PENNSYLVANIA GENERAL ENERGY COMPANY, LLC v. GRANT TOWNSHIP

Filing 335

MEMORANDUM OPINION re 320 MOTION for Attorney Fees & Costs Pursuant to 42 U.S.C. Sec. 1988 as the Prevailing Party for Claims Pursued Under 42 U.S.C. Sec. 1983 filed by PENNSYLVANIA GENERAL ENERGY COMPANY, LLC, 332 MOTION for Hearing filed by GRANT TOWNSHIP. Signed by Judge Susan Paradise Baxter on 3/31/2019. (css)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PENNSYLVANIA GENERAL ENERGY
COMPANY, LLC,
Plaintiff

)
)
)
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)
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)
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)

vs.

GRANT TOWNSHIP,
Defendant.

C.A.No. 1:14-cv-209

Re: Motion for Attorney’s Fees
ECF No. 320

MEMORANDUM OPINION
District Judge Susan Paradise Baxter1
Pending before this Court is PGE’s motion for attorney’s fees and costs. ECF No. 320. In
support of its motion, PGE submitted detailed billing records for over $600,000, but to avoid
bankrupting Grant Township, PGE expressed a willingness to accept $102,979.182. In opposition
to the motion for fees, Grant Township argues: (1) PGE is not a prevailing party; (2) any award
of fees would be unreasonable; (3) any award of fees would be unjust; and (4) the specific
amount of fees requested is unreasonable. ECF No. 328.

This civil action was originally assigned to District Judge Frederick J. Motz and then assigned
to District Judge Arthur J. Schwab for settlement purposes. Later, in accordance with the
provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to the full jurisdiction of a
Magistrate Judge and this case was then assigned to the undersigned. On September 14, 2018,
the undersigned was elevated to the position of United States District Judge and this case
remained assigned to her.
1

This number includes $100,00.00 in attorney’s fees and $2,979.18 in costs and online research
fees.
2

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Relevant Procedural History3
Plaintiff PGE, a corporation, filed this suit challenging the constitutionality, validity, and
enforceability of the Community Bill of Rights Ordinance (“Ordinance”) adopted by Grant
Township. Plaintiff sought relief to enforce its federal constitutional rights through § 1983.4
Plaintiff also alleged that the Ordinance was preempted by Pennsylvania state statutes. ECF No.
5. As relief, PGE sought injunctive relief and declaratory judgment, as well as compensatory and
consequential damages. Grant Township filed a counterclaim against PGE for violation of the
rights of the people of the Township to “local community self-government” as secured by the
American Declaration of Independence, the Pennsylvania Constitution, the federal constitutional
framework, and the Ordinance itself. ECF No. 10.
Cross-motions for judgment on the pleadings were resolved as to certain of the parties’
claims by the partial granting of PGE’s motion. The Court declared six operative provisions of
the challenged Ordinance invalid, as each was preempted by state law, and the Township was
enjoined from enforcing each of these six provisions. Grant Township’s motion seeking
judgment on its counterclaim was denied. ECF No. 172.
Next, motions for summary judgment were filed. PGE sought summary judgment on its
federal constitutional claims and in its favor on Grant Township’s counterclaim. Grant Township
moved for summary judgment, again asserting that PGE violated the rights of the people of
Grant Township to “local community self-government.”
Grant Township’s motion was denied and PGE’s motion for summary judgment

Because the Court writes for the parties who are well-acquainted with the protracted and
complex nature of this case, only the procedural history relevant to resolving the present motion
is related here.
3

In Citizens United v. Federal Election Comm’n, 558 U.S. 310, 342 (2010), the Supreme Court
announced that First Amendment protections extended to corporations.
4

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was granted in part and denied in part. Important to the discussion here, summary judgment was
entered in favor of PGE on Grant Township’s counterclaim, as well as its own challenges under
the Equal Protection Clause, the Petition Clause, and the substantive component of the Due
Process Clause. Summary judgment was denied on PGE’s procedural due process and Contract
Clause challenges because of PGE’s failure to submit sufficient evidence to support summary
judgment, and the Supremacy Clause claim was dismissed because that Clause is not privately
enforceable. ECF No. 241.
Before trial commenced, PGE and Grant Township settled5 and filed a Joint
Stipulation agreeing that PGE would dismiss with prejudice its procedural due process claim, the
Contract Clause claim, and the Pennsylvania Sunshine Act claim, as well as its request for
compensatory and consequential damages, in exchange for accepting $1.00 from Grant
Township on the constitutional claims on which the Court had previously entered summary
judgment in PGE’s favor. ECF No. 319.

