002) (“[T]here is no statute providing for recovery of counsel fees to the successful litigant
in an action for conversion . . . .”); see also Trizechahn Gateway LLC v. Titus, 976 A.2d 474,
482-83 (Pa. 2009) (noting that Pennsylvania follows the federal “American Rule” regarding
attorney’s fees, under which “a litigant cannot recover counsel fees from an adverse party unless
there is express statutory authorization, a clear agreement of the parties, or some other
established exception”).
However, attorney’s fees may be awarded to a prevailing party in an action to enforce 42
U.S.C. § 1983. See 42 U.S.C. § 1988(b). If a party alleges both a claim under § 1983 and a nonfee eligible claim, and the court decides only the non-fee eligible claim, the prevailing party may
recover attorney’s fees if: (1) the § 1983 claim was substantial and (2) the non-fee eligible claim
arose from a “common nucleus of operative fact.” See Maher v. Gagne, 448 U.S. 122, 132 n.15
(1980); see also Rogers Grp., Inc. v. City of Fayetteville, 683 F.3d 903 (8th Cir. 2012). If a
federal claim is substantial enough to support supplemental jurisdiction over a related state law
claim, then it is substantial enough to support an award of fees to a party who prevails only on
the state law claim. See Rogers Grp., 683 F.3d at 912; see also Fross v. Cnty. of Allegheny, 848
F. Supp. 2d 547, 552 (W.D. Pa. 2012).

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Plaintiffs meet Maher’s requirements of substantiality and relatedness. Plaintiffs’ § 1983
claim is sufficiently substantial because it conferred jurisdiction on the Court over the state law
claim of conversion. See Sixth Angel Shepherd Rescue, 448 F. App’x at 253 (“The District Court
had jurisdiction under 28 U.S.C. §§ 1331 and 1367.”). The § 1983 claim and the conversion
claim also arose from a “common nucleus of operative fact.” See Maher, 448 U.S. at 132 n.15.
Both claims arose from the seizure of Plaintiffs’ dogs by the Pennsylvania Bureau of Dog Law
Enforcement. Therefore, Plaintiffs are eligible for attorney’s fees under § 1988 so long as they
prevailed on their state law claim.
1. Prevailing party status
Defendants concede that Plaintiffs are a prevailing party. (Defs.’ Second Resp.) The
Court’s own analysis leads to the same conclusion. To be a “prevailing party,” the plaintiff must
“at a minimum, . . . be able to point to a resolution of the dispute which changes the legal
relationship between itself and the defendant.” Tex. State Teachers Ass’n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 792 (1989). That change must “achieve[ ] some of the benefit the part[y]
sought in bringing the suit.” Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 228 (3d
Cir. 2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The change also must be
“judicially sanctioned,” and not simply result from a voluntary change in the defendant’s
conduct. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S.
598, 605 (2001). If fees are sought based on interim relief, such as a preliminary injunction, that
relief must be “derived from some determination on the merits.” Singer Mgmt. Consultants, 650
F.3d at 229.
The Third Circuit has held that “the ‘merits’ requirement is difficult to meet in the
context of TROs and preliminary injunctions, as the plaintiff in those instances needs only to

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show a likelihood of success on the merits (that is, a reasonable chance, or probability, of
winning) to be granted relief.” Id. However, in “rare situation[s],” a grant of a preliminary
injunction may be a merits-based determination supporting an award of attorney’s fees. Id.; see
also People Against Police Violence v. City of Pittsburgh, 520 F.3d 226 (3d Cir. 2008)
(upholding an award of attorney’s fees to the plaintiff, who won a preliminary injunction in a
case that never proceeded to judgment).
In granting Plaintiffs’ motion for a preliminary injunction, this Court made a meritsbased determination that entitles Plaintiffs to attorney’s fees. The Court found that “[d]efendants
unquestionably deprived Plaintiffs of their right in their property, an intrusion to which Plaintiffs
certainly did not consent, and for which Defendants fail to offer any lawful justification.” Sixth
Angel Shepherd Rescue, 2010 WL 2164521, at *3. Plaintiffs “well exceeded their burden of
proving a likelihood of success on the merits of their conversion claim.” Id. Because the Court
finds that Plaintiffs were the prevailing party, the Court will determine the amount of attorney’s
fees to award Plaintiffs.
2. Hours spent on litigation
“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.” McKenna v. City of Phila., 582 F.3d 447, 455 (3d Cir.
2009). When calculating the lodestar, a court should exclude hours that are “excessive,
redundant, or otherwise unnecessary.” Id. A court should also “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

