Howe et al v. City of Akron

Filing 820

Memorandum Opinion: The plaintiffs' motions for attorneys' fees and costs (Doc. Nos. 615 , 668 , and 806 ) are granted, in part. In addition to the interim attorneys' fees previously awarded (Doc. Nos. 390 and 644 ), the plaintiffs are awarded attorneys' fees and costs in the amount of One Million Seventy-Four Thousand One Hundred Thirty-Eight and 19/100 Dollars ($1,074,138.19), consisting of Nine Hundred Eighty-Four Thousand Five Hundred Two and 50/100 Dollars ($984,502.50) in attorneys' fees and Eighty-Nine Thousand Six Hundred Thirty-Five and 69/100 Dollars ($89,635.69). Judge Sara Lioi on 3/10/2016. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM HOWE, et al.,

PLAINTIFFS,
vs.
CITY OF AKRON,

DEFENDANT.

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CASE NO. 5:06-cv-2779

JUDGE SARA LIOI

MEMORANDUM OPINION

On September 17, 2015, the Sixth Circuit Court of Appeals issued a decision reversing
the award of back pay and remanding the matter for further proceedings before a different
judicial officer. Howe v. City of Akron, 801 F.3d 718, 757-58 (6th Cir. 2015). Following
reassignment to the undersigned on October 9, 2015, the parties resolved all issues relating to
damages and interest, leaving only the question of the proper award of attorney’s fees and costs
for the Court to decide. Now before the Court are plaintiffs’ various applications for attorney’s
fees and costs. (Doc. Nos. 615, 668, 806.) Defendant has filed a response to each fee petition.
(Doc. Nos. 635, 680, 809, respectively.) Defendant also submitted separate oppositions to
plaintiffs’ requests for costs and expenses.1 (Doc. No. 637, 681, 810, respectively.)
I.

BACKGROUND

In December 2004, defendant City of Akron (“defendant” or “City”) administered
promotional examinations for firefighters interested in consideration for the positions of

1

Plaintiffs filed a combined reply in support of their supplemental motion for attorney’s fees. (Doc. No. 689.)
Plaintiffs also filed two bills of costs. (Doc. Nos. 614, 667.)

lieutenant and captain of the Akron Fire Department. Over the next eleven years, the parties
litigated the results of these examinations, and the promotions based on the examination results,
in federal and state court. It is not surprising, therefore, that the facts surrounding this litigation
have been the subject of numerous opinions issued by the district court and the court of appeals.
Rather than retrace that well-trodden ground, the Court shall limit its recitation of the factual and
procedural background of this case to those facts necessary to properly frame the present fee
petitions.
A. The Pleadings
Plaintiffs are Akron City firefighters who sat for the 2004 examinations. The first lawsuit
was filed in state court on April 7, 2006, challenging the examinations under Ohio law. William
Howe, et al. v. The City of Akron, Summit County Common Pleas No. CV-2006-04-2310.
Plaintiffs filed the present lawsuit approximately seven months later, on November 16, 2006,
alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42
U.S.C. § 2000e, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et
seq. A year later, on October 17, 2007, the Court granted plaintiffs leave to amend their
complaint to include the pendent state law claims. Following the filing of the First Amended
Complaint (“FAC”) in this case, the state action was dismissed without prejudice. See Howe v.
City of Akron, 789 F. Supp. 2d 786, 791 (N.D. Ohio 2010).
The FAC contained twelve causes of action—divided among various federal and state
statutes and constitutional provisions—alleging race and age discrimination and equal protection
violations. (Doc. No. 23.) With respect to discrimination, plaintiffs raised both disparate impact
and disparate treatment claims. After a period of discovery and motion practice, the Court denied
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defendant’s motion for summary judgment, finding the existence of genuine issues of material
fact. (Doc. No. 167.) Upon reconsideration, the Court dismissed the equal protection claims.
(Doc. No. 176.)
B.

The First Trial (December 2008)

In late 2008, the case proceeded to trial.2 On December 23, 2008, the jury returned
interrogatory answers favoring plaintiffs on all legal issues submitted to them for consideration
and awarding each plaintiff compensatory damages and front pay. (Doc. No. 237.) Following the
receipt of the jury’s interrogatory answers, the court entered an order finding that it was bound,
for purposes of plaintiffs’ equitable claims, by the jury’s fact findings. (Doc. No. 238 at 74013.)
On October 2, 2009, the Court issued findings of fact and conclusions of law on the portion of
the lawsuit that was reserved for it to decide. (Doc. No. 277.) In accordance with the fact
findings of the Court and the jury, the Court entered final judgment in favor of each plaintiff,
awarding compensatory damages, front pay, and costs. (Doc. No. 278.)
The parties engaged in substantial post-trial motion practice. On December 30, 2010,
the Court granted, in part, the City’s Rule 59(e) motion to alter or amend the judgment. (Doc.
No. 311.) While the Court affirmed the jury’s determinations as to liability, it granted a new trial
solely on damages, finding that the jury “lost its way on [this] issue,” and noting that the verdicts
provided for uniform past and future monetary awards for each plaintiff “regardless of whether
the individual passed [the examination], was promoted, or ready to retire.” (Id. at 16399.) It was
the opinion of the Court that the jury’s confusion over damages was the result of a “very poor, to

2
3

The first trial took place between December 3, 2008 and December 23, 2008.

All page number references are to the page identification number generated by the Court’s electronic docketing
system.
3

say the least, presentation” by plaintiffs’ counsel on damages making it “unclear then what
[counsel] were seeking on behalf of these plaintiffs[.]” (Doc. No. 467 at 12519.) The Court set a
new trial limited to the issue of damages for July, 2011.
C.

Rancorous Damages Discovery Period and Retrial on Damages

“What followed was a contentious discovery period, during which the City repeatedly
attempted to invoke privilege with respect to its damages calculations, and [p]laintiffs refused to
answer questions relating to their promotional exams.” Howe v. City of Akron, 557 F. App’x 402,
403 (6th Cir. 2014). The difficulties with damages discovery were exacerbated by the fact that
plaintiffs would not commit to a theory for calculating back pay. During this subsequent
discovery period, plaintiffs advised the City that they would be abandoning the second of their
two theories—the Carr method—in favor of their first method—the Snyder method.4 Based on
this representation, defendant conducted no discovery on the Carr method. Ten days before trial,
plaintiffs amended their exhibit lists to include a document using the Carr method of calculation.
Defendant objected to what it characterized as a “bait and switch.” After the trial commenced,
the City argued that, due to plaintiffs’ discovery hijinks, it could not effectively cross-examine
plaintiffs on the Carr method. The district court suspended the trial, excluded part of plaintiffs’
damages evidence as a non-monetary sanction, and reopened discovery on damages on this
alternative theory. Howe, 557 F. App’x at 404. On September 24, 2012, the district court
awarded defendant monetary sanctions in the form of fees pursuant to 28 U.S.C. § 1927, finding
that plaintiffs had needlessly multiplied the proceedings and abused the judicial process. (Doc.

4

Bradley Carr and Gregory Snyder were Akron City firefighters and two of the plaintiffs in this lawsuit.
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No. 530.) Plaintiffs’ took an interlocutory appeal from the sanctions order.5 The bench trial was
subsequently resumed on November 28, 2012, and, on August 30, 2013, the district court issued
findings of fact and conclusions of law and awarded individualized damages to each plaintiff.
(Doc. No. 588.)
On February 4, 2014, the Sixth Circuit issued an opinion dismissing plaintiffs’
interlocutory appeal for lack of jurisdiction. Howe, 557 F. App’x at 405. In a concurring opinion,
however, Judge Gilman questioned the propriety of sanctions, stressing that both sides had
engaged in dilatory and obstreperous conduct. Id. at 405-07. Following the Sixth Circuit’s ruling,
the district court reconsidered its sanctions order. Relying, in part, on Judge Gilman’s concurring
opinion, and further underscoring the fact that “neither party has cleans hands with respect to”
damages discovery, the district court vacated the prior sanctions leveled against plaintiffs. (Doc.
No. 722 at 18053.) The Court explained that, “[i]n lieu of adhering to its current monetary
sanction, the Court will take into account [p]laintiffs’ counsel’s conduct as well as [d]efendant’s
counsel’s conduct when determining the proper amount of fees to award.” (Id.)
D.

Final Appeal to the Sixth Circuit and Proceedings Before this Court

The City appealed the Court’s award of back pay, the issuance of a permanent
injunction, and the appointment of a court monitor to oversee the selection process and address
interim issues arising in the litigation. In its September 17, 2015 decision, the Sixth Circuit panel

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On July 13, 2011, while the parties were sparring over damages discovery, the district court issued an order
requiring the immediate promotion of all plaintiffs. (Doc. No. 416.) The City’s interlocutory appeal from this order
also had the effect of delaying the retrial on damages. See Howe v. City of Akron, 723 F.3d 651, 657 (6th Cir. 2013).
On July 15, 2011, the Sixth Circuit stayed the promotions, and the stay was dissolved on July 21, 2011. (Doc. Nos.
438, 443.)

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recounted the lengthy and, at times, contentious proceedings in the district court, noting that the
“district judge faced parties who have engaged in petty, scorched-earth litigation tactics.” Howe,
801 F.3d at 757 (“The parties’ appellate briefs have provided a taste of the unpleasant and
unnecessarily bitter dynamic of this litigation.”) The Court accused both sides of playing a
“childish withholding game” during damages discovery, “rather than providing necessary
information to determine how best to make the [p]laintiffs whole.” Id. at 750. Nevertheless, the
court determined that the evidentiary sanction against plaintiffs was unwarranted, as any harm
resulting from late discovery disclosure could have been alleviated on cross-examination. Id. at
749. Ultimately, the court affirmed the liability judgment, reversed the back pay award, and
remanded the matter to a different district judge for a new trial on the issue of back pay. The
court also acknowledged that the newly assigned judge would need to “undertake the difficult
task of calculating and awarding attorney’s fees to the [p]laintiffs’ attorneys.” Id. at 757. Finally,
the circuit panel also modified the district court’s appointment of a court monitor by limiting the
court monitor’s involvement to one promotional cycle. Id. at 757-58.
On December 1, 2015, this Court held a settlement conference wherein the parties
reached agreement as to the issue of back pay. At the conclusion of the settlement conference,
the parties agreed to return to attempt to mediate the issue of fees and costs. On December 8,
2015, the Court conducted a mediation of attorney’s fees and costs. Though the mediation ended
that day without a final resolution, the parties agreed to continue informal efforts to wrap-up
these remaining issues. When the parties finally advised the Court that they were unable to reach
agreement as to fees and costs, the Court permitted additional briefing to bring the fee petitions
up to date.
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E.

Attorney’s Fees Proceedings

The issue of attorney’s fees became a rather robust offshoot of the overarching
litigation, due, in no small part, to the fractured and disjointed nature in which plaintiffs’ counsel
approached it.6 Plaintiffs filed their first motion for fees and costs on October 19, 2009, shortly
after the Court entered its first judgment for plaintiffs. (Doc. No. 281.) In this filing, plaintiffs
represented that their calculation of fees to date was merely an “estimate[,]” and indicated that
they would supplement their request after post-trial motions were resolved. According to
plaintiffs, this approach would “help avoid constant supplementation issues and piecemeal,
secondary litigation and filings on fees.” (Id. at 7759.)
On June 27, 2011, plaintiffs filed a motion for interim attorney’s fees. (Doc. No. 361.)
This motion also promised supplementation by way of full documentation of all fees “after the
conclusion of the damage . . . trial.” (Id. at 8459.) The motion further represented that the
“estimated fees through the end of May 2011 on behalf of Plaintiffs [were] approximately
$1,075,000 plus costs.” (Doc. No. 361-3 (Declaration of Bruce B. Elfvin) ¶ 5.) In reliance on
these representations, the Court, on July 8, 2011, issued an interim award of $250,000 in
attorney’s fees. (Doc. No. 390.)
On February 19, 2014, plaintiffs filed their second motion for interim attorney’s fees.
(Doc. No. 615.) This application purported to seek fees of $1,386,922 for work performed
through December 30, 2010, and promised a further filing for work performed after December
30, 2010, “when all other matters in this case have been resolved, unless another interim fee
6

This Court has had to expend an extraordinary amount of time and effort sifting through and trying to piece
together the plaintiffs’ disorganized, poorly summarized, and insufficiently documented requests for fees and costs.

