MCGUIRE v. CITY OF PITTSBURGH et al

Filing 130

MEMORANDUM re 122 MOTION for Attorney Fees and costs filed by SHANE MCGUIRE. Signed by Judge Mark A. Kearney on 4/7/2017. (kly)

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

SHANE MCGUIRE

NO. 14-1531

v.
COLBY J. NEIDIG

April 7, 2017

KEARNEY,J.

MEMORANDUM
Federal civil rights laws allow us to award reasonable attorney's fees and costs incurred
by a citizen who convinces the jury a police officer deprived him of civil rights by engaging in
excessive force. Civil rights litigation requires a citizen's vigorous advocacy against the state
and we hesitate to second-guess the steps taken to persuade a jury. But citizens cannot compel
police officers to pay fees and costs for efforts leading to unsuccessful claims.
Our jury unanimously found off-duty Pittsburgh police officer Colby Neidig violated
teenager Shane McGuire's civil rights by using excessive force upon him on November 12, 2012
in immediate response to Mr. McGuire's admittedly stupid pranks on the front porch of the
Neidig family home on a weekend evening.

Mr. McGuire is entitled to recover his fees and

costs incurred in establishing Officer Neidig's excessive force acting under color of state law but
not for time incurred solely pursuing dismissed parties, working with barred experts, or for
clerical duties.

Our accompanying Order balances these principles after review of detailed

records and awards $170,746.95 in reasonable fees and costs incurred by Mr. McGuire in
prevailing on his civil rights excessive force claim against Officer Neidig.

I. Background

Mr. McGuire initially sued the City of Pittsburgh and its police officers Colby Neidig and
David Blatt alleging: (a) Officer Neidig violated his civil rights by excessive force, assault, and
battery; (b) Officer Blatt violated his civil rights by not intervening; (c) both police officers
violated his civil rights through conspiracy, false arrest/imprisonment and malicious prosecution;
both police officers are liable for false imprisonment under Pennsylvania Law; (d) both the City
and officers owed damages under Pennsylvania malicious prosecution law; and, (e) the City
should be separately liable under the civil rights law for failure to train, supervise, and discipline
its officers. 1
We initially dismissed Mr. McGuire's claims against Officer Blatt before discovery.2 Mr.
McGuire then proceeded into discovery only against the City for failure to train, supervise, and
discipline and against Officer Neidig for excessive force, assault, and battery. 3 Following
discovery, we dismissed his claims against the City but allowed Mr. McGuire to try his civil
rights excessive force and state law assault and battery claims against Officer Neidig who
defended by arguing, among other things, he did not act under color of state law, an issue the
parties vigorously disputed.

4

Before trial, we excluded Mr. McGuire's proffered expert

testimony of criminologist Paul McCauley, PhD, FACFE, finding his opinions on the issues of
excessive force and color of law constituted impermissible legal opinions. 5 Although the City
listed Officer Blatt as a witness in its pretrial memorandum, the City did not call him as a
witness.
After trial, the jury found Officer Neidig acted under color of state law and used
excessive force. We entered judgment in favor of Mr. McGuire for $75,000 against Officer
2

Neidig for violating Mr. McGuire's civil rights through excessive force under the Fourth
Amendment.
Mr. McGuire now moves for attorneys' fees and costs under 42 U.S.C. § 1988, 28 U.S.C.
§ 1920, and Federal Rule of Civil Procedure 54. 6 He requests $192,115.00 in attorney's fees and
$10,171.97 in costs. As to attorney's fees, he calculates 358.3 hours of work at $450 per hour for
Attorney Mark A. Eck, 142.6 hours at $200 per hour for Attorney Amanda Nese, 7 and 11.8 hours
at $200 per hour for Attorney Katie Van Hoey. 8
Officer Neidig does not object to the reasonableness of the hourly rates. He objects to
certain fees and costs expended on: (a) unsuccessful claims dismissed before trial against the
City and Officer Blatt; (b) expert coordination with Mr. McCauley; (c) clerical tasks; (d)
intraoffice conferences/communications; (e) excessive time preparing certain pleadings and
documents; and (e) printing and color copying costs. 9 We agree in part.
II. Analysis

