Cook et al v. Greenleaf Township et al
Filing
121
OPINION & ORDER Granting In Part Christina Gibbard's Renewed Motion for Attorney Fees (Dkt. 112 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2917
Page 1 of 10
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHELLY COOK and
CHRISTINA GIBBARD,
Plaintiffs,
Case No. 16-14060
vs.
HON. MARK A. GOLDSMITH
GREENLEAF TOWNSHIP, et al.,
Defendants.
_______________________________/
OPINION & ORDER
GRANTING IN PART CHRISTINA GIBBARD’S RENEWED MOTION FOR
ATTORNEY FEES (Dkt. 112)
This case was tried in December 2018 on Plaintiffs Shelly Cook’s and Christina Gibbard’s
claims of First Amendment retaliation, assault and battery, and violations of Michigan’s Open
Meetings Act (“OMA”). The jury found in Plaintiffs’ favor on the battery claims and in Gibbard’s
favor on her OMA claim. The parties filed cross-motions for attorney fees (Dkts. 94, 96). The
Court denied Defendants’ motion and granted in part Gibbard’s motion, but deferred ruling on the
amount of fees to be awarded, pending further resolution efforts by the parties and additional
submissions. 9/17/19 Op. & Order (Dkt. 109). Because the resolution efforts were unsuccessful,
Gibbard filed the instant renewed motion for fees (Dkt. 112), which Defendants oppose (Dkt. 114).
For the reasons discussed below, Gibbard’s renewed motion is granted in part.
I.
BACKGROUND
The full case background is set forth in this Court’s prior opinions. See 5/15/2018 Op. &
Order (Dkt. 45) (denying Defendants’ motion for partial summary judgment); see also 9/17/19 Op.
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2918
Page 2 of 10
& Order (denying Defendants’ motion for attorney fees and granting in part Gibbard’s motion for
attorney fees). The background relevant to the attorney fee issue is set forth below.
In the original motion for fees, Gibbard’s attorneys sought $142,695.50 and costs. In ruling
on the motion, the Court awarded $4,558.04 in costs, but postponed a decision on the amount of
fees to award. Instead, the Court addressed certain attorney fee issues—rejecting Defendants’ due
process arguments and their contention that the fees requested were “clearly excessive” based on
their theory that the fees were disproportionate to Gibbard’s recovery. 9/17/19 Op. & Order at 611.
The Court agreed with the soundness of the theory underlying Defendants’ additional
contention—that fees are clearly excessive to the extent they include work unrelated to the OMA
claim—but ordered additional submissions on that issue if further resolution efforts proved
unsuccessful. Id. at 14. In the instant motion, Gibbard winnowed down the fee request by 30.32
billable hours. Mot. at 1. Based on the reduced billing hours, the revised fee is $137,724.50 for
all work though the first motion for attorney fees. The new fee request, however, is $146,199.50,
because Gibbard’s attorneys also seek the fees for the additional attorney hours spent subsequent
to the Court’s first order on attorney fees. Pl. Supp. Br. at 27-28 (Dkt. 117).
Because Defendants maintained that the fee request does not clearly show that non-OMA
matters are not included in the fees requested, Resp. at 2-4, the Court ordered Defendants to specify
the specific billing entries to which they objected, 7/31/20 Order Requiring Supp. Briefing (Dkt.
115). It also ordered Gibbard to respond as to each entry. Id. Gibbard and Defendants set forth
their respective positions on each challenged entry in their respective supplemental filings (Dkts.
116, 117). The Court also set the matter for an evidentiary hearing, 8/14/20 Order to Appear by
Video Conf. (Dkt. 119), but at a subsequent telephonic status conference, counsel for both sides
2
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2919
Page 3 of 10
agreed that no hearing was necessary, resulting in its cancellation, 8/17/20 Order Cancelling
Evidentiary Hr’g (Dkt. 120).
II.
LEGAL STANDARD
In the United States, under the “American Rule,” each side in legal proceeding pays for its
own attorney fees. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The American Rule, however,
has numerous statutory exceptions, some, if not most, of which Congress has enacted to encourage
private litigation to implement public policy. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421
U.S. 240, 263 (1975). This private-attorney-general concept is often found in civil rights statutes.
