Michael McKenna; Beth McKenna; Timothy McKenna; Patricia Sullivan v. City of Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-4109
_____________
MICHAEL MCKENNA; BETH MCKENNA;
TIMOTHY MCKENNA; PATRICIA SULLIVAN,
Appellants
v.
CITY OF PHILADELPHIA; ANDREW JERICHO;
MARK STOOTS; CAPTAIN DEBORAH KELLY;
2 JOHN DOE MALE POLICE OFFICERS
ONE WHITE AND ONE BLACK, Sued in official
and individual capacity, Sued individually and jointly,
Held liable individually and jointly;
JONATHAN JOSIE
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 07-110)
Honorable J. William Ditter, Jr., District Judge
Argued June 2, 2009

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2
BEFORE: MCKEE, HARDIMAN, and GREENBERG,
Circuit Judges
(Filed: October 02, 2009)
Brian M. Puricelli
691 Washington Crossing Road
Newtown, PA 18940
Brian K. Wiley (argued)
100 South Main Street
North Wales, PA 19454
Attorneys for Plaintiffs-Appellants
Shelley R. Smith, City Solicitor
Jane L. Istvan (argued)
Senior Attorney, Appeals
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
Attorneys for Defendants-Appellees
OPINION OF THE COURT

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The District Court set forth the background of the case in its1
post-trial opinion denying plaintiffs’ motion for judgment as a
matter of law or for a new trial. McKenna v. City of
Philadelphia, Civ. No. 07-110, 2008 U.S. Dist. LEXIS 76766
(E.D. Pa. Sept. 30, 2008).
3
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on plaintiffs’
appeal from orders entered in this action under 42 U.S.C. §
1983, denying their motion for a judgment as a matter of law or
for a new trial and granting defendants partial summary
judgment and a partial judgment as a matter of law. In addition,
plaintiffs appeal from an order awarding them attorneys’ fees,
claiming that the award was inadequate.
This case arose from encounters between the Philadelphia
police and revelers at an impromptu street celebration following
the Philadelphia Eagles’ National Football Conference
championship win on January 23, 2005. The four plaintiffs —1
Timothy McKenna; his parents, Michael and Beth McKenna
(hereinafter “Mr. and Mrs. McKenna”); and his aunt, Patricia
Sullivan — watched the game on television and then, bringing
two video cameras, left home to join thousands of other Eagles
fans celebrating in the streets of northeast Philadelphia in the
vicinity of Cottman and Frankford Avenues. Eventually, the

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Timothy’s family recorded the events of the evening on two2
videotapes. In addition to the tape Mr. and Mrs. McKenna
recorded, Ms. Sullivan recorded a tape that partially captured the
events occurring at Cottman and Frankford Avenues. Ms.
Sullivan’s tape was played for the jury at trial. Sometime before
trial, however, the tape Mr. and Mrs. McKenna recorded
disappeared from their possession for reasons unknown to us.
4
gathering started to get out of control, and plaintiffs crossed
paths with police officers attempting to disperse the crowd so
that injuries and property damage could be avoided.
At the trial, plaintiffs and the officers offered what in
some respects were differing accounts of their encounter. They
all agreed, however, that during the encounter the police, in
particular Officer Andrew Jericho, arrested 17-year-old Timothy
McKenna. After they arrested Timothy, the police brought him
to the 15th District Headquarters (the “15th District”) for
processing. His parents arrived at the 15th District sometime
later. While arguing with Sergeant Mark Stoots regarding
Timothy’s status, Mr. McKenna was using his video camera to
film activities in the 15th District’s operations room, an area that
was not open to the public for unrestricted access but which
could be viewed through a window by occupants of the public
area of the 15th District building. After Sergeant Stoots
repeatedly asked Mr. McKenna to stop videotaping, Mr.
McKenna gave the camera to his wife to take to the car, but she
returned with the camera hidden under her jacket, still
recording. Ultimately, the police escorted Mr. and Mrs.2
McKenna from the building after which they were free to go to

