Katona v. Asure et al

Filing 216

MEMORANDUM (Order to follow as separate docket entry) re 209 First MOTION for Attorney Fees filed by Matthew Katona. Signed by Magistrate Judge Karoline Mehalchick on 2/14/2019. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MATTHEW KATONA,
Plaintiff

CIVIL ACTION NO. 1:11-CV-1817

v.

((MEHALCHICK, M.J.)

DONNA ASURE, et al
Defendants

MEMORANDUM OPINION
This motion for attorney’s fees arises out of the court’s finding of fact and conclusion
of law regarding Matthew Katona’s (“Katona”) successful excessive force claim, including a
recovery of damages, against James Shea (“Shea”), former Sergeant of Monroe County. On
July 6, 2018, Katona petitioned the Court for costs and attorney’s fees. (Doc. 209). The Court
determined Katona’s motion contained sufficient substance in and of itself so that a brief in
support was not required and ordered defendants to file a brief in opposition on or before July
23, 2010. (Doc. 211 at 1). No brief in opposition having been filed, the Court deems the
motion unopposed and ripe for review.1
I.

BACKGROUND & PROCEDURAL HISTORY
Matthew Katona (“Katona”), brought a complaint pursuant to 42 U.S.C.A. § 1983

alleging excessive force in violation of the Eighth Amendment against a variety of defendants,
including James Shea, then an employee of State Correctional Institute (SCI) – Coal

Even though the motion for attorney’s fees is unopposed, the Court will review the
requested amount for reasonableness. Benjamin v. Department of Public Welfare of Com. of
Pennsylvania, No. 1:09–cv–1182, 2014 WL 4793736, *8 (M.D. Pa. September 25, 2014).
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Township, a Pennsylvania state prison. (Doc. 1). Summary judgment as to liability against
Shea was granted on February 3, 2015. (Doc. 159); (Doc. 162).
The undersigned sua sponte reconsidered Katona’s Motion to Appoint Counsel and
issued an Order appointing counsel. (Doc. 164). Attorney Bret P. Shaffer (Shaffer) and
Attorney Lori K. Serratelli (Serratelli) appeared on behalf of Katona. (Doc. 166); (Doc. 168).
The remainder of the claims having been resolved, the Court conducted a non-jury trial on
July 9, 2018 on the sole remaining issue of damages against Shea. (Doc. 210; Doc. 213). Shea
did not appear at the trial and had not filed any documents in connection therewith. (Doc.
210; Doc. 213). The Court, having heard the testimony and reviewed all documentary
evidence, entered the Findings of Fact and Conclusions of Law (Doc. 214) and an Order and
Judgment (Doc. 215) pursuant to Fed.R.Civ.P.52.
II.

ATTORNEY’S FEES ON A § 1983 ACTION
As the prevailing party in a § 1983 suit, Plaintiff’s recovery of attorneys’ fees is

governed by 42 U.S.C. § 1988, which provides that: “[i]n any action or proceeding to enforce
a provision of section … 1983 … , 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.” 42 U.S.C. §
1988. “A party may be considered a prevailing party entitled to attorneys' fees if ‘they succeed
on any significant issue in litigation which achieves some of the benefit the parties sought in
bringing suit.’” Moffit v. Tunkhannock Area School District, No. 3:13-1519 2017 WL 319154, *3
(M.D. Pa. January 20, 2017) (quoting Farrar v. Hobby, 506 U.S. 103, 109 (1992)).
Additionally, the Supreme Court has held that paralegal services are also compensable under
§ 1988. Missouri v. Jenkins, 491 U.S. 274, 285 (1989). There is no rule that the fee awards may

