SECURITY AND DATA TECHNOLOGIES, INC. v. SCHOOL DISTRICT OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 12/20/2016. 12/21/2016 ENTERED AND COPIES E-MAILED.(kp, ) (Main Document 223 replaced on 12/21/2016) (kp, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SECURITY and DATA
SCHOOL DISTRICT OF PHILADELPHIA,
December 20, 2016
Presently before me is Plaintiff’s petition for approximately $1.2 million in fees and costs
filed in conjunction with a $2.3 million dollar verdict against the School District of Philadelphia
and its former Superintendent, Dr. Arlene Ackerman.
This case stems from a September 23, 2010 meeting in which Dr. Ackerman directed that
Plaintiff, a highly qualified vendor, be deselected as the recipient of a $7.5 million contract. Dr.
Ackerman did so illegally, on the basis of race, in blatant violation of several civil rights statutes.
Further fall out from Dr. Ackerman’s actions included the firing of two high level School District
officials, Francis X. Dougherty, the former Deputy Chief of Operations, and John L. Byars, the
former Director of Procurement Services.
Not surprisingly, numerous law suits followed. The School Districts’ response was to
adopt an overly aggressive litigation strategy and, as a result, over the next six years,
considerable public resources were expended to defend these law suits. Electing to stridently
defend Dr. Ackerman’s illegal conduct and the events stemming from that conduct has turned
out to be a costly decision for the School District.
In the first case taken to trial in this district, Francis X. Dougherty v. The School District
of Philadelphia, et al., No. 2:12-cv-1001, Mr. Dougherty alleged that he had been terminated in
retaliation for exercising his First Amendment rights in connection with the contract award. A
$318,520 judgment was entered against the School District, Dr. Ackerman, and Estelle
Matthews, former Chief Talent and Development Officer. After Mr. Dougherty filed a petition
for attorney’s fees and costs in excess of $1.5 million, that case settled for $775,000.
The case that is the subject of this opinion, involved Plaintiff, Security Data and
Technologies, Inc. (“SDT”), a highly qualified company who lost a substantial contract as a
result of Dr. Ackerman’s discrimination. As will be exhaustively detailed herein, this case was
contentiously litigated by Defendants at every turn. After less than a day of deliberations, the
jury returned a verdict against Dr. Ackerman and the School District for $2.3 million, finding
civil rights violations under 42 U.S.C. § 1981. The evidence supporting this verdict was, in my
view, significant and compelling. SDT’s subsequent motion for attorney’s fees and costs in
excess of a million dollars is presently before me.
A third law suit, also assigned to me, John L. Byars v. The School District of
Philadelphia, et al., No. 2:12-cv-121, was vigorously litigated for approximately five years,
generating hundreds of docket entries. This case recently settled on the eve of trial. 1
The petition before me specifically requests $815,281.29 in attorney’s fees, $48,177.77 in
costs and $433,808.77 in prejudgment interest. Raising hundreds of objections pertaining to
A fourth case, also stemming from the contract award is pending in the Court of Common Pleas
of Philadelphia County with a projected Spring 2017 trial date. (See Augustine Pescatore v. the
School District, No. 111201228). In that case, Augustine Pescatore, Commander of Support
Services in the School Safety Division, sued the School District of Philadelphia after he was
suspended pending an investigation of the contract award.
every phase of this case, Defendants urge that these requests should be drastically reduced to
$262,649.63 in attorney’s fees, $11,343.15 in costs and $289,132.17 in prejudgment interest.
While I agree that some fees and costs should be reduced, SDT’s request will be substantially
granted. For the reasons that follow, SDT will be awarded $770,224.29 in attorney’s fees,
$45,175.63 in costs and $473,507.36 in prejudgment interest.
LEGAL STANDARD – ATTORNEY’S FEES
Absent a statute to the contrary, litigants bear their own attorney’s fees. Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). The statutory authority for
awarding attorney’s fees in a section 1981 case is set forth in 42 U.S.C. § 1988(b) which
provides: “[i]n any action or proceeding to enforce a provision of section[ ] 1981 . . . the court, in
its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.”
For section 1988 purposes, a prevailing party may be a plaintiff or defendant. However,
the standard for awarding attorney’s fees to defendants differs from the standard for awarding
attorney’s fees to prevailing plaintiffs. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412,
420-21 (1978). 2
The Supreme Court has stated that “[t]he most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “The
In addition to section 1988, Congress has authorized the award of attorney’s fees to “prevailing
parties” in numerous other statutes including the Civil Rights Act of 1964, 42 U.S.C. § 2000e–
5(k), (“Title VII”), the Voting Rights Act Amendments of 1975, 52 U.S.C. § 10310(e), Fair
Housing Amendments Act of 1988, 42 U.S.C. § 3613(c)(2), and the Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12205. Buckhannon Bd. & Care Home, Inc. v. W. Virginia
Dep’t of Health & Human Res., 532 U.S. 598, 602–03 (2001). The Supreme Court has
“interpreted these fee-shifting provisions consistently.” Id. at 603 n.4.
result of this computation is called the lodestar. The lodestar is strongly presumed to yield a
reasonable fee.” Washington v. Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996). The
district court, however, has the discretion to make certain adjustments to the lodestar. Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
The party seeking attorney’s fees must prove that its request for fees is reasonable. Id. To
do so, the fee petitioner must provide evidence “supporting the hours worked and rates claimed.”
Id. Once the fee petitioner submits that evidence, the party opposing the fee application has the
burden of challenging the reasonableness of the requested fee. McKenna v. City of Philadelphia,
582 F.3d 447, 459 (3d Cir. 2009) (citing Rode, 892 F.2d at 1183). In conducting a review for
reasonableness, this Court must “go line, by line, by line through the billing records supporting
the fee request.” Evans v. Port Auth. of N.Y. & N.J, 273 F.3d 346, 362 (3d Cir. 2001).
A. Hourly Rate
As a general matter, a reasonable hourly rate is calculated according to the “prevailing
market rates in the community.” Washington, 89 F.3d at 1035. As such, the “starting point in
determining a reasonable hourly rate is the attorneys’ usual billing rate, but this is not
dispositive.” Pub. Interest Research Grp. of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1185 (3d
Cir. 1995). The court also should consider “the experience and skill of the prevailing party’s
attorneys and compare their rates to the rates prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and reputation.” Rode, 892 F.2d at 1183.
The party seeking attorney’s fees bears the burden of establishing “by way of satisfactory
evidence, in addition to the attorneys own affidavits, that the requested hourly rates meet this
standard.” Washington, 89 F.3d at 1035 (internal citations and alterations omitted).
i. Michael Homans
Mr. Homans served as lead counsel since the inception of this case. (Pl.’s Pet., Ex A.,
Decl. of Michael Homans ¶ 9.) Since graduating law school in 1995, Mr. Homans has focused
his practice on civil rights and labor and employment law. He currently is Chairman of the
Litigation Department at Flaster Greenberg and previously worked at Drinker Biddle & Reath
LLP and Mager White & Goldstein. (Id. at ¶¶ 1-2.) Over the course of his career, he has tried
approximately twenty civil rights and employment cases to a jury verdict or judgment. (Id. at
¶ 4.) Mr. Homans has lectured and published articles on topics relevant to civil rights and
employment law. (Id. at ¶ 6.)
Multiple attorneys who practice labor law and/or discrimination law in this community
submitted affidavits attesting that Mr. Homans’ requested hourly rate of $520 is within the norm
for someone of Mr. Homans’ experience in the Philadelphia legal market. (See Pl.’s Pet., Ex. B,
Decl. of Thomas J. Baron ¶¶ 8-10; Ex. C, Decl. of Sidney L. Gold ¶¶ 7-9; Ex. D, Decl. of Alice
Ballard ¶¶ 12-14; Ex. E, Decl. of Ari Karpf ¶¶ 9-11; Ex. F., Decl. of Richard Swartz ¶¶ 7-9; Ex.
G., Decl. of Michael Murphy ¶¶ 5-7; Ex. H., Decl. of Virginia Hardwick ¶¶ 8-10; Ex. I., Decl. of
Scott Pollins ¶¶ 6-8; Ex. J., Decl. of Tiffanie Benfer ¶¶ 6-8.)
Mr. Homans also attested that $520 is his usual and customary rate charged to both
hourly and contingent-fee clients. (Homans Decl. ¶ 18.). Lastly, his requested rate falls within
the range of hourly rates for attorneys with 21-25 years of experience on the attorney’s fees chart
published Community Legal Services of Philadelphia. (Pl.’s Pet., Ex. L.)
