McNulty v. Middle E. Forum

PATRICIA MCNULTY, Plaintiff v. THE MIDDLE EAST FORUM, et al Defendant

CIVIL ACTION NO. 19-5029

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

February 11, 2021

MEMORANDUM OPINION

DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

Presently before the Court is Defendant The Middle East Forum's ("Defendant" or "MEF") Motion for Attorneys' Fees (Doc. 43), Plaintiff Patricia McNulty's ("Plaintiff") Response in Opposition (Doc. 44), and Defendant's Reply (Doc. 45).¹ Defendant submitted this motion in accordance with our prior order finding Plaintiff and her counsel, Seth Carson, Esq. ("Carson"), to be in civil contempt for failure to comply with a court order and to attend court-scheduled status conferences. (Doc. 41) (the "Contempt Order").

The Contempt Order and our accompanying Opinion (Doc. 40) set out our reasoning as to why Plaintiff and Carson must pay Defendant's attorneys' fees and costs associated with Defendant's reasonable efforts to obtain discovery responses following Plaintiff and Carson'srepeated failures to respond to discovery requests, to heed Judge Brody's orders to do the same, and to attend court-scheduled status conferences on two occasions, all for the simple purpose of obtaining compliance with these reasonable requests. To that end, we respond to the directive of Rule 37(a)(5)(A), which provides that "the Court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant's reasonable expenses incurred."

By its motion, Defendant originally sought attorneys' fees in the amount of $4,283. (Doc. 44 at 5.) Plaintiff disputes this figure, arguing that it includes fees incurred as a result of activities outside the scope of the Contempt Order.² (Doc. 44 at 3.) Defendant replies that Plaintiff's opposition is untimely and frivolous, and seeks to increase its attorneys' fee award by $897 to account for time spent preparing its reply brief. Consequently, Defendant's total amount sought is $5,180. Defendant attached to this Motion contemporaneously recorded timesheets and affidavits of each attorney for whom Defendant seeks to recover costs, specifically, David J. Walton, Esq. ("Walton"), Leigh Ann Benson, Esq. ("Benson"), and Jonathan R. Cavalier, Esq. ("Cavalier"). (Doc. 43-1 at 7.) For the reasons set forth below, Defendant's Motion for Attorneys' Fees will be granted in part and denied in part.

II. LEGAL STANDARD

District courts "enjoy wide, but not but not unlimited, discretion in fashioning appropriate compensatory sanctions" for civil contempt. Contempt damages "may include an award of attorneys' fees incurred in connection with the contempt proceedings, as '[o]nly with an award of attorneys' fees can [the injured party] be restored to the position it would have occupied had [the contemnor] complied with the [court order in question].'" Cardionet, LLC v. Mednet Healthcare Techs., Inc., 146 F. Supp. 3d 671, 692 (E.D. Pa. 2015) (quoting Robin Woods, 28 F.3d at 400) (alterations in original). "[A]ttorneys' fee awards are 'remedial and designed to compensate complainants for losses incurred as a result of the contemnor['s] violations.'" Robin Woods, 28 F.3d at 401 (quoting Roe v. Operation Rescue, 919 F.2d 857, 869 (3d Cir.1990)). "As such, an award of attorneys' fees in a contempt proceeding, 'must not exceed the actual damages caused the offended party by a violation of the court's order.'" Cardionet, LLC, 146 F. Supp. 3d at 698 (E.D. Pa. 2015) (quoting Quinter v. Volkswagen of Am., 676 F.2d 969, 975 (3d Cir. 1982)). Consequently, in awarding attorneys' fees as contempt damages, district courts must "determine which fees relate specifically to the [contemnor's] contemptuous conduct." Id. (citing Inst. for Motivational Living, Inc. v. Doulos Inst. for Strategic Consulting, Inc., 110 Fed.Appx. 283, 289 (3d Cir. 2004)).

