Tyson v. John R Service Center Inc. et al

Filing 148

ORDER Adopting 141 Report and Recommendation and Granting in Part and Denying in Part Plaintiff's 124 Motion for Attorney Fees. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Setara Tyson,
Plaintiff,
v.

Case No. 13-13490
Judith E. Levy
United States District Judge

Sterling Car Rental, Inc., d/b/a Car
Source, Al Chami, and Rami
Mag. Judge Mona K. Majzoub
Kamil,
Defendants.
________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION [141]
AND GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR ATTORNEY FEES [124]
Before the Court is Magistrate Judge Mona K. Majzoub’s Report
and Recommendation (“R&R”) recommending that the Court grant in
part and deny in part plaintiff’s motion for attorney fees. (ECF No. 124
PageID.1545-58.) Plaintiff submitted one objection to the R&R (ECF No.
143 PageID.1821-26), defendants responded (ECF No. 48 PageID.182831), and plaintiff filed a reply in support of her objection. (ECF No. 146
PageID. 1840-41). Defendants submitted three objections (ECF No. 142
PageID.1803-20) and plaintiff responded (ECF No. 147 PageID.1844-53.)

For reasons set forth below, plaintiff and defendants’ objections are
overruled, and the R&R is adopted in full.
I.

Background
The Court has carefully reviewed the R&R and is satisfied that it is

a thorough account of the relevant portions of the record. The factual
background from the R&R is incorporated as if set forth herein.
II.

Legal Standard
A party may object to a magistrate judge’s report and

recommendation on any motion, and a district judge must resolve proper
objections under a de novo standard of review. 28 U.S.C. § 636(b)(1)(B)–
(C); Fed. R. Civ. P. 72(b)(1)–(3). “For an objection to be proper, Eastern
District of Michigan Local Rule 72.1(d)(1) requires parties to ‘specify the
part of the order, proposed findings, recommendations, or report to which
[the party] objects’ and to ‘state the basis for the objection.’” Pearce v.
Chrysler Group LLC Pension Plan, 893 F.3d 339, 346 (6th Cir. 2018).
Objections that restate arguments already presented to the magistrate
judge are improper, Coleman-Bey v. Bouchard, 287 F. App’x 420, 422 (6th
Cir. 2008) (citing Brumley v. Wingard, 269 F.3d 629, 647 (6th Cir. 2001)),

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as are those that dispute the general correctness of the R&R. Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Moreover, objections must be clear so that the district court can
“discern those issues that are dispositive and contentious.” Id. (citing
Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir.
1991)); and see Thomas v. Arn, 474 U.S. 140, 147 (1985) (explaining that
objections must go to “factual and legal” issues “at the heart of the
parties’ dispute”). In sum, the parties’ objections must be clear and
specific enough to permit Court to squarely address them on the merits.
See Pearce, 893 F. 3d at 346.
III.

Analysis
A. Plaintiff’s Objection 1
Plaintiff objects to the R&R’s finding that she was not a prevailing

party on her Michigan state law conversion claim after remand. (ECF No.
143 PageID.1822-26.) She argues that the Magistrate Judge erred when
she found that the stipulated order (the “Stipulated Order”) (ECF. No.
120 PageID.1526-27) lacks the judicial imprimatur necessary to confer
prevailing party status on plaintiff for the purposes of an attorney fee

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award. (ECF No. 143 PageID.1822-23.) For the reasons set forth below,
the Court disagrees.
After remand from the Sixth Circuit, the parties settled plaintiff’s
remaining state conversion claims. (ECF No. 141, PageID.1770).
Pursuant to the parties’ settlement, the Court entered the Stipulated
Order resolving the final claim for damages. (ECF No. 120, PageID.152627). Only a final judgment on the merits or a court-enforced consent
decree renders a party the “prevailing party” for the purpose of
requesting attorney fees. Buckhannon Bd. & Care Home, Inc. v. W.
Virginia Dep’t. of Health and Human Res., 532 U.S. 598, 605 (2001).
Because plaintiff did not acquire either, she cannot recover attorney fees
for these claims. See also Toms v. Taft, 338 F.3d 519 (6th Cir. 2016)
(Because the plaintiffs “obtained neither a ‘judgment on the merits’ nor
a ‘court-ordered consent decree,’ they are not eligible for attorney’s fees”).
Plaintiff argues that defendants’ payment of $7000 constituted a
sufficient material change in her legal relationship with defendants to
render her the prevailing party. (ECF No. 143, PageID.1825). But

