Community Association Underwriters of America, Inc. et al v. Queensboro Flooring Corp.

Filing 352

MEMORANDUM (Order to follow as separate docket entry) re 215 First MOTION for Attorney Fees and Expenses pursuant to the July 3, 2014 Court Order filed by Agnieszka Zofia Pozarlik, Arkadiusz Piotr Pozarlik Signed by Magistrate Judge Karoline Mehalchick on 3/18/2016. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
COMMUNITY ASSOCIATION
UNDERWRITERS OF AMERICA, INC.,
a/s/o VILLAGE AT CAMELBACK
PROPERTY OWNER ASSOCIATION,
et al.,

CIVIL ACTION NO. 3:10-CV-1559
(MEHALCHICK, M.J.)

Plaintiffs,
v.
QUEENSBORO FLOORING CORP.,
Defendants.
MEMORANDUM OPINION
This is a consolidated action involving property damage and personal injury claims
arising out of a July 2009 explosion and fire that occurred during construction work at a
townhouse located in Tannersville, Pennsylvania. Another case, Pozarlik v. Camelback Associates,
Inc., No. 3:11-CV-1349, was consolidated into this action on March 15, 2012. (Doc. 31).
Plaintiffs Arkadiusz Piotr Pozarlik and Agnieszka Zofia Pozarlik (the “Pozarliks”) assert
negligence and loss of consortium claims against several defendants, including the Village at
Camelback Property Owners Association, Inc., and its property manager, Kathleen Simoncic
(together, the “Defendants”).
I.

BACKGROUND
On May 23, 2015, the Pozarliks filed a motion for sanctions pursuant to Rule 37 of the

Federal Rules of Civil Procedure (Doc. 145), requesting the imposition of sanctions against
Defendants and their counsel for a variety of transgressions, including: failure to timely disclose
or produce certain discoverable information or documents; failure to timely produce an

adequate privilege log for documents withheld from discovery; failure to timely supplement
disclosures and discovery responses as new information or documents become available; failure
to obey various discovery orders; alleged misrepresentations or lack of candor in discovery
papers and discovery-related proceedings before the Court; an excessive number of objections—
many allegedly intended to coach the witness—and instructions not to answer questions during
depositions in an effort to impede, delay, or frustrate fair examination of the deponent; and
general dilatoriness, lack of candor, and lack of good faith in responding to discovery requests
and in discovery-related motions practice before the Court. See 28 U.S.C. § 1927; Fed. R. Civ.
P. 26(g)(3); Fed. R. Civ. P. 30(d)(2); Fed. R. Civ. P. 37(a), (b)(2), (c)(1). As a sanction, the
Pozarliks requested that the Defendants be prohibited from presenting a liability defense, see
Fed. R. Civ. P. 37(b)(2)(ii), (c)(1)(C), and sought an award of costs and reasonable attorney fees
incurred by the Pozarliks in connection with these discovery disputes and related motion
practice, see 28 U.S.C. § 1927; Fed. R. Civ. P. 26(g)(3); Fed. R. Civ. P. 30(d)(2); Fed. R. Civ. P.
37(a)(5), (b)(2)(C), (c)(1)(A). Following briefing and oral argument, the Court granted the
motion in part and denied it in part (Doc. 175), specifically denying the Pozarliks’ request to
preclude any liability defense, but granting a limited award of costs and attorney fees as follows:
1. An award of up to $1,500 in reasonable expenses and attorney fees
incurred by the Pozarliks in connection with oral argument on their Rule
37 motion;
2. An award of reasonable expenses and attorney fees incurred by the
Pozarliks in connection with the deposition of the other four
individuals—Dave Kalucki, Chris Travis, Phillipe Cruz, and John
Hilbert—whose witness statements were recorded on the missing audio
tape, if the Pozarliks choose to take their depositions; and,
3. Leave to re-depose Ms. Simoncic, if the Pozarliks so chose, and an award
of reasonable expenses and attorney fees incurred by the Pozarliks in
connection with that deposition if the Pozarliks choose to take it.
(Doc. 174, at 18-19).
2

Now before the Court is the Pozarliks’ comprehensive petition for attorney fees and
expenses filed on March 2, 2015 (Doc. 215), pursuant to the Court’s July 3, 2014 Order
imposing sanctions under Rule 37 of the Federal Rules of Civil Procedure (Doc. 175). The
matter has been fully briefed and is now ripe for disposition. (Doc. 228; Doc. 229).
II.

