Robert Dee, Jr. v. Borough of Dunmore
548 F. App'x 58
3rd Cir.2013Background
- Robert Dee, Jr., an assistant fire chief, was suspended by the Borough of Dunmore in June 2005; publicity followed alleging unfitness for service.
- Dee sued the Borough, the Borough Manager, and council members under § 1983 and related state-law theories; the claims split into two factually distinct episodes: the suspension (procedural due process claim) and publicity (First Amendment stigma-plus and state-law torts).
- A jury found a procedural due process violation and awarded $150,000 compensatory and $6,000 punitive damages; the district court remitted compensatory damages to $50,000 and dismissed punitive damages; Dee rejected the remittitur and later received $47,500 at a second trial after rejecting a $60,000 Rule 68 offer.
- Dee sought $230,162.50 in attorney’s fees and $10,427.43 in costs under § 1988; the district court awarded $60,000 in fees and $6,938.56 in costs.
- On appeal, the Third Circuit reviewed (1) whether the court properly computed compensable hours and reduced duplicative/joint entries, (2) whether the hourly rate chosen ($250 vs. requested $300) was supported by the record, and (3) whether the district court permissibly reduced the lodestar in light of limited success.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were hours charged reasonable and properly reduced for noncompensable, duplicative, or joint work? | Dee argued many hours were compensable (including appellate prep and post-offer work) and reductions were excessive. | Defendants identified specific entries as excessive, noncompensable (media contact), or jointly beneficial to other cases and urged reductions/halving. | Court affirmed reductions: removed clearly non-case work, excluded post-Rule 68 hours, and halved hours that benefitted both Dee and companion cases. |
| Was $250/hour (vs $300 requested) a reasonable market rate for Pollick? | Dee submitted affidavits supporting $300 and argued absence of contrary affidavits meant $300 stood uncontested. | Defendants pointed to multiple contemporaneous district-court decisions setting lower rates ($215–$250) as record evidence to reduce rate. | Court held $250 was not clear error: prior contemporaneous decisions constituted record evidence supporting a reduction from $300. |
| Was the lodestar properly reduced from $123,310 to $60,000 given limited success? | Dee argued the lodestar presumption was strong and that the court’s large percentage cut lacked adequate explanation and double-counted deductions. | Defendants relied on Dee’s failure on separate publicity-based claims, arguing a reduction was warranted because success was limited and claims were factually distinct. | Court affirmed the reduction as within discretion: unsuccessful claims were factually distinct (publicity vs. suspension), court excised hours tied solely to unsuccessful claims, and relied on permissible Johnson factors where appropriate. |
| Could district court consider Johnson factors or other adjustments after Perdue? | Dee argued Perdue eliminated Johnson-factor-based adjustments and that the court improperly relied on them. | Defendants argued Perdue allows deviations in rare circumstances where lodestar doesn’t capture a proper factor. | Court explained Perdue permits deviations in rare cases; district court properly considered limited additional factors consistent with Hensley/Perdue. |
Key Cases Cited
- City of Burlington v. Dague, 505 U.S. 557 (1992) (strong presumption that lodestar is reasonable)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (results obtained is crucial; allocate hours to successful claims)
- Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990) (burden-shifting on fee applicant to show hours and rate; district court discretion to adjust)
- Maldonado v. Houstoun, 256 F.3d 181 (3d Cir. 2001) (prevailing market rate standard)
- Prandini v. Nat’l Tea Co., 585 F.2d 47 (3d Cir. 1978) (court may not make arbitrary percentage cuts to lodestar)
- Black Grievance Comm. v. Philadelphia Elec. Co., 802 F.2d 648 (3d Cir. 1986) (prior cases are record evidence of market rates only for overlapping time periods)
- Perdue v. Kenny A., 559 U.S. 542 (2010) (lodestar generally reliable but deviations permitted in rare circumstances)
- Washington v. Phila. Cnty. Ct. of Common Pleas, 89 F.3d 1031 (3d Cir. 1996) (standard of review for fee awards)