Bradley et al v. Miller et al

Filing 265

ORDER GRANTING PLAINTIFFS' MOTION FOR DAMAGES, ATTORNEYS FEES, AND COSTS (Doc. 264 ). Signed by Judge Timothy S. Black on 5/7/2015. (mr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DIANA BRADLEY, et al.,

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Plaintiffs
vs.
KEVIN MILLER, et al.,
Defendants.

Case No. 1:10-cv-760
Judge Timothy S. Black

ORDER GRANTING PLAINTIFFS’ MOTION
FOR DAMAGES, ATTORNEYS FEES, AND COSTS (Doc. 264)
This civil action is before the Court on Plaintiffs’ Motion for Damages, Attorney’s
Fees, and Costs. (Doc. 264). No responsive memoranda were filed.
I.

BACKGROUND

Plaintiff Diana Bradley, personally and on behalf of her deceased husband James
Bradley, moves for a determination of damages and an award of attorney’s fees and costs
against Defendants James D. Powell and Kevin Miller.
Plaintiffs Diana Bradley, James Bradley, and Cora May Pyles filed this action on
October 29, 2010. (Doc. 1). On May 17, 2012, Plaintiffs filed an amended complaint
asserting a total of twelve claims against ten Defendants. (Doc. 46). Three individual
Defendants were dismissed during the course of this litigation.
Defendants Capital Investments (“CI”), Great Miami Debentures (“GMD”), and
Great Miami Real Estate, LLC (“GMRE”) failed to move, answer, or otherwise plead in
response to the original and amended complaints. On August 22, 2013, the Court entered

default judgment as to liability and damages against Defendants CI, GMD, and GMRE.
(Doc. 188). The Court found that these business entity Defendants were jointly and
severally liable for $403,063.40 in damages, plus an amount to be determined for
attorney fees and costs. (Id. at 5). The Clerk entered judgment as to CI, GMD, and
GMRE on August 22, 2013. (Doc. 189). On March 31, 2015, the Court granted
Plaintiffs’ motion for an award of $102,832.50 in attorney fees and $1,600.05 in costs,
for which Defendants CI, GMD, and GMRE are jointly and severally liable. (Doc. 261).
On September 13, 2013, Defendants Curtis Powell and James Wilburn Powell
moved for summary judgment on all claims asserted against them. (Docs. 198, 205). On
September 16, 2013, the Bradleys moved for partial summary judgment against
Defendants James D. Powell, Kevin Miller, Curtis Powell, and James Wilburn Powell.
(Doc. 208). 1 Defendants James D. Powell and Kevin Miller did not respond to the
summary judgment motion, nor did they respond to motions for adverse inferences
premised on their refusal to answer questions at their depositions based on their Fifth
Amendment rights against self-incrimination. (Docs. 187, 192).
On March 31, 2015, the Court granted the motions for summary judgment filed by
Defendants James Wilburn Powell and Curtis Powell, and denied Plaintiffs’ cross motion
for summary judgment against them. (Doc. 260). As no claims remained pending
against Defendants James Wilburn Powell and Curtis Powell, the Court dismissed them
from the action. (Id. at 63). Additionally, the Court granted in part and denied in part

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Plaintiff Cora May Pyles did not move for summary judgment on her one claim asserted against
Defendant Kevin Miller.
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Plaintiffs’ partial motion for summary judgment as to liability against Defendants James
D. Powell and Kevin Miller. (Id.) Specifically, the Court entered judgment as a matter of
law against Defendant James D. Powell on Plaintiffs’ claims for violations of the Ohio
Corrupt Practices Act (“OCPA”) and OCPA conspiracy, Ohio Rev. Code § 2923.32(A),
and the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962(c). (Id.) The Court also entered judgment as a matter of law against Defendant
Kevin Miller on Plaintiffs’ OCPA conspiracy claim, but denied the motion for summary
judgment as to Plaintiffs’ OCPA and RICO claims. (Id.)
On April 13, 2015, Plaintiffs advised the Court that Plaintiff Cora May Pyles had
passed away and that Plaintiff Diana Bradley did not intend to pursue the pending claim
against Defendant Kevin Miller on her behalf. (Doc. 262). Additionally, the Bradleys
filed a Rule 41(a)(2) motion to dismiss their pending claims against Defendants James D.
Powell and Kevin Miller without prejudice. (Doc. 263). On April 15, 2015, the Court
dismissed the claim asserted by Plaintiff Cora May Pyles and granted the Bradleys’
motion to dismiss their pending claims against Defendants James D. Powell and Kevin
Miller without prejudice.
On April 20, 2015, Plaintiffs timely filed their motion for damages, attorney’s fees,
and costs. (Doc. 264). Defendants James D. Powell and Kevin Miller did not respond in
opposition.
II.

