HRT Enterprises v. Detroit, City of

Filing 499

OPINION AND ORDER granting in part 454 Motion for attorney's fees and expenses and 483 Motion to update attorney's fee motion. Signed by District Judge David M. Lawson. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HRT ENTERPRISES,
Plaintiff,
v.

Case Number 12-13710
Honorable David M. Lawson

CITY OF DETROIT,
Defendant.
_____________________________________/
OPINION AND ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND EXPENSES
After a jury returned a verdict of almost $2 million in favor of plaintiff HRT Enterprises in
this inverse condemnation case, the plaintiff filed a motion for attorney’s fees and costs under 42
U.S.C. § 1988. The parties are familiar with the facts of the case, which have been set forth in
several of the Court’s previous opinions discussing this litigation that has endured for over a
decade. The Court heard oral argument on the attorney’s fee motion on June 28, 2023, during
which it expressed skepticism over the bases of some of the plaintiff’s fee requests, particularly its
insistence that it may recover fees incurred in separate litigation. The Court understood, however,
that the plaintiff is entitled to a substantial attorney’s fee as the prevailing party in this case. The
defendant acknowledges as much, but it takes issue with the plaintiff’s proposed fee calculation
on several grounds.
After the Court heard oral argument, the Court directed the parties to meet and confer to
attempt to resolve their differences over the hours spent and hourly rates claimed by plaintiff’s
counsel and the allocation of hours incurred in this litigation as opposed to other cases. On August
21, 2023, the parties filed supplemental briefs stating their respective positions. On the same date,
the plaintiff also filed a motion to “update” the motion for attorney fees seeking to add in hours

billed from March through August 2023. And on September 11, 2023, the plaintiff submitted a
supplemental exhibit consisting of spreadsheets summarizing the components of its fee request.
The plaintiff now seeks an award of attorney’s fees totaling $1,503,113.88 and expenses
of $55,010.22. The defendant, as mentioned, does not quarrel with an award of fees under section
1988, but it believes that the amount should be less than half that claimed. For the reasons
discussed below, the defendant is closer to target.
I.
The amended judgment in this case awards the plaintiff $2,125,907.43, consisting of a
verdict for just compensation of $1,976,820 and prejudgment interest of $149,087.43. The verdict
was rendered after a retrial, which followed an order granting a new trial when the plaintiff
declined to accept a remittitur ordered by this Court’s predecessor, Judge Avern Cohn, after an
initial trial and jury verdict. The litigation has been pending a long time and was complicated in
part by an intervening municipal bankruptcy. The dispute focuses on the City of Detroit’s
regulatory taking of the plaintiff’s industrial property situated at 11111 and 11181 French Road,
Detroit, Michigan adjacent to the Coleman A. Young International Airport.
The City’s plans for the airport, and their effect on the viability of HRT’s property for
commercial use, have spawned multiple lawsuits in state court and this Court. Each of HRT’s two
tenants filed a lawsuit alleging inverse condemnation of their leasehold interests. Merkur Steel
filed a taking suit against the City in the Wayne County, Michigan circuit court in September 1999.
That suit resulted in a jury verdict in favor of Merkur Steel finding that the City’s acquisition
efforts amounted to a de facto taking of Merkur Steel’s leasehold interest in the property. The
Michigan Court of Appeals affirmed that determination and the $6.8 million compensation award.
See Merkur Steel Supply Inc. v. City of Detroit, 261 Mich. App. 116, 680 N.W.2d 485 (2004).

