                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2006

Taylor v. USF Red Star Express
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2063




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                       Nos. 05-2063, 05-2487, 05-2566 & 05-3081


                                   EDWIN TAYLOR,
                                             Appellant at No. 05-2566

                                            v.

                           USF-RED STAR EXPRESS, INC.,
                                           Appellant at Nos. 05-2063,
                                                              05-2487 & 05-3081


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           D.C. Civil Action No. 03-cv-2216
                          (Honorable Clarence C. Newcomer)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 6, 2006
       Before: SCIRICA, Chief Judge, BARRY and ALDISERT, Circuit Judges

                               (Filed: December 21, 2006)


                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       USF-Red Star, Inc. appeals the District Court’s entry of final judgment in favor of

Edwin B. Taylor in a discrimination suit brought under the Americans with Disabilities

Act, 42 U.S.C. §§ 12,101–213 (2000), as well as the denial of its post-trial motion for
judgment as a matter of law or a new trial. Red Star also appeals the District Court’s

award of attorney’s fees as legally erroneous and an abuse of discretion. Taylor cross-

appeals the District Court’s reduction of certain hours in his attorney’s fees award as an

abuse of discretion. We will affirm.

                             I. Facts and Procedural History

       Red Star employed Taylor as a combination truck driver/dockworker at its

Philadelphia terminal. On March 1, 2001, Taylor was hospitalized after suffering two

seizures, possibly attributable to use of the nutritional supplement creatine, that

temporarily rendered him unconscious and unable to control himself. His treating

physician, Dr. Eduardo Enriquez, instructed him not to drive or operate hazardous

machinery. A neurologist, Dr. Karen Scardigli, on March 14, 2001, interpreted Taylor’s

MRI as consistent with a seizure disorder. Taylor returned to work and drove a forklift

on March 12, 2001, but told Red Star terminal manager Barry Saylor he was unable to

drive a truck. On March 15, 2001, Taylor informed Saylor of his seizures and, Red Star

contends, told him he had been diagnosed with “infantile epilepsy.” Saylor told Taylor

not to return to work until Red Star received information from his doctor that he could

safely operate a forklift.

       Over the next eighteen months, several physicians evaluated Taylor’s condition

and ability to operate a forklift. Dr. Scardigli initially told Red Star around March 20,

2001, that Taylor could return to operating a forklift, but reversed herself on March 29,

2001, after speaking to Dr. Joel Mascaro, a physician employed by NovaCare who

                                              2
performed frequent employment physicals for Red Star. On April 25, 2001, a second

neurologist sought out by Taylor, Dr. David Roby, diagnosed Taylor as likely to remain

seizure-free and able to return to gainful employment (though not to driving a truck). On

May 7, 2001, Taylor’s family physician, Dr. Jay Glickman, also informed Red Star that

Taylor should remain seizure-free, but could not drive a truck until he remained so for a

year. On March 12, 2002, Taylor sent Red Star a February 6, 2002, letter from Dr.

Glickman stating the same, as well as a February 6, 2002, letter from a medical examiner

releasing Taylor to drive a commercial vehicle. On May 2, 2002, a NovaCare physician’s

assistant examined Taylor at Red Star’s request and issued a medical examiner’s

certificate releasing Taylor to drive a commercial vehicle, but was reversed by Dr.

Mascaro on May 6, 2002.

       On July 2, 2002, Dr. Roby responded to a request for clarification by Dr. Mascaro

with a letter stating it was “possible” Taylor could return to work in some capacity in

which seizures were not an issue. Later that month, Taylor sought an evaluation from

another physician, Dr. Hillard Sharf, who wrote a letter to an EEOC investigator stating

he saw no problem in Taylor’s driving a forklift or truck. Dr. Roby, Dr. Sharf, and Dr.

Gordon Manin (Dr. Mascaro’s successor at NovaCare) agreed that Taylor should be

evaluated at Thomas Jefferson Epilepsy Center. On October 3, 2002, a neurologist there,

Dr. Michael Sperling, evaluated Taylor and concluded he was not at any substantially

greater risk of seizures than other members of the general public, and that no restrictions

should be placed on his work activities. Red Star allowed Taylor to return to work on

                                             3
October 18, 2002. During the eighteen months in which he had not been cleared to work

by Red Star, Taylor filed a grievance with his union’s Joint Area Committee on April 2,

2001 (denied on May 8, 2001), as well as a discrimination charge against Red Star with

the EEOC on May 16, 2001. Red Star contends Taylor gave Saylor materials on

reasonable accommodations for epileptics prepared by the Epilepsy Foundation, and

falsely claimed to the EEOC that he had epilepsy. Taylor also found interim employment

driving a forklift elsewhere for several months.