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Sergeant Josey’s name is misspelled as “Josie” in the3
caption.
5
wherever they wished. The police, however, transported
Timothy to a hospital for evaluation because he complained of
injuries. Moreover, on their own initiative, Mr. and Mrs.
McKenna and Ms. Sullivan also went to the hospital seeking
evaluation and treatment. When the family returned to the 15th
District, the police released Timothy to his parents. Though the
police filed disorderly conduct charges against Timothy, a local
court dismissed the complaint for lack of prosecution after the
police did not appear for several scheduled proceedings.
On January 10, 2007, the four plaintiffs filed a complaint
in the District Court alleging that the City of Philadelphia
(hereinafter, the “City”) and various police officers directly had
committed or were responsible for multiple violations under
section 1983 of their constitutional rights during the course of
the foregoing events. The City successfully moved for summary
judgment on plaintiffs’ claims against it, but the case then
proceeded to trial against defendants Captain Deborah Kelly,
Officer Jericho, Sergeant Stoots, and Sergeant Jonathan Josey3
on claims of Fourth Amendment malicious prosecution, false
arrest, excessive force, and First Amendment retaliation. The
First Amendment claim alleged that defendants improperly
delayed Timothy’s release in retaliation for Mr. McKenna’s
action in bringing a prior lawsuit against the City, and for the
McKennas’ refusal to stop videotaping the operations room at
the 15th District where the police were holding Timothy.

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6
At the trial the District Court granted Officer Jericho’s
motion for judgment as a matter of law on the malicious
prosecution claim and granted judgment in favor of Sergeant
Stoots and Sergeant Josey on supervisory liability claims. The
Court also granted judgment as a matter of law in favor of
Captain Kelly, finding that there was no evidence that she
witnessed either the arrest or an improper delay in Timothy’s
release.
On September 14, 2007, following a five-day trial on the
remaining claims, the jury found in favor of defendants on all
charges except Timothy McKenna’s false arrest claim against
Officer Jericho. The jury awarded Timothy $150,000 in
damages on that claim.
Subsequently, Timothy’s attorney, Brian Puricelli, filed
a fee petition pursuant to 42 U.S.C. § 1988, seeking $181,340
for representation of Timothy. Moreover, he separately filed a
bill of costs with the Clerk of the District Court seeking the
taxation of costs, but only against Officer Jericho, the sole
defendant who had been held liable in the case. In a post-trial
motion, plaintiffs also raised multiple grounds for the grant of
a judgment as a matter of law and, in the alternative, a new trial.
On September 30, 2008, the District Court denied plaintiffs’
post-trial motions and, in a separate opinion and order, awarded
them $27,178.75 in attorneys’ fees, explaining at length its
reasons for awarding so much less than the amount sought in the
fee application. See McKenna v. City of Philadelphia, Civ. No.
07-110, 2008 U.S. Dist. LEXIS 76769 (E.D. Pa. Sept. 30, 2008).
The Court declined to rule on Timothy’s request for costs,
noting that the Clerk of its Court had not yet taxed costs and

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Plaintiffs’ notice of appeal recites that they are appealing4
from the order denying them a new trial or a judgment as a
matter of law and from the order awarding attorneys’ fees as
well as from “rulings made pretrial . . . and during trial.” App.
at 67. Thus, we treat this appeal as encompassing all of the
issues raised in their brief, including those that go beyond the
three matters the notice of appeal specifically cited. See Pacitti
v. Macy’s, 193 F.3d 766, 776–77 (3d Cir. 1999). We note that
even though all plaintiffs join in all aspects of the notice of
appeal, the three unsuccessful plaintiffs do not contend that they
would be entitled to attorneys’ fees if we affirm on the
substantive disposition of this case in the District Court.
7
that, therefore, under the procedure outlined in Eastern District
Local Rule 54.1(b), there was nothing for it to review.
Subsequently, plaintiffs filed an appeal challenging
certain aspects of both orders. For the reasons we discuss
below, we will affirm the District Court’s award of attorneys’
fees and its denial of plaintiffs’ motion for a judgment as a
matter of law or for a new trial and will dismiss the appeal
insofar as plaintiffs are seeking costs for the District Court
proceedings.4
II. JURISDICTION
The District Court had jurisdiction over plaintiffs’ section
1983 claims pursuant to 28 U.S.C. §§ 1331 and 1343, and we