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Merkur Steel’s sub-tenant Steel Associates, Inc. filed a separate action in the Wayne County circuit
court against the City also alleging a de facto taking of its leasehold interest. In 2003, a jury found
in favor of Steel Associates and awarded $4 million in compensation. The court of appeals
affirmed in a 2005 decision. See Steel Assocs., Inc. v. City of Detroit, No. 254025, 2005 WL
2656648 (Mich. Ct. App. Oct. 18, 2005).
Subsequently in 2005, Merkur Steel, Steel Associates, and HRT collectively filed suit in
the Wayne County circuit court against the City for inverse condemnation. The parties alleged
“that the filing of the airport layout plan and the threat of potential condemnation of the property
affected its property so adversely as to amount to [a] taking without just compensation.” HRT
Enters. v. City of Detroit, No. 268285, 2007 WL 2118867, at *1 (Mich. Ct. App. July 24, 2007).
HRT proceeded to trial on its own, and in 2005 a jury returned a no-cause-of-action verdict in
favor of the City. Ibid. The state court of appeals affirmed, stating that there was “competent
evidence to support a finding that the city’s actions were not a substantial cause of the decline of
HRT’s property and that the [C]ity did not abuse its legitimate powers in affirmative actions
directly aimed at HRT’s property.” Id. at *7. The Michigan Supreme Court denied leave to appeal.
HRT Enters. v. City of Detroit, 480 Mich. 1134, 745 N.W.2d 786 (2008) (mem.).
Next, HRT sued the City for inverse condemnation in this court in 2008 based on additional
events that occurred since the 2005 trial. HRT Enters. v. City of Detroit, No. 08-14460 (E.D. Mich.
2008). Judge Cohn dismissed that case without prejudice, finding that because HRT did not seek
compensation through state procedures based on the new facts, the case was unripe for federal
review under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson
City, 473 U.S. 172, 195-97 (1985), overruled by Knick v. Township of Scott, Pennsylvania, --- U.S.
---, 139 S. Ct. 2162 (2019).

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Undaunted, HRT returned to state court in 2009 and again sued the City for inverse
condemnation. The trial court dismissed that case based on res judicata, and the Michigan Court
of Appeals affirmed. HRT Enters. v. City of Detroit, No. 304057, 2012 WL 3055221 (Mich. Ct.
App. July 26, 2012) (per curiam). HRT did not seek leave to appeal to the Michigan Supreme
Court.
HRT then filed the present lawsuit in 2012, alleging inverse condemnation based on events
that occurred since the 2005 jury verdict in state court. The City filed a motion to dismiss or
alternatively for summary judgment, pressing a res judicata argument based on the 2005 state
court verdict in its favor and the dismissal of the 2009 state court case on the same grounds. Judge
Cohn denied that motion, concluding that additional events that had occurred since 2005 would
permit a new jury to find a taking of the property.
After additional motion practice, during which Judge Cohn found in favor of HRT on
liability, the case proceeded to trial on the issues of damages and the date of taking. On April 24,
2019, the jury returned a verdict establishing the date of the taking as January 1, 2009 and the fair
market value of the property on that date as $4.25 million. However, on October 30, 2019, Judge
Cohn granted a remittitur of the verdict and reduced the judgment to $2 million after he found that
the testimony presented at trial was not adequate to prove a higher valuation. The plaintiff filed a
notice of its rejection of the remittitur on November 25, 2019. On the following day, Judge Cohn
issued an order setting aside the verdict and granting a new trial “on the issue of damages.”
After the case was reassigned to the undersigned, a second trial was held in August of 2022,
which concluded with a verdict determining just compensation for the value of “land and
buildings” taken in the amount of $1,976,820, and $0 for the value of “fixtures” associated with

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the property. The parties filed an additional round of motions, including the present motion for
attorney’s fees.
II.
The plaintiff argues that as the prevailing party it is entitled under 42 U.S.C. § 1988 to
recover attorney fees and “expenses” including “expert witness fees.” The plaintiff contends that
in addition to legal fees incurred during this lawsuit, it also is entitled to recover under section
1988 fees incurred in a laundry list of other separate lawsuits including (1) presentation of claims
in the City of Detroit municipal bankruptcy, (2) a separate state court lawsuit against the City and
an ensuing appeal (which the plaintiff lost), (3) separate litigation in state court over disputed
charges for sewage runoff fees that the City assessed against the property, and (4) defense of an
unspecified number of unidentified proceedings related to “blight tickets” issued by the City
against the property.
The defendant responds that (1) the hourly rates quoted are based on a contemporary
survey of typical billing rates in Michigan from 2020, but it is more appropriate to adjust the rates
to correspond to dates the services were rendered over the decade this case has been pending based
on both a 2014 State Bar rate survey and the most recent publication of rates, (2) the requests for
fees incurred in separate lawsuits are foreclosed by Sixth Circuit precedent, (3) the billing records
ostensibly attributed to the present litigation are comingled with numerous entries for legal work
performed on other lawsuits and proceedings, and therefore the lodestar calculation should be
discounted heavily, (4) none of the claimed “fees” or “expenses” including “expert witness fees”
are recoverable as “costs” under 28 U.S.C. § 1920, and (5) costs of $1,254 already have been taxed,
and no further award of costs is allowed.

