Young et al v. Pleasant Valley School District et al

Filing 671

MEMORANDUM (Order to follow as separate docket entry) re: 635 MOTION for Attorney Fees filed by Megan Young. Signed by Honorable Matthew W. Brann on 9/6/2017. (Attachments: # 1 Appendix A) (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MEAGAN YOUNG,

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Plaintiff,
v.
BRUCE H. SMITH, JR.,
Defendant.

No. 3:07-CV-00854
(Judge Brann)

MEMORANDUM OPINION
SEPTEMBER 6, 2017
I.

BACKGROUND
This civil rights action has come to be known for all of the wrong reasons.

Sad to say, after ten years of protracted and unnecessarily contentious litigation, it
appears that all Plaintiff’s counsel, Cynthia L. Pollick, Esquire, has managed to
accomplish is disrespecting this Court as an institution and embarrassing herself in
the eyes of many of its constituents.
The instant chapter in this litigation stems from a fee petition submitted by
Ms. Pollick for nearly three-quarters of a million dollars, a fee petition that at
times, felt more like an attempted bank robbery than a genuine effort to recover a
reasonable fee bill. Indeed, Ms. Pollick “prevailed” on only one claim against one
defendant in this odyssey of a litigation—and I use the term “prevailed”
exceptionally loosely. In fact, opposing counsel, after having offered settlements as

high as $150,000.00 that Ms. Pollick rejected, made this case go away for a
nuisance value of $25,000.00. That settlement was made as against one defendant
on one claim in a litigation that previously involved teachers, principals, school
administrators, and a barrage of educational and civil rights claims. Because of that
$25,000.00 nuisance settlement, effected pursuant to a Federal Rule of Civil
Procedure 68 offer of judgment, Ms. Pollick now contends that she is entitled to
$727,000.00 in fees. That mindset is equal parts brazen and delusional.
As the late Honorable Max Rosenn, writing for the United States Court of
Appeals for the Third Circuit explained, counsel “are quasi-officers of the court
and they are expected to be careful and scrupulously honest in their representations
to the court . . . [they] must exercise care, judgment, and ethical sensitivity in the
delicate task of billing time and excluding hours that are [vague, redundant,
excessive or] unnecessary.”1 “If, after following the proper procedures, the Court
remains convinced that [the] hourly rate and hours billed are outrageously
excessive, it retains the discretion to award whatever fee it deems appropriate,
including no fee at all.”2 In submitting the instant fee petition, Ms. Pollick, whose
practice, I note, is based in the very same county that Judge Rosenn called home,

1

Hall v. Borough of Roselle, 747 F.2d 838, 842 (3d Cir. 1984).

2

M.G. v. E. Reg’l High Sch. Dist., 386 F. App’x 186, 189 (3d Cir. 2010) (Hardiman, J.).

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has not only failed to live up to her duty as an officer of this Court—she has, as on
numerous prior occasions, thumbed her nose at it. Such defiance ceases today.
Ms. Pollick’s fee petition is “mind boggling” and “outrageously excessive.”3
In fact, it is more than that. The vast majority of Ms. Pollick’s entries are larded
with excreta unbecoming of any attorney in this District (and certainly unbillable
to a client under any stretch of the imagination). For example, in the portions of her
fee bill that I reviewed before striking it in full, Ms. Pollick submitted upwards of
350 time entries with descriptions like “Correspondence with Patti [her client’s
mother]”; “Correspondence from Patti”; “Correspondence with Patti about issue”;
“Correspondence from Patti about issue”; “Correspondence with Patti thanking her
for update”; “Correspondence with Patti thanking her for information”;
“Correspondence with Patti checking in on Meagan [client’s daughter]”;
“Correspondence from Patti advising she is putting stuff behind her”;
“Correspondence with Patti telling her glad she’s giving herself a break” and so on,
ad nauseum. 4

3

Clemens v. New York Central Mutual Fire Ins. Co., No. CV 3:13-2447, 2017 WL 3724236,
at *27 (M.D. Pa. Aug. 29, 2017) (Mannion, J.) (denying and referring for disciplinary action
a vague and excessive fee petition that sought $1 million on a $125,000.00
settlement/punitive damages verdict).

4

Oddly, although Ms. Pollick billed excessive hours for administrative and clerical tasks, she
remarkably devoted no more than two to three hours each time she actually engaged in
substantive legal work, such as for brief writing.

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These raw, unprocessed entries, which appear at Appendix A of this
Memorandum Opinion, are inconsiderately supplied in what appears to be size 8point font or smaller, comprise 44 separate pages, and frankly should sicken both
bench and bar. This is not, I note, Ms. Pollick’s first foray into sanctions hearings
over questionable litigation practices and excessive billing in particular. Quite the
opposite, Ms. Pollick has previously managed to resolve Rule 11 motions levied
against her through extrajudicial means in a 2005 case before the Honorable A.
Richard Caputo of this Court,5 and both the United States Court of Appeals for the
Third Circuit and the judges of this Court have penned what only can be described
as a worn jurisprudence on Ms. Pollick’s vexatious litigation conduct and
outlandish fee petitions. In a number of those cases, courts have had to weed
through pages of improper entries, reduce Ms. Pollick’s submissions by several
hundred thousand dollars, and warn Ms. Pollick repeatedly. “Suffice it to say, [Ms.
Pollick] is simply not getting the message.”6
Without a doubt, billable descriptions of this nature, accompanied with a
glut of other administrative entries not properly billable as attorney time and

5

Kosciolek v. Local 104 International Association of Fire Fighters, 3:04-cv-01920, at ECF
No. 31 (requesting that the Court impose Rule 11 sanctions against Ms. Pollick for
“plung[ing] headlong into the pursuit of this legally baseless Motion” with arguments that
were “totally nonsensical” and had “absolutely no factual basis in the record”).

6

Keister v. PPL Corp., 318 F.R.D. 247, 254 (M.D. Pa. 2015) (imposing $116,000.00 sanction
for Rule 11 violation), aff’d, Keister v. PPL Corp., 677 F. App’x 63 (3d Cir. 2017) (Fisher,
J.).

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entries that lack any detail whatsoever, are frustrating and improper on their face.
So too does it appear, however, that Ms. Pollick has edged precariously close the
operative ethical boundaries by billing every incoming and outgoing
correspondence in separate 6-minute entries (or more). Thus, even if it took Ms.
Pollick one minute to read an email and one minute to respond back (two minutes
total), she has billed all of those communications (hundreds of times over) in two
separate 6-minute increments. Such practice essentially pads her time in ten-minute
increments (12 minutes versus 2 minutes) and reeks both of impropriety and lack
of judgment. All of these details will be included in my submission of this matter
to the Disciplinary Board of the Supreme Court of Pennsylvania for that regulatory
body’s review.
It would be enough to deny Ms. Pollick’s petition in whole if it alone was
comprised of entries of irrelevant correspondence, administrative tasks not billable
as attorney time, hours spent reading blogs, and discussions with local reporters,
but my frustration with the instant fee petition does not stop there. Instead, Ms.
Pollick’s conduct is ripe for sanctioning because she submitted the instant fee bill
no less than five months after Judge Caputo wrote a thorough dissertation on the
improprieties of such fee bills in a case litigated by Ms. Pollick herself.7 In that

7

See Souryavong v. Lackawanna Cty., 159 F. Supp. 3d 514, 520 (M.D. Pa. 2016) (“[T]he Rule
68 offer must be considered in determining whether the lodestar calculation of a reasonable

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decision, Judge Caputo set forth thorough examples of improper and excessive
entries, before also trimming the reasonable hourly rate. So too does it follow on
the heels of a decision by my colleague the Honorable Malachy E. Mannion that
was affirmed by the Third Circuit, in which he denied one of Ms. Pollick’s
excessive fee bills altogether.8
What was Ms. Pollick’s response to these unequivocal rebukes?
Unfortunately, she did not choose to do things the right way. Instead, she
immediately submitted another, arguably more questionable, petition to me within
months of those decisions. This misconduct and this utter waste of our District’s
resources must stop. Fee motions are not meant to spawn parallel litigations, and
civil rights cases are not get-rich-quick tickets. To the extent that Ms. Pollick or
any other attorney in this District misperceives either of those facts, I have no
qualms joining the chorus that seeks to set such behavior straight.
If that was not enough, perhaps the most repugnant of all aspects of Ms.
Pollick’s fee petition is that she asks to be compensated for time necessitated by
her own earlier misconduct. Strikingly, the Defendants here were granted a new
trial, a remarkably rare remedy, in light of a tainted jury verdict attributable Ms.

attorney fee is excessive and whether a downward departure from the lodestar is
warranted.”).
8

Carroll v. Clifford Twp., 625 F. App’x 43 (3d Cir. 2015) (Vanaskie, J.).

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Pollick’s inflammatory conduct in open court. She has now billed not only for the
time associated with that trial but also for additional time and preparation
necessitated by what can only be described as willful, bad faith, and vexatious
behavior. So too has she billed for the subsequent trial and all of its attendant time.
Not only was that trial a do-over of her own making, but it also resulted in a
complete defense verdict.
To provide some context as to why Ms. Pollick’s billing for such time is
exceedingly shameless, I note that my colleague the Honorable Yvette Kane
presided over the first trial in this action and granted the attendant new trial
motion, all before I came on the bench. She described Ms. Pollick’s behavior as
follows, in what has become an oft-quoted passage in the history of this case:
The Court finds that Plaintiff’s counsel did engage in improper
conduct during the course of trial by persistently asking questions that
had been ruled improper for the purpose of characterizing, or
mischaracterizing, evidence.
...
[For example,] unprompted and in the presence of the jury, Plaintiff’s
counsel exclaimed:
MS. POLLICK:

I’m going to show his nakednews.com, what he
showed the children, which absolutely goes to
hostile educational atmosphere because of the fact
that these girls had thongs, and he shows this to
children that are 16 years old—

THE COURT:

Counsel.

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MS. POLLICK:

—in their bras and thongs.

...
That Plaintiff’s counsel’s conduct was improper is obvious.
Throughout the course of trial counsel alternatively asked about
evidence that had been ruled inadmissible, asked for lay opinion
testimony, and asked for testimony without foundation. The purpose
of this tactic was apparently to inflame the jurors by repeating
outrageous conduct that is alleged to have occurred as fact enough
times so the jurors would believe it did occur—even if no evidence
was introduced that would support such a finding. To cite just one
example, the Court notes that counsel asked various witnesses about
Defendant Smith discussing “masturbation” a total of seven times
during trial in addition to mentioning it in her closing argument.
However, there is no evidence in the record that Defendant Smith ever
even used the word in Plaintiff’s presence. The effect of counsel’s
conduct is obvious: the jury was inflamed and misled into believing
there was evidence that Defendant Smith discussed masturbation with
Plaintiff.9
On appeal, the Third Circuit affirmed Judge Kane’s decision, noting that she
“cataloged an extensive record of misconduct by the Young’s counsel throughout
the First Trial.”10 Indeed, the panel noted that by engaging such misconduct, Ms.
Pollick “attempted to inflame the jury by repeatedly asking improper questions and
characterizing the evidence.”11 “We agree that such misconduct permeated the

9

Young v. Pleasant Valley Sch. Dist., 2012 WL 1827194, at *27–29 (M.D. Pa. May 18, 2012)
(internal footnotes omitted), aff’d, 601 F. App’x 132 (3d Cir. 2015) (Fisher, J.).

10

Young v. Pleasant Valley Sch. Dist., 601 F. App’x 132, 135 (3d Cir. 2015) (Fisher, J.).

11

Id.

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trial,” the panel wrote, “making it ‘reasonably probable’ that the misconduct
prejudicially influenced the verdict.12
So that the record is clear up-front, I also note that this case was originally
assigned to the Honorable James M. Munley prior to Judge Kane. As defense
counsel characterizes it, Ms. Pollick’s “obdurate behavior” commenced here when
she filed a motion asking that Judge Munley recuse himself because he was biased
against her.13 In fact, that was not even the first time in which Ms. Pollick moved
to recuse a sitting judge of this District. To the contrary, in a 2006 matter captioned
Hill v. City of Scranton, the Honorable John E. Jones III denied a motion to recuse
in which Ms. Pollick “[a]t bottom . . . argue[d] that because we have in her view,
been ‘mean’ to her, we should now depart the case sub judice, as well as
presumably any other case in which she is involved that lands on our docket.”14
“[I]ndeed,” Judge Jones observed, “we have never imposed any manner of
sanctions against [Ms. Pollick] despite our warnings.”15 Judge Jones advised Ms.
Pollick to “endeavor to be more appropriate in her interactions with this Court,

12

Id. (quoting United States v. Riley, 621 F.3d 312, 339 (3d Cir.2010)).

13

See ECF No. 185.

14

No. 4:CV 01-744, 2006 WL 401801, at *2 (M.D. Pa. Feb. 21, 2006).

15

Id. at *4.

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since doing so would immeasurably enhance her advocacy skills, and thus serve
her clients better.”16
Some say that engaging in the same improper conduct time and time again
while expecting a different result is indicative of mental instability—and that may
be. But if Ms. Pollick is dumb, she is dumb like a fox. Indeed, in connection with
Ms. Pollick’s questionable fee petition, I was forced to conduct what devolved into
the perhaps the strangest show cause hearing in my tenure with this Court. On July
13, 2017, I invited Ms. Pollick, along with defense counsel, to speak to the
propriety of sanctions in this matter as punishment for Ms. Pollick’s vexatious
conduct and legally unsupported fee request.17 What happened next was
remarkable.
For half a day, I was transported to a universe devoid of logical principles
and fundamental notions of relevance. Ms. Pollick’s strange and obstreperous
conduct at the hearing also flaunted any semblance of propriety and decorum in
16

Id. During oral argument in this case in July 2017, Ms. Pollick raised the notion for the first
time that I also harbored some form of bias against her or her case. Quite the contrary, I will
discipline Ms. Pollick herein on account of her vexatious and excessive fee petition. I have
not considered the validity of her underlying civil rights action, except and to the extent that
her not prevailing on the majority of her claims should impact her request. Further, Ms.
Pollick has appeared on my docket on only one other occasion before this case. In that other
matter, Tayoun v. City of Pittston, 39 F. Supp. 3d 572 (M.D. Pa. 2014), I denied a motion for
summary judgment, ruling in favor of Ms. Pollick’s client.

17

Although Ms. Pollick objected to my holding the hearing, see ECF No. 653, I believed that it
was in conformity with prevailing Third Circuit law and accordingly overruled her objection.
See, e.g., M.G. v. E. Reg’l High Sch. Dist., 386 F. App’x 186, 189 (3d Cir. 2010) (Hardiman,
J.) (“We have held that if reasonable market rates are in dispute, a hearing must be
conducted.”).

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federal court, sadly harkening back to the time I previously endured a week-long
trial in this matter. During the hearing, I requested the presence of additional court
security guards and an Assistant United States Marshal, as it appeared that Ms.
Pollick was on the verge of a breakdown on no less than two separate occasions.
Ms. Pollick’s edginess was palpable: she refused to agree, for instance, that
five months’ time separates February from July. And when I confronted her with
all of the previous authorities deeming her very same submissions as noncompensable (indeed, most using the same exact words as these present here), she
rebuffed my invitation to submit an amended motion, reasoning instead that
amendment would make it appear that she had done something wrong. Considering
the frequency with which we permit and encourage amendment in the federal
system, I was entirely at a loss to have heard that response. Presumably, permissive
amendment beats monetary sanctions.
Further, I asked Ms. Pollick at the show cause hearing why she billed in the
manner that she did and why she failed to revise her billing entries before
submitting them. Rather remarkably, she suggested that it is her right to submit
whatever billed entries she so pleases (valid or not), and that it is opposing
counsel’s and the Court’s job to parse through her fee bill, challenging those that
may be invalid. That is an astonishing misperception or perhaps a blatantly
dishonest response.

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Make no mistake: it is also wholly inaccurate. Prevailing plaintiffs have “a
duty to make some reasonable effort to weed out the fees relating to the
unsuccessful claims.”18 “The petitioning attorney has an obligation to weed out
hours that are excessive, redundant, or otherwise unnecessary from his or her fee
request and bears the burden of proving that the number of hours expended was
reasonable.”19 “Hours that are not properly billed to one’s client also are not
properly billed to one’s adversary pursuant to statutory authority.”20 “This
restriction is designed to encourage a prevailing party requesting attorneys’ fees to
exercise the same billing judgment that would have been exercised in the ordinary
course of private practice.”21 Accordingly, “[t]he lawyer must not abandon selfrestraint or careful billing judgment because of the expectation that the obligation
to pay the fee will be statutorily shifted to the losing party.”22
That Ms. Pollick submitted her fee bill without weeding out improper entries
is grounds alone to deny it and impose sanctions. That shortcoming here is not one
that can be ameliorated by careful, line-by-line revisions. I attempted to give Ms.
Pollick the benefit of the doubt and pursue such an approach at first. However, I
18

Fair Hous. Council of Greater Washington v. Landow, 999 F.2d 92, 98 (4th Cir. 1993).

19

Gunasekera v. Irwin, 774 F. Supp. 2d 882, 887 (S.D. Ohio 2011) (internal citation omitted).

20

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

21

Local Union No. 1992 of Int’l Bhd. of Elec. Workers v. Okonite Co., 34 F. Supp. 2d 230, 236
(D.N.J. 1998).

22

Hall v. Borough of Roselle, 747 F.2d 838, 841 (3d Cir. 1984).

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soon discovered that this method was fool’s errand: Ms. Pollick’s entries are so
inappropriate, vague, and duplicative that nearly every one of her thousands of
entries needs to be eliminated or refined. Anecdotally, defense counsel, after
attempting to strike individual entries with a pen, gave up after billing
approximately one hundred hours on the task and simply began crossing out entire
pages. His proposed edits appear at Appendix B. My experience was the same.
Improprieties in Ms. Pollick’s billing methodologies have rotted the very core of
her fee petition, and line-by-line elimination is wasteful, fruitless, and not
warranted by her conduct.
In perhaps the second-strangest portion of the show cause hearing, Ms.
Pollick called opposing counsel John E. Freund, III, Esquire as a witness as if on
cross examination (a tactic that she repeats endlessly and ineffectively at trial) and
proceeded to pepper him with argumentative questions, which he unsurprisingly
handled with impugnable professionalism. Nothing in Ms. Pollick’s cross
examination of Mr. Freund gave me pause. To the contrary, Ms. Pollick’s
questioning of her adversary, which I viewed as largely inappropriate from the
outset, went over like the descent of the Hindenburg. It was a show cause hearing
turned circus under the big top, much like Ms. Pollick’s prior trial performance.

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Oddly, none of Ms. Pollick’s fee affiants showed up to testify on her behalf.
Even her clients were notably absent.23 In addition, I was prepared to and did ask
Ms. Pollick’s sole affiant at the show cause hearing whether he had ever known
Ms. Pollick in a personal capacity, as it came to my attention that just last year, one
of Ms. Pollick’s affiants in a Luzerne County case, Carlo Sabatini, Esquire, had
apparently engaged in a romantic relationship with her in the past:
THE WITNESS:

Your Honor, if I may? I have a duty to the
Court, and I don’t know to the extent that you
consider this relevant, but I’m surprised that it
wasn’t brought out. I had a prior relationship
with Attorney Pollick shortly after I passed the
bar for a period of time.24

Finally, the most troubling portion of the hearing occurred at its conclusion,
when Anthony P. Trozzolillo, Esquire, an attorney who purportedly is engaged in a
romantic relationship with Ms. Pollick and who had been seated in the gallery to
presumably show his support for her, sprang from his seat as I left the bench,
approached opposing counsel’s table, and cursed at Mr. Freund for “jumping on

23

Unfortunately, the extent to which Ms. Pollick’s clients even continue to be aware of this
action or simultaneously sanction its continuance has been unclear to me for at least the past
year. Whether they were aware of the $150,000.00 offer and turned it down on a knowing
and informed basis is also unclear to me. Instead, in recent memory and perhaps since its
inception in truth, Ms. Pollick has cannibalized her client’s lawsuit so that it serves one end:
collection of what she believed would be a fat fee bill.

24

Souryavong v. Lackawanna Cty., Tr. of January 26, 2016 Oral Arg., at 27:05–14.

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the Rule 11 bandwagon.”25 After Mr. Trozzolillo directed a few “bullshits” and
“Goddamns” in Mr. Freund’s direction and began to invade his physical space,
Court staff asked the security guards to separate Mr. Trozzolillo from opposing
counsel before he and Ms. Pollick were directed out of the building. At my
direction, an Assistant United States Marshal was asked to escort Mr. Freund and
his paralegal to their vehicle.26
All of that nonsense aside, this motion is about the impropriety of Ms.
Pollick’s present fee petition, the waste of public and private resources it has
engendered, and her persistent refusal to heed prior warnings of this Court and the
Third Circuit. To what have all of those reprimands led? In perhaps her grand
finale, Ms. Pollick has asked to be paid three-quarters of a million dollars for time
that she purportedly expended to secure a $25,000.00 settlement. The entries
supporting that request are so vague, duplicative, and improper, that it must be
denied in full.

25

Curiously, Mr. Freund’s paralegal was correct when she observed that Mr. Freund had
included an entire section devoted to sanctions in his opposition brief to Ms. Pollick’s fee
petition. Perhaps Mr. Trozzolillo should read the operative papers more closely next time
before denigrating this Court and embarrassing himself for no reason.

26

I am told that my experiences with Ms. Pollick are not unique. In fact, it appears that she
experienced a brief hiatus in her legal practice in the summer of 2015 when she was reported
missing by her mother and charged with trespassing at a local hospital.
http://wnep.com/2015/07/19/state-police-investigating-missing-woman/;
http://thetimestribune.com/news/lawyer-was-charged-with-trespassing-at-hospital-1.1915273.