The affidavits submitted and other supporting documents demonstrate that the requested
rate of $520 is within the range of prevailing market rates in this legal community for someone
with Mr. Homans’ substantial experience and credentials. Additionally, the rate is warranted in
light of the quality of representation Mr. Homans afforded SDT – his submissions were
consistently well written, professional and persuasive. Based on the foregoing, I conclude that
Mr. Homans’ requested hourly rate is reasonable.
ii. Melissa Hazell
Mr. Homans’ co-counsel, Melissa Hazell, performed the “vast majority of legal work
relating to the trial and preparation for trial.” (Homans Decl. ¶ 12.) After graduating from law
school in 2009, Ms. Hazell worked at Pepper Hamilton, LLP and Womble Carlyle Sandridge &
Rice, LLP. (Id. at ¶ 19.) Since joining Flaster Greenberg in 2012, Ms. Hazel has concentrated her
practice in litigation and employment law. Ms. Hazell’s customary hourly rate is $305. (Id. at
¶ 20.) This rate is within the range of hourly rates for attorneys with 6-10 years of experience on
Community Legal Services of Philadelphia’s attorney’s fees chart. (Pl.’s Pet., Ex. L.)
The affidavits SDT obtained from attorneys who practice in this community support a
finding that Ms. Hazell’s requested $305 hourly rate is within the norm for someone of Ms.
Hazell’s experience and credentials in this legal community. (See Pl.’s Pet., Ex. B, Decl. of
Thomas J. Baron ¶ 11; Ex. C, Decl. of Sidney L. Gold ¶ 10; Ex. D, Decl. of Alice Ballard ¶ 15;
Ex. E, Decl. of Ari Karpf ¶ 12; Ex. F., Decl. of Richard Swartz ¶ 10; Ex. G., Decl. of Michael
Murphy ¶ 8; Ex. H., Decl. of Virginia Hardwick ¶ 11; Ex. I., Decl. of Scott Pollins ¶ 9; Ex. J.,
Decl. of Tiffanie Benfer ¶ 9.) As such, I conclude that Ms. Hazell’s requested hourly rate of $305
iii. Peter Tomasco
Prior to Ms. Hazell’s involvement, Peter Tomasco assisted Mr. Homans in drafting
pleadings and conducting discovery. Mr. Tomasco graduated from law school in 2006. His
requested hourly rate is $350. The affidavits submitted by practicing attorneys support a finding
that this rate is consistent with the prevailing rates in this legal community. (See Pl.’s Pet., Ex. B,
Decl. of Thomas J. Baron ¶ 12; Ex. C, Decl. of Sidney L. Gold ¶ 11; Ex. D, Decl. of Alice
Ballard ¶ 16; Ex. E, Decl. of Ari Karpf ¶ 13; Ex. F., Decl. of Richard Swartz ¶ 11; Ex. G., Decl.
of Michael Murphy ¶ 9; Ex. H., Decl. of Virginia Hardwick ¶ 12; Ex. I., Decl. of Scott Pollins
¶ 10; Ex. J., Decl. of Tiffanie Benfer ¶ 10.) Based on the foregoing, I conclude that $350 is a
reasonable hourly rate for Mr. Tomasco’s time.
iv. Other Attorneys and Law Students
A number of other Flaster Greenberg attorneys performed limited work on this case and
their hours are also reflected in the overall attorney’s fees request. Mr. Homans describes the
work performed by those attorneys as follows:
a. Elisa Bramble is a 2008 graduate of University of Virginia School of Law and
worked on initial research in this case for a total of 10.5 hours. She no longer
works for Flaster Greenberg, and now practices in Florida. Her time is billed
here at the standard rate for seventh- and eighth-year associates, $305.
b. Justin Brown is a shareholder at Flaster Greenberg who practices estates law
and assisted with keeping the Estate of Arlene Ackerman in the case. His time
is charged at his standard hourly rate of $395.00.
c. Eric Clendening graduated from Washington University School of Law, cum
laude, in 2013. He provided discrete research assistance for a total of 0.7 hours
and his time is charged at his standard hourly rate of $280.
d. Jeff Cohen is a shareholder at Flaster Greenberg who practices construction
law and commercial litigation. He assisted with the initial analysis of the case
and its construction law aspects for a total of 4.2 hours. His time is charged
at his standard hourly rate of $490.
e. Joanne (“Annie”) Kernicky is a 2012 graduate of William and Mary School of
Law, and Villanova University. I work with her frequently on civil rights and
employment matters. She provided extensive research and drafting assistance
for a total of 57.8 hours. Her time is charged at her standard hourly rate of
f. Emily Breslin Markos graduated magna cum laude from Rutgers School of
Law - Camden in 2010. I have worked extensively with her on civil rights and
employment matters. She provided extensive research and drafting assistance
for a total of 66.1 hours. She no longer works for Flaster Greenberg. Her
time is billed here at the standard rate for sixth-year associates, $305.
g. Scott Oberlander is a 2011 graduate of the University of Pennsylvania Law
School. He provided discrete research assistance for a total of 5.6 hours. His
time is charged at his standard hourly rate of $295.
h. Katherine Oeltjen is a 2004 graduate from Rutgers School of Law - Camden.
She provided drafting and research assistance in the early stages of the case for
a total of 141.90 hours. She no longer works for Flaster Greenberg. Her time
is billed here at the standard rate for sixth-year associates, $305.
i. Damien Tancredi graduated magna cum laude from Widener University
School of Law in 2009. He assisted with research and drafting in this case for
a total of 9.7 hours. His time is charged at his standard hourly rate of $310.
j. Raymond Vanderhyden is a George Washington University School of Law
rising 2L, who provided basic research assistance around the time of trial, for a
total of 25.05 hours at $210.
(Homans Decl. ¶ 25.)
SDT has submitted affidavits from multiple practitioners who attest that the foregoing
rates are all within the community norms given the particular attorney’s experience. (See Pl.’s
Pet., Ex. B, Decl. of Thomas J. Baron ¶¶ 13-14; Ex. C, Decl. of Sidney L. Gold ¶¶ 12-14; Ex. D,
Decl. of Alice Ballard ¶¶ 17-18; Ex. E, Decl. of Ari Karpf ¶ 14; Ex. F., Decl. of Richard Swartz
¶¶ 12-13; Ex. G., Decl. of Michael Murphy ¶ 10, 12; Ex. H., Decl. of Virginia Hardwick ¶¶ 13,
15; Ex. I., Decl. of Scott Pollins ¶¶ 11, 13; Ex. J., Decl. of Tiffanie Benfer ¶¶ 11-12.) Based on
my review of these affidavits and other supporting documents submitted by SDT, I conclude that
the foregoing rates fall within the prevailing market rates and are reasonable.
SDT also seeks to recover for less than fifty hours of paralegal services rendered by
Flaster Greenberg employees Patricia D’Alessio, Victor Panieczko and Carol Feather. In support,
SDT has submitted affidavits from three attorneys who attest that the requested rates for paralegal
work (Ms. D’Alessio - $260; Mr. Panieczko - $240; Ms. Feather - $190) are within the customary
market rates for paralegal time in this legal community. (See Pl.’s Pet., Ex. G., Decl. of Michael
Murphy ¶ 11; Ex. H., Decl. of Virginia Hardwick ¶ 14; Ex. I., Decl. of Scott Pollins ¶ 12.) I find
that the requested hourly rates are reasonable in light of Ms. D’Alessio, Mr. Panieczko and Ms.
B. Number of Hours Expended
Before delving into an examination of the number of hours expended, I pause to make the
following observations. While always prepared, defense counsel’s litigation approach was to
contest most issues and agree to few. Many of the hours SDT expended over the past four and a
half years were the direct result of the litigation conduct of Defendants and their counsel. The
sheer volume of Defendants’ endless objections to the hours billed by SDT counsel is just a
continuation of such tactics. As the United States Supreme Court noted in City of Riverside v.
Rivera, 477 U.S. 561 (1986), a defendant “cannot litigate tenaciously and then be heard to
complain about the time necessarily spent by the plaintiff in response.” Id. at 581 n.11.
In its initial petition for attorney’s fees, SDT submitted that counsel expended 2,059.85
hours litigating this case and that the total amount of attorney’s fees incurred was $810.644.30.
In support, SDT submitted timesheets with 1,008 entries. The District has objected to nearly 700
of these entries. Defendants assert that STD’s overall amount billed should be reduced to
After Defendants filed their response in opposition, SDT agreed that 62.6 hours should be
withdrawn from its original submission. The 62.6 hours that SDT agrees should be withdrawn
include 4.2 hours billed in connection with the issuance of subpoenas, 34.0 hours billed in
connection with drafting a response to Defendants’ motion for sanctions, and 24.4 hours Mr.
Tomasco billed for research in connection with responding to Defendants’ motion to dismiss.
(Pl.’s Reply, Decl. of Michael Homans. ¶¶ 73, 107, 122.) I have noted the impact of these
withdrawn hours on Defendants’ objections where appropriate.
Although I have reviewed the 1,008 timesheet entries and Defendants’ objections line by
line, I address the parties’ disputes through an analysis of the categories of objections raised by
i. Number of Hours Drafting Complaint
Defendants first object to the 46.6 hours SDT counsel billed for drafting the initial
Complaint and the Amended Complaint. Defendants have collected on Appendix C to all of the
entries they claim SDT devoted to “drafting” these two documents. (See Defs.’ Resp., App. C.)
