Szeinbach v. The Ohio State University

Filing 436

OPINION AND ORDER granting in part 358 First MOTION for Attorney Fees and 384 MOTION re 358 First MOTION for Attorney Fees Supplemental Motion For Attorney Fees Occurring After Docket 358. Plaintiff is awarded 938,560.53 in attorneys ' fees. Further, Plaintiff is awarded costs in the amount of $87,525.28. The Clerk is directed to enter a judgment in Plaintiff's favor in the amount of $1,026,085.81. Signed by Magistrate Judge Terence P. Kemp on 6/30/2017. (kdp)

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.

:

OPINION AND ORDER
There has been much written lately about the cost and delay
associated with resolving cases in federal court.

While there is

literature on both sides of the question - some suggesting that
even with the recent changes to the Federal Rules of Civil
Procedure and with more active case management on the part of
judges, it still costs too much and takes too long to get a
decision in a federal case, and others pointing out that the
average time and expense to bring such a case to resolution is
not out of line - this case could serve as a poster child for the
argument that federal court litigation has become prohibitively
expensive.
As numerous other opinions and orders issued by both this
Court and by the Court of Appeals for the Sixth Circuit reflect,
Dr. Szeinbach filed this case in 2008, asserting that she had
been unfairly targeted for investigation based on allegations of
research misconduct, and that the real motive behind Ohio State’s
actions related to her filing of a discrimination claim and her
support of another colleague’s similar claim.

After more than

two years of motions practice and discovery, the Court granted
summary judgment to Ohio State.

Dr. Szeinbach successfully

appealed that decision, although the appeal took another year and

a half to resolve.

Once the mandate issued, it took almost two

more years for the case to proceed to trial, and then only after
the Court issued a 72-page opinion and order denying a renewed
motion for summary judgment.
The trial lasted fourteen days.

At the end, the jury

returned a verdict in favor of Dr. Szeinbach on a claim of coworker retaliation which was, according to the verdict, something
that Ohio State supervisors or members of management either knew
or had reason to know about, and also something that those same
officials either condoned, tolerated or encouraged, or failed
adequately to respond to.
Inevitably, a post-trial motion followed, which was granted
in part and denied in part.

In the meantime, Dr. Szeinbach, as

the prevailing party, moved for attorneys’ fees under 42 U.S.C.
§1988 and supplemented that motion.

Dr. Szeinbach then appealed

Judge Abel’s order granting some post-trial relief to Ohio State,
and Ohio State cross-appealed.

The cross-appeal was dismissed,

but Dr. Szeinbach persisted in her appeal, which ultimately (i.e.
fifteen months later) was decided against her.

She then

petitioned the United States Supreme Court for a writ of
certiorari but was, again, unsuccessful.

While all that was

happening, the attorneys’ fees matter was stayed.
After the fee issue was reactivated, the Court made a
preliminary ruling denying one of Ohio State’s arguments about
the effect of an offer of judgment, and it set the matter for a
hearing.

The docket reflects that in the five months which

elapsed since that order was entered, there were 24 additional
docket entries made; the hearing was continued once; and the
Court held two discovery conferences.
ensued.

The two-day hearing then

By the time this Opinion and order will be issued, the

case will have been pending for almost nine years. It is not
surprising that Dr. Szeinbach’s attorney is asking for a million-2-

dollar fee.

It is also not surprising that Ohio State’s outside

counsel, who handled this case for a period of time (but not
including the trial, any of the post-trial motions or second
appeal, and any proceedings on the attorneys’ fees portion of the
case), billed 12,400.45 hours of time for their work.

See

Exhibit 15, p., l64.
It is not possible, at this point, to place either blame or
responsibility on any one party or institution for this nine-year
saga.

Some cases have to be tried.

This may have been one of

them.

Some cases are very complex.

That appears to be true of

this case as well.

The best that can be said now is that it is

time for the Court to write what will hopefully be the final
chapter (although given that this order is appealable, that is by
no means certain).

The Court now turns to the issue of what is a

reasonable fee for the time expended by Dr. Szeinbach’s counsel
in proving her case.
I. Attorneys’ Fees
Generally, parties are required to pay their own attorney’s
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010).

fees.