Analysis
Prevailing party
42 U.S.C. § 1988 provides for the award of a “reasonable attorney’s fee as part of the
costs” to the prevailing party in a § 1983 action. 42 U.S.C. § 1988(b). Despite Grant Township’s
arguments to the contrary,6 PGE is the prevailing party in this litigation.

Trial on damages on the Equal Protection, Petition Clause and substantive due process
challenges and trial on liability on the other constitutional claims were both avoided by the
settlement.
5

Grant Township posits that because PGE is a corporation and because § 1988 was intended to
advance the civil rights movement, PGE should not be considered a prevailing party under §
1988. Grant Township has cited no legal authority in support of its position in either regard. The
6

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A party prevails within the meaning of § 1988 “when actual relief on the merits of his
claim materially alters the legal relationship between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff.” Lefemine v. Wideman, 568 U.S. 1, 4-5
(2012) quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). The prevailing party inquiry does
not turn on the award of monetary damages. See id. citing Rhodes v. Stewart, 488 U.S. 1, 4
(1988) (“…we have repeatedly held that an injunction or declaratory judgment … will usually
satisfy” the prevailing party inquiry).
PGE prevailed on several state law claims at the motion for judgment on the pleadings
stage where it achieved injunctive and declaratory relief on those claims.7 Grant Township was
enjoined from enforcing several of the meatiest provisions of its Ordinance. Later, PGE
prevailed on several of its federal constitutional claims at the summary judgment stage. In
contrast, Grant Township did not prevail on its counterclaim against PGE. There can be no doubt
that PGE is the prevailing party here.

No presumption against award of fees
Next, Grant Township argues that, even if PGE is technically a prevailing party, any
award of fees would be unreasonable. According to Grant Township, a presumption arises under

plain language of the statute and the Supreme Court’s recognition of a corporation’s ability to
enforce its constitutional rights means that § 1988 applies here.
Attorney’s fees may be recovered under § 1988 on pendent state law claims so long as they
arose from a common nucleus of operative fact with federal claims. See Rogers Group, Inc. v.
City of Fayetteville, Arkansas, 683 F.3d 903, 913 (8th Cir. 2012). See also Jama v. Esmor Corr.
Services, Inc., 577 F.3d 167, 177, n.9&10 (3d Cir. 2009) (“[T]he language of 1988(b) seems to
be sufficiently broad to endorse the inclusion of state claims in the consideration of overall
success.”). Most of the pendant state law claims raised by PGE shared a common nucleus of
operative facts with the federal claims as most of the claims were a direct challenge to the
Ordinance.
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Farrar v. Hobby, 506 U.S. 103 (1992), and its progeny when “nominal damages” are awarded
that precludes any award of fees. Not only is this a misreading of Farrar, but more to the point,
this argument is based on the false premise that “nominal damages” were awarded by the Court
here. They were not.8 This case is thus unlike the cases where nominal damages were awarded
by a jury. Here, it was the settlement language between the parties, which resulted in PGE
accepting $1.00 in return for other terms in the settlement agreement, not any award by this
Court or a jury.9

Special Circumstances
Grant Township claims that any award of fees would be unjust. The prevailing party
should recover an attorney’s fee “unless special circumstances would render such an award
unjust.” Lefemine, 568 U.S. at 4-5.
Grant Township’s arguments in this regard lack merit: The limited financial means of
Grant Township do not constitute special circumstances nor is any fee award automatically
contrary to public policy here. Grant Township appeals to the sympathy of the Court regarding

This Court is not bound by the term “nominal damages” used in the Joint Stipulation Order as
descriptive of the settlement amount.
8