5

documents the hours claimed.” Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir.
2001); see also Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
Plaintiffs submitted two fee petitions with conflicting information about the number of
hours that attorney Terry Silva spent on the case. In a fee petition filed May 29, 2013, Silva
states that she spent 213.2 hours on the underlying litigation. (Pls.’ Pet. for Att’y’s Fees Ex. 1
[Billing Records 1] at 10.) In a fee petition filed August 9, 2013, Silva states that she spent 232.6
hours on the underlying litigation. (Billing Records 2 at 11.) The August 9 fee petition includes
some tasks that Silva claims to have performed before May 29, 2013, but which she did not list
in her original fee petition. For example, the August 9 fee petition states that Silva spent 7.1
hours on June 29, 2010, to “Research/prepare Complaint against Dog Law on Citation.” (Billing
Records 2 at 8.) This item was not included in the May 29 petition. Other tasks, listed in both fee
petitions, appear as having taken more time in the August 9 fee petition. For example, the August
9 fee petition states that Silva spent 0.6 hours on May 24, 2011, to “Research and Draft the
Standard of Review.” (Id. at 9.) This item was listed in the May 29 fee petition as requiring 0.3
hours of work. (Billing Records 1 at 8.)
Defendants rightly challenge the hours that appear in the August 9 fee petition but not in
the May 29 fee petition. (Defs.’ Second Resp.) The Court will not consider the hours listed in the
August 9 fee petition for work performed before May 29, but which Silva failed to include in the
May 29 fee petition. Plaintiffs had ample opportunity to request these fees in their May 29 fee
petition. After receiving the May 29 fee petition, the Court ordered Plaintiffs to submit a more
detailed itemization of costs, but did not request a new fee petition. Therefore, the Court will
calculate attorney’s fees based on the 213.2 hours listed in the May 29 fee petition.

6

Defendants contest the hours spent by Silva, both generally and specifically, claiming
that some of the hours were duplicative, unreasonable, or spent on motions that were
unsuccessful and unrelated to the claim on which Plaintiffs prevailed. (Defs.’ First Resp. Ex. B
[Objections to Fees & Costs 1]; Defs.’ Second Resp. Ex. B [Objections to Fees & Costs 2].) The
Court agrees and will therefore reduce the hours for which Plaintiffs will be compensated.
First, the Court will reduce the hours claimed for revising and reviewing the motion for a
temporary restraining order and/or preliminary injunction from 7.3 hours to 3 hours. Defendants
argue that the additional 4.3 hours were excessive, and the Court agrees. The motion was poorly
drafted, and Silva had already spent 21 hours researching and writing the original draft. (Billing
Records 1 at 2.) Second, the Court agrees with Defendants that it was unreasonable to spend 0.6
hours “pulling [the] docket.” (Objections to Fees & Costs 1; Objections to Fees & Costs 2.) The
Court will exclude this time.
Finally, the Court agrees with Defendants that Plaintiffs are not entitled to fees for 13.6
hours during which Silva worked on unsuccessful motions that were not sufficiently related to
this case. First, the Court will exclude the 7.6 hours that Silva spent on Plaintiffs’ unsuccessful
motion to enforce compliance with subpoenas served on Marcus Hook Borough and the
Delaware Society for the Prevention of Cruelty to Animals (“DSPCA”). These subpoenas were
relevant not to this case, but rather to the DSPCA’s separate investigation of Silva (see
Document No. 19), and to complaints that became the subject of a separate lawsuit against
Marcus Hook Borough. See Sixth Angel Shepherd Rescue, Inc. v. West, 790 F. Supp. 2d 339
(E.D. Pa. May 3, 2011). Second, the Court will exclude the 1.5 hours that Silva spent to “File
and serve Joinder Complaint.” (Objections to Fees & Costs 1; Objections to Fees & Costs 2.)
The Court denied Plaintiffs’ motion to file that complaint, a version of which was later filed in a