Congress enacted 42 U.S.C. §1988(b) as an exception to this
general rule “in order to ensure that federal rights are
adequately enforced.”

Id.

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.

Title VII

also provides for a recovery of reasonable attorney’s fees by a
prevailing plaintiff.

42 U.S.C. §2000e-5(k).

The standard of

awarding attorney’s fees to a prevailing party under §1988
applies to awards under Title VII.

Virostek v. Liberty Township

Police Department/Trustees, 14 Fed.Appx. 493, 509 (6th Cir.
2001).
“Although §1988 uses permissive language regarding fee
awards, ‘the Supreme Court has read [§1988] as mandatory where
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the plaintiff prevails and special circumstances are absent.’”
Hescott v. City of Saginaw, 757 F.3d 518, 523 (6th Cir. 2014),
quoting Deja Vu v. Metro. Gov’t of Nashville & Davidson Cnty.,
Tenn., 421 F.3d 417, 420 (6th Cir. 2005).

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.”
(1983).

Hensley v. Eckerhart, 461 U.S. 424, 433

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.”
referred to as the “lodestar.”

Id.

This amount is

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
accordingly.’”

Id.

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.”

Id.

Courts are required to exclude from the lodestar calculation
hours that were not reasonably expended.

Id.

Courts are not

required to act as “green-eyeshade accountants” and “achieve
auditing perfection” but must simply do “rough justice.”
Vice, 563 U.S. 826, 838 (2011).

Fox v.

Finally, “[d]etermination of an

appropriate fee award ‘should not result in a second major
litigation.’”

Abernathy v. Corinthian Colleges, Inc., 2014 WL

4272723 *5 (S.D. Ohio Aug. 29, 2014), quoting Hensley, 461 U.S.
at 437.
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A.

Reasonable hourly rates

The legal standard for calculating a reasonable hourly rate
is exceedingly well-documented in the case law.

A reasonable

hourly rate is typically “the prevailing market rate, defined as
the rate that lawyers of comparable skill and experience can
reasonably expect to command within the venue of the court of
record.”

Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004).

Judge Marbley recently explained the standard in Autrey v. Food
Concepts International, LP, 2017 WL 1163845, at *3–4 (S.D.Ohio
March 29, 2017) in this way:
In determining a reasonable hourly rate, “[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.” Sykes v. Anderson, 419 Fed.Appx. 615,
618 (6th Cir. 2011) (internal quotations omitted). The
market rate is “the rate that lawyers of comparable
skill and experience can reasonably expect to command
within the venue of the court of record.” Gonter v.
Hunt Value Co., 510 F.3d 610, 618 (6th Cir. 2007).
Comparable skill and experience, of course, means skill
and experience in the specific area of law at issue in
the case. Snide v. Disc. Drug Mart, Inc., No. 1:11-cv244, 2013 U.S. Dist. LEXIS 165584, *22-*25, 2013 WL
6145130 (N.D. Ohio Oct. 30, 2013).
In making its determination, the court may “consider a
party's submissions, awards in analogous cases, state
bar association guidelines, and its own knowledge and
experience from handling similar requests for fees.”
Northeast Ohio Coalition for Homeless v. Husted
(“NEOCH”), No. 2:06-cv-896, 2014 WL 4829597, at *12
(S.D. Ohio Sept. 29, 2014) (vacated in part on other
grounds) (quoting Van Horn v. Nationwide Prop. & Cas.
Ins. Co., 436 Fed.Appx. 496, 499 (6th Cir. 2011)). The
fee applicant bears the burden to “produce satisfactory
evidence—in addition to the attorney's own
affidavits—that the requested rates are in line with
those prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience,
and reputation.” Blum v. Stenson, 465 U.S. 886, 896
(1984).

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The Court may also consider an attorney’s own normal billing
rates to help calculate a reasonable fee.
F.3d 532, 536 (6th Cir. 1995).