Therefore, the cases cited by Grant Township in support of their presumption argument are
inapposite here. See Jama, 577 F.3d at 169 (remanded for a determination of whether a RFRA
claim on which jury awarded nominal damages and pendant state negligence claims on which
jury awarded $100,000.00 involved common core of facts or were based on related legal
theories); Velius v. Township of Hamilton, 466 Fed.App’x 133, 140-41 (3d Cir. 2012) (in a case
in which jury awarded only nominal damages on a Fourth Amendment claim, Third Circuit
held “we read Farrar to grant district courts substantial discretion to decide whether no fee or
some fee would be reasonable, as long as they acknowledge that a nominal damages award is
presumptively a technical victory that does not merit an award of attorney’s fees.”); Carroll v.
Clifford Township, 625 Fed.App’x 43 (3d Cir. 2015) (upholding a district court’s denial of
attorney’s fees in case in which jury awarded the plaintiff nominal damages alone on a
freedom of association claim).
9

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the dire financial circumstances that would be brought about by the award of any amount of
attorney’s fees; nonetheless, “the losing party’s financial ability to pay is not a ‘special
circumstance’” under § 1988. Inmates of Allegheny County v. Pierce, 716 F.2d 177, 180 (3d Cir.
1983). Moreover, Grant Township should have to bear some of the responsibility here as it was
on notice that the Ordinance was constitutionally suspect and likely preempted before it was
passed. Even after the Ordinance was adjudged preempted by state law, Grant Township sought
to make an end run around that judicial determination by amending its form of government and
adopting the pre-empted and constitutionally deficient provisions in the form of a Home Rule
Charter.
Grant Township also argues that PGE’s litigation strategy prolonged the proceedings. As
this Court has already determined, complex and protracted litigation such as this “creates
enormous expense to parties and taxes limited judicial resources.” ECF No. 290, page 20. That
said, it is not PGE’s litigation strategy that has prolonged this case, but Grant Township’s. In
awarding sanctions to PGE under 28 U.S.C. § 1927, this Court found “[t]he continued pursuit of
frivolous claims and defenses, despite Linzeys’ first-hand knowledge of their insufficiency and
the refusal to retract each upon reasonable requests, substantially and inappropriately prolonged
this litigation, and required the Court and PGE to expend significant time and resources
eliminating these baseless claims.” Id. at page 24.

Reasonableness of request for fees
Finally, Grant Township argues that the specific amount of $100,000.00 in attorney’s
fees requested by PGE is unreasonable. PGE argues to the contrary.

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The party seeking fees bears the burden of proving “that its requested hourly rates and the
hours it claims are reasonable.” Arneault v. O’Toole, 2016 WL 7029620, at * 3 (W.D. Pa. 2016)
quoting Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 703 n.5 (3d Cir.2005). To
satisfy this burden, the party seeking fees is first required to submit evidence supporting the
hours worked and the rates claimed. Id. If it seeks to challenge the fees sought, “the opposing
party must then object ‘with sufficient specificity’ to the request.” Id.
When awarding attorney's fees and costs under § 1988, courts within the Third Circuit
use the “lodestar” method. See Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir.2001). The
first step in using the lodestar method is to calculate “the product of the hours reasonably
expended and the applicable hourly rate for the legal services.” Pub. Interest Research Grp. of
N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir.1995) citing Hensley v. Eckerhart, 461 U.S.
424, 433 (1983). A court has substantial discretion in determining what constitutes a reasonable
rate and reasonable hours10, but once the lodestar is determined, it is presumed to be the
reasonable fee, even though the court has discretion to adjust the fee for a variety of reasons.
Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir. 2001).
PGE has supplied information sufficient to recover all the fees billed for this litigation but
only seeks a fraction of those fees in a good-faith effort to reduce the financial hardship on the
Township. PGE has submitted Affidavits, detailed invoices, and summaries of each Babst
Calland attorney’s work. The time entries for each billing attorney for each day of billed work

