Beattie et al v. Line Mountain School District

Filing 66

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 12/16/14. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRIAN and ANGIE BEATTIE,
on behalf of their minor daughter,
A.B.,
Plaintiffs
v.
LINE MOUNTAIN SCHOOL
DISTRICT,
Defendant.

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Case No. 4:13-cv-02655

(Judge Brann)

MEMORANDUM
December 16, 2014
The Plaintiffs’ attorneys filed a second request for attorney’s fees in this
case. Without any forewarning despite numerous opportunities to communicate
this imminent ensuing petition to the Court, the attorneys revive this issue that
persists “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its
grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s
Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia,
J., concurring). The attorneys failed to indicate that this fee issue’s “most recent
burial . . . was, to be sure, not fully six feet under.” Id.
A mere fourteen days after the Court issued a Memorandum resulting from a
laborious effort scrutinizing Plaintiffs’ attorneys’ billing records as the law
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commands,1 those attorneys filed this second request for fees (ECF No. 62).
Defendant Line Mountain School District (“Defendant” or “District”) filed a Brief
in Opposition (ECF No. 63) and the Plaintiffs’ attorneys filed a Reply Brief (ECF
No. 64). For the following reasons, the Plaintiffs’ attorneys’ motion is granted.
I.

BACKGROUND
The underlying facts of the case are eminently familiar to all involved.

Consequently, the Court only briefly reiterates and adds new salient facts. On
October 28, 2013, Plaintiffs Brian and Angie Beattie filed this action on behalf of
their minor daughter, A.B., claiming that Defendant Line Mountain School
District’s policy prohibiting female students from participating on the all-male
junior high and high school wrestling teams was unlawful sex discrimination under
42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution, and the Equal Rights Amendment of the Pennsylvania
Constitution. See Pls.’ Compl., Oct. 28, 2013, ECF No. 1. The Plaintiffs then filed
a Motion for a Temporary Restraining Order and a Preliminary Injunction on
October 30, 2013 (ECF No. 5).
The Court promptly granted the Motion for a Temporary Restraining Order,
temporarily preventing Defendant from taking any action that would interfere with

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See Interfaith v. Cmty. Org. v. Honeywell Int’l Inc., 426 F.3d 694, 713 (3d Cir. 2005).
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A.B.’s efforts to participate on the Line Mountain junior high wrestling team. See
Ct. Order, Nov. 1, 2013, ECF No. 8. The Court then conducted a one-day hearing
on the matter in consideration of the Motion for Preliminary Injunction on
November 21, 2013. The Parties subsequently briefed the matter. The Court
granted the Plaintiffs’ Motion for Preliminary Injunction on January 13, 2014. See
Ct. Order, Nov. 5, 2013, ECF No. 44. Thereafter, the Parties resolved the lawsuit
and filed a Consent Decree on April 2, 2014 (ECF No. 58).
Regarding fees, Plaintiffs’ attorneys filed their first request for attorney’s
fees on January 27, 2014 (ECF No. 47). On March 26, 2014, the Court conducted
a telephonic status conference call with counsel for the Parties, pursuant to the
Court’s Order of February 7, 2014 (ECF No. 49). During the conference, the Court
specifically inquired of all counsel participating in the conference, “is there
anything else that I should know?”
Plaintiffs’ attorneys then requested additional time from the Court to file
supplemental declarations to support various fee requests, and to correct their
misstatements in a prior filing concerning statistics of cases before the United
States District Court for the Middle District of Pennsylvania. Despite the Court’s
inquiry, at no point during the conference or afterward did Plaintiffs’ attorneys
indicate that they continued to incur additional fees in this matter and that they
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planned to file a petition subsequent to the initial request.
The Court granted Plaintiffs’ attorneys’ initial request in part on July 10,
2014, and awarded reasonable fees at appropriate rates (ECF Nos. 59, 60).2 On
July 24, 2014, Plaintiffs’ attorneys’ filed the second Motion for Attorney Fees that
the Court now resolves (ECF No. 62).
II.

DISCUSSION
A.