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“[p]rivate settlement agreements do not confer prevailing party status.”
Toms, 338 F.3d at 528-29; See also Buckhannon, 532 U.S. at 604-605.1
Accordingly, the Magistrate Judge correctly found that plaintiff
was not eligible for attorney fees incurred on remand for work performed
on her statutory conversion claims.
B. Defendants’ Objection 1
Defendants’ first objection to the R&R has, from what can be
discerned, two subparts. The first sub-part is an objection to the R&R’s
finding that plaintiff prevailed on claims that were settled. (ECF No. 142
PageID.1803-1808.) The second is an objection to specific time entries
and amounts of time expended by plaintiff’s counsel. (ECF No. 142
PageID.1809-1813.) For the reasons set forth below, the Court disagrees
with both subparts of defendants’ first objection.
As to the first sub-part to objection one, defendants argue that
plaintiff was not a prevailing party on her statutory conversion claims or
her Equal Credit Opportunity Act (“ECOA”) claim, and thus she is not

Nor could the Stipulated Order be construed as a consent decree. A consent
decree “places the power and prestige of the court behind the compromise struck by
the parties,” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983), which this order
did not do.
1

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entitled to an increase of 20% as if she prevailed on those claims. (ECF
No. 142, PageID.1804.) Because plaintiff withdrew her request for
injunctive relief and she settled her statutory conversion claims under
ECOA, defendants correctly note that she was not the prevailing party
on these issues. See infra, III.A.
Yet, this does not warrant defendants’ conclusion that plaintiff
should not receive attorney fees for time expended on those claims. For
that proposition, defendants rely exclusively on Radvansky v. City of
Olmsted Falls, 496 F.3d 609, 619-20 (6th Cir. 2007) (ECF No. 142,
PageID.1804). There, the Sixth Circuit held that a plaintiff who does not
succeed on any of her claims cannot receive attorney fees for a reversal of
summary judgment on appeal. Radvansky, 496, F.3d at 619-20. Here,
plaintiff prevailed on appeal on her claims under the ECOA. Tyson v.
Sterling Rental, Inc., 836 F.3d 571, 580 (6th Cir. 2016). Hence,
Radvansky does not lend support to defendants’ argument that granting
the attorney fees incurred on appeal would be improper.
Defendants do not argue, but appear to assume, that where a party
succeeds on some but not all of its claims, attorney fees should be limited
to those expended on claims that were ultimately successful. (ECF No.
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142, PageID.1804). Where a plaintiff presents “distinctly different claims
for relief” based on “different facts and legal theories” a court should limit
attorney fees to successful claims because “counsel’s work on one claim
will be unrelated to his work on another claim.” Hensley v. Eckerhart, 461
U.S. 424, 435 (1983). On the other hand, where a plaintiff presents
related claims for relief “the result is what matters,” and the plaintiff
need not succeed on each of her legal claims to be awarded all of her
attorney fees. Id; See also Imwalle v. Reliance Medical Prod’s Inc., 515
F.3d 531 (6th Cir. 2008).
Attorney fees for unsuccessful claims should not be deducted from
those reasonably expended if the unsuccessful claims were related to
those on which the plaintiff prevailed, and if the plaintiff achieved “a
sufficient degree of success to render the hours reasonably expended.”
Imwalle, 515 F.3d at 552. Because plaintiff’s claims here arose from
common facts, they were related. Id. And since she ultimately succeeded
on her claims under ECOA, Michigan Motor Vehicle Sales Finance Act,
and Michigan Credit Reform Act, and did not prevail on her statutory
conversion claims only because the parties settled, she achieved