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In sum, because Ms. Pollick’s fee petition in the amount of $727,000.00 is
unreasonable in light of the outcome that she achieved in this litigation on behalf
of her client, was excessive and wholly unsupported by the billing records and the
applicable law, and vexatiously multiplied this case’s proceedings. I will deny Ms.
Pollick’s motion for fees in full. Moreover, Ms. Pollick’s conduct will be referred
the Disciplinary Board of the Supreme Court of Pennsylvania. In addition, because
Ms. Pollick’s submissions simultaneously violated 28 U.S.C. § 1927 and Federal
Rule of Civil Procedure 11, I will impose sanctions in the amount of $25,000.00
under each provision, to run concurrently. Monetary sanctions are the minimum
appropriate remedial measure because Ms. Pollick’s conduct follows a number of
detailed decisions that instructed her to cease filing such excessive petitions. Last, I
will encourage my colleagues to consider whether the Board of Judges should
revoke the general admission of practitioners who take advantage of the
submissions of fee petitions in civil rights cases in this District.
II.

LAW
Title 42, United States Code, Section 1988(b) provides that “[i]n any action

or proceeding to enforce a provision of section[ ] . . . 1983 . . . of this title, . . . the
court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s
fee as part of the costs.” “The Supreme Court has given a ‘generous formulation’
to the term ‘prevailing party,’ stating that ‘plaintiffs may be considered prevailing

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parties for attorney’s fees purposes if they succeed on any significant issue in
litigation which achieves some of the benefit the parties sought in bringing suit.’”27
As the Supreme Court of the United States has further emphasized, “Section 1988
serves an important public purpose by making it possible for persons without
means to bring suit to vindicate their rights. But unjustified enhancements that
serve only to enrich attorneys are not consistent with the statute’s aim."28
Fee disputes hinge upon “the ‘lodestar’ formula,” which requires
multiplying the number of hours reasonably expended by a reasonable hourly
rate.”29 In determining a reasonable fee, district courts in this Circuit have been
instructed to apply “a burden-shifting type of procedure.”30 “A fee applicant bears
the burden of documenting the applicable hourly rate.”31 A reasonable rate is “the
community billing rate charged by attorneys of equivalent skill and experience
performing work of similar complexity.”32 “To inform and assist the court in the
exercise of its discretion, the burden is on the fee applicant to produce satisfactory
evidence—in addition to the attorney’s own affidavits—that the requested rates are
27

Truesdell v. Philadelphia Hous. Authority, 290 F.3d 159, 163 (3d Cir. 2002) (Alito, J.)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433(1984)) (internal quotation marks omitted).

28

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 559 (2010).

29

Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 177 (3d Cir. 2001) (Rosenn, J.) (citing
Hensley v. Eckerhart, 461 U.S. 424 (1983)).

30

Carey v. City of Wilkes-Barre, 496 F. App’x 234, 236 (3d Cir. 2012) (Fisher, J.).

31

Evans v. Port Auth. of N.Y. & New Jersey, 273 F.3d 346, 361 (3d Cir. 2001).

32

Student Pub. Interest Research Grp. of New Jersey, Inc. v. AT & T Bell Labs., 842 F.2d 1436,
1450 (3d Cir. 1988) (Becker, J.).

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in line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation.”33
“Once the plaintiff has established her prima facie case, the defendant may
contest the reasonableness of the rate with ‘appropriate record evidence.’”34
Importantly, hourly rates previously set for the movant may be considered if those
rates “were set for the same attorney and for the same type of work over a
contemporaneous time period.”35
Next, the court considers the number of hours reasonably expended on the
litigation. Similar to its review of the reasonable rate, the court may exclude hours
that were “excessive, redundant, or otherwise unnecessary.”36 Further, 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.”37 “[I]t is appropriate for the Court to treat the fees
in the manner in which the clients would be treated if the clients were paying the
fees directly.”38
33

Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984).

34

Carey, 496 F. App’x at 237 (quoting Evans, 273 F.3d at 361).

35

Carey, 496 F. App’x at 237. See also Dee v. Borough of Dunmore, 548 F. App’x 58, 63 (3d
Cir. 2013) (Hardiman, J.).

36

Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).

37
38

Id.
Smith v. Borough of Dunmore, No. CIV A 3:05-CV-1343, 2008 WL 4542246, at *4 (M.D.
Pa. Oct. 9, 2008) (Caputo, J.), aff’d, 633 F.3d 176 (3d Cir. 2011) (Jordan, J.).

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“That the plaintiff is a ‘prevailing party’ therefore may say little about
whether the expenditure of counsel’s time was reasonable in relation to the success
achieved.”39 Thus, “[f]ollowing an objection to a fee request, district courts have
discretion to adjust the hours and rates and to increase or decrease the lodestar
based on other considerations raised by the respondent.”40 The court “may attempt
to identify specific hours that should be eliminated, or it may simply reduce the
award to account for the limited success.”41
“A reduced fee award is appropriate if the relief, however significant, is
limited in comparison to the scope of the litigation as a whole.”42 “Indeed, ‘the
most critical factor’ in determining the reasonableness of a fee award ’is the degree
of success obtained.’”43 “We have already observed that 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.’”44

39

Hensley v. Eckerhart, 461 U.S. 424, 436 (1983).

40

Dee v. Borough of Dunmore, 548 F. App’x 58, 60 (3d Cir. 2013) (Hardiman, J.).

41

Hensley, 461 U.S. at 436–37.

42

Id. at 440.

43

Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley, 461 U.S. at 436).

44

Farrar, 506 U.S. at 114 (quoting Hensley, 461 U.S. at 436).

- 19 -

A fee award is appropriate “unless special circumstances would render such
an award unjust.”45 “Courts that find special circumstances justifying the denial of
attorney’s fees to prevailing plaintiffs usually point to some conduct by plaintiffs
which unnecessarily caused or lengthened the litigation.”46
To that end, it is worth repeating Judge Rosenn’s admonition noted at the
beginning of this opinion: attorneys “are quasi-officers of the court and they are
expected to be careful and scrupulously honest in their representations to the court
. . . [they] must exercise care, judgment, and ethical sensitivity in the delicate task
of billing time and excluding hours that are [vague, redundant, excessive or]
unnecessary.”47 Thus, “[i]f, after following the proper procedures, the Court
remains convinced that [the] hourly rate and hours billed are outrageously
excessive, it retains the discretion to award whatever fee it deems appropriate,
including no fee at all.”48

45

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968); Christiansburg Garment
Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 417 (1978) (observing that “a
prevailing plaintiff ordinarily is to be awarded attorney’s fees in all but special
circumstances”).

46

Com. v. Local 542, Int’l Union of Operating Engineers, No. CIV. A. 71-2698, 1999 WL
54922, at *2 (E.D. Pa. Jan. 19, 1999).

47

Hall v. Borough of Roselle, 747 F.2d 838, 842 (3d Cir. 1984).

48

M.G. v. E. Reg’l High Sch. Dist., 386 F. App’x 186, 189 (3d Cir. 2010) (Hardiman, J.).

- 20 -

III.

ANALYSIS
Ms. Pollick’s proposed hourly rate and billable expenditures are so excessive

and disconnected from the circumstances of this case that her fee bill will be
denied in its entirety. The following sections explain why her hourly rate is
unrealistic, illustrate the excessiveness of her entries, and explain why sanctions
under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927 are proper here.
A.

Ms. Pollick’s Requested Hourly Rate Of $400.00, Which She Has
Never Before Been Awarded In Federal Court, Is Inflated,
Unreasonable, And Not Reflective Of Her Performance.

“To inform and assist the court in the exercise of its discretion, 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.”49 That prima facie burden has not been met here.
Fundamentally, the determination of a reasonable rate is dictated by “the
prevailing market rates in the relevant community.”50 Moreover, “in the ordinary
case,” the district court’s rate-setting determination should “focus on the

49

Blum, 465 U.S. at 896.

50

Rode, 892 F.2d at 1183.

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community in which the case was litigated,” not the community from which the
attorney hails.51
To that end and to facilitate future fee disputes, in Beattie v. Line Mountain
School District, a sex-based civil rights action, I reset the standard forum rates for
attorneys in the Williamsport division of this Court to range from $150 to $325 per
hour, depending on the attorney’s experience, the complexity of the litigation, and
the quality of the submitted work product.52 Ms. Pollick’s fee petition ignores
Beattie.
With that background in mind, I now turn to Ms. Pollick’s proposed $400.00
hourly rate and the historical rates she has been awarded in this District. In 2011,
the Honorable Sylvia H. Rambo of the Harrisburg division of this Court reduced
counsel for Plaintiff’s requested fee of $300.00 per hour to $225.00 per hour in a
lengthy first amendment retaliation case.53 Judge Rambo cited to Lohman v.
Duryea Borough, a 2008 decision in which the Judge Caputo had reduced
Plaintiff’s hourly rate of $215.00. As here, Judge Rambo contrasted counsel for
Plaintiff’s qualifications with those of Barry Dyller, Esquire who had also supplied
51

Miller v. Dugan, 764 F.3d 826, 831 (8th Cir. 2014). The Middle District of Pennsylvania is
comprised of three divisions: one each in Williamsport, Harrisburg and Scranton/WilkesBarre. The bulk of this action and the portions primarily comprising this motion occurred in
the Williamsport division.

52

No. 4:13-CV-02655, 2014 WL 3400975, at *10 (M.D. Pa. July 10, 2014).

53

Carey v. City of Wilkes-Barre, 2011 WL 1900169, at *2 (M.D. Pa. May 19, 2011), aff’d, 496
F. App’x 234 (3d Cir. 2012) (Fisher, J.).

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an affidavit in that case.54 “It is this court’s opinion,” Judge Rambo concluded,
“that Pollick’s length of practice and experience does not entitle her to a $300.00
per hour rate.”55 On appeal, the Third Circuit reasoned that “[b]ecause reasonable
finders of fact could differ as to whether Pollick established that her hourly rate
was reasonable,” Judge Rambo’s decision to reduce the effective hourly rate to
$225.00 would be affirmed.56
In Lohman v. Duryea Borough, Judge Caputo, of the Scranton/Wilkes-Barre
division of this Court, reduced a requested fee of $300.00 per hour by counsel for
Plaintiff to $215.00 per hour.57 Importantly, Judge Caputo rejected Plaintiff
counsel’s argument that “the Court should only consider the service of other
attorneys in the plaintiffs’ bar in the community.”58 That was unpersuasive, as a
fee-setting court is “not limited to the defense bar or the plaintiffs’ bar.”59 Rather, it
“must consider the attorney’s experience and skill, and compare it to rates for
54

55

Carey, 2011 WL 2011 WL 1900169, at *2 (“Throughout the briefing on this issue, contrasts
have been made between Barry Dyller and Plaintiff’s counsel, Cynthia L. Pollick. Dyller is
reported to have been in practice for more than fifteen (15) years longer than Pollick, has
tried ninety cases, and has represented clients in over one hundred civil rights cases. Dyller
has been on the executive board of the Civil Rights section of the American Association for
Justice, chair-elect of its Civil Rights section, and chairman in July 2009. Attorney fee rates
for Dyller have been approved in amounts ranging from $300.00 to $375.00 per hour.”).
Id.

56

Carey, 496 F. App’x at 238.

57

2008 WL 2951070, at *8 (M.D. Pa. July 30, 2008), aff’d sub nom. Lohman v. Duryea
Borough, 574 F.3d 163 (3d Cir. 2009).

58
59

Id.
Id.

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similar services by attorneys with similar skill, experience, and reputation.”60 In
that vein, Judge Caputo held that an hourly rate of $300.00 was “not appropriate”
in light of “Ms. Pollick’s skill, reputation, and experience in the community.”61
Instead, in line with several other practitioners bearing qualifications similar to
Plaintiff counsel, Judge Caputo reduced her fee request to $215.00 per hour.62 On
appeal, the Third Circuit concluded that “there was ample evidence to support the
Court’s lower rate” and the district court “did not clearly err in choosing the rate
that it did.”63
Little has changed since Lohman and Carey. In fact, as recently as 2016,
Judge Caputo reduced Ms. Pollick’s requested fee of $400.00 per hour to $250.00
per hour. In Souryavong v. Lackawanna County, Plaintiff’s counsel presented
Judge Caputo with substantially the same set of affidavits that she did here.64 The
Court in Souryavong noted several critical discrepancies between the attributes of
Ms. Pollick’s practice and that of her proposed comparators. For instance, Judge
Caputo found that “Attorney Pollick fails to demonstrate how her ‘skill,
experience, and reputation’ are comparable to that of Attorney Vito, who has over

60
61
62

Id.
Id.
See id.

63

Lohman, 574 F.3d at 164.

64

159 F. Supp. 3d 514, 529 (M.D. Pa. 2016).

- 24 -

fifteen (15) years more experience practicing law than she does.”65
“Notwithstanding the fact that Attorney Vito has been practicing law for
approximately twice as long as Attorney Pollick, Plaintiffs request an hourly rate
that is $25.00 higher than that requested by Attorney Vito.”66 Importantly, Judge
Caputo emphasized that “the Third Circuit Court of Appeals has affirmed my
previous explanation that comparing Attorney Dyller’s rates to Attorney Pollick’s
‘actually tended to show that Pollick’s rate was too high, because Dyller ha[s] at
least fifteen years more experience than Pollick.’”67 Moreover, having had the
benefit of firsthand experiences with both Mr. Dyller and Ms. Pollick since I
entered on duty, my perspective aligns with Judge Caputo’s to the extent that Mr.
Dyller’s experience and emphasis on efficient resolution of matters have tended to
yield him more profitable outcomes in a more streamlined fashion.68
Remaining faithful to the Third Circuit’s burden-shifting framework as
outlined in Carey, I hold that counsel for Plaintiff has failed to establish prima
facie reasonableness. Regardless, even assuming that her rates are facially
reasonable, the Defendants have submitted a mountain of evidence and applicable
case law that render her request entirely suspect.
65
66

Id. at 527.
Id.

67

Id. at 528 (quoting See Carey v. City of Wilkes–Barre, 496 Fed.Appx. 234, 238 (3d
Cir.2012)).

68

See, e.g., Giamboi v. Prison Health Services, Inc. et al., No. 3:11-cv-00159.

- 25 -

Counsel for Plaintiff’s fee affidavit recites that she is a 2007 graduate of
Gerry Spence’s Trial Lawyers College and a 2002 graduate, having obtained her
“Law degree” from the University of Pittsburgh in 1999.69 She states that she has
practiced law for seventeen years.70 According to Ms. Pollick, she should receive
$400.00 per hour because she has “been approved the $400 per hour rate by
opposing counsel in the matter of Vito DePietro v. USDOJ, USM‐2013‐00357,”
and because she “received $400 per hour in connection with payment of attorney
fees in the matter of Harris v. City of Scranton, 13‐2282, that was resolved with
counsel; however opposing counsel did not specifically agree to that hourly rate,
yet that was the rate paid.”71
Both Vito DePietro and Harris have previously been deemed insufficient to
support a $400.00 hourly rate. In Souryavong, Judge Caputo wrote that counsel had
failed to “provide any information about Vitro [sic] so that I can assess whether
Attorney Pollick’s legal services in Vitro [sic] were similar to her legal services
provided here.”72 The same holds true here. I have searched the national PACER

69

ECF No. 635, Ex.3, at ¶ 2.

70

Id. ¶ 9.

71

Id. ¶¶ 21–22. Ms. Pollick’s fee petition also emphasizes that a number of her cases have
reached the Third Circuit and one has even reached the Supreme Court. I fail to see the
relevance of these statistics as the instant fee petition. To the contrary, they seem to suggest
that Ms. Pollick has failed to prevail before district courts and has engaged in significantly
more appeals than other counsel over the long run.

72

159 F. Supp. 3d at 526.

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case locator database and no results other than a 2012 bankruptcy proceeding in the
United States Bankruptcy Court for the Middle District of Pennsylvania are
returned for a litigant named “Vito DePietro.” To what court Ms. Pollick refers
when she cites to a docket number beginning “USM” is unclear. No further details
about the DePietro proceeding are supplied. Therefore, I cannot rely upon it in
setting Ms. Pollick’s hourly rate.
In addition, I note that Ms. Pollick’s motion for attorney fees was
withdrawn, and therefore was not approved by Order of this Court. Harris is
ineffective, because “[i]n such cases, the court has no discretion to reduce the
requested rate, even if it is unreasonable.”73
I have reviewed the supporting affidavits that Ms. Pollick submitted, and
several are identical to those from Sourvayong.74 In fact, two of the affidavits still
bear the wrong caption and were originally submitted in a 2009 case entitled Rose
v. Barrett Township, et al. before the Honorable Robert D. Mariani. Rose was a
section 1983 action asserting claims for false arrest, false imprisonment, and
malicious prosecution.75 Another was submitted in connection with a 2004 case

73

Souryavong, 159 F. Supp. 3d at 526.

74

See ECF No 650, Exs. 1–3.

75

See generally Rose v. Barret Twp. et al., No. 3:09–cv–1561, 2013 WL 246640 (M.D.Pa. Jan.
18, 2013).

- 27 -

before Judge Caputo.76 Of course, the outdated nature of these submissions calls
into question their sustained validity.
In addition, I echo Judge Caputo’s very same observation from Sourvayong
regarding the applicability of the substance of these affidavits: “Plaintiffs do not
demonstrate how the services provided by Attorney Vito and Attorney Dyller in
Rose would be comparable to the services provided by Attorney Pollick in this
FLSA action, since the two (2) cases do not involve similar claims, and therefore
do not involve similar services.”77 “Moreover, the motion for attorney fees in Rose
was ultimately withdrawn, and therefore the requested rates were never ruled upon
or approved by any court.”78
The remaining affidavits do not nudge Ms. Pollick’s petition beyond the line
of reasonableness. One affiant, Ralph E. Lamar, Esquire, has practiced in Colorado
while maintaining his Pennsylvania license since 2010.79 Unlike Ms. Pollick, Mr.
Lamar has been a member of the bar for nearly 30 years, has specialized in
employment law since 1992, has tried cases to verdicts in excess of $3.4 million,

76

See ECF No. 650, Ex. 3.

77

Souryavong, 159 F. Supp. 3d at 527 (M.D. Pa. 2016) (citing Maldonado v. Houstoun, 256
F.3d 181, 184 (3d Cir. 2001) (Rosenn, J.) (explaining that fee-setting courts must “assess the
experience and skill of the prevailing party’s attorneys and compare their rates to the rates
prevailing in the community for similar services”).

78

Souryavong, 159 F. Supp. 3d at 528.

79

See ECF No. 635, Ex. 4.

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$2.3 million, $1.3 million, $850,000.00 and $200,000.00.80 Mr. Lamar has also
written amicus curiae briefs for the United States Courts of Appeal for the Sixth
and Eleventh Circuits.81
Ms. Pollick’s remaining affidavit in support was filed by Jonathan S.
Comitz, Esquire.82 Mr. Comitz does not state his hourly rate, but throughout the
affidavit suggests that $400.00 per hour is a reasonable rate for Ms. Pollick.
According to Mr. Comitz, his “basis for this opinion is that the federal courts have
adopted the community legal services (“CLS”) rate standard with this type of
litigation.”83 Again, borrowing directly from Judge Caputo’s analysis in
Souryavong: “Attorney Comitz’s reliance on rates in the Eastern District of
Pennsylvania do not support his assertion that these rates are reasonable for
Attorney Pollick’s work here in the Middle District of Pennsylvania. The law is
clear that I should be guided by the prevailing rates in the forum of the litigation,
which is the Middle District of Pennsylvania, not the Eastern District.”84
Further, as Defendant points out, “Community Legal Service (“CLS”) is
funded by the Philadelphia Bar Association and provides free civil legal assistance
to low income Philadelphians. Here, there is no evidence that Plaintiffs’ were
80
81

Id. at ¶ 4.
Id.

82

ECF No. 635, Ex. 5.

83

See id. at ¶ 15.

84

Souryavong, 159 F. Supp. 3d at 526.

- 29 -

either residents of Philadelphia or had a low income that would have qualified
them for the assistance of the Philadelphia Bar Association.”85 I agree.86
I also note that none of Ms. Pollick’s fee affiants appeared to testify on her
behalf at the evidentiary/show cause hearing in July 2017. Ms. Pollick attempted to
subpoena two local plaintiff’s attorneys, Clifford A. Rieders, Esquire, and Michael
J. Zicolello, Esquire. I granted a motion by Mr. Rieders to quash Ms. Pollick’s
subpoena, as he lacked any familiarity with the instant matter or with Ms. Pollick’s
abilities. To the contrary, Mr. Zicolello, who also was entirely unfamiliar with this
matter and with Ms. Pollick, agreed to testify in order to opine upon certain of my
previous fee rulings in Beattie and Keister. Not only was Mr. Zicolello’s testimony
irrelevant, but it also undermined his position. Indeed, when Mr. Freund, crossexamined Mr. Zicolello, the latter admitted that he had never once been awarded
his purported hourly by a federal court. Accordingly, after Beattie, Keister, and
Young, it is clear that the forum rates for attorneys in the Williamsport division of
this Court to range from $150 to $325 per hour, depending on the attorney’s
experience, the complexity of the litigation, and the quality of the submitted work
product. Importantly, the rates at the upper end of the range necessarily are
85

See ECF No. 642 at 25.

86

See also Evans v. Philadelphia Hous. Auth., No. CIV. A. 93-5547, 1995 WL 154872, at *3
(E.D. Pa. Mar. 31, 1995) (Gawthrop, J.), aff’d sub nom. Smith v. Philadelphia Hous. Auth.,
79 F.3d 1139 (3d Cir. 1996) (“CLS views lawyers as fungible. That is, a lawyer with fifteen
years of experience is a lawyer with fifteen years of experience. Period. . . . To CLS there is
no difference among these various practitioners within our concededly eclectic profession.”).

- 30 -

reserved for those counsel with the most extensive experience and credentials who
exhibit the highest performance in federal court.87
Last, I note that that there is often no better gauge of an attorney’s skill and
expertise, and consequently, their deserved hourly rate, than observing their
performance first hand. I have had the opportunity to observe Ms. Pollick and a
number of her affiants, including Mr. Dyller and Mr. Comitz, in hearings or
conferences and have had numerous occasions to review their written work. Of
course, I even had the opportunity to observe Ms. Pollick in a trial in this matter.
Without reservation, I would find for the record that Ms. Pollick’s written and oral
abilities fall well below those of her affiants; indeed, her presentations cannot be
placed in the same category as that of Mr. Dyller or even Mr. Comitz.
In response to Ms. Pollick’s submissions, Defendant offers the affidavit of
Robin B. Snyder, Esquire. Ms. Snyder is an experienced civil rights litigator with
over seventeen years of experience.88 Although she primarily represents defendants
in civil rights cases, she avers that she is familiar with the rates charged by skilled
87

Although this action originated in the Scranton division of this Court, the Williamsport
venire is the appropriate benchmark to fees in this action. This is an important observation, as
this District exhibits a rather sweeping geography with variations in fees throughout. I note
that the pertinent summary judgment motions, the second and third trials, and the fee petition
and related proceedings were all conducted in the Williamsport division of this Court.
Further, it appears that the fees schedule I have set for this division is nevertheless marginally
more generous on the higher end of the range than that which might be awarded in the
Scranton division of this Court or in the Eastern District of Pennsylvania’s Allentown
division.