Attorney’s Fees Legal Standard

In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975),
the Supreme Court of the United States reaffirmed the “American Rule” that each
party in a lawsuit pays its own attorney’s fees unless there is statutory authority
altering this status quo. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). “In
response Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976,
42 U.S.C. § 1988, authorizing the district courts to award a reasonable attorney’s
fee to prevailing parties in civil rights litigation.” Id. “The purpose of § 1988 is to
ensure ‘effective access to the judicial process’ for persons with civil rights
grievances.” Hensley, 461 U.S. at 429 (quoting H. R. Rep. No. 94-1558, at 1
(1976)).
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After analysis under the applicable law, the Court found that the reasonable hourly rates
in the Williamsport vicinage of this Court for the attorneys in this case are as follows: Abbe F.
Fletman, $325 per hour; Nella Bloom $200 per hour; Joanne M. Kelley, $150 per hour; Terry L.
Fromson, $250 per hour; Amal Bass, $150 per hour. See Ct. Mem., Jul. 10, 2014, ECF No. 60.
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Accordingly, the Court retains discretion to award reasonable attorneys fees
and costs to the prevailing party in civil rights litigation. The statutory authority
for this discretion is 42 U.S.C. § 1988(b), which states:
(b) Attorney’s Fees
In any action or proceeding to enforce a provision of sections 1981,
1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law
92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom
Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious
Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. §
2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A.
§ 2000d et seq.], or section 13981 of this title, the court, in its
discretion may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs . . . .
42 U.S.C. § 1988.
To merit an award of attorney’s fees under this statute, a plaintiff must first
establish that he was the “prevailing party.” Hensley, 461 U.S. at 433. Next, the
fees and costs must be reasonable. See 42 U.S.C. § 1988; FED. R. CIV. P. 54(d);
Brytus v. Spang & Co., 203 F.3d 238, 242–43 (3d Cir. 2000). Once it is
established that the plaintiff prevailed, the court must determine reasonable fees
under the lodestar formula, which is the “number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433;
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546,
554 (1986); Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). “The
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amount of the fee, of course, must be determined on the facts of each case.”
Hensley, 461 U.S. at 429–30.
“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 v.
Gruver, 1:11-CV-1223, 2013 WL 5947623, *17 (M.D. Pa. Nov. 5, 2013) (Conner,
C.J.) (citing Prandini v. Nat’l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978)). A request
for attorneys’ fees, however, should not result in a “second major litigation.”
Hensley, 461 U.S. at 437.
“The party seeking attorney’s fees has the burden to prove that its request for
attorney’s fees is reasonable.” Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.
1990) (Nygaard, J.). “To meet its burden, the fee petitioner must ‘submit evidence
supporting the hours worked and rates claimed.’” Id. (quoting Hensley, 461 U.S.
at 433). Once the fee petitioner meets this prima facie burden, “the party opposing
the fee award then has the burden to challenge, by affidavit or brief with sufficient
specificity to give fee applicants notice, the reasonableness of the requested fee.”
Id.
“The district court cannot ‘decrease a fee award based on factors not raised
at all by the adverse party.’” Id. (quoting Bell v. United Princeton Props., Inc., 884
F.2d 713 (3d Cir. 1989)). “Once the adverse party raises objections to the fee
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request, the district court has a great deal of discretion to adjust the fee award in
light of those objections.” Id.
At present, the Court need only scrutinize the reasonableness of the hours
requested by the Plaintiffs’ attorneys on this second petition, because the Court
already determined the reasonable hourly rates for the attorneys in this matter in its
Memorandum in response to the first petition. See Ct. Mem., July 10, 2014, ECF
No. 59; see also Walker, 2013 WL 5947623, at *17. “The district court should
exclude hours that are not reasonably expended.” Rode, 892 F.2d at 1183. “Hours
are not reasonably expended if they are excessive, redundant, or otherwise
unnecessary.” Id.
B.

Plaintiffs’ Attorneys’ Fee Requests Are Mostly Reasonable

In the motion sub judice, Plaintiffs’ attorneys at the Flaster/Greenberg firm
(namely, Abbe Fletman, Nella Bloom, and Joanne M. Kelley) claim to be entitled
to $21,950.00 in additional attorney’s fees compensation in this case. The
Woman’s Law Project attorneys (namely Terry Fromson and Amal Bass) claims an
additional $6,190.00 in compensation.
In response to the Plaintiffs’ attorneys’ request, the District first argues that
the Plaintiffs’ attorneys waived their entitlement to additional fees by unnecessarily
delaying their pursuit. Next, the District challenges many of those hours as being
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excessive, redundant, unnecessary, or unreasonable. The Court addresses these
issues in turn.
1.

