Pennsylvania Record

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Magistrate Judge provides for partial award of fees in prior contractual complaint

By Nicholas Malfitano | Nov 7, 2016

PHILADELPHIA – Per judicial order, a former employee and seller of Abington Pain Medicine received full financial awards relating to court costs and pre-judgment interest, though not her full amount of requested attorney’s fees.

U.S. Magistrate Judge Timothy R. Rice said Oct. 21 plaintiff Robin Gordon was entitled to the full amounts of two of her three requested financial collections from defendants Abington Pain Medicine, Vincent J. Thompson III and Paul Edward Parker Thompson – for both court costs and pre-judgment interest, but only a partial amount of her sought attorney fees.

“I grant in part and deny in part Gordon’s request. I award Gordon $2,027.15 in costs, $18,493.15 in pre-judgment interest, and $35,242.00 in attorney fees,” Rice said.

Gordon had sought $44,932.00 in attorney fees, according to court records. A promissory note signed by defendants and Gordon “requires defendants to pay the attorney fees Gordon incurred enforcing her rights under the contract.”

“In her complaint, plaintiff sought contract and statutory liquidated damages as well as fees and costs, bringing three claims against defendants based on the promissory note, an employment agreement between the parties, as well as the Pennsylvania Wage Payment and Collections Law (WPCL),” Rice stated.

The defendants contended Gordon’s requested amount of attorney’s fees was “excessive”, due to “the case’s simplicity.”

“Defendants object to Gordon’s request for attorney fees because: (1) The only deposition in this matter lasted less than two hours; (2) Gordon produced no documents; (3) Defendants produced one 12-page set of bank records and a single page of text; and (4) The bench trial took one day,” Rice said.

Countering the defense’s objections and in support of her request for attorney fees, Gordon submitted: “(1) 12 pages of billing entries; (2) Affidavits from the two attorneys who represented her, describing their credentials and experience; and (3) Affidavits from two other lawyers attesting to the attorneys’ credentials and the reasonableness of their billing rates.”

Rice explained the defendants were not contesting the billing rates Gordon proposed, since the record evidence supported the rates with “reasonableness”, and examined the defense’s four objections in turn – each of which he termed as “not excessive.”

“With respect to the single deposition in the case that lasted less than two hours, Alan Frank billed two hours for preparation and attendance. This is not excessive,” Rice said.

“With respect to Gordon’s failure to produce any documents, Mr. Jordan Frank billed 1.2 hours responding to defendants’ request for production of documents. Because responding to a document request requires both communication with clients and drafting, this is not excessive,” Rice added.

“With respect to the limited number of documents defendants produced, I am able to find only three billing entries that include time spent reviewing documents before trial preparation began. Because reviewing documents was only part of the work described in billing entries that total 4.2 hours, this also is not excessive,” Rice remarked.

Finally, Rice turned to the objection surrounding the duration of the trial.

“With respect to time spent on the trial itself, it is impossible to identify precisely when trial preparation began. However, from the time counsel began drafting pretrial memoranda until the end of trial, the Frank firm billed 30.6 hours, 11 of which were travel to and attendance at the trial itself. This also is not excessive,” Rice said.

But in examining the billing records, Rice found two entries he deemed “unreasonable.”

“Although Gordon’s attorneys spent 1.3 hours drafting a Confession of Judgment, this has not yet been filed and did not contribute to the resolution of this case. Because those 1.3 hours of attorney time billed at $300/hour were not in furtherance of this litigation, I will reduce the lodestar amount of $44,932 by $390, to $44,542,” Rice said.

Further, during the trial, Rice said that an attorney from the Frank firm “spent 1.4 hours delivering copies of documents, charging $350/hour for this work”, though the documents were ultimately not used at trial.

“There was no reason to use a $350/hour attorney to do work that could have been accomplished by others. I will therefore reduce the lodestar amount by another $490, to $44,052.00,” Rice said.

Moreover, Rice said the final award “should reflect the litigation’s success.”

“The promissory note limits recovery to the party prevailing in that action, and courts regularly reduce attorney fee awards when mixed results make it difficult to firmly establish the ‘prevailing party,” Rice said. “Although Gordon brought two related contract claims as well as a WPCL claim against defendants, she was successful on only one of those claims.”

“In order to take into account Gordon’s degree of success, I reduce her lodestar further by 20 percent, to $35,242,” Rice stated.

Rice ended his analysis by awarding the full amounts of court costs ($2,027.15) and pre-judgment interest ($18,493.15) to Gordon, and a majority of her requested attorney’s fees ($35,242.00).

The plaintiff is represented by Alan L. Frank in Jenkintown.

The defendants are represented by Jonathan D. Marx of Kaplun Marx, in Bala Cynwyd.

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-00020

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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