88

See id., Ex. 4.

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federal court litigators in this venire, and the most commonly hourly rate is
$250.00 per hour.89 Ms. Pollick offers nothing to contradict Ms. Snyder’s
testimony.
Clearly then, the appropriate hourly rate that Ms. Pollick deserves has
converged in recent years to the $200.00–$250.00 range for similar work
performed at a similar level in similar forums. Moreover, I have taken into account
“the attorney’s experience, the complexity of the litigation, and the quality of the
submitted work product,” all of which were subpar, in my view, when compared to
similar litigation.90 The bulk of the litigation also occurred, as detailed more fully
throughout, between 2007 and 2013, which time period largely overlaps with those
at issue in Souryavong ($250.00), Dee ($250.00), Carey ($225.00), Smith
($215.00), and Lohman ($215.00). Taking all of the above factors into
consideration, it is my determination that $215.00 to $225.00 would have been a
reasonable hourly rate based upon Ms. Pollick’s performance during the time
period for the Williamsport venire of this Court. To that end, her request for a
$400.00 hourly rate was highly improper and called her entire fee bill into question

89
90

See id.
Keister v. PPL Corp., No. 4:13-CV-00118, 2016 WL 688031, at *5 (M.D. Pa. Feb. 19, 2016)
(setting $275.00 hourly rate in the Williamsport venire for attorneys with exceptionally high
“quality” in “research and submissions”), aff’d, No. 16-1552, 2017 WL 383366 (3d Cir. Jan.
27, 2017) (Fisher, J.).

- 32 -

from the outset. When combined with her excessive entries as detailed in the next
section, it has affirmed in my mind that her motion for fees must be denied in full.
B.

Without Revising Her Time Entries In Any Way, Ms. Pollick Has
Billed For Time That Was Necessitated By Her Own Vexatious
And Obstreperous Conduct, Resulted In A New Trial, And
Unnecessarily Prolonged Resolution Of This Action.

It is apparent that Ms. Pollick has done nothing to “weed out” improper or
inapplicable time entries. To the contrary, she has submitted an unprocessed fee
bill, requesting to be compensated for every billable increment that she apparently
has ever entered in this matter. She has done so even though her misconduct
conditioned a new trial, she did not prevail whatsoever at the second trial, and
several of those entries have no connection whatsoever to the instant defendant or
claim. This is an independent reason why Ms. Pollick’s motion will be denied in
full and why sanctions are appropriate.
The Third Circuit has reiterated the following admonition of the Supreme
Court several times: “A plaintiff who prevails in a civil rights action is ordinarily
entitled to recover an attorney’s fee unless ‘special circumstances’ would render
such an award unjust.”91 For instance, when a plaintiff’s counsel submits a claim
that is “so intolerably inflated,” district courts may “depart[ ] from the usual

91

Ashley v. Atl. Richfield Co., 794 F.2d 128, 131 (3d Cir. 1986) (quoting Newman v. Piggie
Park Enters, 390 U.S. 400, 402 (1968) (per curiam)).

- 33 -

practice” and “react vigorously to prevent such abuse.”92 Several courts of appeals
have recognized that district courts may deny a fee request in toto if the amount
requested is so excessive that it “shocks the conscience” of the court.93 Moreover,
courts have found the requisite special circumstances in cases where a party
exhibited “obstructive behavior” at trial;94 and where a party “burdened” defense
counsel and “disregarded the court’s instruction.”95
A leading decision is that of the United States Court of Appeals for the
Seventh Circuit in Shott v. Rush-Presbyterian-St. Luke’s Medical Center.96 Shott
stands for the proposition that “when a plaintiff’s unreasonable arguments at the
first trial force the parties to participate in a second proceeding, the plaintiff should
not be allowed compensation for both proceedings.”97 In a line that could be copied
verbatim and applied here, the district court in Shott granted the defendant’s
motion for a new trial because, during the first trial, “the plaintiff had presented her
92

Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980).

93

See Brown, 612 F.2d at 1057; Lewis v. Kendrick, 944 F.2d 949, 957-58 (1st Cir.1991); Fair
Hous. Council of Greater Washington v. Landow, 999 F.2d 92, 97 (4th Cir. 1993). Our Court
of Appeals has noted that although it has applied this rule in prior cases, it recently explained
that it has not had occasionally to formally adopt it. See M.G. v. E. Reg’l High Sch. Dist., 386
F. App’x 186, 189 n.2 (3d Cir. 2010) (Hardiman, J.) (citing Hall v. Borough of Roselle, 747
F.2d 838 (3d Cir.1984)).

94

Wiercinski v. Mangia 57, Inc., 125 F. Supp. 3d 445, 447 (E.D.N.Y. 2015) (“If there ever was
a plaintiff who deserved no attorney’s fees at all that plaintiff is Adam Wiercinski.”) (citing
Farrar v. Hobby, 506 U.S. 103, 120 (1992) (“Just as a Pyrrhic victor would be denied costs
under Rule 54(d), so too should it be denied fees under § 1988.”).

95

Mahoney v. Kesery, 778 F. Supp. 1002, 1004 (E.D. Wis. 1991).

96

338 F.3d 736 (7th Cir. 2003).

97

Id. at 739.

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case to the jury in an unreasonable manner that likely confused the jury and
prejudiced [the defendant].”98
Thus, because the conduct of plaintiff’s counsel in Shott necessitated the
new trial, it denied any fees for the first trial.99 Again, in a passage that could be
copied word-for-word here, the Seventh Circuit explained that during the first trial,
plaintiff’s counsel attempt to “throw at the jury . . . alleged misconduct” and “leave
it to the jury to sort out.”100 That conduct was irrelevant, vexatious, and
prejudicial.101
“Therefore,” the Seventh Circuit concluded, plaintiff’s counsel “should not
receive attorney’s fees or costs for the first trial.”102 “We simply do not think it
appropriate to award a litigant attorney’s fees for a trial that was voided by her
unreasonable strategy.”103 This was particularly true because the conduct of
Plaintiff’s counsel “confused the jury” and “prejudiced [the defendant].”104 The
panel in Shott relied on its earlier decision in Jaffee v. Redmond, in which it

98

Id. at 738–39.

99

See id. at 741–43.

100

Id. at 741.

101
102
103
104

See id.
Id. at 742.
Id.
See id.

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concisely explained that if counsel’s conduct “necessitates further proceedings,”
such misconduct “may justify denying compensation for those proceedings.”105
The rule set forth by the Seventh Circuit in Shott has been universally
adopted by other appellate courts—and for obvious reasons. For example, in
Gierlinger v. Gleason, the United States Court of Appeals for the Second Circuit
set forth a rule authorizing district courts to deny requests for fees attributable to
mistrials in the event that the offending attorney “bore significant responsibility for
the mistrial.”106 And in O’Rourke v. City of Providence, the United States Court of
Appeals for the First Circuit similarly held that the key question in such fee
disputes is whether plaintiff’s counsel “was responsible for the introduction of
irrelevant and highly prejudicial evidence that resulted in a voiding of that trial
result.”107 “The question is who should pay for the mistake” and whether the
mistake was “caused by plaintiff.”108 Finally, in Abner v. Kansas City S. Ry. Co.,
the United States Court of Appeals for the Fifth Circuit echoed that a key factor for
district courts to consider when parsing fee requests is whether the defendant
shows “that Plaintiffs caused or contributed to the first mistrial.”109

105

See 142 F.3d 409, 416 (7th Cir. 1998).

106

See 160 F.3d 858, 878 (2d Cir. 1998).

107

See 235 F.3d 713, 737 (1st Cir. 2001).

108
109

See id.
See 541 F.3d 372, 383 (5th Cir. 2008). See also Masimo Corp. v. Tyco Health Care Grp.,
L.P., No. CV02-4770MRP(AJWX), 2007 WL 5279897, at *3 (C.D. Cal. Nov. 5, 2007)

- 36 -

At least one district in the Third Circuit’s vicinage has adhered to this
principal in denying a fee request. That case was Daniels v. Hawkins, before the
United States District Court for the District of Delaware.110 The plaintiff in Daniels
failed to comply with the deadline to retain an expert witness on DNA, the key
piece of evidence in this alleged sexual assault case.111 Thus, the district court ruled
that the DNA would be inadmissible at trial to prove paternity of a resultant
child.112 At trial, the plaintiff attempted to introduce the DNA evidence for
alternative purpose.113 On appeal, the Third Circuit wrote that “as used here, the
DNA evidence was not relevant and was not admissible.”114 Thus, because the
evidence was prejudicial, the Third Circuit granted the defendant a new trial.115
On remand and following a subsequent jury trial, the district court declined
to award plaintiff’s counsel fees associated with the first trial and a related motion
in limine.116 Indeed, the trial court noted that plaintiff’s counsel “did not comply
with the Court’s deadline for identifying expert witnesses for the admission of

(“Generally, a party may receive fees for a retrial so long as the mistake that made the retrial
necessary is not attributable to unreasonable conduct by the party.”).
110

No. CIV.A. 96-009 JJF, 2004 WL 1375298 (D. Del. June 15, 2004).

111

See id. at *1.

112

Daniels v. Delaware, No. 01-3954, 2002 WL 31716422 (3d Cir. Dec. 4, 2002).

113
114
115
116

See id.
See id.
See id.
2004 WL 1375298, at *2.

- 37 -

DNA evidence, and Defendant moved in limine to exclude this evidence.”117 Thus,
because the defendant lacked “adequate notice” of the evidence and was
improperly “confronted” with it at trial, such conduct did not warrant an award of
fees.118
Ms. Pollick’s misconduct at the first trial here was arguably more brazen
than any of those examples just recounted. Judge Kane held that Ms. Pollick’s
misconduct at the first trial was sufficient to warrant a mistrial and described her
behavior as follows:
The Court finds that Plaintiff’s counsel did engage in improper
conduct during the course of trial by persistently asking questions that
had been ruled improper for the purpose of characterizing, or
mischaracterizing, evidence.
...
Unprompted and in the presence of the jury, Plaintiff’s counsel
exclaimed:
MS. POLLICK:

I’m going to show his nakednews.com, what he
showed the children, which absolutely goes to
hostile educational atmosphere because of the fact
that these girls had thongs, and he shows this to
children that are 16 years old—

THE COURT:

Counsel.

MS. POLLICK:

—in their bras and thongs.

...
117

Id. at *1.

118

See id. & nn.1–2.

- 38 -

The Court went on to explain to Plaintiff’s counsel, that “unless Mr.
Smith can testify as to Plaintiff’s perceptions that she did perceive
[additional items alleged to be part of Plaintiff’s hostile educational
environment], I think we need to hear from Plaintiff.”
Immediately after this instruction, which took place outside the
presence of the jury, the jury was returned to the courtroom and the
following exchange occurred:
Q.

Mr. Smith, you remember talking about breast size of women in
class; correct?

A.

I do remember speaking about that, yes.

Q.

You said that more than a handful would be too much, right?

MR. FREUND:
objection.

Your Honor, I’m going to make the same

THE COURT:

Sustained.

BY MS. POLLICK:
Q.

You talked about swapping girlfriends, and if the one
girlfriend—

MR. FREUND:

Objection.

THE COURT:

Sustained.

The Court then reminded counsel that “as to each specific item, you
are going to need to ask the witness as to Plaintiffs’ presence on the
day these things were mentioned.” Plaintiff’s counsel then went on for
several minutes characterizing evidence in an inflammatory way
preceded by a perfunctory “was Meagan there when.” In response to
nearly every question, Defendant Smith testified that he did not know
if Plaintiff was present, and Plaintiff ultimately did not testify to
having seen or heard many of the items about which Plaintiff’s
counsel inquired.

- 39 -

Plaintiff’s counsel later repeated this tactic when questioning the
school board president, asking repeatedly whether, in her opinion,
conduct which counsel characterized in an inflammatory way was
“appropriate.” After counsel asked, “Are you familiar with what he
testified to, that he made comments about banging the cheerleader,
talked about masturbation, female masturbation? Is that appropriate
for a 16–year–old in a public school environment?” the Court called
the parties for a sidebar. At sidebar, the Court instructed counsel:
“Don’t ask any more questions concerning whether items that were
testified to as having been presented in class were appropriate in the
eyes of the witness, because every single question you’ve asked,
you’ve characterized the testimony and then you ask the witness, was
this appropriate.” Shortly after the sidebar was concluded, counsel
asked the same witness, “And [the school board policy] talks about
sexually explicit material is not appropriate. Let me ask you this, is
sexually explicit material, is it appropriate—can you show it in the
classroom?”
Plaintiff’s counsel employed this tactic again during trial when
questioning Detective Bentzoni Serfass, asking:
Q.

But you were concerned about what was going on [in
Defendant Smith’s classroom], that you didn’t think it was
appropriate. Correct?

MR. FREUND:

Objection. Leading.

THE COURT:

Sustained.

BY MS. POLLICK:
Q.

What was your opinion of the material?

MR. FREUND:

Objection. No foundation, relevance.

THE COURT:

Sustained.

BY MS. POLLICK:
Q.

Do you believe that Bruce Smith should have shown headless,
naked females hanging?
- 40 -

MR. FREUND:

Objection.119

Judge Kane went on to summarize Ms. Pollick’s improper conduct as
follows:
That Plaintiff’s counsel’s conduct was improper is obvious.
Throughout the course of trial counsel alternatively asked about
evidence that had been ruled inadmissible, asked for lay opinion
testimony, and asked for testimony without foundation. The purpose
of this tactic was apparently to inflame the jurors by repeating
outrageous conduct that is alleged to have occurred as fact enough
times so the jurors would believe it did occur—even if no evidence
was introduced that would support such a finding. To cite just one
example, the Court notes that counsel asked various witnesses about
Defendant Smith discussing “masturbation” a total of seven times
during trial in addition to mentioning it in her closing argument.
However, there is no evidence in the record that Defendant Smith ever
even used the word in Plaintiff’s presence. The effect of counsel’s
conduct is obvious: the jury was inflamed and misled into believing
there was evidence that Defendant Smith discussed masturbation with
Plaintiff.
On appeal, the Third Circuit affirmed Judge Kane’s decision, noting that she
“cataloged an extensive record of misconduct by the Young’s counsel throughout
the First Trial.”120 Indeed, the panel observed that by engaging such misconduct,
Ms. Pollick “attempted to inflame the jury by repeatedly asking improper questions
and characterizing the evidence.”121 “We agree that such misconduct permeated the

119

Young v. Pleasant Valley Sch. Dist., 2012 WL 1827194, at *27–29 (M.D. Pa. May 18, 2012)
(internal footnotes omitted), aff’d, 601 F. App’x 132 (3d Cir. 2015) (Fisher, J.).

120

Young v. Pleasant Valley Sch. Dist., 601 F. App’x 132, 135 (3d Cir. 2015) (Fisher, J.).

121

Id.

- 41 -

trial,” the panel wrote, “making it ‘reasonably probable’ that the misconduct
prejudicially influenced the verdict.122
All of the above authorities and judicial censures existed at the time Ms.
Pollick submitted her fee petition, and the latter scoldings were well known to the
parties here. That she nevertheless ignored those authorities and submitted an
unrefined list of all her billable entries ever documented in connection with this
matter, including those corresponding to misconduct, vexatious multiplication, new
trials, and trials at which she did not prevail, provides an independent justification
for denial of fees altogether and imposition of sanctions. As discussed more fully
in the next section, this practice permeates Ms. Pollick’s fee petition, which is rife
with vague, duplicative, and other improper entries.
C.

Although The Court Has Attempted To Engage In A Line-ByLine Review Of Ms. Pollick’s Fee Bill And Reduce It Accordingly,
The Deficiencies It Exhibits Are So Widespread And
Fundamental That Line-By-Line Reduction Would Be Infeasible,
Inaccurate, And Would Further Waste The Public’s Resources.

Our Court of Appeals has made clear on numerous occasions that “it is
necessary that the [district court] go line, by line, by line through the billing records
supporting the fee request.”123 My line-by-line review of Ms. Pollick’s fee bill
appears below. The fee bill is a morass to navigate—both in terms of its
122

Id. (quoting United States v. Riley, 621 F.3d 312, 339 (3d Cir.2010)).

123

Evans v. Port Auth. of N.Y. & New Jersey, 273 F.3d 346, 362 (3d Cir. 2001) (internal
quotation marks omitted) (second emphasis added) (Mansmann, J.). See also Interfaith Cmty.
Org. v. Honeywell Int’l, Inc., 426 F.3d 694, 713 (3d Cir. 2005) (Becker, C.J.).

- 42 -

inconsiderate formatting of microscopic text and its having been larded over with
more inadmissible entries than appropriate ones. Although I initially attempted a
line-by-line review, I found myself eliminating such a high proportion of Ms.
Pollick’s entries and guessing at the propriety of the remaining ones that outright
denial became the only feasible outcome. Indeed, these observed deficiencies
permeate Ms. Pollick’s fee petition to the core, in such a way that line-by-line
reductions prove futile and wasteful.
In addition to those principles set forth above, the following guided my
inquiry—and should have guided Ms. Pollick’s submission. That Ms. Pollick
neglected this establish authority offers an independent ground warranting the
imposition of sanctions, as discussed more fully below.
“Counsel for the prevailing party should make a good faith effort to exclude
from a fee request hours that are excessive, redundant, or otherwise unnecessary,
just as a lawyer in private practice ethically is obligated to exclude such hours from
his fee submission.”124 “In the private sector, ‘billing judgment’ is an important
component in fee setting. It is no less important here. Hours that are not properly
billed to one’s client also are not properly billed to one’s adversary pursuant to
statutory authority.”125 Thus, district courts should view fee petitions as “[i]f

124
125

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
Id.

- 43 -

plaintiffs were fee-paying clients,”126 excluding those entries “normally charged to
a fee-paying client.”127
“Of course,” and quite pertinent here, “purely clerical or secretarial tasks
should not be billed at a paralegal rate, regardless of who performs them.”128 “It is
appropriate to distinguish between legal work, in the strict sense, and investigation,
clerical work, compilation of facts and statistics and other work which can often be
accomplished by non-lawyers but which a lawyer may do because he has no other
help available.” Such non-legal work may command a lesser rate or may be
eliminated altogether.129 “Its dollar value is not enhanced just because a lawyer
does it.”130
Thus, “[a] claim by a lawyer for maximum rates for telephone calls with a
client, legal research, a letter concerning a discovery request, the drafting of a
brief, and trial time in court is neither fair nor reasonable.”131 “Many of these tasks
are effectively performed by administrative assistants, paralegals, or secretaries,”
and “to claim the same high reimbursement rate for the wide range of tasks
126

Student Pub. Interest Research Grp. of New Jersey, Inc. v. AT & T Bell Labs, 842 F.2d 1436,
1454 (3d Cir. 1988).

127

Planned Parenthood of Cent. New Jersey v. Attorney Gen. of State of New Jersey, 297 F.3d
253, 267 (3d Cir. 2002).

128

Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989).

129
130
131

See id.
Id.
Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001).

- 44 -

performed is unreasonable.”132 “Having prevailed in the litigation is not cause to
overwhelm the losing party with unreasonable fees and costs.”133
In addition, “hours chargeable to the claims against defendants who are
found not liable” cannot be recovered if those defendants or claims are
“sufficiently separable from the rest of the litigation.”134 Claims or defendants are
“sufficiently separable” where some survive and some are disposed of on a single
motion or appeal or where the time expended as to one theory “did not further
successful claims [but] was spent solely on unsuccessful claims.”135
In addition, Ms. Pollick has not edited her records to reflect time spent on
evidence or witnesses that were completely excluded or were wholly irrelevant to
the third trial. In fact, she has billed time corresponding to one expert who whose
opinions were excluded as early as the first trial. Fees corresponding to expert
witnesses or evidence that has been completely excluded are, for obvious reasons,
typically not recoverable.136 This is particularly true where the evidence did
nothing to aid the plaintiff on the claims on which she prevailed and therefore

132
133
134
135
136

Id.
Id.
Rode v. Dellarciprete, 892 F.2d 1177, 1185 (3d Cir. 1990).
See id.
See, e.g., Catapult Commc’ns Corp. v. Foster, No. 06 C 6112, 2010 WL 659075, at *2 (N.D.
Ill. Feb. 19, 2010).

- 45 -

“manifest injustice would result from awarding them.”137 Accordingly, as one court
has quipped, “Time spent dealing with a retained expert whose planned testimony
would be recognized as inadmissible by any reasonable attorney is simply not time
well-spent.”138
With that background in mind, I now turn to my line-by-line review of Ms.
Pollick’s fee bill for the first three years of this litigation (2007–2009). That review
confirms that line-by-line reductions would be improper and that the fee bill must
be denied in full.
Table 1. Line-by-Line Fee Bill Revisions as Attempted by the Court
Date
5/7/2007

5/8/2007

137
138

Entry
1.80, comprised of
five “telephone
conferences with
Patti . . . regarding
situation”;
“regarding
representation”; and
“regarding more
information”
2.50, comprised of
meeting with clients
“to discuss
situation”

Revision
0.25 (-1.55)

Justification
Vague and
ambiguous;
unreasonable

1.00 (-1.50)

Vague and
ambiguous;
unreasonable

See id.
Foley v. Huppe, No. 10-CV-335-JL, 2012 WL 5467527, at *6 (D.N.H. Nov. 9, 2012).

- 46 -

Date
5/9/2007

Entry
Revision
3.00, comprised of
0.00 (-3.00)
“Preparation of
PHRA complaint for
Jane Doe 2.”