       Taylor sued Red Star on April 8, 2003, alleging Red Star had discriminated against

him in violation of the ADA because it regarded him as disabled. Red Star responded

that it had refused to allow Taylor to work not because it regarded him as disabled, but

because doctors had not cleared him to return to work. Both Red Star and Taylor filed

motions for summary judgment that the District Court denied. The case was tried to a

jury, which found Taylor proved by a preponderance of the evidence that Red Star

regarded him as disabled, that he was qualified to perform the essential functions of his

job with or without accommodation, and that he had been discriminated against by Red

Star because it regarded him as disabled. The jury also found Red Star had failed to

prove by a preponderance of the evidence that Taylor had misinformed Red Star about his

medical condition. It awarded Taylor a total of $158,796.34 in back pay, lost pension

benefits, and compensatory damages. The District Court entered a final judgment in

Taylor’s favor on October 13, 2004. On October 26, 2004, Taylor’s counsel filed a

motion for $367,388.15 in attorney’s fees under the ADA. The next day, Red Star moved

                                             4
for judgment as a matter of law or, in the alternative, a new trial, contending there had

been errors in the jury charge. On March 9, 2005, the District Court denied Red Star’s

post-judgment motion and granted Taylor’s counsel’s motion for attorney’s fees in part.

It later also granted Taylor’s counsel’s supplemental motion for attorney’s fees on June 8,

2005, so that Taylor was awarded a total of roughly $290,000 in attorney’s fees.

       II. Red Star’s Motion for Judgment as a Matter of Law or a New Trial

       Red Star appeals the District Court’s entry of final judgment, as well as its denial

of a motion for a new trial on the basis of prejudicial errors in the jury charge. We review

the denial of a new trial motion for abuse of discretion. Honeywell, Inc. v. Am. Standards

Testing Bureau, Inc., 851 F.2d 652, 655 (3d Cir. 1988). Where, as here, a party properly

objects to a jury instruction under Fed. R. Civ. P. 51, we exercise plenary review to

determine whether the instruction misstated the applicable law. Franklin Prescriptions,

Inc. v. N.Y. Times Co., 424 F.3d 336, 338 (3d Cir. 2005). We generally review jury

instructions for abuse of discretion to determine whether they are misleading or

inadequate. Woodson v. Scott Paper Co., 109 F.3d 913, 929 (3d Cir. 1997).

       The District Court instructed the jury: “you need not decide whether USF-Red Star

prevented Mr. Taylor from returning to work because of his medical condition. There is

no dispute as to this fact.” (J.A. 1412.) Red Star contends this instruction was plainly

false, gravely prejudiced Red Star’s defense that it refused to allow Taylor to return to

work because no physician had cleared him to drive a forklift (rather than because of his

medical condition), and bolstered Taylor’s case and credibility. In denying Red Star’s

                                             5
objection to the instruction, the District Court noted: “Well, it’s really a sequence of

things, isn’t it? Because of [Taylor’s] seizures, the doctors gave certain opinions, et

cetera, but it was basically because he had seizures that he was precluded from going to

work. . . . [F]undamentally, initially, it was because he had seizures that he was sent

home.” (J.A. 1252–54.) Moreover, Saylor testified that, on initially sending Taylor

home, he told him:

       [D]riving a forklift seems to me places yourself and some other employees
       in just as much danger as driving a truck might . . . . [U]ntil we get further
       information from your treating physician with them telling us it’s a good
       idea for you to be doing this or medically possible for you to be doing this .
       . . we [will] not be calling [you] for work.