Defendants urge that these hours should be reduced to 15 because the initial Complaint only
consisted of two causes of action, the Amended Complaint only consisted of one cause of action
and neither pleading required extensive background investigation because the allegations were
the subject of complaints filed in other cases as well as various newspaper articles. Defendants
do not explain how they arrived at the 15 hour figure.
In his declaration, Mr. Homan responds that the hours spent were reasonable because the
“matter involved novel claims of race discrimination by a private corporation and warranted the
legal research (most of which was performed by associates), drafting, document review and
research and analysis noted.” (Homans Reply Decl. ¶¶ 74-78.) Mr. Homans further explains that
he and the associates who worked with him were careful in drafting the complaints because they
anticipated that Defendants would file motions to dismiss – which they did.
While Defendants suggest that the pleadings in this case were straightforward, they
vigorously contested the plausibility of the allegations and the legal viability of the causes of
action raised in the complaints. In any event, contrary to Defendants’ characterization, many of
the hours documented on Appendix C were not entirely devoted to “drafting” the complaints
Defendants have grouped their objections by category on individual spreadsheets and present
these spreadsheets as appendices to their response in opposition to SDT’s petition.
filed by SDT. For example, Defendants have included hours counsel spent providing SDT with
guidance about responding to contact from the media, researching the factual allegations and
investigating out of state service issues. As such, Defendants have misrepresented the number of
hours counsel spent “drafting” the complaints by including these ancillary tasks.
I have reviewed each of the entries included on Appendix C and conclude that the
number of hours reflected are reasonable given the factual allegations and somewhat novel legal
theories SDT pursued in this case.
ii. Number of Hours Responding to Motion to Dismiss
According to Defendants, SDT’s attorneys spent 73.9 hours responding to Defendants’
motion to dismiss the Amended Complaint. (See Defs.’ Resp., App. M.) Defendants urge that the
motion to dismiss only raised four issues and the hours billed should, therefore, be reduced to
17.3. The majority of Defendants’ argument focuses on the 59.7 hours they contend Mr.
Tomasco spent preparing the response in opposition to the motion to dismiss. Defendants urge
that his hours should be reduced to 10.
As noted above, SDT agreed to withdraw 24.4 hours of Mr. Tomasco’s time spent
researching issues in connection with the motion to dismiss. (See supra note 2.) In light of the
withdrawal of these hours, SDT seeks to recover for the 35.3 hours Mr. Tomasco billed in
connection with the response to the motion to dismiss and the 49.5 total hours that all of its
attorneys billed for this submission.
After reviewing the hours billed, Defendants’ motion to dismiss, and SDT’s response
thereto, I conclude that 49.5 hours – over six full eight-hour days – to research and draft the
response to the motion to dismiss is slightly excessive in light of the issues raised therein. Mr.
Homans billed 12.4 hours in connection with the response and I find those hours to be reasonable
in light of the tasks he completed. The 24.4 hours billed by Mr. Tomasco will be reduced to 18
hours. This reduction results in a $2,240 decrease ($350 x 6.4 hours) to the overall attorney’s fee
iii. Number of Hours Drafting a Motion to Compel
According to Defendants, SDT’s attorneys spent 24.6 hours drafting a motion to compel
certain items of discovery. Defendants urge that this figure should be reduced to 4.5 hours
because the motion SDT filed was “straightforward.” (See Defs.’ Resp., App. G.)
In defense of the hours expended, SDT urges that Defendants’ own conduct necessitated
the filing of the motion. SDT also notes that the motion sought information important to the
development of its case and that the 24.6 hours billed included the filing of a reply in further
support of the motion.
A review of Appendix G reflects that SDT’s attorneys spent 10.2 hours drafting the
motion and 14.4 hours drafting the reply. Given the particulars of the procedural history leading
up to the filing of the motion and the importance of the information sought, I conclude that
SDT’s attorneys reasonably spent 10.2 hours drafting the motion.
That said, the 14.4 hours Mr. Homans and Ms. Oeltjen spent preparing the five page
reply is slightly excessive in light of the arguments raised therein. The 10.6 hours Ms. Oeltjen
spent preparing the reply will be reduced to 6 hours. A reduction of her time, rather than Mr.
Homans’ time, is appropriate given that her time reflects the bulk of the hours billed in
connection with the reply. This reduction results in a $1,403 decrease ($305 x 4.6 hours) to the
overall attorney’s fee figure.
iv. Number of Hours Spent Responding to Motion for Sanctions
According to Defendants, SDT’s attorneys billed 87.6 hours responding to Defendants’
motion for sanctions. (See Defs.’ Resp., App. K.) However, as noted above, SDT has withdrawn
34 hours of the time its attorney’s spent in connection with the motion for sanctions. (See supra
note 2.) After the reductions, SDT seeks to recover the following hours its attorneys expended on
the task: 20.6 hours for Mr. Homans’ work, 31.5 hours for Ms. Hazell’s work and 1.5 hours for
Ms. Oeltjen’s work.
Even accounting for the withdrawn hours and the seriousness of the requested sanctions,
53.6 hours to prepare a response to the motion for sanctions is excessive. In explaining the basis
for withdrawing the 24 hours, Mr. Homans stated “it does appear that we took more time than
reasonable in researching and drafting this response, mainly because it occurred during Ms.
Hazell’s transition to the case.” (Homans Reply Decl. ¶ 107.) After carefully reviewing the
remaining 31.50 hours Ms. Hazell spent researching and drafting this response, I conclude that
her hours were excessive in proportion to the task at hand – most likely because she was newly
assigned to the case. As such, a further 15 hour reduction of her time is appropriate. This
reduction results in a $4,575 decrease ($305 x 15 hour) to the overall attorney’s fee figure.
v. Number of Hours Spent Responding to Summary Judgment
According to Defendants, SDT’s attorneys spent 279.9 hours responding to Defendants’
motion for summary judgment and Defendants’ related motion to strike newspaper articles from
SDT’s response. (See Defs.’ Resp., App. L.) Defendants urge that SDT should be permitted to
recover attorney’s fees for only 49.2 hours spent in connection with both motions. 5
As an initial matter, I do not believe that the following entries were properly included on
Defendants’ Appendix L as time SDT’s attorneys spent “preparing” responses to the motion for
summary judgment and motion to strike:
− 2/26/15 – MDH – Telephone call and coordinate with Inquirer general counsel
to obtain Bill Marimow and Martha Woodall declarations; receive and review
same (.6 hours)
− 2/18/15 – MXH – Begin to draft declarations of Woodard, Marimow and
Mayes (.9 hours)
− 2/19/15 – MXH – Continue to draft declarations of Woodard, Marimow and
Mayes (.6 hours)
− 2/20/15 – MXH – Contact Eric Mayes re: executing the Declaration (.1 hour);
revise Marimow, Woodard, and Mayes Certifications (.7 hours)
− 2/23/15 – MXH – Contact Eric Mayes re: executing the Declaration (.2 hours)
− 2/27/15 – MDH – Analyze reply brief on motion for sanctions (.5 hours)
− 3/11/15 – MDH – Attend portion of Dougherty trial re: SOT to gain
intelligence on defense counsel at trial and overlapping fact and witness issues
− 11/4/15 – MDH – Receive and analyze Judge Goldberg’s decision on
summary judgment; contact client on same; schedule status conference and
follow up with Melissa Hazell (1.1 hours)
− 11/4/15 – MXH – Analyze Court’s opinion denying Defendants’ Motion for
Summary Judgment (.7 hours)
I will not consider these hours when assessing whether the hours SDT’s attorneys expended
responding to Defendants’ motions were reasonable.
Defendants contend that the time SDT’s attorneys spent responding to Defendants’
motion for summary judgment should be significantly reduced as follows:
According to Defendants,
Total Hours Spent 6
Defendants proposed reduction is ridiculous. Simply reading Defendants’ motion for
summary judgment, the voluminous accompanying record, the cases cited therein and the motion
to strike requires a substantial number of hours. Had SDT’s attorneys spent only 49.2 hours
reading, researching and responding to Defendants’ motions, SDT’s responses would have been
at best superficial. I also note that the hours billed reflect not only time spent preparing a
response to the motion for summary judgment but also a surreply to that motion as well as a
response to Defendants’ motion to strike from SDT’s response reference to certain newspaper
That said, the total number of hours SDT’s attorneys expended preparing their
submissions exceeds six forty-hour work weeks. Although SDT’s submissions were thoroughly
The math on Appendix L is incorrect:
− Defendants state that Mr. Homans spent 77.9 hours. However, all of the entries
Defendants have collected on Appendix L for Mr. Homans total 90.1 hours not 77.9.
− Defendants state that Ms. Hazell spent 76.9 hours. However, all of the entries
Defendants have collected on Appendix L for Ms. Hazell total 83.8 not 76.9.
