Szeinbach v. The Ohio State University
OPINION AND ORDER - An Evidentiary Hearing re Plaintiff's attorney fee applications (Docs. 358 , 384 ) is set for 3/29/2017 at 10:00 a.m. Signed by Magistrate Judge Terence P. Kemp on 1/12/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Sheryl L. Szeinbach,
The Ohio State University,
Case No. 2:08-cv-822
Magistrate Judge Kemp
OPINION AND ORDER
This matter is before the Court on plaintiff Sheryl
Szeinbach’s application for an interim award of attorney’s fees,
expenses and pre-judgment interest and a supplemental application
seeking the same.
Defendant The Ohio State University has filed
a response and the motions have been fully briefed.
have requested an evidentiary hearing on the applications.
the following reasons, the request for an evidentiary hearing
will be granted.
As the Court of Appeals explained in its August 10, 2012
decision (Doc. 186), this case involves retaliation claims
brought by Ms. Szeinbach against her employer, Ohio State.
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.
returned a verdict in Ms. Szeinbach’s favor on a claim of
coworker retaliation and awarded her damages in the amount of
Shortly thereafter, Ms. Szeinbach filed her initial
application (Doc. 358).
Subsequently, the Court reduced the
damage award by $213,368.00 to reflect the fact that Ms.
Szeinbach was not entitled to back pay.
Ms. Szeinbach then filed
her supplemental application (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.
The Court of Appeals granted Ohio State’s motion to voluntarily
dismiss the cross-appeal.
The Court stayed its consideration of
Ms. Szeinbach’s applications pending resolution of the appeal.
The Court of Appeals affirmed the judgment and Ms.
Szeinbach sought a writ of certiorari from the United States
The Supreme Court denied the writ of certiorari
by order dated October 6, 2016.
Consequently, Ms. Szeinbach’s
applications are now ready for decision.
Following the Supreme Court’s ruling, this Court held a
At that conference the parties indicated that
their briefing identifies a threshold issue to be decided by the
Court arising from an offer of judgment Ohio State made to Ms.
Szeinbach on January 17, 2014, and its impact on post-offer
This issue was raised for the first time in Ohio State’s
response to Ms. Szeinbach’s fee applications.
It is to this
issue that the Court will turn first.
The Offer of Judgment
The starting point for the Court’s consideration of the
effect of Ohio State’s offer of judgment is the language of the
The offer, attached to Ohio State’s response as
Exhibit A (Doc. 394-1), states in its entirety:
To: Sheryl Szeinbach, Plaintiff, and Eric J. Rosenberg,
Attorney for Plaintiff
Pursuant to Fed.R.Civ.P. 68, The Ohio State
University, Defendant in the above captioned action,
makes the following offer of judgment to Plaintiff
1. A judgment in favor of Plaintiff and against
Defendant for Ohio Hundred Twenty Six Thousand Dollars
[$126,000], in full satisfaction of any and all damages
relating to any and all of Plaintiff’s claims against
Defendant in this action.
2. A judgment in favor of Plaintiff and against
Defendant that Plaintiff’s salary will be adjusted from
her current salary of Ohio Hundred Twenty Six Thousand
Six Hundred Fifty Five Dollars and Sixty Eight Cents
[$126,655.68] to an annual salary of One Hundred and
Thirty Two Thousand Three Hundred Fifty Five Dollars
[$132,355], effective no later than 30 days after the
entry of judgment.
3. A judgment in favor of Plaintiff and against
Defendant for Three Hundred Thousand Dollars
[$300,000], in full satisfaction of all costs,
expenses, and attorneys’ fees incurred and/or accrued
by Plaintiff to date of this offer in connection with
this action and which provides that Defendant shall
have no liability to Plaintiff for any additional
costs, expenses, and attorneys’ fees of Plaintiff in
connection with this action.
This offer of judgment shall resolve the entirety
of Plaintiff’s claims against Defendant in this action,
including but not limited to all claims and entitlement
to backpay, front pay, compensatory damages, statutory
damages, equitable relief, injunctive relief and all
claims and entitlement to attorneys’ fees, litigation
expenses, and all costs of this action and any
interest. Where applicable, monetary payments will be
subject to any required tax and benefit withholdings.
Pursuant to Fed.R.Civ.P. 68, Plaintiff has 14 days
from service of this offer to accept it in writing.
Also necessary to the Court’s consideration of the threshold
issue identified by the parties is the language of Rule 68.