(J.A. 823.) We conclude the District Court did not abuse its discretion in instructing the

jury as it did, and that the instruction was not misleading or inadequate.1

       The District Court also instructed the jury on the meaning of “major life activity”

under the ADA:


   1
     The recent Eighth Circuit decision cited by Red Star’s counsel in his November 14,
2006, letter to the Court is distinguishable. The defendant employer in Pittari v.
American Eagle Airlines, Inc., Nos. 05-4181 & 06-2287, 2006 WL 3230089 (8th Cir.
Nov. 9, 2006), placed narrow, temporary restrictions on the plaintiff employee’s work
only after receiving a medical diagnosis (with which the employee initially agreed) that
the employee’s cognitive faculties might impair his ability to perform certain safety-
sensitive duties. Here, by contrast, there was evidence Red Star (through Saylor)
discovered Taylor had suffered seizures and then sua sponte prevented him from working
at all until a medical diagnosis could clear him to do so. Moreover, the Eighth Circuit
held that, because the employee had only presented evidence showing he was disqualified
from a narrow range of jobs, as opposed to the major life activity of working, the
employer was entitled to summary judgment on the employee’s ADA claim. Id. at *6.
Here, by contrast, there was evidence Red Star saw Taylor as disqualified from a broad
range of work, and the jury found Red Star regarded him as disabled.

                                              6
       [T]he phrase “major life activity” means an activity that an average person
       can perform with little or no difficulty. Examples are caring for oneself,
       walking, breathing, seeing, hearing, and working. Mr. Taylor claims that
       USF-Red Star perceived him as having epilepsy or a seizure disorder, which
       substantially limited his major life activities of walking, breathing, caring
       for himself, remaining conscious and/or working and that it so classified
       him without a factual foundation.
               Now merely driving a forklift or truck is not a major life activity. To
       find that USF-Red Star regarded Mr. Taylor as having an impairment,
       which substantially limited [his] major life activity of working, plaintiff
       must prove that USF-Red Star believed that Mr. Taylor had an impairment
       which restricted his ability to perform either a class of jobs or a broad range
       of jobs in various classes, as compared to the average person, having
       comparable training, skills and abilities. The inability to perform one type
       of job, a specialized job, or a particular job of one’s choice, does not
       necessarily mean that one is substantially limited in the major life activity
       of working.

(J.A. 1416–17.) Quoting only the first sentence of this instruction, Red Star contends it

was “‘legally erroneous’” and “plainly did not ‘fairly and adequately’ submit the issues to

the jury.” (Red Star Br. 29.) Both at trial and in its brief, Red Star contended the District

Court should have instructed the jury that a “major life activity” is an activity “of central

importance to daily life” (Red Star Br. 28–29; J.A. 1269–70), relying on Toyota Motor

Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002).

       Toyota dealt with the “major life activity of performing manual tasks,” which it

found “different” from the major life activity of working. 534 U.S. at 200. In Sutton v.

United Air Lines, Inc., 527 U.S. 471, 491 (1999), the Court assumed without deciding that

working was a major life activity under the ADA, and found that a showing of being

“substantially limited” in the major life activity of working under the ADA “requires, at a



                                              7
minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” It noted

this was consistent with ADA regulations promulgated by the EEOC, which state:

       With respect to the major life activity of working . . . [t]he term
       substantially limits means significantly restricted in the ability to perform
       either a class of jobs or a broad range of jobs in various classes as compared
       to the average person having comparable training, skills and abilities. The
       inability to perform a single, particular job does not constitute a substantial
       limitation in the major life activity of working.

29 C.F.R. § 1630.2(j)(3) (2005). As the District Court noted in its order denying Red

Star’s new trial motion, this Court has also followed Sutton in applying the “class”

approach to the major life activity of working. See Edwin Taylor v. USF-Red Star

Express, Inc., No. 03-2216, at 6 (E.D. Pa. Mar. 8, 2005) (citing Tice v. Centre Area

Transp. Auth., 247 F.3d 506, 517 (3d Cir. 2001)). And in Toyota, the Court cited both

Sutton and the EEOC regulations in noting the “class” approach still applied to

determining whether an individual was substantially limited in the major life activity of

working, though not the major life activity of performing manual tasks. 534 U.S. at 200.

We conclude there was no error in the District Court’s instruction on the meaning of

“major life activity,” which was consistent with Toyota, Sutton, our precedent, and the

EEOC regulations.

       Red Star also appeals the District Court’s denial of its motion for judgment as a

matter of law, on grounds Taylor presented no evidence for any reasonable juror to find

that Red Star regarded Taylor as “disabled,” and that, even if a reasonable juror could

have found Red Star regarded Taylor as disabled, a plaintiff cannot recover on a


                                             8
“regarded as” disability theory when he unreasonably fails to correct the defendant’s

mistaken perception of his impairment. We will affirm the denial of a motion for

judgment as a matter of law “unless the record is ‘critically deficient of that minimum

quantity of evidence from which the jury might reasonably afford relief,’” and regard the

evidence in the light most favorable to the non-moving party. Honeywell, 851 F.2d at

654–55 (quoting Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 921 (3d Cir.

