Barachkov v. 41B District Court et al
ORDER granting 173 Motion for Attorneys' Fees, Costs and Interest ; granting 205 Motion for Approval of Recognizance in Lieu of Appeal Bond and to Stay Proceedings. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
PATRICIA BARACHKOV, et al.,
Case No. 04-CV-73957, 04-CV-73977
Paul D. Borman
United States District Judge
CHIEF JUDGE LINDA DAVIS, of the
41B District Court, individually and in her
OPINION AND ORDER
(1) GRANTING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES, COSTS AND
INTEREST (Dkt. No. 173),
(2) AMENDING THE JUDGMENT TO ALLOW THE APPORTIONMENT OF
PREJUDGMENT AND POST-JUDGMENT INTEREST, and
(3) GRANTING DEFENDANT’S MOTION FOR APPROVAL OF RECOGNIZANCE IN
LIEU OF APPEAL BOND AND TO STAY PROCEEDINGS (Dkt. No. 205)
This matter is before the Court on Plaintiffs’ post-trial Motion for Attorneys’ Fees, Costs and
Interest, filed on February 24, 2012 (Dkt. No. 173), and Defendant’s Motion for Approval of
Recognizance in Lieu of Appeal Bond and to Stay Proceedings, filed on March 15, 2013 (Dkt. No.
205). Both motions have been fully briefed, and the Court will decide them without oral argument
pursuant to Eastern District of Michigan Local Rule 7.1(f).
For the reasons stated below, the Court will:
(1) GRANT Plaintiffs’ Motion for Attorneys’ Fees, Costs and Interest,
(2) AMEND the Judgment to allow the apportionment of prejudgment and post-judgment
(3) GRANT Defendant’s Motion for Approval of Recognizance in Lieu of Appeal Bond and
to Stay Proceedings.
The facts in this case were discussed in this Court’s December 3, 2012 Opinion and Order
Denying Defendant’s Motion for Judgment as a Matter of Law, Denying Defendant’s Motion for
New Trial, and Denying Judgment in Favor of Defendant Chief Judge Linda Davis. (Dkt. No. 198.)
The Court incorporates the Background section of that Opinion and Order herein. (Dec. 3, 2012 Op.
and Order at 2-9.)
On March 14, 2013, Defendant Chief Judge Linda Davis filed a Notice of Appeal of this
Court’s December 3, 2012 Opinion and Order, and a February 15, 2013 Opinion and Order Denying
Defendant’s Motion to Amend the Judgment Regarding Damages, and Denying Defendant’s Motion
for Clarification/Relief From Judgment or Order. (Dkt. No. 203.) On March 28, 2013, Plaintiffs
filed a Notice of Cross Appeal. (Dkt. No. 206.)
Now before the Court are Plaintiffs’ post-trial motion for attorneys’ fees and Defendant’s
motion for approval of an appeal bond and to stay proceedings.
A. Plaintiffs’ Motion for Attorneys’ Fees, Costs and Interest
Plaintiffs seek $419,982.00 in attorneys’ fees, $33,401.341 in costs, and pre-judgment and
Defendant concedes that Plaintiffs are entitled to attorneys’ fees pursuant to 42 U.S.C. §
Plaintiffs submitted $11,377.09 of their claimed costs to the Taxation Clerk pursuant to
Fed. R. Civ. P. 54(d)(1). The amount Plaintiffs seek in the instant motion is therefore
$22,024.25. The Taxation Clerk allowed $10,557.18 of Plaintiffs’ claimed costs. (Dkt. No.201.)
1988. However, Defendant argues that the amount of attorneys’ fees requested by Plaintiffs is
“Reasonable attorney’s fees under § 1988 should be calculated according to the prevailing
market rates in the relevant community.” Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 627 (6th
cir. 2013). The initial inquiry in determining a reasonable attorney’s fee “is the determination of the
fee applicant’s ‘lodestar,’ which is the proven number of hours reasonably expended on the case by
an attorney, multiplied by a reasonable hourly rate.” Id. (citation omitted). “The party seeking an
award of fees should submit evidence supporting the hours worked and rates claimed. Where the
documentation of hours is inadequate, the district court may reduce the fee accordingly.” Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). A reasonable fee calculation also excludes “hours that are
not ‘reasonably expended.’” Id. at 434.