Rule states, in relevant part:
Offer of Judgment
(a) Making an Offer; Judgment on an Accepted
Offer. At least 14 days before the date set for trial,
a party defending against a claim may serve on an
opposing party an offer to allow judgment on specified
terms, with the costs then accrued. If, within 14 days
after being served, the opposing party serves written
notice accepting the offer, either party may then file
the offer and notice of acceptance, plus proof of
service. The clerk must then enter judgment.
(b) Unaccepted Offer. An unaccepted offer is
considered withdrawn, but it does not preclude a later
offer. Evidence of an unaccepted offer is not
admissible except in a proceeding to determine costs.
(d) Paying Costs After an Unaccepted Offer. If
the judgment that the offeree finally obtains is not
more favorable than the unaccepted offer, the offeree
must pay the costs incurred after the offer was made.
Applying Rule 68 in the context of an offer of $426,000 and
Ms. Szeinbach’s damage award of $300,000, Ohio State asserts that
she is not entitled to recover an award for any costs incurred
after January 17, 2014.
Ohio State explains its position as
Its offer allowed judgment to be taken against it for
both damages and costs.
Although Rule 68 does not mandate it, in
an effort to illustrate its basis for the offer, it itemized the
respective amounts that it believed represented damages and
It states that it did not intend, by its proposed
breakdown, to restrict the payout amounts to the specific
categories and if Ms. Szeinbach had accepted, she was free to
distribute the total as she chose.
Ohio State asserts that its
having drafted the offer in this manner does not invalidate the
In short, Ohio State argues that because the $426,000
offer was more than the $300,000 in damages awarded to Ms.
Szeinbach, Rule 68 shifts responsibility for all post-offer
costs, which in this Title VII action also includes her attorney
fees, to Ms. Szeinbach.
Ohio State relies primarily on Marek v.
Chesny, 473 U.S. 1 (1985) in support of its position.
In her reply, Ms. Szeinbach contends that the cases cited by
Ohio State, and Marek in particular, actually support her
entitlement to her post-offer costs, including her attorney fees.
Further, she suggests, relying on Fulps v. City of Springfield,
715 F.2d 1088, 1091-92 (6th Cir. 1983), that Sixth Circuit
precedent supports Ohio State’s division of the offer of judgment
into discrete parts.
More importantly, however, Ms. Szeinbach
contends that this voluntary division of amounts within the offer
of judgment prevents Ohio State from suggesting that the entire
amount of the offer of judgment was intended as damages.
Finally, she explains that, under Marek, the amount of the offer
of judgment here is to be compared to the $300,000 damages award
she received plus the $467,743.92 in pre-offer attorney fees that
She contends that this amount, even with some
potential for reduction to the amount of pre-offer costs, well
exceeds Ohio State’s $426,000 offer of judgment.
As the Court understands the parties’ arguments, Ohio State
focuses on Ms. Szeinbach’s potential discretion to re-allocate
the amounts set forth in its offer of judgment.
position seems to suggest that this is the controlling issue
This is so despite Ohio State’s citation to Marek for the
principle that Rule 68 is not so much concerned with an offer’s
particular components but with the judgment to be allowed against
As explained below, the numerical allocation
contained within the offer of judgment is not central to the
Court’s application of Rule 68.
Consequently, the Court will not
devote any time to this issue other than to state that Ohio
State’s focus is misplaced.
Instead, the Court will limit its
consideration to the comparison required by Rule 68.
Here, there is no question that Ohio State contends that the
proposed judgment amount was $426,000.
There is also no question
that this offer was intended to apply to both a damages award and
all costs, expenses and attorney fees.
Ohio State’s position
assumes, without any discussion, that Ms. Szeinbach’s damages
award of $300,000 constitutes the judgment finally obtained for
Rule 68 purposes.
To the contrary, Ms. Szeinbach contends that,
under Marek, her pre-offer attorney fees and costs must be added
to the $300,000 award for purposes of a Rule 68 comparison.
making this argument, Ms. Szeinbach seems to recognize that the
amount of her pre-offer fees and costs is subject to a
reasonableness analysis by the Court.
For the following reasons,
the Court agrees with Ms. Szeinbach.
In a case involving, in part, claims arising under the
federal Truth in Lending Act and the Equal Credit Opportunity
Act, the Court of Appeals recognized that “the only way in which
Rule 68 directly implicates awards of attorney’s fees is in
situations where such fees are made an element of ‘costs’ whether such by statute (42 U.S.C. §1988 is the most familiar)
example) or as a matter of contract.”
