Braun v. Ultimate Jetcharters, Inc. et al

Filing 203

Memorandum Opinion: Plaintiff's motion for attorney's fees and costs incurred in connection with her appeal (Doc. No. 192 ) is denied. Judge Sara Lioi on 3/10/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CARRIE BRAUN,

PLAINTIFF,
vs.
ULTIMATE JETCHARTERS, INC.,

DEFENDANT.

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CASE NO. 5:12-cv-1635

JUDGE SARA LIOI

MEMORANDUM OPINION

This matter comes before the Court upon the motion of plaintiff Carrie Braun (“plaintiff”
or “Braun”) for attorney’s fees and costs incurred in connection with her appeal. (Doc. No. 192
[“Mot.”].) Defendant Ultimate Jetcharters Inc. (“defendant” or “Ultimate Jetcharters”) has
opposed the motion (Doc. No. 195 [“Opp’n]”), and plaintiff has filed a reply. (Doc. No. 196
[“Reply”].) Without leave, plaintiff subsequently filed two additional affidavits in support of her
motion for fees. (See Doc. No. 198.) Defendant opposes plaintiff’s unauthorized filing of
additional materials in support of her motion for fees. (Doc. No. 199 [“Sur-reply”].) For the
reasons that follow, plaintiff’s motion for fees and costs on appeal is denied.
The factual and procedural background of this employment discrimination and retaliation
case has been addressed in numerous opinions and orders, and familiarity with these rulings is
presumed. For purposes of framing the present motion for fees, it is sufficient to note that, on
July 30, 2014, this Court entered judgment awarding plaintiff $70,250.00 in compensatory
damages, $100,000 in punitive damages, and $97,393.75 in attorney’s fees. The award of
compensatory and punitive damages followed a five-day jury trial wherein the jury found in

favor of plaintiff on her state law retaliation claim. The Court granted plaintiff attorney’s fees
associated with the trial in this matter pursuant to Ohio law that permitted the issuance of
reasonable attorney’s fees upon the a jury award of punitive damages. (Doc. No. 163
(Memorandum Opinion and Order [“MOO”]) at 2998.) 1
Plaintiff subsequently moved, under Fed. R. Civ. P. 60(a), to amend the judgment to
correct the misnomer of Ultimate Jetcharters. On November 20, 2014, Attorney Donald C.
LeRoy entered an appearance on behalf of plaintiff. (Doc. No. 180 (Notice).) The Court granted
the motion on March 31, 2015, and the Court’s amended judgment, including the initial award of
attorney’s fees, was affirmed by the Sixth Circuit on July 8, 2016. (Doc. No. 191.)
On July 20, 2016, plaintiff filed a motion in the Sixth Circuit seeking to recover
$30,577.70 in attorney’s fees and costs incurred after November 24, 2014 to the date of the
motion. (Braun v. Ultimate Jetcharters, LLC, Case Nos. 13-4145, 14-3816, 15-3462, Doc. No.
83.) The following day (July 21, 2016), plaintiff filed a virtually identical in this Court, seeking
to recover the same amount of attorney’s fees and costs for the same post-judgment and appellate
work.2 In fact, plaintiff advanced the same arguments and relied on the same case authority and
documentation to support her request for the exact same relief in both courts.
In support of her request for post-judgment and appellate fees, plaintiff maintains that she
is entitled to an award of attorney’s fees for “work incurred relating to the appeal.” (Mot. at
3235, citations omitted.) Citing Sixth Circuit law, and relying on the familiar lode-star method
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All page number references are to the page identification number generated by the Court’s electronic docketing
system. Further, unless otherwise noted, all docket numbers refer to the docket maintained by this Court.
2

The only differences between the two motions were limited to a slight variation in language used to reflect the
posture of the parties in each court, such as the use of the term “Plaintiff-Appellee” instead of “Plaintiff.”

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for calculating reasonable attorney’s fees, plaintiff argues that the number of hours expended by
current counsel (121.10), multiplied by an hourly rate of $250, yields a reasonable rate for which
she should be allowed to recover from Ultimate Jetcharters. (Id. at 3236.)
In its brief in opposition, defendant argues that the initial award of fees was only
permitted under Ohio law because it was tied to the jury’s award of punitive damages. Defendant
posits that there is no basis under Ohio law for an award of fees on appeal, and cites the decision
in Shimman v. Int’l Union of Operating Eng’rs, Local 18, 744 F.2d 1226 (6th Cir. 1984) for
support. In Shimman, the Sixth Circuit held that Ohio law did not support an award of fees on
appeal in the absence of a fee shifting statute or a finding of bad faith. Id. at 1238. In her reply,
plaintiff acknowledges the ruling in Shimman, but argues that the ruling is distinguishable on the
facts and the law because “Ohio law has evolved since Shimman was decided in 1984.” (Reply at
3261.)
On September 12, 2016, the Sixth Circuit denied plaintiff’s motion for attorney’s fees.
(Braun v. Ultimate Jetcharters, LLC, Case Nos. 13-4145, 14-3816, 15-3462, Doc. No. 200.) In
denying fees on appeal, the Sixth Circuit noted that it “disagree[s] with Plaintiff that Ohio
common law has evolved to allow the recovery of fees accrued on appeal where fees were
awarded in the trial court pursuant to a punitive damages award.” (Id. at 3303.) Instead, the Court
observed that Ohio law continues to resist expanding the exceptions to the American Rule that
parties are responsible for their own fees, and fails to support an award of fees on appeal in this
case. (Id. quoting LaFarciola v. Elbert, No. 08CA 009471, 2009 WL 2858059, at ¶ 14 (Ohio Ct.
App. Sept. 8, 2009)).
The Sixth Circuit’s ruling and the case law it cites in support are dispositive of plaintiff’s
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identical request for fees in this Court. There is no basis upon which to award plaintiff the relief
she seeks and accordingly, her motion for attorney’s fees and costs is denied.
IT IS SO ORDERED.

Dated: March 10, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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