7

separate action. Third, the Court will exclude the 4.5 hours that Silva spent on Plaintiffs’
unsuccessful motion to strike language in Defendants’ exhibit, a disposition against Silva in
magisterial district court. That dispute was attenuated from the principal issues before this Court.
After excluding 13.6 hours spent on unsuccessful and unrelated motions, 4.3 hours spent revising
the motion for a temporary restraining order and/or preliminary injunction, and 0.6 hours spent
pulling the docket, the Court will reduce Plaintiffs’ hours on the underlying litigation from 213.2
to 194.7.1
3. Hourly rate
The second figure that informs the lodestar is the reasonable hourly rate, calculated
“according to the prevailing market rates in the community.” Smith v. Phila. Hous. Auth., 107
F.3d 223, 225 (3d Cir. 1997). The party seeking attorney’s fees bears the burden of producing
sufficient evidence of what constitutes a reasonable market rate, which is established “with
reference to the community billing rate charged by attorneys of equivalent skill and experience
performing work of similar complexity.” Carey v. City of Wilkes-Barre, 496 F. App’x 234, 236
(3d Cir. 2012). If a party fails to meet that burden, “the district court must exercise its discretion
in fixing a reasonable hourly rate.” See Washington v. Phila. Cnty. Court of Common Pleas, 89
F.3d 1031, 1036 (3d Cir. 1996); see also L.J. ex rel. V.J. v. Audubon Bd. of Educ., 373 F. App’x
294, 297 (3d Cir. 2010).
Plaintiffs request an hourly rate of $350, the fee that Plaintiff Sixth Angel agreed to pay
Silva for her legal work in this case. (Pls.’ Pet. for Att’y’s Fees ¶ 8; Defs.’ Second Resp. Ex. A
[Sixth Angel Bd. Documents].) Defendants claim that the Court should “closely scrutinize[]”

1

This case would have been resolved much more quickly if the performances by the lawyers
on both sides had been stronger.
8

Silva’s hourly rate because of the close relationship between Silva and Sixth Angel. 2 (Defs.’
Second Resp.) However, Defendants do not suggest an alternative hourly rate.
Plaintiffs fail to meet their burden of establishing that $350 is a reasonable hourly rate for
Silva’s work. To support the reasonableness of her fee, Silva submits an affidavit stating that she
has practiced law since 1984, and that she has “developed a specialty of injunction work about
half the time in federal court often in federal statutory cases.” (Silva Aff. ¶ 2.) Silva claims that a
fee of $350 per hour is “standard for me and in the Philadelphia Area” in cases where “recovery
is uncertain and the client is unable to pay or advance costs.” (Id. ¶ 3.) However, the affidavit of
a prevailing party’s attorney is not sufficient to show the reasonableness of her fee. See Carey,
496 F. App’x at 236.
In addition to Silva’s affidavit, Plaintiffs offer affidavits from two lawyers who practice
in Pennsylvania. However, these affidavits cannot carry Plaintiffs’ burden. Jon Auritt states that
he has practiced law in nearby Media, Pennsylvania, for more than thirty years, and has litigated
“[d]ozens” of cases “pertain[ing] to civil rights.” (Pls.’ Supplement to Pet. for Att’y’s Fees Ex. B
[Auritt Aff.] ¶ 1.) Auritt charges $300 per hour, although he is “aware that attorneys in the
Philadelphia area oftentimes have charged more.” (Id. ¶ 3.) This affidavit does not support
Plaintiffs’ rate because Auritt charges $50 less than Plaintiffs’ rate, even though he has at least
one more year of experience than Silva. Plaintiffs also submit the affidavit of Alan Denenberg,
who states that he has been practicing law in Philadelphia for twenty-five years. (Id. Ex. A
[Denenberg Aff.] ¶ 1.) Denenberg claims that hourly rates between $450 and $550, including

