Young v. Smith
| Decision Date | 06 September 2017 |
| Docket Number | No. 3:07–CV–00854,3:07–CV–00854 |
| Citation | 269 F.Supp.3d 251 |
| Parties | Meagan YOUNG, Plaintiff, v. Bruce H. SMITH, Jr., Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Cynthia L. Pollick, The Employment Law Firm, Pittston, PA, for Plaintiff.
John E. Freund, III, Keely J. Collins, King Spry Herman Freund & Faul, LLC, Bethlehem, PA, for Defendant.
MEMORANDUM OPINION
This civil rights action has come to be known for all of the wrong reasons. Sad to say, after ten years of protracted and unnecessarily contentious litigation, it appears that all Plaintiff's counsel, Cynthia L. Pollick, Esquire, has managed to accomplish is disrespecting this Court as an institution and embarrassing herself in the eyes of many of its constituents.
The instant chapter in this litigation stems from a fee petition submitted by Ms. Pollick for nearly three-quarters of a million dollars, a fee petition that at times, felt more like an attempted bank robbery than a genuine effort to recover a reasonable fee bill. Indeed, Ms. Pollick "prevailed" on only one claim against one defendant in this odyssey of a litigation—and I use the term "prevailed" exceptionally loosely. In fact, opposing counsel, after having offered settlements as high as $150,000.00 that Ms. Pollick rejected, made this case go away for a nuisance value of $25,000.00. That settlement was made as against one defendant on one claim in a litigation that previously involved teachers, principals, school administrators, and a barrage of educational and civil rights claims. Because of that $25,000.00 nuisance settlement, effected pursuant to a Federal Rule of Civil Procedure 68 offer of judgment, Ms. Pollick now contends that she is entitled to $727,000.00 in fees. That mindset is equal parts brazen and delusional.
As the late Honorable Max Rosenn, writing for the United States Court of Appeals for the Third Circuit explained, counsel 1 "If, after following the proper procedures, the Court remains convinced that [the] hourly rate and hours billed are outrageously excessive, it retains the discretion to award whatever fee it deems appropriate, including no fee at all."2 In submitting the instant fee petition, Ms. Pollick, whose practice, I note, is based in the very same county that Judge Rosenn called home, has not only failed to live up to her duty as an officer of this Court—she has, as on numerous prior occasions, thumbed her nose at it. Such defiance ceases today.
Ms. Pollick's fee petition is "mind boggling" and "outrageously excessive."3 In fact, it is more than that. The vast majority of Ms. Pollick's entries are larded with excreta unbecoming of any attorney in this District (and certainly unbillable to a client under any stretch of the imagination). For example, in the portions of her fee bill that I reviewed before striking it in full, Ms. Pollick submitted upwards of 350 time entries with descriptions like "Correspondence with Patti [her client's mother]"; "Correspondence from Patti"; "Correspondence with Patti about issue"; "Correspondence from Patti about issue"; "Correspondence with Patti thanking her for update"; "Correspondence with Patti thanking her for information"; "Correspondence with Patti checking in on Meagan [client's daughter]"; "Correspondence from Patti advising she is putting stuff behind her"; "Correspondence with Patti telling her glad she's giving herself a break" and so on, ad nauseum .4
These raw, unprocessed entries, which appear at Appendix A of this Memorandum Opinion, are inconsiderately supplied in what appears to be size 8–point font or smaller, comprise 44 separate pages, and frankly should sicken both bench and bar. This is not, I note, Ms. Pollick's first foray into sanctions hearings over questionable litigation practices and excessive billing in particular. Quite the opposite, Ms. Pollick has previously managed to resolve Rule 11 motions levied against her through extrajudicial means in a 2005 case before the Honorable A. Richard Caputo of this Court,5 and both the United States Court of Appeals for the Third Circuit and the judges of this Court have penned what only can be described as a worn jurisprudence on Ms. Pollick's vexatious litigation conduct and outlandish fee petitions. In a number of those cases, courts have had to weed through pages of improper entries, reduce Ms. Pollick's submissions by several hundred thousand dollars, and warn Ms. Pollick repeatedly. "Suffice it to say, [Ms. Pollick] is simply not getting the message."6
Without a doubt, billable descriptions of this nature, accompanied with a glut of other administrative entries not properly billable as attorney time and entries that lack any detail whatsoever, are frustrating and improper on their face. So too does it appear, however, that Ms. Pollick has edged precariously close the operative ethical boundaries by billing every incoming and outgoing correspondence in separate 6–minute entries (or more). Thus, even if it took Ms. Pollick one minute to read an email and one minute to respond back (two minutes total), she has billed all of those communications (hundreds of times over) in two separate 6–minute increments. Such practice essentially pads her time in ten-minute increments (12 minutes versus 2 minutes) and reeks both of impropriety and lack of judgment. All of these details will be included in my submission of this matter to the Disciplinary Board of the Supreme Court of Pennsylvania for that regulatory body's review.
It would be enough to deny Ms. Pollick's petition in whole if it alone was comprised of entries of irrelevant correspondence, administrative tasks not billable as attorney time, hours spent reading blogs, and discussions with local reporters, but my frustration with the instant fee petition does not stop there. Instead, Ms. Pollick's conduct is ripe for sanctioning because she submitted the instant fee bill no less than five months after Judge Caputo wrote a thorough dissertation on the improprieties of such fee bills in a case litigated by Ms. Pollick herself.7 In that decision, Judge Caputo set forth thorough examples of improper and excessive entries, before also trimming the reasonable hourly rate. So too does it follow on the heels of a decision by my colleague the Honorable Malachy E. Mannion that was affirmed by the Third Circuit, in which he denied one of Ms. Pollick's excessive fee bills altogether.8
What was Ms. Pollick's response to these unequivocal rebukes? Unfortunately, she did not choose to do things the right way. Instead, she immediately submitted another, arguably more questionable, petition to me within months of those decisions. This misconduct and this utter waste of our District's resources must stop. Fee motions are not meant to spawn parallel litigations, and civil rights cases are not get-rich-quick tickets. To the extent that Ms. Pollick or any other attorney in this District misperceives either of those facts, I have no qualms joining the chorus that seeks to set such behavior straight.
If that was not enough, perhaps the most repugnant of all aspects of Ms. Pollick's fee petition is that she asks to be compensated for time necessitated by her own earlier misconduct. Strikingly, the Defendants here were granted a new trial, a remarkably rare remedy, in light of a tainted jury verdict attributable Ms. Pollick's inflammatory conduct in open court. She has now billed not only for the time associated with that trial but also for additional time and preparation necessitated by what can only be described as willful, bad faith, and vexatious behavior. So too has she billed for the subsequent trial and all of its attendant time. Not only was that trial a do-over of her own making, but it also resulted in a complete defense verdict.
To provide some context as to why Ms. Pollick's billing for such time is exceedingly shameless, I note that my colleague the Honorable Yvette Kane presided over the first trial in this action and granted the attendant new trial motion, all before I came on the bench. She described Ms. Pollick's behavior as follows, in what has become an oft-quoted passage in the history of this case:
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