5/9/2007

0.80, comprised of
“TC with Patty
about filings and
other issues”

0.00 (-0.80)

5/10/2007

0.20, comprised of
“TC from reporter
regarding case, no
comment.”
0.80, comprised of
“TC with Patty
regarding issues.”

0.00 (-0.20)

3.00, comprised of
“Discussion of case
with staff regarding
issues.”
5.00, comprised of
“Reviewed case and
developments”;
“Reviewed
additional
documents sent by
Patti” and
“Reviewed
comments by
students regarding
what Smith did
during class.”

0.50 (-2.50)

5/10/2007

5/10/2007

5/11/2007

0.00 (-0.80)

1.25 (-3.75)

- 47 -

Justification
Vague and
ambiguous;
irrelevant; no “Jane
Doe 2” involved in
this action
Vague and
ambiguous;
unreasonable;
duplicative of
proximate entries
Irrelevant; not
billable time
Vague and
ambiguous;
unreasonable and
duplicative of
proximate entries
Vague and
ambiguous;
unreasonable
Unreasonable;
Block-billing; entries
lack sufficient detail
to substantiate the
extent of time billed

Date
5/12/2007

5/12/2007

5/13/2007

5/14/2007

5/14/2007

5/14/2007

Entry
1.90, comprised of
“TC from Patty
regarding issues and
concerns”; “TC with
Patty regarding
meeting”; “TC with
Patti regarding
appointment and
developments”; “TC
with Patti regarding
developments and
her status”; and “TC
with Patti regarding
situation and what
will happen next.”
0.20, comprised of
“Correspondence
from reporter
regarding article.”
2.00, comprised of
“Discussion with
staff about blogging
comments and
publicity.”
0.10, comprised of
“TC from Pocono
record regarding
lawsuit”
0.60, comprised of
“TC from Patti
regarding situation.”

Revision
0.00 (-1.90)

Justification
Vague and
ambiguous;
duplicative of
proximate entries;
unreasonable; Blockbilling; entries lack
sufficient detail to
substantiate the
extent of time billed

0.00 (-0.20)

Irrelevant; not
billable time

0.00 (-2.00)

Irrelevant;
unreasonable; not
billable time

0.00 (-0.10)

Irrelevant; not
billable time

0.00 (-0.60)

0.10, comprised of
“TC from TV13
regarding case”

0.00 (-0.10)

Vague and
ambiguous;
unreasonable;
duplicative of prior
entries
Irrelevant; not
billable time

- 48 -

Date
5/14/2007

5/14/2007

5/14/2007

Entry
2.00, comprised of
“discussion with
staff about media
affects [sic] on case”
6.10, comprised of
“TC from Expert
Judith Reisman
regarding case”;
“Receipt and review
of Judith Resiman’s
bio”; “Receipt and
review of articles
from Judith
Reisman”;
“Additional
discussion with staff
on expert and her
opinions about
case.”; “TC from
Judith Reisman
regarding on
working on the case”
and four separate
correspondences to
Ms. Reisman, all
purportedly
occurring on the
same date
2.00, comprised of
“Researched
SESAME and other
information about
exploitation”

Revision
0.00 (-2.00)

Justification
Irrelevant; not
billable time

0.00 (-6.10)

Proposed expert
excluded under
Daubert framework
and Fed. R. Evid.
403 as irrelevant,
unreliable, and
unduly prejudicial.
See ECF Nos. 148 &
626; redundant of
entries on same date;
unreasonable and
duplicative; entries
lack sufficient detail
to substantiate the
extent of time billed

0.00 (-2.00)

Irrelevant; vague and
ambiguous; entry
lacks sufficient detail
to substantiate the
extent of time billed

- 49 -

Date
5/14/2007

Entry
1.00, comprised of
“Receipt and review
of ‘therapists’”

Revision
0.00 (-1.00)

5/15/2007

0.10, comprised of
“TC from Reporter
regarding update –
Pocono Record”
2.00, comprised of
“Reviewed blogs on
Pocono Record.”

0.00 (-0.10)

5/15/2007

0.10, comprised of
“Correspondence
from Shaun Mullein
regarding ‘doe.’”

0.00 (-0.10)

5/15/2007

0.90, comprised of
“TC with Patty
regarding situation”
and “TC from Patti
regarding situation”
1.00, comprised of
“Reviewed
discussions on
blogs.”

0.25 (-0.65)

5/15/2007

5/16/2007

0.00 (-2.00)

0.00 (-1.00)

- 50 -

Justification
Vague and
ambiguous; entries
lack sufficient detail
to substantiate the
extent of the time
billed or the
relevance to this
action
Irrelevant; not
billable time
Unreasonable;
irrelevant; vague and
ambiguous; entry
lacks sufficient detail
to substantiate the
extent of time billed
and the relevance to
this action
Irrelevant; not
billable time; entry
lacks sufficient
detail; unidentified
individuals “doe” and
“Mullein”
Unreasonable; vague
and ambiguous;
duplicative of
proximate entries
Unreasonable; vague
and ambiguous; entry
lacks sufficient detail
to substantiate the
extent of time billed
or relevance to this
action

Date
5/16/2007

Entry
0.30, comprised of
“Receipt and review
of additional
document”

Revision
0.00 (-0.30)

5/18/2007

0.30, comprised of
“TC with Patti
checking in to see
how Meagan is
doing.”

0.00 (-0.30)

5/23/2007

0.20, comprised of
“TC from Patti
regarding updated
information”

0.00 (-0.20)

5/25/2007

0.50, comprised of
“TC with Patti
discussing threat of
lawsuit by Smith”

0.00 (-0.50)

5/25/2007

1.00, comprised of
“Legal research for
reply letter to threat
of defamation
action”

0.00 (-1.00)

- 51 -

Justification
Entry lacks sufficient
detail to substantiate
extent of time billed
or relevance to this
action
Irrelevant; not
billable time
(Although it was
kind of Ms. Pollick
to check in on her
client, it was
undoubtedly less so
to bill her for the
curtesy.)
Entry lacks sufficient
detail to substantiate
extent of time billed
or relevance to this
action
Vague and
ambiguous; Entry
lacks sufficient detail
to substantiate
relevance to this
action; no
counterclaims were
filed in this lawsuit
Entry lacks sufficient
detail to substantiate
relevance to this
action; no
counterclaims were
filed in this lawsuit;
irrelevant to § 1983
fee petition

Date
5/25/2007

Entry
0.40, comprised of
“Correspondence
with Swetz advising
what law is on
defamation.”

Revision
0.00 (-0.40)

5/30/2007–
6/1/2007

1.00, comprised of
“TC from Patty
regarding updates”;
“Correspondence
with Patti regarding
original documents”;
“TC with Patti
regarding
developments”; and
“TC from Patti
regarding newspaper
article”
0.10, comprised of
“TC from morning
call regarding case.”
2.50, comprised of
“Researched blogs
to find threats
2.50, comprised of
“Researched blogs
to find threats for
use in motion”

0.25 (-0.75)

5/31/2007
6/1/2007
6/5/2007

Justification
Entry lacks sufficient
detail to substantiate
extent of time billed
or relevance to this
action; irrelevant to
§ 1983 fee petition;
unidentified
individual “Swetz”
Duplicative of
proximate entries;
entries lack sufficient
detail to substantiate
extent of time billed,
propriety of billing,
and relevance to
action

0.00 (-0.10)

Irrelevant; not
billable time

0.60 (-1.90)

Unreasonable;
duplicative

0.00 (-2.50)

Irrelevant to § 1983
fee petition; Entry
lacks sufficient detail
to substantiate extent
of time billed,
propriety of entry, or
relevance to
Smith/§ 1983 claim

- 52 -

Date
6/6/2007

Entry
2.00, comprised of
“Reviewed blogs to
recent news article.”

Revision
0.00 (-2.00)

6/8/2007

0.60, comprised of
“TC from Patti
regarding issues.”

0.00 (-0.60)

6/12/2007–
6/13/2007

0.00 (-1.30)
1.30, comprised of
“TC from Dr.
Reisman regarding
case”;
“Correspondence
with Dr. Reisman
regarding her calling
me”;
“Correspondence
from Dr. Reisman
regarding her
testimony”; and
“Receipt and review
of Dr. Reisman’s
California protective
parents association
testimony.”

- 53 -

Justification
Unreasonable;
irrelevant;
duplicative of
proximate entries;
lacks sufficient detail
to substantiate extent
and propriety of
billing and relevance
to Smith/§ 1983
claim
Vague and
ambiguous; entry
lacks sufficient detail
to substantiate extent
of time billed and
relevance to this
action
Proposed expert
excluded under
Daubert framework
and Fed. R. Evid.
403 as irrelevant,
unreliable, and
unduly prejudicial.
See ECF Nos. 148 &
626; redundant of
entries on same date;
unreasonable and
duplicative; entries
lack sufficient detail
to substantiate the
extent of time billed

Date
6/14/2007

6/14/2007

Entry
Revision
0.00 (-1.80)
1.80, comprised of
“TC with Expert
Reisman regarding
case and help”;
“Correspondence
from Dr. Reisman
regarding study”;
“Correspondence
from Dr. Reisman
regarding brain
science data”;
“Correspondence
from Dr. Reisman
regarding sex crime
of teacher – 2nd
offense”;
“Correspondence
from Dr. Reisman
regarding Supreme
Court brief that Dr.
Reisman is cited
in.”; “Receipt and
review of Supreme
Court brief that Dr.
Reisman is cited in.”
0.25 (-0.35)
0.60, comprised of
“Correspondence
from Patti regarding
school board
policies” and
“Correspondence
from Patti regarding
additional policies
that are implicated”

- 54 -

Justification
Proposed expert
excluded under
Daubert framework
and Fed. R. Evid.
403 as irrelevant,
unreliable, and
unduly prejudicial.
See ECF Nos. 148 &
626; redundant of
entries on same date;
unreasonable and
duplicative; entries
lack sufficient detail
to substantiate the
extent of time billed

Duplicative of
proximate entries;
entries lack sufficient
detail to substantiate
time expended

Date
6/15/2007

Entry
0.60, comprised of
“Receipt and review
of Study by Andreas
Keil”

6/15/2007

0.00 (-0.30)
0.30, comprised of
“Receipt and review
of article on Detroit
‘teacher of the year’
getting sentenced for
porn”
0.00 (-0.50)
0.50, comprised of
“Correspondence
from Dr. Reisman
regarding teacher of
the year” and
“Correspondence
from Dr. Reisman
regarding stores on
teachers”

6/15/2007

Revision
0.00 (-0.60)

- 55 -

Justification
Irrelevant; vague and
ambiguous;
unidentified
individual “Keil”‘
entry lacks sufficient
details establishing
relevance to this
action
Irrelevant; entry
lacks sufficient
details establishing
relevance to this
action
Proposed expert
excluded under
Daubert framework
and Fed. R. Evid.
403 as irrelevant,
unreliable, and
unduly prejudicial.
See ECF Nos. 148 &
626; redundant of
entries on same date;
unreasonable and
duplicative; entries
lack sufficient detail
to substantiate the
extent of time billed

Date
6/15/2007–
6/19/2007

6/18/2007–
6/21/2007

6/27/2007

Entry
1.10, comprised of
“Receipt and review
of 2 additional
policies provided by
Doe”;
“Correspondence
with Patti advising
will call her on
Monday”; “TC with
Patti regarding
update”; “TC from
Patti regarding
expert”; “TC with
Patti regarding
expert”
0.30, comprised of
“TC from PHRC,
David Kozemchak
regarding
docketing”; “TC
with David advising
that if he needs
additional
information to call
me.”; and “TC from
PHRC advising will
be docketing
complaint today.”
0.30, comprised of
“Correspondence
from Swetz
regarding letters
between each other”

Revision
0.25 (-0.85)

Justification
Duplicative of
proximate entries;
vague and
ambiguous;
administrative tasks;
not billable time;
entries lack sufficient
detail substantiating
hours expended and
relevance to action

0.00 (-0.30)

Administrative tasks;
duplicative; not
billable time

0.00, (-0.30)

Vague and
ambiguous; entry
lacks sufficient detail
substantiating time
expended, propriety
of billing, and
relevance to case;
unidentified
individual “Swetz”

- 56 -

Date
6/27/2007

Entry
0.10, comprised of
“TC from Patti
regarding new
address”

Revision
0.00 (-0.10)

6/28/2007–
6/30/2007

0.20, comprised of
“Correspondence
from Judith
regarding emails”
and
“Correspondence
with Judith
regarding call to her
next week to discuss
case”

0.00 (-0.20)

- 57 -

Justification
Administrative task;
not billable time;
entry lacks sufficient
detail substantiating
propriety of billing
decision or relevance
to this action
Proposed expert
excluded under
Daubert framework
and Fed. R. Evid.
403 as irrelevant,
unreliable, and
unduly prejudicial.
See ECF Nos. 148 &
626; redundant of
entries on same date;
unreasonable and
duplicative; entry
lacks sufficient detail
to substantiate the
extent of time billed;
duplicative of
proximate entries

Date
7/9/2007–
7/13/2007

7/20/2007;
7/23/2007

Entry
Revision
0.00 (-0.90)
0.90, comprised of
“TC from Patti
regarding updated
information”;
“Correpsondence
from Patti regarding
other case”;
“Correspondence
from Patti regarding
article on student’s
mom”; and “receipt
and review of article
about another person
being retaliated
against after
complaining”
0.00 (-1.20)
1.20, comprised of
“TC with Dr.
Reisman regarding
case” and 6 entries
of “Correspondence
with/from Reisman
regarding case”

- 58 -

Justification
Duplicative of
proximate entries;
entries lack sufficient
detail to substantiate
extent of time billed
and relevance to this
action; not billable
time

Proposed expert
excluded under
Daubert framework
and Fed. R. Evid.
403 as irrelevant,
unreliable, and
unduly prejudicial.
See ECF Nos. 148 &
626; redundant of
entries on same date;
unreasonable and
duplicative; entries
lack sufficient detail
to substantiate the
extent of time billed;
unreasonable;
duplicative of
proximate entries

Date
8/2/2007

8/2/2007

Entry
Revision
0.25 (-0.55)
0.80, comprised of
“TC with Patti
regarding Judge’s
decision requiring us
to reveal identity”;
“TC from Patti
regarding situation
and how she wants
to proceed”; and
“TC from Patti
regarding case and
how it will proceed”
1.00, comprised of
0.00 (-1.00)
“receipt and review
of documentation
from PHRC”

8/3/2007

0.20, comprised of
“TC from Chris
Monnegeall
regarding decision
on case”

0.00 (-0.20)

8/3/2007

0.20, comprised of
“Preparation of
acknowledgment for
Meagan to sign”
0.20, comprised of
“Correspondence
with Tarone
regarding judge’s
decision” and
“Correspondence
with Tarone
regarding Judge’s
decision and respect
judge fully”

0.00 (-0.20)

8/8/2007

0.00 (-0.20)

- 59 -

Justification
Unreasonable,
duplicative

Entry lacks sufficient
detail to substantiate
extent of time billed
and relevance to
case; unreasonable
Vague and
ambiguous;
irrelevant;
unidentified
individual
“Monnegeall”
Administrative; not
billable time
Vague and
ambiguous;
irrelevant;
unidentified
individual “Tarone”

Date
8/9/2007

Entry
0.10, comprised of
“Correspondence
with Patti regarding
acknowledgments”

Revision
0.00 (-0.10)

8/9/2007

0.30, comprised of
“Receipt and review
of Article in
Standard Speaker”

0.00 (-0.30)

8/10/2007

0.50, comprised of
“TC with Patti
discussing case” and
“TC from Patti
regarding
acknowledgment”
0.10, comprised of
“TC from Dan
Barett Pocono
Record regarding
case”
0.20, comprised of
“TC from Patty
regarding article and
blogs.”
0.10, comprised of
“Correspondence
from Judith
regarding case”
0.40, comprised of
“Review blogs on
moderate for use in
case”

0.00 (-0.50)

8/14/2007

8/15/2007

8/15/2007

8/20/2007

Justification
Administrative; not
billable time; entry
lacks sufficient detail
to substantiate
relevance to this
action
Not billable time;
entry lacks sufficient
detail to substantiate
the extent of time
billed or relevance to
this action
Unreasonable;
duplicative of
proximate entries;
vague and ambiguous

0.00 (-0.10)

Not billable time

0.00 (-0.20)

Irrelevant; entry
lacks sufficient detail
to substantiate the
extent of time billed
Expert excluded as
irrelevant and highly
prejudicial.

0.00 (-0.10)

0.00 (-0.40)

- 60 -

Vague and
ambiguous; entry
lacks sufficient detail
substantiating
relevance to this
action

Date
8/23/2007–
10/4/2007

Entry
Revision
0.50 (-4.60)
5.10, comprised of
28 entries to client’s
mother: “TC from
Patti re status of
case”; “TC from
Patti re update”;
“Correspondence
from Patti re policies
and procedures”;
“Correspondence
with Patti thanking
her for information”;
“Correspondence
with Patti thanking
her for update”;
“Correspondence
with Patti re article”;
“Correspondence
from Patti thanking
me for work on
brief”;
“Correspondence
from Patti re
morning news
article”;
“Correspondence
from Patti advising
what to do”;
“Correspondence
from Patti re
article”;
“Correspondence
with Patti thanking
her fort article.”;
“Correspondence
with Patti re rape
case in Allentown”;
etc.

- 61 -

Justification
Duplicative of
proximate entries;
Administrative tasks;
unreasonable;
Irrelevant;
Vague and
ambiguous; Entries
lack sufficient detail
substantiating
claimed time and
relevance to this
action

Date
9/7/2007

Entry
7.60, comprised of
“Additional
preparation to 2nd
Motion to Dismiss”

Revision
2.50 (-5.10)

9/15/2007

0.30, comprised of
“Reviewed article on
Smith coming back
to classroom”
0.40, comprised of
“Receipt and review
of new policy on
abuse versus old
version”
0.20, comprised of
“Correspondence
from PHRC
cancelling FFC”
0.20, comprised of
“Correspondence
with PHRC
regarding
unavailability for
FFC”
0.30, comprised of
three separate entries
of correspondence
with “Patti”
114.80

0.00 (-0.30)

9/25/2007

10/4/2007

10/8/2007

12/16/2007

2007 TOTAL

0.00 (-0.40)

Justification
Duplicative of
proximate entries;
unreasonable as
overstated; Block
billing
Entry lacks sufficient
detail substantiating
relevance to this
action
Entry lacks sufficient
detail substantiating
relevance to this
action

0.00 (-0.20)

Administrative task;
not billable

0.00 (-0.20)

Administrative task;
not billable;
redundant/duplicative
of proximate entries

0.10 (-0.20)

Unreasonable and
excessive;
duplicative of
proximate entries
TOTAL AFTER
DEDUCTIONS:
46.75

-68.05
(59%)

- 62 -

Date
2/7/2008

2/14/2008

2/14/2008–
2/28/2008

2/28/2008

Entry
0.20, comprised of
“Correspondence
from Patti regarding
article in paper” and
“Correspondence
with Patti advising
her about details or
oral argument”
0.30, comprised of
“TC from Erin of
Times regarding
case” and “TC with
reporter regarding
what case is about”
1.1, comprised of
“TC from Patti
regarding case
status”; “TC from
Patti regarding
questions on case”;
“TC from Patti
regarding case”; and
“TC from Patti
regarding call and
new information”
0..10, comprised of
“TC from Morning
Call regarding
order”

Revision
0.00 (-0.20)

0.00 (-0.30)

Justification
Duplicative of
proximate entries;
administrative task;
not billable time;
entries lack sufficient
detail substantiating
propriety of billable
time
Irrelevant; not
billable time

0.25 (-0.85)

Duplicative of
proximate entries;
entries lack sufficient
detail substantiating
propriety of billing
and extent of time
billed; administrative
tasks

0.00 (-0.10)

Irrelevant; not
billable time

- 63 -

Date
2/28/2008–
3/5/2008

Entry
Revision
0.00 (-1.30)
1.30, comprised of
“Correspondence
from Patti advising
case was reported”‘
“Correspondence
with Patti thanking
her for update”;
“Correspondence
from Patti regarding
article in Pocono
Record”;
“Correspondence
with Patti thanking
her for providing
update”;
“Correspondence
from Patti regarding
news article about
on-line school”;
“Correspondence
from Patti
summarizing blogs”;
“Correspondence
with Patti advising
can’t use as evidence
need her to send me
copies of blogs.”;
“Correspondence
with Patti regarding
documents”;
“Correspondence
with Patti thanking
her for her
outstanding
cooperation”

- 64 -

Justification
Duplicative of
proximate entries;
irrelevant;
administrative tasks;
not billable time;
entries lack sufficient
detail substantiating
propriety of billing,
extent of time billed,
and relevance to this
action

Date
3/20/2008–
3/28/2008

Entry
Revision
0.00 (-1.90)
1.90, comprised of
“Correspondence
from Patti regarding
issues about
homebound”;
“Correspondence
with Patti thanking
her for information”;
“Correspondence
from Patti regarding
details of
situations”;
“Correspondence
with Patti thanking
her for information”;
“Correspondence
from Patti regarding
information on spiral
notebook”;
“Correspondence
from Patti regarding
spiral notebook”;
“Correspondence
with Patti advising
need to send”; and
“Correspondence
from Patti advising
thank you for
update”

- 65 -

Justification
Duplicative of
proximate entries;
irrelevant;
administrative tasks;
not billable time;
entries lack sufficient
detail substantiating
propriety of billing,
extent of time billed,
and relevance to this
action

Date
3/26/2008

4/8/2008

4/24/2008

5/3/2008

5/6/2008

Entry
9.00, comprised of
“Preparation of
Answers to
InterrogatoriesFinalized”;
“Preparation of
Responses to
RPDs.”‘
“Finalization of
Answers to
Interrogatories”; and
“Finalization of
Responses to RPDs”
0.10, comprised of
“Correspondence
with Tami advising
can’t change pdf”
2.00, comprised of
“Preparation of
JCM”

Revision
2.00 (-7.00)

Justification
Duplicative;
unreasonable; block
billing; entries lack
sufficient detail
substantiating
propriety of extent of
time billed

0.00 (-0.10)

Administrative task;
not billable time

1.00 (-1.00)