See Arneault, 2016 WL 7029620, at *7 (“The Supreme Court expressly recognized in Fox [v.
Vice, 563 U.S. 826 (2011)] that, while a fee applicant must submit appropriate documentation to
meet his burden of establishing entitlement to an award, ‘trial courts need not, and indeed should
not, become green-eyeshade accountants.’ 563 U.S. at 838. Rather, ‘the essential goal in shifting
fees (to either party) is to do rough justice, not to achieve auditing perfection.’ Id. to that end,
‘trial courts may take into account their overall sense of a suit, and may use estimates in
calculating and allowing an attorney’s time.’”).
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show how much time was spent and why that time was spent. ECF No. 322; ECF No. 323; ECF
No. 324.
The records show that attorneys billed PGE for 1738.70 hours. This number comes as no
surprise to this Court. This case has a protracted and convoluted procedural history including
assignment to three judges, a proposed assignment to a Special Master, an early motion for
preliminary injunction with associated discovery disputes, and two motions for intervention.
Each of the many filings was inordinately lengthy and some were byzantine. The calculation of
this number of hours is reasonable.
In fact, this Court finds that the number of hours billed is reasonable both for what is
included, but even more so for what is not included. The most striking example is the work of
Lisa Manus, Vice President and General Counsel for PGE, who spent over one thousand hours
drafting filings; yet, none of her time is included in the request for fees. ECF No. 322, Manus
Affidavit at ¶ 16. The billing records do not include any time spent primarily attributable to
supporting or opposing the two motions for intervention, both of which were significant. Finally,
not included is time spent by any attorney who billed fewer than ten hours and nothing is
included for legal services in which Babst Calland waived or reduced its fees.
Grant Township also challenges two entries as “potentially improper ex parte
communications” with the Court:
-

-

11

“review option of behind the scenes discussion with Judge Schwab” on
February 26, 2015; and
“telephone call to Judge Baxter’s clerk to provide information re: DEP’s11
position” on July 31, 2015.

The DEP is not a party to this case.
8

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ECF No. 322-3, page 67 and ECF No. 322-5, page 28 (February 26th entry); ECF No. 322-3,
page 90 and ECF No. 322-5, page 7 (July 31st entry).
It is necessary for the Court to address this charge against it. Neither of these challenged
entries raises an issue of improper ex parte communication. The first entry does not indicate that
any attorney called Judge Schwab, only that the option of doing so was reviewed. Even if the
entry means an attorney contacted Judge Schwab, such a communication would not have been
improper as Judge Schwab was never the presiding judge on this matter. The second challenged
entry is also not improper as the Chambers Policies and Practices of the undersigned allow
attorneys to discuss procedural matters with law clerks, which was the issue here.
PGE was invoiced for 1738.70 hours at an average hourly rate of $355.00.12 PGE’s
suggestion that fees be awarded in the amount of $100,000.00 is infinitely reasonable. By doing
so, PGE is basically agreeing to an average hourly rate of approximately $57.51.

Costs
PGE’s fee petition includes a request for costs of $2,979.18. Grant Township has
expressed no objections to the request. These costs are not unreasonable and will therefore be
awarded.

Grant Township’s Request for Hearing
Grant Township requested a hearing on the motion for attorney’s fees, which will be
denied as moot. This Court generally does not find oral argument useful in the resolution of
Six attorneys from the firm of Babst Calland billed PGE for work here. Each attorney billed at
a different hourly rate (that rose throughout the long pendency of this matter) and for a different
number of hours. To arrive at the average hourly rate of $355.00, this Court divided the total fee
invoiced by the total number of hours invoiced (from the chart found at ECF No. 321, page 35).
12

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motions where briefing has already occurred. In unusual situations where argument would be
helpful to the Court’s resolution of complex matters, oral argument may be permitted. This Court
believes that oral argument here would not significantly assist its understanding or resolution of
PGE’s request for fees and costs. Nothing about the request presented issues of unusual
complexity, and argument in this matter would have increased litigation costs without providing
any appreciable assistance to the Court.
In addition, the Court found no basis for an evidentiary hearing. Grant Township’s only
justification for requesting an evidentiary hearing is that, to the extent that Court finds that there
are any issues of disputed fact, … the proper procedure is for the Court to hold an evidentiary
hearing.” ECF No. 332, at 1-2. Notably, Grant Township did not identify any specific issues of
disputed fact that would require resolution through evidentiary hearing, and this Court found
none.

Conclusion
PGE is awarded attorney’s fees in the amount of $100,000.00 and costs of $2,979.18. An
appropriate order follows.

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