Skehan v. BD. OF TRUSTEES OF BLOOMSBURG ST. COLLEGE

• Decision Date: 29 January 1981
• Docket Number: Civ. No. 72-644.
• Citation: 501 F. Supp. 1360
• Parties: Joseph T. SKEHAN, Plaintiff, v. BOARD OF TRUSTEES OF BLOOMSBURG STATE COLLEGE et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

501 F. Supp. 1360

Joseph T. SKEHAN, Plaintiff, v. BOARD OF TRUSTEES OF BLOOMSBURG STATE COLLEGE et al., Defendants.

Civ. No. 72-644.

United States District Court, M. D. Pennsylvania.

November 28, 1980.

As Amended January 29, 1981.

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David L. Glassberg, Hazelton, Pa., for plaintiff.

Susan J. Forney, Deputy Atty. Gen., Dept. of Justice, Commonwealth of Pa., Harrisburg, Pa., for defendants.

OPINION

MUIR, District Judge.

I. Introduction.

This case is before this court on remand from the Court of Appeals for a determination under 42 U.S.C. § 1988 of Plaintiff's entitlement to attorney's fees and, if he is entitled to any, the amount of those fees as a result of Plaintiff's modest success on the merits of this action. Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979). The Plaintiff seeks an award of $120,738.64 in fees and expenses. Also pending before the undersigned as a Master appointed by the Court of Appeals by order dated September 2, 1980, is Plaintiff's application for attorney's fees for appellate work. That application has been referred to U. S. Magistrate Raymond J. Durkin for preliminary work and will be the subject of future proceedings. A hearing on Plaintiff's application for fees and expenses relating to district court work was held on September 10, 12, and 15, 1980. This opinion will dispose of Plaintiff's claims for attorney's fees for district court proceedings through September 15, 1980 with the exception of fees for work relating to two motions unrelated to attorney's fees filed by Plaintiff in September 1980.

II. Findings of Fact.

1. On October 10, 1972, Plaintiff filed a complaint against the Defendants with claims that they had violated his constitutional rights by their failure to provide him with a hearing prior to his termination on October 17, 1970 and by their failure to provide him with procedures to which he was entitled when the Defendants made the decision not to renew Plaintiff's contract after the 1970-71 academic year.

2. Plaintiff sought, inter alia, to be granted full backpay and reinstatement.

3. Suit was brought originally in the United States District Court for the Eastern District of Pennsylvania. (Undisputed fact, hereinafter designated U).

4. Defendants opposed this choice of venue.

5. Harry Lore represented Plaintiff in the district courts in 1972 and 1973. (U)

6. Mr. Lore seeks compensation for 120.5 hours of office time at $50.00 per hour and 16 hours of court time at $75.00 per hour. He also seeks $464.13 in costs and expenses. Multipliers on both are sought.

7. Mr. Lore reviewed Plaintiff's papers, researched and prepared Plaintiff's complaint, represented Plaintiff at the hearing in this court on Plaintiff's motion for a preliminary injunction, and prepared a memorandum of law on venue, a memorandum of law on laches, a reply to Defendants' brief, proposed findings of fact, conclusions of law, another memorandum of law, and a motion to amend judgment and an accompanying brief.

8. Mr. Lore graduated in 1958 from Temple Law School.

9. Mr. Lore was admitted to the Bar of the Supreme Court of Pennsylvania in 1958 and is a member of the Bar of the Supreme Court of the United States.

10. At the time that he represented Plaintiff in this Court, Mr. Lore had practiced law for at least ten years, primarily as an attorney in civil rights cases.

11. At the time he represented Plaintiff, Mr. Lore was engaged in the practice of law in Philadelphia, Pennsylvania where attorneys of his training, experience and skill customarily charged for work of this type $75.00 per hour for court time and $50.00 per hour for office time which are both reasonable.

12. Work done by Mr. Lore on the following dates for the following periods of time was devoted to issues raised in this case in addition to the due process claims for nonrenewal and termination and no attempt was made by Plaintiff to prove the amount of time that was reasonably supportive of the due process issues: October 7 through 9, 1972, 15 hours; November 17, 1972, 10 hours; November 22, 1972, 2 hours; March 17 through 22, 1973, 38 hours; April 26, 1973, 4 hours; May 12 through 14, 1973, 17 hours, for a total of 86 hours.

13. Of the 120.5 hours of office time spent by Mr. Lore only 34.5 hours were proved to have contributed to Plaintiff's success in this case.

14. Mr. Lore spent 16 hours of courtroom time at the preliminary injunction hearing, all of which contributed to Plaintiff's success in this case.

