HARRIS v. MIDAS et al

Filing 171

MEMORANDUM ORDER. Plaintiff's Motion for Attorney's Fees, (Doc. 143 ), is GRANTED IN PART and DENIED IN PART, and costs and fees are entered, in favor of Plaintiff and against Defendants, in the amount of $615,867.07. See contents of this filing. Signed by Judge Cathy Bissoon on 2/20/20. (wss)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HANNAH HARRIS,

)
)
Plaintiff,
)
)
v.
)
)
AUTO SYSTEMS CENTERS, INC., et al., )
)
Defendants.
)

Civil Action No. 17-95
Judge Cathy Bissoon

MEMORANDUM ORDER
Pending before the Court is Plaintiff’s Counsel’s (or “Mr. Bracken’s”) Motion for
Attorney’s Fees and Costs, (“Motion for Fees,” Doc. 143). Defendants filed a Response in
Opposition, (“Response,” Doc. 148), and Plaintiff filed a Reply, (“Reply,” Doc. 162). For the
reasons that follow, the Motion for Fees will be granted in part and denied in part.
As the prevailing party at trial, Plaintiff is entitled to an award of her attorney’s fees and
costs under 42 U.S.C. § 2000e-5(k) and 43 P.S. § 962(c.2). Mr. Bracken has requested an award
of $506,237.50 in attorney’s fees as well as expert fees and costs in the amount of $145,413.34.
(Reply at 8.)
When considering a motion for fees and costs, the emphasis is on what is reasonable in
light of the results obtained. Determination of the appropriate amount in costs and fees is within
the discretion of the district court. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A fee award
cannot be decreased based on factors not raised at all by the adverse party. Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). However, once “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.” Id.

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Defendants do not contest that Mr. Bracken is entitled to recover his fees and costs, but
rather request reductions be made to his hourly rate, that time devoted to particular tasks be
deducted from the fee award as excessive, and that the total award be reduced due to lack of
success on all claims. Additionally, Defendants challenge some of Plaintiff’s costs as
unreasonable. The Court will address these arguments in turn.
1.

Plaintiff’s counsel’s hourly rate and time spent on litigation are reasonable.

The “most useful starting point” for determining a reasonable fee is “the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S.
at 433. This amount, called the lodestar, “is strongly presumed to yield a reasonable fee.”
Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996).
a.

Hourly rate

The party seeking a fee award must demonstrate the rate charged is the rate “charged by
attorneys of equivalent skill and experience performing work of similar complexity.”
Washington, 89 F.3d at 1036. Affidavits are a standard way of demonstrating this rate, and,
“where the opposing party has not presented contradictory evidence, the district court may not
exercise its discretion to adjust the requested rate downward.” Id.
Mr. Bracken has submitted a request to be compensated at a rate of $400/hour—the rate
at which he was retained to represent Plaintiff. (Doc. 162-1.) In support of this rate, Mr.
Bracken offers his own declaration, setting forth his experience and his current, typical rate.
(Doc. 144-4.) Mr. Bracken also offers declarations from “skilled, experienced employment law
attorneys” who practice in the Pittsburgh area, each of whom stated that Mr. Bracken’s hourly
rate is appropriate given his skill, and that his rate is consistent with the rates charged by
plaintiff’s side employment lawyers in this market. (Docs. 144-5, 144-6, and 144-7.)

2

In their Response, Defendants put forth no evidence suggesting Mr. Bracken’s rate is
excessive. Instead, they speculate that Mr. Bracken’s retainer agreement in this case was for less
than that amount. This speculation, which was shown to be inaccurate, (Doc. 162-1), is plainly
insufficient to reduce Mr. Bracken’s hourly rate. Washington, 89 F.3d at 1036. Thus, the Court
finds an hourly rate of $400/hour is reasonable in this matter. 1
b.

Time spent on litigation

With respect to the number of hours billed, these hours are compensable to the extent that
they are “reasonably expended” on the litigation. Hensley, 461 U.S. at 434. To evaluate the
reasonableness of the hours devoted to a task, a district court must “review the time charged,
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.’”
Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001) (citing Public Int. Research Group of
N.J. Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995). In order to ensure the hours are
reasonably expended, it is critical those hours be properly documented. Washington, 89 F.3d at
1037–38.
The evidence put forth by Mr. Bracken is more than sufficient to determine that nearly all
of the time claimed was reasonably expended on the litigation. Mr. Bracken produced
contemporaneous time records, and they are sufficiently specific for the Court to determine the
general activities counsel performed. Id. Additionally, the Court has reviewed the time

1

The Court also finds the hourly rates billed for other lawyers who worked minimally on this
matter and the support staff utilized by Mr. Bracken to be reasonable. While Defendant contends
that Mr. Archinaco’s rate is unsupported and excessive, the Court disagrees, and finds the
evidence offered by Plaintiff is sufficient to establish reasonableness. (Docs. 162-13, 162-14.)
Further, as with their arguments against Mr. Bracken’s fee, Defendants offered no evidence in
support of their position. A downward adjustment cannot be made.
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entries—which span over three years—and finds that the time spent on the tasks specified is not
“excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. Defendants do not
raise any general arguments on this point, but rather contend that time spent on specific tasks is
not properly recoverable.
c.