1986)).

       Red Star contends no reasonable jury could have found Red Star regarded Taylor

as “disabled,” because Taylor presented no evidence regarding Red Star’s perception of

the frequency or severity of the seizures Taylor suffered, and no evidence Red Star

believed Taylor’s seizures prevented him from doing anything other than driving a truck

or forklift. In fact, the trial record contains evidence Red Star believed Taylor was

“seizure prone” so that he “might have another seizure and be a danger to the public”

(J.A. 883), and that “no matter what he was doing [he] could be a threat to himself [and]

others” (J.A. 332). An email discussing Red Star’s possible response to complaints by

Taylor’s union also reflects this perception:

              We need to disclaim Local 107’s claim that we have enough “floor”
       work to have kept Mr. Taylor supplied with work. This is a [sic] simply
       untrue. You can’t work our dock in [Philadelphia] or anywhere without the
       need to operate a forklift being prevalent through 75 to 90 percent of your
       time.
              . . . Since just walking a dock requires careful awareness of
       everything around you, suppose a seizure would occur and the afflicted
       person falls into the path of a forklift. The person risks serious injury or
       death. Suppose the seizure prone person is walking into a trailer or is near

                                                9
       the edge of the dock for other reasons. Suppose a seizure occurs and the
       person falls from the dock to the pavement . . . below?

(J.A. 1669.)2 Viewing the evidence in the light most favorable to Taylor, we conclude a

jury could reasonably have found Red Star regarded him as “disabled,” and accordingly

that the District Court did not err in denying Red Star’s motion for judgment as a matter

of law on that ground.

       Red Star contends that even if a reasonable jury could have found Red Star

regarded Taylor as disabled, it is entitled to judgment as a matter of law because Taylor

caused and fostered any mistaken impression that Red Star had concerning his condition.

In Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir. 1999), we found an employer

could be held liable for regarding an employee as disabled even when that perception was

mistaken, but that a “reasonable mistake” defense was sometimes available when the

employee was responsible for the mistaken perception. Specifically, we stated:

       If an employer regards a plaintiff as disabled based on a mistake in an
       individualized determination of the employee’s actual condition rather than
       on a belief about the effects of the kind of impairment the employer
       regarded the employee as having, then the employer will have a defense if
       the employee unreasonably failed to inform the employer of the actual
       situation.


   2
      As the District Court noted, Red Star’s own motion for judgment as a matter of law
stated Taylor had suffered seizures that prevented him from walking or talking. Edwin
Taylor v. USF-Red Star Express, Inc., No. 03-2216, at 6 (E.D. Pa. Mar. 8, 2005) (order
denying Red Star’s motion for judgment as a matter of law or, in the alternative, a new
trial). The motion also stated if Taylor suffered another seizure “while working on the
dock” he could fall into the path of another forklift. Mem. of Law in Supp. of Def.’s
Post-Trial Mot. for J. as a Matter of Law or, in the Alternative, for a New Trial at 21,
Taylor, No. 03-2216 (E.D. Pa. Oct. 27, 2004).

                                            10
Id. at 193 (emphasis added). Red Star contends it made decisions based on an

individualized determination of Taylor’s condition, and that Taylor knowingly misled

Red Star into regarding him as having epilepsy.3

       But there was evidence Red Star’s perception that Taylor had a serious epileptic

condition preventing him from working in any capacity on Red Star’s dock was not based

on information from Taylor, but on the assessments of doctors reporting to Red Star. For

example, Dr. Mascaro testified he was concerned at least as early as March 26, 2001, that

Taylor was unable to operate a motor vehicle due to a seizure disorder, and, upon seeing

Dr. Scardigli’s late March 2001 opinion that Taylor was capable of operating a forklift,

that he called Dr. Scardigli “about the potential danger of someone with epilepsy

operating a motorized vehicle.” (J.A. 481–82.)