For example, in civil rights actions brought under 42 U.S.C. § 1983, courts are authorized to allow
“the prevailing party” reasonable attorney fees as part of the costs. 42 U.S.C. § 1988(b). “The
touchstone of the prevailing party inquiry must be the material alteration of the legal relationship
of the parties in a manner which Congress sought to promote in the fee statute.” Texas State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-793 (1989). The same principle
applies to state statutes promoting similar public policies. See Omdahl v. W. Iron Cty. Bd. of
Educ., 733 N.W.2d 380, 383 (Mich. 2007).
The OMA provides that a public official who intentionally violates the OMA shall be
personally liable in a civil action for damages of “not more than $500.00 total, plus court costs and
actual attorney fees to a person or group of persons bringing the action.” Mich. Comp. Laws
§ 15.273(1). Although the imposition of “actual attorney fees” under the OMA is mandatory,
Speicher v. Columbia Twp. Bd. of Election Comm’rs, 832 N.W.2d 392, 395 (Mich. Ct. App.
2012), Michigan Rule of Professional Conduct 1.5 gives courts the discretion to reduce attorney
fees where attorneys are charging “illegal or clearly excessive fee[s],” Zoran v. Twp. of
Cottrellville, 913 N.W.2d 359, 362 (Mich. Ct. App. 2017), appeal denied, 919 N.W.2d 403 (Mich.
3
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2920
Page 4 of 10
2018). “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.”
MRPC 1.5(a). For example, attorney fees for work and research on claims unrelated to the OMA
are clearly excessive. Speicher, 832 N.W.2d at 400.
III.
DISCUSSION
Defendants argue that the attorney fee request is clearly excessive for two reasons: (1) the
billing records are not sufficiently detailed to show what legal activities were not in pursuit of
Gibbard’s OMA claim, and (2) the time to prepare the instant motion is not a reasonable fee. 1 The
arguments will be taken in turn.
Defendants first argue that the billing records are not sufficiently detailed to show what
time was devoted only to the OMA claim. Resp. at 2-3 (citing Speicher, 832 N.W.2d at 400). In
Speicher, the trial court found that the plaintiff’s attorney fees were clearly excessive under MRPC
1.5(a) and reduced the requested fees from $30,000 to $7,500. 832 N.W.2d at 397. The Michigan
Court of Appeals found that the trial court had abused its discretion by reducing the attorney fees,
because it lacked an evidentiary basis to support its findings under MRPC 1.5(a). Id. at 397-398.
The appellate court reasoned that, while the OMA allows recovery of “actual attorney fees,” the
claimant may not violate the prohibition contained in MRPC 1.5(a) against collecting a clearly
excessive fee. While the trial court was affirmed in its ruling that a clearly excessive fee may not
be awarded, its award was vacated and the matter remanded for an evidentiary hearing because
there was insufficient evidence to support its ultimate finding on what fees were attributable to the
Defendants also argue that Gibbard’s attorneys inappropriately compare their billing records with
those of previous defense counsel’s billing records. The Court agrees that defense counsel’s billing
records are not at issue on this motion, and even if they were, the comparison is not instructive on
the necessary level of detail in billing records.
1
4
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2921
Page 5 of 10
successful OMA claim rather than unrelated non-OMA claims. 832 N.W.2d at 400. Invoking
Speicher, Defendants try to validate their objection to Gibbard’s fee request by making a similar
argument that the records do not sufficiently show what effort was devoted to the OMA claim.
Our case, however, is very different from Speicher. In Speicher, the non-OMA claim was
an election law claim, which was entirely separate and distinct from the OMA claim. Id. at 399
(“Plaintiff’s claims regarding election law violations were not relevant to whether defendant
violated the OMA.”). By contrast, in our case, the OMA claim and non-OMA claims were
intimately related.
Our case was about a contentious relationship between Plaintiffs and the Greenleaf
Township board members. Events came to a head after a township meeting on October 18, 2016,
when Defendant Judy Keller confronted Gibbard back in Keller’s office. The encounter spilled
out into the meeting hall, where Plaintiffs and Keller had physical altercations prompting others to
intervene. All of the claims in this case—including the OMA claim—were directly related to the
events leading up to that encounter, the encounter itself, and the fallout from that encounter.