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Defendants concede, citing Budinich v. Becton Dickinson &5
Co., 486 U.S. 196, 200–03, 108 S.Ct. 1717, 1721–22 (1988),
that the costs issue is an “ancillary matter” like a dispute over
statutory attorney’s fees that “should not undermine the finality
of the fee award.” Appellees’ br. at 2. We agree and apply that
principle to the entire appeal.
In their brief, plaintiffs contend that 28 U.S.C. § 1920 “does6
not require a request for approval of a Bill of Cost[s] to first go
to the Clerk; rather it grants a choice to the prevailing party to
ask the Clerk or a Judge of the United States Courts to award the
Costs.” Appellants’ br. at 16. We can understand the basis for
that contention, inasmuch as section 1920 provides that “a judge
or clerk . . . may tax costs.” This language, however, merely
8
have jurisdiction pursuant to 28 U.S.C. § 1291 to review the
orders challenged on this appeal, except we lack jurisdiction
over the District Court’s action in deferring disposition of
Timothy’s request for it to fix costs. Under the procedures
outlined in Fed. R. Civ. P. 54(d)(1) and Local Rule 54.1(b), the
Clerk taxes costs, and then, if there is an objection to the Clerk’s
action, the District Court reviews the Clerk’s award. Here, the
District Court declined to take any action on Timothy’s request
for costs because the Clerk had not yet taxed costs. Thus,
because neither the Clerk nor the District Court has made any
determination of whether Timothy is entitled to costs, let alone
settled on the quantum of the costs, there is not a final order on
the costs issue for us to review. Therefore, to the extent that5
Timothy seeks a review of the disposition on his application for
costs, we will dismiss the appeal without prejudice to further
proceedings with respect to costs in the District Court.6

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indicates which officers have the authority to tax costs, and does
not grant the prevailing party a choice between the two. We do
not believe that Congress intended to preclude the adoption of
Fed. R. Civ. P. 54(d)(1) or a comparable district court rule
requiring that the clerk make the initial determination of the
entitlement to and the quantum of costs. In any event, in the
absence of a clear congressional direction, we will not require
a district court to follow a procedure that would allow a litigant
to determine whether a clerk or a judge must decide the issue.
We recognize that a reader might find it strange that we first7
address the attorneys’ fees issue but in doing so we follow the
order of the issues that plaintiffs advance in their brief.
9
III. DISCUSSION
A. Attorneys’ Fees
We exercise plenary review in considering whether the
District Court applied the proper legal standards in determining
the fee award, and we review the reasonableness of the fee
award for abuse of discretion. Jama v. Esmor Corr. Servs.,7
Inc., 577 F.3d 169, 173 (3d Cir. 2009). We will conclude that
there has been an abuse of discretion if a reasonable person
could not have adopted the District Court’s view of the
appropriate amount of an award. Rode v. Dellarciprete, 892
F.2d 1177, 1182–83 (3d Cir. 1990). We review the Court’s
factual findings on an attorneys’ fee application, “including [the
Court’s] determination of an attorney’s reasonable hourly rate
and the number of hours he or she reasonably worked on the

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10
case,” for clear error. Interfaith Cmty. Org. v. Honeywell Int’l,
Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005).
The District Court awarded fees pursuant to 42 U.S.C. §
1988, which provides that prevailing parties in civil rights cases
may be granted “a reasonable attorney’s fee.” The starting point
for determining the amount of a reasonable fee is the lodestar,
which courts determine by calculating the “number of hours
reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.
1933, 1939 (1983). Hensley instructs that courts are to exclude
from the determination of the lodestar any hours not reasonably
expended. Hours subject to exclusion under Hensley include
those deemed “excessive, redundant, or otherwise unnecessary.”
Id. at 434, 103 S.Ct. at 1939–40.
A court’s calculation of the lodestar, however, does not
end its inquiry on a fee application. A district court can adjust
a fee award upward or downward based upon the results
obtained in a case. Id. at 434, 103 S.Ct. at 1940. In addition, an
attorney’s work on unsuccessful claims not related to the claims
on which the attorney succeeded is not compensable, because
such work “cannot be deemed to have been expended in pursuit
of the ultimate result achieved.” See id. at 434–35, 103 S.Ct. at
1940 (internal quotation marks omitted). Moreover, as we have
held, “the District Court has a positive and affirmative function
in the fee fixing process, not merely a passive role” and “should
reduce the hours claimed by the number of hours spent litigating
claims on which the party did not succeed, that were distinct
from the claims on which the party did succeed, and for which
the fee petition inadequately documents the hours claimed.”