To calculate the attorneys' fees and costs award to which Defendant is properly entitled, we utilize the "lodestar" method. Microsoft Corp. v. United Computer Res. of New Jersey, Inc., 216 F. Supp. 2d 383, 387 (D.N.J. 2002). The lodestar is "the product of the product of the attorneys' reasonable hourly billing rate multiplied by the number of hours reasonably expended." Arizona Premium Fin. Co. v. Keystone Surplus Lines, 2008 WL 11514962, at *2 (E.D. Pa. Jan. 11, 2008) (citing Pa. v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546,564 (1986)). To demonstrate reasonableness, the moving party must first "submit evidence to support his assertion as to the number of hours expended and the rate claimed."³ John T. ex rel. Paul T. v. Delaware Cty. Intermediate Unit, 2003 WL 22006810, at *4 (E.D. Pa. Aug. 22, 2003) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990)). "The burden then shifts to the opposing party to challenge, with specificity, the reasonableness of the request." Id. Excessive, redundant, or otherwise unnecessary hours will be excluded from the fees awarded. Horizon Unlimited, Inc. v. Silva, 2002 WL 1896297, at *3 (E.D. Pa. Aug. 15, 2002) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Ultimately, the court's discretion in adjusting the fee amount in light of the objections is "considerable." Id. (citing Bell v. United Princeton Properties, Inc., 884 F.2d 713, 721 (3d Cir.1989)). However, "[t]he district court cannot decrease a fee award based on factors not raised at all by the adverse party." Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001) (internal quotations and citations omitted).

III. DISCUSSION

We first set out the scope of the Contempt Order, which defines the activities for which Defendant is entitled to recover attorneys' fees. Next, we address each activity to which Plaintiff has objected as not properly recoverable under the Contempt Order. After determining which fees sought by Defendant are reasonable and within the scope of the Contempt Order, we adjust the total fee award amount accordingly.

A. Reasonableness and the scope of the Contempt Order

By her opposition, Plaintiff asks that we award Defendant costs and fees in an amount "estimated at about $1,200.00" (Doc. 44 at 10), as opposed to Defendant's proposed award of $5,180. (Doc. 45 at 6.) Plaintiff argues that her figure is the accurate "reflect[ion of] the amount described in the [Contempt Order]" (Id.), while Defendant's figure is the result of their "liberal interpretation of the Order to present the highest number possible." (Id. at 3.)

We note that Defendant has satisfied its initial burden to support its assertion of the hours expended and rates claimed through its submission of contemporaneously recorded timesheets and accompanying affidavits. Keenan v. City of Philadelphia, 983 F.2d 459, 472 (3d Cir. 1992). We further observe that Plaintiff has not raised any question as to the reasonableness of Defendant's stated hourly rates.⁴ Plaintiff has, however, objected to specific entries of Defendant's timesheets as being unnecessary, redundant, or outside the scope of the Contempt Order. Here, we address each of those entries to determine whether they are properly recoverable under the Contempt Order. For clarity and consistency, we will address each challenged entry using the same format and organization as Plaintiff's opposition brief. See Doc. 44. However, it is first necessary to review the text and context and the Contempt Order.

With regard to an attorneys' fee award, the Contempt Order provided that Defendant is entitled to recover attorneys' fees and costs "incurred as a result of Defendant's filing of twoletters with this Court regarding discovery deficiencies (Docs. 29 & 36), this Motion for Contempt, and appearances at the two Court-scheduled status conferences." (Doc. 41.) The "two letters with this Court" to which the Contempt Order refers were filed respectively on September 29, 2020, and October 29, 2020. (Docs. 29 & 36). In each letter, Defendant sought court intervention regarding discovery disputes and Carson's alleged failure to engage with Defendant to resolve them. Next, the "two Court-scheduled status conferences" were held respectively on September 29, 2020 and October 29, 2020. In each instance, Carson failed to appear despite having notice of the conferences and without providing any explanation for his absence. Finally, the "Motion for Contempt" is the underlying motion that gave rise to the Contempt Order. We now to turn to address each of Plaintiff's objections to Defendant's claims for attorneys' fees.

1. "Draft motion to compel responses to discovery requests"

Plaintiff first objects to Benson's timesheet entry of September 23, 2020 for 0.8 hours labeled "Draft motion to compel responses to document requests." (Doc. 44 at 3); (Doc. 43-1 at 7). Plaintiff argues that this entry is "outside the scope" of the Contempt Order. (Doc. 43 at 3.) We disagree but observe that Defendant has offered no specific comment with respect to this assertion in its reply brief and did not specifically explain how this activity is connected to the activities for which we found it was entitled to recover fees. That is, Defendant has not explained how the costs of drafting a motion to compel on September 23, 2020 is related to "Defendant's filing of two letters with this Court regarding discovery deficiencies, [the] Motion for Contempt, [or] appearances at the two Court-scheduled status conferences," as set out in the Contempt Order. (Doc. 41) (internal citations omitted).

We accept that there may well have been some connection between the September 23 timesheet entry and the September 29 letter, but we note that the Defendant opted to "present[the] matter to [the court] by letter rather than by motion." (Doc. 29) (emphasis added). Further, there are subsequent separate entries on Defendant's timesheet that account for drafting and submission of the letter. (Doc. 43-1 at 7.) Because Def...