Under § 1988, we may award a reasonable attorney's fee to Mr. McGuire after he
prevailed against Officer Neidig in enforcing his civil rights. 10 In determining a reasonable fee,
we use the lodestar method of calculating the "number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate."ll The fee applicant bears the ultimate burden
of showing its fees are reasonable. 12 We may only reduce an award in response to a specific
objection made by an opposing party. 13 We conduct "a thorough and searching analysis" of a fee
application. 14
We may not award fees for work expended on unsuccessful claims which are "not related
to the claims on which the attorney succeeded. "' 15 To reduce hours expended on unsuccessful
3

claims, we must ensure the claims are sufficiently distinct from the successful claims. 16 In other
words, the unsuccessful claims cannot "depend on the same sets of facts and legal theories as the
claims on which the party has succeeded." 17 This is because time expended on related successful
and unsuccessful claims is "difficult to divide ... on a claim-by-claim basis." 18
Mr. McGuire has the burden of proving "the time spent pursuing the unsuccessful claims
contributed in any way to his success on his remaining claims." 19 "It is incumbent on the fee
applicant ... to 'maintain billing time records in a manner that will enable a reviewing court to
identify distinct claims. "'20 If we lack specific time entries indicating how the attorneys spent
time on distinct claims, we may reasonably use the information available to us to estimate a
proper division of time. 21
A. We deduct fees incurred in suing the City and unrelated to work necessary to
show color of state law.

Officer Neidig seeks to deduct time Mr. McGuire's counsel expended on litigating the
claims against the City because "the claims against the City are wholly separate and distinct from
the claims against Officer Neidig." 22 Mr. McGuire argues it is irrelevant the claims are distinct
because the discovery he sought from the City also related to the color of law and excessive
force issues. 23
We will allow Mr. McGuire to recover fees expended on litigating the color of state law
issues against the City, but not for unrelated work. We evaluated the time entries. Many efforts
involved exploring Officer Neidig's duties as a state actor to assist in showing the jury how his
actions on the weekend evening of November 12 derive from his police training. We heard
credible testimony of Officer Neidig resorting to police training and acting as he would in
pursuing a target for his police role. But Mr. McGuire has not shown some billing entries are
4

compensable as related to Officer Neidig's state actor liability:

Hours Requested Value
Hourly
Rate

Date

Time
Narrative
Keeper

7114/2016

MAE

Review and analysis of Motion for summary 2.40
judgment and brief filed on behalf of City of
Pittsburgh.

450

1080.00

7/19/2016

ALP

Conducted research on municipality's 1.70
liability m preparation of response m
opposition to the City of Pittsburgh's Motion
for summary judgment.

200

340.00

7/21/2016

ALP

Reviewed OMI and City documents in order 2.50
to prepare response in opposition to the City
of Pittsburgh's Motion for summary
judgment.

200

500.00

7/29/2016

ALP

Prepared response in opposition to the City of 4.40
Pittsburgh's Motion for summary judgment.

200

880.00

8/5/2016

ALP

Prepared response in opposition to City of 1.70
Pittsburgh's Motion for summary judgment.

200

340.00

8/9/2016

ALP

Prepared response in opposition to the City of 6.50
Pittsburgh's Motion for summary judgment.

200

1300.00

8/10/2016

ALP

Finalized response in opposition to the City 5.90
of Pittsburgh's Motion for summary
judgment.

200

1180.00

8/10/2016

MAE

Review and analysis of initial draft of 3.40
response to City's Motion for summary
judgment and proposed exhibits; review and
corrections to same and discussion with
office associate concerning needed changes.

450

1530.00

5

8/11/2016

ALP

Finalized response in opposition to City's 4.60
Motion for summary judgment.

200

920.00

8/11/2016

MAE

Review of amended brief in opposition to 2.60
City's Motion for summary judgment and
corrections to same and additional discussion
with office associate concerning amending
same.

450

1170.00

8/12/2016

ALP

Final edits to response in opposition to City's 1.70
Motion for summary judgment

200

340.00

8/12/2016

MAE

Continued review of response in opposition 4.20
to City of Pittsburgh's Motion for summary
judgment and corrections to same; review of
relevant case law and exhibits and other
information for attachment to response and
discussion with office associate concerning
same.

450

1890.00

8/19/2016

MAE

Review of relevant case law concerning 5.20
scope of proof necessary as to City of
Pittsburgh and preparation of targeted
discovery to City.