DAMAGES

Plaintiffs allege that they suffered $134,354.46 in actual damages from Defendant
James D. Powell’s violation of the OCPA and the conspiracy to violate the OCPA
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between Defendants James D. Powell and Kevin Miller. (Doc. 264 at 2). Plaintiffs seek
an award of treble damages under the OCPA. Ohio Rev. Code § 2923.34(E).
Plaintiffs rely upon the affidavit of Diana Bradley that was submitted in support of
their motion for default judgment against Defendants CI, GMD, and GMRE. (Doc. 1731 at ¶ 251). Plaintiff Diana Bradley declares that Defendant Kevin Miller defrauded her
into investing $45,990.77 with CI. (Id. at ¶ 28). Additionally, Plaintiff James Bradley
was defrauded into investing $88,362.23 with CI. (Id. at ¶ 23).
On August 22, 2013, the Court found that Defendants CI, GMD, and GMRE
caused $134,354.46 in damages to Plaintiffs Diana and James Bradley, and held that
these business entity Defendants were jointly and severally liable for $403,063.40 in
treble damages. (Doc. 188). The Clerk entered judgment accordingly. (Doc. 189).
Plaintiffs now seek to hold Defendants James D. Powell and Kevin Miller jointly
and severally liable with the business entity Defendants for the $403.063.40 judgment.
See TJX Cos. v. Hall, 916 N.E.2d 862, 868 (Ohio App. 2009) (recognizing that joint and
several liability is appropriate under the OCPA). The OCPA provides that “[t]o recover
triple damages, the plaintiff shall prove the violation or conspiracy to violate that section
and actual damages by clear and convincing evidence.” Ohio Rev. Code § 2923.34(E).
Just as with their motion for default judgment against the business entity Defendants,
Plaintiffs assert that they are entitled to treble damages without acknowledging the clear
and convincing evidence standard. (Docs. 173, 264). Nonetheless, the Court concludes
that Plaintiffs have satisfied this standard based on the affidavit of Plaintiff Diana Bradley

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and the failure of Defendants James D. Powell and Kevin Miller to offer any argument or
evidence in opposition. 2
Accordingly, Plaintiffs are awarded judgment against Defendants James D.
Powell, Kevin Miller, Capital Investments, Great Miami Debentures, and Great Miami
Real Estate, LLC jointly and severally in the amount of $403,063.40.
III.

ATTORNEYS FEES AND COSTS

The OCPA provides that a prevailing plaintiff “shall recover reasonable attorney
fees.” Ohio Rev. Code § 2923.34(F). In determining a reasonable fee award, the court
must “first calculate the number of hours reasonably expended on the case times an
hourly fee.” Bittner v. Tri-County Toyota, Inc., 569 N.E.2d 464, 467 (Ohio 1991). This is
commonly known as the “lodestar” calculation. The court may then modify the fee
award based on a consideration of the eight factors listed in Ohio Rule of Professional
Conduct 1.5(a). Snapp v. Castlebrook Builders, Inc., 7 N.E.3d 574, 601 (Ohio App.
2014).
The Supreme Court has instructed that counsel should “make a good faith effort to
exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary.” Hensley v. Eckhart, 461 U.S. 424, 434 (1983). The Supreme Court
reasoned that excluding such fees from a fee petition billed to an adversary under
statutory authority is akin to exercising “billing judgment” when billing hours to one’s

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The Court concludes that an evidentiary hearing on the issue of damages is not necessary
because the Court can ascertain the amount of Plaintiffs’ damages from the undisputed
evidentiary submissions and because Defendants James D. Powell and Kevin Miller have shown
that they do not intend to defend in this action.
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client. Id. Further, achieving only partial or limited success is relevant to the
determination of the reasonableness of the requested fee award. Id. at 436-37.
Counsel’s billing records reflect that he expended 1,466.70 hours in this action
between February 4, 2010 and October 3, 2013. (Doc. 237, Ex. B). This would result in
a lodestar calculation of $364,295.00. (Id.) However, counsel only seeks to recover fees
for the 416.60 hours expended between February 4, 2010 and June 20, 2012, plus 4.25
hours expended on June 13, 2013 in preparing the application for entry of default against
the business entity Defendants. (Doc. 237, Exs. C, D). Counsel billed at an hourly rate
of $200 between February 4, 2010 and October 18, 2010, and $250 per hour thereafter
(Id.) This results in a total fee request of $102,832.50.
On March 30, 2015, the Court found that the requested fee of $102,832.50,
representing 420.85 hours expended at an hourly rate of $200 and $250, was reasonable
and appropriate. (Doc. 261 at 4-5). The Court also reviewed and assessed as recoverable
$1,600.05 in costs incurred before June 20, 2012. (Id. at 5). Defendants CI, GMD, and
GMRE were jointly and severally liable for these awards, totaling $104,432.55. (Id.)
Plaintiffs now seek to hold Defendants James D. Powell and Kevin Miller jointly
and severally liable with Defendants CI, GMD, and GMRE for the $104,432.55 award of
attorney’s fees and costs. (Doc. 264). For the reasons set forth in the March 30, 2015
Order, the Court concludes that an award of $102,832.50 in attorney’s fees is reasonable
and appropriate. (Doc. 261 at 3-5). Additionally, an award of costs of $1,600.05 is
appropriate.

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Accordingly, Plaintiffs are entitled to recover $102,832.50 in attorney fees and
$1,600.05 in costs from Defendants James D. Powell, Kevin Miller, Capital Investments,
Great Miami Debentures, and Great Miami Real Estate, LLC, jointly and severally, grand
totaling $104,432.55.
IV.

CONCLUSION

Wherefore, for these reasons:
1. Plaintiff’s Motion for Damages, Attorney’s Fees, and Costs (Doc. 264) is
GRANTED;
2. Plaintiffs are awarded judgment against Defendants James D. Powell, Kevin
Miller, Capital Investments, Great Miami Debentures, and Great Miami Real
Estate, LLC, jointly and severally, in the amount of $403,063.40;
3. Plaintiffs are further awarded $102,832.50 in attorneys fees and $1,600.05 in
costs from Defendants James D. Powell, Kevin Miller, Capital Investments, Great
Miami Debentures, and Great Miami Real Estate, LLC, jointly and severally,
totaling of $104,432.55; and
4. The Clerk shall enter judgment accordingly, whereupon this case is CLOSED
in this Court.
IT IS SO ORDERED.
Date:

5/7/15

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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