1. Reasonable Hourly Rate
A “reasonable hourly rate” for purposes of the lodestar calculation is “based on the
‘prevailing market rate in the relevant community’ for lawyers of comparable skill and experience
. . . .” Yellowbook Inc. v. Brandeberry, 708 F.3d 837, 849 (6th Cir. 2013) (citation omitted); see also
Blum v. Stenson, 465 U.S. 886, 895 (1984) (providing “that ‘reasonable fees’ under § 1988 are to
be calculated according to the prevailing market rates in the relevant community . . . .”).
Plaintiffs’ argue that a reasonable hourly fee for their lead attorney, Deborah Gordon, is
$450. Plaintiffs note that Ms. Gordon has been practicing law for 35 years, and that she specializes
in employment discrimination and civil rights actions. Plaintiffs also submit affidavits from
prominent local attorneys recognizing that Ms. Gordon is a highly regarded employment attorney
in this region. (Pls.’ Mot. for Attorneys’ Fees, Costs and Interest, Exs. D and E, Affidavits of
Kathleen L. Bogas and Michael L. Pitt.)
In addition to Ms. Gordon, Plaintiffs seek an hourly rate of $300 for attorneys Sarah Prescott
and Carol Laughbaum. Plaintiffs request hourly rates of $250 for attorneys Margaret Sande and
Marissa Pollick, $225 for attorney Sharon Dolente, $150 for attorney Jaclyn Giffen, and $55 for
work performed by legal assistants.
As additional justification for their claimed hourly rates, Plaintiffs assert that the legal issues
involved in this case were complex and difficult, as evidenced by the Sixth Circuit’s Opinion and
Order reversing this Court’s prior grant of summary judgment for Defendant. See Barachkov v. 41B
Dist. Court, 311 F. App’x 863 (6th Cir. 2009). Plaintiffs argue that the results obtained – a jury
verdict of $2.2 million in Plaintiffs’ favor – also justifies the claimed hourly rate for Plaintiffs’
counsel. Furthermore, Plaintiffs contend that their fees are justified based on the undesirability of
this case, because Plaintiffs were unemployed and had difficulty paying costs, and because the
Defendants originally included a state court and a sitting chief judge. Plaintiffs have attached to
their motion the 2010 Michigan Survey of Fees, produced by the State Bar of Michigan, which notes
the hourly billing rates for attorneys practicing plaintiff employment litigation ranges from $200 in
the 25th percentile to $400 in the 95th percentile. (Pls.’ Mot. for Attorneys’ Fees, Costs and Interest,
Ex. J, 2010 Mi. Survey of Fees 11.) Plaintiffs also state that their counsel incurred significant costs
while litigating this case, which lasted over six years.
Defendant argues that Plaintiffs’ requested fees are excessive. Defendant asserts that § 1988
is designed to allow civil rights plaintiffs to attract only “competent” counsel. See Perdue v. Kenny
A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1672 (2010) (noting that “a ‘reasonable’ fee is a fee
that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil
rights case.”). Under this reasoning, Defendant claims that the hourly rates for attorneys Deborah
Gordon, Sarah Prescott, and Carol Laughbaum, should be limited to $230. Defendant argues that
attorneys Marissa Pollick, Sharon Dolente, and Margaret Sande should receive $175 per hour.
Defendant agrees that $150 per hour is a reasonable rate for attorney Jaclyn Giffen.