Specifically, Gibbard’s OMA claim included the theories that Defendants engaged in actions at or
in connection with the township meeting that were designed to prevent her from videotaping or
participating in a public meeting. See Jury Instructions at 44 (Dkt. 85). The same intimidation
theory was advanced in support of the First Amendment claim. Id. at 36. It is true that there were
some discrete issues, such as whether Judy Keller’s husband, Co-Defendant Dave Keller, assaulted
Gibbard during the events that transpired on October 18, 2016, and to what extent Dave Keller
harmed Cook. It is also true that the jury vindicated Gibbard only on the OMA and battery claims.
But all of the issues derived from, and interrelated with, a common core of facts and theories such
that virtually all of the time devoted to the matter served to advance Gibbard’s OMA case.
5
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2922
Page 6 of 10
That some of that time may also have served to advance other claims does not make it
ineligible as part of the OMA attorney fee recovery. See Hensley, 461 U.S. at 435 (noting that
where the plaintiff’s claims for relief involve a common core of facts or are based on related legal
theories, much 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). Speicher does not say otherwise.
This case is different from Speicher in another respect. There, the trial court received no
evidence from the parties, apart from the billings themselves, prompting the appellate court to
chastise the lower court for not having given counsel and parties an opportunity to testify. Id. at
397-398.
In contrast, this Court undertook a far more elaborate process. In addressing Gibbard’s
first motion for attorney fees, the Court ordered counsel for the parties to meet and confer and
make a good faith effort to remove billing for matters unrelated to Gibbard’s OMA claim. 9/17/19
Op. & Order at 14. That process produced some success, with Gibbard eliminating some $5,000
in fees. 2 After Gibbard filed the instant motion for fees, the Court ordered supplemental
submissions—with Defendants ordered to specify every billing entry to which they made an
objection and Gibbard ordered to respond to every objection, with appropriate declarations. See
7/31/20 Order re Supp. Briefing on Christina Gibbard’s Mot. for Attorney Fees (Dkt. 115). The
Court also offered the parties the opportunity for a full evidentiary hearing, which they declined,
agreeing that the Court could make its decision based on the supplemental filings. See 8/17/20
Gibbard’s attorneys sifted through their billed hours and reduced the billing by a little over 30
hours. For example, Gibbard’s attorneys removed the 4.5 hours spent on Dr. Johnson’s de bene
esse deposition from the December 7, 2018 trial preparation entry. Gafkay Fees, Ex. 1 to Mot., at
5 (Dkt. 112-2). They also excluded hours spent on, among other things, jury instruction disputes,
portions of the time spent on briefing, and time spent at hearings on matters unrelated to Gibbard’s
OMA claim. Id. at 9, 13-14.
2
6
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2923
Page 7 of 10
Order. This detailed process is quite unlike the truncated process rejected in Speicher. And it has
created a firm evidentiary basis for the conclusion that the billings, as supplemented by the
declarations of Gibbard’s attorneys, justify an award for most of what Gibbard seeks.
The Court has thoroughly reviewed both the objections and the Gibbard responses. It finds
that Gibbard has sufficiently eliminated any ambiguity and has established how all time recorded
relative to her modified fee request is related in some respect to the OMA claim, even if also related
to non-OMA claims. The following is a representative sampling:
•
12/8/2016 review records from Sanilac County Sherriff’s Department – 1.0
hour
o Defendants – Vague and relates to more than the Gibbard OMA
claim.
o Gibbard – Response: The records related in large part to Gibbard
being intimidated through an assault after speaking at the special
township board meeting on October 18, 2016, which related to her
OMA violations; although it also related to Shelly Cook being
assaulted after speaking at the meeting, such evidence was relevant
to Gibbard’s OMA claims to show “other acts” by Defendants for
exercising right under OMA.
•
1/4/2016 – send email regarding dates for scheduling order and joint
discovery plan – 1.0 hour
o Defendants – Relates to more than the Gibbard OMA claim. In
addition, under the current description, 1 hour to send an email
regarding a scheduling order appears excessive.
o Gibbard – Response: The 1.0 hour also related to drafting the joint
discovery plan, which is a multiple page document with summary
of the case, basis for subject matter jurisdiction, discovery issues,
anticipated motions, and proposed scheduling dates. (Exhibit 1,
para. 6)
•
6/26/2017 – prepare for and attend depositions – 10.5 hours
o Defendants – Vague. Unknown which deposition and how it relates
to Gibbard OMA claim.
o Gibbard – Response: On June 26, 2017, the depositions of
Defendants Judy Keller, Dave Keller, and Randall Schuette were
taken. The depositions all related to the common core of facts
7
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2924
Page 8 of 10
involving Gibbard’s OMA claims. Exhibit 1, para. 25.