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petition is appropriate.” (Id. at 16737.) Based upon these latest representations of fees to date, the
Court entered a second interim award to plaintiffs of $250,000 in attorney’s fees on March 27,
2014. (Doc. No. 644.)
Plaintiffs’ supplemental motion for attorney’s fees was filed on May 23, 2014. (Doc. No.
668.) This motion sought fees for work performed through January 31, 2014. (Id. at 17465.) The
Court conducted a two-day fees hearing on October 2 and October 6, 2014. (Doc. Nos. 732,
733.) The most recent supplemental motion, seeking fees from February 1, 2014 to December
14, 2015, was filed on December 18, 2015. (Doc. No. 806.)
From the inception of the litigation, plaintiffs were represented by the Akron-based law
firm of Thompson & Bishop and its two partners, Dennis Thompson and Christy Bishop. In the
fall of 2008, immediately prior to trial, attorney Bruce Elfvin, of the law firm of Elfvin & Besser,
entered an appearance on behalf of plaintiffs. At the fees hearing on October 6, 2014, attorney
Thompson testified that it was necessary to involve a second law firm because attorney Bishop
was otherwise occupied with another major disparate impact case in Jacksonville, Florida and
several personal matters that demanded her attention. (Doc. No. 733 at 18579-80.) Plaintiffs
hired a third law firm, Marshall & Morrow, to prosecute the interlocutory appeal of the Court’s
2012 award of sanctions.
The resolution of the attorney’s fees component of this litigation was complicated by
the deaths of both partners from Thompson & Bishop. Attorney Thompson died on December 8,
2014. Attorney Bishop represented the interests of Thompson & Bishop after the death of
attorney Thompson until her own death on December 2, 2015. Attorney Elfvin has represented to
the Court that the executor of attorney Bishop’s estate intends to appoint his law firm to
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represent the interests of Thompson & Bishop in these proceedings, but the Court has yet to
receive confirmation that this appointment has taken place. (See Doc. No. 806 at 19157.)
II.
A.

PLAINTIFFS’ APPLICATIONS
Plaintiffs’ Request for Attorney’s Fees

As a matter of general course, federal court litigants are responsible for their own
attorney’s fees and litigation expenses. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550, 130
S. Ct. 1662, 176 L. Ed. 2d 494 (2010). 42 U.S.C. § 1988 provides an exception to this general
rule for certain civil rights cases, permitting a court to award a “prevailing party . . . a reasonable
attorney’s fee as part of the costs[.]” Title VII also provides for a recovery of reasonable
attorney’s fees by a prevailing plaintiff. 42 U.S.C. § 2000e-5(k). The standard of awarding
attorney’s fees to a prevailing party under § 1988 is equally applicable to awards under Title VII.
Virostek v. Liberty Twp. Police Dep’t/Tr., 14 F. App’x 493, 509 (6th Cir. 2001) (citations
omitted). A party is considered a “prevailing party” if he “succeed[s] on any significant issue in
litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) (quotation marks and
citation omitted). Because the purpose of the civil rights fee shifting provisions is to ensure
“‘effective access to the judicial process’ for persons with civil rights grievances[,] . . . a
prevailing party ‘should ordinarily recover an attorney’s fee unless special circumstances would
render such an award unjust.’” Id. at 429 (quotation marks and citations omitted); see also
Perdue, 559 U.S. at 550 (an award of fees serves to ensure “that federal rights are adequately
enforced”).
“The most useful starting point for determining the amount of a reasonable fee is the
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number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Hensley, 461 U.S. at 433; see Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 2005). This
product has come to be known as the “lodestar.” Garner v. Cuyahoga Cnty. Juvenile Ct., 554
F.3d 624, 642 (6th Cir. 2009). After calculating the lodestar, the Court may modify the amount
by applying a multiplier or fee enhancement in a case of “exceptional success.” Barnes v. City of
Cincinnati, 401 F.3d 729, 745 (6th Cir. 2005) (quoting Blum v. Stenson, 465 U.S. 886, 895, 104
S. Ct. 1541, 79 L. Ed. 2d 891 (1984)). “The key issue is whether an adjustment is necessary to
the determination of a reasonable fee.” Id. (citing Blum, 465 U.S. at 895).
Although not exclusive, the Court may consider twelve factors in determining whether an
adjustment is necessary:
(1) the time and labor involved; (2) the novelty and difficult[y] of the questions;
(3) the skill requisite to perform the legal service properly; (4) the preclusion of
other 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 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.
Perry v. Autozone Stores, Inc., 624 F. App’x 370, 372 & n.1 (6th Cir. 2015) (quoting Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).
At all times, the Court’s focus is on the reasonableness of the fees requested, and the
party seeking fees bears the burden of proving that they are reasonable. Reed v. Rhodes, 179 F.3d
453, 471-72 (6th Cir. 1999) (citations omitted). The fee applicant “should submit evidence
supporting the hours worked and rates claimed. Where the documentation of hours is inadequate,
the district court may reduce the award accordingly.” Hensley, 461 U.S. at 433; see Gonter v.
Hunt Valve Co., Inc., 510 F.3d 610, 617 (6th Cir. 2007) (“To justify any award of attorneys’
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fees, the party seeking compensation bears the burden of documenting its work.”) (citations
omitted); Granzeier v. Middleton, 173 F.3d 568, 577 (6th Cir. 1999) (The party seeking
attorney’s fees “bears the burden of proof on the number of hours expended and the rates
claimed.”) (citation omitted).
In preparing a fee petition, counsel is expected to exercise billing judgment by excluding
from his petition “hours that were not ‘reasonably expended.’” Hensley, 461 U.S. at 434 (“Cases
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 . . . ”.”) “Hours that are not properly billed to
one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Reed
v. Cracker Barrel Old Country Store, Inc., 171 F. Supp. 2d 751, 758 (M.D. Tenn. 2001) (internal
quotation marks and citation omitted, emphasis in original).
Plaintiffs, therefore, must come forward with documentation that substantiates the
reasonableness of the hourly rate charged and the hours incurred. See McCarthy v. Ameritech
Publ’g, Inc., 289 F.R.D. 258, 263 (N.D. Ohio 2013) (citation omitted), aff’d in part and rev’d
and remanded on other grounds, 763 F.3d 488 (6th Cir. 2014). The documentation submitted
must be sufficiently detailed to enable the Court to determine whether the time actually
expended was reasonably expended. See id. (“Where the documentation is inadequate, the court
may reduce the award accordingly.”) (citations omitted).
1. Prevailing Party Status
The City does not seriously dispute that plaintiffs, with the exception of those individuals
dismissed from this action on summary judgment, qualify as prevailing parties under Title VII
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and § 1988. Plaintiffs substantially prevailed at every step of the litigation. They obtained a
judgment of liability and established their entitlement to damages, and they secured previously
contested promotions. Further, it cannot be denied that the litigation served as the impetus for the
change in the promotional process for the Akron City Fire Department. While the City attacks
both the hourly rates and the number of hours expended by plaintiffs’ counsel to achieve these
results—not to mention the route counsel took, at times, to obtain those results—there is no
question that counsel achieved a significant level of success for their clients.7
2. Reasonable Hourly Rate
“A district court has broad discretion to determine what constitutes a reasonable hourly
rate for an attorney.” Wayne v. Vill. of Sebring, 36 F.3d 517, 533 (6th Cir. 1994) (citation
omitted). A reasonable hourly rate will be sufficient to attract competent counsel, and yet will
avoid producing a windfall for lawyers. Reed, 179 F.3d at 469 (citation omitted). “A useful
guideline in determining a reasonable hourly rate is the ‘prevailing market rate[] in the relevant
community.’” Dowling v. Litton Loan Servicing LP, 320 F. App’x 442, 447 (6th Cir. 2009)
(quoting Blum, 465 U.S. at 895). The prevailing market rate is defined as “that rate which
lawyers of comparable skill and experience can reasonably expect to command[.]” Adcock-Ladd
v. Sec’y of Treasury, 227 F.3d 343, 350 (6th Cir. 2007); Geier v. Sundquist, 372 F.3d 784, 791
(6th Cir. 2004) (citation omitted); see Coulter v. State of Tenn., 805 F.2d 146, 149 (6th Cir.

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“The Supreme Court has instructed that ‘the most critical factor’ governing the reasonableness of a fee award ‘is
the degree of success obtained.’” Waldo v. Consumers Energy Co., 726 F.3d 802, 822 (6th Cir. 2013) (quoting
Hensley, 461 U.S. at 436). “In cases when ‘a plaintiff has obtained excellent results, his attorney should recover a
fully compensatory fee.’” Id. (quoting Hensley, 461 U.S. at 435). Given the level of success enjoyed by plaintiffs,
the Court finds that a fully compensatory fee is appropriate, and the Court remains mindful of the results plaintiffs’
counsel obtained as it determines a reasonable fee.
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1986) (“hourly rates for fee awards should not exceed the market rates necessary to encourage
competent lawyers to undertake the representation in question”).
In establishing a fair hourly rate, the district court may “rely on a party’s submissions,
awards in analogous cases, state bar association guidelines, and its own knowledge and
experience in handling similar fee requests.” Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436
F. App’x 496, 499 (6th Cir. 2011) (citations omitted); see Dowling, 320 F. App’x at 447
(affirming a district court’s calculation of a reasonable hourly rate based on the court’s
“knowledge of local billing practices” and counsel’s customary billing rates).
In support of their requested hourly rates, plaintiffs offered sworn affidavits from each
attorney and paralegal for whom fees are requested, setting forth that individual’s experience,
professional affiliations, previous awards, and billing rates. In conjunction with the filing of
plaintiff’s second motion for interim attorney fees (Doc. No. 615) in February 2014, these legal
professionals averred as follows:
Attorney Dennis Thompson, plaintiffs’ lead counsel, was the managing partner of
Thompson & Bishop and had been engaged in the active practice of law since
November, 1985. He was among the first group of attorneys to receive from the
Ohio Bar Association a certification as a specialist in the area of labor and
employment law in 2001. His employment practice was “national in scope,” with
an emphasis on “complex federal litigation involving firefighting, disparate
impact, race discrimination, retaliation, and hostile environment.” He had
considerable trial experience, including disparate impact cases—with substantial
judgments for his clients—and he was a member of several professional
organizations. At the time, his hourly rate was $475, which he believed was
“commensurate with the rates charged by similar employment law specialists and
trial attorneys in the market area with similar experience.” (Doc. No. 615-1
(Declaration of Dennis R. Thompson).)
Attorney Christy Bishop had been licensed to practice law since 2003 and had
become a certified specialist in labor and employment law in 2008. Prior to
becoming an attorney, she had worked for 12 years as a law clerk. She married
her law partner, Dennis Thompson, in 1988, and had worked with attorney
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Thompson since 1991. Like attorney Thompson, Bishop belonged to a number of
professional organizations. She also had experience with disparate impact
employment cases, including cases involving firefighters. Her then current billing
rate was $425 an hour, which she represented was “reasonable based on [her] past
awarded rates, experience, successes, the nature of the case, the extraordinary
length and difficulty, the amount of work involved, novel issues, and [her] own
expertise in both this and firefighting.” (Doc. No. 615-2 (Declaration of Christy
B. Bishop).)
Attorney Bruce Elfvin was the managing party of the law firm of Elfvin & Besser
Co., LPA (now Elfvin, Besser, Royer & Torch)8, and has been an actively
practicing attorney since November 1972. His practice has been “predominately
focused on representing individuals in employment-related matters.” Like
attorney Thompson, he was among the first group of attorneys to be certified as a
specialist in employment and labor law, and he is a member of a number of
professional organizations. He is also admitted to practice before a number of
courts. He has handled over 1,500 employment discrimination claims in his
career, including disparate impact cases, and has testified as an expert on statutory
awards of attorney fees. His then current billing rate was $500 an hour. The
current billing rates of other employees of his law firm include: attorney Barbara
Besser ($450), attorney Stuart Torch ($275), and attorney Katie Sanz ($165).
Paralegals and law clerks of the firm billed at the hourly rate of $100. Attorney
Elfvin opined that “all of the attorney and support staff hourly rates [of his firm]
are consistent with or lower than the rates charged in Northeast Ohio for this type
of work by individuals of comparable skill, knowledge and experience.” (Doc.
No. 615-4 (Declaration of Bruce B. Elfvin).)
Attorney Barbara Besser is a partner in the law firm of Elfvin & Besser, and has
been actively practicing law for more than 40 years in the area of employment
law. She also has a labor and employment law certification and is admitted to
practice in a number of courts. (Doc. No. 615-5 (Declaration of Barbara Kaye
Besser).)
Attorney Stuart Torch graduated from law school in 2005, and is currently a
partner of Elfvin & Besser. His practice has focused on “representing employees
in employment-related matters, defendant individuals and companies being
charged with or sued for employment-related discrimination.” (Doc. No. 615-6
(Declaration of Stuart Torch).)
Tammy Byers is a paralegal who, at the time of the petition, was employed by the
firm of Thompson & Bishop. She received her bachelors degree in Paralegal
Studies in 2008, and was responsible for preparing trial exhibits and notebooks,
8