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It well may be that the City will satisfy any judgment against8
Officer Jericho and so, effectively, filed the objections on its
own behalf. As a matter of convenience we will refer to the
objections to the fee application as if the City filed them on
behalf of all defendants as, indeed, the objections recite.
11
Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir.
2001).
Here, Timothy’s trial attorney, Brian M. Puricelli,
requested a total fee award of $181,340, comprising $171,040
for 427.6 hours of his own work and $10,300 for 41.2 hours
logged by his co-counsel, Theodore M. Kravitz. The City,
though entirely successful as an entity, filed detailed objections
to the fee petition, in theory on Officer Jericho’s behalf, and
suggested that an appropriate award would be $19,506.08.8
After making several sets of deductions and adjustments to the
fee request, the Court awarded Timothy a total attorneys’ fee of
$27,178.75, representing $25,602.50 for Puricelli’s work and
$1,576.25 for Kravitz’s work. Bearing in mind that our review
of the Court’s award is quite deferential, we now examine its
adjustments.
1. Deductions for Hours Not Reasonably Expended
The District Court began by applying Hensley to exclude
from the lodestar those hours that were not reasonably expended
in the pursuit of Timothy’s successful claim, a process that
entailed reviewing the time charged, deciding whether the hours
set out were reasonably devoted to each of the particular

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In this regard plaintiffs’ attorney originally submitted to the9
District Court an uncorrected and mistake-filled draft of his fee
application. That Court understandably was disturbed by this
submission and by what it perceived as counsel’s sloppy work
throughout the case. We are satisfied that a court can consider
the quality of an attorney’s filings when fixing fees.
Nevertheless, we should not be understood as reaching our
conclusion on a punitive basis.
Plaintiffs point out that Puricelli is 54 years old “but despite10
his age it remains that he, like many fifty, sixty, and seventy-
year-olds, (even those on the bench) is able to work hard and
long hours.” Appellants’ br. at 34 (emphasis added). We in no
way suggest that we believe that Puricelli’s age required him to
spend extra time on this case, though we acknowledge that at
least some judges in their seventies or older have difficulty
working the same number of hours or at least with the same
efficiency that they worked when younger.
12
purposes described, and then excluding the hours that were
“excessive, redundant, or otherwise unnecessary.” See 461 U.S.
at 434, 103 S.Ct. at 1939–40. See also Loughner, 260 F.3d at
178. In making this determination, the Court excluded a
substantial portion of the hours the attorneys billed for preparing
the complaint, the proposed jury instructions, and the fee
petition after concluding that the fee request included excessive
time for these undertakings in light of the nature and quality of
the work produced. After reviewing the documents in question9
and the Court’s discussion of them, we cannot quarrel with its
finding that some of the time claimed was excessive and was not
reasonably expended.10

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These are the precise rates that Puricelli requested that the11
District Court apply. In making his request, however, Puricelli
did not apply the $300 rate to any of his hours, instead achieving
the $171,040 figure by multiplying all 427.6 hours by his top
rate of $400. Thus, Puricelli’s initial fee request was,
undeniably, excessive, and his complaints about the stark
difference between his request and the District Court’s award
ring somewhat hollow. In any event, an attorney making a fee
application in a statutory fee-shifting case should not be able to
use an outlandish application as an initial bargaining position in
the same way that an attorney for a plaintiff in a personal injury
case might make a grossly inflated opening demand in
negotiations for a settlement.
13
2. Adjustments to Hourly Rates
After the District Court reduced the hours allowed for the
preparation of the complaint and eliminated the hours spent
preparing the proposed jury instructions and fee petition, it
arrived at a lodestar of 352.1 hours for Puricelli and 28.7 hours
for Kravitz. Next, the Court determined a proper hourly rate for
each attorney for his different types of work. Based on the rate
Puricelli requested, along with his experience and what he had
been paid for work on other cases in the same legal market, the
Court concluded that Puricelli should receive $400 per hour for
work in court and $300 per hour for trial-preparation work.11
The Court concluded that $250 per hour was an appropriate rate
for Kravitz. In the case of both attorneys, however, the Court
decided to award fees at a reduced rate of $150 per hour for 15.8