McCain v. Detroit II Auto
Finance Center, 378 F.3d 561, 563 (6th Cir. 2004).
There is no
question that, for purposes of the Court’s analysis in this case,
“Title VII provides that ‘the court, in its discretion, may allow
the prevailing party [in litigation under Title VII] ... a
reasonable attorney’s fee ... as part of the costs.’
Isabel v. City of Memphis, 404 F.3d 404, 415 (6th
Further, the standard of awarding attorney’s fees to
a prevailing party under §1988 applies to awards under Title VII.
Virostek v. Liberty Twp. Police Dep’t/Tr., 14 Fed.Appx. 493, 510
(6th Cir. 2001).
The parties agree that attorney fees fall
within the definition of costs in this case.
In McCain, the Court of Appeals, while noting the
distinguishing circumstances, acknowledged that Marek, an action
arising under 42 U.S.C. §1983, is the seminal case on the subject
of Rule 68 offers and costs.
In doing so, the Court looked to
Marek to explain that:
If an offer recites that costs are included or
specifies an amount for costs, and the plaintiff
accepts the offer, the judgment will necessarily
include costs; if the offer does not state that costs
are included and an amount for costs is not specified,
the court will be obliged by the terms of the Rule to
include in its judgment an additional amount which in
its discretion, it determines to be sufficient to cover
the costs. In either case, however, the offer has
allowed judgment to be entered against the defendant
both for damages caused by the challenged conduct and
for costs. Accordingly, it is immaterial whether the
offer recites that costs are included, whether it
specifies the amount the defendant is allowing for
costs, or for that matter, whether it refers to costs
McCain, 378 F.3d at 563-564, quoting Marek, 473 U.S. at 6.
Further, the Court of Appeals noted that, because Rule 68
refers only to costs but not attorney fees, Marek spoke to the
issue of attorney fees as follows:
In other words, all costs properly awardable in an
action are to be considered within the scope of Rule 68
“costs.” Thus, absent congressional expressions to the
contrary, where the underlying statute defines “costs”
to include attorney’s fees, we are satisfied such fees
are to be included as costs for purposes of Rule 68.
McCain, 378 F.3d at 564, quoting Marek, 473, U.S. at 9.
the circumstances of the case before it, the Court of Appeals
clarified that nothing in Marek addresses the relationship
between a Rule 68 offer and an award of attorney fees not
categorized as costs.
Roughly a decade later in Hescott v. City of Saginaw, 757
F.3d 518, 528 (2014), also a §1983 action, the Court of Appeals
reiterated that Marek held “that attorneys’ fees are included in
the definition of ‘costs’ under Rule 68 so long as fees are
‘properly awardable [as costs] under the relevant substantive
The Court of Appeals acknowledged the Supreme Court’s
reasoning in Marek that, “because a prevailing party in a civilrights suit may recover attorneys’ fees ‘as part of costs’ under
§1988, a plaintiff who receives a judgment less than the
defendant’s Rule 68 settlement offer cannot recover his or her
own post-offer attorney fees.”
Id., citing Marek, 473 U.S. at 9.
The Hescott Court cautioned, however, that Marek “drew a ‘strict
link’ between [Rule 68] and the underlying statute that
authorizes a fee award.’”
Id., citing Payne v. Milwaukee Cnty.,
288 F.3d 1021, 1027 (7th Cir. 2002).
The Court of Appeals in Hescott also explained that “Rule 68
requires the court to compare a settlement offer that includes
“costs then accrued” with the ‘judgment” that the [claimant]
Id. at 527.
Referring to this requirement as
an “apples-to-apples comparison” it noted that the “‘judgment’
used ... includes not just the damages award, but also the
claimant’s pre-offer costs and fees actually awarded.” Id.,
citing Marek, 473 U.S. at 7.
In explaining the comparison
required by Rule 68, the Court of Appeals acknowledged that this
approach is consistent with that employed by other courts of
See id., citing Bogan v. City of Boston, 489 F.3d 417,
431 (1st Cir. 2007); Marryshow v. Flynn, 986 F.2d 689, 692 (4th
Cir. 1993); Grosvenor v. Brienen, 801 F.2d 944, 948 (7th Cir.