For ease of reference, the Court will continue to refer to attorney Elfvin’s firm as “Elfvin & Besser.”
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scheduling depositions, and other tasks related to the present litigation. (Doc. No.
615-3 (Declaration of Tammy Byers).)
In support of the requested hourly rates, plaintiffs also offered the affidavits of numerous
attorneys and experts who each opined that counsel’s 2014 billing rates, which are the rates
plaintiffs are seeking in their fee petitions for all work performed in this case, are reasonable and
appropriate for the Northeast Ohio legal market. (Doc. No. 615-7 (Declaration of John C.
Brittain) ¶ 14; Doc. No. 615-8 (Declaration of Amy S. Glesius) ¶ 11; Doc. No. 615-9
(Declaration of Edward A. Icove) ¶ 7; Doc. No. 615-10 (Declaration of Neil E. Klingshirn) ¶ 18;
Doc. No. 615-11 (Declaration of Patrick J. Perotti) ¶ 7; Doc. No. 615-12 (Declaration of James
B. Rosenthal) ¶ 6.) Attorneys Thompson and Bishop also cited to a 2013 decision, wherein a
district court located in Houston, Texas approved an hourly rate of $425 for attorney Thompson
and $400 for attorney Bishop. (Doc. No. 615-1 ¶ 29 (citing Bazile v. City of Houston, 2013 U.S.
Dist. LEXIS 153381 (S.D. Tx. Oct. 25, 2013); Doc. No. 615-2 ¶ 36 (same).)
At the outset, the Court observes that, while plaintiffs are seeking fees for services
rendered over a number of years beginning in 2005, they are seeking compensation at their
current hourly rates (or at least at the rates they charged in 2014). The Court may, within its
discretion, approve applications based on current—rather than historical—rates where the
litigation has been ongoing for a number of years to reflect the delay in payment of fees. See
generally Barnes, 401 F.3d at 745 (discussing practice of using current rates) (citing Missouri v.
Jenkins, 491 U.S. 274, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989)); see also Perdue, 559 U.S. at
556 (compensation for delay in receiving fees in civil rights litigation “is generally made ‘either
by basing the award on current rates or by adjusting the fee based on historical rates to reflect its
present value’”) (quoting Missouri, 491 U.S. at 282).
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The Sixth Circuit has made clear, however, that a district court is not required to apply
current rates to all work performed over a period of time. Gonter, 510 F.3d at 617 (“But Barnes
does not stand for the proposition that this Court mandates—or even prefers—application of
current rates; rather, as the Barnes Court itself stated, the application of current rates was ‘within
the contemplation of the attorneys fees statute.’”) (quoting Barnes, 401 F.3d at 745) (further
citation omitted). Instead, the option to use current billing rates rests within the discretion of the
district court, and all such discretion is constrained only by a duty to explain “how the decision
comports with the ultimate goals of awarding reasonable fees.” Id.
Awarding fees at counsel’s current billing rates for all of the work performed in this case
would be inappropriate, inasmuch as plaintiffs received two substantial interim fee awards of
$250,000 in 2011 and 2014. While these payments did not represent the entire amount of fees
incurred to date, they had the effect of alleviating some of the burden associated with the
substantial delay in receiving full compensation for the legal work performed in this case. 9 Thus,
while the Court finds that plaintiffs are entitled to some adjustment in the hourly rate for the
delay in payment, full compensation at current rates would result in an impermissible windfall to
plaintiffs’ attorneys.10 Accordingly, the Court shall fix two billing rates for each attorney. The
higher rate, which shall represent a reasonable “current” rate for each attorney, shall be applied
9

Indeed, in their first request for interim fees, plaintiffs represented that a “fair award of interim attorney fees [was]
required to ameliorate the burden this continued litigation places on the small firms representing plaintiffs.” (Doc.
No. 361 at 8456.)

10

This is especially true given that plaintiffs’ counsel seem to have substantially increased their hourly rates over the
last several years. In their 2011 fee petition, plaintiffs sought an hourly rate of $425 for attorney Elfvin, $400 for
attorney Thompson, and $350 for attorney Bishop. (Doc. No. 361-3 (Declaration of Bruce B. Elfvin) ¶ 8; see also
Doc. No. 732 at 18424; Doc. No. 733 at 18606-07.) An increase of $75 per hour over a two year period appears to
be well in excess of the normal rate of increase in the relevant market. (See Doc. No. 635-1 (Affidavit of James D.
Kurek) ¶ 16); see also Ohio State Bar Association, Cautious Optimism: The Economics of Law Practice 2013,
https://www.ohiobar.org/NewsAndPublications/OhioLawyer/Pages (last visited Mar. 10, 2016) (providing that the
reported median hourly billing rate for attorneys only rose from $200 in 2010 to $207 in 2013).
16

to all fees earned between 2011 and the present. A lower rate, adjusted to reflect a reasonable
rate for 2010, shall be applied to all fees earned from 2005 to December 31, 2010. By applying
the “current” (or highest) rate for each time period, counsel will be adequately compensated for
the delay in receiving full compensation, while the use of two rates will account for the fact that
plaintiffs did receive interim fee awards.
Defendant also challenges the reasonableness of the hourly rates sought by plaintiffs
upon the basis that plaintiffs “have failed to justify their proposed rates as reasonable in the
relevant community – i.e., the community in which the case was tried, Akron, Ohio.” (Doc. No.
635 at 17217.) It complains that plaintiffs’ experts offered their opinions on legal rates for the
general area of “Northeast Ohio,” or the “Northern District of Ohio,” or “Cleveland,” as opposed
to Akron, Ohio.11 Because this Court sits in Akron, defendant insists that the inclusion of rates
charged in greater northeastern Ohio, including Cleveland, will result in artificially inflated rates.
In support of its position, the City offers the affidavit of attorney James Kurek, who has been
practicing employment discrimination law in the Akron area since 1981, and bills at the more
modest hourly rate of $330. (Doc. No. 635-1 (Affidavit of James D. Kurek) ¶12.) Attorney
Kurek opines that the rates charged by plaintiffs’ counsel “are well in excess of prevailing
market rates for employment litigation representation in the local market,” which he appears to
limit to Akron, Ohio. (Id. ¶¶ 9, 14, emphasis in original.)
There is further support for the City’s position. The Ohio State Bar Association’s 2013
survey shows that while the median hourly rate for attorneys in downtown Cleveland was $275,
11

Attorney Brittain, an attorney licensed to practice in Connecticut, Mississippi, and California, did not specify the
legal market in which he was opining, merely indicating that the rates charged by attorneys Thompson and Bishop
were “reasonable for [the present] matter.” (Doc. No. 615-7 ¶¶ 4, 14.)
17

the median for attorneys in Akron was only $200. See Ohio State Bar Ass’n, The Economics of
Law Practice in Ohio in 2013: A Desktop Reference (“OSBA 2013 Survey”), at 39,
https://www.ohiobar.org/NewsAndPublications/Documents/OSBA_EconOfLawPracticeOhio
(last visited Mar. 10, 2016) This represents a 38% higher median rate for Cleveland fees. Even
plaintiffs’ own evidence would support the idea that hourly attorney rates in Akron lag behind
the rates charged by attorneys in Cleveland. Attorney Neil Klingshirn, plaintiffs’ only proffered
attorney’s fee expert from Akron, charges $300 per hour for “routine employment law matters”
and $350 per hour for “fee award civil rights litigation[.]” (Doc. No. 615-1 ¶ 12.) Attorney
Klingshirn, a board certified labor and employment specialist who has served as lead counsel in
over 200 civil rights and employment cases, has been practicing law in the area of labor and
employment law for roughly the same number of years as plaintiffs’ lead counsel, the late Dennis
Thompson. (Id. ¶¶ 1, 3.) His declaration demonstrates that there are attorneys available in the
relevant market to take on such litigation at a much lower hourly rate.12
Of course, the Court is not constrained to only consider rates charged in the immediate
local market. “‘District courts are free to look to a national market, an area of specialization
market or any other market they believe appropriate to fairly compensate particular attorneys in
individual cases.’” Smith v. Serv. Master Corp., 592 F. App’x 363, 369 (6th Cir. 2014) (quoting
Louisville Black Police Officers Org. v. City of Louisville, 700 F.2d 268, 278 (6th Cir. 1983)).
Given the specialized nature of the litigation, the Court is not convinced that it would be
appropriate to exclude from its consideration evidence of rates from the surrounding areas, such
12

In fact, at the hearing on October 6, 2014, attorney Thompson testified that, during pendency of this case, he had
referred matters to attorney Klingshirn. (Doc. No. 733 at 18585.)

18

as Cleveland, and even awards made nationally for similar litigation (especially where those
awards were made to the attorneys participating in this lawsuit). Still, the Court finds that the
hourly rates charged by the Akron attorney experts, Klingshirn and Kurek, are more in line with
the Court’s own experience of hourly rates charged by civil rights attorneys appearing in this
Court and should serve as the baseline for the Court’s calculations.
Therefore, the Court begins with attorney Kingshirn’s hourly rate in February 2014 for
“routine employment law matters” of $300. (Doc. No. 615-10 ¶ 12.) Plaintiffs’ lead counsel,
attorney Thompson, had roughly the same level of experience in the general area of employment
law and civil rights litigation. Nonetheless, the Court also acknowledges that attorney Thompson
had considerable experience with the less common, and arguably more complicated and more
labor intensive, disparate impact cases. Given this level of expertise, and in recognition of the
level of success achieved by counsel, the Court finds that $400 represents a reasonable hourly
rate. Attorney Elfvin has comparable expertise as attorney Thompson, but substantially more
experience. The Court, therefore, sets his hourly rate at $425. Attorney Besser has more
experience than Thompson but does not (at least from the record) appear to have the same
familiarity with disparate impact litigation. Her hourly rate is set at $400. Attorney Bishop had
substantially less experience than attorneys Elfvin, Besser, and Thompson, but also had
demonstrated an expertise in the area of disparate impact claims involving firefighters and other
public employees. Her hourly rate is set at $325. Attorney Torch has less experience than

19

attorney Bishop, and his hourly rate is set at $225.13 In each instance, the Court has awarded a
premium rate to reflect the success achieved by these attorneys, see Hensley, 461 U.S. at 434,
and the Court shall apply these hourly rates to all work reasonably performed from 2011 to the
present.
Next, the Court shall reduce each rate to a reasonable hourly rate for the billing year
2010. This reduced rate (which for the three most experienced attorneys, Elfvin, Besser, and
Thompson, is still higher than the 2014 rates charged by Klingshirn and Kurek in 2014) shall be
applied to all work performed between 2005 and December 31, 2010.
Accordingly, the hourly fees that will apply are as follows:
Attorney
Dennis R. Thompson
Bruce B. Elfvin
Barbara Kay Besser
Christy B. Bishop
Christina M. Royer
Stuart Torch
Sara Tackett
Kathleen J. Sanz
Law Clerks
Paralegals

2005-2010
$350
$375
$350
$275
N/A
$200
N/A
N/A
$80
$90

13

2011-2016
$400
$425
$400
$325
$260
$225
$145
$145
$90
$100

Based upon the submissions of the parties, the Court also finds that a reasonable hourly rate for attorneys Sara
Tacket and Kathleen Sanz, both of whom had only been practicing law for two years at the time of the filing of the
second supplemental application, is $145. (Doc. No. 615-4 at 16773 n.1; Doc. No. 806-1 (Supplemental Declaration
of Bruce B. Elfvin) ¶ 8.) A reasonable hourly rate for Christina Royer, who has been practicing law in the general
area of labor and employment for approximately 15 years, is $260. (Id.; see Doc. No. 615-13.) Further, the Court
finds that a reasonable rate for work performed by law clerks is $90 and for paralegals it is $100, and this rate shall
be used for fees generated from 2011 to the present, with an appropriate reduction for services rendered between
2005 and 2010. The Court does not set hourly rates for the attorneys from Marshall & Morrow because, as discussed
infra., the Court does not award fees for plaintiffs’ interlocutory appeal from the district court’s 2012 sanctions
order.

