Szeinbach v. The Ohio State University

Filing 399

ORDER staying consideration of 358 Motion for Attorney Fees, and 384 Supplemental Motion For Attorney Fees Occurring After Docket 358 until the pending appeal is concluded. Signed by Magistrate Judge Terence P. Kemp on 9/23/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sheryl L. Szeinbach,

:

Plaintiff,

:

v.

:

The Ohio State University,

Case No. 2:08-cv-822

:
Magistrate Judge Kemp

Defendant.

:

ORDER
As this Court explained in its July 8, 2015 Order (Doc.
398), this case involves retaliation claims brought by Plaintiff
Sheryl L. Szeinbach against her employer, Defendant The Ohio
State University.

The case was referred to now-retired

Magistrate Judge Mark R. Abel for all proceedings; after he
granted summary judgment to Ohio State, the Court of Appeals
reversed and remanded the case for trial on Ms. Szeinbach’s
claims of differential salary increases and research misconduct
investigation.

After remand, the case was tried to a jury.

The

jury returned a verdict in Ms. Szeinbach’s favor on a claim of
coworker retaliation and awarded her damages in the amount of
$513,368.00, which the Court later reduced by $213,368.00 to
reflect the fact that she was not entitled to back pay.
Ms. Szeinbach filed an application for an interim award of
attorney’s fees and expenses and pre-judgment interest (Doc.
358), followed by a supplemental application for an interim award
of attorney’s fees and expenses and pre-judgment interest (Doc.
384).

Thereafter, Ms. Szeinbach appealed the Court’s Order

reducing the jury award.

Ohio State filed a cross-appeal as to

the judgment and the Court’s Order on a motion for a new trial.
Ohio State subsequently filed a memorandum in opposition to Ms.

Szeinbach’s applications for attorney’s fees, expenses, and prejudgment interest (Doc. 394), and Ms. Szeinbach filed a reply
brief (Doc. 396).

The Court of Appeals granted Ohio State’s

motion to voluntarily dismiss the cross-appeal.

Ms. Szeinbach’s

appeal remains pending.
Ohio State argues that Ms. Szeinbach’s applications for
attorney’s fees, expenses, and pre-judgment interest should be
stayed pending resolution of the appeal because “the decision
whether to award fees, and in what amount, is certain to be
affected by the pending appellate litigation.”
19).

(Doc. 394 at

Ohio State adds that a stay “is necessary to avoid

piecemeal litigation” and is in the interest of judicial economy.
Id.

Ms. Szeinbach opposes Ohio State’s request for a stay,

arguing that the outcome of the appeal is unlikely to have
bearing on the pending applications for attorney’s fees,
expenses, and pre-judgment interest.

Contrary to Ohio State’s

position, Ms. Szeinbach asserts that a prompt resolution – rather
than a stay of a decision – will avoid piecemeal litigation.

In

support of her position, Ms. Szeinbach cites to various district
court decisions outside of the Sixth Circuit which denied motions
to stay cost rulings pending the resolution of the underlying
appeals.

Finally, Ms. Szeinbach offers a compromise pursuant to

which she will reduce her cost petitions by more than ten percent
if this Court determines that no hearing is required and denies
Ohio State’s request to stay.

Ohio State did not move the Court

to respond to Ms. Szeinbach’s offer.
In Smith v. Indian Hill Exempted Village School Dist., 2012
WL 1813062, at *1 (S.D. Ohio May 17, 2012), the Court observed
that “[a]lthough a district court retains jurisdiction to rule on
a pending motion for attorney’s fees even when an appeal is
pending in the Sixth Circuit, issues of judicial economy counsel
against ruling” on such a motion until “the conclusion of the
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pending appeal.”

Id., adopted in Doc. 71 in 1:10-cv-718 (S.D.

Ohio July 10, 2012).

This Court agrees with Ohio State that the

pending appeal will likely impact this Court’s decision on Ms.
Szeinbach’s applications for attorney’s fees, expenses, and prejudgment interest.

Despite being aware of its retained

jurisdiction to rule on Ms. Szeinbach’s motions, the Court finds
that it is in the interest of judicial economy to decline to
issue such a ruling until the Court of Appeals has resolved the
appeal.

Based on the foregoing, the Court stays consideration of

Ms. Szeinbach’s application for an interim award of attorney’s
fees and expenses and pre-judgment interest (Doc. 358) and
supplemental application for an interim award of attorney’s fees
and expenses and pre-judgment interest (Doc. 384) until the
pending appeal is concluded.
/s/ Terence P. Kemp
United States Magistrate Judge

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