KATHLEEN B. BURKE, Magistrate Judge.
In prior Orders, the Court has ruled that an award of attorney fees and costs should be made against plaintiff's counsel in favor of defendant pursuant to 28 U.S.C. § 1927 and has referred to the undersigned the question of the amount of fees and costs to be awarded. Docs. 118 and 130. The matter has been fully briefed. Docs. 131, 134. For the reasons set forth below, the undersigned
The factual and procedural background of this case has been detailed extensively by the Court in prior orders and thus will be presented here only in summary form. See, e.g., Docs. 112, 118, 130.
This case was filed on December 9, 2014, under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA") and the corresponding Ohio statute. Defendant filed an Answer in which it alleged, inter alia, that the Complaint was time-barred (Doc. 6); it did not file a Motion to Dismiss. During 2015, the parties engaged in discovery. Discovery was contentious. See, e.g., Memorandum Opinion and Order of 7/29/16, Doc. 118, p. 3 ("Generally speaking, it would not be an exaggeration to state that both sides persisted in opposing any action of the other side."). In June 2015, the parties participated in a mediation with the undersigned but did not resolve the case.
On September 22, 2015, defendant filed a Motion for Summary Judgment in which it argued that the case was time-barred. Doc. 83. The principal issue disputed on the motion was whether plaintiff qualified for equitable tolling of the 90-day period during which she was required to sue after the Equal Employment Opportunity Commission issued her a right to sue letter. See Doc. 83, 103, and 104. On November 18, 2015, the undersigned issued a Report and Recommendation ("R&R") recommending that the motion for summary judgment be granted. Doc. 110. The following day, plaintiff filed a notice indicating that she did not intend to appeal (object to) the R&R but noting her position that the facts of this case differed from cases cited as precedent. Doc. 111. On November 23, 2015, the Court adopted the R&R and entered judgment dismissing the case as time-barred. Doc. 112 and 113.
Shortly after the Court issued its summary judgment ruling, defendant filed its motion for attorney fees and costs. Doc. 114.
Following the Court's ruling on reconsideration, defendant has filed a brief requesting that fees and costs be awarded in the amount of $76,206.07. Doc. 131. Defendant supports its request with a declaration of its counsel to which is attached an exhibit consisting of copies of invoices covering the time period December 23, 2014 (shortly after the case was filed), through August 19, 2016. Each invoice contains entries by date, with each entry providing a description of work performed, the name of the individual who performed the work, the time spent on each task, and the resultant fees billed to defendant. Doc. 131-2 (hereinafter, "invoices"). In addition, defendant seeks attorney fees incurred in October 2016 that had not been yet been invoiced as of October 19, 2016. Doc. 131-1, p. 3, ¶5. Gilbert has filed an opposition brief accompanied by appendices consisting of lists on which invoiced entries that Gilbert objects to are copied, each list being based on a specific ground for objection.
Section 1927 provides:
The first determination the undersigned is required to make is the date from which the fee award runs. An attorney may be sanctioned under § 1927 from "the point in time when the attorney's pursuit of . . . claims became unreasonable and vexatious." Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 646 (6th Cir. 2009).
In the 7/29/16 MOO as well as in the 10/5/16 MOO, the Court stressed that its determination that a fee award is appropriate was influenced by the fact that plaintiff's counsel failed to abandon (dismiss) the case after being provided by defendant's counsel with "convincing" case law indicating that the doctrine of equitable tolling would not apply to rescue plaintiff's claims. 7/29/16 MOO, Doc. 118, pp. 6, 9; 10/5/16 MOO, Doc. 130, pp. 3, 4 n.6, and 6. The Court cited two cases that were also cited in the R&R that recommended that defendant's motion for summary judgment be granted. 7/29/16 MOO, p. 6.