450

2340.00

8/26/2016

ALP

Examination of the City's reply to McGuire's 0.20
response m opposition to Motion for
summary judgment.

200

40.00

8/26/2016

MAE

Review and analysis of City of Pittsburgh's 3.50
brief in reply to plaintiff's response to Motion
for summary judgment and various
attachments thereto.

450

1575.00

9/1/2016

ALP

Reviewed case law cited in the City's reply 0.40
brief.

200

80.00

9/2/2016

ALP

Prepared sur-reply brief to the City of 2.70
Pittsburgh's reply brief.

200

540.00

9/6/2016

ALP

Revised sur-reply to the City's reply in 0.40
support of MSJ.

200

80.00

6

9/6/2016

MAE

Review and suggested corrections to sur- 1.10
reply to City of Pittsburgh's response on
Motion for summary judgment.

TOTAL

450

495.00

16,620.00

These entries relate to Mr. McGuire hoping to prove the City's independent liability. We
held Mr. McGuire could not establish claims against the City. Neither party presented evidence
at trial regarding the City's liability. We deduct $16,620 as expended entirely on estabishing the
City's liability with no adduced facts the work also addressed Officer Neidig acting under color
of state law.

B. We deduct fees relating to Paul McCauley.
Officer Neidig argues we should deduct fees expended on Mr. McGuire's proffered
expert, Mr. McCauley, because we excluded his testimony. Mr. McGuire responds although we
excluded Mr. McCauley's expert testimony, we should allow these fees because his counsel acted
prudently by retaining Mr. McCauley. We stand by our February 14, 2017 Order precluding Mr.
McCauley's expert testimony on the excessive force and color of law issues because his
proposed opinions constituted improper legal opinions. These issues are unrelated to the jury's
verdict because the jury never heard from Mr. McCauley or any similar expert.

7

We deduct fees expended on retaining, working with and defending Mr. McCauley legai
conclusions in the guise of an expert opinion:

Date

Time
Narrative
Keeper

Hours Requested Value
Hourly
Rate

11/11/2014

ALP

Searched for experts to testify.

0.80

200

160.00

11/11/2014

MAE

Review of local databases and other 2.40
sources concerning potential retention
of case expert.

450

1080.00

11/17/2014

ALP

Review of various resumes of 2.50
potential experts to retain in matter.

200

500.00

11/19/2014

MAE

Telephone call to Randall Paul 0.20
McCauley
concerning
potential
retention as expert in matter.

450

90.00

11/20/2014

MAE

Lengthy telephone conversation with 0.80
McCauley
concerning
Paul
background of matter and potential
for representation in case.

450

360.00

11/21/2014

MAE

E-mail to Mr. McCauley of copy of 0.40
complaint in anticipation of retention
as expert.

450

180.00

11/24/2014

ALP

Prepared retainer letter for expert.

0.10

200

20.00

5/21/2015

MAE

Review and analysis of materials as 3.20
received from expert concerning
potential
questioning
during
depositions.

450

1440.00

8/20/2015

MAE

E-mail
exchanges with expert 0.60
..
concernmg court's opm1on and
discovery materials received and need
for additional information.

450

270.00

8

4/13/2016

MAE

Discussion with expert Mr. McCauley 0.30
concerning status of expert report.

450

135.00

4/15/2016

MAE

Receipt and review of draft of Mr. 2.50
McCauley's expert report.

450

1125.00

4/18/2016

MAE

Review and analysis of initial draft of 2.50
report from expert Mr. McCauley and
notations on same.

450

1125.00

4/18/2016

ALP

Reviewed juvenile records in order to 0.30
correct expert report of Paul
McCauley.

200

60.00

4/22/2016

MAE

Continued review of draft of expert 6.20
McCauley's report and discussion
with Mr. McCauley concerning same
and separate letter to Dr. Greg Habib
concerning review of medical records
for Shane and potential issuance of
expert report as required by rules and
forwarding of records and other
information to Dr. Habib.

450

2790.00

2/7/2017

KMV

Examination of file materials related 1.50
to the Defendant's Motion in limine
to exclude the testimony of Paul
McCauley.

200

300.00

2/7/2017

KMV

Begin research on case law related to 1.70
and
Rules
Daubert challenges
702/704.