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14
hours that they spent performing clerical tasks such as faxing,
emailing, filing, scanning, assembling, and conforming. Also,
because the fee application failed to break down trial time by
category to reflect time spent in and out of court, the Court used
its own records to estimate the proper separation of time for
those periods and awarded fees accordingly.
In the circumstances confronting the District Court, it
was entirely appropriate for the Court to separate time for in-
court work, trial preparation, and clerical tasks for compensation
at different rates. See Loughner, 260 F.3d at 180 (“A claim by
a lawyer for maximum rates for telephone calls with a client,
legal research, a letter concerning a discovery request, the
drafting of a brief, and trial time in court is neither fair nor
reasonable.”). “A District Court’s determination of market
billing rates ‘is a factual question which is subject to a clearly
erroneous standard of review.’” Jama, 577 F.3d at 180 (quoting
Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d Cir.
1997)). The Court reached a reasonable rate for each of the
separate types of tasks performed, amply supported by its
findings and well within its discretion, and we see no error in its
reductions.
3. Reduction for Unsuccessful Trial Claims
The District Court also made a downward adjustment of
the requested fee to reflect Timothy’s lack of success on claims
distinct from his successful false arrest claim. The propriety of
this action depends upon whether the unsuccessful claims were,
in fact, distinct. Hensley cautions that courts should not reduce
fees simply because some of a prevailing party’s related claims

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15
are unsuccessful. See 461 U.S. at 434–35, 103 S.Ct. at 1940.
For example, where a plaintiff’s claims involve “a common core
of facts” or are based on “related legal theories, . . . [m]uch of
counsel’s time will be devoted generally to the litigation as a
whole, making it difficult to divide the hours expended on a
claim-by-claim basis.” Id. at 435, 103 S.Ct. at 1940. However,
where a party brings claims that do not depend on the same sets
of facts and legal theories as the claims on which the party has
succeeded, fees should not be awarded for work on those
unrelated claims because the work “cannot be deemed to have
been expended in pursuit of the ultimate result achieved.” See
id. (internal quotation marks omitted).
In a multi-party case, the proper allocation is of critical
importance. The District Court must ensure that a partially
successful defendant is not required to provide compensation for
an attorney’s unrelated efforts on behalf of an unsuccessful
plaintiff, or in pursuit of the unsuccessful claims of an only
partially victorious plaintiff, as section 1988 provides that only
a “prevailing party” may be granted a reasonable attorney’s fee.
Here, of course, inasmuch as only one claim by one plaintiff
succeeded in the District Court, the Court faced a difficult task
in sorting out the work that was fairly compensable, which could
include only the work that reasonably was expended in pursuit
of the sole successful claim. See Hensley, 461 U.S. at 435, 103
S.Ct. at 1940. Moreover, a plaintiff has the burden to establish
“that the time spent pursuing the unsuccessful claims
contributed in any way to [his] success on his remaining
claims.” Id.
The District Court determined that Timothy’s successful

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16
false arrest claim did not share a common core of facts with his
own unsuccessful claims or with the other three plaintiffs’
unsuccessful claims. Therefore, the District Court ruled that the
time spent in pursuit of these unsuccessful claims was not
compensable under Hensley. See id. at 435, 103 S.Ct. at 1940.
In reviewing the District Court’s conclusion, we note that
the unsuccessful malicious prosecution and First Amendment
retaliation claims concerned separate incidents that occurred
after Timothy’s arrest, and plaintiffs brought them under
separate legal theories. On the other hand, the excessive force
claims concerned events that were temporally proximate to
Timothy’s wrongful arrest. Nonetheless, we conclude that the
District Court did not abuse its discretion in concluding that
these claims did not share a common core of facts with the
successful false arrest claim. Establishing relatedness on a
claim-by-claim basis in the attorneys’ fees context is a fact-
intensive determination that rightfully belongs within the
District Court’s discretion, given the trial court’s “superior
understanding of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual
matters.” Id. at 437, 103 S.Ct. at 1941. Here, the District Court
reasonably concluded that Timothy failed to carry his burden to
establish that the time spent pursuing the unsuccessful claims
contributed in any way to his success on the false arrest claim,
and that therefore no fees should be awarded for time spent on
those unsuccessful claims.
After reaching this conclusion, the District Court then
had to determine what portion of the time billed was attributable
to the unsuccessful claims. In the absence of proper records

