The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HORIZON HOUSE, INC. : CIVIL ACTION
:
v. :
:
EAST NORRITON TOWNSHIP : NO. 19-1252
MEMORANDUM
Bartle, J. February 3 , 2023
Before the court is the motion of Plaintiff Horizon
House, Inc. for attorney’s fees as the prevailing party pursuant
to 42 U.S.C. § 3613(c)(2).
I
Plaintiff sued defendant East Norriton Township for
violating the Fair Housing Amendments Act of 1988 (“FHAA”),
42 U.S.C. §§ 3601, et seq.1 Plaintiff, a nonprofit organization
that provides supportive services to individuals in Pennsylvania
with intellectual disabilities, contended that the Township had
refused to issue a certificate of use and occupancy to allow it
to use a property within the Township it had purchased to
provide housing for individuals with disabilities.
1. Plaintiff also sued under the Americans with Disabilities
Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C.
§§ 794, et seq. These statutes are duplicative of the Fair
Housing Amendments Act for present purposes.
Plaintiff commenced this action nearly four years ago.2
After the parties engaged in a cycle of motion practice and
amended complaints and conducted some discovery, the court
stayed the proceedings to permit the Township’s Zoning Hearing
Board and the state court to determine whether, irrespective of
the FHAA, the Township properly denied plaintiff’s request as a
matter of state zoning law. Ultimately, the state court ordered
the issuance of the certificate of use and occupancy thereby
rendering moot plaintiff’s request for injunctive relief in this
action. Nonetheless, plaintiff continued to seek damages for
the period in which it had been unable to use the property and
for legal fees associated with its proceedings before the Zoning
Hearing Board and the state court. The parties conducted more
discovery and filed cross-motions for summary judgment.
On July 25, 2022, the court granted summary judgment
in favor of plaintiff on the issue of liability. It ruled that
the Township’s zoning ordinance was facially discriminatory
because it imposed significant financial and logistical burdens
on those who sought to provide housing for individuals with
disabilities. See Horizon House, Inc. v. E. Norriton Twp., Civ.
A. No. 19-1252, 2022 WL 2916680, at *4–5 (E.D. Pa. July 25,
2. For a more detailed account of this case’s procedural
history, see Horizon House, Inc. v. E. Norriton Twp., Civ. A.
No. 19-1252, 2022 WL 16745117, at *1–2 (E.D. Pa. Nov. 7, 2022).
2022), reconsideration denied, 2022 WL 4119778 (E.D. Pa. Sept.
8, 2022). The court thereafter held a non-jury trial on
damages. Plaintiff sought a total of $571,259.04 in
compensatory damages: $77,028 in mortgage and related occupancy
costs for the property in question, $39,264.40 in legal fees it
incurred in connection with its Zoning Hearing Board appeal and
its litigation before the state courts, and $454,966.64 in
unreimbursed “administrative” and “allocated” costs. See
Doc. # 128, at 3–4. After trial, however, the court awarded
plaintiff only $29,943.91 in damages to compensate it for its
legal fees. The court denied all additional damages which
plaintiff claimed for its mortgage and related occupancy costs
and for administrative and allocated costs. The court ruled as
it did because plaintiff had failed to produce to the Township
in a timely manner its relevant supporting documents. See
Horizon House, Inc. v. E. Norriton Twp., Civ. A. No. 19-1252,
2022 WL 16745117, at *2–3 (E.D. Pa. Nov. 7, 2022).
II
The FHAA provides: “In a civil action [such as the one
pending here], the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney’s fees and costs.” 42 U.S.C. § 3613(c)(2). Plaintiff
now seeks $313,693.50 in attorney’s fees for 695.48 hours of
work, together with $2,572.79 in costs, and $400 for the court’s
filing fee.
The Supreme Court in Hensley v. Eckerhart, 461 U.S.
