# Opposition Brief — Lohman v. Borough

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1769%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 560 U.S. 926

## Text

No. 09-1147

“Supreme Court, U.S.
FILED
LP @) APR 2 1 2010

gn The
Supreme Court of the Anited States

¢

NICHOLAS LOHMAN,

Petitioner,
v.

DURYEA BOROUGH, DURYEA BOROUGH COUNCIL,
ANN DOMMES, LOIS MORREALE, FRANK
GROBLEWSKI, EDWARD ORKWIS, ROBERT WEBB,
AUDREY YAGER and JOAN ORLOSKI,

Respondents.

¢

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit

4

BRIEF IN OPPOSITION

¢

KAROLINE MEHALCHICK

Counsel of Record

OLIVER, PRICE & RHODES

P.O. Box 240

1212 South Abington Road

Clarks Summit, Pennsylvania 18411
(570) 585-1200

km@oprlaw.com

Attorney for Respondents

COCKL£ LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831

Il.

QUESTIONS PRESENTED

Whether Petitioner has presented compelling
reasons to grant the Petition, where the Third
Circuit’s Opinion affirming the District Court’s
consideration of settlement negotiations in deter-
mining an award of attorney fees does not con-
flict with a decision of this Court or a Court of
Appeals, and where Petitioner does not claim
that the Third Circuit’s ruling implicates an im-
portant federal question that has not been settled
by this Court.

Whether Petitioner has presented compelling
reasons to grant the Petition, where the Third
Circuit’s Opinion affirming the District Court’s
consideration of the hourly rates of defense coun-
sel in this case does not conflict with a decision of
this Court or a Court of Appeals, and where
Petitioner does not claim that the Third Circuit’s
ruling implicates an important federal question
that has not been settled by this Court.

li
PARTIES TO THE PROCEEDINGS

The caption to the case contains the names of all
parties remaining in the case.

CORPORATE DISCLOSURE STATEMENT

Respondents, Duryea Borough, Duryea Borough
Council, Ann Dommes, Lois Morreale, Frank
Groblewski, Edward Orkwis, Robert Webb, Audrey
Yager and Joan Orloski, are a municipality and its
governing body, Borough Council, the individual
members of council and the Borough’s Borough Sec-
retary. As such, Respondents are government entities
and are not corporations, do not have any parent
corporation or any corporate stock.

itl

TABLE OF CONTENTS

Page
I cradinotunenonsesseconse i
Parties to the Proceedings. ..................2:cesceeeeeeeeerece
Corporate Disclosure Statement.....................00000:-
Table of Contents.......... M7 hoy het AE eR iil
i ol crcnmepenmperedesencconsonees iv
I scsteevensensncsonsessseneveveece 1
Reasons for Denying the Petition ...................2...... 6

I.

If.

Contrary to Lohman’s assertion, there is
no compelling reason for review of the de-
cisions of the Third Circuit Court of Ap-
peals and the United States District Court
for the Middle District of Pennsylvania on
the issue of consideration of settlement ne-
gotiations in determining a _ reasonable
Bg

Contrary to Lohman’s assertion, there is
no compelling reason for review of the deci-
sions of the Third Circuit Court of Appeals
and the United States District Court for
the Middle District of Pennsylvania on the
issue of Lohman’s counsel’s hourly rate......

a suowsbatinacensucsauevenes

iV

TABLE OF AUTHORITIES
Page
CASES
Black Grievance Committee v. Philadelphia
Electric Co., 802 F.2d 648 (3d Cir. 1986).......... 10, 11
Clark v. Sims, 28 F.3d 420 (4th Cir. 1994)............... 8,9

Cooper v. Utah, 894 F.2d 1169 (10th Cir. 1990)....... 8,9

EMI Catalogue Partnership v. CBS/Fox Co.,
No. 86 Civ. 1149 (PKL), 1996 WL 280813

es es I ins cncnicnrisnusawaveneverévscesocconsons 3
Hensley v. Eckerhart, 461 U.S. 424 (1983) .......... 3,4,5
Johnson v. Georgia Highway Express, Inc., 488

Re oe EG Be ceeiiitcdoevennn senetccsnch ta ceasatevsccns 3
Lohman v. Duryea Borough, 574 F.3d 163 (3d

Cai SIND cc cunticccsassedcascuahecsestisucsenieeteaneienes 7, 8,10, 11
Moriarty v. Svec, et al., 233 F.3d 955 (7th Cir.