− Defendants state that Ms. Kernicky spent 6.5 hours. However, all of the entries
Defendants have collected for Ms. Kernicky total 10.5 not 6.5.
researched and well written, the number of hours is excessive in light of the issues raised in
Defendants’ motions. After reviewing the attorneys’ timesheet entries in light of the submissions,
I conclude that the following reductions are appropriate:
According to Defs.
As noted above, these reductions lower the overall amount of attorney’s fees by $23,445.
vi. Number of Hours Spent on Document Production and Review 7
According to Defendants, SDT’s attorneys devoted 172.2 hours to document review. 8
Defendants urge that this number should be slashed to 30 hours. (See Defs.’ Resp. App. J.)
Defendants do not articulate the basis for their objections or explain how they arrived at the 30
Mr. Homans responds that he finds it essential to review documents himself and, if he
had spent less time, he would have risked not being prepared to conduct “responsive discovery,
depositions and trial, which would not have served the client well.” (Homans Reply Decl. ¶ 101.)
I agree with Mr. Homans that it is entirely appropriate and perhaps economical for a
senior attorney to devote time to reviewing discovery produced by an opposing party. In fact, it
Although Appendix J is captioned as “document production and review,” the hours collected
appear to be devoted to document review alone.
In Appendix J, Defendants state that Ms. Oeltjen spent 29.6 hours on document
production/review. However, the hours Defendants compiled total 35 hours.
would be entirely inappropriate for such an attorney to formulate a trial strategy without a
working knowledge of the relevant universe of documents and facts.
Defendants’ suggestion that the number of hours spent reviewing documents should be
drastically reduced to 30 hours is another ridiculous, frivolous suggestion. Discovery included
prior depositions of numerous witnesses and a significant amount of documents. Competent
attorneys would devote more than 30 hours to reviewing the voluminous documents produced to
assure responsiveness and completeness, to prepare for depositions, formulate trial strategies and
create exhibit lists. It is reasonable that SDT’s attorneys would review some of the key
documents more than once throughout this lengthy and contested litigation. 9
That said, Mr. Tomasco alone billed 60.4 hours in connection with document production.
These hours were somewhat excessive. His time was far greater than what Mr. Homans and Ms.
Hazell devoted to document production and review. As such, his time will be reduced by 20
hours. This reduction lowers the overall attorney’s fee by $7,000 (20 hours x $350).
vii. Number of Hours Spent on Settlement Conferences
According to Defendants, Ms. Hazell expended 14.8 hours and Mr. Homans spent 26.9
hours on settlement conferences with Magistrate Judge David Strawbridge and “surrounding
issues.” Defendants urge that the total number should be reduced to 10.5 hours. (See Defs.’
Resp., App. N.) 10
Defendants objected to the 37.7 hours Ms. Hazell spent reviewing documents in preparation for
trial. Defendants urge that all of these hours should be disallowed because document review
should already have been completed. For the reasons noted above, I reject Defendants’ argument
that SDT’s attorneys should only have reviewed documents once and at the very outset of this
Defendants do not present any argument in support of this set of objections. I also note that
Defendants calculated the number of hours Ms. Hazell spent in connection with the settlement
conference incorrectly. Ms. Hazell’s hours on Appendix N equal 19.4 not 14.8. As such, the total
number of hours that Defendants find objectionable is 46.3 not 41.7.
Turning to the grounds for the parties’ entries to which Defendants challenge, they first
object to entries for the time Mr. Homans spent with Judge Strawbridge in actual settlement
conferences and discussing settlement issues with Judge Strawbridge on the phone. Defendants’
objections to these particular entries are a continued example of Defendants’ willingness to be
That said, I do agree that the overall number of hours expended were slightly excessive. I
make this conclusion in part because SDT’s lawyers spent a substantial number of hours
preparing their response to Defendants’ motion for summary judgment. In preparing their
response, SDT’s attorneys surely gained a strong working knowledge of the facts and legal
theories as well as the strengths and weaknesses of their case. Armed with this knowledge, they
could and should have been able to effectively represent their clients at the settlement conference
with fewer hours of additional preparation. As such, I will reduce both Mr. Homans and Ms.
Hazell’s time by five hours each. This reduction results in a $4,125 decrease ($520 x 5 hours +
$305 x 5 hours) to the overall attorney’s fee figure.
Number of Hours Spent Preparing for Joe Snell’s Deposition
According to Defendants, SDT’s attorneys spent 8.35 hours preparing for the deposition
of Joe Snell, an SDT employee. Without any actual explanation, Defendants urge that this
number should be reduced to 4 hours. (See Defs.’ Resp., App. O.)
The hours billed reflect time Mr. Homans and Mr. Tomasco spent getting prepared for
Mr. Snell’s deposition as well as 3.0 hours they spent preparing Mr. Snell to be deposed. Given
that Mr. Snell was part of the SDT team who conducted the initial survey of the relevant schools,
I conclude that the hours SDT’s attorneys spent in connection with his deposition are reasonable.
ix. Number of Hours Spent Preparing for Ken Spressart’s Deposition
According to Defendants, Mr. Homans spent 6.7 hours preparing for the deposition of
Ken Spressart, SDT’s Vice President of Sales. 11 Defendants urge that this number should be
reduced to 3.5 hours. (See Defs.’ Resp., App. P.)
Defendants’ objection is begrudging. Mr. Spressart was involved in the events
surrounding SDT’s initial involvement in the project and he also had intimate knowledge about
SDT’s claim for lost profits. I also note that Mr. Spressart was deposed on two occasions in
connection in this case. (See Pl.’s Resp. to Defs.’ Mot. for Summ. J., Exs. L and P.) In light of
the foregoing, it is entirely reasonable that Mr. Homans would spend 6.7 hours preparing for Mr.
x. Number of Hours Spent on Pretrial Memorandum and Motions
According to Defendants, SDT’s attorneys spent 150.6 hours preparing a pre-trial
memorandum and litigating pre-trial motions. Defendants urge that over 100 hours should be
disallowed and recovery should be limited to 48 hours. (See Defs.’ Resp., App. I.) 12
Appendix P lists the following three entries as pertaining to “Spressart Deposition
− 6/13/14 – Prepare for Ken Spressart deposition (4.1 hours)
− 6/14/14 – Deposition preparation and review all summaries and reports in Pepper
Hamilton investigation file (3.5 hours)
− 6/15/14 – Deposition preparation with Ken Spressart (3.2 hours)
Oddly, Defendants have captioned Appendix P as “Spressart Deposition Preparation: 6.7 hours.”
It appears that Defendants have added the second and third entries but not the first entry to arrive
at this total. Nonetheless, any and all of the hours listed on Appendix P constitute a reasonably
necessary amount of preparation.
Appendix I is not labeled as such but appears between Appendices H and J.
Ironically, it appears that approximately 100 hours of the 150 hours SDT’s attorneys
billed were devoted to responding to the nine pretrial motions filed by Defendants. 13 These nine
motions were varied, raised numerous issues and challenged the admissibility of a variety of
evidence that was essential to SDT’s case at trial. Responding to several of the motions required
SDT’s counsel to review prior lengthy deposition transcripts. As such, SDT’s attorneys
reasonably devoted a significant number of hours responding to these motions. In large part,
Defendants’ own litigation tactics necessitated these hours and SDT is entitled to recover for the
hours reasonably expended.
Prior to trial, Defendants filed the following nine motions:
1. “Defendants’ Motion to Exclude the Opinions and Testimony of John F.
Maloney” (Doc. No. 129);
2. “Defendants’ Motion in Limine to Preclude the Use of the Phrase
‘Affirmative Action’” (Doc. No. 131);
3. “Defendant’s Motion in Limine to Preclude the Testimony of Nancy Quinn”
(Doc. No. 133);
4. “Motion in Limine to Preclude Francis Dougherty and John Byars from
Offering Testimony Regarding Any Issues Other than the September 23, 2010
Meeting” (Doc. No. 134);
5. “Defendants’ Motion in Limine to Preclude the School Reform Commission’s
Findings of Fact and Conclusions of Law” (Doc. No. 135);
6. “Motion in Limine to Exclude Newspaper Articles” (Doc. No. 136);
7. “Motion in Limine to Exclude Evidence Related to the Selection of IBS or
Any Other Minority Contractor” (Doc. No. 137);
8. “Defendants’ Motion to Limit the Trial Testimony of Jerome Paley, Kenneth
Spressart and Joseph Snell to Issues Based on Their Personal Knowledge”
(Doc. No. 139); and
9. “Defendants’ Motion in Limine to Exclude Plaintiff’s Trial Exhibits 100 and
101” (Doc. No. 140).