While the purpose of the fee-shifting provision in § 1988 is to attract “competent” counsel
for civil rights plaintiffs, the Sixth Circuit has repeatedly held that, in implementing § 1988, courts
should consider an hourly rate “that lawyers of comparable skill and experience can reasonably
expect to command within the venue of the court of record.” B & G Min., Inc. v. Director, Office
of Workers’ Compensation Programs, 522 F.3d 657, 663 (6th Cir. 2008) (quoting Gonter v. Hunt
Valve Co., Inc., 510 F.3d 610, 618 (6th Cir. 2007)). The Sixth Circuit has upheld “rates ranging
from $250 to $450 per hour, depending on each attorney’s experience.” Van Horn v. Nationwide
Property and Cas. Ins. Co., 436 F. App’x 496, 499 (6th Cir. 2011). Furthermore, the United States
Supreme Court has held that “an enhancement [to an attorney’s fee] may be appropriate where the
method used in determining the hourly rate employed in the lodestar calculation does not adequately
measure the attorney’s true market value . . . .” Perdue, 130 S.Ct. at 1674. Accordingly, the Court
will consider the skill and experience of Plaintiffs’ counsel in determining a reasonable hourly rate
under § 1988.
Defendant also argues that Plaintiffs’ proposed hourly rate is unreasonable because a
contingency-fee agreement exists between Plaintiffs’ and their counsel. Defendant contends that,
if Plaintiffs’ counsel receives a third of the $2.2 million verdict in this case, their hourly rate already
amounts to more than $600.
The United States Supreme Court has remarked that a contingency-fee agreement may be
considered as a factor in determining the reasonableness of an award of attorney’s fees. However,
the “contingency-fee factor is simply that, a factor.” Blanchard v. Bergeron, 489 U.S. 87, 93 (1989).
In addressing an argument similar to Defendant’s, the Court stated in pertinent part as follows:
It is true that the purpose of § 1988 was to make sure that competent
counsel was available to civil rights plaintiffs, and it is of course
arguable that if a plaintiff is able to secure an attorney on the basis of
a contingent or other fee agreement, the purpose of the statute is
served if the plaintiff is bound by his contract. On that basis,
however, the plaintiff should recover nothing from the defendant,
which would be plainly contrary to the statute. And Congress
implemented its purpose by broadly requiring all defendants to pay
a reasonable fee to all prevailing plaintiffs, if ordered to do so by the
court. Thus it is that a plaintiff’s recovery will not be reduced by
what he must pay his counsel. Plaintiffs who can afford to hire their
own lawyers, as well as impecunious litigants, may take advantage
of this provision. And where there are lawyers or organizations that
will take a plaintiff’s case without compensation, that fact does not
bar the award of a reasonable fee.
Id. at 93-94.
Defendant’s argument that Plaintiffs’ proposed hourly rates are unreasonable based on the
contingency-fee agreement is not well founded. As noted supra, the contingency-fee agreement is
only a factor in determining the overall reasonableness of an attorney fee award, and cannot
unilaterally limit the Court’s determination of a reasonable hourly rate. In other words, a losing
defendant cannot limit its exposure under § 1988 based on the fee agreement privately entered into
by the prevailing plaintiff and his or her counsel.
In sum, § 1988 controls what the losing defendant must pay, not what
the prevailing plaintiff must pay his lawyer. What a plaintiff may be
bound to pay and what an attorney is free to collect under a fee
agreement are not necessarily measured by the “reasonable attorney’s
fee” that a defendant must pay pursuant to a court order.
Venegas v. Mitchell, 495 U.S. 82, 90 (1990).
In considering the evidence submitted by Plaintiffs in support of their proposed hourly rates,
including Plaintiffs’ attorneys’ skill and experience, reputation in the community, and the 2010
Michigan Survey of Fees, the Court finds as follows:
Based on her skill, experience, and reputation, $400 is a reasonable hourly rate for Plaintiffs’
lead counsel, Deborah Gordon.
A reasonable hourly rate for attorney Sarah Prescott is $300.
Based on the evidence submitted by Plaintiffs, $250 is a reasonable hourly rate for attorney
A reasonable hourly rate for attorneys Sharon Dolente, Margaret Sande, and Marissa Pollick,
A reasonable hourly rate for attorney Jaclyn Giffen is $150.
A reasonable hourly rate for Plaintiffs’ counsels’ legal assistants is $55.