DISCUSSION
The Pozarliks request an award of $65,722.00 in attorney fees, and an additional

$4,424.50 for expenses. 1 (Doc. 216, at 18; Doc. 229, at 17). The Defendants oppose the
Pozarliks’ motion on the basis that the proposed hourly rates and number of hours billed are
both excessive, but do not propose a specific amount by which the award should be reduced.
“Where a district court decides to award a monetary sanction, such as attorney’s fees,
the total amount of such a sanction . . . should be guided by equitable considerations.” Doering
v. Union Cnty. Bd. of Chosen Freeholders, 857 F.2d 191, 195 (3d Cir. 1988). The amount of a
monetary sanction should be specifically related to expenses incurred as a result of the
violations. See Martin v. Brown, 63 F.3d 1252, 1263 n.15 (3d Cir. 1995). However, a court
nevertheless “may decide that the circumstances warrant imposition of only part of the
adversary’s expenses . . . .” Doering, 857 F.2d at 195. “The starting point for determining the
reasonableness of attorney's fees is the lodestar calculation, the number of hours reasonably
expended ‘times an hourly fee based on the prevailing market rate.’” LightStyles, Ltd. v. Marvin

1

This sum includes $4,363.50 in attorney fees for the time expended by the Pozarliks’
counsel in preparing their reply brief. (Doc. 229, at 17).

3

Lumber & Cedar Co., No. 1:13-CV-1510, 2015 WL 4078826, at *2 (M.D. Pa. July 6, 2015)
(quoting Doering, 857 F.2d at 195).
The Pozarliks, as the party seeking fees, bear “the burden to prove that its request for
attorney fees is reasonable.” Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). This
burden is met where the fee petitioner “submit[s] evidence supporting the hours worked and
rates claimed.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Once the petitioner makes the
requisite showing that its request for fees is reasonable, the burden then shifts to the party
opposing the fee award “to challenge, by affidavit or brief with sufficient specificity to give fee
applicants notice, the reasonableness of the requested fee.” Rode, 892 F.2d at 1183. A district
court cannot “decrease a fee award based on factors not raised at all by the adverse party.” Bell
v. United Princeton Properties, Inc., 884 F.2d 713, 720 (3d Cir. 1989). However, “[o]nce the
adverse party raises objections to the fee request, the district court has a great deal of discretion
to adjust the fee award in light of those objections.” Rode, 892 F.2d at 1183.
A. HOURLY RATES
The Pozarliks seek an award based on a requested hourly rate of $395.00 for Attorney
Padova and $225.00 per hour for Attorney Pham. (Doc. 216, at 8). The hourly rate component
of the lodestar is “calculated according to the prevailing market rates in the relevant
community.” Rode, 892 F.2d at 1183 (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)). “[T]he
court should 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 by lawyers of reasonably
comparable skill, experience, and reputation.” Rode, 892 F.2d at 1183. Thus, generally “an outof-town lawyer would receive not the hourly rate prescribed by his district but rather the hourly
rate prevailing in the forum in which the litigation is lodged.” Interfaith Cmty. Org. v. Honeywell

4

Int'l, Inc., 426 F.3d 694, 704 (3d Cir. 2005) (internal quotation marks omitted), as amended (Nov.
10, 2005). Here, the parties agree that the “relevant community” is the Scranton/Wilkes-Barre
vicinage of the Middle District of Pennsylvania. (Doc. 216, at 7; Doc. 228, at 12).
In support of their proposed hourly rates, Attorneys Padova and Pham each submit
certifications of their own (Doc. 215-2; Doc. 215-3), as well as a certification from Kingston,
Pennsylvania Attorney Martin J. Meyer, who has practiced law in the Scranton/Wilkes-Barre
vicinage for over 50 years and has substantial experience in personal injury litigation. (Doc.
215-8). The Defendants contest this evidentiary showing with a certification from Lawrence
Durkin, a Scranton attorney who has “facilitated settlements and verdicts in more than 250
personal injury cases” over his 19 years of practice. 2 (Doc. 228-14, at 2). Along with their reply
brief, counsel for the Pozarliks further submit additional certifications from Attorneys Joseph
Messa, Jr. and Glenn Parno, both of whom have significant experience handling personal
injury cases. (Doc. 229-1; Doc. 229-2).
1. Attorney Padova
Attorney Padova seeks an hourly rate of $395.00, arguing that his requested rate is
warranted due to his approximately 27 years of legal experience and his skill in obtaining sixand seven-figure verdicts and settlements. (Doc. 215-2, at 2; Doc. 216, at 9). Attorney Padova
notes that his requested rate is below his usual billing rate in Philadelphia of $450.00 per hour.
(Doc. 216, at 8). Furthermore, Attorney Martin J. Meyer’s certification states that Attorney
2

Each party attempts to construe their counterpart’s certification from local attorneys as
somehow invalid because Attorneys Meyer and Durkin both practice in other fields in addition
to personal injury law. (Doc. 228, at 11; Doc. 229, at 10-11). However, the Court rejects the
notion that an attorney who practices in an additional field is no longer qualified to attest to the
prevailing market rates for plaintiffs’ attorneys practicing personal injury law, and therefore
accepts the evidence submitted in the form of certifications from Attorneys Meyer and Durkin.