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Typically, the reasonableness of an attorney’s fee request is measured by the lodestar
method. Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 702 (6th Cir. 2016). That
method calls for multiplying “the number of hours reasonably expended on the litigation . . . by a
reasonable hourly rate.” Ibid. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “The
party seeking attorney’s fees bears the burden of proof on the number of hours expended and the
rates claimed.” Granzeier v. Middleton, 173 F.3d 568, 577 (6th Cir. 1999). If “documentation of
hours is inadequate, the district court may reduce the award accordingly.” Hensley, 461 U.S. at
433 (1983). Additionally, the Court must “exclude . . . hours that were not reasonably expended.”
Id. at 434. A reasonable rate for the purpose of the lodestar calculation is “the rate that lawyers of
comparable skill and experience can reasonably expect to command within the venue of the court
of record.” Husted, 831 F.3d at 715 (citing Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004)).
Sources of information include “a party’s submissions, awards in analogous cases, state bar
association guidelines, and its own knowledge and experience in handling similar fee requests.”
Id. at 716 (quoting Van Horn v. Nationwide Prop. & Cas. Ins., 436 F. App’x 496, 499 (6th Cir.
2011)).
When a prevailing party provides sufficiently reliable and “particularized” billing records,
“conclusory allegations that the award was excessive and that . . . counsel employed poor billing
judgment . . . do not suffice to establish that there was error.” Imwalle v. Reliance Med. Prod.,
515 F.3d 531, 553 (6th Cir. 2008) (quoting Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991));
see also Fox v. Vice, 563 U.S. 826, 838 (2011) (“[T]rial courts need not, and indeed should not,
become green-eyeshade accountants. The essential goal in shifting fees . . . is to do rough justice,
not to achieve auditing perfection.”). However, the invoices furnished must be “of sufficient detail
and probative value to enable the court to determine with a high degree of certainty that such hours

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were actually and reasonably expended in the prosecution of the litigation.” Imwalle, 515 F.3d at
553; see also Hensley, 461 U.S. at 433, 437 n.12.
The number of hours reasonably expended on a matter may include such things as time
spent drafting pleadings, meeting with clients, and preparing the case for trial. See Hensley, 461
U.S. at 34 (noting that the hours should be of the type billed to one’s client). However, the court
may reduce the number of hours claimed where the documentation is inadequate or the time was
not “reasonably expended.” Mehney-Egan v. Mendoza, 130 F. Supp. 2d 884, 886 (E.D. Mich.
2001). “Hours are not reasonably expended if they are excessive, redundant, or otherwise
unnecessary. ‘A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary
prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable
fee.’” Ibid. (quoting Mich. R. Pro. Conduct (MRPC) 1.5).
There is a “strong presumption” that the lodestar represents the “reasonable” fee. City of
Burlington v. Dague, 505 U.S. 557, 562 (1992) (holding that lodestar figure has “become the
guiding light of our fee-shifting jurisprudence”). The party advocating a departure from the
lodestar amount bears the burden of establishing that the adjustment is “necessary to the
determination of a reasonable fee.” Ibid. (quoting Blum v. Stenson, 465 U.S. 886, 898 (1984) In
determining whether to adjust the lodestar amount, courts may consider several factors, discussed
below. Hensley, 461 U.S. at 430 n.3 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d
714, 717-19 (5th Cir. 1974)).
The defendant does not dispute that the plaintiff may receive a significant attorney fee
under the present posture of the case. However, review of the billing records submitted provokes
grave doubts about the propriety of the extremely large fee sought in this case. It is apparent that
the plaintiff has presented an inflated accounting that includes numerous hours of attorney’s fees