424 (1983), discussed the award of attorney’s fees under a
similar statute, 42 U.S.C. § 1988. In order to recover
attorney’s fees, a plaintiff must be a prevailing party. The
Supreme Court has defined a prevailing party as one who
“succeed[s] on any significant issue in [the] litigation which
achieves some of the benefit the parties sought in bringing
suit.” Id. at 433; see also Tex. State Tchrs. v. Garland Indep.
Sch. Dist., 489 U.S. 782, 792–93 (1989).
The Township contends that plaintiff should not be
considered a prevailing party. It notes that the state court’s
order requiring the Township to supply the certificate of use
and occupancy rendered plaintiff’s claim for injunctive relief
moot. It contends that plaintiff was awarded damages for an
amount significantly less than what it had initially sought. It
also argues that plaintiff unreasonably prolonged this action in
two ways. First, the Township contends plaintiff could have
shown that the ordinance was facially discriminatory by moving
for judgment on the pleadings under Rule 12(c) of the Federal
Rules of Civil Procedure. Second, it cites the above-mentioned
instance in which plaintiff withheld in discovery relevant
documents to its claim for damages.
Notwithstanding the Township’s contentions, plaintiff
as noted above ultimately proved the Township’s liability under
the FHAA and was awarded damages. While plaintiff did not
obtain injunctive relief in this action, its request for this
relief became moot due to the state court’s order requiring the
Township to grant a use and occupancy certificate. The
Township’s liability for disparate treatment was not a foregone
conclusion since briefing from both parties, as well as the
court’s Memorandum, relied on facts gleaned in discovery.
Moreover, the court will only decline to award fees
for hours “spent litigating claims on which the party did not
succeed and that were ‘distinct in all respects from’ claims on
which the party did succeed.” Rode v. Dellarciprete, 892 F.2d
1177, 1183 (3d Cir. 1990) (quoting Hensley, 461 U.S. at 440).
Here, plaintiff’s action at all times focused exclusively on the
unlawfulness of the Township’s zoning ordinance under the FHAA.
None of its time was spent litigating issues that were both
unsuccessful and unrelated. Rather, the extent of plaintiff’s
success will be considered in deciding whether there should be a
downward adjustment to the fee award. See id.
III
The court applies the “lodestar” formula to determine
a reasonable fee amount. Souryavong v. Lackawanna Cnty., 872
F.3d 122, 128 (3d Cir. 2017). To apply this formula, the court
will multiply the “number of hours reasonably expended” by “a
reasonable hourly rate.” Loughner v. Univ. of Pittsburgh, 260
F.3d 173, 177 (3d Cir. 2001). The lodestar is presumptively
reasonable, and the court will award this amount unless there
are “circumstances in which the lodestar does not adequately
take into account a factor that may properly be considered in
determining a reasonable fee.” Souryavong, 872 F.3d at 128
(quoting Perdue v. Kenny A., 559 U.S. 542, 543–44 (2010)).
IV
The court first determines the reasonable hourly rate
for plaintiff’s counsel. A reasonable hourly rate is the
“prevailing market rate[] in the relevant community” of an
attorney with “experience and skill” comparable to that of the
prevailing party’s attorney. Loughner, 260 F.3d at 180. The
prevailing party has the burden of establishing that the
requested hourly rate comports with the above standard. Smith
v. Phila. Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997). Once
the prevailing party has met this burden, the defendant may
contest the rates sought “only with appropriate record
evidence.” Id.
Plaintiff seeks an hourly rate of $675 for attorney
Guy Vilim. He has been practicing law for over 35 years and has
identified eight local civil rights actions that he has
litigated. His requested rate is within the $650 to $700 range
for attorneys with over 25 years of experience under the
Community Legal Services attorney fees schedule.3 Plaintiff also
seeks an hourly rate of $375 for attorney Noreen Amir. She has
been practicing law for over 20 years. Her requested rate is
below the $475 to $530 range for attorneys with comparable
experience. “The fee schedule established by Community Legal
Services (‘CLS’) has been approvingly cited by the Third Circuit
as being well developed and has been found by the Eastern
District of Pennsylvania to be a fair reflection of the
prevailing market rates in [the] Philadelphia [legal market].”
Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. 2001)
(cleaned up).
The Township challenges these rates on two grounds.
The Township contends that Vilim and Amir should be compensated
at the same hourly rate that they charged to Horizon House in
representing the organization before the Zoning Hearing Board
and the state courts, $385 for Vilim and $185 for Amir.
However, this federal civil rights action is materially
different from that local and state zoning dispute in the
character and complexity of the issues presented. In addition,
plaintiff asserts that its attorneys charged discounted rates
3. See Attorney Fees, Community Legal Services of
Philadelphia, https://clsphila.org/about-community-legal-
services/attorney-fees/ (July 1, 2018).
for the Zoning Hearing Board and state court matter as they
typically do for nonprofit organizations such as Horizon House.
Our Court of Appeals has said that “a for-profit public interest
law firm that has an artificially low billing rate, [may
recover] the community billing rate charged by attorneys of
equivalent skill and experience performing work of similar
complexity, rather than the firm’s billing rate.” Student Pub.
Int. Rsch. Grp. of N.J., Inc. v. AT & T Bell Labs., 842 F.2d
1436, 1450 (3d Cir. 1988). The Township offers no reason why
this rule should not apply here.
The Township also argues that the billing rates of
plaintiff’s attorneys should be lowered because the amount of
time spent on certain tasks reflects a lack of experience. The
Township cites no case that requires or permits the court to
consider whether inflated hours demonstrate a lack of
experience. The court disagrees that the examples of inflated
hours so clearly call into question the experience and skill of
plaintiff’s counsel such that a reduction in billing rate is
warranted. Rather, this argument is best assessed in
determining how many hours were reasonably expended.
Accordingly, the court will award attorney’s fees at the hourly
rates plaintiff requested.
V
The court next determines how many hours plaintiff’s
counsel reasonably expended on this matter. In doing so, the
court will not award fees for time that is “excessive,
redundant, or otherwise unnecessary.” McKenna v. City of
Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009) (quoting Hensley,
461 U.S. at 434). “Where an opposing party lodges a
sufficiently specific objection to an aspect of a fee award, the
burden is on the party requesting the fees to justify the size
of its award.” Interfaith Cmty. Org. v. Honeywell Int’l, Inc.,
426 F.3d 694, 713 (3d Cir.), as amended (Nov. 10, 2005). Thus,
the court must “‘go line, by line, by line’ through the billing
records” to determine whether they support the fee request. Id.
Plaintiff asserts that Vilim reasonably expended 176.2 hours and
Amir reasonably expended 519.28 hours.
The Township first lodges a general objection to
plaintiff’s request for attorney’s fees. It contends that its
hours are unreasonably inflated to such an extent that the fee
petition should be wholly dismissed as unreliable. The court
disagrees that the cited examples of alleged inflated billing
demonstrate a lack of trustworthiness. Our Court of Appeals has
said that a fee petition should be not denied in entirety when
it is just “grossly excessive” but only when it is “simply
absurd.” Young v. Smith, 905 F.3d 229, 235 (3d Cir. 2018)
(quoting Hall v. Borough of Roselle, 747 F.2d 838, 841 (3d Cir.
1984)). The court will instead scrutinize each of plaintiff’s
counsel’s billing entries subject to the Township’s specific
objections to determine if each is reasonable. In doing so, the
court reviews the relevant filings when appropriate and
considers them in the context of the action at the time it was
filed.4
The Township contests the 28.33 hours that plaintiff’s
counsel spent researching and drafting its original complaint as
well as the 17.67 hours spent researching and drafting its
motion for a preliminary injunction on the ground that such
requests are excessive. The complaint comprised nine pages
addressing a single count and with minimal citation to legal
authority. The time plaintiff’s counsel spent on its original
complaint is excessive in light of the pleading’s relative
simplicity. The court will reduce the amount of reasonable
hours spent on drafting the original complaint to 20. On the
other hand, the time plaintiff’s counsel spent in researching
and drafting its motion for a preliminary injunction is
reasonable. That motion spanned 25 pages, cited many
4. Unless where otherwise noted, the court will apply
reductions to the number of hours spent on a particular task pro
rata based on each attorney’s individual participation in the
task as set forth in plaintiff’s counsel’s billing records.
authorities, and applied the law to the unique facts of the
case.