2

Both Silva and Sixth Angel are Plaintiffs in this case. Silva was a founder of Sixth Angel
and a member of its Board of Directors until she resigned in January of 2011. (Pls.’ Supplement
to Pet. for Att’y’s Fees Ex. 1 [Silva Aff.] ¶ 1.) The Board of Sixth Angel agreed on April 12,
2010, that Silva would take a leave of absence from the Board. (Sixth Angel Bd. Documents.)
On the same day, Sixth Angel agreed to retain Silva as its attorney. (Id.)
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$350 per hour on a fee petition, are “[r]easonable and customary rates in our District” in civil
rights cases seeking injunctive relief, where the attorney has twenty-nine years of experience.
(Id. ¶ 5.) Although Denenberg’s affidavit is more helpful to Plaintiffs, he cannot carry their
burden. First, Silva’s litigation experience is not necessarily comparable to the experience of
other lawyers who have practiced for twenty-nine years. Experience depends not only on the
number of years of practice, but also on a lawyer’s caseload and the complexity of her docket.
Second, Denenberg does not refer to Silva’s “skill,” “reputation,” or “ability,” even though those
factors are important to inform the reasonableness of the rate. See Carey, 496 F. App’x at 236,
237 n.3. Denenberg also mischaracterizes the outcome of this case, assuming that Plaintiffs
prevailed “at trial.” (Denenberg Aff. ¶ 4.) Because Plaintiffs fail to carry their burden of
establishing that $350 is reasonable, the Court will use its discretion to determine a reasonable
hourly rate. See Washington, 89 F.3d at 1036.
The Court concludes that an hourly rate of $250 is reasonable considering the quality of
Silva’s work. Many of Plaintiffs’ filings were convoluted and had errors of law, logic, grammar,
or spelling. For example, Count II of the Complaint states that “Defendants have . . . damaged
and disparaged the Plaintiffs’ rescue activities and reputation for which Defendants should be
responsible in damages,” thereby possibly setting forth a claim for a state law tort, such as
defamation. (Compl. ¶ 87.) However, Count II concludes with, “The above is a violation of
Plaintiffs’ constitutional rights to due process and property.” (Id. ¶ 94.) Other filings by Plaintiffs
are similarly disorganized. While the Auritt and Denenberg affidavits indicate that an hourly fee
between $300 and $550 is reasonable for an attorney in the Philadelphia area with approximately
twenty-nine years of experience in civil rights cases, Silva’s performance calls for a reduction in

10

this case. Based on an hourly rate of $250 and a total of 194.7 hours, the lodestar for the
principal litigation is $48,675. 3
4. Adjusting the lodestar
After the lodestar is calculated, a district court may consider other factors, such as the
“results obtained,” to adjust the award of fees upward or downward. Hensley, 461 U.S. at 434.
Where successful and unsuccessful claims “involve a common core of facts” or are “based on
related legal theories,” the district court “should focus on the significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. at
435. “[A] plaintiff who failed to recover damages but obtained injunctive relief, or vice versa,
may recover a fee award based on all hours reasonably expended if the relief obtained justified
that expenditure of attorney time.” Id. at 435 n.11.
Defendants argue that attorney’s fees should be reduced because Plaintiffs “did not
receive any compensatory or other damages.” (Defs.’ Second Resp.) The Court disagrees.
Although the Complaint requested damages for emotional distress, injury to Plaintiffs’
reputation, and injury to Plaintiffs’ dogs, Plaintiffs did not pursue these claims beyond listing
them in the Complaint. (Compl. ¶¶ 77, 78, 87.) It would be difficult to divide, on a claim-byclaim basis, the 22.6 hours that Silva spent on the Complaint. This was a reasonable amount of
time to spend on the Complaint, given that Plaintiffs ultimately prevailed on their claim for
3