       As the District Court noted in denying Red Star’s motion for judgment as a matter

of law, “[t]here was conflicting evidence on this issue, and the Jury clearly resolved it in

favor of [Taylor]. In keeping with Supreme Court precedent, this Court is obligated to

respect the Jury’s conclusion.” Taylor, No. 03-2216, at 7 (E.D. Pa. Mar. 8, 2005) (order

denying Red Star’s post-trial motions) (citing Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150–51 (2000)). Viewing the evidence in the light most favorable to


   3
     Specifically, Red Star contends Taylor: told Saylor he had been diagnosed with
infantile epilepsy and provided Red Star with literature on accommodations for epilepsy;
signed an EEOC discrimination charge in which he falsely stated he had been diagnosed
with epilepsy and Red Star had discriminated against him for that reason; wrote a letter to
Red Star requesting accommodation for epilepsy on May 17, 2001; and testified he never
believed he had epilepsy. (Red Star Br. 8, 38.)

                                             11
Taylor, we conclude a jury could reasonably have found Red Star’s perception of Taylor

as disabled was not a result of Taylor’s unreasonably failing to inform Red Star of his

condition, and accordingly that the District Court did not err in denying Red Star’s

motion for judgment as a matter of law on that ground.

                 III. The District Court’s Awards of Attorney’s Fees

       The District Court awarded Taylor’s counsel a total of roughly $290,000 in

attorney’s fees under the ADA, 42 U.S.C. § 12205, for approximately 1242 hours of work

(roughly $246,000 in response to the initial motion for attorney’s fees and roughly

$44,000 in response to his supplemental motion for attorney’s fees). In making the

awards, the court noted “[t]he underlying litigation was extremely hard-fought and

contentious, mostly due to [Red Star’s] apparent strategy of fighting [Taylor] at every

turn, through the extensive pre-trial motions practice to post-trial motions.” Taylor, No.

03-2216, at 1 (E.D. Pa. Mar. 8, 2005) (order granting in part Taylor’s initial motion for

attorney’s fees). Red Star appeals both the District Court’s initial and supplemental

awards of attorney’s fees, while Taylor’s counsel appeals the District Court’s reduction of

the initial award. We will affirm both awards.

A. Procedural History

       The initial motion for attorney’s fees sought roughly $367,000. Red Star

responded to the motion, contending the fee request was excessive and that the District

Court should reduce any fee award to a figure below $100,000. Red Star listed several

“specific objections” to the hours for which Taylor sought compensation, contending they

                                            12
were excessive and unnecessary: it contended 241.7 hours supposedly expended on

preparation of Taylor’s ultimately unsuccessful summary judgment motion were

excessive in a single-plaintiff case given counsel’s expertise; and it contended 59 hours

supposedly expended on preparation of jury instructions were excessive given the time

that had already been expended in the case.

       In its initial fee award of March 8, 2005, the District Court made three reductions

to the hours presented in Taylor’s initial motion for attorney’s fees (3.5 hours for record-

keeping irregularities and 44 hours of a senior attorney’s trial time, because his presence

had been unnecessary and redundant). It also provisionally withheld fees for the hours

Taylor contended had been spent preparing his summary judgment motion and jury

instructions. As to the 241.7 summary judgment motion hours, the District Court stated:

“the amount of time billed for [the motion] is simply astounding (particularly in light of

its ultimate failure) and therefore not completely reasonable.” Taylor, No. 03-2216, at

9–10 (E.D. Pa. Mar. 8, 2005) (order granting in part Taylor’s initial motion for attorney’s

fees). As to the 59 jury instruction hours, it stated: “this smacks of excessiveness.” Id. at

11. For both figures, however, the court stated it could not “unilaterally, and without

sufficient evidence, dictate the number of hours that would have been reasonable.” Id. at

10. It stated Red Star had “submitted no contrary information, criticizing counsel’s

utilization of time as broadly unreasonable, excessive, and redundant,” and directed Red

Star (and allowed Taylor) to submit additional evidence as to the hours that would have

been reasonable. Id. at 4, 10–11. If Red Star failed to submit such evidence, the court

                                              13
stated, it would consider Red Star to have constructively waived its objections to the

summary judgment and jury instruction hours.

       But Red Star declined to provide the evidence requested by the District Court. In a

March 22, 2005, supplemental brief, it contended the initial attorney’s fees order had

found Taylor had failed to show that the hours he claimed were expended on his summary

judgment motion and jury instructions were reasonable. In directing Red Star to submit

evidence on reasonableness, Red Star contended, the District Court had improperly

shifted the burden of showing reasonableness from the fee applicant to the adverse party.

It contended the specific objections in its November 9, 2004, response were sufficient to

allow the District Court to reduce the hours for which Taylor’s counsel were entitled to

fees. Taylor’s counsel, meanwhile, filed a supplemental affidavit on March 22, 2005,

stating the hours expended in preparing the summary judgment motion and jury

instructions were reasonable.

