Howe et al v. City of Akron

Filing 842

Memorandum Opinion: Plaintiff's motion to supplement is denied. (Doc. No. 835 .) See, e.g., Byrne v. CSX Transp., Inc., 541 F. App'x 672, 676 (6th Cir. 2013) (motion to supplement record on appeal to include missing affidavit under Rule 10(e) denied where district court did not rely on the affidavit). Should the Sixth Circuit subsequently determine that these records are material to plaintiffs' appeal, it can direct defendant to submit them. Judge Sara Lioi on 12/15/2016. (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 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, the parties participated in a court-supervised mediation on December 1, 2015 and,
at the conclusion of the mediation, the parties announced that they had reached a settlement as to
plaintiffs’ damages and interest owed. When subsequent informal discussions did not produce a
resolution of the issue of plaintiffs’ attorneys’ fees and costs, these remaining matters were
submitted to the Court for its consideration.
On March 10, 2016, the Court entered its decision on fees and costs, awarding plaintiffs
$984,502.50 in attorneys’ fees and $89,635.69 in costs. (Doc. No. 820 at 19497.) In arriving at
this award, the Court considered all relevant matters in the voluminous record before it,
including exhibits and hearing transcripts, in addition to the parties’ extensive briefing on the
matter. (See, e.g., Doc. Nos. 615, 635, 637, 668, 680, 681, 806, 810.) Ultimately, the Court
concluded that the award represented an amount that fairly and reasonably compensated

plaintiffs and recognized the success counsel achieved for their clients, while ensuring that the
award was not excessive. (Id. at 19485.)
On April 11, 2016, plaintiffs filed a notice of appeal from “the trial court’s Order
awarding attorney fees and costs to Plaintiffs . . . .” (Doc. No. 824 at 19548.) Plaintiffs’ appeal
remains pending with the Sixth Circuit Court of Appeals. Now before the Court is plaintiffs’
motion to supplement the record on appeal with un-redacted copies of attorney billing statements
prepared by counsel for defendant, the City of Akron. (Doc. No. 835.) Defendant opposes the
motion (Doc. No. 836), and plaintiffs have filed a reply. (Doc. No. 837.) For the reasons set
forth below, plaintiffs’ motion is denied.
I. Background Pertinent to Plaintiffs’ Motion
The lengthy procedural history of this civil rights case, filed November 16, 2006, has
been set forth in numerous opinions and orders over the course of its 10-year history, and will
not be repeated herein. Rather, the Court will only focus on the procedural events relevant to
plaintiffs’ motion to supplement. On September 24, 2014, while the matter was still pending
before Judge John R. Adams, the Court directed defendant to produce to plaintiffs its attorneys’
fee records. (Doc. No. 705.) On September 26, 2014, defendant sought clarification from the
Court, inquiring as to whether the billing statements it was to produce could be redacted to
remove attorney-client and work product matters. (Doc. No. 713.) In a marginal order dated
September 29, 2014, the Court granted the motion for clarification and indicated that defendant
could produce redacted statements, but that it should also submit to the Court un-redacted
versions of these documents. (Doc. No. 714.)
On October 1, 2014, plaintiff filed a notice of filing defendant’s redacted statements on
the docket. (Doc. No. 724; see Doc. Nos. 724-1 and 724-2.) The following day (October 2,
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2014), the Court commenced a two-day hearing on plaintiffs’ fee petitions. At the hearing,
defense counsel noted that she had produced redacted versions of her client’s billing statements
to plaintiffs and had submitted un-redacted versions of these documents to the Court. (Doc. No.
732 (Transcript of 10-2-14 Hearing [“Hearing TR”]) at 18339.) While plaintiffs’ counsel
complained that defendant’s alleged extensive redactions should preclude Akron from
challenging plaintiffs’ block billing practices, plaintiffs did not request at the hearing that Judge
Adams make the un-redacted billing statements part of the record. (Id. at 18338.)
Plaintiffs repeated the argument that defendant’s “heavily redacted” billing sheets should
preclude Akron from challenging plaintiffs’ counsel’s billing statements in their second
supplemental petition. (See Doc. No. 806 at 19161.) Plaintiffs cited no case authority in support
of their position that defendant’s use of block-billing precluded it from challenging plaintiffs’
counsel’s billing practices. Instead, plaintiffs relied exclusively on the redacted billing sheets
produced by defense counsel, making specific reference to those record documents. (See Id.)
Notably, plaintiffs did not ask that the Court make the un-redacted billing sheets part of the
record. In fact, the present motion represents the first time that plaintiffs have requested that
defendant’s un-redacted billing statements be made a part of the record.1
II. Law and Discussion
Plaintiffs’ request to supplement the record on appeal is governed by Rule 10 of the
Federal Rules of Appellate Procedure. The contours of Rule 10 were succinctly set forth in a
decision by a jurist from the Southern District of Ohio. Specifically, the district court observed:
“Normally, the record on appeal consists of ‘the original papers and exhibits filed
1