Hadix v. Johnson, 65

It is with this standard in mind

that the Court will consider the issue of the reasonable hourly
rate requested by Dr. Szeinbach’s counsel.
Dr. Szeinbach’s lead counsel from the preparation and filing
of the complaint through the fee hearing was Eric Rosenberg.
He currently practices with Rosenberg & Ball, a small firm
located in Granville, Ohio.

At the hearing, Mr. Rosenberg

testified that he started practicing law in 1998.
Szeinbach’s trial, he had tried over 20 cases.

Prior to Dr.

He started his

career with the Ohio Attorney General’s Office, eventually
working in the Court of Claims section where his work included
employment law cases.

See Exhibits 3, 4, and 5.

He subsequently entered private practice where he practiced
almost exclusively in the area of litigation and gained
experience in a number of trials.

This period of Mr. Rosenberg’s

private practice included a short time at Bricker & Eckler during
which he billed at an hourly rate of $225.

At some point,

he left the practice of law for a time to work overseas with a
non-profit.

He eventually returned to the practice of law and in

2008, Mr. Ball joined his practice.

His previous work in this

Court has included Title VII cases.

See Exhibit 7. He has had

cases in other federal courts as well.

His current hourly rate

is $350 per hour and he has focused his practice on Title IX
litigation since 2016. In the original fee petition,
Mr. Rosenberg sought fees at the rate of $225 for time spent in
2007 - 2008; $275.00 for time spent in 2009 – 2010; and $325.00
from 2011 through the filing of the original fee petition.
Diane Jaquish, an attorney practicing in an of counsel
capacity with Mr. Rosenberg, testified regarding her time
expended in this litigation.

According to Ms. Jaquith, she
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assisted Mr. Rosenberg with trial preparation.

Her efforts

included witness preparation and the preparation of deposition
summaries.

She also attended every day of the trial, observed

and took notes.

She graduated from Capital University Law School

and began practicing law in 2004 or 2005.

Her areas of practice

include social security disability, veterans disability,
employment, and workers’ compensation.

She created her invoice

found at pages 54-55 of Exhibit 13 based on her daily tracking
and review of her hours.

Her invoice reflects that she billed

$44,780.00 for 223.9 hours at a $200 hourly rate.
David Ball also testified at the hearing.

According to his

testimony, he graduated from the University of California at
Berkeley School of Law and was admitted to practice in 1991.

He

spent three years practicing with a San Francisco firm in the
area of employment law and five years in Columbus with the firm
of Schottenstein, Zox & Dunn practicing in the area of labor and
employment law.

While at the Schottenstein firm, he represented

Dr. Szeinbach in connection with research misconduct allegations.
Another lawyer in that firm, Paul Bittner, also represented her
in connection with that matter.

Mr. Ball testified that the time

billed for that representation is reflected in the invoices
contained in Plaintiff’s Exhibit 13.

He was allowed to carry

this time with him when he left Schottenstein and he has
submitted it as part of the fee petition here.

The invoices

reflect total billing in the amount of $37,658.03 and indicate an
hourly rate for Mr. Ball ranging from $205 to $225 and an hourly
rate of $295 for Mr. Bittner.
Mr. Ball further testified that he began practicing with Mr.
Rosenberg in 2010.

He focuses primarily on employment law.

During his time with Mr. Rosenberg, he has worked on discrete
projects related to Dr. Szeinbach’s litigation.

His requested

hourly rate in this matter is the same as Mr. Rosenberg’s.
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Dr. Szeinbach presented the expert testimony of attorney
Frederick M. Gittes in support of her fee petition.

Mr. Gittes

is a Columbus lawyer with extensive civil rights experience
representing both plaintiffs and defendants (but primarily
plaintiffs).

He began practicing law in 1975.

Focusing on the

issue of the reasonableness of the hourly rates, Mr. Gittes
testified that the hourly rates requested by counsel are
substantially below the market rate for attorneys in central Ohio
engaged in employment and other civil rights litigation.

Much of

Mr. Gittes’ testimony was directed to Mr. Rosenberg’s rates but
he noted that the rates requested Mr. Ball and Ms. Jaquith are
also easily justified in comparison to the rates awarded to other
attorneys.