5

Padova’s requested rate of $395.00 per hour appears reasonable under the circumstances and
given Attorney Padova’s skill and experience, although Attorney Meyer also notes that it is
particularly difficult for him to determine reasonable hourly rates for personal injury litigation
because he has always taken those cases on a contingent fee basis. (Doc. 215-8, at 2-3).
Attorney Meyer, who has practiced in the Scranton/Wilkes-Barre area for the past 54 years,
states that if he were to accept a personal injury case on an hourly rate basis, he would be
inclined to bill in the range of $350.00 to $400.00 per hour. (Doc. 215-8, at 2-3).
The Pozarliks provide additional certifications from Attorneys Messa and Parno
attached as exhibits to their reply brief. (Doc. 229-1; Doc. 229-2). Attorney Messa states in his
certification that he believes that Attorney Padova’s requested rate is reasonable because the
two attorneys have similar skills and experience, and Attorney Messa has previously been
granted a requested rate of $595.00 per hour by the Court of Common Pleas of Philadelphia
County. (Doc. 229-1, at 3-4). Attorney Messa also notes that he has handled personal injury
cases in several counties within the Middle District of Pennsylvania, although he does not state
whether he is familiar with the prevailing market rates in the Scranton/Wilkes-Barre vicinage.
(Doc. 229-1, at 2). Lastly, Attorney Parno notes in his certification that he is knowledgeable of
Attorney Padova’s skill, experience, and reputation in personal injury law, and based on this
deems Attorney Padova’s requested hourly rate to be reasonable. (Doc. 229-2, at 2-3). Attorney
Parno practices in the Harrisburg area, but does not state whether he is familiar with the
prevailing market rates in the Scranton/Wilkes-Barre vicinage. 3 (Doc. 229-2, at 2-3). Because

3

Neither Attorney Messa nor Attorney Parno appear to be admitted to practice before
the United States District Court for the Middle District of Pennsylvania. (Doc. 229-1, at 9;
Doc. 229-2, at 5).

6

Attorneys Messa and Parno do not attest to the prevailing market rates in the relevant legal
community, their certifications that Attorney Padova’s requested hourly rate is “reasonable” is
of little use to the question at hand. See Souryavong v. Lackawanna Cty., No. 13-CV-1534, 2016
WL 374462, at *9 (M.D. Pa. Feb. 1, 2016) (emphasis in original) (“Attorney Comitz's assertion
that he finds Attorney Pollick's requested rates “reasonable” fails to support Plaintiffs' requested
hourly rate because the standard is the prevailing market rate in the community, not
reasonableness.”).
In their brief in opposition, Defendants argue that Attorney Padova fails to meet his
burden to show that his requested hourly rate of $395.00 is reasonable. (Doc. 228, at 12).
Specifically, Defendants argue that Attorney Meyer’s certification does not establish whether
Attorney Padova’s requested rate is in line with the prevailing market rates in the relevant
community because Attorney Meyer has only accepted personal injury cases on a contingent
fee basis. (Doc. 228, at 11). Furthermore, Defendants contend that Attorney Padova’s
certification is insufficiently detailed as to his own skills and qualifications, as he does not
submit his resume or include a list of cases litigated to verdict along with the amount of the
judgments in each case. 4 (Doc. 228, at 11-12). Although a close call, the Court concludes that
Attorney Padova has provided sufficient evidence to carry his initial burden in support of his
requested hourly rate, as Attorney Meyer attests that an hourly rate in the range of $350.00 to
$400.00 is appropriate for highly skilled and experienced personal injury attorneys in the

4

Attorney Padova does not attach a resume to the reply brief, but does submit a list of
cases he has handled involving homeowners’ or community associations (Doc. 229, at 5-6), as
well as certificates naming him among Pennsylvania’s “Super Lawyers” for 2004 and 2005
(Doc. 229-3).

7

Scranton/Wilkes-Barre area, such as himself, and appears sufficiently knowledgeable of
Attorney Padova’s qualifications to be able to conclude that Attorney Padova is entitled to
command those same rates. (Doc. 215-8, at 2-3).
Although Attorney Padova meets his initial burden of presenting evidence supporting
the contention that his requested rate of $395.00 is reasonable, Defendants challenge the
reasonableness of the requested rate through the certification of Lawrence Durkin. (Doc. 22814). Attorney Durkin opines that experienced personal injury plaintiffs’ attorneys in the
Scranton/Wilkes-Barre area will generally bill at $225.00 per hour as a default rate should a
client choose to terminate a contingent fee agreement. (Doc. 228-14, at 2-3). Attorney Durkin
therefore states that a reasonable rate for Attorney Padova therefore would be $225.00 per hour,
although Attorney Durkin notes that he has not received Attorney Padova’s resume and is not
familiar with Attorney Padova’s cases. (Doc. 228-14, at 3). The Court concludes that
Defendants have rebutted the reasonableness of the Attorney Padova’s requested rate, and
therefore will determine a reasonable billing rate for Attorney Padova based on the evidence
presented, similar cases within the forum, and the quality of Attorney Padova’s submitted work
product. Walker v. Gruver, No. 1:11-CV-1223, 2013 WL 5947623, at *4 (M.D. Pa. Nov. 5,
2013).
Here, the Court concludes that Attorney Padova’s requested rate of $395.00 per hour is
unreasonably high in light of the prevailing market rates in the community. The Pozarliks argue
in their reply brief that Attorney Durkin’s certification should be discounted because he has not
practiced as long as Attorney Padova and the other attorneys who submitted certifications on
Attorney Padova’s behalf. (Doc. 229, at 10-11). Although the Court notes that Attorney Padova
has practiced law for approximately eight more years than Attorney Durkin and thus may be