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Moreover, as defendants point out, using a strict12
mathematical ratio of successful to unsuccessful claims would
have dictated an adjustment below one-quarter of the lodestar,
given that the one successful plaintiff out of four was successful
on only one of his three claims.
17
separating time spent on plaintiffs’ claims individually, the
District Court concluded that one-quarter of the lodestar
appropriately reflected the hours the attorneys reasonably
expended representing Timothy on his lone successful claim —
a reduction which Puricelli contends was arbitrary and
mathematical. As the Court acknowledged, “[o]f course, a fee
award should not be calculated using a simple mathematical
approach based on the ratio between a plaintiff’s successful and
unsuccessful claims.” McKenna, 2008 U.S. Dist. LEXIS12
76769, at *41. It is incumbent on the fee applicant, however, to
“maintain billing time records in a manner that will enable a
reviewing court to identify distinct claims.” Hensley, 461 U.S.
at 437, 103 S.Ct. at 1941.
Puricelli did not attempt to omit from his fee petition
time spent on unsuccessful claims and failed to maintain records
with sufficient specificity to allow the Court to perform this
calculation with precision. Nonetheless, rather than merely
considering the ratio of successful to unsuccessful claims, the
Court compared the time spent on Timothy’s deposition and on
his claims at trial with time spent on the non-prevailing parties’
depositions and claims, and it also took into account the amount
of the recovery on Timothy’s successful claim. In the absence
of specific time entries to indicate how the attorneys spent their

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Nevertheless it should not be overlooked that the awarding13
of an attorney’s fee is a judicial action and, regardless of the
parties’ indifference to it, a court need not lend its imprimatur to
an inappropriate order merely because there was no objection to
its entry. See Thompson v. City of Atlantic City, 921 A.2d 427,
430, 441 (N.J. 2007) (finding that notwithstanding principles of
comity, state court had authority to vacate settlement agreement
sanctioned by federal court where settlement agreement was “so
infected with conflicts of interest that it [was] void as a matter
of state law.”).
18
time on the distinct claims, the Court reasonably used the
information available to it to estimate a proper division of time.
In this regard, we cannot say that its findings were clearly
erroneous.
In sum, we find that all of the District Court’s deductions
and adjustments were well reasoned and amply supported by the
record.
4. Defendants’ Objections to the Fee Award
In a statutory fee case, once the fee petitioner “submit[s]
evidence supporting the hours worked and rates claimed,” id. at
433, 103 S.Ct. at 1939, the party opposing the fee application
has the burden to challenge the reasonableness of the requested
fee. See Rode, 892 F.2d at 1183. A district court should not
“decrease a fee award based on factors not raised at all by the
adverse party.” Bell v. United Princeton Props., Inc., 884 F.2d13
713, 720 (3d Cir. 1989). Timothy claims that defendants voiced

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In fact, defendants argued for a greater reduction in hours14
and a greater reduction in total fees than the District Court
made, as defendants asked the District Court to make a total
award of $19,506.08 as opposed to the Court’s award of
$27,178.75.
19
“few objections” to his requested fees, and contends that the
District Court erred in adopting a method of reaching a
reasonable fee award different from the method suggested by
defendants. Appellants’ br. at 18.
We find, however, that defendants’ detailed objections
sufficiently raised the issues that the District Court subsequently
addressed. In addition to seeking reduction of the lodestar based
on unsuccessful claims, defendants explicitly objected to the
excessiveness of the hours spent in light of the quality of the
work produced, noting that “Mr. Puricelli’s written work,
including the complaint, motions, jury instructions, and the
instant petition for attorneys’ fees, is careless, vague,
ambiguous, unintelligible, verbose, and repetitive,” and pointing
to several specific instances where these filings were inaccurate
and confusing. See App. at 98. Clearly, defendants’ objections
were sufficiently specific to provide Puricelli with notice that he
should be prepared to defend the hours billed for preparation of
the complaint, the jury instructions, and the fee petition, which
were the three filings for which the Court deducted hours.14
Defendants made two further requests, asking for a
reduction of hours based on the questionable accuracy of the
attorneys’ time records, and for the District Court to address