In Doe v. Rutherford County, Tenn. Bd. of Educ. 86 F.Supp.3d
831, 847 (2015), a case involving Title IX retaliation, the court
relied on Hescott in determining how it “should measure the value
of the ‘judgment’ [the plaintiff] ‘finally obtain[ed].’”
on Hescott, and noting the other cases cited with approval by the
Court of Appeals in that case, the Rutherford County court
concluded that it was required to conduct a “two-step analysis”
requiring that: “(1) the court  determine what pre-offer fees
and expenses (i.e. the ‘costs’ under §1988) are reasonable under
the circumstances; and (2) ... then add the value of the jury
award to that amount ... and compare that number to the value of
In reaching this conclusion, the Rutherford
County court looked to Marryshow and Bogan as support for its
In Marryshow, the Fourth Circuit explained:
Rule 68 requires that a comparison be made between
an offer of judgment that includes “costs then accrued”
and the “judgment finally obtained”.... To make a
proper comparison between the offer of judgment and the
judgment obtained when determining, for Rule 68
purposes, which is the more favorable, like “judgments”
must be evaluated. Because the offer includes costs
then accrued, to determine whether the judgment
obtained is more favorable ... the judgment must be
defined on the same basis - verdict plus costs incurred
as of the time of the offer of judgment.
Id., quoting Marryshow, 986 F.2d at 692.
The Rutherford County court further explained that in Bogan,
the First Circuit indicated “that crediting a plaintiff’s
requested amount for pre-offer fees and costs, rather than the
amount actually awarded by the court after conducting the
‘reasonableness’ analysis, would be illogical.”
Bogan, 489 F.3d at 431.
Rather, a “‘prevailing party could
always evade the Rule 68 bar simply by asking for a sufficiently
large fee award so that the judgment finally obtained exceeds the
The Court finds the two-step analysis identified in
Rutherford County directly applicable here.
the Court can conclude whether Ms. Szeinbach is entitled to
recover any costs, including attorney fees, she incurred after
Ohio State made its offer of judgment on January 17, 2014, it is
required to determine the amount of pre-offer fees and expenses
that are reasonable under the circumstances of this case.
is the issue to which the Court will now turn.
Ms. Szeinbach’s Pre-Offer Attorney Fees and Costs
Generally, parties are required to pay their own attorney’s
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010).
Congress enacted 42 U.S.C. §1988(b) as an exception to this
general rule “in order to ensure that federal rights are
Under that statute, a court has
discretion to award a prevailing party, other than the United
States, a reasonable attorney’s fee.
42 U.S.C. §1988.
also provides for a recovery of reasonable attorney’s fees by a
42 U.S.C. §2000e-5(k).
As noted above,
the standard of awarding attorney’s fees to a prevailing party
under §1988 applies to awards under Title VII.
Fed.Appx. at 509.
“Although §1988 uses permissive language regarding fee
awards, ‘the Supreme Court has read [§1988] as mandatory where
the plaintiff prevails and special circumstances are absent.’”
Hescott, 757 F.3d at 523, quoting Deja Vu v. Metro. Gov’t of
Nashville & Davidson Cnty., Tenn., 421 F.3d 417, 420 (6th Cir.
A party is considered a prevailing party if she
“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 (1983).
In Hensley, the
Supreme Court explained that ‘[t]he most useful starting point
for determining the amount of a reasonable fee is the number of
hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.”
This amount is referred to as the
Garner v. Cuyahoga Cnty. Juvenile Ct., 554 F.3d 624,
642 (6th Cir. 2009).
“The award-seeking party should submit evidence of the hours
worked and the rates sought.”
The Northeast Ohio Coalition for
the Homeless v. Husted, 831 F.3d 686, 702 (6th Cir. 2016), citing
Hensley, 461 U.S. at 433.
“If ‘documentation of hours is
inadequate, the district court may reduce the award
Fee applicants must exercise “billing
judgment” meaning counsel is expected to “exclude from a fee
request hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice is ethically
obligated to exclude such hours from his fee submission.”
Courts are required to exclude from the lodestar calculation
hours that were not reasonably expended.
an appropriate fee award ‘should not result in a second major
Abernathy v. Corinthian Colleges, Inc., 2014 WL
4272723 *5 (S.D. Ohio Aug. 29, 2014), quoting Hensley, 461 U.S.
The Fee Applications
As noted above, the issue presented by the offer of judgment
was not raised until Ohio State’s response.
Szeinbach’s applications are not neatly divided in terms of preand post-offer attorney fees and costs.