Several factors contributed to Mr. Gittes’ view, most

notably the amount of trial experience Mr. Rosenberg had acquired
prior to Dr. Szeinbach’s trial.

From Mr. Gittes’ perspective,

Mr. Rosenberg’s trial experience was significant.

He directly

compared Mr. Rosenberg’s requested hourly rates to those awarded
to counsel in three specific decisions from courts within this
district.

These examples provided a range of awards from $225

for an attorney during the second and third year of practice to
an award of $410 for an attorney whom Mr. Gittes viewed as having
the same years of experience as Mr. Rosenberg during the trial in
this case.

In his report, Mr. Gittes stated that, in his

experience, lead partners at small plaintiff-side employment law
firms commonly charge between $400 and $500 per hour.

He

testified that he generally bills at an hourly rate of $425.00.
Ohio State’s expert witness was Marc Fishel, a Columbus
attorney with a significant defense practice on behalf of public
employers throughout Ohio.

With respect to the issue of the

reasonableness of the hourly rates, Mr. Fishel’s opinion was that
the hourly rates requested by Dr. Szeinbach’s counsel are not
justified.

Mr. Fishel identified several factors which
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contributed to his view.

First, he did not consider Mr.

Rosenberg’s employment law experience to be significant.
Further, he found no indication that Mr. Rosenberg’s regular
hourly rate was $325.00.

Most significant to Mr. Fishel,

however, was that, from his perspective, Mr. Rosenberg’s trial
conduct and work product were not what would be expected of an
attorney commanding that rate.

Mr. Fishel specifically cited

examples of Mr. Rosenberg’s conduct that he believed were
“emblematic” of inexperience or learning on the job.
explained his view that Mr. Rosenberg’s
indicated a level of inexperience.

He also

billing practices

Mr. Fishel’s opinion was that

the hourly rates Mr. Rosenberg actually charged Dr. Szeinbach are
reasonable and more reflective of his skill and experience.
Taking all of the above into account, and applying its own
knowledge and experience, the Court concludes that a reasonable
hourly rate for Mr. Rosenberg’s time in this case is $325.

The

Court is satisfied from all of the testimony that this hourly
rate is consistent with the prevailing market rate in central
Ohio for attorneys with skill and experience comparable to Mr.
Rosenberg’s.

Additionally, the Court believes this amount

represents a reasonable balance between the significance of Mr.
Rosenberg’s experience as recognized by Mr. Gittes and the issues
identified by Mr. Fishel.

The Court recognizes that Mr. Fishel

made a valid point about the quality of Mr. Rosenberg’s work
(particularly as to his record-keeping) but concludes that this
factor is more pertinent to the number of hours reasonably spent
on the case than on the billing rate.

Importantly, the Court

finds that the rate of $325 per hour is consistent with the goal
of awarding fees sufficient to attract competent counsel without
allowing a windfall.
This brings the Court to the issue of how best to account
for the length of time this case has been pending.
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“‘Clearly,

compensation received several years after the services were
rendered ... is not equivalent to the same dollar amount received
reasonably promptly as the legal services were performed, as
would normally be the case with private billings.’”

Bank One,

N.A. v. Echo Acceptance Corp., 595 F.Supp.2d 798, 801 (S.D. Ohio
2009), quoting Missouri v. Jenkins, 491 U.S. 274, 283 (1989).
“District courts can use either current rates or past rates with
interest when calculating the lodestar amount to provide an
adjustment for delay in payment.”
Kenny A., 559 U.S. 542 (2010).

Id. at 802; see also Perdue v.

The Court finds that applying the

current rate is the appropriate method to account for the passage
of time during the nine years that this case has been pending.
Consequently, the Court will apply the current rate of $325 to
all of Mr. Rosenberg’s time.
The Court, however, will not apply a similar hourly rate to
the time submitted by Mr. Ball and Ms. Jaquith.

Rather, the

Court concludes that hourly rates of $275 for Mr. Ball and $200
for Ms. Jaquith represent appropriate billing rates.

