CURRY v. UNITED PARCEL SERVICE, INC et al

Filing 53

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 10/25/17. 10/25/17 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERT CURRY,
Plaintiff,

CIVIL ACTION
NO. 17-2331

v.
UNITED PARCEL SERVICE, INC., et al.,
Defendants.
PAPPERT, J.

October 25, 2017
MEMORANDUM

Defendants United Parcel Service, Inc. and Teamsters Local 623 seek attorneys’
fees under 28 U.S.C. § 1927 and Local Civil Rule 83.6.1 for work that resulted from
Robert Curry’s counsel’s bad faith filing of the Amended Complaint. After considering
the reasonableness of the requests and balancing the equities between the parties, the
Court orders Curry’s attorney, Matthew Weisberg, to pay UPS $12,576.00 and Local
623 $7,080.00.
I.
Curry sued UPS and Local 623 after he was fired in May of 2015. The case was
ultimately resolved on the merits when the Court denied Curry’s Motion to Remand
and granted the Defendants’ Motions to Dismiss.1 (ECF Nos. 34 & 35.) The case’s

1

On September 28, 2017, Curry appealed the case’s dismissal. (ECF No. 49.) District Courts retain the
power to adjudicate collateral matters such as sanctions after the entry of final judgment and the filing of a notice of
appeal. In re Schaefer Salt Recovery, Inc., 542 F.3d 90, 98 (3d Cir. 2008). Further, motions for sanctions under 28
U.S.C. § 1927 are not subject to the supervisory rule established in Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90
(3d Cir. 1988), requiring certain motions for sanctions to be decided prior to or concurrent with final disposition of
the case. In re Schaefer, 542 F.3d at 101–02.

1

sordid history is presented in all its glory in the Court’s August 30 Memorandum, and
will mercifully not be repeated here.2 (ECF No. 36.)
Prior to dismissal, Defendants filed Motions for Sanctions pursuant to 28 U.S.C.
§ 1927 and Local Civil Rule 83.6.1. (ECF Nos. 20 & 22.) The Court ordered Weisberg to
show cause why it should not award the Defendants their costs, expenses, and
attorneys’ fees incurred as a result of Weisberg’s filing of the Amended Complaint.
(ECF No. 31.) After holding a hearing, the Court ruled that Weisberg acted in bad faith
in filing the Amended Complaint and with the purpose of multiplying the proceedings
through conduct that was unreasonable and vexatious because: (1) the Amended
Complaint was never meant to stand on its merits and (2) the timing of the filing—
when viewed in context of the entire record—strongly suggested it was filed to delay the
proceedings and the ultimate dismissal of the case. (ECF No. 36.)
The Court reserved ruling on the sanctions motions, requesting that the
Defendants file fee petitions detailing their costs, expenses and attorneys’ fees incurred
because of Curry’s filing of the Amended Complaint. (ECF No. 37.) On September 14,
2017, counsel for both UPS and Local 623 filed Fee Petitions. (ECF Nos. 38 & 39.) UPS
requested attorneys’ fees and costs in the amount of $19,651.60 and Local 623
requested $13,338.00 in fees, for a total of $32,989.60. Curry filed an omnibus response
on September 18, 2017. (ECF No. 40.) Defendants filed their replies on September 20,
2017 and September 26, 2017, (ECF Nos. 43 & 47), and Curry filed a sur-reply on
October 03, 2017, (ECF No. 51).

2

The facts of Curry’s underlying labor dispute are outlined in detail in the Court’s separate August 30
Memorandum denying Curry’s Motion to Remand. (ECF No. 34.)