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20
other specific objections to the total compensation requested by
reducing the total hourly rate uniformly to a blended rate of
$255. As we held in Bell, the type of reduction made by a
district court need not be exactly the same as that requested by
the adverse party, “as long as the fee applicant is given
sufficient notice to present his or her contentions with respect to
the reduction that the district court ultimately makes.” 884 F.2d
at 722. The Court’s decision to address defendants’ objections
by scrutinizing the time records, eliminating excessive hours,
and applying task-appropriate hourly rates was well within its
discretion.
B. Review of Denial of Motion for a New Trial, Including
Subsumed Arguments
Although their arguments before this Court primarily
have been directed towards the issue of attorneys’ fees, plaintiffs
also appeal the denial of their motion for a new trial, asserting
several grounds for error by the District Court. The standard of
review on a motion for a new trial is abuse of discretion, except
where a district court bases its denial of the motion on an
application of law, in which case an appellate court’s review is
plenary. Curley v. Klem, 499 F.3d 199, 205–06 (3d Cir. 2007).
To the extent that this appeal involves review of a summary
judgment or the granting or denying of a judgment as a matter
of law, we exercise plenary review, see Lightning Lube, Inc. v.
Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993), and to the extent
that it involves review of evidentiary rulings we use an abuse of
discretion standard, see Acumed LLC v. Advanced Surgical
Servs., 561 F.3d 199, 211 (3d Cir. 2009). As we discuss below,

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We note that plaintiffs raise certain issues for our15
consideration only if we “remand for a new trial . . . to avoid a
waiver of the issues.” Appellants’ br. at 41. We are puzzled by
this statement as some of plaintiffs’ contentions if accepted
would be grounds for a new trial. Accordingly, we have
considered these issues, nevertheless recognizing that our
review may be more extensive than plaintiffs as appellants ask
us to make it.
All plaintiffs brought excessive force claims but only16
Timothy McKenna could relate the claim to his arrest, as
defendants did not arrest the other plaintiffs.
21
plaintiffs’ arguments are without merit.15
1. Excessive Force Claims
The District Court properly rejected Timothy McKenna’s
argument that it should have instructed the jury, which rejected
plaintiffs’ excessive force claims, that any amount of force used
to effect an arrest without probable cause is per se excessive.16
Timothy’s statement of the law is unsupported by citation, and,
moreover, is wrong. As the Court correctly concluded, the jury
was required to review any excessive force claims under a
totality of the circumstances test, as enunciated in Graham v.
Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989), to
determine whether the force used was reasonable. See Papineau
v. Parmley, 465 F.3d 46, 62 (2d Cir. 2006).
The District Court also correctly rejected plaintiffs’

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argument that they are entitled to a new trial on all of their
excessive force claims because they presented evidence to show
that force was used against them, whereas defendants did not
“present[] any lawful basis to use such force against them.”
Appellants’ br. at 46. Although there was in fact evidence that
the police did not use excessive force, the Court noted, correctly,
that the jury was not required to accept plaintiffs’ evidence
whether or not contrary evidence was presented.
2. Supervisory Liability
Plaintiffs contend that because they presented evidence
that supervisors witnessed relevant misconduct, the District
Court erred in granting defendants’ motion for judgment as a
matter of law on their supervisory liability claims. To be liable
in this situation, a supervisor must have been involved
personally, meaning through personal direction or actual
knowledge and acquiescence, in the wrongs alleged. See Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Here, the
only record citation that plaintiffs offer in support of their
argument that supervisors witnessed misconduct is Mr.
McKenna’s testimony that Sergeant Josey was in the vicinity of
the arrest at some point after Timothy was handcuffed (i.e., after
Timothy’s arrest). This is not a legally sufficient evidentiary
basis for a reasonable jury to find in favor of the plaintiffs and
does not provide us with a reason to reverse the Court’s grant of
judgment as a matter of law on this issue.
3. Exclusion of Police Directives on Use of Force
Plaintiffs allege that the District Court erred when it

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excluded evidence of Philadelphia Police Department directives
on the appropriate use of force. The Court ruled that even if the
directives were relevant, they were subject to exclusion under
Rule 403 of the Federal Rules of Evidence, which permits the
exclusion of relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” A trial court is afforded
substantial discretion when striking a Rule 403 balance with
respect to proffered evidence, see United States v. Eufrasio, 935
F.2d 553, 572 (3d Cir. 1991), and “a trial judge’s decision to
admit or exclude evidence under Fed. R. Evid. 403 may not be
reversed unless it is arbitrary and irrational,” Bhaya v.
Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990)
(internal quotation marks omitted). Here, the Court concluded
that the directives had the potential to lead the jury to equate
local policy violations with constitutional violations, and that
this risk of confusing the issues substantially outweighed the
directives’ probative value. We do not find that in making this
determination the Court abused its discretion. Moreover,
plaintiffs could have offered evidence of police practice
standards in other ways; for example, plaintiffs had the
opportunity to — and did — cross-examine police witnesses
about proper police conduct.
4. Malicious Prosecution Claim
Timothy argues that the District Court improperly granted
judgment as a matter of law in favor of defendants on Officer
Jericho’s Fourth Amendment malicious prosecution claim. To