Based on the Court's reasoning in the 7/29/16 and 10/5/16 MOOs, the undersigned finds that plaintiff counsel's pursuit of the case became unreasonable and vexatious, and the fee award should run, from the date when defendant's counsel advised Gilbert of such case law. That date was September 15, 2015, according to the affidavits of defendant's counsel submitted with its motion for an award of attorney fees and costs. See Affidavit of attorney Scott Salsbury, Doc. 114-1, ¶¶ 1-2, (attaching letter emailed on September 15, 2015 (Doc. 114-2) in which Salsbury advised Gilbert of the two cases). Defendant does not claim to have identified any case law relating to the time bar issue before September 15, 2015; rather, it claims only to have stated that plaintiff's case was time-barred. See Affidavit of attorney Sue Ellen Salsbury,
For the reasons set forth above, fees and costs will be awarded for the period
"The party seeking fees bears the burden of showing that they are reasonable." Howe et al. v. City of Akron, Case No. 5-06-cv-2779, Doc. 820, pp. 17-19; 2016 WL 916701, at *5 (N.D.Ohio March 10, 2016) (Lioi, J). Courts use the "lodestar" method to determine what is a reasonable attorney fee. Studio A Entm't, Inv. V. Action DVD, 658 F.Supp.2d 851, 856-857 (N.D.Ohio 2009) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). The lodestar amount is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. "There is a strong presumption that the lodestar figure is reasonable." Studio A Entm't, Inv., supra, 658 F.Supp.2d 856-857 (internal quotation marks and citation omitted).
Defendant seeks an hourly rate of $230 for work performed by its lead counsel, Scott Salsbury ("Salsbury"). Salsbury has submitted a Declaration stating that he has been litigating cases since 1990 (26 years as of the filing of the Declaration), that he is the principal of the law firm Salsbury & Salsbury, LPA, and that he routinely handles employment claims such as the claims in this case. Doc. 131-1, pp. 1-2, ¶¶ 1-3. In further support of his request for $230 an hour, he cites to the Ohio State Bar Association's publication, Economics of the Law Practice in Ohio in 2013, which lists the median billable rate for attorneys in the field of "employment law (management)" as $250/hr. Doc. 131-1, p. 2, n. 1.
As Gilbert points out, courts generally look to average billing rates in the relevant geographical location, not in the entire state. See, e.g., Howe et al. v. City of Akron, supra, 2016 WL 916701, at *9 (N.D.Ohio March 10, 2016) (explaining that the court relies on the average hourly rate in the local geographical area, i.e., Akron, Ohio, rather than on national or state-wide averages). The undersigned has calculated the difference in the median hourly billing rate between all attorneys in the State of Ohio (as shown by the publication cited by defendant) and attorneys in Akron and, based on that calculation, concludes that Salsbury's requested hourly rate of $230/hr. is below the median billing rate for employment law (management) attorneys in the Akron area.
Three other attorneys also performed work for defendant on this case after September 15, 2015: Ernie Pisanelli ($200/hr.), Beau Thompson ($150/hr.), and Nathan Kott ($175/hr.). See Doc. 131, p. 7; 131-2, pp. 2-3. Salsbury's Declaration asserts that Pisanelli has over 20 years litigating in the health care industry; Thompson is a recent law school graduate; and Kott has almost 10 years of legal experience. Doc. 131-2, pp. 2-3.
In sum, the following hourly rates are reasonable and will apply to the fee award in this case:
The total number of hours defendant's invoices show were billed in this action after September 15, 2015, is 180.75, and Salsbury's declaration lists another 16.5 hours, for a total of 197.25 hours. See Doc. 131-2, pp. 24-39; Doc. 131-1, p. 3. "Counsel . . . should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley, 461 U.S. at 434. Gilbert advances a number of objections to the number of hours defendant's counsel spent on this case, some of which are persuasive.
Gilbert argues that Salsbury billed for duplicative and unnecessary work. Doc. 134, p. 10. The undersigned agrees in part.
Gilbert argues that Salsbury did not particularize his invoices with sufficient detail regarding the work performed and thus engaged in "block billing," i.e., lumping together time entries under one total. Doc. 134, pp. 12-13. The undersigned disagrees.
A party seeking attorney fees must provide documentation in support of the hours counsel charged comprised of "sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended in the prosecution of the litigation." Imwalle v. Reliance Medical Prods., 515 F.3d 531, 553 (6th Cir. 2008) (quotation marks and citation omitted). "Although counsel need not record in great detail each minute he or she spent on an item, the general subject matter should be identified." Id. (internal quotation marks and citations omitted).