0.20, comprised of
“Correspondence
from Patti regarding
new rule” and
“Correspondence
with Patti thanking
her for update”
0.20, comprised of
“Correspondence
with OP regarding
documents”

0.00 (-0.20)

Unreasonable in light
of proximate entries;
Entry lacks sufficient
detail substantiating
extent of time billed
Duplicative of
proximate entries;
entries lack sufficient
detail substantiating
time billed and
relevance to this
action
Entry lacks sufficient
detail substantiating
propriety of time
billed and relevance
to this action

0.00 (-0.20)

- 66 -

Date
5/9/2008

5/12/2008–
5/13/2008

5/13/2008

Entry
1.00, comprised of
“Reviewed
documents that
needed to be turned
over in response to
discovery requests”
0.60, comprised of
“Correspondence
from Judy Price
regarding mediation
session”;
“Correspondence
from Judy price
advising need dates
for mediation”; and
“Correspondence
with Judy Price
advising June 20 is
good for us”
1.10, comprised of
“TC from Patti
regarding mediation
and other items”;
“TC from Patti
regarding more
questions about
mediations; trial;
settlement –
addressed various
conc”; and
“Correspondence
with Patti advising
need dates they can
come up”

Revision
0.25 (-0.75)

Justification
Entry lacks sufficient
detail substantiating
propriety of time
billed

0.00 (-0.60)

Administrative tasks;
not billable attorney
time

0.25 (-0.85)

Duplicative of
proximate entries;
administrative task;
not billable attorney
time

- 67 -

Date
5/15/2008

5/19/2008–
6/11/2008

Entry
Revision
0.00 (-2.50)
2.50, comprised of
“Legal research on
disclosure of
electronic data” and
“Preparation of Brief
in Support of
Production of
Electronic Data”
0.00 (-2.10)
2.10, comprised of
“Correspondence
from Mediator
asking if 20th was
good for Freund”;
“Correspondence
from OP advising
June 20th is good for
him”;
“Correspondence
from Mediator
advising she will
confirm June 20th @
11am”;
“Correspondence
with Mediator, OP
medication [sic] at
Mediator’s office
good”;
“Correspondence
from Judy Price
confirming date and
time for mediation”;
“Correspondence
with Patti advising
of mediation date.”;

- 68 -

Justification
Unreasonable; entries
lack sufficient detail
substantiating
propriety of time
billed and relevance
to this action
Administrative tasks;
not attorney billable
time; duplicative of
proximate entries;
unreasonable;
redundant

Date
5/19/2008–
6/11/2008
Continued

6/2/2008

6/11/2008

Entry
Revision
“Correspondence
from Patti advising
she will be her [sic]
by 10:30 and
advising of her
demand”;
“Correspondence
with Patti advising
okay, but we will
talk more when we
meet”;
“Correspondence
from Patti regarding
demand”;
“Correspondence
with Patti advising
details of mediation
process”; “TC from
Judy Price regarding
TC about
mediation”; “TC
with Dorothy of
Judy Price’s office
regarding TC before
mediation”; “TC
from Judy Price, OP
regarding mediation
extension”
3.00, comprised of
1.00 (-2.00)
“Preparation of BIO
to OP’s Motion to
Compel”
0.10 (-0.30)
0.40, comprised of
“TC with Patti
regarding
mediation” and “TC
from Patti regarding
status”

- 69 -

Justification

Entry lacks sufficient
detail substantiating
extent of time billed
Duplicative of
proximate entries;
lacks sufficient detail

Date
6/11/2008

Entry
0.20, comprised of
“TC from Bill
regarding
mediation”

Revision
0.00 (-0.20)

6/30/2008–
7/8/2008

1.20, comprised of
“Correspondence
with Patti regarding
MTC”;
“Correspondence
from Patti regarding
youtube”;
“Correspondence
from Patti – 2nd
letter on you tube
issues”;
“Correspondence
from Patti regarding
reviewing box of
documents”;
“Correspondence
with Patti advising
can review box any
time”;
“Correspondence
from Patti regarding
deposition for
Meagan”;
“Correspondence
from Patti regarding
news article”
0.20, comprised of
“TC with Jenn
regarding case”

0.00 (-1.20)

7/7/2008

0.00 (-0.20)

- 70 -

Justification
Entry lacks sufficient
detail to substantiate
extent of time billed
and relevance to
case; unidentified
individual “Bill”
Duplicative of
proximate entries;
unreasonable; entries
lack sufficient detail
substantiating time
billed, propriety of
time billed, and
relevance of billed
time to this action

Entry lacks sufficient
detail to substantiate
extent of time billed
and relevance to
case; unidentified
individual “Jenn”

Date
7/10/2008–
7/17/2008

Entry
Revision
0.25 (-1.95)
2.20, comprised of
“TC from OP
regarding dates for
deposition”; “TC
from OP advising
free on 23th to do
depos”; “Preparation
of Notice of
Deposition for
Smith”; “Preparation
of Amended
30(b)(6) deposition
notice”;
“Correspondence
with Patti advising
of depo dates”;
“Correspondence
from Patti regarding
youtube and other
items”;
“Correspondence
with Patti advising
that we will talk
more during prep
session”;
“Correspondence
with Patti advising I
will do what I can to
get date in August.”;
“Correspondence
with OP regarding
waver [sic] of
service”;
“Preparation of
Waiver of Service
for both
Defendants”;

- 71 -

Justification
Administrative tasks;
not billable as
attorney time;
duplicative of
proximate entries

Date
7/10/2008–
7/17/2008
Continued

7/30/2008

8/4/2008–
8/8/2008

Entry
“Correspondence
from OP regarding
waiver of service”;
“Correspondence
from PHRC
regarding on-going
investigation”; “TC
from PHRC, Vivian
requesting copy of
lawsuit”
0.50, comprised of
“Correspondence
with Detective
Bentzoni” and
“Preparation for
Subpoena for
depositionBentzoni”

Revision

Justification

0.00 (-0.50)

Witness excluded as
prejudicial and
irrelevant to this
action, particularly as
to third trial (Smith).
See ECF No. 626;
also administrative
task; not billable as
attorney time
Administrative task
not billable as
attorney time;
duplicative of
proximate entries

0.00 (-0.60)
0.60, comprised of
“Correspondence
from Patti regarding
meeting on Sunday”;
“Correspondence
with Patti advising
she is correct on
both items; and will
see her at new office
at”; and “TC with
Patti regarding
addresses; and
discussed depos
scheduled for
Monday”

- 72 -

Date
8/8/2008

8/8/2008–
8/12/2008

8/11/2008–
8/12/2008

Entry
0.40, comprised of
“Correspondence
from Floyd
regarding customer
service survey” and
“Correspondence
from Floyd
regarding letter to
Freund”
9..00, comprised of
“Meeting with
clients in preparation
of depositions”;
“Preparation for
deposition of clients
and 30(b)(6)”;
“Additional
preparation for
30(b)(6) deposition”;
“Reviewed file to
pull out documents
for 30(b)(6)
deposition”;
“Additional
preparation for
30(b)(t) deposition
and Smith,
Detective”
3.40, comprised of
“Travel to
Bethlehem for
depositions” and
“Travel from
Bethlehem after
30(b)(6) deposition”

Revision
0.00 (-0.40)

Justification
Irrelevant; lacks
sufficient detail

2.00 (-7.00)

Overstated and
unreasonable; lacks
sufficient specificity
to justify amount of
time billed; block
billing;
administrative task;
witness excluded
prior to third trial

2.50 (-0.90)

Travel time
overstated

- 73 -

Date
8/13/2008–
8/15/2008

Entry
Revision
0.00 (-2.30)
2.30, comprised of
“Correspondence
from Patti regarding
policy violations”;
“Correspondence
with court reporter
requesting she bold
answers”;
“Correspondence
with Patti regarding
blogs she found”;
“Correspondence
from Patti regarding
depositions and
other information for
case.”; “TC from
Patti regarding
case”; “TC with
Patti regarding
depositions; several
issues and concerns;
medical releases;
upcoming dpeosi”;
“Correspondence
from Patti regarding
list of doctors”;
“Receipt and review
of list of doctors that
family has seen”;
“Correspondence
with Patti thanking
her for getting list of
doctors to me”;
“Correspondence
from Patti advising
she is putting stuff
behind her”;

- 74 -

Justification
Not billable time;
administrative tasks;
duplicative;
irrelevant

Date
8/13/2008–
8/15/2008
Continued

8/15/2008

8/15/2008–
8/20/2008

8/15/2008–
8/18/2008

Entry
“Correspondence
with Patti telling her
glad she’s giving
herself a break”; and
Correspondence
from Patti regarding
“information on
history teacher
resigning”
0.20, comprised of
“Correspondence
with Expert Reisman
regarding her
expertise along with
testimony”
0..80, comprised of
“Preparation of
subpoena for Bill
Watson”;
“Correspondence
with Bill Watson
regarding
subpoena”; “TC
from Bill Watson
regarding
subpoena”; and “TC
with Bill Watson
explaining what I’m
looking for”
0.70, comprised of
six separate
correspondences
to/from Ms. Pollick
and Ms. Reisman

Revision

Justification

0.00 (-0.20)

Witness excluded as
irrelevant and
prejudicial

0.00 (-0.80)

Administrative task;
not billable as
attorney time;
unidentified
individual “Bill
Watson”; entries lack
sufficient detail to
establish relevance to
case

0.00 (-0.70)

Witness excluded as
irrelevant and
prejudicial

- 75 -

Date
8/20/2008

Entry
1.00, comprised of
preparation of 5
deposition notices

8/21/2008

0.90, comprised of
0.00 (-0.90)
three
correspondences
with Dr. Reisman
0.00 (-0.20)
0.20, comprised of
“TC with Jess
advising 25 26 bad
for Freund” and “TC
with Jess regarding
dates good for him”
1.50, comprised of
0.00 (-1.50)
“Reviewed 2 DVDs
with clips”

8/21/2008

8/21/2008

8/21/2008

8/22/2008

0.10, comprised of
“Correspondence
from Judith
regarding news
article”
0.40, comprised of
four
correspondences
with Patti

Revision
0.00 (-1.00)

0.00 (-0.10)

0.00 (-0.40)

- 76 -

Justification
Administrative task;
not billable time;
most noticed
witnesses excluded
as irrelevant for third
trial
Witness excluded as
irrelevant and
prejudicial
Administrative tasks;
not billable as
attorney time;
duplicative
Entry lacks sufficient
detail substantiating
relevance to the case;
unreasonable time
expended
Expert excluded as
prejudicial and
irrelevant.
Duplicative of
proximate entries;
insufficient detail

Date
8/25/2008

8/25/2008

8/26/2008

8/27/2008

Entry
0.30, comprised of
“Correspondence
from Gallagher
regarding
depositions”;
“Correspondence
with Gallagher
regard depositions”;
“Correspondence
from Gallagher
attaching PDF”
0.20, comprised of
“Correspondence
from court reporter
regarding
transcripts”;
“Correspondence
with court reporter
advising that I
requested condensed
pdf”
0.10, comprised of
“Correspondence
from Patti regarding
article on PVSD”
0.10, comprised of
“Correspondence
from Judith
regarding additional
article”

Revision
0.00 (-0.30)

Justification
Administrative tasks;
not billable attorney
time; unidentified
individual
“Gallagher”

0.00 (-0.20)

Administrative task;
not billable as
attorney time

0.00 (-0.10)

Irrelevant; lacks
sufficient detail to
substantiate propriety
of billed time
Expert excluded as
irrelevant and
prejudicial

0.00 (-0.10)

- 77 -

Date
8/28/2008–
9/2/2008

9/11/2008

9/15/2008

9/15/2008

Entry
0.50, comprised of
“Correspondence
from Patti regarding
blogs”;
“Correspondence
with Patti regarding
blogs”;
“Correspondence
with Patti advising
depos are off”;
“Correspondence
from Patti advising
okay and to keep her
updated”;
“Correspondence
with Patti regarding
invoice”
0.20, comprised of
“Correspondence
from Atty Berry
docs from Pocono
Records”
0.10, comprised of
“TC with Jessica
confirming will take
26, 27”
0.70, comprised of
“Correspondence
with OP regarding
revised deposition
notices” and
“Preparation of
revised deposition
notices for smith,
pullo, saba, seiler,
and yozwiak”

Revision
0.00 (-0.50)

Justification
Entries lack
sufficient detail to
substantiate
relevance;
administrative tasks;
not billable as
attorney time

0.00 (-0.20)

Entry lacks sufficient
detail to substantiate
relevance; irrelevant;
not billable time

0.00 (-0.10)

Administrative; not
billable as attorney
time

0.00 (-0.70)

Administrative; not
billable as attorney
time; most witnesses
excluded as
irrelevant or
prejudicial as to third
trial

- 78 -

Date
9/15/2008–
9/16/2008

9/18/2008

Entry
Revision
0.00 (-0.70)
0.70, comprised of
“Correspondence
from Patti regarding
new address”;
“Correspondence
with Patti regarding
scheduling of
depositions, etc.”;
“Correspondence
from Patti regarding
payment of
deposition fee”;
“Correspondence
from Patti regarding
Seller and questions
to ask”;
“Correspondence
from Patti regarding
new information”;
and
“Correspondence
from Patti regarding
additional
information”
0.10, comprised of
0.00 (-0.10)
“Correspondence
with Judith
regarding
information on case”

- 79 -

Justification
Duplicative of
proximate entries;
administrative tasks
not billable as
attorney time; entries
lack sufficient detail
to substantiate
propriety of entries

Expert excluded as
irrelevant and
prejudicial well
before third trial; any
reference to expert’s
testimony later
excluded in
subsequent motion in
limine; vague and
ambiguous entry
lacking sufficient
detail

Date
9/19/2008

Entry
0.10, comprised of
“Correspondence
with Patti regarding
30(b)(6) transcript”

9/23/2008–
10/1/2008

0.00 (-0.30)
0.30, comprised of
“Correspondence
from Patti regarding
additional emails”;
“Correspondence
from Patti regarding
article and blog”;
and
“Correspondence
from Patti regarding
article – 2nd email”
0.00 (-0.20)
0.20, comprised of
“Correspondence
with reporter
regarding
depositions in
January” and
“Correspondence
from reporter
advising she can
handle job in Jan.”
0.00 (-0.50)
0.50, comprised of
“TC from reporter
from Morning CallKevin”; “TC with
Kevin from Morning
Call regarding case”;
and “Receipt and
review of article in
morning call”

9/23/2008

9/25/2008–
10/1/2008

Revision
0.00 (-0.10)

- 80 -

Justification
Lacks sufficient
detail establishing
relevance and
propriety of billing;
administrative task
not billable as
attorney time
Entries lack
sufficient detail to
substantiate
relevance and
propriety of time
billed; duplicative of
proximate entries

Administrative tasks
not billable as
attorney time;
duplicative of
proximate entries

Irrelevant; not
billable time;
duplicative in light of
proximate entries

Date
10/9/2008

10/14/2008

10/21/2008

11/26/2008

Entry
0.10, comprised of
“TC with Jessica
rescheduling
depositions – one
more time”
0.20, comprised of
“Correspondence
from Patti and
review of news
article sent by her”
and
“Correspondence
from Patti regarding
medical releases”
0.10, comprised of
“Correspondence
with Patti regarding
update on depos”

Revision
0.00 (-0.10)

Justification
Administrative task;
not billable as
attorney time

0.00 (-0.20)

Duplicative of
proximate entries;
entries lack sufficient
detail substantiating
propriety and extent
of billed time

0.00 (-0.10)

Duplicative of
proximate entries;
entry lacks sufficient
detail substantiating
relevance
Administrative tasks
not billable as
attorney time; most
witnesses cited were
excluded as
irrelevant and
prejudicial well
before third trial

0.00 (1.20)
1.20, comprised of
“Preparation of
revised subpoena for
Detective Bentzoni”‘
“Preparation of
revised deposition
notice for Connie
Saba”; “Preparation
of revised deposition
notice for Donna
yozwiak”;
“Preparation of
revised deposition
notice for IT-Mr.
Sieler”; “Preparation
of revised deposition
notice for Bruce
Smith”; “Preparation
of revised deposition
notice for Dr. Pullo”
- 81 -

Date
12/4/2008

12/6/2008–
12/9/2008

12/31/2008

2008 TOTAL

Entry
0.20, comprised of
“Correspondence
with OP regarding
revised notice”
0.20, comprised of
“Correspondence
from Patti regarding
updates on Meagan”
and
“Correspondence
with Patti thanking
her for update and
advising still on for
Jan depos.”
0.20, comprised of
“Correspondence
with Lori regarding
her coverage of
depositions in Jan.”
and “TC from Lori
advising she can’t
cover that date”
99.00

Revision
0.00 (-0.20)

Justification
Administrative task
not billable as
attorney time

0.00 (-0.20)

Duplicative of
proximate entries;
entries lack sufficient
detail substantiating
relevance and
propriety of billing

0.00 (-0.20)

Administrative task
not billable as
attorney time

-49.60
(50%)

TOTAL AFTER
DEDUCTIONS:
49.40

- 82 -

Date
1/20/2009

1/20/2009

1/20/2009

1/22/2009

1/26/2009

Entry
0.10, comprised of
“Preparation of
Revised Notice of
Deposition for
Smith”
0.20, comprised of
“Correspondence
with OP regarding
new start time; and
cancellation of
Pullo’s deposition”

Revision
0.00 (-0.10)

Justification
Administrative task;
not billable as
attorney time

0.00 (-0.20)

Administrative task;
not billable as
attorney time;
plaintiff did not
prevail as to witness,
and witness not
involved in third trial
Entries lack
sufficient detail
substantiating
propriety of time
billed and relevance
to the action;
administrative task
not billable as
attorney time

0.00 (-0.20)
0.20, comprised of
“Correspondence
from Patti regarding
additional
information to use at
depositions” and
“Correspondence
with Patti advising
that had to move
deposition to noon
b/c have court in
morning”
0.70, comprised of
0.50 (-0.20)
“Meeting clients to
discuss depositions”
0.10, comprised of
“TC from Patti
regarding last weeks
[sic] deposition”

0.00 (-0.10)

- 83 -

Unreasonable; lacks
sufficient detail to
substantiate time
billed and relevance
to third trial
Entry lacks sufficient
detail to substantiate
propriety of time
billed and relevance
to third trial

Date
1/26/2009

1/27/2009–
2/11/2009

1/27/2009

2/11/2009–
2/12/2009

Entry
Revision
0.00 (-0.10)
0.10, comprised of
“Correspondence
from reporter
regarding coverage
and student
observing”
1.50, comprised of
0.00 (-1.50)
eight entries of
correspondence with
Patti

0.60, comprised of
confirmation of
dates with opposing
counsel and
preparation/service
of subpoena for
“ESU”
0.30, comprised of
“Correspondence
with case manager
apologizing for not
filing on system”
and TC with ESU
regarding
subpoena/extension

0.00 (-0.60)

0.00 (-0.30)

- 84 -

Justification
Irrelevant;
administrative task;
not billable as
attorney time
Duplicative of
proximate entries;
administrative tasks
not billable as
attorney time; entries
lack sufficient detail
substantiating
propriety and extent
of billed time
Administrative tasks;
not billable time;
irrelevant to this
action

Administrative tasks;
not billable as
attorney time

Date
2/13/2009

Entry
Revision
1.20, comprised of
0.00 (-1.20)
“receipt and review”
of various
depositions

2/13/2009

0.20, comprised of
“Correspondence
with rose regarding
PDFs of transcripts”
and
“Correspondence
from Rose reporter
regarding PDFs of
transcripts”
0.40, comprised of
“Correspondence
from Patti regarding
stuff that might
help” and
“Correspondence
from Patti regarding
information on
witness”
0.20, comprised of
“Correspondence
from Patti regarding
schedule for
Monday” and
“Correspondence
with Patti regarding
time starting on
Monday”

2/22/2009–
2/23/2009

2/25/2009

0.00 (-0.20)

Justification
Witnesses excluded
as irrelevant or
prejudicial early in
litigation; witnesses
not relevant to third
trial; entries lack
sufficient detail
substantiating
propriety of time
billed
Administrative task
not billable as
attorney time;
duplicative of
proximate entries

0.00 (-0.40)

Irrelevant;
duplicative of
proximate entries;
entries lack sufficient
detail

0.00 (-0.20)

Administrative tasks
not billable as
attorney time

- 85 -

Date
1/2/2009–
2/28/2009

Entry
Revision
4.10, comprised of
0.00 (-4.10)
various entries
corresponding solely
to proposed expert
Reisman

3/2/2009

0.60, comprised of
“Preparation for
depositions”

0.00 (-0.60)

3/6/2009

0.60, comprised of
“Correspondence
with Patti advising
of her schedule of
depositions on
Friday”;
“Correspondence
from Patti regarding
her health,
depositions next
Friday;
“Correspondence
with Patti regarding
depositions”; and
“Correspondence
with Patti advising
haven’t received
paperwork yet”

0.00 (-0.60)

- 86 -

Justification
Expert excluded as
irrelevant and
prejudicial well
before third trial; any
reference to expert’s
testimony later
excluded in
subsequent motion in
limine; vague and
duplicative entries
Entry lacks sufficient
detail substantiating
relevance to this
action or propriety of
time billed
Administrative tasks
not billable as
attorney time;
duplicative of
proximate entries;
irrelevant to third
trial

Date
3/13/2009

3/16/2009

3/17/2009

3/18/2009–
3/25/2009

3/19/2009

Entry
8.00, comprised of
“Travel to and from
Leigh for deposition
of Kim Dalmas and
Karen Verhage” and
“attendance” at said
depositions
0.40, comprised of
four entries
scheduling TC with
Judge Munley’s
Chambers and
opposing counsel
0.70, comprised of
“Meeting with Patti
to discuss issues”

Revision
0.00 (-8.00)

Justification
Overstated travel
time; witnesses
excluded well prior
to third trial and
irrelevant to ultimate
action; block billing

0.00 (-0.40)

Administrative task;
not billable time;
lacks sufficient detail
establishing
relevance and
propriety of billing
Entry lacks sufficient
detail substantiating
relevance and
propriety of time
billed
Entry lacks sufficient
detail substantiating
relevance to this
action and propriety
of extent of time
billed; duplicative of
proximate tasks;
administrative task in
part, not billable as
attorney time