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be no larger than the damages award; the degree of plaintiff’s success will determine the
appropriate award. Abrams v. Lightoiler Inc., 50 F.3d 1204, 1222 (3d Cir. 1995).
The starting point for a court’s determination of reasonable attorneys’ fees is the
lodestar calculation. Hensley v. Eckerhart, 461 U.S. at 433. The lodestar is the product of the
number of hours reasonably expended by litigation, and the reasonable hourly rate. There is
a strong presumption that the lodestar is a reasonable fee. See City of Burlington v. Dague, 505
U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). Nevertheless, a court may adjust this
figure upward or downward when the lodestar is unreasonable.2 Hensley v. Eckerhart, 461 U.S.
424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
Courts apply a burden-shifting analysis to calculate the lodestar. The petitioner must
produce evidence that the hours spent and rate charged are reasonable. Rode v. Dellarciprete,
892 F.2d 1177, 1183 (3d Cir.1990). Once the petitioner has done so, the burden shifts to the
respondent to challenge the attorney's hours, hourly rate, and the reasonableness of the
product of those numbers. Id. In considering the opposing party’s objections, the district court
enjoys substantial discretion to make downward adjustments to the lodestar; however a court
should not “decrease a fee award based on factors not raised at all by the adverse party.” Bell
v. United Princeton Props., Inc., 884 F.2d 713, 720 (3d Cir. 1989). The Supreme Court has
restricted the court’s discretion to adjust the lodestar upward such that the lodestar may be

However, “[i]n the absence of any factual claims by defendants, the only reduction
the court [can] properly order concern[s] hours about which the district judge ha[s] personal
knowledge, namely, hours claimed for work at pretrial conferences and at trial.” Cunningham
v. City of McKeesport, 807 F.2d 49, 52 (3d Cir. 1986).
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increased only in very limited circumstances in which it does not adequately take into account
a factor that may properly be considered in determining a reasonable fee. Purdue v. Kenny A.
ex rel. Winn, 559 U.S. 542, 553-54 (2010).
III.

DISCUSSION
A. HOURLY RATES
To determine the reasonable hourly fee, the Court must apply a burden-shifting

procedure. See Evans v. Port Auth. of N.Y. and N.J., 273 F.3d 346, 361 (3d Cir. 2001). First, the
fee applicant must establish a prima facie case by “producing sufficient evidence of what
constitutes a reasonable market rate.” 273 F.3d at 361. An attorney’s usual billing rate for the
particular services rendered is typically the starting point of this calculation; however, this is
not a dispositive factor. Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001).
Generally, attorneys’ fees should be based on the prevailing rates in the judicial district
that is the forum of litigation. See Buck v. Stankovic, No. 3:07-CV-0717, 2008 WL 4072656 *3
(M.D.Pa. Aug. 27, 2008) (citing Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 705 (3d
Cir. 2005), as amended (Nov. 10, 2005)). Two exceptions exist to the “forum rate” rule: (1)
“where a case requires the ‘special expertise of counsel from a distant district’; or (2) “[w]here
local counsel are unwilling to handle a case.” Id. Where counsel is excepted from the forum rate
by either of the circumstances identified above, “the ‘relevant community’ for determining a
prevailing market rate is the forum in which the attorneys regularly practice.” Id. “An attorney's
usual billing rate is a good starting point for assessing reasonableness, though it is not dispositive.”
Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 374 (3d Cir.2004) (citing Maldonado, 256 F.3d at
184 – 85. “To inform and assist the court in its exercise of discretion, the burden is one the fee
applicant to produce satisfactory evidence – in addition to the attorney's own affidavits – that the
requested rates are in line with those prevailing in the community for similar services by lawyers

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of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.
11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).

For public service attorneys who do not have paying clients, the Third Circuit applies
the “community market rate rule” to assess the reasonable hourly fee. Student Pub. Int. Research
Grp. v. AT&T Bell Labs, 842 F.2d 1436, 1450 (3d Cir. 1988). The community market rate rule
requires a court to “to assess the experience, and skill of the attorneys and compare their rates
to those of comparable lawyers in the private business sphere.” 842 F.2d at 1447. A reasonable
market rate may be established “with reference to ‘the community billing rate charged by
attorneys of equivalent skill and experience performing work of similar complexity.’” Evans
v. Port Auth. of New York & New Jersey, 273 F.3d 346, 361 (3d Cir. 2001) (quoting Student Pub.
Interest Research Grp., 842 F.2d 1436, 1450); see also Blum v. Stenson, 465 U.S. 886, 895 n. 11
(1984) (“the burden is on the fee applicant to produce satisfactory evidence – in addition to
the attorney’s own affidavits – that the requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.”).
This evidence is often presented in the form of affidavits from other local attorneys.
273 F.3d at 360-161. Once Plaintiff meets the initial burden, Defendant may contest the
reasonableness of the rate with “appropriate record evidence.” Evans, 273 F.3d at 361.
[H]ourly rates that were set for a specific attorney in previous court decisions do not generally
constitute record evidence, Smith v. Phila. Hous. Auth., 107 F.3d 223, 226 (3d Cir. 2001), unless
those rates were set for the same attorney and for the same type of work of a contemporaneous
period. Black v. Grievance Comm. v. Phila. Elec. Co., 802 F.2d 648, 652 (3d Cir. 1986), vacated on
other grounds, 483 U.S. 1015 (1987).