20

3. Reasonable Number of Hours
The City also challenges the number of hours expended by plaintiffs’ counsel in this
litigation. Its objections to the various fee petitions can be grouped into the following categories:
(a) excessive or duplicative effort; (b) inadequate documentation and block billing; (c) time
related solely to non-prevailing plaintiffs; (d) time spent litigating the state action; (e)
clerical/administrative work; (f) fees for damages and sanctions; and (g) post-February 1, 2014
fees for the law firm of Thompson & Bishop. The Court shall address each category in turn. The
Court has reviewed counsel’s billing records, and while it does not agree that every category
identified by the City represents improper billing, many of the categories raise serious cause for
concern. Ultimately, as will be demonstrated below, the Court is forced to conclude that
counsel’s poor recordkeeping—when coupled with suspect entries—inspires little confidence
that all of the hours claimed were reasonably expended.
a)

Excessive or duplicable effort

Defendant complains that plaintiffs’ counsel’s supporting billing statements are replete
with instances of overstaffing, redundancy, and excessiveness. The City insists that each of
plaintiffs’ fee petitions seeks compensation for instances where multiple attorneys unnecessarily
performed the same task, or sat in on conferences with the Court or court monitor when one
attorney’s presence would have sufficed, or spent inordinate amounts of time on simple tasks.
Over the three petitions, the City challenges 217 entries totaling more than 1,150 hours. (See
Doc. No. 635-2; Doc. No. 680-1; Doc. No. 809-1.)
Hours that are “excessive, redundant, or otherwise unnecessary” are not reasonably
expended. Hensley, 461 U.S. at 430; see Hisel v. City of Clarksville, No. 3:04-0924, 2007 WL
21

2822031, at *4-6 (M.D. Tenn. Sept. 26, 2007) (reducing attorney’s fee award for excessive
billing for simplistic tasks where the issues in the case were “hardly new or novel” to counsel).
District courts, therefore, have discretion to cut hours for duplication of effort or padding of an
attorney’s hours. See Northcross v. Bd. of Educ. of Memphis City Sch., 611 F.2d 624, 636-37 (6th
Cir. 1979). Additionally, the Sixth Circuit has observed that while “multiple representation can
be productive[,]” there is also “the danger of duplication, a waste of resources which is difficult
to measure.” Coulter, 805 F.2d at 152.
The Court has reviewed the billing statements, including those entries specifically
contested by the City, and is troubled by the fact that excessive amounts of time were repeatedly
expended on certain tasks by both Thompson & Bishop and Elfvin & Besser. For example,
billing records demonstrate that two attorneys devoted 133.85 hours to reviewing and drafting a
response to the City’s Rule 59 motion, two attorneys spent 9.10 hours researching and drafting a
notice of supplemental authority, and 26.25 hours was spent by attorneys Thompson and Bishop
collectively to draft an opposition to a motion to alter or amend.14 (Doc. No. 635-2 at 17249-51;
see Doc. No. 615-14.) Given the level of experience of the attorneys representing plaintiffs, these
time expenditures are excessive.
Plaintiffs’ counsel’s billing statements also contain evidence of redundancy. There are
numerous instances of billing for multiple reviews of the same docket entries, including short
notices and uncomplicated documents. For example, on July 22, 2013, attorney Torch billed .30
hours to review the Sixth Circuit’s opinion on the 2011 appeal, while Thompson and Bishop
14

On June 21, 2011, attorneys Thompson and Bishop each billed 3.25 hours for discussing the reset of the trial date
and the subject of non-economic damages. (Doc. No. 668-2 at 17484.) There were other, repeated instances where
multiple attorneys billed time to review simple notices. These are, of course, only examples and do not constitute an
exhaustive list.
22

collectively devoted 8.25 hours to the review of the same opinion. (Doc. No. 668-2 at 17498;
Doc. No. 668-6 at 17667.) Likewise, on October 1, 2014, attorney Besser billed .30 hours to
review the fee bill the Court ordered Akron to submit, while attorneys Bishop and Thompson
billed a total of 4 hours for the task. (Doc. No. 806-2 at 19177; Doc. 806-8 at 19235.)
Additionally, while the Court recognizes that time spent by counsel conferring “does not
automatically constitute duplication of efforts[,]” Sigley v. Kuhn, 205 F.3d 1341, at *8 (6th Cir.
2000) (unpublished table decision), the billing sheets reflect that counsel often double and triple
billed for both inter-office and intra-office communications.15
Indeed, the Court questions the need for the involvement of two law firms in this
litigation, given the fact that the firm of Thompson & Bishop regularly litigated civil rights
disparate impact cases both locally and across the country, and its attorneys had significant trial
experience litigating these types of cases. (Doc. No. 635-1 ¶ 17.) At the fee hearing, one of
plaintiffs’ fees experts, attorney Klingshirn, underscored the fact that there are only a handful of
firms in the country that are able and willing to take on this type of litigation, and that Thompson
& Bishop was the only local firm capable of doing so. (Doc. No. 732 at 18464.) Such a statement
begs the question of why it was necessary to bring in a second law firm, especially one with a
senior partner billing at an hourly rate that exceeded the rates charged by the experts in the
field—Thompson & Bishop.
As previously noted, attorney Thompson attempted to answer that question at the fees
hearing when he testified that he sought the involvement of attorney Elfvin and his law firm in
15

The Court has less confidence in the evidence supporting this sub-category as, discussed below, counsel often
used vague references such as “conference,” without any other illuminating details, to describe communications
among attorneys. However, given the dates of many of the “conferences,” it appears that the same conferences were
billed by multiple attorneys.
23

2008 because attorney Bishop was busy tending to litigation in Florida and several family
matters. Yet, attorney Bishop’s billing records show that she continued to bill a considerable
number of hours to this litigation. In fact, billing records from Thompson & Bishop demonstrate
that attorney Bishop appeared in all but 2 days of the 12-day trial in 2008, and billed 7.5 hours or
more for all but two of those 10 days.16 (Doc. No. 615-14.) The record does not, however, reflect
that attorney Bishop played an active role during the trial.17 By the end, the case was staffed by
eight lawyers, two paralegals, and two law clerks. The evidence of overstaffing in this case is
evident, and the Court is left with a firm conviction that a reduction in the number of hours of
attorney time is necessary to account for these excesses.
b)

Inadequate documentation and block billing

The task of trimming the fat to exclude excessive or redundant hours is hindered by the
fact that the billing records suffer from a troubling lack of detail. The City is correct when it
observes that vague entries denoting simply “E-mail to clients,” “meeting with clients,”
“conference call and email,” and “Phone call with DT,” without any indication of the subject
matter of these events, “deprive[] this Court of the detail necessary to determine with a high
degree of certainty that the time spent on these tasks was actually and reasonably expended in

16

Neither Bishop nor Thompson billed time for December 18, 2008—though their paralegal, Tammy Byers, billed
7.50 hours for trial attendance that day. (Doc. No. 615-14 at 16834.) At the fees hearing, attorney Thompson
testified that he and attorney Bishop were unable to attend trial on one day (presumably December 18, 2008, the
only day both attorneys were absent) due to the death of Thompson’s brother. (Doc. No. 733 at 18582; Doc. No. 689
at 17868.)

17

At the fees hearing, attorney Thompson explained that attorney Bishop did most of the writing and research for
the firm, while he generally focused on drafting complaints and engaging in discovery. (Id. at 18555-56.) And it is
true that it appears from the Thompson & Bishop billing records that Bishop was responsible for the bulk of the
legal research, including the research that was needed during trial. However, plaintiffs have not adequately
demonstrated why it was necessary for attorney Bishop to sit through the majority trial in order to research issues
that may have come up in trial. While it might be desirable to have an attorney tasked with such a responsibility to
hear the testimony live, it is certainly not necessary or reasonable.
24

pursing this case.” (Doc. No. 635 at 17226.) In total, the City challenges 635 such entries
accounting for more than 1,073 hours. (Doc. No. 635-2; Doc. No. 680-1; Doc. No. 809-1.)
While the Court can determine at least the general nature of many of the tasks or
activities, too many of the entries relating to meetings and correspondence with clients and other
counsel—without any indication as to the subject of the meetings or correspondences (or
sometimes even the participants involved) stand as an impediment to meaningful review. There
are also numerous entries, scattered throughout the billing sheets, claiming substantial amounts
of time devoted to “research.” Obviously the Court cannot begin to determine the reasonableness
of the time allotted to these ill-defined activities.
An example from the fees hearing underscores the difficulty that arises from vague
entries. On April 8, 2006, Thompson billed 1.25 hours for a variety of items including
“Research.” When asked what the research was for, he acknowledged first that the subject of the
research was not included in the entry, but added that “It was probably for the TRO and the
hearing is probably what it was. In Ohio would be – that would be the concept, yes. That’s my
guess. We were getting ready for a hearing, so that’s probably what it is.” (Doc. No. 733 at
18640-1.) At the risk of stating the obvious, if counsel cannot determine from the entry the
subject of the task billed, there is no way the Court can determine it. In fairness to counsel, the
word “TRO” is listed in the string of four activities identified for this time entry, and it may be
that the research was in connection with the TRO hearing (as opposed to the other two listed
activities). However, given the fact that other entries purport to document time spent on research

25

for the TRO, the Court cannot determine if the time was reasonably or even actually spent on
this endeavor.18
This entry highlights another difficulty the Court has encountered in reviewing counsel’s
time entries: the practice of lumping together a series of activities under one general time entry.
In their briefs and during the fees hearing, plaintiffs have strenuously defended their counsel’s
practice of “block billing,” and it is true that the Sixth Circuit has not forbidden the practice.
However, attorneys who engage in block billing do so at their own risk. While block billing can
be sufficient “so long as the description of the work performed is adequate,” Smith, 592 F. App’x
at 371, “[w]here the documentation is inadequate, the district court may reduce the award
accordingly.” Id. (citation omitted); see Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 553
(6th Cir. 2008) (citing block billing as one possible form of inadequate documentation). The “use
of block-billing introduces a level of unreliability in time entries and thus less confidence in the
documentation[.]” Leviton Mfg. Co. v. Shanghai Meihao Elec., Inc., 613 F. Supp. 2d 670, 736
(D. Md. 2009), vacated and remanded on other grounds, 606 F.3d 1353 (Fed. Cir. 2010). Where
block billing prevents the Court from assessing the reasonableness of the time expended, a
reduction in the number of hours claimed is warranted. See, e.g., Farfaras v. Citizens Bank &
Trust of Chicago, 433 F.3d 558, 569 (7th Cir. 2006).
Here, many of the entries from both law firms list a string of activities using only the
most general of descriptors—like “telephone call, emails, revise and edit letter”—leaving the