I note that approximately 15 of the remaining 50 hours at issue were devoted to preparing
SDT’s pretrial memorandum and 35 hours were devoted to preparing SDT’s three motions in
limine. Based on my review of SDT’s timesheets, pretrial memorandum and motions in limine,
50 hours is not unreasonable. As such, I conclude that SDT will be permitted to recover for the
full number of hours its attorneys billed in connection with pretrial submissions.
xi. Number of Hours Conducting “Superfluous Research”
According to Defendants, SDT’s attorneys spent 87.7 hours conducting research not
connected to its responses to Defendants’ motion to dismiss, motion for sanctions, motion for
summary judgment or motions in limine. Defendants urge that these hours should be reduced to
12.9 hours. (See Defs.’ Resp., App. F.) As part of this proposed reduction, Defendants suggest
that the 3.6 hours Mr. Homans spent on research should be disallowed.
Mr. Homans spent less than one half of one day conducting research that Defendants
contend was “unconnected” to the filing of any particular motion. However, each and every entry
for his time as well as his colleague’s time describes the nature of his research, all of which was
directly related to legal issues in this case. As such, Defendants’ objection to the time catalogued
on Appendix F is rejected. 14
xii. Number of Hours Spent Preparing for Daryl Boozer’s Deposition
According to Defendants, SDT’s attorneys spent twenty-four hours preparing for the
deposition of Daryl Boozer. Defendants urge that this number should be reduced to five hours.
I also note that Defendants, on several occasions, have listed the same entries twice on
Appendix F. They have included twice the hours Mr. Tomasco billed on January 10, 2013, June
5, 2014, June 6, 2014 and June 9, 2014. I will give Defendants the benefit of the doubt and
assume that this double counting was a typographical error and not an unfortunate attempt to
inflate the number of hours SDT’s attorneys expended.
(See Defs.’ Resp., App. A.) Outside of a passing reference, Defendants do not explain this
Daryl Boozer is the owner and President of IBS Communications, the company that was
ultimately awarded the contract at issue. In support of the hours expended, Mr. Homans notes
that Mr. Boozer’s testimony was “crucial on the issue of confirming the odd awarding of the
contract to his company (after it was pulled from SDT), the total price paid for the project, the
total work involved, and in establishing whether his firm was as qualified as SDT for the work.”
(Homans Reply Decl. ¶ 68.) Mr. Homans also notes that Mr. Boozer was not deposed in any of
the related cases and, therefore, his deposition was the only opportunity to obtain this crucial
I find that SDT’s attorneys reasonably expended twenty-four hours preparing for the
deposition of Mr. Boozer. The perhaps higher than normal hours expended are also at least
partially attributable to the fact that Mr. Boozer cancelled and rescheduled the deposition several
times requiring Mr. Tomasco to “reprepare” several times. (Homans Reply Decl. ¶ 68.) The
thorough preparation was warranted given that Mr. Boozer’s testimony was essential in
establishing certain key facts at trial.
Number of Hours Spent on Estate Issues
According to Defendants, SDT’s attorneys spent fourteen hours drafting a motion to
substitute a personal representative of Dr. Ackerman’s estate as a defendant in this case and a
reply in further support of the motion. (Defs.’ Resp., App. D.) 15 Defendants do not present any
argument regarding this figure but urge without any explanation that this task was “overbilled”
and that the number of hours should be reduced to six hours. (Defs.’ Resp., App. D.)
I note that the hours listed on Defendants’ Appendix D total is 14.7 not 14.0 hours.
Without the benefit of any explanation of their position, I am unable to evaluate the
merits of Defendants’ objection. See Bell v. United Princeton Properties, Inc., 884 F.2d 713, 720
(3d Cir. 1989) (“the adverse party’s submissions cannot merely allege in general terms that the
time spent was excessive . . . they must generally identify the type of work being challenged, and
. . . specifically state the adverse party’s grounds for contending that the hours claimed in that
area are unreasonable”). I have reviewed the entries pertinent to the estate issue and find that the
hours were reasonably necessary.
Number of Hours Spent on Jury Instructions
According to Defendants, SDT’s attorneys spent 26.8 hours preparing proposed jury
instructions. Defendants urge that this number should be reduced to 9 hours. (See Defs.’ Resp.,
App. E.) 16
SDT accurately notes that I adopted many of its suggested jury instructions and asserts,
without response from Defendants, that SDT “took the lead in drafting, revising, and filing the
Joint Proposed Jury Instructions submitted by the parties.” (Homans Reply Decl. ¶ 82.)
Nonetheless, I conclude that expending over three work days to compile jury instructions
is excessive. I reach this conclusion in light of the fact that there was a single cause of action
presented to the jury and, that although several instructions were “customized,” many were
largely taken verbatim from the Third Circuit model instructions.
The time Ms. Hazell spent preparing the jury instructions will be reduced by 5 hours. A
reduction of her time, rather than Mr. Homans’ time, is appropriate given that her time reflects
The math on Appendix E is incorrect. Defendants state that Ms. Hazell spent 23.1 hours on
jury instructions. However, all of the entries Defendants have collected on Appendix N for Ms.
Hazell total 19.1 hours not the 23.1 they claim. I also note that one of the entries on Appendix E
includes time for tasks unrelated to the preparation of jury instructions. (See Def.’s Resp., App. E
( 2/11/16 – MXH – “correspond re: Right to Know Request sent to School Board” (.2 hours)).
the bulk of the hours billed in connection with the jury instructions. This reduction results in a
$1,525 decrease ($305 x 5 hours) to the overall attorney’s fee figure.
xv. “Miscellaneous” Overbilled Hours
According to Defendants, Mr. Homans, Mr. Tomasco and Ms. Oeltjen spent 30.65 hours
on “miscellaneous” tasks and those hours should be reduced to 7.8 hours. (See Defs.’ Resp.,
App. H.) Defendants contend that SDT’s attorneys spent too many hours on these tasks and that
these hours were billed at “premium rates” even though the tasks could have been completed by
more junior attorneys and/or paralegals.
On Appendix H, Defendants object to certain entries on the basis that SDT’s attorneys
spent too much time completing particular tasks. For example, Defendants urge that the .4 hours
Mr. Tomasco spent on September 28, 2014 emailing opposing counsel should be reduced to .2
hours or that the 1.5 hours Mr. Homans spent on November 11, 2014 preparing for oral argument
on discovery disputes should be reduced to .7 hours. Defendants note that they have raised these
“overbilling” objections throughout their objections to the hours charged in connection with
particular categories of tasks. (See Defs.’ Resp., Apps. A, C-P, S.)
In large part, I have considered and resolved these overbilling objections in the other
sections of this opinion which address Defendants’ objections that the hours billed with respect
to certain categories of tasks were excessive. That said, I have again reviewed every entry that
Defendants argue should be reduced or disallowed on the basis that SDT’s attorneys
“overbilled.” I do not find that any of the hours included on Appendix H should be disallowed or
reduced. SDT has adequately described each task included on Appendix H and I find that the
hours expended were reasonable. Defendants have offered no substantive basis for me to
Defendants also object that SDT seeks to recover at a premium rate for “low-level” work.
In connection with those objections, Defendants argue that Mr. Homans spent many hours doing
work that a less senior attorney or paralegal could have done. For example, Defendants contend
that it is inappropriate to bill at Mr. Homans’ requested rate for hours spent drafting a discovery
plan, drafting self-executing disclosures, drafting written discovery requests, conducting
document review, writing first drafts of briefs and motions, drafting correspondence and
preparing witnesses for deposition.
Although certain tasks could have been performed by more junior attorneys, it is
reasonable and appropriate that Mr. Homans, as lead counsel, took an active and engaged role in
this litigation. See Sheffer v. Experian Info. Sols., Inc., 290 F. Supp. 2d 538, 549 (E.D. Pa. 2003)
(“it is reasonable for lead trial counsel to desire to expend his or her own time on some activities
that, although within the competency of less highly paid associates, are better performed by the
lead counsel to ensure the smooth functioning at trial”). Nothing in my review of the hours on
Appendix H discloses that Mr. Homans, Mr. Tomasco or Ms. Oeltjen billed for tasks that should
have been billed at a less senior rate.
According to Defendants, Mr. Homans and Mr. Tomasco billed 21.07 hours for clerical
work and SDT should not be permitted to recover for these hours at any rate. (See Defs.’ Resp.,
App. B.) As noted above, SDT has withdrawn 4.2 of the 8.3 hours of Mr. Tomasco’s time listed
on Appendix B. I conclude that the remaining 4.1 hours is a reasonable amount of time to
complete the tasks Mr. Tomasco accomplished.
Regarding Mr. Homans’ hours, Defendants object to eleven of Mr. Homans’ timesheet
entries on the basis that they constitute “clerical work.” I am puzzled by Defendants’ objection to
time spent by Mr. Homans’ undertaking such tasks as: reviewing a complaint filed in another
case which involved the same contract award at issue in this case, updating clients about an
extension, reviewing a damages estimate, drafting a “deposition memo,” coordinating tasks to be
completed by Ms. Oeltjen and Mr. Tomasco, discussing the deposition of one of SDT’s
employees with Mr. Tomasco, speaking with opposing counsel, researching the possibility of
consenting to trial by a magistrate judge, and revising trial exhibits. This work is exactly what
lead counsel should be doing. I am hard pressed to understand how any of these tasks are
“clerical” in nature.