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Here, Shaffer seeks an hourly rate of $200.00 and Serratelli seeks an hourly rate of $300.00.
(Doc. 209 at 8 ¶ 15). Because defendants have not submitted any motion or documentation
opposing the requests for attorney’s fees, defendants do not oppose the hourly rates requested by
Shaffer and Serratelli.3 Attorney Serratelli submits a Curriculum Vitae (“CV”) in support of her
request for fees. (Doc. 209-1). Serratelli boasts over thirty years of practical experience in
Pennsylvania, where she focuses on family law and civil rights law. (Doc. 209-1 at 1-3). Serratelli
also served on the bench of the Dauphin County Court of Common Pleas. (Doc. 209-1 at 2).
Further, Attorney Larry A. Weisberg (“Weisberg”), who has tried civil rights cases before the
Middle District of Pennsylvania, averred that $300.00 per hour is “both conservative and
reasonable” as an hourly rate for Serratelli. (Doc. 209-4 at 4 ¶ 11). Weisberg further states that
Serratelli is a highly respected and skilled attorney in the civil rights arena, a contention which
the court finds plainly supported by Serratelli’s CV. (209-4 at 5 ¶ 12). Therefore, an hourly rate of
$300.00 is reasonable for Serratelli in connection with her work on this matter.4
Attorney Shaffer also submits a Curriculum Vitae (“CV”) in support of his request for fees.
(Doc. 209-2). Shaffer’s practice in Pennsylvania stretches over eight years, and his focus areas
appear to be land use and domestic law. (Doc. 209-2 at 1). Shaffer has handled over ninety courtappointed cases in Carlisle County, Pennsylvania. (Doc. 209-2 at 1). Further, Attorney Weisberg

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District precedent allows the court to adopt the hourly rate amounts suggested by
attorneys when defendants do not oppose them. Evankavitch v. Green Tree Servicing, LLC, No.
3:12cv2564, 2014 WL 4437645, *2 (M.D. Pa. September 9, 2014).
4

Cf. Beattie v. Line Mountain School Dist., No. 4:13–cv–02655, 2014 WL 3400975, *10 (M.D.
Pa. July 10, 2014) (finding “a reasonable fee range in this vicinage [Williamsport for the Middle
District of Pennsylvania] for a partner with the necessary skill and experience to provide
competent legal services in this type [civil rights] of litigation is in the range of $180 to $325
per hour.”

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averred that $200.00 per hour is “both conservative and reasonable” as an hourly rate for Shaffer.
(Doc. 209-4 at 4 ¶ 11).5 The Court finds that $200.00 per hour is an appropriate rate for Shaffer.

B. HOURS BILLED
To meet the initial burden of proving that the requested fees are reasonable, Plaintiff must
submit evidence of the hours worked that is specific enough to allow the court to “determine if
the hours claimed are unreasonable for the work performed.” Washington v. Phila. Cnty. Ct. of
Comm. Pl., 89 F.3d 1031, 1037 (3d Cir. 1996). To satisfy this burden, a petition should include,
“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.” Rode, 892
F.2d at 1191 (quoting Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary
Corp., 487 F.2d 161, 167 (3d Cir. 1973)). Further, “a chronological listing of time spent per activity
by attorneys is essentially a summary of the time spent per task.” 487 F.2d at 167. Once a fee
applicant has met this burden, “[t]he party opposing the fee award then has the burden to
challenge the reasonableness of the requested fee … with sufficient specificity to give the fee
applicant notice of the objection.” E.E.O.C. v. Fed. Express Corp., 537 F.Supp.2d 700, 721 (M.D.Pa.
2005). Where the opposing party makes specific objections, the burden shifts back to the fee
applicant to justify the its request. Interfaith Comty. Org., 426 F.3d at 711. The Court enjoys
considerable discretion to adjust the fee applicant’s claimed hours in light of the opposing party’s
objections. Fed. Express Corp., 537 F.Supp.2d at 721.