Neither of

these attorneys testified regarding extensive trial experience.
Further, by Mr. Ball’s own description, his time spent on this
case was more or less on a discrete project basis.
true with respect to Ms. Jaquish’s time.

The same is

Her responsibilities in

this case were limited to a short period surrounding the trial.
Finally, the Court accepts the hourly rates for Mr. Ball and Mr.
Bittner with respect to Mr. Ball’s carry over time from the
Schottenstein firm.

Ohio State has not challenged the

reasonableness of the hourly rates reflected in those invoices
and the Court finds them reasonable.
B.

Hours Reasonably Expended

Beyond a reasonable hourly rate, the lodestar approach also
requires the Court to determine “the reasonable number of hours
expended.”

Hensley, 461 U.S. at 449.
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In doing so, the Court

must “exclude from this initial fee calculation hours that were
not ‘reasonably expended.’” Id. at 434.

“Counsel for the

prevailing party should make a good faith effort to exclude from
the fee request hours that are excessive, redundant, or otherwise
unnecessary....”

Id.

The Court is to consider “whether the

lawyer used poor judgment in spending too many hours on some part
of the case.”

Coulter v. State of Tenn., 805 F.2d 146, 151 (6th

Cir. 1986), abrogated on other grounds by The Northeast Coalition
for the Homeless v. Husted, 831 F.3d 686 (6th Cir. 2016).
In determining the reasonableness of hours expended by
counsel, “[t]he question is not whether a party prevailed on a
particular motion or whether in hindsight the time expenditure
was strictly necessary to obtain the relief requested [but
whether] a reasonable attorney would have believed the work to be
reasonably expended in pursuit of success at the point in time
when the work was performed.”

Wooldridge v. Marlene Industries

Corp., 898 F.2d 1169, 1177 (6th Cir. 1990), abrogated on other
grounds by Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep’t of
Health & Human Res., 532 U.S. 598 (2001).

“‘Attorneys who seek

fees have an obligation ‘to maintain billing time records that
are sufficiently detailed to enable courts to review the
reasonableness of the hours expended’ on the case, and the Court
must be able to conclude that the party seeking the award has
sufficiently documented its claim.”

Northeast Ohio Coalition for

the Homeless v. Husted, 2014 WL 4829597, *3 (S.D. Ohio Sept. 29,
2014), affirmed in part, vacated in part, 831 F.3d 686 (6th Cir.
2016).
In its memorandum opposing Dr. Szeinbach’s motion for fees
(see Doc. 394), Ohio State clearly raises an issue about whether
the work done by Mr. Rosenberg on matters unrelated to the coworker retaliation claim is compensable.

It argued, for example,

that “the type and amount of legal work needed to prosecute the
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co-worker retaliation claim is miniscule compared with the hours
expended in support of unsuccessful claims by Plaintiff’s
counsel,” Doc. 394, at 12.

The Court recognized this as an issue

in its Opinion and Order dated January 12, 2017 (Doc. 407, at
19), pointing to language in The Northeast Coalition for the
Homeless v. Husted, 831 F.3d 686, 724 (6th Cir. 2016), to the
effect that the moving party must “distinguish between time spent
on successful and unsuccessful claims....”
At the hearing, only two witnesses testified on this issue.
Mr. Rosenberg explained why it was that, had the case involved
only the co-worker retaliation claim, he would have conducted the
same discovery and called the same witnesses to testify (with
some minor exceptions) and that he had removed from his final fee
request any time spent exclusively on unsuccessful claims or
positions.

Mr. Gittes testified that, based on his expertise in

employment litigation, it was reasonably necessary for Mr.
Rosenberg to have spent the vast amount of the time reflected in
his timesheets in pursuit of the co-worker retaliation claim
because the evidence as to that claim and the direct retaliation
claim were inextricably intertwined.

He identified some areas

where that was not the case, and Mr. Rosenberg deleted those
areas from his final bill.

Ohio State did not conduct any

extensive cross-examination of either witness on these points,
and did not ask either witness to justify this general testimony
with respect to specific time entries on Mr. Rosenberg’s billing
records.