SII cnisisS senchosnjndumaceuanmuhessaienabanioentaniuanmienigueuniormeeneite 9
Ortiz v. Regan, 980 F.2d 138 (2d Cir. 1992)............. 7,9

Student Public Interest Research Group ov.
AT & T Bell Laboratories, 842 F.2d 1436 (3d

I ae 10
Washington v. Philadelphia County Court of
Common Pleas, 89 F.3d 1031 (3d Cir. 1996) .......... 10
RULES
Federal Rule of Evidence 408.........................22205- 3,4, 5

TS COmre TG 10.05 cecsccsvccvesevevsocssesensvessvvevenes 6, 11

1

STATEMENT OF THE CASE

Petitioner, Nicholas Lohman (“Lohman”),
brought the underlying action against Respondents,
Duryea Borough, Duryea Borough Council, Ann
Dommes, Lois Morreale, Frank Groblewski, Edward
Orkwis, Robert Webb, Audrey Yager and Joan Orloski
(“Duryea Borough”), alleging violations of the pro-
cedural component of the Fourteenth Amendment,
First Amendment retaliation claims, publicity given
to a private life and wrongful discharge. Pet. App. 16.
At the close of discovery, Duryea Borough moved for
summary judgment on all counts. The District Court
granted summary judgment on all claims except
Lohman’s claims of First Amendment retaliation,
which proceeded to trial. Jd. At the close of Lohman’s
case, the District Court dismissed Respondents
Orkwis and Morreale from the case on a motion for
judgment as a matter of law. Jd. The jury reached its
verdict on April 23, 2008. The jury found in favor of
Lohman on his First Amendment retaliation claim
with respect to his assistance in filing a grievance
against all Respondents except Robert Webb. They
found in favor of all Respondents on Lohman’s claim
of First Amendment retaliation with respect to his
union contract negotiations. Pet. App. 16-17. For
his successful claims, the jury awarded Lohman dam-
ages for lost wages in the amount of $7,320.00
against Duryea Borough and $1,220.00 each against
Dommes, Groblewksi, Yager and Orloski. The jury
also awarded one dollar in nominal damages against
all Respondents except Robert Webb. Pet. App. 17.

2

Lohman’s initial demand to settle this matter
was five-hundred thousand dollars ($500,000.00) in
compensatory and punitive damages. Pet. App. 46.
Duryea Borough offered thirty-thousand dollars
($30,000.00). Jd. After trial commenced, Duryea
Borough made three additional offers — twenty-five
thousand dollars ($25,000) plus the job of chief of
police, fifty-thousand dollars ($50,000.00) plus the job
of chief of police, and seventy-five thousand dollars
($75,000.00) without the job of chief of police. Pet.
App. 46-47. These offers were rejected by Lohman.
Pet. App. 47.

Following the verdict at trial, Lohman requested
attorney's fees and costs in the amount of $112,883.73.
Pet. App. 18. The request sought an hourly rate deter-
mination of $300.00 for a total of 356 hours. Pet. App.
20. Duryea Borough opposed Lohman’s request and
made very specific objections to each and every prob-
lematic time entry. The District Court reduced the
total number of hours by 46.8 hours for duplicative-
ness, 4.80 hours for inapplicability, and 35.70 hours
due to excessiveness. Pet. App. 21-30. Those reduc-
tions have not been appealed by Lohman.

The District Court next determined that the ap-
propriate hourly rate for Plaintiff’s counsel was $215.
The District Court, who is very familiar with Plain-
tiff’s counsel’s work and skill, reached this rate by
analyzing the affidavits submitted by both Lohman’s
counsel and those submitted by counsel for Duryea
Borough. Pet. App. 30-39.

3

The above calculations resulted in a total lode-
star calculation of $59,060.50. Pet. App. 40. The Dis-
trict Court then made additional considerations as to
whether to adjust the fee upward or downward,
specifically looking at the Johnson’ factors, appor-
tionment, settlement negotiations, and the degree
of success obtained. Based on these additional con-
siderations, the District Court adjusted its fee award
to $30,900.00. Pet. App. 54.