18

The billing increments utilized by counsel and their staff have also led to confusion. For example, while attorney
Thompson testified that a billing increment of .25 represented 15 minutes, Thompson’s paralegal, Byers, testified
that she believed that the same increment represented 20-25 minutes. (Doc. No. 772 at 18513; Doc. No. 773 at
18620-21.) Attorney Thompson also offered a variety of “guestimates” as to how much time “.35” represented in an
entry, suggesting 20, 25, or 30 minutes, or “one-third of an hour.” (Doc. No. 733 at 18645.)
26

Court to guess as to the nature of each task. The Court cannot and will not engage in such
conjecture. The City suggests that the insufficiency and inconsistency of the billing records can
be explained by the fact that they were either not contemporaneously kept or the result of fraud.
By way of example, it cites an entry wherein Thompson & Bishop billed a combined total of 15
hours for time spent attending trial on a date that no trial took place. (Doc. No. 635 at 17225.)
The City complains that “[p]laintiffs offer no explanation for why, if they were keeping
contemporaneous records, their attorneys did not record time in a consistent manner, or why they
chose to bill 15 hours for a trial day that never occurred.” (Id. at 17214.) Both firms have offered
evidence that their attorneys record time in a contemporaneous manner. (Doc. No. 615-1 ¶ 615-4
¶ 8.) As to the specific entry highlighted by the City, Attorney Thompson testified that the entry
was the result of a typographical error in that it should have provided for 15 hours spent on trial
preparation not trial attendance. (Doc. No. 733 at 18583.)
Giving counsel the benefit of every doubt, and assuming that the billing records do not
demonstrate an intention to deceive, they still reflect a severe lack of care. This case was litigated
by seasoned attorneys who were well aware that, should their clients prevail on the merits, they
would need to justify the number of hours they expended on this litigation. (See, e.g., Doc. No.
732 at 18439.) Instead of supporting their fee requests with clear and succinct records that
properly documented the hours expended, counsel have proffered time records that can only be
described as sloppy. Under these circumstances, the Court finds that a deduction is necessary to
account for the deficiencies.

27

c)

Time related to non-prevailing plaintiffs

The City has also identified several categories of hours that should not have been
included in the fee petitions. For example, the City takes issue with time entries for work
performed on behalf of plaintiffs Brian Santee, William Yoxthimer, Robert Alestock, Brian
Weaver, Brian Jaggers, and Dean Plevrakis. These individuals were only identified in Count XI
of the FAC, the federal equal protection claim. (See Doc. No. 311 at 16404 n.7.) When the Court
granted, in part, the City’s motion for reconsideration of its ruling on summary judgment, it
dismissed Count XI. (Doc. No. 176 at 4196.) The City, therefore, challenges 9 entries reflecting
work perform on behalf of these dismissed plaintiffs.19 (Doc. No. 635-2.)
Because these individuals did not “‘succeed on any significant issue in litigation which
achieve[ed] some of the benefits the party sought,’” they cannot be considered “prevailing
parties” and are not entitled to fees.20 See Berger v. City of Mayfield Hts., 265 F.3d 399, 406 (6th
Cir. 2007) (quoting Hensley, 461 U.S. at 424); cf. McQueary v. Conway, 614 F.3d 591, 603 (6th
Cir. 2010) (describing “prevailing parties” as “winning parties,” and finding that a “plaintiff
crosses the threshold to prevailing party status by succeeding on a single claim”) (citation
omitted). Because these individuals cannot claim “prevailing party’ status, any fees attributed

19

In addition to these entries, the Court’s review of the billing statements revealed a tenth entry seeking time on
behalf of these individuals. On October 11, 2007, attorney Thompson billed .35 hours for the following services:
“Draft transmittal of EEOC Charge re: Plevrakas.” (Doc. No. 615-14 at 16812.)
20

It is doubtful whether these plaintiffs could be considered prevailing parties under the “catalyst” theory, where
their allegations of equal protection violations would not have caused any change on the part of the City.
Nonetheless, plaintiffs did not advance any argument as to why these individuals are entitled to attorney’s fees.
28

exclusively to the representation of them would be properly excluded.21
d)

Time litigating the state case

The City also insists that plaintiffs cannot recover fees for time spent litigating the
lawsuit filed in 2006 in the Summit County Court of Common Pleas and voluntarily dismissed a
year later. Noting that plaintiffs would not have been able to recover fees under Ohio law for this
litigation, defendant argues that plaintiffs should not be permitted to recover in federal court
under § 1988. (Doc. No. 635 at 17222.) Defendant challenges 68 entries reflecting 89.75 hours
billed by Thompson & Bishop for time spent in state Court. (Doc. No. 635-2.)
In Webb v. Bd. of Educ. of Dyer Cnty., Tenn., 471 U.S. 234, 105 S. Ct. 1923, 85 L. Ed.
233 (1985), the Supreme Court ruled that a teacher who prevailed in a federal civil rights action,
brought under 42 U.S.C. § 1983, challenging his termination was not entitled to recover fees
under § 1988 for time spent pursuing optional administrative remedies before the local school
board. The Court based its ruling on two findings. First, it determined that these administrative
proceedings were not “proceedings to enforce” § 1983 because they were not required as a
perquisite to seeking relief under the federal statute. Second, the Court found that time spent in
these proceedings was not “reasonably expended” on the litigation, as that term is understood
under Hensley, rejecting the plaintiff’s argument that the time spent in the administrative hearing
amounted to discovery, research, or investigation for the civil rights litigation. Id. at 242. While
21

At least five of the entries highlighted by the City did not involve time exclusively limited to the representation of
these former plaintiffs. For example, attorney Thompson’s April 3, 2008 entry claims 8 billing hours and reads:
“Depositions – Derrenberger, Robson, Hull, Santee, Schueller.” (Doc. No. 615-14 at 16818.) Two of these
individuals—Derrenberger and Robson—were not dismissed from this action, and the Court has determined, from
looking at their filed deposition transcripts, that the time spent attending their depositions (approximately one hour)
is compensable. Of course, the Court should not have to undertake its own investigation into the record to make
these determinations and this entry is a further example of the dangers of block billing.

29

the Court noted that prevailing civil rights plaintiffs are entitled to recover fees for some prefiling activities, the Court also noted that the plaintiff “did not suggest that any discrete portion
of the work product from the administrative proceedings was work that was both useful and of a
type ordinarily necessary to advance the civil rights litigation[.]” Id. at 243.
Here, plaintiffs argue that:
Thompson & Bishop reasonably billed and used billing judgment in the Summit
County aspect of this case. Plaintiffs had sought a temporary restraining order in
state court in order to receive the promotional examination documents. Thompson
& Bishop also suggested that the parties enter into a protective order. This work
was part of the core of the facts of this case and therefore, compensable. At a
minimum, at least two of Akron’s trial witnesses in December 2008—Stacey
Doty and Ruth Miller Salmon—testified during the Summit County proceeding.
The prior testimony obtained during the Summit County case was utilized by
Plaintiffs during the December 2008 trial to further their case, and ultimately
succeed in obtaining favorable verdicts.
(Doc. No. 689 at 17878.)
The Court finds that, even if some of the time spent pursuing the state litigation could be
considered “useful and of a type ordinarily necessary to advance the civil rights litigation,” the
focus of the state court action was the prosecution of an unsuccessful TRO and the pursuit of
purely state law claims. At a minimum, defendant would be entitled to a reduction in the number
of hours billed to the state court action that did not advance their constitutional claims and,
without more detailed descriptors for the work performed in state court, a line-by-line review is
not possible.
e)

Clerical/administrative work

The City also challenges 218.35 hours claimed for work that it believes was noncompensable because it related to “clerical and administrative tasks” including drafting emails
about conference call-in numbers, scheduling depositions, copying and preparing exhibit books,
30

creating spreadsheets, and drafting transmittal letters. (Doc. No. 635-2; Doc. No. 680-1; Doc.
No. 809-1.) Most of the challenged entries were recorded by Tammy Byers, a paralegal with
Thompson & Bishop, though some work was performed by attorneys.
Fees for paralegal services are recoverable, as the term “attorney fees” embraces fees of
paralegals as well as attorneys. Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 580, 128 S. Ct.
2007, 170 L. Ed. 2d 960 (2008). Activities such as filing service requests, and filing return-ofservice forms are clerical tasks that may be considered sufficiently “legal work” to permit
compensation, although any compensation would be at a lesser rate. Rodriguez v. Astrue, No.
3:11CV398, 2012 WL 2905928, at *3 (N.D. Ohio July 16, 2012) (quotation marks and citation
omitted). Still, “[p]urely clerical or secretarial tasks, that is, non-legal work, should not be
billed—even at a paralegal rate—regardless of who performs the work.” Bernhart v. Comm’r of
Soc. Sec., No. 5:12CV2367, 2013 WL 3822141, at *2 (N.D. Ohio July 23, 2013) (quoting
Rodriguez, 2012 WL 2905928).
The Court has reviewed the contested entries and finds that the City’s objections are
largely without merit. While some of the cited routine work performed by counsel should have
been performed by a paralegal—especially numerous entries from attorney Elfvin, the highest
billing attorney on the case (and thus an adjustment for the attorneys performing such work is in
order)—the Court notes that the vast majority of the challenged entries were performed by
paralegals. Of those entries, most appear to have involved work properly performed by a
paralegal. See Cmty. for Equity v. Mich. High Sch. Athletic Ass’n, 1:98-CV-479, 2008 WL
906031, at *13 (W.D. Mich. Mar. 31, 2008) (compiling witness lists and trial notebooks, and
scheduling depositions, treated as paralegal work). Even the case authority relied upon by the
31

City suggests that most of the entries could legitimately be considered “legal work,” and, thus,
properly billed, though perhaps at a reduced rate.22 See Bernhart, 2013 WL 3822141, at *3
(filing the complaint, faxing and mailing information to an agency, and calling the agency
regarding a stipulation all treated as properly compensable as paralegal work).
f)

Fees related to damages and sanctions

According to the City, plaintiffs should be precluded from recovering any fees for the
time spent on damages prior to and during the trial in 2008 (or the 2011-12 retrial on damages),
due to counsel’s poor presentation that purportedly resulted in the need for a new trial. (Doc. No.
635 at 17226-27.) It also believes that fees associated with the appeal of the sanctions order
issued by the district court should be denied, given that plaintiffs’ misleading and deceptive
conduct regarding their damages calculations also added unnecessary cost and delay to these
proceedings. (Doc. No. 680 at 17746; Doc. No. 680-1; Doc. No. 809 at 19303.) Finally, the City
seeks to prevent plaintiffs from recovering fees for what it deems counsel’s own mistakes,
neglect, or failure to follow court orders.23 (Doc. No. 635 at 17224-25.)

22

A finding that these entries are compensable is especially appropriate where, like here, small firms are involved.
Courts have refused to strike billing entries for attorneys and paralegals who perform routine work if they are not
involved in large law practices because they lacked the support staff to delegate these tasks to lower level and/or
clerical staff. See Waldo v. Consumers Energy Co., No. 1:06CV768, 2012 WL 1085190, at *4 (W.D. Mich. Mar. 30,
2012) (rejecting argument that attorneys and paralegals billed for administrative or clerical tasks, noting that the
“allocation of assigned work to the legal and support staff in Plaintiff’s counsel’s law firm is entirely reasonable for
a firm consisting of seven attorneys”); Cmty. for Equity, 2008 WL 906031, at *13 (citing Roberts v. Natl’l Bank of
Detroit, 556 F. Supp. 724, 728 n.1 (E.D. Mich. 1983) (similar)).