2

II.
Once a court finds bad faith, “the appropriateness of assessing attorneys’ fees
against counsel under section 1927 is a matter for the district court’s discretion.” Ford
v. Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986) (citing Baker Indus., Inc. v. Cerberus
Ltd., 764 F.2d 204, 210 (3d Cir. 1985)). “The language and purpose of the statute
reflect that these sanctions are aimed at deterring lawyers’ bad faith conduct that
disrupts the administration of justice by multiplying proceedings,” In re Prosser, 777
F.3d 154, 161 (3d Cir. 2015), or conduct that “intentionally and unnecessarily delay[s]
judicial proceedings,” LaSalle Nat’l Bank v. First Conn. Holding Grp., LLC, 287 F.3d
279, 288 (3d Cir. 2002). See also In re Schaefer Salt Recovery, Inc., 542 F.3d 90, 101 (3d
Cir. 2008) (“[T]he principal purpose of sanctions under § 1927 is ‘the deterrence of
intentional and unnecessary delay in the proceedings.’”) (quoting Zuk v. E. Pa.
Psychiatric Inst. of the Med. Coll. of Pa., 103 F.3d 294, 297 (3d Cir. 1996)).
“‘[O]f all the duties of the judge, imposing sanctions on lawyers is perhaps the
most unpleasant.’ Yet, none is more important.” Loftus v. Se. Pa. Transp. Auth., 8 F.
Supp. 2d 458, 459 (E.D. Pa. 1998) (quoting William W. Schwarzer, Sanctions Under the
New Federal Rule 11—A Closer Look, 104 F.R.D. 181, 205 (1985)). The imposition of
sanctions for willful abuses or manipulations of the legal system is essential to
maintaining the public’s trust in the system and protecting innocent parties from
unjustified legal expenses. See id. However, the statute should be “‘construed narrowly
and with great caution so as not to stifle the enthusiasm or chill the creativity that is
the very lifeblood of the law.’” LaSalle, 287 F.3d at 289 (quoting Mone v. Commn'r of
Internal Revenue, 774 F.2d 570, 574 (2d Cir. 1985)). Courts should exercise sanctioning

3

power “‘only in instances of a serious and studied disregard for the orderly process of
justice.’” Id. at 288 (quoting Ford, 790 F.2d at 347).
This is one such instance. Weisberg’s conduct went far beyond zealous advocacy.
Indeed, it went further than mere rank incompetence. His repeated filings and tactics
were designed to manipulate the legal system, impose unnecessary and unjustified
expenses on the Defendants, and flout the rules governing litigation, not to mention
those governing his conduct as an attorney. The Amended Complaint was on its face
insufficient to stand on its own. A very basic principle of federal civil procedure,
learned by all first-year law students (well, perhaps all but one), is that the court must
have subject matter jurisdiction over the action. In fact, the federal rules require a
“short and plain statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P.
8(a)(1). Here, Weisberg filed a complaint which read, “Respectfully, this Honorable
Court does not have jurisdiction over this matter.” (ECF No. 16.) The Amended
Complaint was thus not only deficient, but this deficiency was known to counsel and
memorialized on the second page of the filing.
Further, the record reveals that Weisberg filed the complaint in an attempt to
delay the proceeding and avoid responding to meritorious motions to dismiss. The
Court’s August 30 Memorandum, (ECF No. 36), recounts Weisberg’s repeated
procedural shenanigans in painful detail. The filing of the Amended Complaint was
consistent with his numerous prior attempts to avoid deadlines and litigate this case
outside of the rules.

4

III.
Once the Court decides sanctions are warranted, § 1927 permits the Court to
award reasonable attorneys’ fees and “costs and expenses that result from the
particular misconduct.” In re Prudential Ins. Co. Am. Sales Practice Litig. Agent
Actions, 278 F.3d 175, 188 (3d Cir. 2002) (citing Martin v. Brown, 63 F.3d 1252, 1264
(3d Cir. 1995)); 28 U.S.C. § 1927. “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 Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)). The lodestar rate is “strongly presumed” to result
in a reasonable fee. Washington v. Phila. Cty. Court of Common Pleas, 89 F.3d 1031,
1035 (3d Cir. 1996) (citing City of Burlington v. Dague, 505 U.S. 557 (1992)). See also
Souryavong v. Lackawanna Cty., 872 F.3d 122, 128 (3d Cir. 2017) (explaining that the
lodestar calculation carries a strong presumption of reasonableness and includes most,
if not all, of the factors relevant to determining a reasonable fee). The requesting party
must demonstrate that its requested rates and hours are reasonable by submitting
“‘evidence supporting the hours worked and rates claimed.’” Interfaith Cmty. Org. v.
Honeywell Int'l, Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005) (quoting Rode v. Dellarciprete,
892 F.2d 1177, 1183 (3d Cir. 1990)).
A.
Generally, the applicable hourly rate is determined by reference to the prevailing
market rates in the community. Washington, 89 F.3d at 1035 (citing Blum v. Stenson,
465 U.S. 886, 895–96 n.11 (1984)). “The fee schedule established by Community Legal