8

able to command a higher hourly rate (Doc. 215-2, at 2; Doc. 228-14, at 2), this fact does not
undermine Attorney Durkin’s ability to attest to the prevailing market rates in the
Scranton/Wilkes-Barre area. 5 Moreover, to the extent that Attorney Durkin’s relative
inexperience in relation to Attorney Padova undermines Attorney Durkin’s ability to accurately
speak to the prevailing rates in the community for services by lawyers of Attorney Padova’s skill
and experience (Doc. 229, at 10-11), this same rationale undermines Attorney Padova’s
contention that he should be entitled to an hourly rate at the upper end of the $350 to $400 per
hour range quoted by Attorney Meyer—who has practiced for decades more than Attorney
Padova (Doc. 215-8, at 2). The Court instead finds that the prevailing market rate for personal
injury attorneys in the community with comparable skills and experience to Attorney Padova
falls somewhere between the $225.00 per hour that Attorney Durkin notes as the default rate for
“experienced” attorneys and the $350.00 to $400.00 per hour range that Attorney Meyer states
he would be inclined to bill himself if he were to take a personal injury case on an hourly fee
basis. (Doc. 215-8, at 3; Doc. 228-14, at 3).
In reviewing other contested attorney fees cases within this forum, the Court observes
that district judges within the Middle District of Pennsylvania generally find that experienced
and skillful plaintiffs’ attorneys warrant a fee “in the range of $180 to $325 per hour.” Beattie v.
Line Mountain Sch. Dist., No. 4:13-CV-02655, 2014 WL 3400975, at *10 (M.D. Pa. July 10,

5

Furthermore, the Court cannot determine precisely how much more personal injury
litigation experience, if any, Attorney Padova may have in relation to Attorney Durkin. While
Attorney Durkin states that he has tried over 60 personal injury cases to jury verdict and
facilitated settlements or verdicts in more than 250 personal injury cases overall, Attorney
Padova fails to provide comparable statistics of his own personal injury litigation experience or
even a resume. (Doc. 228-14, at 2).

9

2014); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07CV585, 2014 WL 1321116, at *7
(M.D. Pa. Mar. 31, 2014) (citing Shaw v. Cumberland Truck Equip. Co., No. CIV.A. 09-359, 2012
WL 1130605, at *3 (M.D. Pa. Mar. 30, 2012)) (awarding “generous[ ]” fee rate of $300.00 per
hour to two attorneys with 27 and 20 years of experience and noting “that attorney fee rates for
seasoned plaintiff's attorneys in the Middle District of Pennsylvania range from $200.00 to
$300.00 per hour”). For the purposes of this case, however, the recent attorney fees cases within
the forum seldom involve personal injury litigation. 6 The Court is cognizant that “[i]f there is
evidence that the market has established different rates for different categories of legal work, the
district court should assign the appropriate rate to each category.” Dee v. Borough of Dunmore,
No. 3:05-CV-1342, 2013 WL 685144, at *3 (M.D. Pa. Feb. 25, 2013) (citing Loughner v. Univ. of
Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001)), aff'd, 548 F. App'x 58 (3d Cir. 2013). Here, the
Court finds no evidence—either provided by the parties or recognized under recent caselaw
within this forum—that establishes a different rate for personal injury litigation in comparison
to civil rights or employment cases. The Court therefore deems probative the opinions of district
judges within the Middle District of Pennsylvania that find rates in the low $300s to be “the
highest hourly rate[s] prevailing in this particular legal market.” Overly v. Glob. Credit & Collection
Corp., No. 1:10-CV-2392, 2011 WL 2651807, at *5 (M.D. Pa. July 6, 2011). This evidence from
recent cases within the forum does not alone determine the rate that Attorney Padova should be

6

The bulk of attorney fees decisions in the Middle District of Pennsylvania instead
appear to involve civil rights, employment/labor cases, and other practice areas that contain
statutory fee-shifting provisions, unlike personal injury law. See, e.g., 29 U.S.C. § 216(b) (labor
law); 42 U.S.C. § 1988(b) (civil rights).