In their reply, plaintiffs indicate that they never intended to make defendant’s billing statements a part of the
record, or available to plaintiffs or the public, out of deference to defendant’s concern that the documents contained
privileged information. (Doc. No. 837 at 19594.)
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in the district court,’ ‘the transcript of proceedings, if any’ and ‘a certified copy of
the docket entries prepared by the district clerk.’” Fed. R. App. P. 10(a).
“However, ‘if anything material to either party is omitted from or misstated in the
record by error or accident,’ the rule allows ‘the omission or misstatement [to] be
corrected and a supplemental record [to] be certified and forwarded.’ ” Inland
Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir.2003)
(quoting Fed. R. App. P. 10(e)(2)). “Rule 10(e) allows correction of the record
either by agreement of the parties, by order of the district court, or by order of the
court of appeals.” Id. (citing Fed. R. App. P. 10(e)(2)). It “is clear from the rule's
wording, ‘[t]he purpose of the rule is to allow the [ ] court to correct omissions
from or misstatements in the record for appeal, not to introduce new evidence in
the court of appeals.’ ” Id. (quoting S & E Shipping Corp. v. Chesapeake & O. Ry.
Co., 678 F.2d 636, 641 (6th Cir.1982)). “ ‘In general, the appellate court should
have before it the record and facts considered by the District Court.’ ” Id. (quoting
United States v. Barrow, 118 F.3d 482, 487 (6th Cir.1997)).
Zwerin v. 533 Short N. LLC, 15 F. Supp. 3d 769, 772 (S.D. Ohio 2014).
In their motion to supplement, plaintiffs offer no explanation as to why these documents
were material to this Court’s determination of the reasonableness of plaintiffs’ fee requests, or
how they are material now to plaintiffs’ appeal.2 The only argument plaintiffs ever made before
this Court regarding defendant’s billing statements related to plaintiffs’ belief that defense
counsel’s practice of block-billing precluded defendant from challenging plaintiffs’ counsel’s
similar practice.3 This argument, and the redacted billing statements upon which it was premised,
is already part of the record. Any new argument relating to the un-redacted documents cannot be
raised for the first time on appeal and is waived. See Sorrell v. Comm’r of Soc. Sec., No. 15-

2

Plaintiffs have also failed to identify any part of the record that is misstated or erroneous. See Fed. R. App. P.
10(e)(2).
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It is the opinion of the Court that it is irrelevant whether defense counsel may have blocked billed, because
defendant is not seeking fees in this case. Plaintiffs are seeking fees, and their experienced counsel should know
that it is incumbent upon plaintiffs and their counsel to present billing statements with detail and specificity so that
the Court may award an appropriate fee. If the defendant were seeking fees, the defendant would have the same
obligation.

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4213, 2016 WL 4245467 (6th Cir. Aug. 11, 2015 2016) (citations omitted); McFarland v.
Henderson, 307 F.3d 402, 407 (6th Cir. 2002).
Additionally, the Court represents that it considered all of the arguments raised by the
parties in the various briefs relative to fees and costs—as well as all of the transcripts, affidavits,
and exhibits of record offered in support of those arguments—including plaintiffs’ argument
relative to defendant’s redacted billing statements in reaching its decision on fees and costs. The
un-redacted billing statements of defense counsel were not material to, and did not factor into,
the Court’s award to plaintiffs. Therefore, plaintiff’s motion to supplement is denied. See, e.g.,
Byrne v. CSX Transp., Inc., 541 F. App’x 672, 676 (6th Cir. 2013) (motion to supplement record
on appeal to include missing affidavit under Rule 10(e) denied where district court did not rely
on the affidavit). Should the Sixth Circuit subsequently determine that these records are material
to plaintiffs’ appeal, it can direct defendant to submit them.
IT IS SO ORDERED.

Dated: December 15, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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