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expended in several entirely separate matters, for which they have no legal grounds for seeking an
award of fees in this case. In particular, the plaintiff claims entitlement to fees for work done on
at least five separate suits including: proceedings in the City of Detroit’s municipal bankruptcy, In
re City of Detroit, No. 13-53846 (Bankr. E.D. Mich.) (150 hours); prior state court litigation
between HRT’s tenants, Wayne County case number 09-016475 (233 hours) and Michigan Court
of Appeals case number 304057 (103.7 hours); a suit by HRT against the City Treasurer and the
Detroit Water and Sewer Department involving disputed charges for sewage runoff assessed
against the property, Wayne County case number 2017-015659 (89.3 hours); and an unspecified
number of unidentified municipal proceedings concerning “blight tickets” issued by the City
against the property, for which no separate accounting was presented. In addition to segregated
billings for those separate litigations, it also is apparent that the records presented by the plaintiff
nominally allocating billable hours to the present litigation include numerous entries for legal work
performed on the several separate matters, which were comingled with hours that appear to have
been legitimately allocated to this case.
Addressing a similar issue, the Sixth Circuit clearly stated that “fees under § 1988 are not
recoverable for work performed in a completely separate case, even if, as here, that case involves
the same defendant, and even if the defendant agrees to use the materials from the separate case in
the present action.” Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 631 (6th Cir. 2013). HRT never
mentioned that case in its initial motion. In its supplemental filing, it attempts unconvincingly to
distinguish it and points the Court instead to Webb v. Board of Education of Dyer County, 471
U.S. 234 (1985). In Webb, the Supreme Court indicated that a court could award fees under section
1988 when the work performed was “useful and of a type ordinarily necessary to advance the civil

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rights litigation.” Id. at 243. But, as the Sixth Circuit pointed out, the Webb Court “upheld the
denial of fees for work performed in separate proceedings.” Binta B., 710 F.3d at 629.
In Webb, a former school teacher challenged his firing before the local school board and in
a lawsuit filed in court. He won his lawsuit by obtaining a consent decree, and his lawyer sought
attorney’s fees for the work before the school board. He maintained that the work he preformed
before the school board “was analogous to discovery, investigation, and research that are part of
any litigated proceeding,” and therefore was “reasonably expended” as part of the court action.
Webb, 471 U.S. at 240, 242. The Supreme Court was unconvinced and rejected that argument. Id.
at 243. Citing this holding, the Binta panel concluded that the plain language of 42 U.S.C. § 1988
bars recovery of attorney fees expended in any proceeding separate from the litigation before the
district court in which attorney fees are sought. Binta B, 710 F.3d at 630-31.
It is readily apparent from a review of the plaintiff’s billing records that fees incurred in
the several separate lawsuits are comingled pervasively throughout the ledger of hours purportedly
incurred “in this case.” Most conspicuously, a vast swath of the main tract of the ledger appears
to comprise fees incurred almost entirely in the course of appearances and litigation by plaintiff’s
counsel presenting claims and contesting issues raised during the City of Detroit’s bankruptcy
proceedings. Thirteen entire pages of the billing records appear to be packed with appearances
and filings in the bankruptcy case. See Billing Records, ECF No. 454-1, PageID.12147-12160.
Those entries span more than a year, from an entry on July 18, 2013 annotated as “Reviewing City
of Detroit bankruptcy petition” through an entry on December 22, 2014 that indicates work on a
motion to reopen this case. During that entire period this case was stayed and administratively
closed, see Order Staying and Administratively Closing Case, ECF No. 42, and no appearances