10

awarded in the case at bar, however, “because past rates are not necessarily reflective of the
‘current’ market rate.” Souryavong, 2016 WL 374462, at *11.
As a final factor in determining appropriate attorney fees to award, district judges in this
forum may evaluate “the quality of the [attorney’s] submitted work product.” Keister v. PPL
Corp., No. 4:13-CV-00118, 2016 WL 688031, at *5 (M.D. Pa. Feb. 19, 2016). Here, to the
extent that the current market rate in the community may indicate that a fee in excess of
$300.00 per hour is warranted for the most highly skilled and experienced attorneys, the work
product submitted by Attorney Padova in this case simply does not reflect the superior quality
needed to justify an award of attorney fees in this exceptional tier. Although Attorney Padova
has shown himself to be a zealous advocate for his clients, the Court has repeatedly found it
necessary to remind both parties to the instant dispute of the applicable federal and local rules.
See (Doc. 140, at 7 (“The motion papers submitted by both sets of parties also suffer from
significant technical deficiencies that should be avoided in future filings, at the risk of those
filings being struck or the parties otherwise being sanctioned for noncompliance with the
Federal and Local Rules.”); Doc. 167, at 2 (“On June 19, 2014, the Pozarliks filed their brief in
opposition, three days after it was due. The Pozarliks did not request an extension of time
before the brief was due, nor did they file a motion after the deadline seeking an extension nunc
pro tunc.”)). This factor therefore weighs against awarding Attorney Padova his requested rate
of $395.00 per hour.
Based on the evidence presented by the parties, similar cases within the forum, and the
quality of Attorney Padova’s submitted work product, the Court finds it appropriate to award
Attorney Padova a rate of $300.00 per hour.

11

2. Attorney Pham
Attorney Pham seeks an hourly rate of $225.00. (Doc. 215-3, at 8). In support of her
requested hourly rate, Attorney Pham attaches a certification and a copy of her resume, which
indicates that she had been admitted to practice law for approximately two years and had been
an associate at the law firm of the Pozarliks’ counsel for approximately one year when she
performed the work that is the subject of the instant fee petition. (Doc. 215-3, at 2-4). In the
brief in support of their fee petition, the Pozarliks’ counsel also note that Attorney Pham’s
requested hourly rate of $225.00 falls below the usual rate of “$285.00 per hour for an
associate’s time” in the Philadelphia area. (Doc. 216, at 8). Furthermore, each of the three
attorneys that provided certifications in support of Attorney Padova’s requested hourly rate also
state that they find Attorney Pham’s requested rate of $225.00 per hour to be fair and
reasonable. (Doc. 215-8, at 2 (Attorney Meyer); Doc. 229-1, at 3 (Attorney Messa); Doc. 229-2,
at 3 (Attorney Parno)). However, none of the three attorneys providing certifications state that
they are familiar with Attorney Pham’s skills and experience, nor do they opine as to the
prevailing hourly rate in the Scranton/Wilkes-Barre vicinage for an attorney with similar skills
and experience to Attorney Pham. (Doc. 215-8; Doc. 229-1; Doc. 229-2). The Court therefore
concludes that the Pozarliks’ counsel fails to provide sufficient evidence to carry their initial
burden in support of Attorney Pham’s requested hourly rate, as neither Attorney Pham in her
own certification nor any of the three attorneys providing certifications on her behalf attest that
Attorney Pham’s requested hourly rate of $225.00 is in line with the current market rate in this
forum for attorneys with similar skills and experience to Attorney Pham.
Defendants contend that Attorney Pham’s requested hourly rate is unreasonable. (Doc.
228, at 10-13). In support of their argument, Defendants again point to the certification of

12

Attorney Durkin, who states that a reasonable hourly rate for Attorney Pham would be $110.00
in light of her resume and recent admission to the practice of law. 7 (Doc. 228-14, at 3). As with
the three attorneys providing certifications in support of Attorney Pham’s proposed hourly rate,
however, Attorney Durkin omits whether the rate that he deems reasonable for Attorney Pham
is comparable to the prevailing market rates for other relevantly inexperienced associates in the
community. Accordingly, the Court is unconvinced that Defendants’ proposed rate of $110.00
per hour for Attorney Pham is in line with the prevailing market rates in this forum for
attorneys with similar skills and experience to Attorney Pham.
In conducting a review of other recent contested attorney fees cases within this forum,
the Court finds that relatively inexperienced associates are generally awarded fees in the region
of $150.00 per hour. See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07-CV-00585, 2014
WL 1321947, at *7 (M.D. Pa. Jan. 2, 2014) (reducing billing rate for second-year attorney from
$200.00 to $125.00 per hour), report and recommendation adopted in relevant part, No. 3:07CV585,
2014 WL 1321116 (M.D. Pa. Mar. 31, 2014); Shaw, 2012 WL 1130605, at *3 (“[T]he court
finds that hourly rates for a third year associate in this market are generally lower than $175.00
per hour. . . . Accordingly, the court finds it appropriate to reduce the amounts charged . . . to
the rate of $125.00 per hour.”). In light of the lack of evidence presented by either party to
establish that the “current” market rate in this forum for relatively inexperienced associates has
changed, the Court awards Attorney Pham a rate of $150.00 per hour.