200

340.00

2/8/2017

MAE

Discussion with office associate 0.80
concernmg response to motion to
strike testimony of Dr. McCauley, and
strategy concerning handling same.

450

360.00

2/8/2017

KMV

Continued research on case law 0.50
related to Daubert challenges and
Rules 702/704.

200

100.00

9

2/10/2017

MAE

Review of proposed response 0.80
concemmg motion to strike Mr.
McCauley.

450

TOTAL

360.00

10,795.00

C. We deduct fees for delegable clerical or administrative tasks.
Clerical or administrative tasks which could have been delegated to non-professionals are
not compensable. 24 "[W]hen a lawyer spends time on tasks that are easily delegable to nonprofessional assistance, legal service rates are not applicable." 25 We reduce Mr. McGuire's
requested fees to the extent he seeks compensation for delegable clerical or administrative tasks:

Date

Time
Keeper

Narrative

Hours

11/13/2014

ALP

Created binder of all documents in 1.50
possession.

200

300.00

11/17/2014

ALP

Searched for documents.

0.50

200

100.00

11/18/2014

ALP

Prepared binder for expert.

0.50

200

100.00

2/10/2015

ALP

Telephone call to John Noble to 0.10
schedule ENE.

200

20.00

2/11/2015

ALP

Telephone call to John Nobel about 0.10
early neutral evaluation.

200

20.00

2/13/2015

ALP

Scheduled ENE with John Nobel

0.10

200

20.00

3/18/2015

ALP

Telephone call to Michele of John 0.10
Nobels office regarding rescheduling
of ENE.

200

20.00

10

Requested Value
Hourly
Rate

4/9/2015

ALP

Prepared binder for expert enclosing 0.60
additional documents.

200

120.00

10/27/2015

ALP

Telephone
regarding
subpoena.

200

40.00

11121/2016

ALP

Telephone call to
regarding mediation.

Nobel 0.10

200

20.00

11/22/2016

ALP

Email to John Nobel regarding 0.10
mediation.

200

20.00

11/29/2016

ALP

Various email correspondence with 0.30
of Nobel
mediation
Michele
regarding scheduling of McGuire
mediation.

200

60.00

11/29/2016

MAE

Various e-mail exchanges with 0.80
counsel concerning scheduling of
mediation.

450

360.00

11/30/2016

MAE

Confirmation with mediator's office 0.50
as to time and set for mediation, emails to counsel concerning same.

450

225.00

conference with CSI 0.20
personal service of

TOTAL

John

1,425.00

D. We deduct fees relating to Mr. McGuire's unsuccessful claims against Officer
Blatt.
Officer Neidig argues we should deduct fees expended on Mr. McGuire's unsuccessful
claims against Officer Blatt, contesting only four billing entries relating to counsel's review and
preparation of discovery materials concerning Officer Blatt. Mr. McGuire responds he is entitled
to these fees because Officer Neidig listed him as a potential witness in his pretrial
memorandum.

Mr. McGuire contends he would have reviewed the discovery materials-

including Officer Blatt's personnel file-regardless of Officer Blatt's status as a defendant.

11

Mr. McGuire has not shown the challenged billing entries contributed to success on his
claims against Officer Neidig.

These billing entries have to do with discovery materials

reviewed and prepared prior to our Order dismissing Officer Blatt from this case in August 2015.
Officer Neidig does not challenge billing entries relating to counsel's deposition of Officer Blatt
in 2016, including entries concerning counsel's review of discovery materials in preparation of
the deposition. We accordingly deduct the following 2015 billing entries expended on review
and preparation of discovery materials relating to the unsuccessful claims against Officer Blatt:
Time
Keeper

Date

5/28/2015 MAE
6/2/2015

MAE

61312015

MAE

61412015

MAE

Narrative

Hours

Review and analysis of personnel file
materials of Officer Blatt.
Review of interrogatories of Defendant
Blatt directed to Shane McGuire.
Review and analysis of Officer David
Blatt's personnel file as produced by
City.
Preparation of proposed responses to
discovery and request for production of
documents directed to Shane by Officer
Blatt.