Notwithstanding the foregoing, I agree that two entries of Mr. Homans’ timesheet entries
listed on Appendix B were overbilled in some fashion. On June 17, 2014, Mr. Homans billed .5
hours for the following tasks: “notice of deposition sent and depositions scheduled.” On June 17,
2016, Mr. Homans billed 1.5 hours for a “visit the courtroom to review setup and technology in
preparation for trial.”
Both of the aforementioned tasks could be completed by a paralegal. As such, I will
reduce the hourly rate applied to those 2 hours to $200. As such, $640, the difference between
the requested fees and the allowable fees, ($1,040 - $400), will be subtracted from the requested
According to Defendants, SDT’s attorneys spent 129.1 hours conducting “unnecessary”
work and that those hours should be disallowed in their entirety. (See Defs.’ Resp., App. Q.)
Defendants urge that the tasks listed on Appendix Q were “unnecessary” based on a variety of
First, Defendants urge that the time SDT’s attorney spent deposing, preparing, or
obtaining declarations from witnesses who were not called at trial should be disallowed. 17 I
disagree. It seems obvious to state that simply because a witness was not called does not make
that work “unnecessary.” These efforts were reasonable because the witnesses may have proved
necessary in light of the trial testimony of SDT’s other witnesses or as rebuttal depending on the
evidence introduced by Defendants. See Horizon Unlimited, Inc. v. Silva, 2002 WL 1896297, at
*3 (E.D. Pa. Aug. 15, 2002) (reasonable to bill for hours preparing witness, even though not
called, because it was necessary to “prepare witnesses in case they were required to rebut
testimony offered” by an opposing party).
Defendants also object to .40 hours Mr. Homans spent reviewing Philadelphia Inquirer
articles. I cannot fathom why Defendants believe that doing so was unnecessary given that the
circumstances surrounding the contract award were chronicled in the local newspapers and the
parties vigorously litigated the admissibility of statements attributed to Defendants in these
Defendants also object to hours Mr. Homans spent conferring with Mr. Tomasco as
“unnecessary.” I disagree. It is entirely reasonable and prudent of Mr. Homans to confer with
Mr. Tomasco and the other more junior attorneys working on the case. See Sheffer v. Experian
Info. Sols., Inc., 290 F. Supp. 2d 538, 547 (E.D. Pa. 2003) (“reasonable trial preparation entails
collaboration and rehearsal among attorneys”). The hours Mr. Homans spent delegating tasks,
Defendants have objected to the hours SDT’s attorneys spent in connection with its damages
expert, John Maloney, on similar grounds. Defendants urge that SDT “abandoned” Mr.
Maloney’s testimony at trial in favor of Mr. Spressart’s testimony on the issue of lost profits. I
am at a loss to understand this objection. Mr. Maloney testified at trial. Simply because SDT
chose to present two witnesses on the lost profits issue either as alternatives or corroboration
does not mean that SDT abandoned its damages expert.
coordinating efforts and reviewing work from Mr. Tomasco and the other associates are
Next, Defendants object to hours Mr. Homans spent conferring with counsel who
represented Mr. Dougherty in his related lawsuit against the School District on the ground that
there is no overlap of legal issues with Mr. Dougherty’s case. Although Mr. Dougherty’s case
involved different causes of action, the circumstances surrounding the contract award and Dr.
Ackerman’s conduct are central in both cases. Any competent attorney would look into the
testimony and evidence introduced in a related case.
Next, Defendants object to the hours devoted to researching and analyzing punitive
damages because SDT voluntarily withdrew its request for punitive damages before trial. Such
decisions, often are reasonably made in the context of a developed record and with the clarity
that pretrial rulings bring.
Defendants also object to the hours SDT’s attorneys spent in connection with a mock
trial. Courts within this district have allowed prevailing parties to recover attorney’s fees
incurred in connection with mock trials under certain circumstances. See, e.g., Majestic Box Co.
v. Reliance Ins. Co. of Illinois, 1998 WL 720463 *5 (E.D. Pa. Sept. 2, 1998) (finding
complicated nature of defense justified use of mock trial). Given the nature of the claim – race
discrimination brought by a white-owned corporation against a public school system – the use of
a mock trial was a reasonable tool to prepare for trial.
That said, given the somewhat extraordinary nature of the exercise, both Mr. Homans and
Ms. Hazell’s attendance at the mock trial was not reasonable. Ms. Hazell’s time spent preparing
for the mock trial on June 13, 2016 and attending the mock trial on June 14, 2016 will be
disallowed. This is appropriate because Mr. Homans presented opening and closing statements at
the real trial and questioned the majority of witnesses. This disallowance results in a $2,409.50
($305 x 7.9 hours) reduction to the overall amount of attorney’s fees requested.
Defendants have also objected to several other entries listed in Appendix Q but based on
the conclusory and brief notations – (e.g. “unnecessary work” or “unnecessary and duplicative
billing”) – I am left to speculate the reasons behind these objections. Nonetheless, I have
reviewed all of the entries listed in Appendix Q and attempted to ascertain the basis of
Defendants’ objections. With a single exception noted below, I conclude that the remaining
hours were reasonably necessary and properly included.
On September 21, 2014, Mr. Homans billed .2 hours for “email with Andy Cohn on
expert.” Based on SDT’s submissions, I do not know who Andy Cohn is or what role he played
in this litigation. As such, I am unable to evaluate whether the .2 hours was reasonably expended.
This disallowance will result in a $104 reduction ($520 x .2 hours) to the overall amount of
xviii. Vague Entries
Next, Defendants object to fifty entries that they contend are too vague to be evaluated
and argue that the 61.1 hours that those entries represent should be disallowed in their entirety.
(See Defs.’ Resp., App. R.) 18
A fee petition should include “some fairly definite information as to the hours devoted to
various general activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by
various classes of attorneys, e.g., senior partners, junior partners, associates.” Rode, 892 F.2d at
1190 (quoting Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanatory
Here, as elsewhere, Defendants have double counted a significant number of entries in
Appendix R. Defendants list the following hours twice: Mr. Homans (July 25, 2014, October 3,
2014, October 13, 2014); Mr. Tomasco (June 26, 2014, July 24, 2014,); Ms. Oeltjen (September
28, 2016, September 29, 2016, two entries from October 14, 2014, October 15, 2014, October
16, 2014, October 17, 2014, October 20, 2014).
Corp., 487 F.2d 161, 167 (3d Cir. 1973)). That said, “it is not necessary to know the exact
number of minutes spent nor the precise activity to which each hour was devoted nor the specific
attainments of each attorney.” Rode, 892 F.2d at 1190.
Descriptions such as “’research’, ‘review’, ‘prepare’, ‘letter to’, and ‘conference with’”
“clearly meet the standards [set forth] in Rode.” Washington, 89 F.3d at 1037. Specificity
“should only be required to the extent necessary for the district court to determine if the hours
claimed are unreasonable for the work performed.” Id.
A single entry on Appendix R stands out for its paucity of detail. On August 21, 2014,
Ms. Oeltjen billed .3 hours – the entry merely states “discovery.” This description does not
describe what task Ms. Oeltjen performed related to “discovery.” As such, I am unable to
determine whether the .3 hours was reasonably expended or not.
The remaining forty nine entries describe the task performed with much greater detail.
These entries meet and exceed the standard set out in Rode. Every entry describes with sufficient
particularity the task performed, the lawyer(s) that performed it and the amount of time
expended. Based on the description provided, I am able to ascertain whether the hours claimed
were reasonably expended.
I note that Defendants’ vagueness objection to these entries are borderline frivolous. The
following entry is representative of the supposedly vague entries listed on Appendix R:
− 10/21/14 (MDH) – Telephone call with John Maloney, economics expert; review file and
documents on damages and send to expert (.60 hours)
I am left to wonder what degree of detail Defendants would find sufficient. There is
absolutely no legal basis for requiring SDT’s attorneys to document their time with any
additional specificity. Defendants’ objections to the timesheet entries listed on Appendix R are
denied with the exception of the .3 hours billed by Ms. Oeltjen. That disallowance results in a
$91.50 ($305 x .3 hours) reduction to the overall amount of attorney’s fees requested.
Number of Hours Spent on Written Discovery
According to Defendants, SDT’s attorneys spent 68 hours on preparing written discovery.
Defendants urge that this figure should be reduced to 17 hours. (See Defs.’ Resp., App. S.)
In particular, Defendants argue that Mr. Homans’ hours should be reduced from 39.4 hours to 5
hours and Mr. Tomasco’s hours should be reduced from 26.6 hours to 10 hours.
SDT responds that this case involved over “13,000 pages of documents and various
waves of disclosures, requests and responses over the course of four years.” (Homans Reply.