       In an order of April 26, 2005, the District Court awarded Taylor attorney’s fees for

the 59 hours spent by his counsel preparing jury instructions (finding Taylor’s attorney’s

contention in her supplemental affidavit that this amounted only to a week of time

persuasive), but reduced the hours spent on the summary judgment motion for which it

awarded fees from 241.7 to 41.32 (awarding fees only for the hours expended on the

summary judgment brief’s factual statement, because Taylor’s bills were otherwise

insufficiently detailed to separate time spent on individual arguments within the brief). In

response to Red Star’s brief, the court characterized its earlier order as not concluding

                                             14
that the hours submitted by Taylor for preparation of the summary judgment motion and

jury instructions were unreasonable, but merely suspecting that they might be

unreasonable. It stated it had invited Red Star to submit evidence “to lend credence to

[Red Star’s] opinion, and the Court’s suspicion, that certain of [Taylor’s] hours were

excessive and redundant.” Taylor, No. 03-2216, at 1 (E.D. Pa. Apr. 26, 2005) (order

directing Red Star to remit fees to Taylor). The court stated it had not shifted the burden

of proof from Taylor to Red Star:

       Quite the contrary, the Court suggested that the amount of hours spent on
       Plaintiff’s Motion for Summary Judgment, and on Plaintiff’s jury
       instructions, may have been unreasonable, and that the Court could not
       unilaterally ascribe an amount of hours that would have been reasonable
       given the record before it at that time. Although it may, in hindsight, have
       been appropriate to require, rather than suggest, that Plaintiff submit
       additional authority in order to prevail, Plaintiff has submitted exactly the
       kind of authority that the Court contemplated, rendering Defendant’s
       concern moot.

Id. at 1 n.1. But the District Court’s decision not to reduce the jury instruction hours

seemingly relied in part on Red Star’s failure to submit any evidence in response to the

court’s earlier order. See id. at 3 (“This conclusion is bolstered by Defense Counsel’s

unwillingness to submit any evidence supporting their contention that Plaintiff’s Counsel

spent an unreasonable amount of time preparing their jury charge.”).

       On April 20, 2005, while his initial motion for attorney’s fees was still pending,

Taylor’s counsel filed a supplemental motion for attorney’s fees, seeking $43,591.50 for

149.2 hours spent on post-trial motions and preparation of the initial motion for attorney’s

fees. On May 20, 2005, Red Star responded to Taylor’s motion, contending it was both

                                             15
untimely under Fed. R. Civ. P. 54(d)(2)(B) (because filed more than fourteen days after

any entry of judgment) and unreasonable. On May 26, 2005, Taylor’s counsel contended

the supplemental motion was not untimely, because they had reasonably waited until they

had finished responding to Red Star’s oppositional responses to the initial motion for

attorney’s fees before filing it. On June 8, 2005, the District Court granted Taylor’s

supplemental motion for fees, rejecting Red Star’s timeliness argument:

       [Red Star’s] objections to the timeliness of [Taylor’s] submission are
       groundless, given the completely logical timetable in which [Taylor’s
       counsel] submitted their fee requests. How could [Taylor’s counsel] submit
       a bill for the time spent preparing his fee petition before [they] completed
       its preparation and found out that it had been granted? [Red Star’s]
       suggestion that this would somehow be appropriate does not comport with
       common sense. Although the Court may not have literally ordered the
       briefing schedule for the fees litigation, the Court is quite comfortable with
       the notion that such a briefing schedule was implied.

Taylor, No. 03-2216, at 1 (E.D. Pa. June 8, 2005).

B. Discussion

       We review the reasonableness of an award of attorney’s fees for abuse of

discretion. Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990). We can find an

abuse of discretion if no reasonable person would adopt the District Court’s view.

Silberman v. Bogle, 683 F.2d 62, 65 (3d Cir. 1982). Whether the District Court applied

the proper standards or procedures is a question of law subject to plenary review. Rode,

892 F.2d at 1182.

       Red Star contends the District Court erred as a matter of law in directing Red Star

to submit evidence on the number of hours that would have been reasonable for Taylor’s

                                            16
counsel to expend in preparing the summary judgment motion and jury instructions, after

it had already found that Taylor’s counsel had failed to prove the hours were reasonable.