Gilbert finds fault with five entries in the invoices dated after September 15, 2015 (Doc. 134, p. 12; Doc. 134-7, p. 3 (Gilbert's list of items he believes were inadequately documented or block-billed)). The first entry, dated September 17, 2015, is not lacking in detail: of the 2 hours billed, one hour was spent reviewing plaintiff's employment records to determine whether she enrolled in her employer's healthcare program (which was relevant to her out-of-pocket medical expenses claimed as damages); and one hour was spent on continued efforts to reset Dr. Bouchard's deposition after it was cancelled. This is sufficient detail. The next entry is 1.5 hours spent by the law clerk reviewing the proposed stipulated protective order provided by Gilbert and comparing it to the Northern District of Ohio's requirements. This is sufficient detail. The third entry is dated October 2, 2015, and is a half-hour spent editing and filing a "motion to reserve the depositions of [plaintiff's] doctors." This is sufficient detail. See also Doc. 88 (defendant's motion, filed October 2, 2015, to suspend scheduling the depositions of plaintiff's doctors).
The fourth entry is 1.5 hours spent "continu[ing] efforts to set depositions of Drs. Bouchard and Amanambu: numerous telephone calls to Christina Colosimo and Alicia Menho and email to confirm they will provide potential deposition dates; email Eddie Sipplen, attorney for Dr. Amanambu, requesting potential deposition dates."
In conclusion, none of the five entries identified by Gilbert discussed above is insufficiently detailed. Salsbury identified the general subject matter and was not required to record in great detail each minute he or others spent on an item. See Hensley, 461 U.S. at 437, n. 12; Imwalle, 515 F.3d at 553. Moreover, the entries were recorded contemporaneously with the timeline of the litigation as evidenced by the filings on the docket. See id., at 554. And there was no inappropriate "lumping" of time entries under one total. For example, it was not necessary for counsel to detail each email sent or read or phone call dialed or received while corresponding with two other attorneys representing two doctors whose depositions needed to be scheduled; it is sufficient that counsel documented that all these communications took 1.5 hours. See also Doc. 93-1 through 93-5 (email correspondence between Salsbury, Gilbert, and counsel for Drs. Amanambu and Bouchard dated October 6, 2015, referencing phone calls made that day in an effort to schedule the doctors' depositions).
Gilbert identifies five entries dated after September 15, 2015, that he alleges are for clerical or administrative work and, therefore, are not compensable. Doc. 134, p. 11; Doc. 134-5 (list of entries). He characterizes these entries as "drafting transmittal letters, coordinating documents and exhibits, and organizing physical files." Doc. 134, p. 11.
State Farm, 2013 WL 5442302 at *4. This is "especially appropriate where, like here, [a] small firm[ ] [is] involved." Howe, 2016 WL 916701, at *15, n.22.
The undersigned concludes that a few entries include clerical tasks that are not compensable and/or some tasks that would be compensable at a reduced, non-attorney rate. See, e.g., Doc. 131-2, p. 29 (10/2/2015, law clerk e-filing motion, billed $50); p. 27 (9/22/2015, attorney Pisanelli emailing counsel to set deposition date, reading email from plaintiff's former employer stating that employment records will be sent, billed $150). Rather than taking a line by line approach, the undersigned concludes that a small percentage reduction of the lodestar amount, 1%, is appropriate for the entries in question. See State Farm, 2013 WL 5442302, at *4 (taking a 1% deduction from the lodestar amount for very small instances of billing for clerical tasks).
Gilbert argues that 9 entries in the invoices dated after September 15, 2015, reflect time defendant's counsel spent fixing their own errors. Doc. 134, p. 11; Doc. 134-6.
Doc. 134, pp. 11-12; Doc. 134-6; see also Doc. 131-2, pp. 32-33 (invoices).
The undersigned agrees with Gilbert's recitation of events (see Doc. 106), that Salsbury's firm billed for correcting its own error, i.e., having incorrectly submitted exhibits, and that this activity is not chargeable to Gilbert. Thus, the fee award should be reduced by $750, which represents the cost of the total number of hours spent correcting this error.
Doc. 134-6; Doc. 134, p. 11.