2.60

Requested Value
Hourly
Rate
450
1170.00

0.50

450

225.00

1.40

450

630.00

1.50

450

675.00

TOTAL

2,700.00

E. We allow the remaining challenged fees and costs.

Officer Neidig objects to excessive printing costs, including costs of printing color
copies.

As to the printing costs, Mr. McGuire responds the costs accurately reflect each

document printed and charged by the law firm.

Under 28 U.S.C. § 1920, we may tax as costs

any fees expending on printing. 26 "[T]here is a 'strong presumption' that costs are to be awarded
to the prevailing party. " 27 The losing party bears the burden of establishing the award of costs
would be inequitable. 28
12

Officer Neidig does not meet its burden of showing the objected-to printing costs are
inequitable. Although he claims the color printing costs were unnecessary, he did not provide
evidence in support. We decline to reduce the printing costs.
Officer Neidig argues Mr. McGuire's counsel charged excessive fees for intraoffice
communications. Mr. McGuire contends these fees are reasonable.
Reasonable lawyers are expected to communicate about a case at reasonable times
throughout the litigation. 29 We may, however, deduct fees expended on excessive intraoffice

°

communications. 3 For example, in Citibank NA. v. Hicks, the plaintiff requested fees for over
100 hours expended on attorney conferences. 31 The court deemed these fees excessive and
deducted them by fifty percent. 32
Upon reviewing the fees Mr. McGuire's counsel charged for intraoffice communications,
which amount to a meager 2.6 billable hours, we find these fees are reasonable.
After careful review of the remaining fees, included the fees specifically objected to as
excessive, we find these fees reasonable.

III.

Conclusion

We grant in part Mr. McGuire's Motion for attorney's fees and costs.

We deduct

challenged fees for efforts to support unsuccessful claims against the City and Officer Blatt
which are unrelated to the claims against Officer Neidig. We also deduct fees expended on
efforts related to Paul McCauley and delegable clerical or administrative tasks. The remaining
fees and costs charged are reasonable.
1

ECF Doc. No. 16.

2

ECF Doc. No. 37.
13

3

ECF Doc. No. 37.

4

ECF Doc. No. 61.

5

ECF Doc. No. 99.

6

ECF Doc. No. 122.

7

Ms. Nese-formerly Ms. Ponsurick--changed her last name during this litigation.

8

ECF Doc. No. 122.

9

ECF Doc. No. 127, at pp. 3-4.

10

McKenna v. City of Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009).

11

Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

12

Interfaith Cmty. Org. v. Honeywell Int'!, Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005).

13

Id. at711.

14

Id. at 703 n.5 (quoting Evans v. Port Auth. of NY. & NJ, 273 F.3d 346, 362 (3d Cir. 2001)).

15

McKenna, 582 F.3d at 455 (quoting Hensley, 461 U.S. at 434-35).

16

Id.

17

Id. at 457.

18

Id. (quoting Hensley, 461 U.S. at 435).

19

Id. at 457-58 (quoting Hensley, 461 U.S. at 435) (brackets omitted).

20

Id. at 458 (quoting Hensley, 461 U.S. at 437).

21

Iid. at 458.

22

ECF Doc. No. 127, at p. 7.

23

·.

ECF Doc. No. 128, at p. 3.

14

24

Planned Parenthood of Cent. New Jersey v. Attorney Gen. of State of New Jersey, 297 F.3d
253, 266 (3d Cir. 2002) (quoting Halderman by Halderman v. Pennhurst State Sch. & Hosp., 49
F.3d 939, 942 (3d Cir. 1995)).
2s

Id.

26

28

u.s.c. 1920(3).

27

Reger v. The Nemours Found., Inc., 599 F.3d 285, 288 (3d Cir. 2010) (quoting In re Paoli R.R.
Yard PCB Litig., 221 F.3d 449, 461 (3d Cir. 2000)).

28

Id. at 288.

29

Sch. Dist. of Philadelphia v. Deborah A., No. 08-2924, 2011 WL 2681234, at *3 (E.D. Pa. July
8, 2011); Citibank, NA. v. Hicks, No. 03-2283, 2004 WL 1895189, at *6 (E.D. Pa. Aug. 24,
2004) (recognizing "the value of attorney communication and conferencing in preparation and
daily management of a lawsuit").

°Citibank, 2004 WL 1895189, at *6.

3

31

Id.

32

Id.

15