Our precedent on the calculation of an award of attorney’s fees and appellate review is

well settled: the party seeking attorney’s fees has the ultimate burden to prove that the

hours for which it seeks fees were reasonably expended, and hours are not reasonably

expended if they are excessive, redundant, or otherwise unnecessary. First, the petitioner

must meet an initial burden by “‘submit[ting] evidence supporting the hours worked and

rates claimed.’” Id. at 1183 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

“In a statutory fee case, the party opposing the fee award then has the burden to

challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the

reasonableness of the requested fee.” Id. (citing Bell v. Utd. Princeton Props., Inc., 884

F.2d 713 (3d Cir. 1989)). Once the adverse party raises sufficiently specific objections to

the fee request, a district court “has a great deal of discretion to adjust the fee award in

light of those objections.” Id. at 1183 (citing Bell, 884 F.2d at 721). But a district court

may not make sua sponte reductions to fee requests based on material facts not raised at

all by the adverse party, because that would deprive the fee petitioner of notice of the

need to offer evidence of reasonableness and because statutory fee litigation is

adversarial. Bell, 884 F.2d at 720, 719; United States v. Eleven Vehicles, 200 F.3d 203,

212 (3d Cir. 2000). In Bell, we stated “that the adverse party’s submissions cannot

merely allege in general terms that the time spent was excessive,” but must identify both



                                              17
the general type of work being challenged and the specific grounds for contending that

the hours were unreasonable. 884 F.2d at 720.

       The District Court’s language in the present case suggests that it did not believe

Taylor’s counsel had met their initial burden of showing the hours spent on his summary

judgment motion and jury instructions were reasonable. So, it may have committed an

error of law in continuing to consider awarding fees to Taylor for hours that had not been

shown to be reasonable. It also appears that the objections to the summary judgment and

jury instructions hours made by Red Star were sufficiently specific to allow the District

Court to reduce those hours, as they met Bell’s two requirements and appeared sufficient

to put Taylor on notice. Accordingly, it may have been legal error for the District Court

to ask Red Star to submit additional information on those hours on the “suspicion” they

were unreasonable.4

       But even assuming arguendo that the District Court erred as a matter of law in

applying the wrong standard to determine whether the hours submitted by Taylor for

preparation of his summary judgment motion and jury instructions were reasonable, we

conclude the error was harmless. See Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir.

2005) (“An error will be deemed harmless only if it is ‘highly probable’ that the error did



   4
     Cf. Loughner v. University of Pittsburgh, 260 F.3d 173, 179 (3d Cir. 2001) (finding
error in district court’s failure to consider defendants’ substantive objections to plaintiff’s
fee petition in determining the reasonableness of hours and subsequent acceptance as
reasonable of all the hours submitted by plaintiff “based on Defendants’ failure to even
attempt to estimate the number of hours and costs expended in defending this action”).

                                              18
not affect the outcome of the case.” ).5 As our precedents indicate, district courts have a

great deal of discretion in making attorney’s fee awards once the petitioner has satisfied

the initial reasonableness burden and the adverse party has presented objections. And

here the District Court did not rely on Red Star’s failure to present further objections and

award Taylor the full amount of fees he sought, but rather reduced the hours expended on

summary judgment and jury instructions for which it awarded fees, from 300.7 to 100.32.

It is highly probable that the same outcome would have resulted had the District Court

simply ruled that Red Star’s objections had put Taylor on notice of the need to defend the

reasonableness of the hours in question. See Taylor, No. 03-2216, at 1 n.1 (E.D. Pa. Apr.

26, 2005) (order directing Red Star to remit fees to Taylor) (“Although it may, in

hindsight, have been appropriate to require, rather than suggest, that Plaintiff submit

additional authority in order to prevail, Plaintiff has submitted exactly the kind of

authority that the Court contemplated, rendering Defendant’s concern moot.”). We

conclude any legal error was harmless.

       Red Star contends the District Court erred as a matter of law in granting Taylor’s

supplemental motion for attorney’s fees, because it was filed more than fourteen days




   5
     We have previously applied the “harmless error” rule to awards of attorney’s fees.
See, e.g., Pa. Envtl. Def. Found. v. Cannon-McMillan Sch. Dist., 152 F.3d 228, 234–35
(3d Cir. 1998); Zolfo, Cooper & Co. v. Sunbeam-Oster Co., Inc., 50 F.3d 253, 260–61 (3d
Cir. 1995); Davis v. S.E. Pa. Transp. Auth., 924 F.2d 51, 55–56 (3d Cir. 1991); Francois
v. Francois, 599 F.2d 1286, 1296 (3d Cir. 1979).