Defendants’ objections to specific entries

Defendants’ Response raises objections to the time spent on particular litigation tasks.
These objections include that Mr. Bracken spent excessive time with Precise, the trial consultant
used before and during trial; excessive time with DecisionQuest; and that the work performed
related to the state court proceeding was redundant and unnecessary. (Response at 7; 15–16.)
None of these arguments are persuasive.
Mr. Bracken represents that he used Precise to preserve and prepare critical evidence in
this case, including the audio recording and video deposition clips he used expertly at trial.
(Reply at 6.) Further, time was spent with Precise in connection with efforts to settle the case
through the Court’s Alternative Dispute Resolution program, which the Court agrees shows that
Plaintiff’s participation in that process was in good faith. (Id.) Finally, as the Court stated at the
close of trial, Jody Wolk of Precise did a masterful job in assisting Mr. Bracken in the
presentation of evidence at trial. In particular, Mr. Bracken and Ms. Wolk worked together to
seamlessly present evidence, including many video deposition clips in rapid succession to
impeach defense witnesses. The Court need look no further than the jury verdict to know that all
the time Mr. Bracken spent with Precise to ensure evidence was presented smoothly was well
spent.
For similar reasons, the Court declines to deduct the small amount of time Mr. Bracken
spent with DecisionQuest. As Mr. Bracken points out in his Reply, he tried this case alone,

4

without the assistance of another lawyer, and the credible testimony of Plaintiff at trial was
critical to the ultimate success of the litigation. (Reply at 7.) Moreover, consultation with an
experienced specialist to prepare for Plaintiff’s trial testimony and with respect to issues related
to jury selection, rather than use of another lawyer, is a sensible way to exercise discretion and
potentially control costs. 2
Finally, the Court rejects completely Defendants’ argument that the time Mr. Bracken
spent on the state court litigation should be deducted as “redundant and unnecessary.”
(Response at 7.) At best, this objection is frivolous, and at worst, it is entirely disingenuous. It is
clear from the attachments to Plaintiff’s Reply that Defendants consented to discontinuing the
state proceedings and that litigation on those claims continued in this federal proceeding. (Reply
at Ex. 8, 9.) Mr. Bracken also indicates that the video deposition obtained in the course of those
proceedings was used to impeach Defendant Shick at trial, and that he utilized the research he
performed in the state proceeding in this one. (Reply at 5.) No reduction will be made.
Defendants objections to Mr. Bracken’s work related to Plaintiff’s opposition to
Defendants’ motion for summary judgment on franchisor liability and to Plaintiff’s work with
Susan Strauss, her excluded expert, are more compelling. (Response at 7–9; 16–18.)
On this first point, the Court is mindful that attorney “hours ‘fairly devoted’ to one
defendant that also support the claims against other defendants are compensable,” but when the
hours spent are sufficiently separable from the rest of the litigation, they should be deducted.
Rode, 892 F.2d at 1185–86. The Court agrees with Defendants that the hours Mr. Bracken spent
opposing the TBC Defendants’ Motion for Summary Judgment are properly deducted. These

2

For these reasons, the Court will similarly not deduct Mr. Bracken’s costs associated with
DecisionQuest and Dr. Greeley.
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issues—related to franchisor liability—are sufficiently distinct from the discrimination and
harassment issues at the heart of the case that they can be separated. Further, after extensive
discovery, Mr. Bracken had the opportunity to make a reasoned decision after reviewing the
evidence about whether to pursue those claims further. He chose to do so and was unsuccessful.
Therefore, those fees will be deducted. 3
However, Mr. Bracken’s fees and costs incurred earlier in the litigation with respect to
the TBC Defendants will not be deducted. The Court declined to grant the TBC Defendants’
motion to dismiss, and Plaintiff can properly be compensated for the time that he spent opposing
it. Further, while Defendants argue that Plaintiff drove up fees by pursuing claims against
different corporate entities, the testimony at trial, in particular that of Randolph Katz, was far
from forthcoming regarding the relationships between the many entities associated with
Defendants’ businesses. In sum, the issues of who Plaintiff’s employer was and where the
money earned by Defendants’ businesses was kept were contentious throughout the litigation,
and Plaintiff reasonably spent considerable time trying to answer each of those questions.
Additionally, Defendants request that all costs and fees associated with Susan Strauss,
RN, Ed.D., be deducted because she was ultimately precluded from testifying at trial. As with
the Court’s conclusions with respect to DecisionQuest, the Court agrees that the use of a
specialized expert on particular issues can assist with controlling costs while also ensuring an
attorney is prepared. With respect to Dr. Strauss, Mr. Bracken asserted that she assisted him
with preparing deposition questions and strategies to defeat Plaintiff’s employer’s affirmative