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were recorded, nor were any papers filed by any party, until the December 2014 filing of the
motion to reopen after the bankruptcy stay was lifted.
In its supplemental brief, the plaintiff continues to insist that it can recover in this case the
attorney’s fees incurred in the bankruptcy proceedings. It reasons that its work in the bankruptcy
matter was necessary to its success in this case because otherwise Detroit’s bankruptcy would have
wiped out the obligation to pay for the taking of the plaintiff’s property. But even if that were true,
as the defendant points out — and as the plaintiff concedes — there is no legal authority for fee
shifting under the Bankruptcy Code. In re Cole, No. 15-00168, 2023 WL 356016, at *3 (Bankr.
M.D. Fla. Jan. 6, 2023) (“[T]here is no right to prevailing party attorneys’ fees on a claim objecting
to discharge under 11 U.S.C § 727(a).”); see also In re Wyatt, 609 B.R. 530, 533 (Bankr. D. Idaho
2019) (“‘No general right to attorney fees exists under the Bankruptcy Code.’ Heritage Ford v.
Baroff (In re Baroff), 105 F.3d 439, 441 (9th Cir. 1997). Nor does any provision in § 727 provide
for prevailing party attorneys’ fees in causes of action under § 727(a).”). Allowing recovery of
those fees here would amount to an unauthorized exception to the American Rule, which states
that in the usual case, each side must pay their own attorney’s fees “unless there is express statutory
authorization to the contrary.” Hensley, 461 U.S. at 429 (citing Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240 (1975)). After a comprehensive search of federal decisions, the
Court has not located any case in which a prevailing party in a civil case was allowed to import its
attorney’s fees incurred in a related bankruptcy proceeding under the authority of 42 U.S.C. § 1988
or otherwise. The plaintiff has not cited any case holding that such a fee award is proper. The
plaintiff’s demand for substantial legal fees incurred in connection with the separate bankruptcy
proceedings — during a period when this litigation was closed and the proceedings were stayed
by order of the Court — cannot be honored.

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The examples cited above are not the only instances of improperly comingled billing.
Other entries indicate that within the ledger ostensibly devoted to legal work on this case the
plaintiff recorded billings relating to the separate state court litigation in HRT Enterprises v.
Detroit Water and Sewer Department, No. 2017-015659 (Wayne Cty. Cir. Ct.), where the plaintiff
sued DWSD and the City over disputed charges for sewer runoff assessed against the property.
For example, a December 20, 2013 entry indicates that 0.1 hours were billed for “Review[ing]
Opinion from Judge Rhodes lifting the stay in rate case against DWSD,” PageID.12149; an
October 1, 2015 entry indicates that 0.5 hours were billed with the annotation: “Review recent
developments in Detroit bankruptcy. Telephone from Lyle at DWSD re outstanding bills. Review
DWSD billing information. E-mails with Andy Chamberlain. Telephone with Andy Milia,”
PageID.12167; and numerous entries from January 22 through February 17, 2017 logged more
than 10 hours spent reviewing documents and drafting motions and briefs relating to “suspend[ing]
property tax and utility payments,” PageID.12176. Those questionable entries covering lengthy
and widely separated spans before and after the stay of this case due to the bankruptcy litigation
suggest that the corruption of the accounting is pervasive throughout and not confined to any
discernible discrete period.
It is undisputed that the plaintiff is entitled to a substantial fee recovery, but only for the
work performed on this case. In light of the pervasive inclusion of illegitimate billings throughout
its legal ledger, it is impossible to determine with reasonable certainty that it is entitled to any
amount approaching the nearly $1.8 million in attorney’s fees that it seeks. It is therefore necessary
for the Court to make some attempt, before computing the lodestar fee, to determine from the
available information an appropriate discount against the gross total of hours billed and a suitable
average hourly rate.