Plaintiffs’ Attorneys Did Not Waive Their Fee Entitlement

Without citation to relevant legal authority, the District attempts to assert
that the Plaintiffs’ attorneys’ waived the fees requested in this second petition by
unnecessarily delaying their pursuit. While this argument is persuasive as a matter
of prudent legal practice, it is unavailing as a matter of law.
In this case, while the Plaintiffs’ attorneys’ were dilatory in submitting their
second request for fees and were less than candid with the Court about their intent
to pursue them, it does not rise to the level of a “second major litigation.” See
Hensley, 461 U.S. at 437. Almost all of the Plaintiffs’ attorneys’ work done on
this case was complete and billed as of March 31, 2014. From January 27, 2014,
the date of the first petition, to July 10, 2014, the date of the Court’s Memorandum
and Order resolving the first fee petition, the Plaintiffs’ attorneys’ at the
Flaster/Greenberg firm billed 50.8 hours, generating total fees of $20,431.50, per
the Court’s calculation. See Pls.’ Supplemental Motion Att’y’s Fees, Exs. 2–4, Jul.
24, 2014, ECF No. 62 [hereinafter Pls.’ Mot.]. In contrast, from July 11, 2014 to
the filing of the motion sub judice, Flaster/Greenberg attorneys billed 6.3 hours,
generating fees of $1,575. See id., at Exs. 5–7. The Woman’s Law Project’s last
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hour billed on this matter was on March 26, 2014 according to their filings. See id.
The Court ruled on the initial petition for fees on July 10, 2014. For the
better part of four months after they had concluded the vast majority of their work
in this matter, the Plaintiffs’ attorneys’ did nothing to supplement their initial fee
request or advise the Court of this subsequent request, requiring the Court to waste
limited and valuable judicial resources to decide a second petition that could have
easily been included as a supplement to the original petition and dealt with on one
occasion.
There may be no requirement that a request for “fees on fees” be made
before the underlying fee petition is adjudicated. Nevertheless, it is poor practice
to surprise a busy Court that is eminently conscious of its duty to other wellmeaning litigants awaiting justice, without providing any indication that a
subsequent petition will be filed despite conversations with the Court after the first
petition in which the undersigned inquired, “is there anything else that I should
know?”
“All attorneys, as ‘officers of the court,’ owe duties of complete candor and
primary loyalty to the court before which they practice. An attorney’s duty to a
client can never outweigh his or her responsibility to see that our system of justice
functions smoothly. This concept is as old as common law jurisprudence itself.”
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Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1546 (11th Cir. 1993).
An attorney may offend her duty of candor by salient omission. See, e.g.,
Cleveland Hair Clinic, Inc. v. Puig, 200 F.3d 1063 (7th Cir. 2000) (upholding
district court sanctioning attorney for, inter alia, failing to disclose relevant
information). Judicial resources are limited. Candor from attorneys practicing
before the Court contributes to the thoughtful application of these resources in
efforts to achieve timely justice for all litigants. Lack of candor undermines this
worthy aspiration.
Despite the Plaintiffs’ attorneys’ disregard of limited judicial resources, their
behavior did not waive their entitlement to fees in this matter.
2.

Reasonableness of Fees

The District challenges a number of the Plaintiffs’ attorneys’ hours in this
fee request as being unreasonable, excessive, redundant, or unnecessary. “A
prevailing party is not automatically entitled to compensation for all the time its
attorneys spent working on this case; rather, a court awarding fees must decide
whether the hours set out were reasonably expended for each of the particular
purposes described and then exclude those that are excessive, redundant, or
otherwise unnecessary.” Interfaith v. Cmty. Org. v. Honeywell Int’l Inc., 426 F.3d
694, 711 (3d Cir. 2005) (internal quotations and citation omitted).
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The United States Court of Appeals for the Third Circuit has concluded that,
generally, a party challenging a fee request must only “submit briefs that identify
the portion of the fee request being challenged and state the grounds for the
challenge with sufficient specificity to give the fee applicants notice that they must
defend the contested portion of their fee petition.” Bell, 884 F.2d at 715.
Furthermore, “the party raising such challenges, which affect an entire category (or
several categories) of work, need only specify with particularity the reason for its
challenge and the category (or categories) of work being challenged; it need not
point to each individual excessive entry.” Id. at 721.
As an initial matter, the Plaintiffs’ attorneys’ adjusted the starting point for
this inquiry by retracting hours in their Reply Brief. The Flaster/Greenberg firm
withdrew its request for one (1) hour of Attorney Kelley’s time and one-half (0.5)
hour of Attorney Fletman’s time incurred to correct its error regarding litigation
statistics. Pls.’ Reply Br., at 6 n.2, Aug. 13, 2014, ECF No. 64. The Woman’s
Law Project withdrew its request for 1 hour of Attorney Bass’ time spent on March
18, 2014. Id., at 6 n.3. Flaster/Greenberg then requested an additional 8.1 hours of
Attorney Kelley’s time while preparing their Reply Brief, adding $1,215 to their