7

In their brief in opposition to the fee petition, Defendants misstate Attorney Durkin’s
suggested hourly rate for Attorney Pham as $85.00 per hour. (Doc. 228, at 12).

13

B. HOURS BILLED
In addition to contesting the hourly rates proposed by Attorneys Padova and Pham,
Defendants also contend that the overall number of hours billed is excessive in several respects.
(Doc. 228, at 13-18). Specifically, Defendants contend: (1) the Pozarliks’ counsel should be
denied attorney fees in connection with their third motion for sanctions and oral argument that
took place on June 30, 2014, to the extent that the requested fees exceed $1,500.00, and that the
Pozarliks’ counsel should be denied fees in connection with the deposition of Judith Brunson,
which never took place (Doc. 228, at 2-3, 13); (2) Attorney Pham should not be credited with
any billable hours that occurred before August 7, 2014, because that is the date that she first
informed Defendants she would be working on the case (Doc. 228, at 3); (3) Attorney Pham’s
hours should be reduced for the excessive amount of time spent on research, clerical work, and
conversations with Attorney Padova (Doc. 228, at 15); (4) the number of hours billed should be
reduced for both Attorney Padova and Pham because the time spent on deposition preparation
grossly exceeded the combined length of the depositions that were taken (Doc. 228, at 15-16);
and (5) the number of hours billed for the preparation of the fee petition should be reduced as
unreasonably high (Doc. 228, at 16). The Court thus evaluates each of Defendants’ contentions.
1. Third Motion for Sanctions/Oral Argument and Brunson Deposition
Defendants first argue that the Court should deny attorney fees in excess of $1,500.00 for
work by Pozarliks’ counsel pertaining to their third motion for sanctions and the June 30, 2014
oral argument on that motion. (Doc. 228, at 2). Additionally, Defendants argue that the
Pozarliks’ counsel should be denied attorney fees in connection with their preparation for
taking the deposition of Judith Brunson. (Doc. 228, at 3). In support of these assertions,
Defendants note that the Court’s July 3, 2014 Order clearly addressed the extent of the attorney
fee award, providing for “up to $1,500 in reasonable expenses and attorney fees . . . in
14

connection with oral argument” and “reasonable expenses and attorney fees . . . in connection
with the depositions of Dave Kalucki, Chris Travis, Phillipe Cruz, and John Hilbert, should
they choose to take them . . . .” (Doc. 175, at 2).
In their brief in support of the fee petition, the Pozarliks’ counsel concede that “the
Court’s Order appears to limit the sanction for the Motion for Sanctions to $1,500.00 in
attorney’s fees and expenses in connection with oral argument on the Motion,” but then go on
to request $22,657.00 in attorney fees for their third motion for sanctions and oral argument
preparation, an amount over 15 times larger than the limit imposed by the Court in its July 3,
2014 Order. 8 (Doc. 215-2, at 8; Doc. 216, at 13). The Court declines this invitation to disregard
its own $1,500.00 limit for expenses and attorney fees in conjunction with oral argument in
favor of the proposed exponentially larger sanction from the Pozarliks’ counsel. Combined,
Attorneys Padova and Pham sufficiently demonstrate that they reached the $1,500.00 threshold
through their hours expended on the third motion for sanctions and preparation for oral
argument. (Doc. 215-4). Accordingly, the Court awards $1,500.00 in combined expenses and
attorney fees in connection with oral argument and the third motion for sanctions, but grants
Defendants’ request for a reduction to the extent that the Pozarliks’ counsel seeks an award
beyond this $1,500.00 limit.
Counsel for the Pozarliks also seek roughly $3,800.00 in attorney fees and another
$647.00 in expenses in connection with the deposition of Judith Brunson. (Doc. 215-6; Doc.
215-7; Doc. 215-9, at 12-14). However, the Court’s July 3, 2014 Order specifies the witnesses

8

The Pozarliks’ counsel additionally seek $411.94 in expenses related to the third
motion for sanctions and subsequent oral argument. (Doc. 215-9, at 2, 9).

15

for whose depositions the Pozarliks are awarded expenses and attorney fees. (Doc. 175, at 2).
Because Brunson was not one of the potential deponents named in the Order, counsel for the
Pozarliks are not awarded expenses and attorney fees in connection with preparations for
Brunson’s deposition. Moreover, the Order specified that attorney fees and expenses in
connection with a potential deponent would be awarded “should [counsel for the Pozarliks]
choose to take [the deposition].” (Doc. 175, at 2). In their reply brief, Attorneys Padova and
Pham admit that they have not taken Brunson’s deposition. (Doc. 229, at 14). On this basis
alone, counsel for the Pozarliks are denied attorney fees in connection with the Brunson
deposition because that deposition appears to have never actually occurred. Accordingly,
Defendants’ request for a reduction in the number of hours billed is granted as it pertains to
any hours attributable to the deposition of Judith Brunson.9
2. Hours Billed by Attorney Pham Prior to August 7, 2014
Defendants next contend that Attorney Pham’s total number of hours expended should
be reduced by any hours accumulated prior to August 7, 2014. (Doc. 228, at 3). On that date,
Attorney Pham sent Defendants a letter informing them that she “will be handling discovery
and assisting Attorney John Padova with other matters in the above-mentioned case.” (Doc.
228-7, at 2). Attorney Pham formally entered her appearance as co-counsel on the Pozarliks’