5

Services, Inc. (“CLS”) ‘has been approvingly cited by the Third Circuit as being well
developed and has been found by [the Eastern District of Pennsylvania] to be a fair
reflection of the prevailing market rates in Philadelphia.’” Maldonado v. Houstoun, 256
F.3d 181, 187 (3d Cir. 2001) (alteration in original). “Once the [requesting party] has
made the prima facie showing with respect to the appropriate hourly rate, that rate
may be contested, ‘but only with appropriate record evidence.’” Evans v. Port Auth. of
N.Y. & N.J., 273 F.3d 346, 361 (3d Cir. 2001) (quoting Smith v. Phila. Hous. Auth., 107
F.3d 223, 225 (3d Cir. 1997)).
1.
UPS requests attorneys’ fees in the amount of $19,648.00,3 calculated by
multiplying the number of hours counsel worked by an hourly rate of $320.
The $320 rate requested by UPS is reasonable. Gary M. Tocci, a partner at Reed
Smith and a member of the firm’s Labor & Employment Group, submitted an affidavit
in support of UPS’s fee petition. (ECF No. 38, Ex. A.) The affidavit states that three
lawyers worked on this case for UPS: Tocci; Molly Q. Campbell, a senior associate; and
Kristen M. Ashe, a junior associate. Tocci graduated from Temple University School of
Law in 1987. (ECF No. 38, Ex. A.) CLS of Philadelphia lists a rate of $620–$650 per
hour for attorneys with over twenty-five years of experience. Campbell is a senior
associate in Reed Smith’s Complex Litigation Group. She graduated from the
University of Pittsburgh School of Law in 2011. (ECF No. 38, Ex. A.) CLS of
Philadelphia lists a rate of $270–$340 per hour for attorneys with between six to ten
years of experience. Ashe is a junior associate, also in the firm’s Complex Litigation
Group. She graduated from Villanova University School of Law in 2016. (ECF No. 38,
3

UPS also seeks $3.60 in costs, which the Court, due to its de minimus amount, need not address.

6

Ex. A.) CLS of Philadelphia lists a rate of $180–$200 per hour for attorneys with fewer
than two years of experience post-law school. The average hourly rate for the lawyers
who worked on the case is thus approximately $360–$400.4 Reed Smith and UPS
agreed to a blended hourly rate of $320 for all work performed in this case, regardless
of the lawyer’s seniority. The negotiated rate of $320 falls below the attorneys’
combined average hourly rate.
Further, use of the $320 rate is reasonable in light of the hours actually billed by
each lawyer. The table included as Exhibit B to UPS’s petition provides the total
number of hours billed by Reed Smith. Breaking the table down by lawyer and
applying the low end of the CLS rate ranges to each to determine the lawyers’ lodestars
demonstrates that UPS would have paid more if each lawyer had an individual rate
that directly reflected his or her experience:

4

The average range was calculated by adding the three rates at the low end of the range and the three rates at
the high end of the range, and dividing each sum by three.

7

Tocci

Campbell

Ashe

0.5
0.7
0.6
1.2
0.4
0.8
0.7
0.2
0.5
0.3
0.5
1.0
0.3
0.8
2.5
0.5
0.8
0.8
1.0
1.2
0.8
0.8
0.8
1.5
Total Hours Billed

0.6
1.2
0.5
1.2
0.4
0.7
1.2
0.1
1.3
0.8
0.4
0.9
2.5
0.9
0.3
0.2
1.8
1.5
0.3
0.6
0.2

0.7
2.2
1.6
0.3
0.9
1.3
4.5
0.6
0.8
1.5
1.6
4.9
2.1
1.6

19.2

17.6

24.6

Campbell
17.6
$ 270.00
$ 4,752.00

Ashe

Tocci
Hours Billed
Low-end CLS Rate
Lodestar per Lawyer

19.2
$ 620.00
$ 11,904.00

Total Lodestar

24.6
$ 180.00
$ 4,428.00
$ 21,084.00

8

2.
Local 623 requests attorneys’ fees in the amount of $13,338.00. This figure was
calculated by multiplying the number of hours billed by an hourly rate of $380. Lisa C.
Leshinski of Freedman & Lorry PC represents Local 623 in this case and submitted an
affidavit in support of its petition. She graduated from Rutgers University School of
Law in 2005 and has been practicing exclusively union-side labor and employment law
for the past twelve years. (ECF No. 39; ECF No. 47, Ex. I.) CLS of Philadelphia lists a
rate of $360–$440 per hour for attorneys with between eleven and fifteen years of
experience.
Leshinski’s firm and Local 623 agreed to a below-market, blended rate of $300
per hour for all work performed, regardless of seniority. (ECF No. 39; ECF No. 47, Ex.
I.) The union is thus requesting “enhanced fees” at a rate of $380, consistent with
CLS’s rates for lawyers with Leshinski’s experience. However, the primary purpose of
§ 1927 is deterrence, not compensation.5 See Doering v. Union Cty. Bd. of Chosen
Freeholders, 857 F.2d 191, 193–94 (3d Cir. 1988). In light of that purpose and the
Court’s duty to impose only those sanctions that are equitable and in the interests of
justice, the Court will apply the $300 rate actually paid by the union, which it finds to
be reasonable.
3.
Weisberg did not submit an affidavit or any other evidence contesting the
reasonableness of Reed Smith’s and Freedman and Lorry’s rates. Inasmuch as both
firms negotiated rates that fall below the rates specified in the CLS survey, (see ECF
5

While courts have awarded attorneys’ fees at reasonable rates higher than blended below-market rates
agreed upon by the parties, they have done so in mandatory fee shifting cases, which further distinct public policies
not at issue in a case of discretionary sanctions under § 1927. See, e.g., Kean v. Stone, 966 F.2d 119 (3d Cir. 1992).