0.25 (-0.45)

0.00 (-1.90)
1.90, comprised of
“Preparation of
motion to compel –
video stuff”;
“Finalized and filed
motion to compel –
video stuff”;
“Preparation of brief
in support of motion
to compel videos”
and motion
regarding related
adverse instruction
0.00 (-1.10)
1.10, comprised of
four entries of
correspondence with
opposing counsel
relating to
subpoenas for Best
Buy and Lowe’s

- 87 -

Entries lack
sufficient detail
substantiating extent
of time billed,
propriety of billed
time, or relevance to
this action

Date
4/1/2009–
4/17/2009

Entry
1.90, comprised of
four entries related
to above depositions
of Dalmas and
Verhage

3/1/2009–
4/6/2009

0.00 (-7.60)
7.60, comprised of
various entries
corresponding solely
to proposed expert
Reisman, related
deposition, and
receipt/review of
said report

4/8/2009

0.20, comprised of
“Correspondence
with OP regarding
extension” and
“Correspondence
with OP’s paralegal
advising concur in
30 day extension”
0.50, comprised of
“Receipt and review
of employment
records from
Lowes”

4/23/2009

Revision
0.00 (-1.90)

0.00 (-0.20)

0.00 (-0.50)

- 88 -

Justification
Witnesses excluded
well prior to third
trial; witnesses
irrelevant to third
trial; entries lack
sufficient detail to
substantiate
relevance;
duplicative of
proximate entries
Expert excluded as
irrelevant and
prejudicial well
before third trial; any
reference to expert’s
testimony later
excluded in
subsequent motion in
limine; vague and
duplicative entries
Administrative task,
not billable as
attorney time

Entry lacks sufficient
detail substantiating
time billed and
relevance to this
action

Date
5/5/2009–
5/11/2009

5/19/2009

5/22/2009

Entry
11.80, comprised of
“Reviewed videos
produced by OP”
(3.00); “Reviewed
DVDs for discovery
brief and case”
(5.00)’ “Preparation
of Reply Brief to
Motion to Compel
Videos” (1.30);
“Reviewed video
clips and thumbnails
on most discs”
(1.00); “Receipt and
review of Best Buy
Records produced
by OP”; and
“Correspondence
from OP regarding
Best Buy records”
0.20, comprised of
“Correspondence
from Tami regarding
word extension” and
“Correspondence
with Tami advising I
don’t have a
problem with all
briefs extending to
7k”
1.00, comprised of
“Receipt and review
of Exhibits attached
to MSJ”

Revision
0.00 (-11.80)

Justification
Block billing; entries
lack sufficient detail
substantiating
propriety of time
billed, extent of time
billed, or relevance to
this action;
duplicative of
proximate entries;
vague and
ambiguous;
irrelevant

0.00 (-0.20)

Administrative
correspondence; not
billable as attorney
time

0.00 (-1.00)

Entry lacks sufficient
detail substantiating
propriety of time
billed or relevance to
this action

- 89 -

Date
5/22/2009

Entry
0.10, comprised of
“Correspondence
from the Youngs
regarding case”

Revision
0.00 (-0.10)

5/28/2009

0.20, comprised of
“Correspondence
from Mediator
regarding case”

0.00 (-0.20)

5/28/2009

0.00 (-0.10)
0.10, comprised of
“Correspondence
from OP advising
where to find exhibit
J”
3.00, comprised of
1.00 (-2.00)
“Additional
preparation of Brief
in Support of PMSJ”

6/3/2009

6/6/2009–
6/8/2009

0.80, comprised of
“TC from Patti
regarding receipt of
email”; “TC with
Patti regarding
issue”; “TC from
Patti regarding
issue”; “TC with
Patti regarding issue
and information she
gathered”

0.00 (-0.80)

- 90 -

Justification
Entry lacks sufficient
detail substantiating
propriety of time
billed or relevance to
this action
Entry lacks sufficient
detail substantiating
propriety of time
billed or relevance to
this action;
administrative task
not billable as
attorney time
Administrative task
not billable as
attorney time
Entry lacks sufficient
detail substantiating
propriety and extent
of time billed and
relevance to this
action; duplicative of
proximate entries;
block billing
Entries lack
sufficient detail
substantiating
propriety of time
billed and relevance
to this action;
duplicative entries

Date
6/15/2009–
6/17/2009

6/17/2009

6/18/2009–
6/19/2009

Entry
15.00, comprised of
“Additional
preparation of BIO
to Motion for
Summary Judgment
included review of
Meagan’s
deposition” (3.00);
“Additional
preparation of BIO
to MSJ included
reviewing Patricia’s
deposition. Smith’s”
(7.00); and
“Additional
preparation of BIO
to MSJ” (5.00)
0.10, comprised of
“TC with Hampton
regarding room
reservation”
0.80, comprised of
“TC with Patti
regarding case”;
“TC from Patti
regarding case”;
“TC with Patti
regarding case and
statement of facts in
dispute”; and “TC
from Patti about
statement of facts,
etc.”

Revision
3.00 (-12.00)

Justification
Block billing; entries
lack sufficient detail
substantiating
propriety of time
billed; duplicative of
proximate entries

0.00 (-0.10)

Administrative task
not billable as
attorney time

0.25 (-0.55)

Duplicative of
proximate entries;
excessive billing;
entries lack sufficient
detail substantiating
propriety of time
billed

- 91 -

Date
6/19/2009

7/27/2009–
7/30/2009

Entry
Revision
2.00 (-6.00)
8.00, comprised of
“Preparation of
Response to
Statement of Facts in
Dispute” (5.00) and
“Additional
preparation and
finalization of Brief
in Opposition to
MSJ, including
finalization of Ta”
(3.00)
0.00 (-0.70)
0.70, comprised of
“Correspondence
from Patti regarding
Memoir”;
“Correspondence
with Patti thanking
her for information”;
“Correspondence
from Patti regarding
movie”;
“Correspondence
from Patti regarding
update to policies”

- 92 -

Justification
Entries lack
sufficient detail
substantiating
propriety of time
billed and relevance
to action; block
billing; duplicative of
proximate entries

Duplicative of
proximate entries;
information
referenced excluded
as irrelevant and
prejudicial; excessive
billing

Date
6/22/2009–
6/26/2009

Entry
Revision
0.25 (-1.15)
1.40, comprised of
“TC from Patti
regarding affidavit”;
“Correspondence
from Patti regarding
information that may
be useful”; “TC
from Patti regarding
paperwork”;
“Correspondence
and attachment from
Patti regarding
Bruce”;
“Correspondence
from Patti regarding
information about
Connie Saba”;
“Correspondence
with Patti thanking
her for new
information”;
“Receipt and review
of news article sent
by Patti”

- 93 -

Justification
Duplicative of
proximate entries;
Entries lack
sufficient detail;
excessive billing

Date
4/30/2009–
5/1/2009

4/7/2009–
5/21/2009

8/5/2009–
10/27/2009

Entry
Revision
0.00 (-0.60)
0.60, comprised of
“Correspondence
from Patti regarding
update”;
“Correspondence
with Patti advising
her of update”;
“Correspondence
from Patti thanking
me for my work”;
“Correspondence
with Patti regarding
deposition
transcripts”; and
“Correspondence
with Patti thanking
her for
compliments”
0.00 (-2.10)
2.10, comprised of
various entries
corresponding solely
to proposed expert
Reisman

0.30, comprised of
0.00 (-0.30)
various entries
corresponding solely
to proposed expert
Reisman

- 94 -

Justification
Irrelevant; entries
lack sufficient detail;

Expert excluded as
irrelevant and
prejudicial well
before third trial; any
reference to expert’s
testimony later
excluded in
subsequent motion in
limine; vague and
duplicative entries
Expert excluded as
irrelevant and
prejudicial well
before third trial; any
reference to expert’s
testimony later
excluded in
subsequent motion in
limine; vague and
duplicative entries

Date
8/16/2009–
12/20/2009

Entry
5.30, comprised of
38 entries of
correspondence
between clients and
Ms. Pollick

Revision
0.30 (-5.00)

8/16/2009–
12/20/2009

3.20, comprised of
29 entries
scheduling
mediation and
communicating with
mediator’s office

0.50 (-2.70)

11/3/2009

1.00, comprised of
“Travel to and from
Scranton for oral
argument”
116.00

0.67 (-0.33)

2009 TOTAL

-80.38
(69%)

Justification
Duplicative of
proximate entries;
administrative tasks
not billable as
attorney time;
excessive and
redundant billing;
irrelevant entries
Entries lack
sufficient detail
substantiating
propriety of time
billed and relevance
to fee petition;
duplicative of
proximate entries;
excessive/redundant
billing
Inflated travel time.

TOTAL AFTER
DEDUCTIONS:
35.62

That Ms. Pollick’s fee petition ought to be denied in full undoubtedly
follows from the vast revisionism her entries must undergo. In fact, having
reviewed the first three years of Ms. Pollick’s own submitted entries, my
determination is that the line-by-line adjustments are so numerous, that I am
essentially forced to rewrite her entire fee bill on her own behalf. The defects and
revisions are so widespread, duplicative, and unreasonable that the entire fee bill
must be discarded.
- 95 -

As the above exercise demonstrates, line-by-line reduction of Ms. Pollick’s
fee bill is futile. For each of the three first years, I am forced to deduct at least 50%
and as high as 70% of her submitted entries. Further, because Ms. Pollick’s entries
are so vague, my line-by-line review of her fee bill necessitates exceptional
creativity and imagination on my part. I too often am required to read between the
lines and guess about what tasks might correspond to each of Ms. Pollick’s entries.
What claims and which defendants each entry pertains to requires similar
guesswork. I cannot in good conscious assess fees based upon a petition as flawed
as this one.
To that end, a glaring defect with Ms. Pollick’s fee bill is that the vast
majority of the entries lack sufficient detail substantiating the propriety of the time
billed and its relevance to the instant prevailing claim. In other words, the fee bill’s
entries are exceptionally vague and ambiguous. This is fatal to the fee bill’s
acceptance because, on the face of the fee bill alone, I am unable to discern
(1) whether the time is properly billable on this motion and (2) whether the extent
of the time billed for each entry is reasonable.
Tellingly, I orated a few examples for Ms. Pollick during the show cause
hearing. For instance, what did she discuss on the May 2007 phone call? What was

- 96 -

the purpose of a “correspondence” from another date?139 As it turned out, Ms.
Pollick had no memory whatsoever of what transpired during those meetings or
correspondences, including what procedural device or which defendant(s) or
claim(s) to which those communications pertained. Ms. Pollick explained that she
could perhaps review her case file and her personal notes and provide some
explanation, but that is precisely the problem with her fee petition: the relevance
and propriety of a given entry must be clear from its face; that is all that the Court
has at its disposal.
The same is true of Ms. Pollick’s submissions for various “legal assistants”
and “legal researchers.” Undoubtedly, the entries pertaining to “legal assistants”
are almost wholly duplicative of Ms. Pollick’s entries or entries pertaining to other
“legal assistants.” Those administrative entries encompass time not properly
billable to the client, redundancy in effort, and overstaffing beyond reasonable

139

Before admitting that she had no idea what transpired during those meetings, Ms. Pollick
contended that she could not reveal to me the subject of those conversations. That argument
is inadequate. First of all, as Judge Caputo emphasized in Souryavong, Ms. Pollick need not
reveal privileged communications to state with appropriate specificity acceptable billing
entries. Tellingly, Judge Caputo illustrated a number of alternative phrasings that would have
sufficed in his Souryavong decision. For example, a single entry that states “TC with client
regarding documents opposing motion to dismiss” is entirely more appropriate than fifty
mysterious ones that state “TC with client regarding issue.” Second, Ms. Pollick herself has
put the propriety of those communications at issue after the litigation had already concluded
by submitting them as billable time on this fee petition. To that end, some general purpose of
the conversation ought to be revealed to ensure those entries were not improperly submitted.
Ms. Pollick contended at oral argument that Dee, Carey, Carroll, Lohman, and Souryavong
have nothing to do with the instant fee petition. I disagree—they have everything to do with
Ms. Pollick’s being on notice of her impermissible and excessive fee petitions.

- 97 -

proportions. Neither does Ms. Pollick submit any supporting documentation as to
the identity, qualifications, and expertise of her “legal researcher.” I do not know
who this individual is, whether, for instance, they are a paid employee or an intern.
Neither can I discern what issues they researched or what claims and defendants to
which that purported research pertained. For those reasons, I would deny Ms.
Pollick’s entries for “legal assistants” and “legal researchers” in full as well.
Complete denial of a fee petition is appropriate where the submitted fees are
so excessive, unreasonable, or vague that line-by-line revisions would be fruitless.
I note that this opinion follows within a week’s time of Judge Mannion’s in
Clemens v. New York Central Mutual Fire Ins. Co. In Clemens, Judge Mannion
denied in toto a fee petition in a civil rights case seeking one million dollars in fees
and costs for a $125,000.00 judgment.140 As the Third Circuit has stated, “If, after
following the proper procedures, the Court remains convinced that [the] hourly rate
and hours billed are outrageously excessive, it retains the discretion to award
whatever fee it deems appropriate, including no fee at all.”141 “When an award of
fees is permissive, denial is an appropriate sanction for requesting an award that is

140

2017 WL 3724236, at *2 (M.D. Pa. Aug. 29, 2017).

141

M.G. v. E. Reg’l High Sch. Dist., 386 F. App’x 186, 189 (3d Cir. 2010) (Hardiman, J.).

- 98 -

not merely excessive, but so exorbitant as to constitute an abuse of the process of
the court asked to make the award.”142
For instance, when a plaintiff’s counsel submits a claim that is “so
intolerably inflated,” district courts may “depart[ ] from the usual practice” and
“react vigorously to prevent such abuse.”143 Several courts of appeals have
recognized that district courts may deny a fee request in toto if the amount
requested is so excessive that it “shocks the conscience” of the court.144 Moreover,
courts have found the requisite special circumstances in cases where a party
exhibited “obstructive behavior” at trial;145 and where a party “burdened” defense
counsel and “disregarded the court’s instruction.”146 Denial of fees in toto was also
appropriate when “[f]rom the very beginning of this case, Plaintiffs’ counsel
conducted this litigation in a manner calculated to increase the opposing party’s

142

Budget Rent-A-Car Sys., Inc. v. Consol. Equity LLC, 428 F.3d 717, 718 (7th Cir. 2005)
(Posner, J.).

143

Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980).

144

See Brown, 612 F.2d at 1057; Lewis v. Kendrick, 944 F.2d 949, 957-58 (1st Cir.1991); Fair
Hous. Council of Greater Washington v. Landow, 999 F.2d 92, 97 (4th Cir. 1993). Our Court
of Appeals has noted that although it has applied this rule in prior cases, it recently explained
that it has not had occasionally to formally adopt it. See M.G. v. E. Reg’l High Sch. Dist., 386
F. App’x 186, 189 n.2 (3d Cir. 2010) (Hardiman, J.) (citing Hall v. Borough of Roselle, 747
F.2d 838 (3d Cir.1984)).

145

Wiercinski v. Mangia 57, Inc., 125 F. Supp. 3d 445, 447 (E.D.N.Y. 2015) (“If there ever was
a plaintiff who deserved no attorney’s fees at all that plaintiff is Adam Wiercinski.”) (citing
Farrar v. Hobby, 506 U.S. 103, 120 (1992) (“Just as a Pyrrhic victor would be denied costs
under Rule 54(d), so too should it be denied fees under § 1988.”).

146

Mahoney v. Kesery, 778 F. Supp. 1002, 1004 (E.D. Wis. 1991).

- 99 -

costs—and, at the same time, to increase the bases for Plaintiff’s own fee
petition.”147
This is not the first time in recent memory that an outlandish fee petition of
Ms. Pollick’s was denied in full. In fact, the Third Circuit in Carroll v. Clifford
Township denied fees altogether in a case litigated by Ms. Pollick before Judge
Mannion. Ms. Pollick’s client in Carroll rejected an offer of judgment of
$10,000.00 and ultimately recovered $1 in nominal damages at trial.148 Ms. Pollick
then requested over $111,000.00 in fees and costs.149 Judge Mannion held that
Plaintiff’s counsel was entitled to no fees pursuant to § 1988(b), reasoning that the
ultimate award was “a minute fraction” of that which was sought.150 The
Honorable Thomas I. Vanaskie, writing for the unanimous panel in Carroll,
affirmed, as the district court “applied the correct standard” and “did not abuse its
discretion.”151
In another chapter of the remarkably thick body of case law birthed from
Ms. Pollick’s own matters, our Court of Appeals has also held that rejected
settlement demands “can be relevant when comparing what a plaintiff ‘requested’

147

Countryman Nevada, LLC v. DOE, 193 F. Supp. 3d 1174, 1182 (D. Or. 2016).

148

625 F. App’x 43, 46 (3d Cir. 2015) (Vanaskie, J.).

149

No. 3:12-cv-00553, ECF No. 78 at

150
151

11.

Id.
Id.

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to what the plaintiff was ultimately ‘awarded.’”152 Ms. Pollick’s client in Lohman
turned down a $75,000.00 offer of judgment and was eventually awarded just over
$12,000.00 at trial based on a single claim.153 The Third Circuit affirmed Judge
Caputo’s reducing to $30,000.00 Plaintiff counsel’s nearly $115,000.00 fee
request.154 The unanimous panel cited directly from Judge Caputo’s discussion,
noting that Ms. Pollick “may have achieved a much greater level of success if [she]
had settled.”155 As the court explained, Ms. Pollick’s results “do not justify an
award of over sixty-thousand dollars ($60,000.00) as calculated by the lodestar,
and surely does not justify the requested fees of over one-hundred thousand dollars
($100,000.00).”156
Moreover, “[t]he concept of having reduced fees awarded based on partial
success is not a new one,” the Lohman court wrote.157 To the contrary, it is a “well
settled” facet of this Circuit’s fee-setting jurisprudence. In fact, it was a logical
extension from prior reductions for “limited success.”158 From the Third Circuit’s
perspective, “the thought that settlement discussions will not now occur because an

152

Lohman v. Duryea Borough, 574 F.3d 163, 167 (3d Cir. 2009).

153

Id. at 165.

154

Id. at 164.

155

Id. at 166.

156

Id.

157

Id. at 168.

158

Id. at 167

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attorney could be penalized if he or she achieves less than was demanded makes
little sense.”159 In fact, such a rule is calculated to “encourage reasonable and
realistic settlement negotiations.”160 As discussed more fully in the subsequent
section, however, Ms. Pollick’s fee submission makes no effort to separate time
spent on successful claims from unsuccessful ones. Neither does it acknowledge
that her “success” must be measured against her rejecting a $150,000.00 offer of
settlement.161
Taking all of these factors into consideration, it is my determination that
line-by-line reduction is inadvisable and that Ms. Pollick’s fee petition should be
denied in full. Her entries are vague and ambiguous and lack the requisite detail to
substantiate the propriety of her billed time. Her entries fail to establish their
relevance and do not make clear which defendants or claims that they correspond
to. They are also exceptionally duplicative of one another. Moreover, no effort was
made to filter out non-billable or non-recoverable time, and no adjustment was
made in light of Ms. Pollick’s limited nuisance-value recovery after turning down a
settlement many multiples greater. Instead, Ms. Pollick presented the Court with a
159
160
161

Id. at 168.
Id.
Ms. Pollick contests the existence of this settlement offer. Mr. Freund testified that he made
the verbal offer after speaking with Judge Kane during an earthquake break in the first trial.
Several witnesses recall this occurrence, it follows the pattern and paper trail of opposing
counsel’s written offers, and Ms. Pollick’s examination of Mr. Freund did nothing to smudge
his credibility. Accordingly, to the extent that a factual finding is even required, I find that
Ms. Pollick did in fact reject a $150,000.00 settlement offer earlier in this litigation.

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blatantly improper fee bill, after having been admonished for such conduct in the
past, and told the Court that it was its job to sort things out. Because my view is
that her fee bill is entirely improper, it will be denied in full. I now turn to the
imposition of sanctions.
D.

IMPOSITION OF SANCTIONS
1.

The Court Will Sanction Ms. Pollick Pursuant To Federal
Rule Of Civil Procedure 11 And 28 U.S.C. § 1927 Because
Her Fee Petition Seeks In Excess Of $727,000.00 For
Portions Of The Litigation That Were Necessitated By Her
Own Vexatious Conduct, As Against Defendants That She
Did Not Prevail, For Time Previously Held Unrecoverable
By Judges Of This Court And The Third Circuit, All
Relative To A Nuisance-Value Settlement Of $25,000.00.

That Ms. Pollick’s excessive fee petition merits sanctioning follows ipso
facto from its above-noted improprieties and the barefaced repetition of this very
type of unreasonable, unsupported, and vexatious conduct before this Court.
Nevertheless, I will now discuss imposition of sanctions under both Rule 11 and
§ 1927. Federal Rule of Civil Procedure 11 provides in pertinent part that:
(b) Representations to the Court. By presenting to the court a
pleading, written motion, or other paper—whether by signing, filing,
submitting, or later advocating it—an attorney or unrepresented party
certifies that to the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase the
cost of litigation;
(2) the claims, defenses, and other legal contentions are
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warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;
...
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to
respond, the court determines that Rule 11(b) has been violated,
the court may impose an appropriate sanction on any attorney,
law firm, or party that violated the rule or is responsible for the
violation.
...
(3) On the Court’s Initiative. On its own, the court may order an
attorney, law firm, or party to show cause why conduct
specifically described in the order has not violated Rule 11(b).
The Supreme Court and the Third Circuit have developed a consistent
jurisprudence as it pertains to Rule 11 Sanctions. “It is now clear that the central
purpose of Rule 11 is to deter baseless filings in district court and thus, consistent
with the Rules Enabling Act’s grant of authority, streamline the administration and
procedure of the federal courts.”162 “Rule 11 imposes a duty on attorneys to certify
that they have conducted a reasonable inquiry and have determined that any papers
filed with the court are well grounded in fact, legally tenable, and not interposed
for any improper purpose.”163 “[T]he rule emphasizes the duty of candor by
subjecting litigants to potential sanctions for insisting upon a position after it is no
162

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990).