2. Hours Reasonably Expended on the Litigation
Plaintiffs have submitted hourly billing statements and claim that attorney Deborah Gordon
reasonably expended 468 hours spent on this litigation, attorney Sarah Prescott expended 414.5
hours, attorney Carol Laughbaum expended 36.7 hours, attorney Marissa Pollick expended 172
hours, attorney Margaret Sande expended 43.5 hours, attorney Sharon Dolente expended 31.8 hours,
attorney Jaclyn Giffen expended 40.3 hours, and legal assistants expended 125.4 hours. (Pls.’ Mot.
for Attorneys’ Fees, Costs and Interest, Ex. A, Verified Time spreadsheets.)
Defendant argues that Plaintiffs attempt to bill for various internal communications,
including review of other attorneys’ work product, which constitutes redundant billing. See Hensley,
461 U.S. at 434 (noting that “[c]ases may be overstaffed, and the skill and experience of lawyers
vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary . . . .”).
Although attorney Deborah Gordon has submitted billing statements reflecting in excess of
600 hours spent on this litigation, Plaintiffs only seek 468 hours of attorney fees for Ms. Gordon.
If all of the allegedly redundant billing objected to by Defendant were removed from attorney
Deborah Gordon’s billing statements, Ms. Gordon would still have nearly 600 hours of attorney fees
in this matter based on those statements. The Court thus finds that 468 hours is a reasonable
representation of the time spent by attorney Deborah Gordon on the instant litigation.
Defendant also objects to Plaintiffs’ other attorneys billing for inter-staff emails, discussions,
and other internal communications. Defendant further argues that the billing statements reflect an
excessive amount of time preparing for the instant motion for attorneys’ fees, indicating that
Plaintiffs’ counsels’ did not maintain contemporaneous billing records, which Defendant contends
requires a reduction in fees.
The Court agrees that a modest fee reduction is warranted based on redundant and otherwise
unnecessary billings submitted by Plaintiffs. The Court will thus exclude from Plaintiffs’ counsels’
billing statements any time expended on internal communications between Plaintiffs’ attorneys that
did not include contact with Plaintiffs. Accordingly, the Court finds as follows:
Attorney Sarah Prescott reasonably expended 404.7 hours on the instant litigation.
Attorney Carol Laughbaum reasonably expended 35.5 hours on the instant litigation.
Attorney Sharon Dolente reasonably expended 27.4 hours on the instant litigation.
Attorney Margaret Sande reasonably expended 40 hours on the instant litigation.
Attorney Marissa Pollick reasonably expended 157.1 hours on the instant litigation.
Attorney Jaclyn Giffen reasonably expended 36.9 hours on the instant litigation.
The Court will exclude any time expended by legal assistants to check/verify time entries
in preparation for the instant attorney fees motion. The Court finds that Plaintiffs’ counsels’ legal
assistants reasonably expended 112.3 hours on the instant litigation.
3. Lodestar Amount
Having determined a reasonable hourly rate and reasonable hours expended for each of
Plaintiffs’ attorneys and their legal assistants, the Court thus finds as follows regarding the
“lodestar” amount for Plaintiffs’ attorneys’ fees:
Attorney Deborah Gordon: $400 x 468 hours = $187,200.00
Attorney Sarah Prescott: $300 x 404.7 hours = $121,410.00
Attorney Carol Laughbaum: $250 x 35.5 hours = $8,875.00
Attorney Sharon Dolente: $200 x 27.4 hours = $5,480.00
Attorney Margaret Sande: $200 x 40 hours = $8,000.00
Attorney Marissa Pollick: $200 x 157.1 hours = $31,420.00
Attorney Jaclyn Giffen: $150 x 36.9 hours = $5,535.00
Legal assistants: $55 x 112.3 hours = $6,176.50
Total lodestar amount = $374,096.50
4. Fee Enhancement
Plaintiffs argue that they are entitled to a fee enhancement of at least 10 percent.
“[E]nhancements may be awarded in ‘rare’ and ‘exceptional’ circumstances.” Perdue, 130
S.Ct. at 1673. While “there is a ‘strong presumption’ that the lodestar figure is reasonable, . . . that
presumption may be overcome in those rare circumstances in which the lodestar does not adequately
take into account a factor that may properly be considered in determining a reasonable fee.” Id. The
Supreme Court has thus noted that an enhancement to the lodestar amount is appropriate in three
First, an enhancement may be appropriate where the method used in
determining the hourly rate employed in the lodestar calculation does
not adequately measure the attorney’s true market value, as
demonstrated in part during the litigation. . . .