9

No. 38, Ex. A; ECF No. 39; ECF No. 47, Ex. I), it would have been difficult for Weisberg
to show that the fees were unreasonable. Weisberg does argue that the CLS survey is
unreliable. He does not, however, advance any new or compelling arguments
warranting a departure from Maldonado, in which the Third Circuit approved of the
CLS survey and relied on it to establish reasonable rates when the parties offered little
evidence of market rates. 256 F.3d 181.
B.
Courts must conduct “thorough and searching” analyses of the hours claimed in
fee requests. Interfaith, 426 F.3d at 711 (quoting Evans, 273 F.3d at 362). A fee
petition must “be specific enough to allow the district court ‘to determine if the hours
claimed are unreasonable for the work performed.’” Washington, 89 F.3d at 1037
(quoting Keenan v. City of Philadelphia, 983 F.2d 459, 473 (3d Cir. 1993) (citation
omitted)). To challenge a fee request, opponents must state their grounds “with
sufficient specificity.” Interfaith, 426 F.3d at 711. The court then considers whether
the time charged is reasonable, excluding “‘hours that are excessive, redundant, or
otherwise unnecessary.’” Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 195 F. App’x
93, 96 (3d Cir. 2006) (quoting Hensley, 461 U.S. at 434). In fact, the Court must “‘go
line, by line, by line’ through the billing records supporting the fee request” to
determine the reasonableness of the requested fees. Evans, 273 F.3d at 362.
Both UPS and Local 623 provided exhibits in support of their fee requests with
line-by-line descriptions of the hours worked and tasks performed. Both Defendants,
with few exceptions, limited their requests to work resulting from the Amended
Complaint as required by § 1927 and the Court’s August 30 Order. Further, UPS did

10

not request all fees incurred as a result of the Amended Complaint, but only those fees
counsel deemed appropriate to request under the circumstances. (ECF No. 38, Ex. A.)
Weisberg did not object to particular line items “with sufficient specificity,”
Interfaith, 426 F.3d at 711, by arguing, for example, that the time billed on a certain
task was excessive or that the claimed work was unrelated to the Amended Complaint.
He does object to the fact that UPS had three attorneys working on the case, that they
seek fees associated with responding to Curry’s Motion to Remand, and that their
billing entries include time spent communicating with its client and opposing counsel,
as well as “editing, strategizing, revisions, and preparations.” (ECF No. 40.) With
respect to Local 623, Weisberg objects that its request includes time spent responding
to the Motion to Remand and on its Rule 11 Motion, which the Court denied, and
includes prohibited block-billing and communications with its client and opposing
counsel. Further, Weisberg generally objects that the hours requested by the
Defendants are not “causally attendant to the sanctioned conduct and/or are
duplicative, excessive, and not reasonable and necessary, especially in light of
Defendants’ work already preformed.” (ECF No. 40.)
The Court has conducted a thorough line-by-line review of both UPS’s and Local
623’s submissions and makes the following modifications based on its belief that the
hours were either excessive, redundant, or otherwise unrelated to the bad faith
conduct, the filing of the Amended Complaint.

11

1.
The Court will limit the hours requested by UPS as follows:


Tocci’s time reviewing and analyzing Curry's Amended Complaint and
issuing research instructions is adjusted downward from .5 hours to 0
hours. See infra Appendix A (“App. A”) at 18.



Campbell’s time strategizing UPS’s response to the Amended Complaint
is adjusted downward from .6 hours to .3 hours. See infra App. A at 18.



Tocci’s time strategizing UPS’s response to the Amended Complaint in
light of Curry’s outstanding motion to remand is adjusted downward from
1.2 hours to 0 hours. See infra App. A at 18.



Campbell’s time reviewing and analyzing Local 623's opposition to Curry’s
Motion to Remand for possible additions to UPS's Motion to Dismiss the
Amended Complaint is adjusted downward from 1.2 hours to .6 hours.
See infra App. A at 18.