163

Id. (internal quotations omitted).

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longer tenable.”164 “The word ‘sanctions’ in the caption . . . stresses a deterrent
orientation in dealing with improper pleadings, motions or other papers.”165 “[T]he
intended goal of Rule 11 is accountability.”166
“The standard for testing conduct under Rule 11 is reasonableness under the
circumstances.”167 “The rule imposes on counsel a duty to look before leaping and
may be seen as a litigation version of the familiar railroad crossing admonition to
‘stop, look, and listen.’”168 “It may be rephrased, ‘Stop, Think, Investigate and
Research’ before filing papers either to initiate a suit or to conduct the
litigation.”169 “These obligations conform to those practices which responsible
lawyers have always employed in vigorously representing their clients while
recognizing the court’s duty to serve the public efficiently.”170
“To comply with these requirements, counsel must conduct ‘a reasonable
investigation of the facts and a normally competent level of legal research to
support the presentation.’”171 “This standard is more stringent than the original

164

Ellis v. Beemiller, Inc., 287 F.R.D. 326, 347 (W.D. Pa. 2012) (internal citations and
quotations omitted).

165

Doering v. Union Cty. Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988).

166

Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988) (Weis, J.).

167

Teamsters Local Union No. 430 v. Cement Exp., Inc., 841 F.2d 66, 68 (3d Cir. 1988).

168

Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986) (Weis, J.).

169

Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987) (Weis, J.).

170
171

Id.
Mary Ann Pensiero, Inc., 847 F.2d at 94 (quoting Lieb, 788 F.2d at 157).

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good faith formula and thus it is expected that a greater range of circumstances will
trigger its violation.”172 “In applying this standard, the court is expected to avoid
using the wisdom of hindsight and should test the signer’s conduct by inquiring
what was reasonable to believe at the time the pleading, motion, or other paper was
submitted.”173 Rule 11 Sanctions are appropriate, for instance, “when the claimant
exhibits a deliberate indifference to obvious facts.”174
“Rule 11 sanctions should not be viewed as a general fee shifting device. By
and large federal courts are bound by the ‘American Rule,’ requiring parties to
shoulder their own legal expenses.”175 “Litigants misuse the Rule when sanctions
are sought against a party or counsel whose only sin was being on the unsuccessful
side of a ruling or judgment. Restated, Rule 11 sanctions awarding counsel fees do
not automatically or usually follow an adverse judgment or ruling. Substantially
more is required.”176 “Rule 11 is instead reserved for only exceptional
circumstances.”177 “Similarly, just as mere failure to prevail does not trigger a

172

Lieb, 788 F.2d at 157.

173

CTC Imports & Exports v. Nigerian Petroleum Corp., 951 F.2d 573, 578 (3d Cir.
1991) (Nygaard, J.).

174

Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998).

175

Gaiardo, 835 F.2d at 483 (citing Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S.
240 (1975)).

176

Gaiardo, 835 F.2d at 483.

177

Morristown Daily Record, Inc. v. Graphic Commc’ns Union, Local 8N, 832 F.2d 31, 32 (3d
Cir. 1987) (Weis, J.).

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sanction award, neither does advocating new or novel legal theories.”178 Courts
should not apply Rule 11 “to inhibit imaginative legal or factual approaches to
applicable law or to unduly harness good faith calls for reconsideration of settled
doctrine.”179 “The Rule seeks to strike a balance between the need to curtail abuse
of the legal system and the need to encourage creativity and vitality in the law.”180
Above all else, “[g]reater attention by the district courts to pleading and
motion abuses and the imposition of sanctions when appropriate, should
discourage dilatory or abusive tactics and help to streamline the litigation process
by lessening frivolous claims or defenses.”181 The Third Circuit and the Advisory
Committee Notes to Rule 11 have set forth certain factors useful in determining
whether an attorney’s conduct has violated Rule 11. Those factors include:
[H]ow much time for investigation was available to the signer;
whether he had to rely on a client for information as to the facts
underlying the pleading, motion, or other paper; whether the
pleading, motion, or other paper was based on a plausible view of
the law; [ ] whether he depended on forwarding counsel or another
member of the bar; [and] whether [one] is in a position to know or
acquire the relevant factual details.182

178
179

Gaiardo, 835 F.2d at 483.
Id.

180

Id. at 483–84.

181

Fed. R. Civ. P. 11 Advisory Committee Notes to 1983 Amendment.

182

Fed. R. Civ. P. 11 Advisory Committee Notes to 1983 Amendment; CTC Imports & Exports,
951 F.2d at 578.

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Once a violation of Rule 11 has been established, a district court “has
discretion to tailor sanctions to the particular facts of the case.”183 “The court has
available a variety of possible sanctions to impose for violations, such as striking
the offending paper; issuing an admonition, reprimand, or censure; requiring
participation in seminars or other educational programs; ordering a fine payable to
the court; referring the matter to disciplinary authorities . . . , etc.”184 “The basic
principle governing the choice of sanctions is that the least severe sanctions
adequate to serve the purpose should be imposed.”185 Thus, the appropriate
sanction must still achieve Rule 11‘s central purpose: “deterrence of frivolous
lawsuits.”186 To that end, federal courts in the Third Circuit’s venire and the
Advisory Committee Notes to Rule 11 have also set forth certain factors useful in
determining the appropriate sanction for a violation of Rule 11. They include:
Whether the improper conduct was willful, or negligent; whether it
was part of a pattern of activity, or an isolated event; whether it
infected the entire pleading, or only one particular count or defense;
whether the person has engaged in similar conduct in other litigation;
whether it was intended to injure; what effect it had on the litigation
process in time or expense; whether the responsible person is trained
in the law; what amount, given the financial resources of the
responsible person, is needed to deter that person from repetition in
183

Doering, 857 F.2d at 194.

184

Fed. R. Civ. P. 11 Advisory Committee Notes to 1993 Amendment (“Since the purpose
of Rule 11 sanctions is to deter rather than to compensate, the rule provides that, if a
monetary sanction is imposed, it should ordinarily be paid into court as a penalty.”).

185

Doering, 857 F.2d at 194.

186

See id. at 193.

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the same case; what amount is needed to deter similar activity by
other litigants: all of these may in a particular case be proper
considerations.187
A similar decision framework, which seeks to punish and deter vexatious
behavior, is set forth at Title 28 United States Code, Section 1927. That section
provides as follows:
Any attorney or other person admitted to conduct cases in any court of
the United States or any Territory thereof who so multiplies the
proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such conduct.
To that end, the trial court “has broad discretion in managing litigation
before it,” and “the principal purpose of imposing sanctions under 28 U.S.C. §
1927 is the deterrence of intentional and unnecessary delay in the proceedings.”188
“As is evident from the text of the statute, § 1927 requires a court to find an
attorney has (1) multiplied proceedings; (2) in an unreasonable and vexatious
manner; (3) thereby increasing the cost of the proceedings; and (4) doing so in bad
faith or by intentional misconduct.”189 “Indications of this bad faith are findings
that the claims advanced were meritless, that counsel knew or should have known

187

Fed. R. Civ. P. 11 Advisory Committee Notes to 1993 Amendment. See also In re Cendant
Corp. Derivative Action Litig., 96 F.Supp.2d 403, 407–08 (D.N.J. 2000). Because it will
impose monetary sanctions, the Court must also consider the Doering factors as set forth
at 857 F.2d at 195–97. Those factors are considered throughout this Memorandum.

188

Zuk v. Eastern Pennsylvania Psychiatric Institute, 103 F.3d 294, 297 (3d Cir.1996).

189

In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 278 F.3d 175, 188 (3d Cir.
2002) (citing Williams v. Giant Eagle Markets, Inc. 883 F.2d 1184, 1191 (3rd Cir.1989)).

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this, and that the motive for filing the suit was for an improper purpose such as
harassment.”190 Because § 1927 addresses the impact conduct has on the
proceedings, sanctions that are imposed under § 1927 should correspond to the
costs and expenses resulting from the vexatious conduct.191
That sanctions are warranted for prosecuting this fee petition in a vexatious
manner is the only conclusion supported by the facts. Indeed, this litigation has
lingered in excess of an additional year since Ms. Pollick accepted the Defendant’s
Rule 68 offer of judgment. That interim time was expended on briefing extensions
and the work of defense counsel and this Court in parsing out Ms. Pollick’s 44page, thousand-entry fee petition. I regret that this matter has persisted so long, but
our system rather prefers justice delayed over justice denied, and whatever delay
Ms. Pollick has suffered was entirely a setback of her own making. Although I was
taken aback by Ms. Pollick’s initial demands, I deemed it appropriate to review her
entire fee petition, her history of fee petition cases, and the procedural history of
this matter before a show cause hearing was scheduled. As the transcript reveals,
an important purpose of that hearing was to question Ms. Pollick on the record in
light of her flaunting the above-referenced authorities.

190

In re Prudential, 278 F.3d at 188 (quoting Smith v. Detroit Fed’n of Teachers Local 231, Am.
Fed. of Teachers, AFL–CIO, 829 F.2d 1370, 1375 (6th Cir.1987)).

191

See Martin v. Brown, 63 F.3d 1252, 1264 (3d Cir.1995).

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It is uncontroverted that “counsel multiplies the proceedings vexatiously
when [her] conduct requires the court to spend a considerable amount of time
dealing with the consequences of that conduct, including in an evidentiary hearing
regarding sanctions.”192 That is precisely the case here. Despite giving every
benefit of the doubt to Ms. Pollick, including allowing her an opportunity to file an
amended fee petition, to allow her an opportunity to explain herself at a show
cause hearing, and first attempting to conduct a line-by-line review of her entries,
Ms. Pollick has chosen to reject those opportunities and sap the resources of this
Court and taxpayer dollars by placing the burden on the Court to mine through her
thousands of cumbersome entries to discover those gems that could properly be
billed. Indeed, she took this path knowing that I intended to sanction her if she did
not submit an amended petition.
Truth be told, it is difficult to envision hypothetical conduct more vexatious
in federal court than that exhibited here by Ms. Pollick. Her conduct has given rise
to a malignant chapter of this already-prolonged litigation. Not only that, but it has
also drained the resources of opposing counsel, John E. Freund, III, Esquire, whose
submissions have been exceedingly helpful to this Court and who has exhibited
nothing but the highest levels of professionalism in response to Ms. Pollick’s
unstable behavior.
192

Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1266 (11th Cir. 2007).

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That Ms. Pollick’s conduct exhibited the level of “bad faith” required to
impose sanctions under § 1927 is also evident. In fact, the disputed fee petition was
submitted exactly five months after another member of this Court reprimanded her
and cut all vague and cryptic entries from a proposed petition, less than a year after
the Third Circuit affirmed a complete denial of her fees as disproportionate to her
recovery, and within a few years following a similar affirmance of a district court’s
order that cut her fees as disproportionate in light of rejected settlement offers.
Neither should it surprise Ms. Pollick that substantial authority existed on the
impropriety of billing for time that her own misconduct necessitated. This is
plainly a situation where counsel knew what she was about to do was wrong, but
she went ahead and did it anyway. Therefore, this case and conduct fall squarely
within the crosshairs of § 1927 and Rule 11.
The argument for sanctions under Rule 11 is equally as strong as that under
§ 1927. In one sentence, I would summarize that Ms. Pollick is being sanctioned
under Rule 11 because she plopped a dog’s-breakfast fee petition on this Court’s
doorsteps, and she knew what she was trying to extort did not rightly belong to her.
How did she know her representations to the Court were unsupported by law or
fact? Of course, the record indicates the Ms. Pollick is responsible for generating
her own fee bill jurisprudence, in which this Court and the Third Circuit has

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repeatedly shrunk her fee bills or denied them all together, warning on several
occasions that her requests were imaginative and unsupported by her performance.
As referenced earlier, perhaps the most troubling facet of this petition is that
Ms. Pollick submitted it approximately five months having been sternly
reprimanded by Judge Caputo in a distinct action before this Court for submission
of entries that were vague, duplicative, and impermissible. Several of the entries in
this case corresponded word-for-word with those stricken by Judge Caputo. I now
delve more deeply into the details of the warnings that Ms. Pollick previously
disregarded. For example, Judge Caputo included an entire paragraph in
Souryavong devoted to “Cryptic and Vague Entries.” After citing a body of case
law from the Third Circuit, Judge Caputo explains as follows:
Here, Plaintiffs’ bare-boned entries are too vague for a court to fairly
determine if the hours claimed are reasonable for the work performed.
Plaintiffs could have added a general description of the work
performed without going into great detail and divulging attorneyclient privilege so that this Court could fairly determine whether the
corresponding number of hours billed were reasonable. For example,
instead of submitting pages and pages of time entries stating “TC
from Nelson regarding case,” or “Legal research for case,” Plaintiffs
could have submitted entries such as “TC from Nelson regarding
MTD,” or “Legal research for FLSA claim.” Neither of these entries
reveal attorney-client privilege, yet would be specific enough for me
“to determine if the hours claimed are unreasonable for the work
performed.”193

193

Souryavong, 159 F. Supp. 3d at 533. That Souryavong is presently on appeal does not alter
my decision in any way. To the contrary, I simply feature Souryavong because it is one of the
most recent of several prominent decisions concerning denial or ratchetting back of Ms.

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Judge Caputo also cited to several prior cases in which he had “deducted
time from Attorney Pollick’s submitted entries based on lack specificity,” included
his decision in Dee v. Borough of Dunmore.194 He also quoted from Wales v. Jack
M. Berry, Inc.195 Judge Caputo described that case—indeed quoted from it— as
follows “sustaining any objection to an entry referring to a conference, a telephone
call, or the like . . . if the entry does not identify the subject of the communication,
because while it is not expected that discussions or other messages should be
particularized in detail, it is easy enough to add a couple of words regarding the
subject matter of the communication in order to show that it is compensable—if it
is.”196
Despite that lengthy explanation by Judge Caputo, several of Ms. Pollick’s
preliminary entries in this case could be taken verbatim from her petition in
Souryavong, save for the names of each client:
5/7/2007: “TC from Patti regarding situation”
5/10/2007: “TC with Patty regarding issues”
5/11/2007: “TC from Patty regarding situation”
5/14/2007: “TC from Patty regarding situation”
8/10/2007: “TC with Patti discussing case”
Pollick’s fee petitions. So too does it appear that the appellate disputes in Souryavong center
on merits issues on not on Judge Caputo’s discretionary fee determinations.
194
195
196

See id.
See id. (citing 192 F.Supp.2d 1313, 1318–19 (M.D.Fla.2001)).
See id.

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I asked Ms. Pollick whether she had read Judge Caputo’s decision (and a
number of other decisions pertaining to these type of cryptic and vague entries,
including Lohman, Dee, Carroll, and Carey), and she admitted that she had. So, I
asked why she submitted these improper entries yet again, and quite strikingly, she
answered that she could she submit any entries, regardless of their propriety and
that it was opposing counsel’s and the Court’s job to challenge and trim those
entries back. If they failed to do so, Ms. Pollick apparently believed that she would
be entitled to a $727,000.00 windfall.
That is not how either civil rights cases or Rule 11 works. Civil rights cases
are not sweepstakes tickets, and Rule 11 requires that all motions submitted for the
Court’s consideration be grounded in good law and truthful facts, not pure
imagination or wishful thinking. That Ms. Pollick submitted the instant petition
without even revising her own entries and that she did so after having been warned
and placed on notice several times by members of this Court or the Third Circuit of
the impropriety of such conduct—and after other Rule 11 and sanctions motions
had previously been brought against her—establishes that monetary sanctions are
the minimum possible penalty necessary for deterring future misconduct by Ms.
Pollick. Obviously, verbal warnings have no effect on Ms. Pollick’s vexatious

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behavior. I repeat: “Suffice it to say, [Ms. Pollick] is simply not getting the
message.”197
So too are sanctions warranted for Ms. Pollick seeking compensation for
portions of this case that were necessitated by her own misconduct at trial and for
time spent prosecuting her case against defendants and for claims upon which she
did not prevail. “Case law is clear that where an attorney, for an improper purpose,
disregards applicable law and pushes a claim in the absence of supporting facts,
bad faith is evident and sanctions are appropriate.”198 The rule set forth in Shott and
followed by every circuit court to have addressed the issue is crystal clear: counsel
may not recover for additional time necessitated by her own misconduct. The
justification for this rule, which seeks to prevent perverse incentives, is obvious:
should courts rule to the contrary, counsel would be misbehaving and causing
mistrials all along, with the cockeyed hope that an eventual fee bill might include
time for three trials instead of one.
The same is true of time spent on unsuccessful claims or as to defendants
against whom the Plaintiff did not prevail. In Rode v. Dellarciprete, a decision
from 1990, the Third Circuit made clear that such hours are properly excluded

197

198

Keister v. PPL Corp., 318 F.R.D. 247, 254 (M.D. Pa. 2015) (imposing $116,000.00 sanction
for Rule 11 violation), aff’d, Keister v. PPL Corp., 677 F. App’x 63 (3d Cir. 2017) (Fisher,
J.).
Alphonso v. Pitney Bowes, Inc., 356 F. Supp. 2d 442, 454 (D.N.J. 2005).

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when they are “sufficiently separable from the rest of the litigation.”199 The panel
in Rode upheld the exclusion of such time where “[t]he hours worked on those
motions did not further successful claims; rather, the time was spent solely on
unsuccessful claims.”200 Those are precisely the circumstances that Ms. Pollick
faces here, and her flaunting these authorities establishes the improper purposes of
her outlandish fee petition. That she failed to conduct an inquiry into the facts and
the law as required by Rule 11 is apparent. Not only did she neglect as much, but
she willfully ignored these authorities with which she had been confronted
numerous times in the past.
At bottom, the remaining claim is a unique hostile educational environment
claim brought against a lone teacher. As I reiterated at numerous pretrial junctures
while disposing of the eleven motions in limine occasioned by Ms. Pollick’s prior
trial conduct, “[t]he sole remaining claim, creation of a hostile educational
environment based upon sex, is an exceedingly narrow one.”201 As such, in
excluding numerous pieces of evidence, I emphasized that the elements of the
present claim were neither furthered or countered by the conduct of the other
Defendants or the disposition of the other claims—most of which related to a
distinct First Amendment retaliation against the school district and certain of its
199
200
201

892 F.2d 1177, 1186 (3d Cir. 1990).
Id.
Young v. Smith, No. 3:07-CV-00854, 2016 WL 3522965, at *1 (M.D. Pa. June 28, 2016).

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officials. Those claims where wholly unrelated, and they therefore well surpass the
“sufficiently separable” test.
Quite plainly, I would also point out that the Third Circuit has previously
affirmed a grant of summary judgment, a grant of a new trial, and my instructions
at trial involving all other defendants and claims. In the same decision, the Third
Circuit reversed my grant of summary judgment as to the only remaining
defendant and the only remaining claim. Those decided claims and prevailing
Defendants must have been “sufficiently separable,” as the Third Circuit’s
decisional pattern confirms that the remaining claim’s survival was not legally or
factually dispositive as to any of those previously decided or vice versa. Otherwise,
a final trial on each of those claims and as against all of the Defendants would have
been necessary—not just this exceptionally limited one.
The same is true of the bounty of administrative tasks for which Ms. Pollick
has billed, her billing of time associated with excluded experts and stricken
evidence, as well as her inflated and duplicative costs associated with researchers
and other staff. These entries are all inadmissible under established law, and these
entries have all been deemed inadmissible in prior fee decisions involving Ms.
Pollick. It was Ms. Pollick, not defense counsel or the Court, who chose to look the
other way.

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One might respond that outright denial of her petition is a sufficient penalty
and that I should give Ms. Pollick a stern warning before sending her on her way. I
could not disagree more, and I suspect that other current and former judges of this
Court who have presided over cases involving Ms. Pollick (some of whom
presently sit on our Court of Appeals) would hold a similar perspective.
Disapproving warnings have been tried before. So too have outright denials of her
fee petitions. The outcome was a disappointing one: perhaps the most improper of
all of Ms. Pollick’s fee petitions has ended up before me after the remedial efforts
of my colleagues in Carroll and Souryavong. I am thus assured that monetary
sanctions are proper, and it was Ms. Pollick who, through her own disrespectful
and vexatious conduct, confirmed as much.
Contrary to Ms. Pollick’s protestations, sanctions beyond outright denial of
fees are available to redress excessive fee petitions, especially where the offending
counsel was previously put on notice of the unreasonableness of her conduct. In
TMF Tool Co. v. Muller, for example, the Seventh Circuit confirmed that “conduct
in submitting the fee petition” could fall “independently within the scope of the
provisions of Rule 11.”202 Indeed, Rule 11 sanctions in such circumstances are
appropriate so long as the district court makes “some conclusive finding that the

202

913 F.2d 1185, 1192 (7th Cir. 1990).

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fees requested are in fact excessive to a point which warrants the imposition of
sanctions.”203
Accordingly, with all of those considerations in mind, I will impose
$25,000.00 in monetary sanctions under both § 1927 and Rule 11. Because those
sanctions stem from the same violative conduct, I will set them to run concurrently,
for a total penalty of $25,000.00. I select that number because it is a reasonable
approximation of the billable time and costs that a defense firm would expend to
challenge Ms. Pollick’s fee petition and to prepare and appear for the show cause
hearing, beyond those costs that reasonably would be incurred on a standard fee
motion, together with the value of the time that the Court and its staff have devoted
to this portion of the litigation.204 The $25,000.00 sanction will be paid to the Clerk
of Court.205

203

See id.

204

See, e.g., Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996)
(affirming $25,000 sanction under Rule 11 where “the person who signed the pleadings
should have been aware that they were frivolous”); MHC Inv. Co. v. Racom Corp., 323 F.3d
620, 623 (8th Cir. 2003) (affirming sua sponte imposition of $25,000 sanction under Rule 11
where counsel “violated Rule 11 by pursuing frivolous defenses and claims with the purpose
of delaying [resolution]”); Iris Connex, LLC v. Dell, Inc., 235 F. Supp. 3d 826, 856 (E.D.
Tex. 2017) (imposing $25,000 sanction under rule 11 where counsel’s argument was
“divorced from the specification and claim language, ignored the file history, contravened
[prevailing] law, relied heavily on extrinsic evidence to the exclusion of the intrinsic
evidence, and asked the Court to adopt a construction that simply did not make any sense”).