Second, an enhancement may be appropriate if the attorney’s
performance includes an extraordinary outlay of expenses and the
litigation is exceptionally protracted. . . .
Third, there may be extraordinary circumstances in which an
attorney’s performance involves exceptional delay in the payment of
fees. . . . [A]n enhancement may be appropriate where an attorney
assumes these costs in the face of unanticipated delay, particularly
where the delay is unjustifiably caused by the defense. . . .
Id. at 1674-75. Furthermore, the Court may consider the following factors in considering an
enhancement to the lodestar amount:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service properly;
(4) the preclusion of employment by the attorney due to acceptance
of the case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9)
the experience, reputation, and ability of the attorneys; (10) the
“undesireability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar
Hensley, 461 U.S. at 430 n. 3 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 71719 (5th Cir. 1974)).
Plaintiffs argue that an enhancement is appropriate in this matter based on the length of the
litigation, the time and dedication required by Plaintiffs’ counsel, and the professional risk assumed
by Plaintiffs’ counsel in suing a local court and its chief judge. See Pucci v. Somers, 834 F. Supp.
2d 690, 703-04 (E.D. Mich. 2011) (Lawson, J.) (finding than a five percent fee enhancement was
appropriate where the “case placed extraordinary demands on counsel’s time[;] . . . [the] case lasted
for more than four years[;] . . . [and t]he Plaintiff was suing a sitting chief judge in a local district
The Court notes that, unlike the small-firm practitioner in Pucci, Plaintiffs’ counsel had
several attorneys working on this case throughout the litigation. The plaintiff in Pucci was
represented by two attorneys. In the instant matter, Plaintiffs had seven attorneys at their disposal,
as well as a team of legal assistants. Furthermore, while this litigation has now spanned more than
eight years, much of the delay was due to clarifications in the law regarding Plaintiffs’ First
Amendment claim and Defendant’s sovereign immunity defense. While possibly unanticipated by
Plaintiffs, this delay was not caused unjustifiably by Defendant. To the extent that Plaintiffs’ case
was “undesireable,” the Court finds that its calculation of Plaintiffs’ counsels’ lodestar amount
adequately incorporates this factor. Plaintiffs’ lead counsel is a skilled and experienced litigator
who has an established reputation, even in 2004 when this case was originally filed, of suing local
government entities. Any professional risk taken by Plaintiffs’ counsel in pursuing the instant
litigation against Defendant Chief Judge Linda Davis is subsumed in the reasonable hourly rate used
in calculating the lodestar figure, supra. The Court also notes that Plaintiffs have not produced any
evidence showing that the instant suit against a local court and chief judge somehow damaged, or
risked damaging, Plaintiffs’ counsels’ reputation in the legal community. See Perdue, 130 S.Ct. at
1673 (noting that “a fee applicant seeking an enhancement must produce ‘specific evidence’ that
supports the award.”).
The Court therefore finds that a fee enhancement is not appropriate in this case.
5. Degree of Success
Defendant argues that Plaintiffs’ fees should be reduced to one-thirteenth of the requested
fee due to Plaintiffs’ “limited success” in this case. Because Plaintiffs filed multiple claims,
including a First Amendment claim and several state-law causes of action, but only prevailed on
their Due Process claim, Defendant contends that Plaintiffs’ fees should be reduced.
In Hensley, the Supreme Court noted that when “a plaintiff has achieved only partial or
limited success, the product of hours reasonably expended on the litigation as a whole times a
reasonable hourly rate may be an excessive amount.” Hensley, 461 U.S. at 436. The Court also
stated that some cases “will involve a common core of facts or will be based on related legal
theories[,]” and that these cases “cannot be viewed as a series of discrete claims. Instead the district
court should focus on the significance of the overall relief obtained by the plaintiff in relation to the
hours reasonably expended on the litigation.” Id. at 435. Therefore, “[w]here a plaintiff has
obtained excellent results, his attorney should recover a fully compensatory fee. . . . In these
circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on
every contention raised in the lawsuit.” Id. See also DiLaura v. Township of Ann Arbor, 471 F.3d
666, 673 (6th Cir. 2006) (finding that district court abused its discretion in reducing the plaintiffs’
request for fees, and noting that “[b]y focusing on the fact that most of the plaintiffs’ claims failed,
the district court does what Hensley specifically forbids: it analyzes a series of related legal claims
based on a common core of facts, and determines the amount of fees, not based on the Plaintiffs’
overall success, but based on the success or failure of the individual claims.”).