Ms. Szeinbach’s initial
application seeks $949,968.13 in interim attorney fees and
This amount is divided as follows.
The bulk of the
amount is attributable to $827,920.00 for billable time spent by
her lead counsel in this litigation, Eric Rosenberg; his
associate David Ball; and Paul Bittner, an attorney at
Schottenstein, Zox and Dunn, Mr. Ball’s former firm.
proposes that Mr. Rosenberg and Mr. Ball be compensated at the
following rates: (a) $325.00 per hour from 2011 to present; (b)
$275.00 per hour from 2009 - 2010; and (c) $225.00 per hour from
2007 - 2008.
Additionally, Ms. Szeinbach seeks compensation for
time spend by Diane Jaquish, an attorney who assisted Mr.
Rosenberg throughout the 14-day jury trial, at the rate of
$200.00 per hour for 223.9 hours for a total of $44,780.00.
Further, Ms. Szeinbach seeks compensation at the rate of $40.00
per hour for 205.45 hours of time spent by two legal assistants
for a total of $8,218.00.
She also requests an interest award on
her attorney fees of $9,853.72, reflecting an interest rate of
2.35 percent over the time period from 2007 through 2014.
Finally, Ms. Szeinbach requests $53,752.71 in non-attorney fee
costs incurred from September 2007 through May - June 2014.
Ms. Szeinbach contends that the award she seeks is
reasonable and not subject to reduction because her successful
and unsuccessful claims arise from a common core of facts.
Further, she maintains that the requested award is proportionate
to her damages award.
She also seeks $5,443.75 in attorney fees
for preparation of the fee application and prejudgment interest.
In her supplemental application, Ms. Szeinbach requests an
additional $66,869.50 in attorney fees and costs broken down as
She seeks $2,372.00 for copies of trial transcripts.
Additionally, she seeks $59,800 in attorney fees for 184 hours
spent by counsel in preparing a memorandum contra Ohio State’s
motion for a new trial and $4,875.00 in attorney fees for 15
hours spent by counsel on various other activities.
requests an award of $300.00 for time spent by one of Mr.
Rosenberg’s legal assistants in reviewing the time sheets
attached to both the original and supplemental applications.
Finally, she notes that $477.50 should be deducted from the
original petition due to an overstatement of hours and reiterates
her request for prejudgment interest.
Both of Ms. Szeinbach’s applications are supported by
affidavits from Mr. Rosenberg and copies of billing records.
requests a hearing on her applications.
In response, Ohio State identifies $419,308.50 in attorney
fees and $23,300.72 in costs that Ms. Szeinbach seeks relating to
the pre-offer time period.
Within this time period, Ohio State
contends that, at most, Ms. Szeinbach’s records indicate that she
paid a total amount of only $179,106.09 in attorney fees and
Ohio State asserts that the amount of costs Ms. Szeinbach
identifies must be reduced or denied because counsel’s hourly
rate is unreasonable, billing records are deficient, the
application seeks compensation for excessive, redundant and
unnecessary hours, and time spent on claims unrelated to the coworker retaliation claim is non-compensable.
More specifically, Ohio State points out that Ms. Szeinbach
has not cited any independent evidence of market rates for
counsel litigating a Title VII claim in central Ohio but that an
attorney’s billing rate can be a reliable indicator of market
Consequently, Ohio State contends that Ms. Szeinbach’s
counsel should be compensated at the rates he actually charged.
According to Ohio State, statements counsel made to the Court and
invoices indicate that counsel’s rate ranged from $100.00 to
$175.00 per hour, and counsel led both Ohio State and the Court
to believe this was an accurate rate.
In further support of its
position that counsel’s billing rate is unreasonable, Ohio State
asserts that the rate should reflect the quality of
Ohio State cites examples of conduct that it
believes demonstrate that, despite success on the co-worker
retaliation claim, Ms.
Szeinbach’s counsel should not command
the requested hourly rate.
With respect to the issue of billing record deficiencies,
Ohio State notes that Mr. Rosenberg admittedly lost billing
records and this required him to obtain copies of cancelled
checks from the bank to demonstrate Ms. Szeinbach’s payments.
When asked in deposition about the payments reflected by the
checks and deductions for legal fees taken by her consulting
company, Ms. Szeinbach could not specifically tie either to this
As for its contention that counsel billed excessive,
redundant or unnecessary hours, Ohio State notes several examples
of what it characterizes as “do overs” necessitated by counsel’s
Further, it notes that many hours were spent by counsel
as a result of “his refusal to follow the District Court’s orders
and even the law of the case as set forth by the Sixth Circuit.”