The Township objects to the request for attorney’s
fees associated with responding to the Township’s motion to
dismiss plaintiff’s original complaint. Plaintiff seeks 21.5
hours for this task. The Township’s motion to dismiss raised
the issue of ripeness, thus obligating plaintiff’s counsel to
research issues it had not previously addressed. On the other
hand, plaintiff’s brief consisted of only ten pages and included
at least a page and a half of block quotations. The court finds
that a 25% reduction in the number of hours billed to this task
is appropriate. Thus, the reasonable time plaintiff’s counsel
spent in responding to the Township’s motion to dismiss is 16.12
hours.
The Township asserts that plaintiff’s counsel recorded
excessive time drafting its amended complaint and responding to
the Township’s motion to dismiss the amended complaint.
Plaintiff seeks to recover fees for 11.49 and 16.08 hours for
each task respectively. The time plaintiff’s counsel spent
preparing the amended complaint is reasonable. The amended
complaint added to the suit a claim for disparate impact
liability under the FHAA as well as roughly twice as many
factual allegations as plaintiff’s original complaint. Although
the court ultimately did not rule on plaintiff’s theory of
disparate impact liability, the claim was closely related to its
successful disparate treatment claim. Likewise, the 16.08 hours
plaintiff’s attorneys expended in responding to the Township’s
motion to dismiss the amended complaint was reasonable
considering the new, complex issues raised in both its pleading
and the Township’s subsequent motion.
The Township challenges plaintiff’s request for
attorney’s fees for its preparation of certain discovery
requests and interrogatories. First, the Township argues that
the 14.74 hours plaintiff’s counsel spent in January 2021 on
drafting requests for admission is excessive. The requests
comprise nine pages with 27 requests and 25 related definitions.
The majority of the requests sought to authenticate documents
and establish basic background facts about the Township’s zoning
laws and the persons responsible for enforcing them. Few of the
definitions addressed terms specific to the case. Second, the
Township objects to six hours spent on January 10 and 11, 2022,
in which Amir prepared eight interrogatories and requests for
production of eight categories of documents. Third, the
Township objects to the 7.83 hours that Amir recorded on various
days in February 2022 on drafting a notice of deposition under
Rule 30(b)(6) of the Federal Rules of Civil Procedure. That
notice included approximately 60 subjects of inquiry as well as
31 definitions, although many definitions overlap with the
definitions listed in prior discovery requests.
It is true, as plaintiff notes, that drafting
interrogatories and discovery requests often involves
substantial review of documents and governing law, thus
necessitating more time beyond what it takes to draft the
finished product. On the other hand, it is apparent there was
substantial overlap in the work needed to produce the
interrogatories and requests. Accordingly, the court will
deduct 25% of the hours from these three tasks as excessive and
redundant. Thus, plaintiff may recover fees for 21.42 hours in
connection with these three discovery tasks.
The Township objects to fees for several tasks that
both Amir and Vilim completed on the ground that the fees are
duplicative. This includes the August 18, 2021 telephone
conference with the court and the November 23, 2021 remote
settlement conference before Magistrate Judge Hey as well as the
depositions of Robert Hart and Tiffany Loomis. The court will
overrule this objection. It was not redundant or excessive here
for two attorneys to participate in the telephone conference and
the depositions.
The Township next challenges the number of hours
plaintiff’s counsel spent working on two discovery motions.