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In its supplemental brief, the plaintiff concedes that 201 hours are related to separate
litigation. It agreed to drop 75 hours of entries from its claim, cutting the total number of claimed
hours from 3,075 to an even 3,000 hours. And it concedes that the parties agreed on 201 hours
that were related to the separate bankruptcy proceeding, although it persists in its claim that all of
those hours should be compensable in this case, despite case law to the contrary. But the plaintiff
also seeks compensation for another 169 hours logged at various rates during six months of this
year from March through August 2023. Also, it insists that approximately 658 hours of billings
by attorney Neil Strefling are compensable despite the fact that they were accompanied by no
descriptions at all, because, according to the plaintiff, the entries all “correlate” either with docket
entries in the case or more descriptive entries logged by lead counsel Mark Demorest. And the
defendant points to additional entries, which, along with the Strefling hours, total 1,111 hours that
are questionable because they feature either vague descriptions that make it impossible to
determine which litigation they were related to, or because they include no description at all of the
work performed. Because of the poor descriptions and the inclusion of billed time that does not
relate to this case, it follows that the plaintiff is not entitled to the recover all the attorney’s fees it
claims.
Under the circumstances, the Court is left with two options: (1) disallow the fee award
entirely or (2) discount the number of billable hours to reduce the lodestar in rough proportion to
the observable incidence of disallowable fees. See Vanderhoef v. Dixon, No. 16-508, 2020 WL
6864543, at *14 (E.D. Tenn. May 4, 2020), R&R adopted, 2020 WL 4673464 (E.D. Tenn. Aug.
12, 2020) (“Where the documentation of hours is inadequate, the district court may reduce the
award accordingly. Here, the Court is unable to evaluate the reasonableness of the specific time
expended in preparing Plaintiff’s reply. Plaintiff did not submit either billing records or an

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affidavit to establish as a factual matter his request for fees associated with the preparation of the
Reply.” (citing Hensley, 461 U.S. at 433)); see also Bio-Med. Applications of Kentucky, Inc. v.
Coal Exclusive Co., No. 08-80, 2011 WL 3568249, at *8 (E.D. Ky. Aug. 15, 2011) (“One option
is to simply reduce the award. District courts may make across-the-board percentage cuts either
in the number of hours claimed or in the final lodestar figure. Another option in egregious
situations is to disallow the award altogether.”) (collecting cases discounting hours billed or gross
lodestar by figures ranging from 10% to 40%) (citations omitted).
Taking the plaintiff’s total claim of 3,169 hours and subtracting the 1,111 hours logged in
disputed, poorly described billing entries, 2,058 hours remain.

Based on that observable

proportion of questionable billing entries to the total claimed, it is appropriate to impose a .67
multiplier, taking a 33% discount against the gross number of compensable hours to account for
the pervasive corruption of the billing records, which the plaintiff has been intransigent in refusing
either to clarify or concede. Hensley, 461 U.S. at 433; Mehney-Egan, 130 F. Supp. 2d at 886. That
works out to a top line total of 2,091 hours for a decade of billable labor. The plaintiff has
supplemented its fee motion with a request for compensation for the work performed on postverdict matters. The total amount requested is for 168.6 hours of time divided among three
attorneys. That time is documented properly and plainly is attributable to this current case. The
hourly component of the lodestar will be 2,259.6 hours.
The second component of the lodestar calculation is determination of a reasonable hourly
rate. The plaintiff has suggested hourly rates ranging from $225 to $450 per hour for the dozen
attorneys who billed time claimed over the decade of litigation. However, the approval of specific
rates for individual counsel is problematic because, for the reasons stated above, it is impossible
to determine reliably the number of hours that reasonably and legitimately were expended by each