As an example, Ohio State cites to counsel’s conduct involving
discovery motions relating to Terry Elton and the decision to
seek to amend the complaint twice following the Court of Appeals’
first order directed to summary judgment.
With respect to the issue of unrelated claims, Ohio State
makes two arguments.
First, it argues that the co-worker
retaliation claim on which Ms. Szeinbach ultimately prevailed
relied on a more discrete set of facts than her much broader
direct retaliation claims.
As a result, Ohio State identifies
sixteen individuals for which it believes Ms. Szeinbach’s counsel
cannot seek an award of fees relating to their depositions.
Further, Ohio State contends that any fee award must reflect Ms.
Szeinbach’s level of success.
To this point, Ohio State asserts
that counsel’s efforts relating to Robert Lee as a comparator
were wasted as were his efforts relating to Drs. Roig and Donick
who were both disqualified as experts.
Ohio State further
requests that all time related to Dr. Dembe, “a supposed expert
named Fink,” and “another individual named Higgon” be deducted.
While most of Ohio State’s billing challenges contain
citation to the record, it is minimal and not specifically
directed to any line item billing.
Further, Ohio State explains
that it has addressed only a sampling of the many billing errors
Consequently, Ohio State does not set forth a specific
amount of attorney fees or costs it believes are appropriate for
the pre-offer period.
Noting the voluminous time entries, Ohio
State joins in Ms. Szeinbach’s request for a hearing on the fee
Ohio State challenges Ms. Szeinbach’s request to include
expenses for food, parking and office supplies as taxable costs.
Finally, Ohio State contends that, because Ms. Szeinbach was not
awarded back pay and because her complaint did not request
prejudgment interest, the request made in her applications should
Ms. Szeinbach filed a lengthy reply addressing point by
point Ohio State’s response.
In this reply, Ms. Szeinbach takes
issue with Ohio State’s position that counsel’s billing rate
ranged from $100.00 to $175.00 an hour.
correspondence that she explains reflects lodestar updates
demonstrating that in February, 2011, counsel began charging a
rate of $225.00 per hour and that this rate increased to $275.00
per hour on January 30, 2014, and $325.00 per hour on July 2,
She submitted an affidavit of counsel averring that all
cancelled checks produced in discovery totaling $231,896.09 were
applied to the outstanding balance in this litigation.
contends that the lodestar updates belie Ohio State’s suggestion
that it was misled to believe that the amount of fees to be
sought was limited to the amount of the cancelled checks.
Beyond this, Ms. Szeinbach contends that any award short of
her full request would allow a windfall to Ohio State at her
She maintains that consistent with Hensley, she is
entitled to her full fee and, given Ohio State’s litigation
tactics, it cannot complain about counsel’s expenditure of time.
Moreover, she suggests, given the length of the litigation, Sixth
Circuit precedent would fully support a $325 hourly rate for
counsel for all time spent and Ohio State should appreciate the
“step-down” hourly rates requested.
Additionally, she cites
cases from the Northern District of Ohio approving hourly rates
of $475.00 or $350.00 for counsel with similar experience.
With respect to the issue of her failure to provide
independent evidence of market value, Ms. Szeinbach explains that
she could not find any reported cases on point.
counsel could not afford to retain an expert witness.
she asserts, expert testimony is not necessary because counsel is
seeking an award below that approved in other reported decisions.
Ms. Szeinbach offers to reduce her request for costs to
$989,083.26 and to forego her ability to enhance her costs by a
1.75 multiplier which she believes she would be entitled to under
various Sixth Circuit precedent applying Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974).
She suggests, however, that a multiplier of at least 1.2 pursuant
would be warranted in this case under the Johnson factors and
requests that such a multiplier be applied in the event that a
hearing is held.
Further, she requests leave to call an expert
witness to testify at the hearing in support of her applications
and then requests that Ohio State be required to reimburse her
for the costs involved.
In response to Ohio State’s assertion that her counsel ran
up hours at Ohio State’s expense, Ms. Szeinbach both challenges
at length Ohio State’s specific examples and identifies examples
she believes demonstrate precisely the opposite.
asserts that no reduction of costs is warranted here because all
of her Title VII retaliation claims arose from a common core of
facts and related legal theories.
exactly how this is so.