Attorney Solomon Krevsky, who has litigation experience with civil rights cases
throughout the Commonwealth of Pennsylvania, also expresses confidence in the litigation
abilities of Shaffer and believes an hourly rate of $200.00 is “reasonable and consistent with
the current market rate for attorneys who represent plaintiffs in civil rights litigation.” (Doc.
209-5 at 5 ¶ 11); (Doc. 209-5 at 6 ¶ 13).
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Here, Attorney Shaffer requests a fee award in the amount of $29,890.00, which comes
out to 149.45 hours given his hourly rate of $200.00. (Doc. 209-1 at 10 ¶ 25). Attorney Serratelli
requests a fee award of $5,370.00, which comes out to 17.9 hours given her hourly rate of $300.00.
(Doc. 209-1 at 10 ¶ 24). The attorneys submit an hours ledger detailing their work performed on
this case. (Doc. 209-3). The ledger includes highly specific work performed by both attorneys, and
totals the amount requested by them. (Doc. 209-3 at 9). This Court granted Katona’s motion to
appoint counsel on August 3, 2015. (Doc. 164). The ledger entries span from December 2015 to
July 2018, an appropriate period given the court’s appointment of counsel and the fact that the
bench trial occurred on July 9, 2018. (Doc. 208). Therefore, the fee applicants have met their
burden of providing “fairly definite information as to the hours devoted to various general
activities” regarding this matter. See Rode, 892 F.2d at 191. As stated earlier, defendants have
submitted nothing in opposition to this request for attorney fees. Therefore, the court finds that
defendants have not satisfied their burden to challenge the fee request. As shown above, the
number of hours billed by Shaffer and Serratelli is reasonable.6

C. EXPENSES
Finally, as the prevailing party, Plaintiff is entitled to costs under Federal Rule of Civil
Procedure 54(d)(1). Fees owed to a legal researcher and a legal assistant are provided, and the
party seeking those fees need not provide the name or qualifications of the researcher or assistant.
Souryavong v. Lackawanna County, 159 F. Supp. 3d 514, 530 (M.D. Pa. 2016); Jama Corp. v. Gupta,

Time spent “getting up to speed” with the case itself, as opposed to general research
on the area of substantive law, is compensable time for attorney fee awards pursuant to a civil
rights case. Planned Parenthood of Cent. New Jersey v. Attorney General of State of New Jersey, 297
F.3d 253, 271-72 (3d Cir. 2002). Thus, time spent reviewing the record is compensable.
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No. 3:99–cv–1624, 2008 WL 108671, at *5 (M.D. Pa. Jan. 4, 2008). The cost of an expert report
is recoverable so long as its related to the prevailing claim. Watcher v. Pottsville Area Emergency
Medical Service, Inc., 559 F. Supp. 2d 516, 537 (M.D. Pa. 2008). Costs of depositions are
recoverable if the use of the depositions is reasonably necessary for the case. Smith v. City of
Lebanon, No. 1:07–CV–1207, 2011 WL 66018, *2 (M.D. Pa. January 10, 2011) (citations
omitted). Shaffer and Serratelli incurred total expenses in the amount of $12,055.75 on this case,
consisting of $11,475.00 for an expert report and $580.75 for depositions. (Doc. 209-1 at 11 ¶ 26).
The expert report is substantiated by an invoice from Theresa Lantz, consultant. (Doc. 209-3 at
10). Shaffer and Serratelli may recover the cost of the report and the depositions.

IV.

CONCLUSION
Katona won a summary judgment motion for liability on his excessive force claim

against Shea and prevailed at his trial for damages on the claim against Shea. (Doc. 159; Doc.
162). Attorneys Shaffer and Serratelli appeared on behalf of Katona after the court granted
summary judgment, but before the trial for damages. (Doc. 166; Doc. 168). Katona’s
attorneys secured a full success on the merits.
Given the foregoing, the Court will grant the motion for attorney fees and expense
(Doc. 209), and award fees in the amount of $29,890.00 to attorney Shaffer; fees in the amount
of $5,370.00 to attorney Serratelli; and expenses in the amount of $12,055.75. An appropriate
Order will follow.

Dated: February 14, 2019

BY THE COURT:

s/ Karoline Mehalchick
KAROLINE MEHALCHICK
United States Magistrate Judge

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