3

This amounts to a reduction of $19,460 in attorney’s fees. (Doc. 148-1 at 6–7.) To determine
this amount, the Court removed almost all hours devoted to the TBC Defendants after August 28,
2018 identified by Defendants, with the exception of two entries involving client communication
about the litigation more generally.
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defenses. (Motion for Fees at 12.) While it is true that those affirmative defenses are regularly
raised in employment cases, in this case, the jury verdict makes clear that the jury rejected this
defense. (Verdict Slip at Question 4d.) The Court cannot say that retention of Dr. Strauss was
not critical to that outcome. In recognition of her exclusion from trial, however, the Court will
reduce the fees and costs associated with Dr. Strauss by 50%. 4
2.

Other considerations support a fully compensatory fee.

Mr. Bracken argues that the excellent result achieved in this case mandates a fully
compensatory result. (E.g., Brief in Support at 3, 10; Reply at 2–4.) Defendants, on the other
hand, argue that a 40% reduction of fees is appropriate because Plaintiff had only “limited
success” at trial. (Response at 9–10.)
Plaintiff was the prevailing party, and her victory at trial was a convincing one. Even
accepting Defendants’ argument that Plaintiff only succeeded on some of her claims, the critical
questions to be asked is whether the “plaintiff fail[ed] to prevail on claims that were unrelated to
the claims on which [s]he succeeded.” Hensley, 461 U.S. at 434. If that is not the case, this
Court should “focus on the significance of the overall relief obtained by the plaintiff” rather than
trying to view the case as “a series of discrete claims.” Id. at 435. Where the circumstances and
evidence relating to unsuccessful claims are relevant to the successful claims, a fully
compensatory fee may be awarded. Reynolds v. USX Corp., 56 F. App’x 80, 83 (3d Cir. 2003).
At trial in the instant matter, there were no claims Plaintiff failed to prevail on that were
unrelated to the claims for which the jury found the Defendants liable. The jury awarded
Plaintiff not only compensation for Defendants’ unlawful conduct but also imposed punitive

4

This amounts to a reduction of $9,100 in attorney’s fees, (Doc. 148-1 at 8–9), and $5,491.87 in
recoverable costs, (Doc. 148-2 at 3).
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damages to punish and deter Defendants for their actions. This alone is reason enough for the
Court to award Mr. Bracken his full fee.
There are other aspects of the litigation, however, that also support a fully compensatory
award. This litigation was extremely contentious from the outset, as is evidenced by the exhibits
to the parties’ briefing on the issue of fees and costs. Mr. Bracken’s preparation of this case was
far in excess of what this Court has seen from counsel, and in particular, from a solo practitioner.
This preparation was critical to Plaintiff’s success, and it was in no small part necessitated by the
evidence presented by Defendants. In particular, as Mr. Bracken notes, the sheer number of
inconsistencies present in the testimony of critical defense witnesses at trial was staggering.
Effective exposure of those inconsistencies was a large part of how counsel made his case.
Additionally, Plaintiff’s medical history, and Defendant’s strategy with respect to it, also
necessitated use of experts and thoughtful preparation.
Moreover, Mr. Bracken undertook significant risk representing Plaintiff on a contingency
basis, and he set aside other business opportunities to focus on this case. (Brief in Support at 7.)
These factors also support a fully compensatory fee.
Finally, the Court has no doubt that the monetary verdict in this case is a life-changing
one for Plaintiff, but also that she received something valuable from standing her ground and
proceeding all the way through a difficult trial. (Reply at 4 (“Hannah wanted a public verdict
that shamed the Defendants, as they had done to her throughout the litigation.”).) The jury’s
substantial punitive damages award is a vindication of Plaintiff’s position, and there is no doubt
that this outcome was an “excellent result” for her and her counsel.

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3.

Plaintiff’s counsel’s costs are reasonable.

Defendants’ objections to Plaintiff’s costs are in large part addressed by the Court’s
analysis on fees. For the same reasons that the Court will not deduct from Mr. Bracken’s fees
related to the state court matter, use of Precise and DecisionQuest, and the other aspects of the
litigation, the Court will not deduct costs. The sole exception is that the Court agrees with
Defendants that the hotel costs incurred by Mr. Bracken during trial were not necessary. Thus,
that cost will be deducted. 5
Therefore, the total costs and fees appropriately awarded is $615,867.07. 6 Accordingly,
Plaintiff’s Motion for Attorney’s Fees, (Doc. 143), is GRANTED IN PART, and DENIED IN
PART, and costs and fees are entered, in favor of Plaintiff and against Defendants in the amount
of $615,867.07.
IT IS SO ORDERED.

February 20, 2020

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record

5
6

This amounts to a reduction of $1,731.90 in recoverable costs. (See Doc. 148-2 at 4.)
Representing $477,677.50 in attorney’s fees plus $138,189.57 in costs.
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