Decl. ¶ 135.) SDT also accurately notes that Defendants have double counted certain days in
their tally. (Id. at ¶ 136.)
Defendants have objected to and included twice the hours Mr. Homans billed on
December 19, 2013, January 17, 2014, January 22, 2014, January 24, 2014, and Mr. Tomasco
billed on December 31, 2013, January 23, 2014, January 24, 2014, February 6, 2014, and
February 7, 2014. 19 Defendants double counting inflated the numbers of hours SDT’s attorneys
supposedly spent on “written discovery” from 46.2 hours to 68 hours.
I note that the 46.2 hours reflected on Appendix S includes time spent drafting an initial
discovery plan, reviewing Defendants’ initial disclosures, drafting discovery requests and
interrogatories, executing SDT’s initial disclosures, drafting a subpoena to IBS, negotiating a
confidentiality order with Defendants’ counsel, responding to Defendants’ interrogatories with
input from Mr. Spressart, coordinating document production from SDT, delegating tasks
amongst SDT’s attorneys, sending Defendants’ counsel delinquency letters, reviewing
As explained above, I have given Defendants the benefit of the doubt and assume that this
double counting was inadvertent.
Defendants’ response to SDT’s interrogatories, creating a witness list to produce to Defendants,
and responding to Defendants’ supplemental discovery requests. Given the breadth of tasks
completed and the volume of documents produced in this case, I conclude that SDT’s attorneys
reasonably expended a substantial amount of time on “written discovery.”
Having reviewed all of Defendants’ objections, I next must determine the lodestar by
multiplying the number of hours reasonably expended by a reasonably hourly rate. As noted
above, the hourly rates requested by SDT’s attorneys are reasonable. In the preceding sections, I
have reduced the numbers of hours expended where unreasonable. Although the typical approach
is to multiply these values, I have instead noted the impact each reduction has on the overall
attorney’s fee figure throughout the preceding sections. The resulting number would be the same
if I had multiplied the reasonable number of hours by the rate at the conclusion of the foregoing
For the reasons discussed above, the following amounts will be reduced from the overall
attorney’s fees requested:
Category of Objection
Hours Responding to Motion to Dismiss
Hours Drafting a Motion to Compel
Hours Spent Responding to Motion for Sanctions
Hours Spent Responding to Summary Judgment Motion
Hours Spent on Document Production and Review
Hours Spent on Settlement Conferences and “Surrounding Issues”
Hours Spent on Jury Instructions
As such, the lodestar is $770,224.29 ($815,281.29 – $45,057.00.)
Reduction for Unsuccessful Claim against the School Reform Commission
Noting that the jury did not find the School Reform Commission (“SRC”) liable,
Defendants next argue that the lodestar should be reduced by “at least one-third” because SDT
was only successful against two of the three Defendants. According to Defendants, district courts
have reduced lodestars to reflect partial success in this manner in the following cases: Reid ex
rel. Reid v. School District of Philadelphia, 2005 WL 174847 (E.D. Pa. Jan. 21, 2005), Sheffer v.
Experian Information Solutions, Inc., 290 F. Supp. 2d 538 (E.D. Pa. 2003), David P. v. Lower
Merion School District, 1998 WL 720819 (E.D. Pa. Sept. 18, 1998) and Laura P. v. Haverford
School District, 2009 WL 1651286, (E.D. Pa. June 12, 2009).
SDT responds that such a reduction is inappropriate because it obtained a “complete
vindication of its rights” and a complete recovery of its lost profits. SDT further objects that the
claim against the SRC was identical to the claim against the School District and Dr. Ackerman
and, therefore, no time was expended litigating only the claim against the SRC.
If “a plaintiff has achieved only partial or limited success, the product of hours
reasonably expended on the litigation as a whole times a reasonable hourly rate may be an
excessive amount.” Hensley, 461 U.S. at 436. As such, “the court can reduce the hours claimed
by the number of hours spent litigating claims on which the party did not succeed and that were
‘distinct in all respects from’ claims on which the party did succeed.” Washington, 89 F.3d at
1044 (quoting Rode, 892 F.2d at 1183). In imposing such a reduction, “[t]here is no precise rule
or formula for making these determinations and the district court may “identify specific hours
that should be eliminated, or it may simply reduce the award to account for the limited success.”
Hensley, 461 U.S. at 436–37.
I agree with SDT that the claim against the SRC was largely identical to the claims
against the School District and Dr. Ackerman. All of these claims rely upon the same set of
factual allegations and legal theories. Defendants failed to offer any substantive explanation as to
how the claims were distinct or point to any specific hours that were devoted to litigating just the
claim against the SRC. As such, a reduction is inappropriate because the case against the SRC,
the School District and Dr. Ackerman were not distinctly different. See Mary Beth G. v. City of
Chicago, 723 F.2d 1263, 1280 (7th Cir. 1983) (“we believe that the award of attorney’s fees for
time expended in remedying illegal conduct should not turn on whether only some or all of the
defendants named in connection with the conduct are ultimately held liable. Hensley clearly
permits attorney’s fees to be awarded for time spent relating to matters not ‘distinctly different’
from those on which the plaintiff ultimately succeeds. When defendants are not named
frivolously in connection with the same illegal conduct, it follows that the matters involving the
different defendants will always be ‘related’”).
Furthermore, none of the cases cited by Defendants support a reduction in this case. In
Reid ex rel. Reid v. School District of Philadelphia, 2005 WL 174847 (E.D. Pa. Jan. 21, 2005), a
special education case, the plaintiff prevailed on her Individuals with Disabilities Education Act
(“IDEA”) claim and was awarded a judgment in the amount of $10,000 along with certain
accommodations. The district court, however, granted defendants summary judgment on the
plaintiff’s equal protection, Rehabilitation Act, Americans with Disabilities Act, and procedural
due process claims. The district court reduced the lodestar of $114,345.00 by one half. The court
explained the reduction was warranted because “[t]he success achieved by Plaintiff was far less
than total. In addition to compensatory damages, Plaintiff sought a declaratory judgment and
punitive damages on six separate counts. Partial summary judgment was entered for Defendants
on all but one count, and no punitive damages were awarded.” Id. at *3.
In Sheffer v. Experian Information Solutions, Inc., 290 F. Supp. 2d 538 (E.D. Pa. 2003),
a Fair Credit Reporting Act case, the plaintiff sought damages in excess of $300,000 but the jury
awarded the “nominal amount of $1,000.” The district court reduced the lodestar of $78,749.97
to $25,000 reasoning that “[i]t would be inappropriate and unreasonable to award Plaintiff for
such a modest result by granting the fees Plaintiff seeks.” Id. at 551.
In David P. v. Lower Merion School District, 1998 WL 720819 (E.D. Pa. Sept. 18, 1998),
another IDEA case, the plaintiff successfully obtained tuition reimbursement and associated
costs for his placement during ninth grade but was not awarded the compensatory education or
costs he sought for his placement during seventh and eighth grades. The district court reduced
the lodestar amount by one half to reflect this partial success. Id. at *5-7.
In Laura P. v. Haverford School District, 2009 WL 1651286, (E.D. Pa. June 12, 2009),
also an IDEA case, the plaintiffs sought compensatory education and an order directing the
school district to place the student plaintiff in a general education program full-time. The
plaintiffs only obtained compensatory education. The court noted that the plaintiffs’ success on
the claim for compensatory education was substantial and the students’ rights had been
vindicated. The court concluded that a reduction of the lodestar by 25% was reasonable given
“the significance of the overall relief obtained in relation to the hours reasonably expended on
the litigation.” Id. at *8.
Unlike all of the preceding cases, here, the jury awarded SDT the full amount of lost
profits it sought to recover. The extent of SDT’s success supports my determination that a
reduction of the lodestar is inappropriate. See Hensley, 461 U.S. at 440 (“the extent of a
plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s
fees under 42 U.S.C. § 1988”). SDT obtained full relief even though the verdict was only
returned against two of the three Defendants. As such, SDT is entitled to recover the full lodestar
amount. See Hensley, 461 U.S. at 435. (“Where a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee”).
SDT also seeks reimbursement for its costs including expert witness fees, deposition
transcript fees, witness fees, subpoena fees, copying and express-mailing costs. (Homans Decl.,
Ex. 2.) Defendants object to over 70 of the 109 entries on SDT’s statement of costs.
The word “costs” in section 1988 refers to the taxable costs referenced in Federal Rule of
Civil Procedure 54(d)(1) and enumerated in 28 U.S.C. § 1920. Abrams v. Lightolier Inc., 50 F.3d
1204, 1224 (3d Cir. 1995) (citing West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83
(1991)). Section 1920 enumerates the following permissible costs:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for
use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials
where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section
1828 of this title.