In the instant case, Plaintiffs’ claims all arose from a common core of facts: the investigation
of Judge William Cannon and the 41B District Court and the subsequent termination of Plaintiffs’
employment. The Court will not, therefore, reduce the amount of fees claimed by Plaintiffs based
on the dismissal of most of Plaintiffs’ claims. The damages they obtained under their Due Process
theory were substantially the same damages Plaintiffs requested under their now-dismissed alternate
theories of recovery: loss of past and future earnings. Accordingly, the Court finds that no reduction
to the lodestar amount is warranted based on Plaintiffs’ failure to succeed on every claim initially
brought against Defendant.
Defendant does not object to Plaintiffs’ request for costs.
Plaintiffs request $33,401.34 in costs. Plaintiffs have submitted $11,377.09 of this total to
the taxation clerk. The Court will thus award Plaintiffs $22,024.25 in costs, which reflects the
amount of their requested costs that has not been submitted to the taxation clerk.
There is no dispute that Plaintiffs are entitled to post-judgment interest.
Plaintiffs also request prejudgment interest. Defendant admits that Plaintiffs are eligible for
prejudgment interest based on the award of back pay, but argue that, because Plaintiffs’ back pay
award is not separated from their other “economic damages,” it is not possible to accurately
calculate the amount of prejudgment interest applicable to Plaintiffs’ back pay award.
“This court commonly awards prejudgment interest on back pay awards.” EEOC v. Wilson
Metal Casket Co., 24 F.3d 836, 842 (6th Cir. 1994). “Indeed, it is ordinarily an abuse of discretion
not to include pre-judgment interest in a back-pay award.” EEOC v. Kentucky State Police Dept.,
80 F.3d 1086, 1098 (6th Cir. 1996) (citation and internal punctuation omitted, emphasis in original).
The United States Supreme Court has held “that a postjudgment motion for discretionary
prejudgment interest constitutes a motion to alter or amend the judgment under Rule 59(e).”
Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 (1989). This is because, in part, “prejudgment
interest is an element of plaintiff’s complete compensation.” Id. (citation and internal punctuation
omitted). Thus, “[i]n deciding if and how much prejudgment interest should be granted, a district
court must examine – or in the case of a postjudgment motion, reexamine – matters encompassed
within the merits of the underlying action.” Id.
Plaintiffs argue that the Court should compute the back pay loss awarded by the jury based
on the evidence presented during closing arguments. The back pay amounts presented to the jury
by Plaintiffs’ counsel during closing argument were $400,928 for Plaintiff Nancy Englar, $333,631
for Plaintiff Carol Diehl, and $338,054 for Plaintiff Patricia Barachkov. (Pls.’ Reply, Ex. L,
Calculation of Loss in Compensation.) The jury awarded total economic damages of $508,927 to
Plaintiff Englar, $455,849 to Plaintiff Diehl, and $382,912 to Plaintiff Barchkov. Plaintiffs’ would
thus compute the economic damages as follows:
Back pay: $400,928
Front pay: $107,999
Back pay: $333,631
Front pay: $122,218
Back pay: $338,054
Front pay: $44,858
The Court agrees with Plaintiffs’ computation of the economic damages and will amend the
judgment so that prejudgment and post-judgment interest can be apportioned. See Osterneck, 489
U.S. at 175; see also O’Sullivan Corp. v. Duro-Last, Inc., 7 F. App’x 509, 519-20 (6th Cir. 2001)
(noting that the district court “should have granted O’Sullivan’s motion to alter or amend the
original judgment. Doing otherwise placed O’Sullivan’s prejudgment and post-judgment interest
at risk . . . .”).