                                             19
after any final judgment, in contravention of Fed. R. Civ. P. 54(d)(2)(B).6 The 1993

Amendments to that rule stated: “What is required is the filing of a motion sufficient to

alert the adversary and the court that there is a claim for fees, and the amount of such fees

. . . .” Notice is a greater concern in initial motions for attorney’s fees than it is in

supplemental motions, and courts considering the timeliness of supplemental motions

have allowed those motions to be filed as long as their timing was reasonable. See, e.g.,

Columbia Steel Casting Co., Inc. v. Portland Gen. Elec. Co., 31 F. Supp. 2d 866, 868 (D.

Or. 1998) (finding plaintiff’s motion for supplemental attorney’s fees was timely, despite

being filed more than fourteen days after the entry of judgment, because it was “filed

within a reasonable time after the amount of fees incurred was known”); Parker v.

Califano, 443 F. Supp. 789, 792 (D.D.C. 1978) (“[C]ounsel’s decision not to file any

supplemental fees motions until the case was completed in its entirety was perfectly

reasonable.”); see also Bernback v. Greco, No. 98-0230, 2005 WL 1563503, at *1 (M.D.

Pa. June 30, 2005) (granting plaintiff leave to file a supplemental motion for post-

judgment fees and negating defendant’s contention that the supplemental motion was

untimely).7 We conclude the District Court did not err as a matter of law in granting


   6
    Fed. R. Civ. P. 54 is not jurisdictional. Mints v. Educ. Testing Serv., 99 F.3d 1253,
1260 (3d Cir. 1996).
   7
    In contrast, courts in this Circuit have denied initial motions for attorney’s fees filed
more than fourteen days after the entry of judgment. See, e.g., Mathews v. Lancaster
Gen. Hosp., 87 F.3d 624, 642 n.12 (3d Cir. 1996) (noting, in upholding denial of initial
motion for attorney’s fees, that it “was not timely under Fed R. Civ. P. 54(d)(2)(B)
because it was not filed and served within 14 days after entry of judgment”); Berwyn

                                               20
Taylor’s supplemental motion for attorney’s fees because its timing was logical, despite

the fact that it was filed more than fourteen days after any entry of judgment.

       Both Red Star and Taylor contend the District Court abused its discretion in its

awards of attorney’s fees.8 Red Star contends the District Court abused its discretion by

failing to eliminate unnecessary and duplicative hours from Taylor’s initial motion for

fees and his supplemental motion for fees. And Taylor contends the District Court

abused its discretion in reducing the hours expended on preparing Taylor’s summary

judgment motion for which it awarded fees from 241.7 to 41.32. In awarding fees, a

district court “must make an adequate record upon which we can review its decisions.”

Rode, 892 F.2d at 1187. Here, the District Court based its fee awards on extensive billing

records and exhibits, sought additional briefing to determine the reasonableness of certain




Capital Invs., Inc. v. Shore Venture Group, LLC, No. 01-0691, 2006 WL 2045700, at *1
(E.D. Pa. July 18, 2006) (finding plaintiff’s initial motion for attorney’s fees untimely
because filed more than fourteen days after the entry of judgment, and noting that,
“[w]hile it is probable that this court would have discretion to grant even an untimely
motion for counsel fees, the circumstances of this case do not warrant such an exercise of
discretion”).
   8
     The District Court awarded Taylor roughly $290,000 in attorney’s fees, while his
total recovery was roughly $158,000. But, as the District Court noted, this litigation has
been quite contentious and time-consuming. And we have expressed “serious concerns
with the practice of limiting an award of attorney’s fees to maintain proportionality
between the fees and the amount of damages awarded.” Washington v. Philadelphia Cty.
Ct. of Common Pleas, 89 F.3d 1031, 1039 (3d Cir. 1996) (citing N.E. Women’s Ctr. v.
McMonagle, 889 F.2d 466, 474–75 (3d Cir. 1989); Cunningham v. City of McKeesport,
807 F.2d 49, 52–54 (3d Cir. 1986)).

                                             21
hours, and cogently explained its reasoning in making reductions. We find the District

Court did not abuse its discretion in making its awards of attorney’s fees.

                                            IV.

       We will affirm the District Court’s entry of final judgment, its denial of the post-

judgment motion, and its attorney’s fees awards.




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