Furthermore, the Third Circuit has held that the “following are generally recoverable
under section 1988 when it is the custom of attorneys in the local community to bill their clients
separately for them: (a) reproduction expenses; (b) telephone expenses of the attorney; (c) travel
time and expenses of the attorney; (d) postage.” Abrams v, 50 F.3d at 1225.
i. “Advance-Pacer” Fees
Defendants object to a number of entries for “Advance-Pacer” as “unnecessary and
unspecified.” Based on SDT’s descriptions, I cannot ascertain the nature of these expenses or
whether the costs are reasonable. Although SDT has provided invoices for these charges, the
invoices do not provide any further detail. As such, the following entries will be disallowed:
Description of Cost
Photocopies – Advance
Photocopies – Advance
Photocopies – Advance
ii. Expert John Maloney
Defendants urge that SDT “abandoned” Mr. Maloney’s testimony at trial and, therefore,
SDT should not be allowed to recover the costs of retaining Maloney or any other costs
associated with his testimony at trial. I have previously rejected Defendants’ premise that SDT
abandoned Mr. Maloney’s testimony at trial. (See supra note 16.) Nothing I am aware of
precludes a party from offering several witnesses on the issue of damages and, perhaps doing so
as an alternative basis for damages.
An award of Mr. Maloney’s expert fees is permissible under section 1988 and appropriate
in this case. See 42 U.S.C. § 1988(c) (“In awarding an attorney’s fee under subsection (b) of this
section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title,
the court, in its discretion, may include expert fees as part of the attorney’s fee”). I find the fees
incurred in connection with Mr. Maloney’s expert report and testimony to be reasonable.
iii. Fees for Witnesses Who Did Not Testify
Next, Defendants argue that SDT should not be permitted to recover costs associated with
witnesses who did not testify at trial. SDT may recover these expenses so long as the witnesses
were subpoenaed to testify at trial in good faith. See Gergel v. Chemlawn Servs. Corp., 1990 WL
87244, at *2 (E.D. Pa. June 21, 1990) (citing Quy v. Air America, Inc., 667 F.2d 1059 (D.C. Cir.
1981)); Posner v. Lankenau Hosp., 1990 WL 18250, at *1 (E.D. Pa. Feb. 26, 1990). I conclude
that SDT’s decision to subpoena Patrick Henwood, Jeffrey Caldwell, Joseph Snell, Bill
Marimow, Martha Woodall, Robert Westall, Dr. Leroy Nunery and Amy McCole, all who did
not testify at trial, was in good faith as their testimony could have been necessary and relevant
depending on how evidence was presented at trial.
iv. Mock Trial
Defendants object to the costs associated with SDT’s mock trial. As noted above, I have
allowed SDT to recover for certain hours its attorneys devoted to this exercise. However,
allowing SDT to also recover the costs associated with meals for its attorneys and/or jurors
during this mock trial would be unreasonable given that the exercise was not strictly necessary.
As such, the $140.81 spent on meals during the mock trial will be disallowed.
v. Messenger services
Defendants next object to messenger and courier service costs on the basis that they are
part of a lawyer’s overhead. The costs SDT seeks to recover in connection with messenger and
courier services are reasonable in light of the magnitude and duration of the case.
vi. Attorney Travel Costs
Next, Defendants object to SDT’s request for reimbursement of their attorneys’ travel
expenses including the costs of taxis, meals and parking.
An attorney’s travel expenses are “generally recoverable under section 1988 when it is
the custom of attorneys in the local community to bill their clients separately for them.” Abrams,
50 F.3d at 1225. However, SDT has not established by way of affidavit or other evidence that it
is customary for attorneys in this community to bill their clients separately for travel related
expenses. Absent any suggestion that such a practice is customary, I will disallow these
expenses. As such, SDT may not recover the following expenses:
Peter J. Tomasco: Cab fares from office to Court for Conference
Michael Homans: Amtrak to VA on 06/03 for trial testimony of Eric S.
Travel Expense: Michael Homans – Parking at 30th Street
Travel Expense: Melissa K Hazell – taxi to and from EDPA for Pre-trial
Travel Expense: Melissa K Hazell – UBER to and from EDPA
Travel Expense: Melissa K Hazell – taxi to EDPA for Day 1 of Trial
Travel Expense: Melissa K Hazell – taxi to EDPA for Day 2 of Trial
Travel Expense: Raymond Vanderhyden – taxi to EDPA for Day 2 of
Travel Expense: Melissa K Hazell – taxi to and from EDPA for Day 3 of
Travel Expense: Michael Homans/Melissa Hazell – lunch
Lastly, I agree with Defendants that the following entries should be disallowed because
SDT failed to provide sufficient information about these costs to allow for a reasonableness
Law Offices of Stephen C.M. Long 20
Law Office of Alice Ballard, P.C.: Payment of one-third of attorney fees
for raising estate
Law Office of Alice Ballard, P.C. Legal fees for Stephen Long of
Albuquerque, New Mexico relating to the death of Arlene Ackerman
Intelius Cell phone look up
Cell Phone look up – Venture SA
Magna Legal Services – Late Cancellation fee
American Express: Lorman Education Service (re: Lost Profit Damages)
Reduction in Costs
For the reasons stated above, the following costs will be reduced from the overall amount
Category of Objection
Attorney Travel Costs
SDT provided Stephen Long’s timesheets but based on these submissions I cannot ascertain
what work he performed. As such, I cannot assess whether the fees incurred were reasonable.
As such, SDT will be awarded $45,115.63 in costs ($48,177.77 - $3,002.14).
Lastly, SDT argues that it should be awarded prejudgment interest on the damage award
of $2.3 million. SDT urges that the applicable rate is the adjusted prime overpayment rate
established by the Internal Revenue Service and codified in 26 U.S.C. § 6621. (Pl.’s Pet., Ex. N.)
Defendants urge that if prejudgment interest is awarded the federal post-judgment interest rate
set out in 28 U.S.C. § 1961 should apply.
The decision whether to award prejudgment interest is within the sound discretion of the
trial court. Robinson v. Southeastern Pennsylvania Transp. Auth., 982 F.2d 892, 898 (3d Cir.
1993). The purpose of prejudgment interest is “to reimburse the claimant for the loss of the use
of its investment or its funds from the time of the loss until judgment is entered.” Berndt v.
Kaiser Aluminum & Chem. Sales, Inc., 789 F.2d 253, 259 (3d Cir. 1986).
I conclude that prejudgment interest is appropriate in this case and necessary to restore
SDT to the position that it would have been in absent Defendants’ unlawful conduct. However,
there is little guidance on what interest rate should apply to the lost profits awarded to SDT
under 42 U.S.C. § 1981.
In support of their position, Defendants point to Young v. Lukens Steel Co., 881 F. Supp.
962, 978 (E.D. Pa. 1994) and Anderson v. Consolidated Rail Corp., 2000 WL 1622863, at *4
(E.D. Pa. Oct. 25, 2000), where in both cases, the court used the rate set out in 28 U.S.C. § 1961
to calculate prejudgment interest on back pay awarded under the Age Discrimination in
SDT, on the other hand cites to a number of cases in which the court applied the 26
U.S.C. § 6621 rate to calculate prejudgment interest on back pay awarded under Title VII. See
Frazier v. Se. Pennsylvania Transp. Auth., 814 F. Supp. 11, 12–13 (E.D. Pa. 1993) (“appropriate
rate for prejudgment interest on the award of back pay in this Title VII case is the fluctuating rate
pursuant to 26 U.S.C. § 6621”); Taylor v. Cent. Pennsylvania Drug & Alcohol Servs. Corp., 890
F. Supp. 360, 369 (M.D. Pa. 1995) (calculating prejudgment interest on Title VII back pay award
using the overpayment rates in 26 U.S.C. § 6621(a)(1)); Taxman v. Bd. of Educ. of Twp. of
Piscataway, 91 F.3d 1547, 1566 (3d Cir. 1996) (concluding that the trial court did not abuse its
discretion in using the rates set in 26 U.S.C. § 6621 to calculate prejudgment interest under Title
I agree with SDT that the rates set forth in 26 U.S.C. § 6621(a)(1) should apply to the
damages awarded in this case. Title VII and 42 U.S.C. § 1981 share similar remedial purposes.
In both contexts, prejudgment interest is an element of making whole persons who have suffered
When SDT was deselected for the project on September 23, 2010, the short-term interest
rate was .46%. (See Pl.’s Pet., Ex. M.) That figure is rounded to the nearest full percentage point,
and then three percentage points are added. 26 U.S.C. § 6621(b)(3), (a)(1). The applicable rate is
As such, SDT will be awarded prejudgment interest on $2,335,000.00 as follows:
Start Date End Date
Applying the 3 percent rate, compounded annually, to the lost profit damage amount that
the jury awarded, SDT is entitled to $473,507.36 in prejudgment interest.
The Philadelphia School District now must bear the costs of counsel’s scorched earth
tactics three times over: first in the form of the jury’s damages award; second through their own
attorneys’ surely hefty fees; and now through the payment of the attorney’s fees and costs to
An appropriate Order follows.
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