First, the Township objects to the 16.67 hours that plaintiff
spent responding to the Township’s January 4, 2021 motion for
sanctions. The dispute arose from the Township’s request for
the mental health records of plaintiff’s prospective tenants.
As this request presented a genuine question on the scope of
discovery, plaintiff reasonably expended time and effort
justifying why the information was irrelevant and why it had not
produced the information so far. The court finds that the time
plaintiff’s counsel expended on this task was reasonable and not
excessive.
Second, the Township takes issue with the 17.67 hours
consumed for drafting plaintiff’s March 4, 2022 motion to
compel. That motion primarily sought historical information
dating back to 2014 on whether the Township had approved any
group homes under its zoning ordinance. This request reasonably
furthered plaintiff’s theory of disparate impact liability. The
motion also sought to enforce a request for production of the
minutes of the Township’s Board of Supervisors and Planning
Commission which recount the facts and circumstances around the
passage of the group home ordinance. However, the underlying
request for those minutes had never been properly served on the
Township. Ultimately the motion was denied without prejudice
following a productive telephone conference with the court in
which the Township agreed to produce all documents that
plaintiff sought. The court finds that the time plaintiff’s
counsel expended on the motion was reasonable to the extent it
sought the historical data concerning the Township’s approval of
zoning applications. The time plaintiff’s counsel spent
drafting the portion of the motion that addressed the Township’s
board minutes will be excluded as excessive. Accordingly, the
court will award fees for 12 hours recorded in drafting this
motion to compel.
The Township contends that the requested fees in
connection with plaintiff’s motion for summary judgment are
excessive. The court agrees with the Township that the 177
hours plaintiff’s counsel spent in reviewing documents for
plaintiff’s summary judgment motion and drafting the motion was
excessive.5 However, the motion relied on an extensive factual
record and addressed liability under two different theories of
the FHAA. The plaintiff ultimately prevailed. The court will
sustain the Township’s specific objection to fees for 4.5 hours
that Amir spent drafting the affidavit of Jeffrey Wilush in
connection with plaintiff’s motion for summary judgment as
excessive. The affidavit comprised only 22 paragraphs and many
of those paragraphs covered undisputed background information.
5. The parties dispute how much time was spent in reviewing
and preparing documents for plaintiff’s summary judgment motion.
The court has independently reviewed plaintiff’s counsel’s time
records and determined that 177 of the hours can be attributed
to preparing its summary judgment in total, including document
preparation, researching, and drafting the motion.
The court will reduce the number of reasonable hours for this
task to 2.5. The court will further reduce as excessive the
number of hours that plaintiff’s counsel reasonably expended in
drafting its motion for summary judgment by 20%. Thus, plaintiff
may recover fees for 140 hours in connection with all tasks
related to its motion for summary judgment.
The court will overrule the Township’s challenge to
the 62.17 hours plaintiff’s counsel recorded in responding to
the Township’s summary judgment motion. The Township raised new
defenses in its motion that it had not previously litigated
during the motion-to-dismiss stage. Plaintiff’s counsel was
required to research new legal issues and draft a responsive
statement of undisputed facts relevant to these issues. The
requested hours in connection with this task are reasonable.
The Township contests plaintiff’s request for 11 hours
Amir spent on various days in 2021 reviewing the deposition of
Patrick Wolodzko. Plaintiff notes that Amir had to review this
deposition for multiple purposes--in responding to the
Township’s motion for sanctions and in preparing another
witness’s deposition. However, the court agrees that this time
is excessive and redundant considering that the deposition
itself lasted no more than four hours. Accordingly, the court
will reduce the amount of time that can be recovered to five
hours.
Finally, the Township objects to the 20.03 hours that
plaintiff’s counsel expended in drafting its post-trial brief.
The brief spanned only ten pages and contained minimal reference
to trial testimony. On the other hand, plaintiff’s counsel was
required to respond to the argument of the Township, raised for
the first time in this lawsuit, that plaintiff lacked standing.