The undersigned agrees that Defendant should not be awarded fees for its unsuccessful Rule 11 motion, which the Court found that Salsbury filed without complying with the Rule's safe harbor provision. Accordingly, time spent drafting the Rule 11 motion will not be included in the fee award. As indicated above, counsel spent 5.25 hours preparing the Rule 11 motion on October 5 and 1.75 hours on October 16, totaling $1,610.00. The fee award will thus be reduced by $1,610.
The time counsel spent researching fee recovery based on Rule 11, as well as other, statutory grounds, will be discussed in more detail directly below.
Gilbert also objects, in general, to the time defendant's counsel spent on recovering a fee award. Doc. 134, p. 9; Doc. 134-3 (Gilbert's list of all entries in the invoices for time spent on sanctions). He relies on case law setting forth the general rule that recovery of fees should be capped at 3%, but this authority has been abrogated. See The Northeast Ohio Coalition for the Homeless v. Husted, 831 F.3d 686, 725 (6th Cir. 2016) (abrogating the attorney fee cap rule announced in Coulter v. State of Tennessee, 805 F.2d 146 (6th Cir. 1986)). Instead, a court simply considers the reasonableness of the fees requested. Id.
Gilbert alleges that the fees incurred by defendant in connection with its request for a fee award were not caused by his vexatious multiplication of the proceedings. Doc. 134, p. 9. The undersigned disagrees. Had there been no vexatious multiplication of the proceedings by Gilbert there would have been no cause for defendant to seek (and receive) a Court Order finding that sanctions are warranted or to file a brief setting forth and documenting the fees and costs requested. Gilbert provides no more specifics regarding his objection to the amount of time defendant's counsel spent on the fee award issue beyond reproducing defendant's invoiced entries detailing the time spent. Doc. 134-3.
On September 24 and 30, 2015, defendant's counsel billed 6.25 hours for researching fee recovery possibilities. On October 2, the law clerk researched "potential avenues" for fee recovery based on Rule 11 and two other statutes for 5 hours. On October 8, three days after defendant filed its initial Rule 11 motion, Salsbury again researched fees recovery pursuant to Rule 11 and various statutes for 4.5 hours. This equals 15.75 hours just researching fee recovery possibilities from September 15 to October 8, including, but not limited to, fees based on Rule 11.
Defendant's counsel continued to research the attorney fee issue. Counsel researched a "motion for sanctions" on November 19 (5 hours total) and spent 9 hours researching the issue between November 20 and 23. This equals 29.75 hours spent just researching the recovery of fees.
The amount of time Defendant's counsel spent drafting, creating affidavits, generating invoices, and responding to Gilbert's opposition brief on the fee recovery issue is around 48.75 hours. Doc. 134-3; Doc. 131-2, pp. 34-37; Doc. 131-1. Thus, defendant's counsel billed at least 29.75 hours for researching and 48.75 hours for preparing briefs, for a total of 78.5 hours, all on pursuing a fee award. The undersigned finds that this amount of time spent on the fee award is excessive. Accordingly, the undersigned concludes that the lodestar amount should be reduced by 30%.
The amount of attorney fees invoiced after September 15, 2015, is $39,647.50. As explained above, the undersigned applies the following deductions:
The invoices list a total of $155.07 in costs incurred after September 15, 2015, in this case. See Doc. 131-2, pp. 32, 38.
Although Gilbert also complains that the depositions of Drs. Amanambu and Bouchard were unnecessary (Doc. 134, p. 14), the undersigned again reminds Gilbert that he chose to press on with this case after he knew or should have known it was time-barred. And it was he who advised the Court and defendant that he intended to rely on live testimony at trial from Drs. Amanambu and Bouchard as fact witnesses in this case. See Doc. 45 (plaintiff's notice of filing expert reports of Drs. Amanambu and Bouchard); Doc. 63 (plaintiff's notice that she changed her position and intends to use Drs. Amanambu and Bouchard as fact witnesses, not experts). Accordingly, it was not "unnecessary" for defendants to depose Drs. Amanambu and Bouchard, plaintiff's treating physicians, when plaintiff's Complaint alleged she was discriminated against on the basis of her physical disability. Defendant is entitled to the costs incurred after September 15, 2015: $155.07.
For the reasons stated above, the undersigned finds that $25,840.25 in attorney fees and $155.07 in costs, for a total of $25,995.32 is a reasonable amount to award in favor of defendant against plaintiff's counsel and hereby