The District Court, in reducing the lodestar,
noted that this Court, in Hensley v. Eckerhart, 461
U.S. 424 (1983), held that “the most critical factor” in
determining a reasonable fee “is the degree of success
obtained.” Pet. App. 47; citing Hensley at 436. In con-
struing Federal Rule of Evidence 408, which governs
the use of settlement negotiations, the District Court
found a decision by the District Court for the
Southern District of New York to be persuasive. That
decision held that “evidence of the alleged settlement
negotiations is not being offered to prove ‘either
liability for or invalidity of the claim or its amount.’
Rather it is being offered to show that the Court’s
rejection of the claim should not merit an award of
attorney’s fees under the Court’s power of equitable
discretion.” Pet. App. 50; citing EMI Catalogue Part-
nership v. CBS/Fox Co., No. 86 Civ. 1149 (PKL), 1996
WL 280813, at *2 (S.D.N.Y. May 24, 1996) (finding

' Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1974).

4

that Rule 408 does not bar consideration of settle-
ment discussions in determining whether to award
attorney's fees under the Copyright Act). The District
Court in this case agreed with the reasoning of the
District Court for the Southern District of New York
that evidence of settlement negotiations is not barred
in an application for attorney’s fees, since the same is
not used to show liability or validity of a claim or
amount. Pet. App. 51. Relying on this Court’s decision
in Hensley, the District Court concluded that the
settlement negotiations are to be used as an indicator
of the “degree of success wbtained” by Plaintiff’s coun-
sel, and that it would therefore consider the settle-
ment negotiations in its determination of Plaintiff’s
attorney’s fee award. Pet. App. 51; citing Hensley, 461
U.S. at 436.

Lohman then appealed the District Court’s
award of attorney’s fees to the Third Circuit, which
affirmed the award. The Third Circuit addressed
Lohman’s appeal of the District Court’s determination
of his counsel’s hourly rate in a footnote, in which it
acknowledged that a district court’s determination of
an attorney’s reasonable hourly rate will not be upset
unless found to be clearly erroneous, and further that
there was ample evidence to support the Court’s
lower rate. Pet. App. 4.

In reviewing the District Court’s consideration of
settlement negotiations, the Third Circuit agreed that

. Rule 408 does not bar a court’s con-
sideration of settlement negotiations in its

5

analysis of what constitutes a reasonable fee
award in a particular case. By its terms,
Rule 408 requires exclusion of evidence of
such negotiations “when offered to prove
liability for, invalidity of, or amount of a
claim that was disputed as to validity or
amount, or to impeach through a prior incon-
sistent statement or contradiction.”

Pet. App. 10.

The Third Circuit further held that evidence of
settlement negotiations as bearing on the issue of
what relief was sought by a plaintiff does not offend
the clear terms of Rule 408, and that such evidence
can be relevant when determining the degree of suc-
cess. Pet. App. 11; citing Hensley, 461 U.S. at 436
(“[t]here is no precise rule or formula” for determining
how a fee should be adjusted to reflect limited suc-
cess). The Third Circuit affirmed the District Court’s
consideration of settlement negotiations, concluding
that “[w]Jhile evidence of settlement negotiations is
only one indicator of the measure of success, it is a
permissible indicator that is not precluded by Rule
408.” Pet. App. 11. In reaching this conclusion, the
Third Circuit rejected Lohman’s public policy argu-
ment and argument that Federal Rule of Civil Pro-
cedure 68, Offer of Judgment, precludes the consider-
ation of settlement negotiations by the District Court.
Pet. App. 12-13. Finally, the Third Circuit noted that
settlement negotiations may be relevant in measur-
ing success, and, if so, are clearly only one factor to be
considered in the award of fees, and remarked that in

6

this case, the District Court considered many fac-
tors before awarding Lohman’s counsel a fee of
$30,000.00. Pet. App. 13-14.

