Fletcher v. O'DONNELL, Civ. A. No. 87-2115.

Citation729 F. Supp. 422
Decision Date18 January 1990
Docket NumberCiv. A. No. 87-2115.
PartiesWalter L. FLETCHER, Jr., Plaintiff, v. Anthony J. O'DONNELL and City of Allentown, Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

COPYRIGHT MATERIAL OMITTED

Richard J. Orloski, Orloski & Hinga, Allentown, Pa., for plaintiff.

Thomas A. Wallitsch, Weaver, Mosebach, Piosa, Hixson, Wallitsch & Marles, Allentown, Pa., for defendants.

MEMORANDUM

CAHN, District Judge.

The plaintiff, Walter L. Fletcher, Jr., has filed an application for attorney's fees and costs. Fletcher sued Officer Anthony O'Donnell and the City of Allentown under 42 U.S.C. § 1983, claiming violations of his civil rights due to the allegedly excessive force used by Officer O'Donnell in his arrest and the absence of probable cause for that arrest. The case was tried before a jury. This court granted a directed verdict in favor of the City of Allentown. The case against O'Donnell went to the jury, which found that Officer O'Donnell used excessive force but that there was probable cause for the arrest. The jury at first awarded no compensatory damages and $1,500 in punitive damages; after it was told that this verdict was inconsistent because some compensatory damages would have to result from excessive force, the jury awarded $750 in compensatory damages and $750 in punitive damages.

Fletcher appealed both the damages award against O'Donnell and the directed verdict in favor of the City of Allentown. The Court of Appeals affirmed the O'Donnell verdict but reversed as to the City of Allentown. Fletcher v. O'Donnell, 867 F.2d 791 (3d Cir.1989). It held that a new trial would be called for, but that the prior verdict would be res judicata for the level of compensatory damages. Since no punitive damages could be recovered from the City, the sole question on remand would thus be to determine the City's share of the $750 compensatory liability, a claim that, as the Court of Appeals observed, would be mooted if the City paid the $750. 867 F.2d at 795. The City has since done this. Fletcher thereafter petitioned the Court of Appeals for a rehearing, which the Court of Appeals denied. Fletcher's subsequent petition for certiorari was likewise rejected. ___ U.S. ___, 109 S.Ct. 3244, 106 L.Ed.2d 591 (1989). Fletcher now seeks attorney's fees and costs against O'Donnell under 42 U.S.C. § 1988. This court requested additional briefing and held an evidentiary hearing and argument. It now makes its findings.

42 U.S.C. § 1988 provides that "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" for actions brought under, inter alia, 42 U.S.C. § 1983. The discretion afforded a court is minimal, however; as the Supreme Court has observed, in the context of the 1964 Civil Rights Act, a successful party vindicating protected rights "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Newman v. Piggie Park Enters., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam); see also Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (§ 1988; cites Newman approvingly); S.Rep. 1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.Code Cong. & Admin.News 5908, 5912 (legislative history of § 1988; sets forth Newman standard). Since no such special circumstances have been asserted here, this court must turn to the task of determining the proper fee. To do so, this court must first determine whether Fletcher was the prevailing party for the purposes of § 1988. If so, the next task is to find the appropriate hourly rates for and time charged by Fletcher's counsel. Using these, this court can decide whether a proper settlement offer was made that, under Fed.R.Civ.P. 68 and Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), would preclude recovery for any fees accruing afterward. Once this "lodestar" fee is determined, this court must decide what, if any, multipliers should be used to adjust it. These steps are set forth below.

I. PREVAILING PARTY

42 U.S.C. § 1988, cited above, requires that a party have prevailed for it to recover its fees for counsel. The Court has held that, "if the plaintiff has succeeded on `any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit' the plaintiff has crossed the threshold to a fee award of some kind." Texas State Teachers Ass'n v. Garland Indep. School Dist., ___ U.S. ___, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). The inquiry must thus focus on whether the suit brought about "a material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." 109 S.Ct. at 1493; see also Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct. 202, 203, 102 L.Ed.2d 1 (1988) (per curiam) ("A judgment will constitute relief, for purposes of § 1988, if, and only if, it affects the behavior of the defendant towards the plaintiff."). Hence, merely interlocutory rulings that do not afford the relief requested do not transform the party that benefits into the "prevailing party" until or unless that party actually receives some of the relief requested. Hewitt v. Helms, 482 U.S. 755, 760-63, 107 S.Ct. 2672, 2675-77, 96 L.Ed.2d 654 (1987); Hanrahan v. Hampton, 446 U.S. 754, 758-59, 100 S.Ct. 1987, 1989-90, 64 L.Ed.2d 670 (1980). The inquiry is generally not particularly involved; as the Court of Appeals has put it, "usually a common-sense comparison between relief sought and relief obtained will be sufficient to indicate whether a party has prevailed." Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 911 (3d Cir.1985).