Accordingly, the Court will GRANT Plaintiffs’ Motion for Attorney Fees, Costs and Interest,
and will further AMEND the judgment to allow an award of prejudgment and post-judgment
B. Motion for Approval of Recognizance in Lieu of Appeal Bond and to Stay Proceedings
Defendant seeks to use her insurance policy as security in lieu of an appeal bond to stay
enforcement of the judgment in this matter pending her appeal to the United States Court of Appeals
for the Sixth Circuit. Defendant’s insurance policy, provided by the Travelers Insurance Company
(“Travelers”), carries a $3,000,000 policy limit, and includes an excess liability portion up to
$9,000,000, for total coverage of $12,000,000. (Def.’s Reply, Ex. A, Insurance Policy.) Defendant
has attached to its Reply brief an Affidavit of Recognizance from Travelers that states as follows:
Travelers admits its liability under the basic and umbrella excess
provisions of the Policy and agrees to pay the Judgment for Plaintiffs,
if it is affirmed by the appellate courts. Travelers further recognizes
that it is liable to Plaintiffs for the taxable costs of the appeal, if any.
(Def.’s Reply, Ex. B, Aff. of Recognizance.)
Federal Rule of Civil Procedure 62(d) provides:
If an appeal is taken, the appellant may obtain a stay by supersedeas
bond . . . . The bond may be given upon or after filing the notice of
appeal or after obtaining the order allowing the appeal. The stay
takes effect when the court approves the bond.
Fed. R. Civ. P. 62(d).
Plaintiffs argue that the insurance policy is insufficient to cover the total amount of damages
awarded to Plaintiffs, including interest, costs, and attorneys’ fees. However, Plaintiffs’ argument
is based on the main policy limit of $3,000,000. Defendant’s policy includes excess coverage
providing an additional $9,000,000 in coverage. With the excess coverage, Defendant’s insurance
policy is worth $12,000,000, and is more than adequate to provide coverage for the damages, costs,
fees, and interest in this matter. See Arban v. West Publishing Corp. 345 F.3d 390, 409 (6th Cir.
2003) (holding that, “[i]n light of the vast disparity between the amount of the judgment in this case
and the annual revenue of the group of which West is a part, the district court’s decision to grant a
stay without a bond was not an abuse of discretion.”).
Plaintiffs also argue “that an insurance policy carries with it various restrictions, limitations,
requirements, qualifiers, offsets, etc. A supersedeas bond does not. The two simply are not
comparable.” (Pls.’ Resp. in Opp. to Def.’s Mot. for Appeal Bond and to Stay at 4.) Any concern
Plaintiffs have about Travelers attempting to avoid liability are addressed by the Affidavit of
Recognizance, in which Travelers admits that it will pay the judgment if it is affirmed on appeal.
(Def.’s Reply, Ex. B, Aff. of Recognizance.) Travelers has already admitted its liability for the
judgment and promised to pay it if it is affirmed by the Sixth Circuit.
Plaintiffs argue that the equities in this case favor denial of a supersedeas bond, because
Plaintiffs are financially vulnerable and were harmed nine years ago. The Court finds that equity
in this matter demands maintaining the status quo until this matter is decided by the Sixth Circuit.
The Court notes that this case involved difficult legal issues, as Plaintiffs pointed out in their Motion
for Attorneys Fees, Costs and Interest. If Defendant’s bond is not granted, and the judgment is then
reversed on appeal, Defendant’s insurer will likely never fully recover the millions of dollars it will
have paid to Plaintiffs.
Accordingly, the Court will GRANT Defendant’s Motion for Approval of Recognizance in
Lieu of Appeal Bond and to Stay Proceedings.
For the reasons stated above, the Court will:
(1) GRANT Plaintiffs’ Motion for Attorneys’ Fees, Costs and Interest,
(2) AMEND the Judgment to allow the apportionment of prejudgment and post-judgment
(3) GRANT Defendant’s Motion for Approval of Recognizance in Lieu of Appeal Bond and
to Stay Proceedings.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: May 16, 2013
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on May 16, 2013.
s/Deborah R. Tofil
Deborah R. Tofil
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