Following the denial of a Petition for Rehearing
En Banc (Pet. App. 61), Lohman filed the instant
Petition for Writ of Certiorari with this Court.

a

REASONS FOR DENYING THE PETITION

Lohman submits that this Court should grant its
Petition for Writ of Certiorari in order to rule on the
issues of whether settlement negotiations may be
used to reduce a fee petition, and whether the lower
courts improperly considered defense counsel’s hourly
rates in determining the market rate for civil rights
plaintiffs’ attorneys. Duryea Borough submits that
Lohman has not carried his burden of demonstrating
“compelling reasons” for this Court to grant his
Petition. See Supreme Court Rule 10. The decisions of
the Third Circuit Court of Appeals and the District
Court for the Middle District of Pennsylvania do not
conflict with a decision of this Court or any Court of
Appeals, nor do they implicate a federal question that
has not been decided by this Court. Id.

7

I. Contrary to Lohman’s assertion, there is no
compelling reason for review of the deci-
sions of the Third Circuit Court of Appeals
and the United States District Court for the
Middle District of Pennsylvania on the issue
of consideration of settlement negotiations
in determining a reasonable attorney’s fee
award.

Lohman incorrectly avers that there is a split in
the circuits as to whether settlement negotiations can
be used to reduce a fee petition. Pet. at 2. In support
of his argument that such a circuit split exists,
Lohman cites to cases out of the Second, Fourth and
Tenth Circuits. However, these cases are all dis-
tinguishable from the case at bar and do not, as
Lohman would lead this Court to believe, stand for
the proposition that settlement negotiations cannot
be considered in reducing a fee petition. As the Third
Circuit noted, “ ... the cases relied on by Lohman
regarding Rule 68 are factually distinguishable and
do not set forth a categorical rule that applies here.”
Pet. App. 14; Lohman v. Duryea Borough, 574 F.3d
163, 169 n.4 (3d Cir. 2009). Specifically, the Third
Circuit panel distinguished these cases as follows:

In Ortiz v. Regan, 980 F.2d 138 (2d Cir.
1992), the Court of Appeals for the Second
Circuit rejected a district court’s denial of
fees for work performed by plaintiff’s coun-
sel after the defendants offered the plaintiff
a post-deprivation hearing. Instead of re-
questing a hearing, plaintiff proceeded with
her due process claim based on defendants’

8

conduct prior to the suspension of her retire-
ment benefits. The court of appeals stated
that the “availability of Rule 68” provided
“additional weight” for its conclusion that the
district court abused its discretion by cutting
off all fees incurred after the rejected offer.
Id. at 141. The District Court here did not
cut off all fees incurred after Lohman re-
jected Appellees’ settlement offer.

In Clark v. Sims, 28 F.3d 420 (4th Cir. 1994),
the Court of Appeals for the Fourth Circuit
concluded that a district court erred in
applying Rule 68, because the offer in ques-
tion did not meet the formality requirements
of the Rule. Jd. at 423. The case at bar does
not involve any application of Rule 68.

In Cooper v. Utah, 894 F.2d 1169 (10th Cir.
1990), the Court of Appeals for the Tenth
Circuit determined that a district court erred
by reducing a fee award to one half of the
lodestar based on simplicity of issues, be-
cause simplicity of issues should have been
factored into the determination of the lode-
star. Jd. at 1171. In a terse statement, the
court “[a]ldditionally” noted that the district
court’s reduction of fees in light of settlement
negotiations was “not well-founded” where
defendants failed to make an offer of judg-
ment under Rule 68. Id. at 1172. There is no
indication that the district court’s use of
settlement negotiations in Cooper was anal-
ogous to the application in this case, nor is it

9

clear that the settlement issue was necessary
to the holding on appeal.

Id.

The cases relied upon by Lohman, Ortiz, Clark,
and Cooper, do not stand for the proposition that a
court may not consider settlement negotiations when
determining an award of attorney fees. While the
Third Circuit, in this case, and the Seventh Circuit,
in Moriarty v. Svec, et al., 233 F.3d 955 (7th Cir.
2000),” have held that a court should consider settle-
ment offers as a factor in determining an award of
reasonable attorney fees, no other Circuit Court of
Appeals has specifically addressed this issue. As such,
there is no split in the Circuits on this issue, and
therefore no compelling reason for this Court to grant
Lohman’s Petition for Writ of Certiorari.