Fletcher clearly prevailed in the bulk of the litigation under these standards. Since he won a verdict against O'Donnell at trial, he certainly prevailed there. The work done on the initial appeal, the petition for rehearing before the Court of Appeals and the petition for certiorari pose a different problem, however. It is clear that Fletcher did not prevail on the latter two, and his success was equivocal on the first. The prevailing party issue, however, goes to the whole litigation rather than to discrete parts of it. Institutionalized Juveniles, 758 F.2d at 919. Consequently, whether these hours should be allowed is better resolved when the elements of the lodestar are put together. For the litigation as a whole, Fletcher is the prevailing party. The inquiry may thus proceed to the elements of the fee request.

II. THE LODESTAR

The basic fee award — the "lodestar" — is computed by multiplying the hourly rate by the number of hours worked. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939; Lindy Bros. Builders, Inc. v. American Radiator & Std. Sanitary Corp., 487 F.2d 161, 168 (3d Cir.1973). These shall be discussed in turn.

A. Hourly Rate

Richard J. Orloski, Fletcher's primary counsel, has requested a rate of $125 per hour for all work performed on this case. He stated in his fee application that this is the current local rate appropriate for an attorney of his skill and experience. This is buttressed by affidavits from James Katz, Esq., Leighton Cohen, Esq., and Richard J. Makoul, Esq., all experienced Lehigh County attorneys, who state that Mr. Orloski is an experienced and able civil rights litigator for whose services $125 per hour is a reasonable rate. Defendants' counsel, Thomas A. Wallitsch, contests these representations. His own affidavit states that he has been an active litigator since 1973 and that his charges to the City of Allentown are $75 per hour for discovery and trial work and $50 per hour for non-court-related work. These rates, he states, are reasonable for Lehigh County. In addition, he has supplied an affidavit from Russell S. McKenzie, Jr., the Risk Manager for the City of Allentown, who states that the City normally pays $75 per hour for discovery and trial work and $50 per hour for other work when it hires counsel for the defense of civil rights actions.

In weighing the contested hourly rates, I am guided by the rule that counsel awarded fees under § 1988 are to be paid "according to the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); Ursic v. Bethlehem Mines, 719 F.2d 670, 676 (3d Cir.1983). Such a rate is to reflect the attorney's skill, experience, and reputation. Blum v. Stenson, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11; Pawlak v. Greenawalt, 713 F.2d 972, 979 (3d Cir.1983). Ordinarily, the attorney's own billing rate for private clients will do so; however, in extreme cases, this rate may be reduced when it is so far above standard community rates for competent counsel that it would be unfair to impose this rate upon the defendant. Student Pub. Interest Research Group v. AT & T Bell Laboratories, 842 F.2d 1436, 1445 (3d Cir.1988) ("SPIRG"); Daggett v. Kimmelman, 811 F.2d 793, 799 (3d Cir.1987).

In light of these precepts, and on reviewing the affidavits and oral presentations, I find that Mr. Orloski is entitled to a rate of $125 per hour for the times covered by this litigation. His affidavits are credible, coming as they do from experienced Lehigh County litigators. Mr. Wallitsch's countering affidavits are also credible, but they address a somewhat different market. Civil rights defense work performed for the City of Allentown carries with it guaranteed pay and a readily-accessible client. No such guarantee exists for counsel representing a civil rights plaintiff. These plaintiffs are often poor, and fees are thus likely to depend upon success in the litigation. Moreover, these cases are often difficult and unpopular to bring, as Mr. Orloski testified. Given the contingent nature of a plaintiff's civil rights suit, it is perfectly reasonable for the...

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