23

The City challenges time it views as time spent correcting attorney “mistakes” resulting from failing to comply
with court orders. Defendant points out that plaintiffs billed 51.60 hours on amending their proposed findings of fact
and conclusions of law. (Doc. No. 635 at 17224-25.) Plaintiffs maintain that counsel was not correcting a mistake,
“[i]nstead, the time was spent locating and adding citations from the trial record to the findings, as directed by the
Court after the first proposed findings were submitted.” (Doc. No. 689 at 17873.) While the Court finds that the
amount of time spent on this task was excessive, a properly reduced amount for this task is recoverable.

32

The Court begins with fees associated with damages. The Court has reviewed the
transcript from the 2008 trial. While counsel’s presentation of damages evidence was not a
model of clarity, the Court is aware that there can be any number of reasons why a jury may
“lose its way” during its deliberations. There are no guarantees at trial, and even the most
polished and well-organized presentations may not secure the results anticipated by counsel. The
question before the Court is whether the expenditure of counsel’s time was reasonably expended
on the litigation. See Hensley, 461 U.S. at 433. While a reduction may be appropriate to reflect
the unnecessarily lengthy route taken by counsel to achieve success for their clients, the Court
cannot say that some properly reduced amount was not reasonably expended on the litigation.
Consequently, it will not deny plaintiffs their right to attorney’s fees for their counsel’s effort to
secure damages and, thereby, more fully vindicate their clients’ civil rights.24 See also Blanchard
v. Burgeron, 489 U.S. 87, 96, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989) (Section 1988 plays an
important role in civil rights litigation).
The fees associated with the efforts to appeal the district court’s sanctions order are a
different story. Plaintiffs argue that the time spent pursuing an improvident interlocutory appeal
is properly compensable because they ultimately prevailed on the issue, “insofar as the trial court
vacated all monetary sanctions award[ed] against the attorneys largely relying on Judge Gilman’s
concurring opinion in” the decision dismissing the appeal for want of jurisdiction. (Doc. No. 806
24

It is entirely possible that the Court might have reached a different conclusion had it presided over the 2008 trial.
While the Court has endeavored to thoroughly familiarize itself with the voluminous record in this case, there is no
substitute for having presided over the proceedings. See Howe, 801 F.3d at 757 (recognizing that “fee applications
are usually best handled by the district judge ‘intimately familiar with the facts’”) (quoting Lavin v. Husted, 764
F.3d 646, 652 (6th Cir. 2014)). A jurist with a more intimate understanding of how the facts unfolded at trial may
have more fully appreciated the relationship between counsel’s presentation of damages and the jury’s verdicts, and
may have found that a substantially higher reduction is appropriate in this category of fees. That said, the Court shall
give plaintiffs the benefit of the doubt and treat this category of fees no differently than others when determining a
reasonable and necessary fee.
33

at 19159.) Plaintiffs further posit that the Sixth Circuit, relying “on the work done to date[,]”
found that the evidentiary sanction—the exclusion of certain damages evidence—was improper,
leading to a reversal of the back pay award and, ultimately, a favorable settlement. Id. Because
plaintiffs view the sanctions issues as “intertwined” with the rest of the litigation, they insist that
they cannot be viewed as “discrete claims.” (Id. (quoting Hensley, 461 U.S. at 435).)
The Court disagrees. Plaintiffs did not “prevail” on the issue of sanctions at any level.
The district court reconsidered its sanctions order, not because it determined that plaintiffs’
conduct during discovery was appropriate, but because it found it improper to impose sanctions
against only one side when both sides had engaged in reprehensive behavior. (Doc. No. 722 at
18052.) Moreover, while it is true that reconsideration of the sanctions order was motivated, in
part, by Judge Gilman’s concurring opinion, it is important to note that Judge Gilman did not
suggest that plaintiffs’ conduct should not factor into a determination of fees. Likewise, while the
Sixth Circuit reversed the evidentiary sanction, it did not absolve plaintiffs of liability for their
actions, finding that their discovery disclosure on the eve of trial was simply “more likely the
result of negligence, confusion, and lack of information [rather] than underhanded
gamesmanship.” Howe, 801 F.3d at 749. In remanding for a new trial on damages, the Sixth
Circuit made clear that both sides were responsible for the toxic atmosphere their acrimonious
behavior created. Id. at 757 (both sides engaged in “petty, scorched-earth litigation tactics”).
Because plaintiffs also participated in this misconduct, it would be unreasonable to shift the
entire burden of the cost of that misconduct to the City and the Court has not done so.
Nonetheless, the plaintiffs must assume responsibility for the inefficiency caused by their
eleventh hour reversal relative to damages calculations.
34

More to the point, the Court does not believe that the reach of the civil rights attorney’s
fees statutes are broad enough to allow a prevailing party to recover fees incurred, not to advance
the civil rights litigation, but to defend their own litigation misconduct. Plaintiffs have not
directed the Court to authority that would suggest otherwise.25 While they ultimately secured
back pay through settlement upon remand, plaintiffs would have received an award of back pay
several years sooner but for their own (and that of their counsel’s) impropriety. Accordingly, the
Court finds that the fees associated with defending the imposition of sanctions were not “useful
and of a type ordinarily necessary to advance the civil rights litigation[.]” See Webb, 471 U.S. at
243.
g)

Post-February 1, 2014 fees for Thompson & Bishop

Finally, the City objects to an award of fees for any time from February 1, 2014 to
November 10, 2015 for the law firm of Thompson & Bishop, “as there is no authentication or
verification of the hours or that the hours spent are reasonable.” (Doc. No. 809 at 19296.)
Because attorney Bishop died before she could supply an affidavit attesting to the reasonableness
of the fees requested in the latest fee petition, the City believes that plaintiffs have failed to
satisfy their burden of adequately documenting their request. (Id. at 19297 (“While it is an
unfortunate collateral effect of the deaths of [attorneys Thompson and Bishop], as a matter of
law and procedure, Akron cannot be held responsible for unverified time entries.”). Defendant’s
position is without merit.
As previously noted, attorney Thompson attested to the fact that the firm of Thompson &
25

In fact, courts have denied a party attorney’s fees to which it was otherwise statutorily entitled as a sanction for
attorney misconduct. See, e.g., Lee v. Am. Eagle Airlines, Inc., 93 F. Supp. 2d 1322 (S.D. Fla. 2000) (substantially
reducing § 1988 fees for counsel’s misconduct).
35

Bishop maintained contemporaneous time records. (Doc. No. 615-1 ¶ 11.) While the Court has
some doubts as to this practice, the Court, for the most part, will take counsel at their word on
this score. Further, attorney Thompson averred that he and attorney Bishop exercised billing
judgment to reduce the number of hours submitted. (Id. ¶¶ 13-14.) In support of the current
petition, plaintiffs have supplied the affidavit of Tammy Byers, Thompson & Bishop’s paralegal,
who has identified the time records attached to the latest fee petition as the firm’s billing records.
(Doc. No. 806-7 ¶ 3.) While Byers cannot attest to the reasonableness of the requested fees, her
identification of the records, along with the Court’s understanding of the law firm’s billing
practices, is sufficient to bring these records before the Court. In the end, it is the Court’s job to
determine whether any requested fee is reasonable, based on the totality of the record, and it is
capable of performing this function without counsel’s representation that the requested fees are
reasonable.
4. Across-the-Board Reduction
Given the voluminous nature of the fee documentation, coupled with the serious and
repeated documentation deficiencies, the Court finds that “an-hour-by-hour review is simply
impractical and a waste of judicial resources.” Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir.
1994). The Court, instead, elects to follow the lead of other courts that have applied an acrossthe-board reduction to account for the afore-mentioned excessive, redundant, and questionable
time entries. See Auto Alliance Int’l, Inc. v. U.S. Customs Serv., 155 F. App’x 226, 228 (6th Cir.
2005) (approving of across-the-board approach to fee determination) (citation omitted); Schwarz
v. Sec’y of Health & Human Serv., 73 F.3d 895, 906 (9th Cir. 1995) (across-the-board percentage
cut is “a practical means of trimming the fat of a fee application”) (quotation marks and citation
36

omitted); Ky. Rest. Concepts Inc. v. City of Louisville, 117 F. App’x 415, 419 (6th Cir. 2004)
(noting that while cutting a percentage of hours may appear “arbitrary,” it is an “essentially fair
approach”). While the City urges a 50% reduction (which is not entirely unwarranted), the Court
finds that, in conjunction with the Court’s establishment of a reasonable hourly rate, a 35%
reduction in hours claimed “represents a fair and expeditious solution to determining the sum
total of reasonable fees” that plaintiffs have incurred litigating this civil rights action.26 Cobell v.
Norton, 407 F. Supp. 2d 140, 166 (D.D.C. 2005) (quotation marks and citation omitted); see,
e.g., Saint-Gobain Autover USA, Inc. v. Xinyi Glass N. Am., Inc., 707 F. Supp. 2d 737, 764 (N.D.
Ohio 2010) (50% reduction for excessive billing and inadequate documentation); Healthcall of
Detroit, Inc. v. State Farm Mut. Auto. Ins. Co., 632 F. Supp. 2d 676, 685 (E.D. Mich. 2009)
(40% reduction in fees to account for inadequate “summaries” of activities); Tinch v. City of
Dayton, 199 F. Supp. 2d 758, 764-65 (S.D. Ohio 2002) (fee reduced by 30% to account for
duplicative hours and vague and inconsistent entries). This reduction accounts for counsel’s
excessive and block billing, overstaffing, and vague entries. Also factored into this percentage
reduction is the reality that there are entire categories of activities for which no fees should have
been sought. Though the Court considered imposing a larger reduction, the 35% selected rate
reflects the fact that counsel achieved an excellent result for their clients, and that plaintiffs’
counsel was not alone in causing the problems that unnecessarily delayed this action.
5. Enhancement
Plaintiffs seek a fee enhancement by a 1.2 multiplier factor. Relying on the Johnson
26

The Court shall not cut the hours claimed by paralegals in this case as the Court finds that those hours were
generally reasonably expended.

37

factors, plaintiffs note that they litigated this case on a contingency basis for more than a decade,
and that they did so at the expense of being unable to take other work. They also insist that the
issues were novel as this case represented the first age discrimination impact disparate case in the
country, and that, as a result, specialized skill was required to achieve an excellent result for their
clients.
“The Supreme Court has emphasized that, although application of the Johnson factors is
limited, upward adjustments are permissible in certain ‘rare’ and ‘exceptional’ cases.” Geier, 372
F.3d at 793 (citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S.
546, 564, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986)). The Supreme Court has also stressed,
however, that “there is a strong presumption that the lodestar is sufficient[.]” Perdue, 559 U.S. at
546. The Court in Perdue, explained that:
factors subsumed in the lodestar calculation cannot be used as a ground for
increasing an award above the lodestar; and a party seeking fees has the burden of
identifying a factor that the lodestar does not adequately take into account and
proving with specificity that an enhanced fee is justified.
Id. Thus, “the novelty and complexity of a case generally may not be used as a ground for an
enhancement because these factors ‘presumably [are] more fully reflected in the number of
billable hours recorded by counsel.’” Id. at 553 (quoting Blum, 465 U.S. at 898). Likewise, “the
quality of an attorney’s performance generally should not be used to adjust the lodestar
‘[b]ecause considerations concerning the quality of the prevailing party’s counsel’s
representation normally are reflected in the reasonable hourly rate.’” Id. (quoting Delaware
Valley I, 478 U.S. at 566).
The Court finds that the lodestar amount already adequately reflects the Johnson factors
such that an enhancement is not warranted. The number of billable hours recorded by counsel
38

adequately takes into account the novelty and complexity of the case, especially when that
number is used in connection with a current—rather than historic—reasonable billing rate. The
contingent nature of counsel’s engagement is also adequately reflected in the billing rate,
especially in light of the fact that counsel received two generous interim payments. Additionally,
the Court has already adjusted the hourly rate to fully reflect the experience and skill of counsel
and the success they achieved for their clients, and, given some of the shortcomings or miscues
of counsel recounted in this opinion, the Court finds that plaintiffs have not demonstrated their
counsel’s performance warrants an additional adjustment.
6. Lodestar Amount
Applying a 35% reduction in hours claimed to the hourly rates approved for counsel, the
Court awards plaintiff’s additional attorney’s fees in the aggregate amount of $984,502.50
broken down by attorney as follow:

THOMPSON & BISHOP – Fees Through December 30, 2010
Biller
Hours Requested
Hours Awarded
Rate
Dennis R. Thompson
1,299
845
$ 350.00
Christy B. Bishop
1,016.2
661
$ 275.00
Tammy Byers (Paralegal)
112.25
112.25
$ 90.00
Sub-total:

Amount
$ 295,750.00
$ 181,775.00
$ 10,102.50
$ 487,627.50

THOMPSON & BISHOP – Fees December 31, 2010 through December 14, 2015
Biller
Hours Requested
Hours Awarded
Rate
Amount
Dennis R. Thompson
800.9
521
$ 400.00
$ 208,400.00
Christy B. Bishop
1,005.55
654
$ 325.00
$ 212,550.00
Tammy Byers (Paralegal)
111.45
111.45
$ 100.00
$ 11,145.00
Sub-total:
$ 432,095.00

39

Biller
Bruce B. Elfvin
Barbara Kaye Besser
Stuart Torch
Christina M. Royer
Sara Tackett
Kathleen J. Sanz
Law Clerks
Paralegal

ELFVIN & BESSER – Fees Through December 30, 2010
Hours Requested
Hours Awarded
Rate
555.5
362
$ 375.00
67.8
45
$ 350.00
57.2
38
$ 200.00
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
8.3
6
$ 80.00
20.5
20.5
$ 90.00
Sub-total:

Amount
$ 135,750.00
$ 15,750.00
$
7,600.00
$
0.00
$
0.00
$
0.00
$
480.00
$
1,845.00
$ 161,425.00

ELFVIN & BESSER – Fees December 31, 2010 through December 14, 2015
Biller
Hours Requested
Hours Awarded
Rate
Amount
Bruce B. Elfvin
1,049.8
683
$ 425.00
$ 290,275.00
Barbara Kaye Besser
138.4
90
$ 400.00
$ 36,000.00
Stuart Torch
451.1
294
$ 225.00
$ 66,150.00
Christina M. Royer
8.4
6
$ 260.00
$
1,560.00
Sara Tackett
18.7
13
$ 145.00
$
1,885.00
Kathleen J. Sanz
20
13
$ 145.00
$
1,885.00
Law Clerks
91.6
60
$ 90.00
$
5,400.00
Paralegal
2
2
$ 100.00
$
200.00
Sub-total:
$ 403,355.00

Law Firm
Thompson & Bishop
Elfvin & Besser

ATTORNEYS’ FEE AWARD
Total Fees
Less Interim Award
$ 919,722.50
$ 372,500.00
$ 564,780.00
$ 127,500.00

Balance of Award
$ 547,222.50
$ 437,280.00

Total Attorneys’ Fees

$1,484,502.50

$ 984,502.50

$ 500,000.00

The Court finds that the total fee amount adequately recognizes the success counsel achieved for
their clients, while ensuring that the charged fees are not excessive.
B.

Plaintiffs’ Request for Costs and Expenses

As part of their fee petitions, plaintiffs also seek costs and expenses associated with this
civil rights litigation. Although it is not entirely clear from these applications, it appears that
plaintiffs are relying on both Rule 54(d) and 42 U.S.C. § 1988 to support their requests for costs.
(Doc. No. 668 at 17473-74.) See Northcross v. Bd. of Educ. of Memphis City Schs., 611 F.2d
40

624, 639 (6th Cir. 1979). The first source, Rule 54(d), provides that costs are generally allowed
to the prevailing party. Fed. R. Civ. P. 54(d). While Rule 54(d) creates a presumption in favor of
an award of costs, a court’s discretion to award costs is also limited by the statutory definition of
costs in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons Inc., 482 U.S. 437, 441-42,
107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987); Frye v. Baptist Mem’l Hosp., Inc., 863 F. Supp. 2d
701, 704 (W.D. Tenn. 2012) (citing, among authority, Knology, Inc. v. Insight Commc’ns Co.,
460 F.3d 722, 726 (6th Cir. 2006)). Pursuant to 28 U.S.C. § 1920, the following costs may be
recovered:
(1) Fees of the clerk and marshal;
(2) Fees for printed and electronically recorded transcripts necessarily
obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials
where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters,
and salaries, fees, expenses, and costs of special interpretation services
under section 1828 of this title.
In reviewing a request for costs under Rule 54(d), a court must look “first to whether the
expenses are allowable cost items and then to whether the amounts are reasonable and
necessary.” Jefferson v. Jefferson Cnty. Pub. Sch. Sys., 360 F.3d 583, 591 (6th Cir. 2004)
(citation omitted). The prevailing party has the burden of establishing that the expenses it seeks
to have taxed as costs “are authorized by applicable federal law, including proof of necessity and
reasonableness under 28 U.S.C. § 1920.” Berryman v. Hofbauer, 161 F.R.D. 341, 344 (E.D.
41

Mich. 1995) (citation omitted); see also Elabiad v. Trans-West Exp., LLC, No. 3:03CV7452,
2006 WL 1866137, at *1 (N.D. Ohio June 30, 2006) (“‘[i]n order to award costs to a prevailing
party, the court must determine that the expenses are allowable cost items and that the amounts
are reasonable and necessary’”) (quoting Baker v. First Tenn. Bank Nat’l Assoc., 142 F.3d 431,
at *2 (6th Cir. 1998) (unpublished table decision)).
The second source plaintiffs look to is 42 U.S.C. § 1988. “Recoverable out-of-pocket
expenses are those ‘incurred by the attorney which are normally charged to a fee-paying client,
in the course of providing legal services,’ such as ‘[r]easonable photocopying, paralegal
expenses, and travel and telephone costs.’”27 Waldo v. Consumers Energy Co., 726 F.3d 802,
827 (6th Cir. 2013) (quoting Northcross, 611 F.2d at 639); see Cleveland Area Bd. of Realtors v.
City of Euclid, 965 F. Supp. 1017, 1023 (N.D. Ohio 1997). It is the role of the district court to
determine whether such costs were reasonable and necessary. Waldo, 726 F.3d at 827 (citing
Sigley v. Kuhn, 205 F.3d 1341, 2000 WL 145187, at *8 (6th Cir. 2000) (quotation marks
omitted)).
The City challenges several categories as non-recoverable under federal law. Defendant
also insists that some costs sought by plaintiffs—though legally recoverable in federal court—are
not properly documented such that the Court can determine whether they were reasonably
incurred in the course of the litigation. The Court addresses each category in turn.
1.

State Court Action

Plaintiffs seek to recover a variety of costs and expenses, including filing fees, associated
with certain litigation in state court, particularly that which is related to the motion for a

27

Costs and expenses are also available to the prevailing plaintiff under Title VII. See 42 U.S.C. § 2000e-5(k).
42

temporary restraining order. Also, while § 1920 provides for a recovery of “fees of the clerk[,]”
this refers only to the fees of the “clerk of this Court,” and not fees paid to state clerks or
agencies. TD Prop., LLC v. VP Bldgs., Inc., 635 F. Supp. 2d 123, 125 (D. Conn. 2009) (emphasis
added). Further, because the Court has already determined that attorney’s fees are not available
for most of the legal work performed in the state court action, costs and expenses associated with
that non-compensable work are not available under the relevant civil rights statutes. These costs
and expenses are disallowed.
2.

Legal Research

The City objects to the claimed legal research costs incurred by plaintiffs’ counsel, such
as Westlaw and Lexis charges. Online legal research fees are not listed in § 1920, and are,
therefore, not recoverable under Rule 54(d). See Vistein v. Am. Registry of Radiologic Tech., No.
1:05CV2441, 2010 WL 918081, at *5-6 (N.D. Ohio Mar. 10, 2010) (collecting cases finding
Westlaw and Lexis charges not recoverable under § 1920). While the Sixth Circuit has yet to
address the question of whether such expenses are recoverable under § 1988, other circuits and
district courts within the Sixth Circuit have treated such costs as reasonable out-of-pocket
attorney expenses. See Cmty. for Equity, 2008 WL 906031, at *23 (collecting cases from the
Third, Seventh, Tenth, and District of Columbia Circuit Courts and finding such costs “routinely
billed to clients and . . . necessary in the studied practice of law”); see, e.g., Project Vote v.
Blackwell, No. 1:06-CV-1628, 2009 WL 917737, at *19 (N.D. Ohio Mar. 31, 2009) (allowing
legal research costs under § 1988) (citations omitted). The Court finds these expenses to have
been reasonably incurred by counsel, and of the kind generally billed to a client in the course of
providing legal services and, therefore, recoverable.
43

3.

Mediation Costs

In their second supplemental application, plaintiffs seek reimbursement for a $500
mediation fee and $1,587.50 charged by attorney William Dowling in a private, mutually agreed
upon mediation. Plaintiffs cite no authority to suggest that such expenses are recoverable under §
1988. Moreover, “[s]ection 1920 does not list mediator fees or mediation fees as a taxable cost.”
Veteran Med. Prods., Inc. v. Bionix Dev. Corp., No. 1:05-CV-655, 2010 WL 989802, at *4
(W.D. Mich. Mar. 16, 2010) (collecting cases denying mediation fees under 28 U.S.C. § 1920).
Accordingly, plaintiffs are not entitled to recover these costs. See, e.g., Madison Capital Co.,
LLC v. S & S Salvage, LLC, Civil Action No. 4:08-CV-134-JHM, 2010 WL 3667673, at *6
(W.D. Ky. Aug. 22, 2011).
4.

Copying Costs

Over their three applications, plaintiffs seek more than $6,000 in copying costs. The City
challenges these costs primarily upon the basis that plaintiffs have provided insufficient
documentation to support their requests. “As a general rule, a prevailing party can recover costs
to photocopy ‘papers necessarily obtained for use in the case.’” Vistein, 2010 WL 918081, at *8
(quoting 28 U.S.C. § 1920(4)). Photocopying expenses are also reimbursable as an attorney’s
out-of-pocket expense under § 1988. See Waldo, 726 F.3d at 827 (citing Northcross, 611 F.3d at
639). Permissible photocopying expenses include “costs for photocopying documents necessary
for maintenance of the action, including copies attributable to discovery, copies of pleadings,
correspondence, documents tendered to the opposing party, copies of exhibits, and documents
prepared for the court’s consideration.” Charboneau v. Severn Trent Labs., Inc., No. 5:04-CV116, 2006 WL 897131, at *1 (W.D. Mich. Apr. 6, 2006) (quotation marks and citations omitted).
44

“Copying costs are generally limited to those costs incurred for copies of documents prepared for
the court’s consideration or for the opposing party.” Id. (quotation marks and citations omitted).
Costs for copies made only for the convenience of counsel are not recoverable. Visteon, 2010
WL 918081, at *8 (citations omitted); Charboneau Severn Trent Labs., 2006 WL 897131, at *1
(citations omitted).
The party seeking reimbursement for copying costs bears the burden of coming forward
with documentation that shows that the costs were necessarily incurred for use in the case.
Hartford Fin. Servs. Grp., Inc. v. Cleveland Pub. Library, No. 1:99 cv 1701, 2007 WL 963320,
at *9 (N.D. Ohio Mar. 28, 2007); see Bowling v. Pfiser, Inc., 132 F.3d 1147, 1152 (6th Cir.
1998) (courts should scrutinize photocopying expenses and should not simply “rubber stamp”
such costs). In support of their requests, plaintiffs have offered affidavits attesting to the general
reasonableness of all costs and that they are the type typically billed to a client. (Doc. No. 668-1
¶ 11; Doc. No. 668-5 ¶ 10; Doc. No. 806-1 ¶ 9.) Plaintiffs also offer invoices setting forth the
specific copying expenses. While some of the entries indicate the nature of the documents being
copied (including copying expenses incurred for the state law case which are not compensable
here), many simply provide that they represent “in-house copying.” Where, as here, the
documentation does not adequately permit the Court to determine whether the costs are properly
recoverable and not simply incurred for the convenience of counsel, the Court is permitted to
reduce the number of copies to account for impermissible copying charges. See, e.g.,
Charboneau, 2006 WL 897131, at *2 (reducing by 75% non-itemized photocopying costs and
collecting cases providing percentage reduction in reimbursable copies). Plaintiffs total copying
expenses do not seem entirely disproportionate to the number of years this action has been
45

pending. Nonetheless, a reduction is necessary to account for non-reimbursable copies.
5.