Ashe’s time researching and analyzing Third Circuit case law interpreting
the award of sanctions pursuant to 28 U.S.C. § 1927 and Local Rule 83.6.1
is adjusted downward from .3 hours to 0 hours. See infra App. A at 19.



Campbell’s time communicating with counsel for co-defendant is adjusted
downward from .7 hours to 0 hours. See infra App. A at 19.



Ashe’s time editing and revising UPS's Motion to Dismiss the Amended
Complaint is adjusted downward from 4.5 hours to 2.5 hours. See infra
App. A at 19.

12



Campbell’s time editing and revising UPS's Motion to Dismiss the
Amended Complaint is adjusted downward from 1.2 hours to .6 hours.
See infra App. A at 19.



Campbell’s time reviewing Local 623's Motion to Dismiss the Amended
Complaint is adjusted downward from 1.3 hours to .6 hours. See infra
App. A at 19.



Campbell’s time reviewing Local 623's Motion for Sanctions against
Plaintiff's Counsel is adjusted downward from .8 hours to .3 hours. See
infra App. A at 19.



Ashe’s time editing and revising UPS's Reply Brief is adjusted downward
from 4.9 hours to 0 hours. See infra App. A at 20.



Campbell’s time drafting and revising UPS's Reply Brief in support of the
motion to dismiss is adjusted downward from 2.5 hours to .5 hours. See
infra App. A at 20.



Ashe’s time key citing and proofreading UPS's Reply Brief to Plaintiff's
Opposition to Motion to Dismiss Amended Complaint is adjusted
downward from 2.1 hours to 0 hours. See infra App. A at 20.



Campbell’s time communicating with the client is adjusted downward
from .2 hours to 0 hours. See infra App. A at 20.



Tocci’s time reviewing two binders of materials to prepare for oral
argument on August 16, including all pleadings, outlines, case authority
on motion to remand, motion to dismiss, and motion for sanctions is
adjusted downward from 2.5 hours to 1.3 hours. See infra App. A at 21.

13



Campbell’s time strategizing oral argument positions and reviewing
Plaintiff's case law and arguments is adjusted downward from .3 hours to
0 hours. See infra App. A at 21.



Tocci’s time preparing an outline for oral argument, specifically on the
motion to remand issues is adjusted downward from .8 hours to 0 hours.
See infra App. A at 21.



Tocci’s time preparing for oral argument, specifically on the Plaintiff's
Motion to Remand, including reviewing case law, updating case law cited
by plaintiff, and outlining points to raise at argument is adjusted
downward from 1.0 hours to 0 hours. See infra App. A at 21.



Campbell’s time communicating with counsel for co-defendant is adjusted
downward from .6 hours to 0 hours. See infra App. A at 21.



Tocci’s time preparing for oral argument on motion for sanctions under 28
U.S.C. § 1927 is adjusted downward from .8 hours to 0 hours. See infra
App. A at 21.



Tocci’s time preparing for oral argument on the motion to remand is
adjusted downward from .8 hours to 0 hours. See infra App. A at XX.

Multiplying UPS’s $320 per hour rate by the hours reasonably expended after
the above downward adjustments yields a total of $12,576.00 in attorneys’ fees.

14

2.
The Court will limit the hours requested by Local 623 as follows:


The time spent reviewing the amended complaint and drafting a response
to the motion to remand and stay is adjusted downward from 2.1 hours to
.5 hours. See infra Appendix B (“App. B”) at 22.



The time spent drafting an opposition to the motion to remand and efiling the opposition is adjusted downward from 3.3 hours to 0 hours. See
infra App. B at 22.



The time spent drafting the motion for sanctions and e-filing the motion is
adjusted downward from 1.9 hours to .7 hours. See infra App. B at 22.



The time spent drafting a reply in support of the motion to dismiss and efiling the reply is adjusted downward from 4.0 hours to 0 hours. See infra
App. B at 22.



The time spent discussing the case with the client as well as with UPS’s
counsel is adjusted downward from 1.4 hours to 0 hours. See infra App. B
at 22.