•
7/26/2017 meet with clients; depositions of DG and RB – 4.5 hours
o Defendants – Vague. Does not indicate how it relates to Gibbard
OMA claim, only [sic] nor is there any deduction to account for
same.
o Gibbard – Response. The depositions of Daniel Gilbert, Kim Toner,
Mike Reeder, and Ronald Brzuchowski were taken and all were
witnesses [who] testified relating to OMA violations alleged by
Gibbard.
•
12/11/2017 response to SJ (DELETED 4.0 HOURS FOR DRAFTING SJ
BRIEF) – 4.5 hours
o Defendants – Counsel deleted less than ½ of time when Gibbard
OMA claim is only one of four claims.
o Gibbard – Response. The summary judgment involved only the first
amendment claims and OMA claims. PageID.283. The claims
involved the same common core of facts. There were a total of 10.0
hours deleted for summary judgment entries to account solely for
the first amendment research, preparation, and arguing. (Exhibit 1,
para. 8).
Pl. Supp. Br. at 4-9 (Dkt. 117). The other entries follow suit. Gibbard’s attorneys addressed each
disputed billing entry raised in Defendants’ supplemental brief. See id. These clarifications and
the revisions to the hourly billing records rectify the deficiencies claimed by Defendants.
Therefore, Gibbard’s attorneys are entitled to an award of $ $137,724.50 for work performed
before this Court’s September 17, 2019 Opinion.
With respect to whether Gibbard’s attorneys are entitled to fees for actions taken
subsequent to the Court’s September 17, 2019 Opinion, those fees are clearly excessive. Gibbard’s
attorneys are correct that attorneys are generally entitled to fees for preparing and litigating the
attorney fee case after the underlying case is over. Id. at 3 (citing Coulter v. State of Tenn., 805
F.2d 146, 151 (6th Cir. 1986) (recognizing that courts uniformly allow attorneys to recover fees in
civil rights cases for preparing and litigating attorney fee motions), abrogated on other grounds by
8
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2925
Page 9 of 10
The Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686 (6th Cir. 2016) (recognizing that
that a presumptive cap for fee awards in support of a successful fee petition is inconsistent with
intervening Supreme Court precedent) (citing Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990)).
However, Defendants’ argument is that the fees are clearly excessive under MRPC 1.5(a), which
governs the award of fees in this case. Resp. at 4. As noted above, “[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.” MRPC 1.5(a). The intent of MRPC
1.5(a) “is to prevent attorneys from receiving excessive payment for their work.” Speicher, 832
N.W.2d at 396.
Here, the parties were directed to meet and confer on the billing issues, because the billing
records had obvious problems. More detailed billings initially—and review of the records before
submission to Defendants and the Court by way of the first motion for fees—would likely have
eliminated or reduced the additional time Gibbard’s attorneys seek. Essentially, the time spent
subsequent to this Court’s Opinion on attorney fees was spent correcting the billing-related
problems created by Gibbard’s attorneys. Addressing the obvious problems with the billing
records was not an opportunity to bill more hours. A lawyer of ordinary prudence would be left
with a definite and firm conviction that any hours billed subsequent to this Court’s Opinion on
attorney fees would be in excess of a reasonable fee. Therefore, the hours billed subsequent to this
Court’s September 17, 2019 Opinion are clearly excessive and will be excluded from the total
billed hours for which fees are awarded.
IV.
CONCLUSION
For the reasons stated above, Gibbard’s attorney fee motion (Dkt. 112) is granted in part.
The Court finds, after reviewing the record, that attorney fees based on 360.29 billable hours
9
Case 2:16-cv-14060-MAG-RSW ECF No. 121 filed 09/10/20
PageID.2926
Page 10 of 10
should be awarded on Gibbard’s successful OMA claim. The total reflects the revised billable
hours less the 20.25 attorney hours spent subsequent to the Court’s September 17, 2019 Opinion.
Gibbard’s total attorney fee award is $137,724.50. This is in addition to the award of $4,558.04
for costs previously ordered. 9/17/20 Op. & Order at 14. Defendants shall make full payment
within 30 days.
SO ORDERED.
Dated: September 10, 2020
Detroit, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?