Balancing these two factors, the court finds that 16 hours was
an appropriate amount of time to prepare this brief. The court
will otherwise exclude as excessive the additional time that
plaintiff’s counsel recorded for this task.
To determine the lodestar, the court multiplies the
reasonable hours identified above6 with the reasonable rates of
Vilim and Amir as follows:
6. The court will also grant the various objections of the
Township to specific short tasks. First, the court will grant
the Township’s objection to one hour that Vilim spent reviewing
news reports related to the case, as he was already compensated
for this time through the court’s award of damages for
plaintiff’s legal fees. Second, the court will deduct as
excessive one hour from the 1.25 hours that Amir billed on
February 10, 2020, for drafting a subpoena. The document she
prepared was a simple form, and plaintiff’s counsel’s only
justification for the length of this task is that their
paralegal who usually prepares the form was out of the office on
the day it was prepared. Third, the Township objects to
plaintiff’s request for one hour that Amir spent on three
different dates in which she sent simple schedule-related
emails. The court will reduce the reasonable hours for these
tasks to .5 hours. Fourth, the court will reduce from one to
0.5 hours plaintiff’s request for fees associated with
plaintiff’s May 31, 2022 motion for an extension of time. The
motion was unopposed and comprised little substance. Fifth, the
Township has objected to the amount of time plaintiff’s counsel
Attorney Reasonable Hours Reasonable Rate Lodestar
Guy Vilim 158.96 $675 $107,298
Noreen Amir 462.71 $375 $173,516.25
Total: $280,814.25
VI
Finally, the court must decide whether to adjust the
lodestar downward if it is not reasonable in light of the
results obtained. Hensley, 461 U.S. at 436. A fee award may be
reduced if the lodestar would be excessive in light of the
prevailing party’s limited “degree of success obtained.” Id.
The Supreme Court has explained that there is no “precise rule
or formula” for a court to apply in deciding these issues and
that the court has “discretion in making this equitable
judgment.” Id. at 436–37. As such, the court has broad
discretion in deciding the appropriateness and the extent of a
downward adjustment. Id.; see also Pub. Int. Rsch. Grp. of
N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995).
As mentioned above, the Township asserts that
plaintiff’s fee award request should be reduced because
plaintiff ultimately recovered significantly less in damages
than it had initially sought. Plaintiff initially sought to
claimed for certain conferences with the court. Sixth, the
court’s minute entries reflect that the August 18, 2021
telephone conference lasted 15 minutes and the November 23, 2021
settlement conference lasted two hours. The court will deduct
the amount of claimed time in excess of these durations from
both attorneys’ lodestar.
recover $531,994.64 in damages arising from its mortgage and
related occupancy costs as well as administrative and allocated
costs. The court declined to award these damages. Instead, it
entered judgment in the amount of $29,943.91 to compensate
plaintiff for its legal fees in the local and state zoning
dispute. Plaintiff was precluded from seeking additional
damages because of its counsel’s failure to disclose to the
Township in a timely manner the documents necessary upon which
plaintiff intended to rely to prove these damages. In addition,
plaintiff’s claim for injunctive relief was rendered moot midway
through this action as a result of the state court’s ruling
ordering the Township to supply the use and occupancy
certificate for the property. Nonetheless, plaintiff secured a
favorable ruling on liability under the FHAA on an important
civil rights issue.
Plaintiff was only partially successful in this
lawsuit and a downward adjustment from the lodestar is
warranted. Weighing plaintiff’s success against its lack of
success, the court will award plaintiff 65% of the lodestar
amount, that is, $182,529.26 in attorney’s fees.
The Township does not object to the $2,572.79 in costs
that plaintiff seeks. Those costs, along with the $400 for the
Court’s filing fee, will be added with the adjusted lodestar and
awarded to plaintiff. Accordingly, the court will award to
plaintiff a total of $185,502.05.