Weisberg’s objection to counsel’s “block billing” is without merit. Fee requests
need only contain adequate specificity in order for the Court to conduct a thorough
analysis of the reasonableness of the request. See McGuffey v. Brink’s, Inc., 598 F.
Supp. 2d 659, 671 (E.D. Pa. 2008) (“For example, a fee petition with the phrase
‘miscellaneous research, telephone conversations, and conferences concerning facts,
evidence, and witnesses: 1.3 hours’ contains adequate specificity.”) (quoting Rode, 892
F.2d at 1191 n.13); Pasternack v. Klein, No. 14-2275 (E.D. Pa. Oct. 17, 2017) (“Block

15

billing—the practice of recording multiple tasks in one, non-itemized entry—is
permissible so long as ‘there is a reasonable correlation between the various activities
listed in the block and the time spent completing those tasks.’”) (quoting Hatchett v.
Cty. of Phila., Civ. A. No. 09-1708, 2010 WL 4054285, at *4 (E.D. Pa. Oct. 15, 2010)).
Local 623’s petition meets that standard.
Multiplying the $300 rate by the hours reasonably expended after the above
downward adjustments yields a total of $7,080.00 in attorneys’ fees.
3.
Finally, the Court turns to the assessment of the circumstances surrounding the
case and whether mitigating factors warrant a further reduction in the total sanction
amount. In order for the Court to properly exercise its discretion to impose sanctions
under § 1927, it “must balance the equities between the parties and may award
attorney’s fees whenever overriding considerations indicate the need for such a
recovery.” Ford, 790 F.2d at 347. Sanctions that are “greater than necessary to achieve
the public policy objectives underlying the statute” should not be imposed. Loftus, 8 F.
Supp. 2d at 464. “Thus, a district court may, in its discretion, refuse to award
attorney’s fees even where it finds the existence of bad faith, if, in balancing the
equities, it nevertheless determines that an award in a particular case would not serve
the interests of justice.” Ford, 790 F.2d at 347 (citing Perichak v. Int’l Union of Elec.
Radio & Mach. Workers, Local 601, 715 F.2d 78, 80 (3d Cir. 1983)). An attorney who
has been found to act in bad faith has the burden of showing “that mitigating factors
and circumstances warrant the exercise of discretion against the award of attorneys’
fees.” Id. (citing Perichak, 715 F.2d at 81). One relevant mitigating factor is the

16

sanctioned party’s ability to pay. Jones v. Pittsburg Nat’l Corp., 899 F.2d 1350, 1359
(3d Cir. 1990) (citing Doering, 857 F.2d at 195).
Consideration of the mitigating factors and circumstances surrounding this case
does not warrant further reductions of the lodestar calculations. Weisberg did not offer
any evidence of his inability to pay. He merely stared that “his office is in Morton,
Pennsylvania—a very small law firm with modest revenue” and “[t]he amount of
sanctions sought will economically bury counsel.” (ECF No. 40.) While the amount of
fees deemed reasonable by the Court may impose a hardship on Weisberg, the sanction
is consistent with the purpose of § 1927. The Court is imposing this sanction to impress
upon counsel the importance of his oath as an officer of the court and the fundamental
purpose of the adversary system, which is to promote the discovery of truth.
The Court awards $19,656.00 in attorneys’ fees, $12,576.00 to be paid to UPS
and $7,080.00 to be paid to Local 623.

An appropriate order follows.

BY THE COURT:

/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

17

Appendix A: UPS’s Fees
Initials

Date

Narrative

Hours
Claimed

Hours
Revised

Rate

Subtotal

GMT

7/3/2017

Review and analyze Plaintiff's Amended Complaint and
issue research instructions.

0.5

0

$320

$0

GMT

7/5/2017

Review and analyze newly filed 73-paragraph Amended
Complaint.

0.7

0.7

$320

$224

MQC

7/5/2017

Strategize UPS's response to Plaintiff's Amended
Complaint.

0.6

0.3

$320

$96

MQC

7/5/2017

Review and analyze Plaintiff's Amended Complaint and
any issues concerning case strategy and motion to
dismiss arguments.

1.2

1.2

$320

$384

KMA

7/5/2017

Research and analyze Third Circuit case law on viability
of moving for sanctions against Plaintiff's counsel and
summarize same.

0.7

0.7

$320

$224

GMT

7/5/2017

Teleconference with M. Campbell and K. Ashe to discuss
strategy for addressing Plaintiff's Amended Complaint
and issue research instructions to K. Ashe.

0.6

0.6

$320

$192

GMT

7/5/2017

Strategize UPS's response to Amended Complaint in
light of Plaintiff's outstanding Motion to Remand.

1.2

0

$320

$0

MQC
MQC

7/6/2017
7/6/2017

Communications with counsel for co-defendant.
Review and analyze Local 623's opposition to Plaintiff's
Motion to Remand for possible additions to UPS's Motion
to Dismiss the Amended Complaint.

0.5
1.2

0.5
0.6

$320
$320

$160
$192

MQC

7/6/2017

Review and analyze Plaintiff's Second Amended
Complaint.

0.4

0.4

$320

$128

KMA

7/6/2017

Research and analyze Third Circuit case law on viability
of sanctions against Plaintiff's counsel and summarize
same.