* In Moriarty, a case which involved claims pursuant to the
Employee Retirement Income Security Act (“ERISA”) and the
Labor Management Relations Act (“LMRA”), the Seventh Circuit
held that “substantial settlement offers should be considered by
the district court as a factor in determining an award of rea-
sonable attorney's fees, even where Rule 68 does not apply.” 233
F.3d 955 at 967. The Seventh Circuit further stated that the
“district court must only consider the substantial settlement
offer; it need not reduce the lodestar calculation because of the
offer.” Jd.

10

II. Contrary to Lohman’s assertion, there is no
compelling reason for review of the deci-
sions of the Third Circuit Court of Appeals
and the United States District Court for the
Middle District of Pennsylvania on the
issue of Lohman’s counsel’s hourly rate.

Lohman asserts that it was improper for the
District Court (and the Third Circuit, in affirming the
District Court) to consider defense counsel’s rates in
determining Lohman’s counsel’s rates. Lohman does
not present any compelling reason for this Court to
grant his Petition for Writ of Certiorari on this issue.
There is no split in the Circuits or otherwise com-
pelling federal question which would require review
by this Court.

Moreover, the matter of an attorney's marketplace
billing rate is a factual question which is subject to a
clearly erroneous standard of review. Washington v.
Philadelphia County Court of Common Pleas, 89 F.3d
1031, 1035 (3d Cir. 1996); citing Student Public In-
terest Research Groun v. AT & T Bell Laboratories,
842 F.2d 1426. . 1+. \3d Cir. 1988) (citing Black Grie-
vance Committee v. Philadelphia Electric Co., 802
F.2d 648, 652 (3d Cir. 1986) (citation omitted), va-
cated on other grounds, 483 U.S. 1015, 107 S. Ct.
3255, 97 L. Ed. 2d 754 (1987)). More generally, the
appellate court may not upset a trial court’s exercise
of discretion on the basis of a visceral disagreement
with the lower court’s decision. Similarly, the appel-
late court may not reverse where the trial court em-
ploys correct standards and procedures, and makes

11

findings of fact not clearly erroneous. Jd. In this case,
the Third Circuit concluded, in a footnote, that

... there was ample evidence to support the
[District] Court’s lower rate and we conclude
that the [District] Court did not clearly err in
choosing the rate that it did. See Interfaith
Comty. Org. v. Honeywell Intern., Inc., 426
F.3d 694, 703 n.5 (3d Cir. 2005) (“[Wle will
not upset a district court’s factual determina-
tions, including its determination of an attor-
ney’s reasonable hourly rate and the number
of hours he or she reasonably worked on the
case, unless we find them to be clearly erron-
eous.”).

Pet. App. 4; Lohman v. Duryea Borough, 574 F.3d
163, 164 n.1 (3d Cir. 2009).

The opinions of the Third Circuit Court of Ap-
peals and the United States District Court for the
Middle District of Pennsylvania on the issue of
Lohman’s counsel’s hourly rate are not clearly erron-
eous. Moreover, the opinions comport with the law of
the Third Circuit, and are in harmony with every
other Circuit. For the foregoing reasons, Lohman has
not met his burden in establishing that there is a
compelling reason for this Court to grant his Petition.
See Sup. Ct. R. 10 (“a petition for a writ of certiorari
is rarely granted when the asserted error consists of
erroneous factual findings or the misapplication of a
properly stated rule of law”). As such, this Court
should deny Lohman’s Petition.

¢

12

CONCLUSION

For the foregoing reasons, Respondents, Duryea
Borough, Duryea Borough Council, Ann Dommes,
Lois Morreale, Frank Groblewski, Edward Orkwis,
Robert Webb, Audrey Yager and Joan Orloski, re-
spectfully submit that this Court should deny
Lohman’s Petition for a Writ of Certiorari.

Respectfully submitted,

KAROLINE MEHALCHICK
Counsel of Record
OLIVER, PRICE & RHODES
P.O. Box 240
1212 South Abington Road
Clarks Summit, Pennsylvania 18411
(570) 585-1200
km@oprlaw.com
Attorney for Respondents
April 21, 2010

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1769%3A2. Public record. Not legal advice.