A hearing is not necessary to help the Court decide a reasonable rate in this case. See Drelles
v. Metro. Life Ins. Co., 90 F. App’x 587, 591 (3d Cir. 2004) (“A hearing must be held only where
the court cannot fairly decide disputed questions of fact without it.”). The Court is reducing
Plaintiffs’ requested rate based on personal knowledge of Silva’s performance. See Mantz v.
Steven Singer Jewelers, 100 F. App’x 78, 81 (3d Cir. 2004) (“In assessing the reasonableness of
the hourly rate asserted by . . . counsel, the court properly considered . . . its perception of
counsel’s skill and experience during the trial of the underlying matter, as well as the quality of
his moving papers.”); see also Bell v. United Princeton Props., Inc., 884 F.2d 713, 719 (3d Cir.
1989) (“[A] judge may reduce requested fees with respect to matters within the judge’s personal
knowledge . . . .”).
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injunctive relief. In addition, Plaintiffs’ claims for damages and injunctive relief arose from a
single set of facts surrounding Defendants’ seizure of Plaintiffs’ dogs. Therefore, the Court will
not reduce the lodestar based on Plaintiffs’ failure to pursue their claims for damages.
The Court also rejects Plaintiffs’ request for a twenty percent increase in the lodestar to
compensate them for the delay in receiving attorney’s fees. (Pls.’ Supplement to Pet. for Att’y’s
Fees at 2.) Defendants object to this adjustment, claiming that it is unsupported by “case law or
other authority.” (Defs.’ Second Resp.) The Third Circuit has held that district courts may
increase the lodestar to “compensate the attorney for the time gap between the actual expenditure
of services and the fee award.” Black Grievance Comm. v. Phila. Elec. Co., 802 F.2d 648, 656
(3d Cir. 1986), vacated on other grounds, 483 U.S. 1015 (1987). However, Plaintiffs bear the
burden of producing evidence of the costs they incurred because of the delay in payment. See
Student Pub. Interest Research Grp. of N.J., Inc., v. AT&T Bell Labs., 842 F.2d 1436, 1453 (3d
Cir. 1988). In this case, Plaintiffs stated only, “Interest even at six per cent (6%) each year for
three (3) years the request is more than a reasonable accommodation for that three (3) year
delay.” (Pls.’ Supplement to Pet. for Att’y’s Fees at 2.) Because Plaintiffs did not provide
evidence to support a delay enhancement, the Court will deny Plaintiffs’ request.
5. Fee petition litigation
Time spent on the fee petition should be analyzed separately from time spent on the
principal litigation. See Rode, 892 F.2d at 1192. Attorney’s fees for the fee petition litigation,
like fees for the principal litigation, are calculated by multiplying a reasonable hourly fee by
hours reasonably expended. That figure, the lodestar, may be reduced to reflect partial success.
See Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d 897, 924 (3d Cir. 1985)

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(holding that courts should “treat the fee petition litigation as a separate entity subject to lodestar
and Hensley reduction analysis”).
Plaintiffs claim that Silva spent 2.5 hours on the fee petition filed May 29, 2013, and 6.8
hours on the fee petition filed August 9, 2013. Defendants object to 1.6 of the hours spent
drafting the first fee petition, including 1.1 hours spent to “[r]eview and revise bill” and 0.5
hours spent to “[p]repare filing.” (Objections to Fees & Costs 1; Objections to Fees & Costs 2.)
The Court does not believe that a total of 2.5 hours to prepare the first fee petition is excessive.
Defendants do not object to the additional 6.8 hours spent preparing the second petition, and the
Court may not sua sponte reduce these hours as excessive. See United States v. Eleven Vehicles,
Their Equip. & Accessories, 200 F.3d 203, 211-12 (3d Cir. 2000). Therefore, the Court finds that
9.3 hours were reasonably spent on the fee petition litigation.
However, the Court again finds that Plaintiffs have failed to establish that $350 is a
reasonable hourly rate for the fee petition litigation considering the quality of Silva’s work.
Plaintiffs’ fee petitions contain numerous errors. For instance, Plaintiffs’ first fee petition states
that Silva researched “Consperaicy Civil Rights deprivation of property,” and it repeatedly spells
“Complaint” as “Compliant.” (Billing Records 1.) Additionally, when the Court ordered
Plaintiffs to submit a more detailed itemization of costs, Plaintiffs submitted a non-responsive
filing that provides little detail on costs, but requests an additional $9,170 in attorney’s fees and
an additional $1,366 in costs. Given the quality of Silva’s work in the fee petition litigation, the
Court finds that an hourly rate of $250 is reasonable, and the lodestar for the 9.3 hours is $2,325.
The Court will further reduce the lodestar to reflect Plaintiffs’ limited success in the fee
petition litigation. See Student Pub. Interest Research Grp. of N.J., 842 F.2d at 1455 (“[W]here
fee applicants do not fully succeed in recovering their fees, the fee award must be reduced to