She explains in some detail
Finally, Ms. Szeinbach disputes that her
counsel’s billing records are deficient and devotes significant
discussion to challenging Ohio State’s position relating to time
spent on numerous depositions.
As noted, the preliminary issue before the Court is whether
Ms. Szeinbach is entitled to recover post-offer of judgment
costs, which in this case includes attorney fees, or whether such
recovery is precluded by the operation of Rule 68.
does not warrant extensive discussion.
Initially, however, the
Court notes that neither party addresses the issue of the
$5,699.32 salary adjustment (“Plaintiff’s salary will be adjusted
from her current salary of Ohio Hundred Twenty Six Thousand Six
Hundred Fifty Five Dollars and Sixty Eight Cents [$126,655.68] to
an annual salary of One Hundred and Thirty Two Thousand Three
Hundred Fifty Five Dollars [$132,355]”), included in the offer of
Ohio State refers to the offer of judgment as totaling
only $426,000.00 ($126,000.00 for damages and $300,000.00 for
attorney fees and costs).
In her reply, Ms. Szeinbach, in what
appears to be a typographical error, refers to the offer of
judgment as totaling $426,655.68.
For purposes of its
discussion, the Court will construe the offer of judgment as
As the above cases instruct, the Court need only conclude
that Ms. Szeinbach’s pre-offer costs exceed $131,699.32 because
if that amount were added to her $300,000.00 damages award, it
would result in a judgment finally obtained by Ms. Szeinbach that
exceeds Ohio State’s offer of $431,699.32.
As indicated, Ms.
Szeinbach does not divide her fee applications neatly between
pre- and post-offer of judgment costs.
Ohio State, however,
breaks down Ms. Szeinbach’s identified pre-offer costs and
attorney fees as $419,308.50 and $23,3330.72, respectively, for a
total amount of $442,639.22.
In the context of arguing that this
amount is clearly subject to reduction, Ohio State asserts that
Ms. Szeinbach’s canceled checks demonstrate that she paid only
$179,106.09 in attorney fees and costs over the time period prior
to the offer of judgment.
Without conducting a full
reasonableness analysis (and, based on the current state of the
record, it would be difficult for the Court to undertake one), it
is easy for the Court to conclude that, in order for Ms.
Szeinbach to be precluded from recovering her post-offer costs,
including attorney fees, the Court would have to find that she is
entitled to recover pre-offer costs and fees in an amount at
least $47,406.77 less than the amount of fees and costs Ohio
State contends that she paid during this time period.
the Court notes that, in its offer of judgment, Ohio State
allocated $300,000 to attorney fees and costs.
suggests that an award of pre-offer fees and costs below
$131,699.32 would likely be unreasonable.
Ohio State attempts to minimize this reality in two ways.
First, it contends that the offer of judgment was divided between
costs and damages merely as a suggestion such that Ms. Szeinbach
could allocate the entire offered amount in a different manner
than Ohio State had structured.
That is, presumably, Ms.
Szeinbach could allocate less to fees and more to damages than
Ohio State proposed.
This argument is not persuasive for the
reasons discussed above.
Moreover, contract principles apply to
Rule 68 offers and Ohio State’s language unambiguously suggests
that it believed $300,000.00 was an adequate amount of attorney
fees to offer in settlement of this action.
See Sharpe v.
Cureton, 319 F.3d 259, 275 (6th Cir. 2003)(contract principles
apply to Rule 68 offers).
Second, Ohio State argues that it is not clear whether all
of the payments reflected by Ms. Szeinbach’s canceled checks were
applied to this litigation.
In reply, however, Ms. Szeinbach has
submitted an affidavit of counsel in which he states that all
such payments were applied to her outstanding balance for costs
and attorney fees associated with this litigation.
of Eric J. Rosenberg, Doc. 396-2.
In light of this, the Court
has no difficulty concluding that the judgment finally obtained
by Ms. Szeinbach for purposes of Rule 68 will, in all
probability, exceed Ohio State’s offer of judgment.
sufficient to justify proceeding on her entire fee application.
With this in mind, the Court will grant the parties’ request
for an evidentiary hearing on Ms. Szeinbach’s fee applications.
The parties are advised that, consistent with the above analysis,
the hearing will be addressed to both pre- and post-offer of
judgment fees and costs.
Ms. Szeinbach is reminded that she must
justify the reasonableness of her requested fee award.
Stenson, 465 U.S. 886, 897-898 (1984).