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prevail on a malicious prosecution claim under section 1983, a
plaintiff must show that: (1) the defendants initiated a criminal
proceeding; (2) the criminal proceeding ended in the plaintiff’s
favor; (3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff suffered
deprivation of liberty consistent with the concept of seizure as
a consequence of a legal proceeding. Estate of Smith v.
Marasco, 318 F.3d 497, 521 (3d Cir. 2003).
Timothy contends that the Court made two errors in its
disposition of the malicious prosecution claim, but neither
contention has merit. First, Timothy argues that the Court erred
in basing its dismissal of the claim on insufficient evidence of
malice, where defendants’ arguments were based on Timothy’s
failure to establish a deprivation of liberty. However, nothing
in Fed. R. Civ. P. 50(a)(2) precludes a court from granting or
denying judgment as a matter of law on a basis modified from
that which a movant has advanced. Second, although Timothy
contends that the Court erred in finding that there was
insufficient evidence of malice to support a malicious
prosecution claim, he supports this contention only with the
vague assertions, without citation, that “the record was replete
with sufficient evidence for malice to be found,” appellants’ br.
at 43, and that because the Court charged the jury on punitive
damages, “there must have been sufficient evidence of malice in
the record,” id. at 44. Unfortunately for him, he does not direct
our attention to the place in the trial transcript of almost 1,000
pages where the evidence to which he refers is located, and we
are not aware of any such evidence. Accordingly, faced with
wholly unsupported allegations of error, we will affirm the

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Though our outcome does not depend on this point, we think17
that Sergeant Stoots’s reasons for not allowing the videotaping
were completely reasonable.
25
Court’s decision on this issue.
5. First Amendment Claims
Finally, plaintiffs challenge certain evidentiary rulings
and jury instructions regarding their First Amendment retaliation
claims. First, the District Court properly denied plaintiffs’
request to admit, as rebuttal evidence, testimony from a former
sergeant from another police district within Philadelphia that he
would have permitted videotaping of his operations room.
Plaintiffs offered this testimony to rebut the testimony of
Sergeant Stoots. The District Court ruled that the proposed
rebuttal testimony was not appropriate for that purpose,
however, because Sergeant Stoots did not testify that Police
Department policy prohibited him from allowing videotaping in
the operations room. Sergeant Stoots testified only that, in his
19 years as an officer, he never had permitted anyone to
videotape in the operations room, and he gave his own reasons
for that position (i.e., that the areas being videotaped by the
McKennas, which were not in the public area of the 15th
District, contained other juveniles who were being held,
undercover officers, and paperwork containing officers’
names). The Court reasonably concluded that the proffered17
testimony would not have rebutted this point, and did not abuse
its discretion in declining to permit the jury to hear it.
Second, the District Court properly rejected plaintiffs’

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claim that the jury instructions and verdict sheet, by using the
term “improper delay” without defining “improper,” confused
the jury on the issue of retaliation. When the jury asked the
Court to define “improper delay,” it did so by explaining that
“improper” meant “whether or not it was retaliation.” App. at
1034. The Court then explained that the reasons for the
retaliation could be the videotaping and the prior lawsuit.
Overall, the Court’s instructions on retaliation and on the
meaning of “improper delay” were perfectly clear, and it did not
abuse its discretion by denying plaintiffs’ request to strike the
word “improper.”
IV. CONCLUSION
We have considered plaintiffs’ remaining arguments but
reject them as being without merit. In accordance with the
foregoing, we will affirm the District Court’s orders of
September 30, 2008, awarding attorneys’ fees and denying
plaintiffs’ motion for judgment as a matter of law or for a new
trial, and will affirm all other orders challenged on this appeal.
However, inasmuch as the Court’s action in deferring the issue
of costs is not ripe for our review, we will dismiss the appeal to
the extent that it raises the costs issue.

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