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total request of $22,852.50.3 The Woman’s Law Project seeks a total of $6,040.
The District challenges the Plaintiffs’ attorneys’ request on a number of
grounds that the Court considers in turn. First, they allege overlap between hours
claimed in their first petition and the hours claimed in this petition. The Court
conducted the required line-by-line analysis of the attorney billing records, and
there are few overlapping hours. While the date ranges for the billing records
among the five attorneys involved in this matter for the Plaintiffs do overlap, the
records reflect that the attorneys did not “double-bill” in this second petition for
work they were compensated for after the first petition. See generally Pls.’
Supplemental Mot., Exhibits, Jul. 24, 2014, ECF No. 62; Pls.’ Mot. Att’y’s Fees,
Exs., Jan. 27, 2014, ECF No. 47-5. The District may have conflated work done by
different attorneys on the same day within the period of overlapping dates. There
is no duplicate work requiring a reduction in hours on this point.
Next, they allege unnecessary duplication between sophisticated attorneys
on simple work that does not merit extensive review. Although the Court reduced

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Curiously, this contemporaneous request for the work done on the brief filed at the time
of the brief was exactly the sort of information that could have been included in the Plaintiffs’
attorneys’ original fee request. That would have allowed the Court to dispose of this issue with
finality on one occasion. After suggesting that supplying this information with nearcontemporaneous filings at the time of the initial request was an onerous and unreasonable
proposition, the Plaintiffs’ attorneys did that very thing with this request in their Reply Brief.
Pls.’ Reply Br., at 2, 6.
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the number of duplicative hours that Attorneys Fletman and Fromson worked on
the same documents in response to their first request for fees, the billing records
submitted with this current request do not display the same unreasonably redundant
overlap of work. Accordingly, after close scrutiny, the Court declines to reduce the
hours expended by these attorneys because the work done appears reasonable.
Third, the District alleges that Attorney Kelley’s time spent preparing and
drafting a joint case management plan along with written discovery requests should
be struck because the work ultimately proved unnecessary when the case was
stayed and settled. The Parties agreed to stay the matter for forty-five days to
attempt a resolution, which was successful and obviated the need for the plan or
discovery. Nevertheless, the record indicates that Attorney Kelley worked on these
matters in January 2014. The case was stayed on February 4, 2014. Accordingly,
this time is compensable.
Fourth, on February 18, 2014, Attorney Kelley spent one-half (0.5) hour
researching Local Rules and drafting a certificate of non-concurrence. The Court
discerns no reason why this task was unnecessary, as the District certainly did not
consent to the Plaintiffs’ attorneys’ motion. Accordingly, this task is compensable.
Fifth, the District argues that Attorney Bass’ time should be struck because
her time entries are generic and non-descriptive. On March 17 and 18, 2014, Amal
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Bass entered a total of 4.1 hours working on “Reply to D’s brief in opposition to
fees.” This is certainly a vague description. Does it mean that Attorney Bass
researched issues relating to the Plaintiffs’ attorneys’ Reply Brief? Does it mean
that Attorney Bass drafted the Reply Brief? Does it incorporate both of those
activities?
The scrivener’s personal experience in private practice includes clients that
will not pay for such vague time entries that fail to specify precisely the work done
at that time. Nevertheless, the 4.1 hours spent on tasks related to the Plaintiffs’
attorneys’ Reply Brief is not an unreasonable amount of work. The Court is more
understanding of the laborious task of documenting billable hours than many
corporate clients, and will not deduct seemingly honest labor for lack of specificity
affecting so few hours.
The District also asserts that the Court should reduce the Plaintiffs’
attorneys’ fee award because their last fee petition was only of limited success.
The District conflates the focus of the legal standard on this issue, which is
concerned not primarily with the Plaintiffs’ attorneys’ success on their last fee
petition, but with the Plaintiffs’ success on the merits in the underlying litigation.
See, e.g., Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d 897,
910–15 (3d Cir. 1985). The Plaintiffs were successful on the merits and their
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attorneys are legally entitled to fees.
The Plaintiffs’ attorneys withdrew hours subject to the District’s other
arguments. Accordingly, the Plaintiffs’ attorneys’ billed hours are not
unreasonable and they are legally entitled to compensation, notwithstanding the
imprudent manner in which they submitted the request.
III.

CONCLUSION
For the foregoing reasons, the District shall compensate Flaster/Greenberg’s

attorneys in the amount of $22,852.50. The District shall compensate the
Women’s Law Project attorneys $6,040.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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