13

reflect incomplete success on the fee award.”). Plaintiffs requested attorney’s fees of $74,620 in
their first fee petition and $81,410 in their second fee petition, excluding fees requested for the
fee petition litigation. The Court is awarding attorney’s fees of $48,675 for the underlying
litigation. To reflect the limits to Plaintiffs’ success, the Court will reduce attorney’s fees for the
fee petition litigation by twenty-five percent, to $1,743.75. See Fletcher v. O’Donnell, 729 F.
Supp. 422, 434 (E.D. Pa. 1990) (“It would be falsely precise to reduce the request for time spent
on the fee petition by the amount of the request not granted . . . . Much of the time spent here
would have been spent on any fee petition, and so the incremental time spent on unsuccessful
claims is lower than the dollar value they represent.”).
The Court will thus award Plaintiffs a total of $50,418.75 in attorney’s fees, including
$48,675 for the principal litigation and $1,743.75 for the litigation over attorney’s fees.
Defendants propose further reducing the award of attorney’s fees by $6,919.06, the
amount Defendants claim they spent on veterinary care for the three dogs. (Defs.’ Second Resp.)
The Court rejects this proposal. First, Defendants provide no authority that allows a court to
reduce attorney’s fees awarded under § 1988 in this manner. Second, the Court disagrees that
Defendants are entitled to $6,919.06. Defendants claim that they are entitled to the cost of
veterinary bills pursuant to 18 Pa. Cons. Stat. § 5511(e), which allows a court to compensate a
party who cared for an animal that was cruelly transported. (Defs.’ Second Resp.) However, the
Court never determined that the animals in this case were cruelly transported. To the contrary,
the Court found that Defendants converted the dogs and issued a preliminary injunction returning
the dogs to Plaintiffs. The Court will not now reward Defendants for improperly confiscating
Plaintiffs’ dogs. Therefore, the Court declines to reduce Plaintiffs’ fee award by $6,919.06.

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B.

Costs

Federal Rule of Civil Procedure 54(d)(1) “codifies a venerable presumption that
prevailing parties are entitled to costs.” Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1172
(2013). Rule 54 provides, in relevant part: “Unless a federal statute, these rules, or a court order
provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing
party.” There is no dispute that Plaintiffs are the prevailing party under Rule 54(d). See
Institutionalized Juveniles, 758 F.2d at 926 (holding that the test for prevailing party status is the
same under 42 U.S.C. § 1988 and Fed. R. Civ. P. 54(d)).
The term “costs” as used in Rule 54(d) is defined by 28 U.S.C. § 1920. Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). There is a “strong presumption” that costs
enumerated in § 1920 are awarded to the prevailing party. Reger v. Nemours Found., Inc., 599
F.3d 285, 288 (3d Cir. 2010). “[T]he losing party bears the burden of making the showing that an
award is inequitable under the circumstances.” In re Paoli R.R. Yard PCB Litig., 221 F.3d 449,
462-63 (3d Cir. 2000). Nevertheless, “the decision whether to award costs ultimately lies within
the sound discretion of the district court.” Marx, 133 S. Ct. at 1172.
Plaintiffs request $5,786 in costs, including money spent on filing fees, a deposition,
service, copies, subpoenas, transcripts, postage, and delivery. (Billing Records 2 at 11.)
Defendants argue that these costs are inadequately described, despite the Court’s order of June
25, 2013, seeking greater detail. (Defs.’ Second Resp.) Defendants further argue that the
requested costs are largely unrelated to the claim on which Plaintiffs prevailed. (Id.) For the
following reasons, the Court will award $1,344.50 in costs.