9

Many of the submitted billing entries involve activities that pertain to both Brunson and
other potential deponents for whom the Pozarliks were awarded attorney fees. See, e.g., (Doc.
215-7, at 2 (billing 0.3 hours by Attorney Pham on August 7, 2014 for “[d]raft & email letter to
Attorney Costigan in response to her 8/6/14 letter re: contact information for Hilbert, Cruz, &
Brunson”)). In these instances, the Court reduces the time expended by Brunson’s proportional
share. Therefore, because Brunson was one of three potential deponents listed and the activity
lasted 0.3 hours, Attorney Padova is credited with 0.2 hours expended for her August 7, 2014
letter.

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behalf on March 19, 2015. (Doc. 221). Defendants cite to no authority in support of their
contention that the Pozarliks’ counsel are not entitled to receive attorney fees for time Attorney
Pham may have billed prior to informing Defendants that she would be working on the case.
The Court finds it reasonable to award attorney fees for time billed by Attorney Pham prior to
informing Defendants that she was working on the case. Defendants’ challenge to the
reasonableness of the hours billed in this particular regard is therefore denied.
3. Research, Clerical Work, and Conversations
Defendants also challenge as excessive the amount of time Attorney Pham devoted to
research, clerical work, and conversations with Attorney Padova. (Doc. 228, at 15). In
evaluating the reasonableness of the hours billed in a contested attorney fee petition, courts
often consider the “specific categories of billing entries to which defendants objected: (1)
research, (2) depositions, (3) internal communications, (4) discovery, (5) clerical work, (6)
vague entries, and (7) the fee petition.” Walker, 2013 WL 5947623, at *6. In regard to research,
the United State Court of Appeals for the Third Circuit has warned that
“[a] fee applicant cannot demand a high hourly rate—which is based on his or her experience,
reputation, and a presumed familiarity with the applicable law—and then run up an inordinate
amount of time researching that same law.” Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.
1983). Similarly, in regard to clerical work, courts do not “approve the wasteful use of highly
skilled and highly priced talent for matters easily delegable to non-professionals or less
experienced associates.” Ursic, 719 F.2d at 677; Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180
(3d Cir. 2001) (“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.”). Here, although Attorney Pham devotes a fairly high percentage

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of her time to research and clerical work involving the logistics of locating potential deponents,
serving subpoenas, and arranging depositions, the total amount of time she bills for these tasks
is not unreasonable for a relatively inexperienced associate billing at an appropriate hourly rate.
(Doc. 215-7). Because the Court has already set an appropriate hourly rate for Attorney Pham,
Defendants’ challenge to the reasonableness of the hours billed by Attorney Pham is denied as
it pertains to their claim that she devoted excessive time to research and clerical work.
Likewise, internal communications between attorneys are necessary and often helpful in
avoiding the duplication of work, but excessive communications and conferences are not
recoverable. Walker, 2013 WL 5947623, at *13. In reviewing Attorney Pham’s billing
statements, the Court finds that the number and length of her conversations with Attorney
Padova falls within a reasonable range. (Doc. 215-7). Defendants’ request for the Court to
reduce the number of hours expended by Attorney Pham on account of excessive
communications and conferences with Attorney Padova is therefore denied.
4. Deposition Preparation
Defendants argue that Attorneys Padova and Pham spent an excessive amount of time
preparing for the depositions of Kalucki, Travis, Cruz, Hilbert, and Simoncic, relative to the
actual combined length of those depositions. (Doc. 228, at 15-16). Specifically, counsel for the
Pozarliks note that the combined duration of the five depositions was 11.2 hours (Doc. 215-2, at
6), yet proceed to bill a total of 91.2 hours in connection with those depositions. (Doc. 215-2, at
8). Even after excluding the 14.42 combined hours expended in connection with the Brunson
deposition for which the Court has already concluded that Attorneys Padova and Pham will not
receive fees, the remaining time expended equates to over 5.8 hours billed for every hour
Attorney Padova actually spent in a deposition. (Doc. 215-6; Doc. 215-7). In Walker v. Gruver,