Transcripts

Plaintiffs seek to recover $19,901.35 for fees for transcripts from trials, hearing,
depositions, and telephone conferences. (Doc. No. 614 at 16656-59; Doc. No. 667 at 17448,
17451, 17457, 17462, 17463; Doc. No. 668-4 at 17501-03; Doc. No. 806-8 at 19258-64.)
According to plaintiffs, these transcripts were “necessarily obtained for use in the case.” (Doc.
No. 614 at 16656-59.); see Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989) (“Ordinarily, the
costs of taking and transcribing depositions reasonably necessary for litigation are allowable to
the prevailing party.”); 28 U.S.C. § 1920(2) (Allowable costs include “[f]ee for printed or
electronically recorded transcripts necessarily obtained for use in the case[.]”).
While the City does not challenge plaintiffs’ general right to recover certain expenses
associated with the creation of the transcripts, it insists that plaintiffs have sought certain
ancillary charges—such as multiple transcripts, DVD duplication, shipping, emailing charges,
compressed transcript fees, binding, postage, CD-litigation support, and Raindaince—which are
not compensable. See Whirlpool Corp., 2011 WL 3321291, at *12 (disallowing postage charges
associated with deposition orders); Vistein, 2010 WL 918081, at *6 (collecting cases providing
that costs of condensed transcripts and other computerized legal support for depositions were not
recoverable). The Court agrees that these charges are not recoverable.
Plaintiffs also include costs associated with obtaining hourly trial transcripts of the 2008
trial. The Court has discretion to consider whether daily trial transcripts were necessary for
proper preparation at trial. See White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728,
732 (6th Cir. 1986). Plaintiffs have failed to even address the need for expedited trial transcripts
46

at all, let alone explain why they required hourly trial transcripts, which were the most expensive
transcription option available to them. (See, e.g., Doc. No. 668-4 at 17607.) These expenses are
disallowed.28
Finally, plaintiffs seek to recover $400.50 for a “TRO” transcript in the Summit County
case. (Doc. No. 688-4 at 17501.) For all the reasons set forth above, this expense from the state
court case is not recoverable here. See Caudill v. Sears Transition Pay Plan, No. 06-12866, 2011
WL 1595044, at *1 (E.D. Mich. Apr. 26, 2011) (denying costs of deposition noticed in a related
case) (citation omitted); Am. Auto. Accessories, Inc. v. Fishman, 991 F. Supp. 995, 997 (N.D. Ill.
1998) (disallowing cost of depositions because “depositions were not ‘necessarily’ obtained for
use in this case[,]” but rather for use in a separate state court case).
5.

Expert Fees

Plaintiffs also seek to recoup the fees, costs, and expenses associated with the experts
they employed in this case. The City challenges these expenditures in their entirety. “Section
2000e-5(k) permits a court to award the prevailing party in a Title VII action ‘a reasonable
attorney’s fee (including expert fees).’ A plain reading of the statute confirms that expert fees are
included within, or a subset of, attorney’s fees.” E.E.O.C. v. Peoplemark, Inc., 732 F.3d 584, 592
(6th Cir. 2013) (citing, generally, Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 98 S.
Ct. 694, 54 L. Ed. 2d 648 (1978)). “The benchmark for awarding expert fees under the statute is
reasonableness—a court may award ‘a reasonable attorney’s fee (including expert fees).” Id. at

28

In contrast, plaintiffs might have been able to demonstrate a need for expedited transcripts for the damages trial,
inasmuch as that was a bench trial and the district court requested that the parties file proposed findings of fact and
conclusions of law. See Knop, 712 F. Supp. at 591 (“Where a trial is long and involves complex issues or where the
Court requires proposed findings of fact from the parties, transcript costs are generally allowed.”) (citations
omitted). In any event, plaintiffs made no effort to justify any of these expenses.
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594 (quoting 42 U.S.C. 2000e-5(k)). The party requesting expert fees and costs must come
forward with sufficient documentation to enable the district court to test the reasonableness of
the request. Id. at 594-95 (“The statute requires that the expert fees be reasonable, and if the
moving party did not present the court with adequate documentation, there would be no basis for
the court to decide whether the fee was reasonable.”).
In Peoplemark, the defendant, as the prevailing party, was awarded fees associated with
the retention of an expert. On appeal, the non-prevailing party argued that the district court
abused its discretion by awarding expert fees, suggesting that the documentation was legally
inadequate. The Sixth Circuit rejected the argument. While the bill used generic descriptors–such
as “research” or “document preparation” or “telephone conference and review”—the court held
that these entries were sufficient. In reaching this conclusion, the court found that the expert’s
declaration, along with his twenty-four page bill, provided enough description from which the
district court could assess the reasonableness of the expenses. Id. at 595.
In contrast, here, the Court has before it nothing but generic descriptors to guide its
analysis. For example, plaintiffs have submitted an invoice that merely provides “Expert costs
from Bellenger, Brink, and Crenshaw (see enclosed invoice) . . . $24,250.00.” (Doc. No. 614 at
16678.) The referenced invoice offered no more clarity as to the nature of these fees, as it merely
stated in a one-line item “Expert review of City of Akron Fire Lieutenant & Fire Captain
selection processes[,]” with a stated unit price of $200 per hour. (Id. at 16682.) Plaintiffs’ bill of
costs and fee petitions—which are littered with these vague and perfunctory entries—are
woefully inadequate to support the court’s reasonableness analysis. (See, e.g., Doc. No. 614 at
16700 (“Expert Services . . . EB Jacobs . . . $1,500”).) It appears that the plaintiffs’ request for
48

costs and expenses suffers from many of the same deficiencies that plagued their fee request.
Because of this, a reduction is in order. See, e.g., Libertarian Party of Ohio v. Brunner, No. 2:04CV-08, 2007 WL 4171630, at *4 (S.D. Ohio Nov. 20, 2007) (striking the entire requested expert
fee due to “total absence of support for the amount and no separation of the fee for time and
services versus the ordinary witness costs”).
The only documentation that approaches the level sufficient to support a reasonableness
analysis is that of Robert J. Johnson, Ph.D. In addition to the generic invoices for Dr. Johnson’s
services, plaintiffs also submit letters from Dr. Johnson that contain breakdowns of the services
performed by this expert in the litigation. (Doc. No. 614 at 16683-84, 16706-07, 16735-36.) In
addition, the Court has undertaken its own review of the expert testimony Dr. Johnson offered in
the 2008 trial during which he described, in detail, the complex statistical analysis he performed
on behalf of plaintiffs. (Doc. No. 203 at 5434-5484.) While Dr. Johnson’s letters rely on generic
descriptors, such as “Phone consult” and “Review documents,” the Court finds that the
breakdowns in the letters, in combination with the expert’s testimony at trial, provide the Court
with enough information from which to evaluate the reasonableness of the services performed.
As is often true with disparate impact litigation, statistical evidence played a critical role
in establishing liability in this case. Because there is no direct evidence of discrimination,
plaintiffs alleging a disparate impact must come forward with statistical evidence that supports
their entitlement to relief. Thus, given the nature of this case, coupled with the Court’s selfguided review of the record, the Court finds that the services of Dr. Johnson were reasonably
performed in the context of this litigation, and, therefore, the fees and expenses associated with
his services are recoverable.
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The Court also finds some record support for the expert work performed by Kyle Brink.
Though the details of the services Mr. Brink has provided have not been supplied to the Court, it
appears—again, from the Court’s own investigation—that this particular expert was employed
for the purpose of consulting with the court monitor to facilitate the last promotional cycle. As
such, the Court finds that plaintiffs are entitled to recover a portion of Mr. Brink’s expert fee,
properly reduced to reflect the lack of adequate documentation supporting the costs sought.
7.

Miscellaneous Costs and Expenses

Finally, the City challenges a variety of expenses—including attorney travel, meals,
lodging, long-distance phone calls, parking, and conference room fees as non-compensable under
§ 1920. While they may not be recoverable under § 1920, the Court finds that some of these
expenses are recoverable under the relevant civil rights statutes as out-of-pocket expenses of an
attorney normally billed to a client. See Waldo, 726 F.3d at 827 (citing Northcross, 611 F.2d at
639). Once again, however, the document supporting these costs and expenses is inadequate. A
significant deduction would be necessary before any such costs could be awarded. Additionally,
the Court does not believe the City should have to pay the costs associated with attorney Elfvin’s
travel from Cleveland and hotels in Akron. As the Court has already determined, plaintiffs have
failed to justify why they needed to involve a Cleveland attorney when they had already
employed the preeminent local disparate impact firm, and plaintiffs cannot, therefore,
demonstrate that these costs were reasonably incurred as out of pocket attorney expenses.
8.

Award of Costs and Expenses

Determining what categories of costs and expenses are legally permissible generally is a
relatively straightforward task. However, determining plaintiffs’ actual requests for
50

reimbursement is an impossible endeavor in light of the insufficient documentation plaintiffs
have supplied. In addition to the deficiencies identified above, the Court has found evidence of
internal inconsistencies and duplicative billing. The Court has attempted to reconcile the
documents with plaintiffs’ requests for reimbursement but has been forced to conclude that a
line-by-line review of each invoice and cost statement would be impractical and a waste of
judicial resources. As it did with its determination of attorney’s fees, the Court elects to apply a
35% across-the-board reduction to plaintiffs’ request for costs and expenses. The Court awards
plaintiffs the total amount of $86,266.61 to the law firm of Thompson & Bishop and $3,369.08
to the law firm of Elfvin & Besser as reasonably incurred costs and expenses. This amount
reflects the exclusion of all expert fees—with the exception of all of the fees of Dr. Johnson and
one-half of the fees charged by Dr. Brink.
The Court’s breakdown of costs and expenses, by law firm, is as follows:
Category
Dr. Robert Johnson
CentrusPS
Dr. Jeanneret
Dr. Jacobs
All Other Costs and Expenses
Total Costs and Expenses

Category
All Costs and Expenses

THOMPSON & BISHOP – Costs and Expenses
Requested
$ 20,031.50
$ 69,068.66
$
2,502.00
$
1,500.00
$ 48,770.43

$
$
$
$
$

Awarded
20,031.50
34,534.33
-0-031,700.78

141,872.59

$

86,266.61

ELFVIN & BESSER – Costs and Expenses
Requested
$ 5,183.20

$

Awarded
3,369.08

$

51

III.

CONCLUSION

For all of the foregoing reasons, the plaintiffs’ motions for attorneys’ fees and costs (Doc.
Nos. 615, 668, and 806) are granted, in part. In addition to the interim attorneys’ fees previously
awarded (Doc. Nos. 390 and 644), the plaintiffs are awarded attorneys’ fees and costs in the
amount of One Million Seventy-Four Thousand One Hundred Thirty-Eight and 19/100 Dollars
($1,074,138.19), consisting of Nine Hundred Eighty-Four Thousand Five Hundred Two and
50/100 Dollars ($984,502.50) in attorneys’ fees and Eighty-Nine Thousand Six Hundred ThirtyFive and 69/100 Dollars ($89,635.69).

IT IS SO ORDERED.

Dated: March 10, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

52