15. Mr. Lore's lodestar-hours reasonably supportive of Plaintiff's claims multiplied by a reasonable hourly rate-is $1725.00 for office time, $1200.00 for court time for a total of $2925.00.

16. It was reasonable for Mr. Lore to have incurred expenses of $464.13 and those expenses contributed to Plaintiff's success.

17. Costs of $171.60 have already been awarded Mr. Lore, leaving $292.53 in expenses to which he is entitled.

18. A preliminary injunction was sought and hearings were held on January 11 and 12, 1973.

19. Defendants were the prevailing parties at the preliminary injunction stage of this case. (U)

20. Plaintiff prevailed in this Court in 1973 on his claim that Defendants violated his due process rights by their failure to provide him a hearing prior to his termination. (U)

21. This court awarded Plaintiff $1.00 in damages plus costs on May 9, 1973.

22. Mr. Lore filed a two-page motion requesting attorney's fees on or about May 18, 1973.

23. The motion was denied.

24. Plaintiff through Mr. Lore raised in a highly tangential fashion at the preliminary injunction hearing in the district court in 1973 the issue of whether his constitutional rights had been violated by not being afforded the procedures of Article 5e of the Statement of Policy for Continuous Employment and Academic Freedom of Bloomsburg State College, which related not to termination but to non-renewal of his contract.

25. The issue of non-renewal was not pertinent to the preliminary injunction hearing which was concerned with termination, not non-renewal.

26. Mr. Lore did not argue the 5e issue to the Court at the preliminary injunction hearing or submit proposed conclusions of law, as required by the Court's practice order.

27. The matter was submitted to the Court for a final determination on the basis of the record developed at the preliminary injunction hearing.

28. When the case was submitted for final determination, Mr. Lore did not call the Court's attention to the 5e issue or in any manner make any argument with respect to it.

29. Plaintiff appealed the decision of this Court of May 9, 1973 to the United States Court of Appeals for the Third Circuit. (U)

30. Plaintiff prevailed in the Court of Appeals in that the case was remanded to this court for findings as to whether Defendants had violated Plaintiff's First Amendment and due process rights in the course of their decision not to renew his contract, the 5e claim, and this court's ruling that Plaintiff's due process rights had been violated by Defendants' failure to provide him with a hearing prior to termination was upheld.

31. The Court of Appeals also determined that Defendants were immune from liability to Plaintiff in damages because they were engaged in discretionary functions. (U)

32. Plaintiff filed a petition for a writ of certiorari in 1974 on the issues of sovereign immunity, official immunity and attorney's fees. (U)

33. The Supreme Court, which granted Plaintiff's petition for a writ of certiorari, vacated the judgment of the Court of Appeals and remanded for further consideration on the issues of official immunity and attorney's fees. (U)

34. The Court of Appeals on remand from the Supreme Court ruled that Plaintiff was entitled to an award of damages if the individual defendants did not meet their burden of proof on official immunity and that Plaintiff was entitled to an award of attorney's fees if Defendants had litigated in bad faith. (U)

35. Defendant Bloomsburg State College prevailed in the Court of Appeals in that the Court recognized sovereign immunity as a bar to any award of back pay against it.

36. Robert B. Elion and Robert B. Wayne using the style of Elion-Wayne represented Plaintiff initially in proceedings in this court on remand from the Court of Appeals from July 29 to October 20, 1976. (U)

37. Elion-Wayne seeks compensation for 84.85 hours at $35.00 per hour and costs and expenses of $54.21, plus multipliers.

38. Mr. Elion and Mr. Wayne reviewed Plaintiff's case, analyzed the requirements for discovery, researched and prepared a motion to shorten the period of time allowed for production of documents, prepared a request for the production of documents and researched and prepared motions to compel and briefs in support thereof.

39. Mr. Elion graduated from the University of Iowa Law School in 1971 and is a member of the Bar of the Supreme Court of Pennsylvania and of the Bar of the State of Iowa.

40. From 1971 to 1973, Mr. Elion served as an attorney in legal services projects in Minnesota and Oregon. From 1973 to the time he represented Plaintiff in 1976, Mr. Elion was the managing attorney and director of litigation for Susquehanna Legal Services in Bloomsburg, Pennsylvania.

41. Mr. Wayne graduated in 1973 from Suffolk University Law School and is a member of the Bar of the Supreme Court of Pennsylvania and of the Bar of the Commonwealth of Massachusetts.

42. Mr. Wayne was employed from 1973 to 1976 as an attorney for Susquehanna Legal Services in Bloomsburg and Sunbury, Pennsylvania.

43. At the time that they represented Plaintiff before this Court in 1976, Mr. Elion and Mr. Wayne were engaged in the practice of law in Williamsport, Pennsylvania, where attorneys of their training, experience, and skill...