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lawyer who worked on the case. Under these circumstances, the use of an average hourly rate is
more appropriate due to the deficiencies in the accounting that make it impossible to reach any
measure of certainty in partitioning the allowable fees among the several lawyers employed. For
similar reasons, there is no sound basis for addressing the nuances among the proposed hourly
rates based on experience and competence of counsel. It is undisputed that several of the lawyers
involved have decades of experience in practice. However, the highly questionable nature of the
fee request in gross weighs heavily against the assignment of any premium rate for the labor
performed on a wholesale basis.
The State Bar of Michigan’s published Economics of Law Practice for 2020 reports a range
of median hourly rates from $250 for associates to $350 for partners in law firms across all areas
of practice. 2020 Economics of Law Practice, State Bar of Michigan, https://www.michbar.
org/file/pmrc/articles/0000155.pdf. The mid-point of that range is $300 per hour. That overall
market average supplies a reasonable basis for the calculation of the lodestar.
Multiplying total hours of 2,259.6 hours for a decade of billable labor by the reasonable
market rate of $300 per hour yields a lodestar benchmark of $677,880.
The Court also must consider the factors outlined in Hensley to determine if any further
adjustment of the fee is required. Those factors are: (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 “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases. Hensley, 461 U.S. at

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430 n.3. The assessment of those factors is difficult in this case because the plaintiff made no
effort to address them in its briefing. Instead, it devoted almost its entire presentation to its
questionable effort to sustain its claim for fees that plainly are not recoverable under the statute
and controlling case law. The discount suggested above is calculated to offset the unsound basis
of the fee claim, and there are no circumstances apparent from the record that compel further
reduction of the fee. However, the plaintiff’s presentation also supplies no good reasons to award
any premium over the lodestar amount. In the absence of any good grounds for a deviation, the
lodestar is presumed to be reasonable. City of Burlington, 505 U.S. at 562.
The plaintiff also asks the Court to award compensation for costs incurred in the litigation.
Those consist of $40,906.25 in expert witness fees, $2,099.16 in miscellaneous expenses, and an
additional $1,700 for expenses incurred in litigating post-verdict motions. The defendant does not
take issue with any particular line item, but it argues that none of the claimed fees or expenses,
including expert witness fees, are recoverable as costs under 28 U.S.C. § 1920, and costs of $1,254
already have been taxed, and no further award of costs is allowed.
It is true that “[p]revailing parties are entitled to receive costs under Federal Rule of Civil
Procedure 54(d),” but “a court may only tax costs as authorized by statute.” EEOC v. W&O, Inc.,
213 F.3d 600, 620 (11th Cir. 2000) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 445 (1987), superseded by statute on other grounds, 42 U.S.C. § 1988(c) (1991)). “[S]ince
28 U.S.C. § 1920 lists which expenses a court ‘may’ tax as costs, that section only authorizes
taxation of certain items.” Crawford, 482 U.S. at 441.
However, the Court has the statutory authority under section 1988 to include in an award
of attorney fees expenses incurred in the representation that are “incidental and necessary.” Waldo
v. Consumers Energy Co., 726 F.3d 802, 827 (6th Cir. 2013) (quoting Sigley v. Kuhn, 205 F.3d

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1341, 2000 WL 145187, at *9 (6th Cir. 2000)). Recoverable expenses include those typically
charged to a fee-paying client, such as photocopying, paralegal expenses, and travel and telephone
costs. Ibid. Expert witness fees also may be taxed. 42 U.S.C. § 1988(c).
The plaintiff may recover the fees charged by expert witness Andrew Reed, who testified
at both trials. The miscellaneous expenses of $2,099.16 will not be allowed because they consist
of fees paid in other lawsuits and the plaintiff has not attempted to segregate them. However, the
additional expenses of $1,700 are allowable because they plainly relate to the present case, and
they consist of those expenses described by the court in Waldo. None of the expenses claimed
duplicate the costs taxed by the Clerk under 28 U.S.C. § 1920 and Rule 54(d).
III.
To summarize, the plaintiff may recover from the defendant attorney’s fees in the amount
of $677,880 and litigation expenses of $42,606.25, for a total of $720,486.25.
Accordingly, it is ORDERED that the plaintiff’s motion for attorney’s fees and expenses
(ECF No. 454) and the motion to update the attorney’s fee motion (ECF No. 483) are GRANTED
IN PART.
It is further ORDERED that the plaintiff shall recover from the defendant attorney’s fees
and costs in the amount of $720,486.25.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: January 16, 2024

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