2.2

2.2

$320

$704

GMT

7/6/2017

Analyze factual allegations in Amended Complaint,
specifically regarding Atlantic area panel hearing.

0.4

0.4

$320

$128

18

GMT

7/6/2017

Analyze factual and legal allegations in Amended
Complaint and compare to original Complaint.

0.8

0.8

$320

$256

KMA

7/7/2017

Research and analyze Third Circuit case law
interpreting the award of sanctions pursuant to 28
U.S.C. 1927 and Local Rule 83.6.1

1.6

1.6

$320

$512

KMA

7/8/2017

Research and analyze Third Circuit case law
interpreting the award of sanctions pursuant to 28
U.S.C. 1927 and Local Rule 83.6.1

0.3

0

$320

$0

KMA

7/9/2017

Prepare and draft UPS's Motion to Dismiss Amended
Complaint.

0.9

0.9

$320

$288

KMA

7/10/2017

Prepare and draft UPS's Motion to Dismiss Amended
Complaint.

1.3

1.3

$320

$416

MQC
KMA

7/10/2017
7/12/2017

Communications with counsel for co-defendant.
Edit and revise UPS's Motion to Dismiss Amended
Complaint.

0.7
4.5

0
2.5

$320
$320

$0
$800

KMA

7/13/2017

Edit and revise UPS's Motion to Dismiss Amended
Complaint.

0.6

0.6

$320

$192

MQC

7/13/2017

Edit and revise UPS's Motion to Dismiss Amended
Complaint.

1.2

.6

$320

$192

KMA

7/17/2017

Edit and revise UPS's Motion to Dismiss Amended
Complaint.

0.8

0.8

$320

$256

MQC
MQC

7/18/2017
7/18/2017

Communications with client.
Review Local 623's Motion to Dismiss the Amended
Complaint.

0.1
1.3

0.1
.6

$320
$320

$32
$192

MQC

7/19/2017

Review Local 623's Motion for Sanctions Against
Plaintiff's Counsel.

0.8

.3

$320

$96

GMT

7/20/2017

Address issues regarding Local 623's Motion to Dismiss
filings.

0.7

0.7

$320

$224

GMT

7/26/2017

Strategize UPS's Reply Brief in support of Motion to
Dismiss Amended Complaint and issue instructions.

0.2

0.2

$320

$64

MQC
MQC

7/26/2017
7/27/2017

Communications with counsel for co-defendant.
Review and analyze plaintiff's opposition to motion to
dismiss and motion for sanctions.

0.4
0.9

0.4
0.9

$320
$320

$128
$288

19

GMT

7/27/2017

Address issues for reply to Plaintiff's opposition to
motion to dismiss.

0.5

0.5

$320

$160

GMT

7/31/2017

Strategize UPS's Reply Brief in support of Motion to
Dismiss Amended Complaint and outline issues for
discussion with M. Campbell and K. Ashe.

0.3

0.3

$320

$96

KMA

7/31/2017

Prepare and draft UPS's reply to plaintiff's opposition to
motion to dismiss.

1.5

1.5

$320

$480

KMA
KMA
MQC

8/1/2017
8/2/2017
8/2/2017

Edit and revise UPS's Reply Brief.
Edit and revise UPS's Reply Brief.
Draft and revise UPS's Reply Brief in support of the
motion to dismiss.

1.6
4.9
2.5

1.6
0
.5

$320
$320
$320

$512
$0
$160

MQC

8/3/2017

Review and analyze Local 623's reply to plaintiff's
opposition to motion to dismiss.

0.9

0.9

$320

$288

KMA

8/3/2017

Key cite and proofread UPS's Reply Brief to Plaintiff's
Opposition to Motion to Dismiss Amended Complaint.

2.1

0

$320

$0

KMA
GMT

8/2/2017
8/4/2017

Edit and revise UPS's Reply Brief.
Review Local 623's filings regarding Union's reply on
motion to dismiss and then on sanctions and address
strategy regarding Plaintiff's counsel's new letter to
Court.

1.6
0.5

1.6
0.5

$320
$320

$512
$160

MQC

8/7/2017

Review and analyze Judge Pappert's order regarding
sanctions motion and oral argument on the pending
motions and strategize re: same.

0.3

0.3

$320

$96

MQC
MQC
GMT

8/7/2017
8/7/2017
8/9/2017

Communications with client.
Prepare materials in preparation for oral argument.
Review preparation notes for oral argument on Plaintiff's
Motion to Remand; motions to dismiss; and motion for
sanctions against Plaintiff's counsel.