205

I have taken into account that Ms. Pollick is a sole practitioner and that consideration does
not alter my determination in any way. As I explained in Keister, a decision affirmed by the
Third Circuit, sole practitioner status, as described in Doering v. Union Cty. Bd. of Chosen
Freeholders, 857 F.2d 191 (3d Cir. 1988), “cannot be wielded by sole practitioners as
immunity against Rule 11 sanctions ad infinitum.” Keister v. PPL Corp., 318 F.R.D. 247, 272

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2.

Ms. Pollick’s Objections Regarding Notice And The
Pensiero Supervisory Rule Are Meritless On These Facts,
Are Unsupported By Prevailing Third Circuit Law, And
Are Therefore Overruled.

When given the opportunity to raise additional points of argument in
supplemental briefing, Ms. Pollick submitted a stream-of-consciousness response
comprised of approximately 15 distinct arguments. Because most of those
arguments relate to simple lodestar issues and have already been discussed in the
prior sections, I focus on two procedural objections. The first is Ms. Pollick’s
contention that fee petitions in civil rights actions can never be the subject of Rule
11 sanctions because they necessarily are filed after the entry of judgment. The
second argument is that Ms. Pollick lacked sufficient notice as to the reasons that
motivated my decisions to impose sanctions. Neither argument is availing on the
facts of this case.

(M.D. Pa. 2015). In fact, Keister and Young suggest that sole practitioners may lack partners
because other lawyers are uncomfortable building professional associations with the
offending lawyer. As the Third Circuit explained in its affirmance, distinguishing Doering:
This Court has held that monetary sanctions are meant to serve as a deterrent
and are inappropriate if they are so great that they are punitive. Given Russo's
history of sanctions for similar conduct and the court's previous “leniency
because of his status as a sole practitioner,” the District Court concluded that
Russo's “alleged financial circumstances simply do not outweigh the need for
adequate deterrence in this case.” On appeal, Russo reasserts the same bare
statement he made to the District Court—namely, that he is a sole practitioner.
We do not find that the awards amount to an abuse of discretion, especially
where Russo failed to present evidence of actual inability to pay or that the
sanctions would cause him to suffer undue hardship.
Keister v. PPL Corp., 677 F. App’x 63, 69 (3d Cir. 2017) (Fisher, J.). The same reasoning
prevails here.

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Ms. Pollick contends that sanctions based on a vexatious fee petition are
never proper, as judgment will often have already been entered in such cases. That
argument not only leads to the apparently absurd result that federal judges lack the
power to redress vexatious fee petitions, but so too does it misperceive the Third
Circuit’s Pensiero rule and its non-application to sanctions levied pursuant to
§ 1927.
First, Ms. Pollick’s argument conflates the difference between entry of
judgment on the merits and subsequent disposition of collateral matters, such as fee
petitions, sanctions, or contempt hearings. By way of illustration, a key premise
underlying the Third Circuit’s decision in Pensiero was that district courts retained
jurisdiction “even after an appellate affirmance on the merits, to award attorney’s
fees under Rule 11 and other statutory fee provisions.”206 This was true because
“a Rule 11 motion is ‘uniquely separable’ and collateral from the decision on the
merits.”207
In fact, the Third Circuit in Pensiero heavily relied upon the Supreme
Court’s decision in White v. New Hampshire Dep’t of Employment Sec., as just
quoted, which decision makes clear that consideration of a post-judgment fees or
sanctions motion is reserved to the sound discretion of the district court and is

206

Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 98 (3d Cir. 1988).

207

Id. (quoting White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 452 (1982)).

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procedurally defunct only if it “unfairly surprises or prejudices the affected
party.”208 The United States Court of Appeals for the Fourth Circuit, interpreting
White, observed that “[i]n the absence of an applicable local rule in the district
court, the only time limitation arises out of those equitable considerations that a
district judge may weigh in his discretion.”209 The Third Circuit’s decision in
Pensiero also placed significant emphasis on the Fourth Circuit’s decision in
Hicks.
Just as importantly, concerns over piecemeal review that animate the
Pensiero rule dissipate entirely where, as here, the underlying action is resolved by
way of a settlement before sanctions are imposed. In such cases, pre-settlement
rulings unrelated to sanctions are unappealable, because “[s]imply stated, a case is
moot when the issues presented are no longer ‘live.’”210 Thus, no threat of
piecemeal review exists: either the post-settlement fee ruling will be appealed or it
won’t—nothing more.
The leading case on point is In re Schaefer Salt Recovery, Inc., an opus
written by the Honorable Maryanne Trump Barry confirming that the Pensiero
rule, which encourages the filing of sanctions motions prior to the entry of final
judgment, is inapplicable to sanctions under § 1927 and nevertheless is not violated
208

455 U.S. at 454.

209

Hicks v. S. Maryland Health Sys. Agency, 805 F.2d 1165, 1167 (4th Cir. 1986).

210

Powell v. McCormack, 395 U.S. 486, 496 (1969).

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in the absence of piecemeal appeals.211 Joining its sister circuits, the panel in
Schaefer Salt explained, “We, too, conclude that, to the extent the supervisory rule
remains viable, it does not apply where sanctions are sought under § 1927.”212
Thus, not only did the panel make clear that the Pensiero rule did not apply to
sanctions under § 1927, but it also called that supervisory rule’s continued
existence into question.
This was the case, Judge Barry wrote, because the supervisory rule “was
justified to eliminate piecemeal appeals” and therefore only applied “where
[sanctions] motions arise out of conduct that occurred prior to the final
judgment.”213 In other words, where, as here, sanctionable conduct occurs after the
entry of final judgment and with no threat of piecemeal review, it would be absurd
for the supervisory rule to shield that counsel’s improprieties from retribution.
The Third Circuit again took this exact stance in Schering Corp. v. Vitarine
Pharmaceuticals, Inc.214 A preliminary question in Schering was “whether the
district court had jurisdiction to impose Rule 11 sanctions after the plaintiffs had
voluntarily dismissed the action.”215 “We hold the district court had jurisdiction to
entertain and decide the Rule 11 motion after defendants suffered a voluntary
211

542 F.3d 90 (3d Cir. 2008).

212

Id. at 102.

213

Id. at 97.

214

889 F.2d 490 (1989) (Cowen, J.).

215

Id. at 494.

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dismissal.”216 To hold otherwise would “emasculate Rule 11,” the court
reasoned.217
In reaching that conclusion, the panel noted that “the majority of circuit
courts that have examined the issue” were in agreement.218 A key consideration for
the Third Circuit in Schering was that voluntary dismissals removed all but
collateral issues from the district court’s jurisdiction, thereby eliminating the risk
of piecemeal merits and collateral appeals.219 It wrote as follows: “Nonetheless, a
district court, after entry of a final judgment and filing of a notice of appeal, retains
the power to adjudicate collateral matters such as applications for counsel fees,
West v. Keve, 721 F.2d 91, 95 n. 5 (3d Cir.1983), and motions for sanctions under
Rule 11, Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 98 (3d Cir.1988).”220
When Judge Barry later discussed Schering decision in her Schaefer Salt
opinion, she again emphasized that because such cases presented no risk of
piecemeal appeals, the imposition of post-judgment sanctions did not run afoul of
the Pensiero rule:
In Schering, we did not even mention the supervisory rule and the
prudential reasons underlying that rule, much less did we find that
sanctions were barred even though the motion for sanctions was filed
216
217

Id. at 496.
Id.

218

Id. at 494.

219

See id. at 494–95.

220

Id. at 495.

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almost one and one-half months after the filing of the notice of
dismissal. Presumably we did not find the supervisory rule worthy of
mention because where there is a voluntary dismissal, there is no
danger of piecemeal appeals and no future conduct to deter, the
predominant justifications for the rule.221
So too are the following decisions in accordance: Grider v. Keystone
Health Plan Cent., Inc., 580 F.3d 119 (3d Cir. 2009) (where parties settled
underlying class action, only district court’s sanctions decision was
appealable, and panel therefore saw “no basis to remand”); Praxis
Properties, Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49 (3d Cir. 1991)
(review of district court’s rulings post-settlement requires “an exception to
the general mootness rule” because resolution of appeal would “have no
direct, practical effect on the parties”). Plaintiff’s scattershot briefing fails to
explain the inapplicability of these authorities. Rather, despite my citing
them at oral argument and in docketed Orders, they appear in her papers
with disappointing infrequency, if at all.
The decision by our Court of Appeals in Simmerman v. Corino does not
contradict this established line of authority.222 Simmerman is as much a case about
avoiding piecemeal appeals as it is about a sua sponte sanctions decision. In fact,
the sanctions order at issue in Simmerman was entered after the underlying grant of

221

542 F.3d at 89.

222

27 F.3d 58 (3d Cir. 1994).

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summary judgment had already been appealed.223 The Third Circuit therefore was
forced to enter two piecemeal decisions within six months of one another in
Simmerman: one affirming the district court’s summary judgment decision in
December 1993 and a second in June 1994 evaluating the propriety of its entry of
sanctions.224 In the Simmerman’s court’s own words, the Pensiero rule is “aimed at
eliminating piecemeal review.”225 Thus, because of the “the undesirability of
separate appeals concerning merits and fee questions,” the sanctions in Simmerman
were vacated.226
Simmerman was decided on an additional ground not applicable here. There,
the court recognized that “[a]t the time that the court decided the motions for
summary judgment and dismissal, it had before it the identical information that it
relied upon three months later in imposing the sanctions. Nothing was to be gained
by delay.”227 That could not be farther from the truth here. The propriety of Ms.
Pollick’s fee petition was not evident to the Court (or defense counsel) prior to my
entering judgment under Federal Rule of Civil Procedure 68 pursuant to the
parties’ settlement agreement—of course, her fee petition did not even exist at that
time. As Judge Barry reiterated in Schaefer Salt, cases like Pensiero and
223

See id. at 60–61.

224

Id. at 60–61.

225

Id. at 63.

226
227

Id.
Id.

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Simmerman only bar sanctions that “arise out of conduct that occurred prior to the
final judgment.”228 Otherwise, post-judgment conduct such as excessive fee
petitions, contemptuous conduct, or willful breaches of settlement agreements
would always be shielded.229
So too do the law and the facts belie Ms. Pollick’s notice argument. The
normative thread that runs through the Third Circuit’s notice case law centers on a
worthy objective: it “(1) must be reasonably calculated to inform recipients of the
availability of a hearing, and (2) must offer recipients the opportunity to prepare
adequately for that hearing.”230
For example, in a decision captioned In re Prudential Ins. Co. Am. Sales
Practice Litig. Agent Actions, the Third Circuit upheld a district court’s imposition
of monetary sanctions under § 1927 where counsel received written notice that

228

542 F.3d at 97.

229

Certain assumptions critical to its holding may call Simmerman into question. For one, the
panel in that case noted that “sua sponte imposition of sanctions cannot serve the intent of
Rule 11.” I find it difficult to square that observation with the clear text of Rule 11’s most
recent amendment, which expressly provides at subpart (3), entitled “On the Court’s
Initiative,” that “[o]n its own, the court may order an attorney, law firm, or party to show
cause why conduct specifically described in the order has not violated Rule 11(b).”
Moreover, the court acknowledged in a footnote that one defendant actually had filed a Rule
11 motion prior to the entry of judgment. Id. at 61 n.3 (“Defendant Dr. Anne Burgess filed a
motion for fees and Rule 11 sanctions on August 14, 1992, two months prior to the court’s
dispositive ruling.”). It also acknowledged that other defendants submitted a fee petition
pursuant to 42 U.S.C. § 1988. Id. at 61. Thus, it is further unclear that the reasoning
contained in Simmerman would survive the Third Circuit’s “same conduct” notice holdings
in Schaefer Salt, Prudential, and Keister, to which I now turn.

230

Mayhew v. Cohen, 604 F. Supp. 850, 856 (E.D. Pa. 1984) (citing Memphis Light, Gas &
Water Div. v. Craft, 436 U.S. 1, 13 (1978)).

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sanctions were sought “for unreasonably and vexatiously multiplying the
proceedings in this matter, and seeking payment . . . of the excess costs, expenses
and attorneys’ fees reasonably incurred.”231 In fact, the Third Circuit in Prudential
reasoned that “all parties were given ample notice of what behavior was in
dispute,” because “the questions posed at oral argument afforded to the parties an
inkling of the Court’s concerns about what behavior might be objectionable,” and
“each party was able to listen at oral argument to the concerns voiced by the
other.”232 “Surely,” the court concluded, “each side was on particularized notice of
what behavior and actions were at issue.”233 As was the case here, counsel in
Prudential “were also given at least four opportunities to be heard,” including
formal and letter briefing, oral argument and rebuttal, and supplemental briefing
following the argument.234
More recently, in Keister v. PPL Corp., the Honorable D. Michael Fisher,
writing for a Third Circuit panel that included the Honorable Thomas I. Vanaskie
and the Honorable Cheryl Ann Krause, expressly rejected for a second time the
argument that imposition of sanctions under either of two provisions for “the same
conduct” prejudices the respondent where an initial scheduling order identifies that

231
232
233
234

278 F.3d 175, 191 (3d Cir. 2002).
Id.
Id.
Id.

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conduct and lists only one of the two provisions.235 In particular, the court in
Keister rejected an attorney’s argument that sanctions in the form of could be
imposed under Federal Rule of Civil Procedure 54, even though an initial
scheduling order only mentioned Federal Rule of Civil Procedure 11.236 “First,” the
panel explained, “the same conduct gave rise to the Rule 11 and Rule 54
motions.”237 “Second,” it continued, “during the Rule 11 hearing, Russo
affirmatively opted to respond to the Rule 54 motion.”238 By extension, then, the
offending attorney “cannot plausibly argue that he was prejudiced by his own
consent to address the Rule 54 motion during the Rule 11 hearing.”239
The Third Circuit’s reasoning in Keister applies with equal force here. In my
view, not even the slightest ray of light could cut between the arguments presented
by the attorney in Keister then and those that Ms. Pollick offers now. The Rule 11
and § 1927 sanctions undoubtedly stem “from the same conduct”—that is an
uncontested admission at this point. Even more, however, not only did Ms. Pollick
consent and respond to my § 1927 questions at the sanctions hearing, but she also
was afforded the opportunity to submit supplemental briefing, which she also
consented to and duly submitted.
235

677 F. App’x at 69.

236

Id. at 68–69.

237

Id. at 69.

238
239

Id.
Id.

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Apart from all of the legal considerations, reasonable notice is also a knowit-when-you-see-it concept.240 In light of the foregoing case law, I will therefore
recount the notices and opportunities to be heard that were afforded to Ms. Pollick.
On June 20, 2017, this Court scheduled a July 13, 2017 evidentiary hearing and
oral argument on counsel for Plaintiff’s Motion for Fees, and this Court’s related
sua sponte determination that sanctions might result following the Court’s further
review of this matter.241 The Order provided Plaintiff’s counsel with
“particularized notice,” because it included “the particular factors that [s]he must
address if [s]he is to avoid sanctions.”242 Specifically, that Order stated as follows
at Paragraph 4:
In addition, at the time of the hearing, both parties should be prepared
to address whether counsel for Plaintiff’s fee request in excess of
$727,000.00, which seeks fees and costs for portions of the litigation
that were necessitated by her own vexatious conduct, as against
defendants that she ultimately did not prevail, for certain expenses
previously held unrecoverable by judges of this Court, and relative to
a total settlement of $25,000.00, violates Federal Rule of Civil
Procedure 11.

240

See, e.g., Jones v. Pittsburgh Nat. Corp., 899 F.2d 1350, 1357 (3d Cir. 1990) (contrasting
scenario where counsel was not put on notice “until he received the court’s order . . . actually
imposing sanctions” with that in which counsel “prior to sanctioning” is provided “notice and
some occasion to respond”).

241

ECF No. 652. As discussed briefly in a prior section, I note that Ms. Pollick has strenuously
objected to my holding of that hearing, which would appear to cut against the logic of her
due process argument.

242

Jones v. Pittsburgh Nat. Corp., 899 F.2d 1350, 1357 (3d Cir. 1990).

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In addition to citing Rule 11, that Order made clear sanctions may be imposed for
Plaintiff counsel’s “vexatious conduct,” which conduct is the cornerstone of any
sanctions determination under 28 U.S.C. § 1927.
During the oral argument and evidentiary hearing, I heard approximately a
half-day of testimony and argument. At several junctures, Ms. Pollick consented to
my questions about the imposition of sanctions pursuant to § 1927 for vexatious
conduct. In fact, counsel for Plaintiff contested on numerous occasions throughout
her oral argument that her conduct was vexatious as contemplated by § 1927. And
at one point, we even read through the text of the pertinent sanction provisions for
the record.
Moreover, contrary to Ms. Pollick’s misrepresentations at oral argument, my
June 20, 2017 Order was not the first occasion upon which the issue of sanctions
for Plaintiff counsel’s meritless and vexatious fee petition was raised. Indeed,
despite not filing a separate Rule 11 motion, defense counsel highlighted the
propriety of sanctions in its responsive papers to Plaintiff counsel’s fee petition,
devoting a full section of its argument to the following contention:
Plaintiff’s demand for fees for the second trial, where Defendant
Smith was not a party, should be the basis for sanctions, a denial of
fees, or an overall reduction in fees.243

243

ECF No. 642 at 21–22.

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That section specifically states that “[u]nder Fed. R. Civ. P. 11(b), by presenting a
paper to this Honorable Court, Plaintiff’s counsel certifies that, to the best of her
knowledge, the legal contentions are warranted under existing law.”244 In fact,
counsel for the Defendant in its opposition brief to Plaintiff counsel’s fee petition
quoted directly from my 2016 decision imposing Rule 11 sanctions, in which I
stated that such sanctions may be appropriate to deter “vexatious conduct” on the
part of an attorney who “is simply not getting the message.”245
Moreover, in a July 10, 2017 Order granting a motion to quash one of
Plaintiff counsel’s subpoenas, I again reiterated that the issues to be considered at
the July 13 show cause hearing included the propriety of sanctions as to counsel
for Plaintiff’s vexatious conduct and excessive fee petition, using the same
language excerpted above.246
Again, during the course of that hearing, I ensured for what was then at least
the third time that Plaintiff’s counsel was aware that the sanctionable conduct at
issue was her submitting a fee petition that sought costs and fees for portions of the
litigation that were necessitated by her own vexatious conduct, as against
defendants from whom she ultimately did not prevail, for certain expenses
244

Id. at 21.

245

ECF No. 642 at 20 (citing Keister v. PPL Corp., — F. Supp. 3d. —, No. 4:13-CV-00118,
2016 WL 688031, at *2 (M.D. Pa. Feb. 19, 2016), aff’d, 677 F. App’x 63 (3d Cir. 2017)).

246

ECF No. 660 ¶ 4.

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previously held unrecoverable by judges of this Court, and relative to a total
settlement of $25,000.00. I also reviewed specific entries with Ms. Pollick and
compared them against prior ones rejected by my colleagues in earlier cases. Ms.
Pollick was also provided with the opportunity to submit an amended fee petition,
which she rejected.
On the record, I confirmed that Ms. Pollick understood that Rule 11 applies
if an attorney submits papers “for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation” or if an attorney’s
“claims, defenses, and other legal contentions” are not “warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law.” I also confirmed that Ms. Pollick understood that
Section 1927 “requires a court to find an attorney has (1) multiplied proceedings;
(2) in an unreasonable and vexatious manner; (3) thereby increasing the cost of the
proceedings; and (4) doing so in bad faith or by intentional misconduct.”247 We
read that provision together, and she answered my questions affirmatively. With all
of that background information preserved on the record, I thereafter also confirmed
that Plaintiff’s counsel understood that penalties could be imposed pursuant to
Rule 11 or § 1927 and could include monetary sanctions. Ms. Pollick answered
those questions in the affirmative as well.
247

In re Schaefer Salt Recovery, Inc., 542 F.3d 90, 101 (3d Cir. 2008) (Barry, J.).

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Nevertheless, out of an abundance of caution, I allowed Ms. Pollick a
subsequent opportunity to be heard. Thus, in a subsequent Scheduling Order issued
that same date, I again recited for the record that “the sanctions issue presently
under consideration is whether counsel for Plaintiff should be sanctioned for
submission of a fee request in excess of $727,000.00, which seeks fees and costs
for portions of the litigation that were necessitated by her own vexatious conduct,
as against defendants from whom she ultimately did not prevail, for certain
expenses previously held unrecoverable by judges of this Court, and relative to a
total settlement of $25,000.00.”248 I also wrote that “[t]he Court may sanction
Plaintiff’s counsel under either (or both) of Federal Rule of Civil Procedure 11 or
28 U.S.C. § 1927,” and that “[t]he penalties imposed may include monetary
sanctions.”249 In addition, I stated, “Moreover, counsel for Plaintiff is afforded an
additional opportunity to respond and be heard on the sanctions issue presently
under consideration.”250 Ms. Pollick did in fact consent to responding by filing a
supplemental brief two weeks later.251
In sum, Ms. Pollick was fully aware of the conduct that formed the basis of
my sanctions hearing. Undoubtedly, she should have known in her heart-of-hearts

248

ECF No. 664 at 6–7.

249

Id. at 7.

250

Id. at 7.

251

ECF No. 669.

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that this conduct was improper from the moment she clicked the “submit” button.
Because she consented to the hearing and supplemental briefing, because she
received ample notice and opportunity to respond, and because sanctions under
Rule 11 and § 1927 stem “from the same conduct,” this objection is also overruled.
IV.

CONCLUSION
This litigation has persisted for all of the wrong reasons, and it ends today.

“A request for attorney’s fees should not result in a second major litigation.”252
Unfortunately, a second major litigation has transpired here, spawned by the
vexatious conduct of Cynthia L. Pollick, Esquire. Although holding a hearing and
reviewing the pertinent documentation has taken substantial time, my hope is that
this time was well spent and that none of my colleagues will deal with such an
improper fee petition in the future. This is the result that justice commands—the
result that public faith in our judicial system requires.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

252

Polselli v. Nationwide Mut. Fire Ins. Co., 126 F.3d 524, 539 (3d Cir. 1997).

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