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1. Allowable costs
The Court grants Plaintiffs’ request for the $350 filing fee in this case. See 28 U.S.C. §
1920(1); Nugget Distribs. Coop. of Am., Inc. v. Mr. Nugget, Inc., 145 F.R.D. 54, 57 (E.D. Pa.
1992) (“Section 1920 . . . clearly encompasses the filing fee . . . claimed by plaintiff.”).
The Court will also award a portion of the $1,989 that Plaintiffs request for “Office
Copies,” which include photographs, veterinary records, trial exhibits, depositions, and
documents from the Pennsylvania Bureau of Dog Law Enforcement and the SPCA. (Billing
Records 2 at 11; Silva Aff. ¶ 7.) Defendants object to paying these costs, claiming that they are
excessive and inadequately described. (Objections to Fees & Costs 1; Objections to Fees & Costs
2.) Section 1920(4) authorizes courts to tax “the costs of making copies of any materials where
the copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). Plaintiffs claim that
each copy cost twenty cents when made in the office and an unspecified amount outside the
office. (Silva Aff. ¶ 7.) Using Plaintiffs’ numbers, Plaintiffs would have had to make 9,945 office
copies to incur copying expenses of $1,989. This quantity of copies is excessive, and Plaintiffs
have not provided sufficient detail to allow the Court to determine that these copies were
“necessarily obtained for use” in this case. 28 U.S.C. § 1920(4). Therefore, the Court will reduce
Plaintiffs’ copying costs by fifty percent for an award of $994.50. See Montgomery Cnty. v.
Microvote Corp., Civ. A. No. 97-6331, 2004 WL 1087196, at *8 (E.D. Pa. May 13, 2004)
(reducing fees for copying by fifty percent because the plaintiff did not adequately describe the
documents copied); Nugget Distribs. Coop. of Am., 145 F.R.D. at 57 (reducing the requested
copying fees by fifty percent because these fees were “clearly excessive”).

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2. Disallowed costs
Plaintiffs request the $350 filing fee in a separate case, Sixth Angel Shepherd Rescue, Inc.
v. West, 790 F. Supp. 2d 339 (E.D. Pa. May 3, 2011). This cost was included in Plaintiffs’
August 9 petition, but not in their May 29 petition. Although Defendants do not object
specifically to this filing fee, Defendants argue generally that Plaintiffs’ bill includes costs that
are “unrelated to her [Silva] being a prevailing party.” (Defs.’ Second Resp.) The Court agrees
and will not award costs incurred in a separate lawsuit. In addition, Plaintiffs were not the
prevailing party in that case because the court granted the defendants’ motions to dismiss.
Plaintiffs also seek $373 to cover “Transcript Court.” Plaintiffs include this cost only in
their August 9 petition, and not in their May 29 petition. Section 1920(2) allows for the taxation
of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the
case.” 28 U.S.C. § 1920(2). However, Plaintiffs do not identify the transcript, and the Court
cannot determine whether it was “necessarily obtained for use in the case.” Therefore, the Court
will not tax this cost. See Nugget Distribs. Coop. of Am., 145 F.R.D. at 59 (“Those expenses for
which plaintiff has not provided an adequate description of the costs will be denied.”).
Plaintiffs further request $240 to cover the cost of “Service,” but they do not identify the
parties or papers served or the method of service. (Billing Records 2 at 11.) Because Plaintiffs
provide almost no information about this item, the Court will not tax its cost. See J & J Sports
Prods., Inc. v. TCOS Enters., Civ. A. No. 10-7130, 2012 WL 1361655, at *4 (E.D. Pa. Apr. 19,
2012) (denying costs for service of process where the party seeking costs failed to provide any
explanation or documentation); see also Tuthill v. Consol. Rail Corp., Civ. A. No. 96-6868, 1998
WL 321245, at *7 (E.D. Pa. June 18, 1998) (“Because of Conrail’s lack of specificity, the court
would be justified in excluding all process serving costs.”).