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the court evaluated the reasonableness of time spent preparing for depositions in the context of
a contested attorney fee petition, and found that an attorney with 35 years of experience
“cannot justify spending three hours preparing for each hour of deposition.” 2013 WL 5947623,
at *12. Upon considering the additional hours expended on deposition preparation by a less
experienced attorney in that particular field of law, the court significantly reduced both
attorneys’ hours for deposition preparation as repetitive and excessive. Walker, 2013 WL
5947623, at *12. The Court finds that the reasoning expressed in Walker applies to the hours
billed by Attorneys Padova and Pham in connection with the depositions of Kalucki, Travis,
Cruz, Hilbert, and Simoncic. Moreover, the Court notes as particularly excessive the decision to
expend more than 26 hours in connection with the third deposition of Simoncic—a deposition
that lasted 5 hours—after Attorney Padova had already deposed her twice. (Doc. 215-2, at 6;
Doc. 215-6, at 3-9). Accordingly, the Court shall reduce by 50% the number of hours billed by
both Attorneys Padova and Pham for time expended in connection with the depositions of
Kalucki, Travis, Cruz, Hilbert, and Simoncic, and thus awards Attorneys Padova and Pham a
combined 38.39 hours for their work involving these depositions.
5. Fee Petition and Reply Brief
In their final challenge to the number of hours expended by the Pozarliks’ counsel,
Defendants argue that Attorneys Padova and Pham spent an unreasonable amount of time
preparing the fee petition. (Doc. 228, at 16). Here, Attorneys Padova and Pham bill a combined
28.9 hours for their initial fee petition and an additional 16.9 hours for the reply brief. (Doc.
216, at 17; Doc. 229, at 17). “A party entitled to a fee award is also entitled to reimbursement
for the time spent preparing the fee petition, often referred to as ‘fees on fees.’” Walker, 2013
WL 5947623, at *17 (citing Prandini v. Nat'l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978)). However,

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“[a] request for attorney's fees should not result in a second major litigation.” Hensley, 461 U.S.
at 437. As noted by Defendants (Doc. 228, at 17), district judges within the Middle District of
Pennsylvania have generally “awarded fees in the range of 15 to 23 hours for similar petitions.”
Walker, 2013 WL 5947623, at *17 (collecting cases). The issues Attorneys Padova and Pham
raise in their fee petition and reply brief are not overly complex so as to justify the combined
45.8 hours billed. Indeed, some of these excessive hours are surely attributable to the fact that
Attorneys Padova and Pham disregarded the scope of the Court’s July 3, 2014 Order by seeking
fees in connection with the Brunson deposition and several times beyond the $1,500.00 limit
imposed for fees and expenses in conjunction with the third motion for sanctions and oral
argument. (Doc. 175, at 2). Accordingly, the Court shall reduce by 60% the number of hours
billed for fees on fees, i.e. the fee petition and reply brief, and thus awards Attorneys Padova
and Pham a combined 18.32 hours.
C. EXPENSES
In addition to attorney fees, Attorneys Padova and Pham seek reimbursement for
$4,424.50 in expenses. (Doc. 216, at 18). Defendants do not separately challenge the
reasonableness of the claimed expenses. (Doc. 229, at 15). However, Defendants successfully
contested both attorney fees and expenses as they pertained to the third motion for sanctions
and oral argument on that motion, as well as the Brunson deposition. See supra Part I.B.3.
Because Attorneys Padova and Pham have already been awarded the full $1,500.00 in attorney
fees alone for the third motion for sanctions and oral argument, they will not be awarded the
additional $411.94 in expenses they claim in conjunction with the oral argument. (Doc. 215-9,
at 2, 9). Likewise, counsel for the Pozarliks’ reimbursement for expenses will also be reduced by
the $647.00 claimed in regard to the Brunson deposition, as the Court’s July 3, 2014 Order did

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not provide for either attorney fees or expenses in connection with the Brunson deposition.
(Doc. 175, at 2). After these two deductions, the remaining expenses for which Attorneys
Padova and Pham are entitled to reimbursement totals $3,365.56.
III.

CONCLUSION
Counsel for the Pozarliks’ petition for attorney fees and expenses is GRANTED IN PART

and DENIED IN PART as follows:
Oral Argument / Third Motions for Sanctions
HOURS RATE
n/a
flat rate
n/a
flat rate
n/a

Atty. Padova
Atty. Pham
Combined

AMOUNT
n/a
n/a
$1,500.00

Depositions of Kalucki, Travis, Cruz, Hilbert, and Simoncic
Atty. Padova
28.88
Atty. Pham
9.51
Combined
38.39

$300.00
$150.00

$8,664.00
$1,426.50
$10,090.50

Attorney Fees and Expenses Petition / Reply Brief
Atty. Padova
Atty. Pham
Combined

4.4
13.92
18.32

$300.00
$150.00

$1,320.00
$2,088.00
$3,408.00

Total Attorney Fees
Atty. Padova
Atty. Pham
Combined (plus flat rate)

33.28
23.43
56.71

$300.00
$150.00

$9,984.00
$3,514.50
$14,998.50

Total Expenses
Combined

$3,365.56

Total Fees Plus Expenses

$18,364.06

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An appropriate Order will follow.

Dated: March 18, 2016

BY THE COURT:

s/ Karoline Mehalchick
KAROLINE MEHALCHICK
United States Magistrate Judge

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