0.2
1.8
1.0

0
1.8
1.0

$320
$320
$320

$0
$576
$320

MQC

8/9/2017

Draft and revise outline in preparation for oral
argument.

1.5

1.5

$320

$480

GMT
GMT

8/10/2017
8/10/2017

Communications with client.
Outline pleadings from Curry I and Curry II to prepare
for oral argument on motion to dismiss and other issues
on August 16.

0.3
0.8

0.3
0.8

$320
$320

$96
$256

20

GMT

8/13/2017

Review two binders of materials to prepare for oral
argument on August 16, including all pleadings,
outlines, case authority on motion to remand, motion to
dismiss, and motion for sanctions.

2.5

1.3

$320

$416

GMT

8/14/2017

Review case authority regarding preemption in
preparation for oral argument on motion to dismiss.

0.5

0.5

$320

$160

GMT

8/14/2017

Prepare outline for oral argument, specifically on 28
U.S.C. 1927 sanctions issues.

0.8

0.8

$320

$256

MQC

8/14/2017

Strategize oral argument position and review Plaintiff's
case law and arguments.

0.3

0

$320

$0

GMT

8/14/2017

Prepare outline for oral argument, specifically on motion
to remand issues.

0.8

0

$320

$0

GMT

8/15/2017

1.0

0

$320

$0

GMT

8/15/2017

Prepare for oral argument relative to Plaintiff's Motion
to Remand, including review of case law, updating case
law cited by plaintiff, and outline points to raise at
argument.
Prepare for oral argument, specifically on motion to
dismiss, including review of case authority, updating
case authority, and all issues including statute of
limitations defense.

1.2

1.2

$320

$384

MQC
GMT

8/15/2017
8/16/2017

Communications with counsel for co-defendant.
Prepare for oral argument on motion for sanctions under
28 U.S.C. 1927.

0.6
0.8

0
0

$320
$320

$0
$0

GMT
MQC

8/16/2017
8/16/2017

Prepare for oral argument on motion to dismiss.
Prepare for oral argument by strategizing responses to
possible questions.

0.8
0.2

0.8
0.2

$320
$320

$256
$64

GMT
GMT

8/16/2017
8/16/2017

Prepare for oral argument on motion to remand.
Attend oral argument.

0.8
1.5

0
1.5

$320
$320

$0
$480

UPS’s Total Reasonable Attorneys’ Fees

$12,576.00

21

Appendix B: Local 623’s Fees

Initials

Date

Narrative

Hours
Claimed

Hours
Revised

Rate

Subtotal

LCL

7/5/2017

Reviewed amended complaint. Drafted response to
motion to remand and stay.

2.1

0.5

300

$

150.00

LCL
LCL

7/6/2017
7/10/2017

Drafted opposition to motion to remand and e-filed
Reviewed emails from Atty Weisberg seeking
extension of time, and reviewed cases he cited
concerning wrongful discharge. Drafted letter.

3.3
1.8

0
1.8

300
300

$
$

540.00

LCL

7/17/2017

Drafted motion to Dismiss and started drafting
motion for sanctions

4.7

4.7

300

$ 1,410.00

LCL
LCL
LCL

7/18/2017
7/19/2017
7/25/2017

Drafted motion for sanctions
Drafted motion for sanctions and e-filed
Reviewed Plaintiff’s filings seeking a stay and
moving to bifurcate

1.8
1.9
0.3

1.8
0.7
0.3

300
300
300

$
$
$

540.00
210.00
90.00

LCL
LCL
LCL
LCL

7/26/2017
7/28/2017
7/31/2017
8/3/2017

Researched cases cited by Curry
Reviewed additional filings by Plaintiff
Drafted reply in support of motion to dismiss
Drafted reply in support of motion to dismiss and
e-filed

0.7
0.8
1.8
4.0

0.7
0.8
1.8
0

300
300
300
300

$
$
$
$

210.00
240.00
540.00
-

LCL
LCL

8/9/2017
8/16/2017

0.2
5.0

0.2
5.0

300
300

$
60.00
$ 1,500.00

LCL

8/18/2017

Reviewed Judge’s Order and discussed with client
Preparation for oral argument and court
attendance. Reviewed case law cited by Atty.
Weisberg at oral argument (Herring v. Prince
Macaroni)
Talked to client about case. Discussed with UPS
attorneys.

1.4

0

300

$

-

LCL

8/31/2017

Reviewed Judge’s decisions and emailed and called
Union.

1.3

1.3

300

$

390.00

LCL

9/12/2017

Drafted fee petition

4.0

4.0

300

$ 1,200.00

Local 623’s Total Reasonable Attorneys’ Fees

$ 7,080.00

22