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Plaintiffs request an additional $390 for “Subpoena/Service.” (Billing Records 2 at 11.)
Plaintiffs explain that these subpoenas were served on the DSPCA, the Borough of Marcus
Hook, and “Magistrate Court personnel.” (Silva Aff. ¶ 7.) Defendants object to the taxing of this
cost, arguing that Plaintiffs do not adequately describe the subpoenas, and that Plaintiffs were
“not successful in [their] attempt to subpoena to the Delaware County SPCA.” (Objections to
Fees & Costs 1; Objections to Fees & Costs 2.) Section 1920(1) allows for the taxing of
subpoena fees. See Montgomery Cnty., 2004 WL 1087196, at *3. Costs of serving testimonial
and document subpoenas on witnesses and third parties may be recovered even if these parties
were not deposed or did not testify at trial. Id. at *4. “[T]he appropriate inquiry is whether the
issuance of the subpoena was reasonable and necessary in light of the facts known at the time of
service.” Id. On May 27, 2010, this Court granted a motion to quash the subpoena directed at the
DSPCA and denied Plaintiffs’ motion to enforce a subpoena served on Marcus Hook Borough.
Because the issuance of these subpoenas was not reasonable and necessary, this Court will not
tax the cost of their service. In addition, Plaintiffs do not provide sufficient information about the
subpoenas served on “Magistrate Court personnel” to enable the Court to assess whether these
subpoenas were reasonable and necessary.
Plaintiffs seek $643 in costs for the “Deposition of Nancy Lewis.” (Billing Records 2 at
11.) This cost was included in Plaintiffs’ August 9 petition, but not in their May 29 petition.
Defendants object to paying this cost because Plaintiffs “do[ ] not explain how [it is] related to
her [Silva] being a prevailing party on the issue of the return of the dogs.” (Defs’ Second Resp.)
Under § 1920, this Court may tax the cost of transcripts of depositions that “appear reasonably
necessary to the parties in light of the particular situation existing at the time they were taken.”
Adams v. Teamsters Local 115, 678 F. Supp. 2d 314, 326 (E.D. Pa. 2007). However, “costs for

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depositions taken or received merely for counsel's convenience or for investigatory or discovery
purposes are not taxable.” Id. In addition, “travel expenses of counsel in attending depositions
are ordinarily not taxed as costs.” Nugget Distribs. Coop. of Am., 145 F.R.D. at 58. Plaintiffs do
not itemize the $643 spent on Lewis’s deposition. It is unclear whether this money was spent on
transcripts, travel, witness fees, or the service of subpoenas. Plaintiffs also do not identify Lewis
or explain the contents of her testimony. Because Plaintiffs provide almost no information about
the Lewis deposition, and because there is no indication that it was reasonably necessary in this
case, the Court will not tax its costs.
Plaintiffs further request $429 in “Appeal Copies.” (Billing Records 2 at 11.) Defendants
object to this cost, claiming that the Third Circuit already awarded Plaintiffs $249.13 to cover
copying costs associated with the appeal. (Objections to Fees & Costs 1; Objections to Fees &
Costs 2; Defs.’ Second Resp. Ex. D.) The Court agrees that these costs are duplicative.
Finally, Plaintiffs request $895 in postage fees and $127 in delivery expenses. (Billing
Records 2 at 11.) These costs are not taxable under § 1920. See Wesley v. Dombrowski, Civ. A.
No. 03-4137, 2008 WL 2609720, at *3 (E.D. Pa. June 26, 2008) (listing cases).

III.

CONCLUSION
Accordingly, the Court will award Plaintiffs $50,418.75 in attorney’s fees and $1,344.50

in costs. An Order consistent with this Memorandum will be docketed separately.

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