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significant success. Accordingly, the Magistrate Judge correctly held that
attorney fees for time expended on appeal were appropriate.
In the second sub-part of their first objection, defendants raise
several particularized objections to the billed hours as unreasonable and
excessive. (ECF No. 142, PageID.1808-1813). Insofar as these objections
concern plaintiff’s lack of success on her statutory conversion claims, they
have been sufficiently addressed above. Insofar as they concern
overstaffing and lack of documentation, the Magistrate Judge correctly
noted that, even despite an earlier signal from the Sixth Circuit
regarding

this

issue,

“Defendants

have

not

challenged

the

reasonableness of the attorney’s fees sought by Plaintiff in the instant
Motion with any specificity, i.e., with regard to the number of hours
expended or the hourly rates charged by the several attorneys and
paralegals who worked on this matter.” (ECF No. 141 PageID.1711.) The
district court should not consider arguments that have not first been
presented to the magistrate judge, See Stonecrest Partners, LLC v. Bank
of Hampton Roads, 770 F. Supp. 2d 778, 785 (E.D.N.C. 2011) and here,
defendants never raised these arguments in their underlying briefs. See

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also The Glidden Co. v. Kinsella, 386 F. App’x 535, 544 (6th Cir. 2010).
Accordingly, defendants’ objection is overruled.
C. Defendants’ Objection 2
Defendants’ second objection to the R&R is their argument that the
Magistrate Judge improperly relied on law that the Supreme Court has
overturned. (ECF No. 142 PageID.1813-15.) For the reasons set forth
below, this objection is overruled.
From what the Court can discern, defendants take the position that
the case Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,
483 U.S. 711 (1987) “flatly overruled” all aspects of Kelley v. Metropolitan
County Bd. of Educ., 773 F.2d 677 (6th Cir. 1985). Defendants are
mistaken.
The Kelley court held that an award of attorney fees arising from
an appeal under 42 U.S.C. §1988 (another fee-shifting statute, similar in
that regard to the ECOA here) is separate and distinct from an award of
fees and costs under Federal Rule of Appellate Procedure 39(a). Id. This
specific issue in Kelley was not before the Supreme Court in
Pennsylvania, so it follows that it was not addressed, much less
overturned. Pennsylvania held that trial courts should not use discretion
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to enhance fees beyond the lodestar to account for the risk involved unless
presented with an “exceptional case[] where the need and justification for
such enhancement [is] readily apparent and supported by evidence in the
record and specific findings by the courts.” 483 U.S. at 728-729. As to this
issue, Kelley was reversed. In conclusion, the Magistrate Judge did not
err in relying on this portion of Kelley in her R&R, and defendants’ second
objection is overruled.
D. Defendants’ Objection 3
Defendants’

final

objection

is

to

the

Magistrate

Judge’s

recommendation that the Court allow a higher billing rate for plaintiff’s
out-of-town counsel. (ECF No. 142 PageID.1815-19.) For the reasons set
forth below, the Court disagrees.
Defendants’ response in opposition to plaintiff’s motion for
attorney’s fees is silent regarding this issue, and it is raised here in
defendants’ objections for the first time. (ECF No. 128 PageID.1668–
1699.) The district court should not consider arguments that have not
first been presented to the magistrate judge, See Stonecrest Partners,
LLC v. Bank of Hampton Roads, 770 F. Supp. 2d 778, 785 (E.D.N.C.

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2011); see also The Glidden Co. v. Kinsella, 386 F. App’x 535, 544 (6th
Cir. 2010).
Yet, the R&R’s analysis of the plaintiff’s appellate attorney fees’
reasonableness correctly explains the fact that plaintiff’s decision to hire
Mr. Deepak Gupta, of Gupta Wessler in Washington D.C., because he is
a seasoned appellate practitioner for consumer protection cases, was not
improper. (ECF No. 141 PageID.1782.) Plaintiff was entitled to hire the
counsel of her choice, and ultimately prevailed on appeal. Accordingly,
defendants’ objection is overruled.
IV.

Conclusion

For the reasons set forth above, plaintiff and defendants’ objections
are overruled, the R&R is adopted in full, and the Court GRANTS IN
PART AND DENIES IN PART plaintiff’s motion for attorney fees. (ECF
No. 124.) Plaintiff’s Motion for Status Conference (ECF No. 137) is
DENIED as moot.
IT IS SO ORDERED.
Dated: July 11, 2019
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 11, 2019.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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