Further, she bears the
burden of documenting entitlement to the award.
Reed v. Rhodes,
179 F.3d 453, 472 (6th Cir. 1999), citing Webb v. Dyer County Bd.
of Educ., 471 U.S. 234, 242 (1985).
She “‘should submit evidence
supporting the hours worked and rates claimed.
documentation of hours is inadequate, the district court may
reduce the award accordingly.’” Id., quoting Hensley, 461 U.S. at
As the Court of Appeals recently explained:
... preparing and supporting a fee application is
more strenuous than invoicing an hourly client in the
marketplace because much more detail and proof is
required under §1988. Unlike privately paid attorneys,
civil rights attorneys must support their bills with
expert affidavits, distinguish between time spent on
successful and unsuccessful claims, defend their
billing rates, and compare them to similar attorneys.
Such documentation is required for even the most basic
fee petition if counsel are to meet their burden of
The Northeast Ohio Coalition for the Homeless, 831 F.3d at 724.
Further, based on the Court’s review of the billing records
as currently submitted, Ms. Szeinbach is also reminded that
“‘clerical or secretarial tasks ought not be billed at lawyers’
rates, even if a lawyer performs them.’”
State Farm Fire & Cas.
Co. v. Rowland Plumbing, Ltd., 2013 WL 5442302, *4 (N.D. Ohio
Sept. 27, 2013), quoting Cleveland Area Bd. of Realtors v. City
of Euclid, 965 F.Supp. 1017, 1022 (N.D. Ohio 1997).
In fact, a
“purely clerical activity is not billable at a paralegal’s rate,
or any rate at all, because such tasks are included in office
Abernathy, 2014 WL 4272723, *16.
Ohio State is reminded that”’[a] district court has broad
discretion to determine what constitutes a reasonable hourly rate
for an attorney.’”
Waldo v. Consumers Energy Co., 726 F.3d 802,
821 (6th Cir. 2013), quoting Wayne v. Village of Sebring, 36 F.3d
517, 533 (6th Cir. 1994).
Reasonable attorney fees are
calculated in light of the prevailing market rates in the
Binta B. v.
Gordon, 710 F.3d 608, 627 (6th
Cir. 2013); see also Adcock-Ladd v. Sec’y of Treasury, 227 F.3d
343, 350 (6th Cir. 2000).
“‘[t]he appropriate rate ...
is not necessarily the exact value sought by a particular firm,
but is rather the market rate in the venue sufficient to
encourage competent representation.’”
Potter v. Blue Cross Blue
Shield of Michigan, 10 F.Supp.3d 737, 746 (E.D. Mich. 2014),
quoting Gonter v. Hunt Valve Co., 510 F.3d 610, 618 (6th Cir.
“The prevailing market rate is ‘that rate which lawyers
of comparable skill and experience can reasonably expect to
command within the venue of the court of record.’”
“A district court is permitted to ‘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.’” Waldo, 726 F.3d at 821-822, quoting Van
Horn v. Nationwide Prop. & Cas. Ins. Co., 436 Fed.Appx. 496, 499
(6th Cir. 2011).
Finally, the Court notes that Ms. Szeinbach has included in
her fee applications a request for pre-judgment interest.
State has opposed this request.
In her reply, Ms. Szeinbach
suggests her request hinges on the Court of Appeals’ decision
regarding the back pay award.
As discussed, the Court of Appeals
has now issued its decision confirming Judge Abel’s denial of a
back pay award.
Ms. Szeinbach also suggests that she “leaves the
resolution of this issue to this Court’s discretion.”
so, she attempts to distinguish this case from Abernathy, a Title
VII retaliation case in which Magistrate Judge King denied a
discretionary award of pre-judgment interest for lack of support
in the record.
She also notes that she is willing to forego this
interest if the Court determines no hearing is required and it
rejects the motion to stay.
Those contingencies did not occur.
Consequently, it may be that Ms. Szeinbach intends to pursue her
The current record, however, is insufficient to allow
the Court to reach any conclusion that such a discretionary award
is appropriate here.
However, if Ms. Szeinbach plans to seek
pre-judgment interest, she may address that issue at the
evidentiary hearing as well.
For the reasons set forth above, the parties’ request for an
evidentiary hearing on the plaintiff’s attorney fee applications
The Clerk shall set this matter for hearing on March
29, 2017 at 10:00 a.m.
/s/ Terence P. Kemp
United States Magistrate Judge
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