Ohio State’s expert witness, Mr. Fishel, gave no

testimony and expressed no opinion on the issue.
In closing argument, counsel for Ohio State proffered, for
the first time, a marked-up version of Plaintiff’s Exhibit 8 (one
of several versions of Mr. Rosenberg’s billing records) which
included counsel’s comments, handwritten in the margins, about
which of the time entries represented work done on unrelated or
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unsuccessful claims.

Other comments critical of the time entries

appear on that document (Ohio State Exhibit 21) as well.

The

number of such marginal comments totals well in excess of 500.
Mr. Rosenberg was not provided with a copy of the document prior
to the proffer.
The Court expressed, in somewhat strong language, its view
of the unfairness of that tactic.

It noted that the comments

could not be considered as evidence but were apparently being
submitted as a written post-hearing brief (although counsel
described the document as a “demonstrative exhibit,” albeit one
not identified or moved into evidence), even though the Court had
told the parties it would not entertain post-hearing briefing.
Further, it expressed concern that because Mr. Rosenberg had not
been alerted, prior to the hearing, of many of the specific
billing entries which Ohio State was challenging in the proffered
exhibit, he had no chance to present more specific testimony
about those entries, and had no reasonable opportunity to address
them as part of his closing argument.

Nevertheless, the Court

has considered the notations in the context of the manner in
which they were presented.
The Court begins its analysis of this issue with this
observation.

While the interrelated nature of legal claims is,

to some extent, a question of law - and, in this case, it seems
clear from a strictly legal viewpoint that the claim of direct
retaliation and co-worker retaliation are related in many ways the question of whether work which was reasonably necessary to
prove the co-worker retaliation claim included work also directed
to the other claim is a question of fact.

That is one reason why

district court decisions awarding attorneys’ fees are reviewed
under an abuse-of-discretion standard.

See, e.g., Imwalle v.

Reliance Medical Products, Inc., 515 F.3d 531, 551 (6th Cir.
2008)(“We review a district court's award of attorney fees and
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costs for an abuse of discretion. .... The trial court's exercise
of discretion is entitled to substantial deference because the
rationale for the award is predominately fact-driven”)(internal
citations omitted).

The Court of Appeals has also established a

burden-shifting analysis for the district courts to apply, which
is explained this way in Perotti v. Seiter, 935 F.2d 761, 764
(6th Cir. 1991):
Plaintiff has the burden of providing for the court's
perusal a particularized billing record. .... If the
defendant asserts that a particular charge is related
solely to work done on unsuccessful claims, the burden
shifts to the defendant to demonstrate that the
particular entry represents work done on unsuccessful
claims. This burden can be met by evidence submitted
at the hearing on the fee motion.
As noted, Ohio State did not submit evidence on this
question at the fee hearing, and it agrees that its proffered
exhibit addressing the issue is mere argument.

Consequently, the

Court, although it will, as it is obliged to do, review carefully
all of Mr. Rosenberg’s billing entries, including the ones
highlighted by Ohio State as being work done on unrelated or
unsuccessful claims, it will disallow time entries only if it is
apparent from the content of the entry itself that the work both
was done in pursuit of an unrelated or unsuccessful claim, and
that it was not reasonably necessary to Dr. Szeinbach’s success
on the co-worker retaliation claim.

In making this

determination, the Court is mindful of the fact that the
testimony at the hearing was that, with certain exceptions, all
of the work shown on those entries was reasonably performed in
pursuit of relief on the co-worker retaliation claim because of
the interrelated nature of the two claims which were tried, and
the substantial overlap in the evidence relating to each.

In

other words, unless a time entry itself is more likely to be an
accurate representation of the lack of interrelatedness of the
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work than is the testimony of Mr. Rosenberg and Mr. Gittes to the
contrary, the Court will not find, under the

preponderance of

the evidence standard, that the time reflected in that entry
should be disallowed.
This task, however, was made unnecessarily difficult by the
disordered manner in which the time records in this case were
both maintained and ultimately presented to the Court.

This

disorder persisted from the initial fee petition’s filing through
the hearing.

To be fair, at the hearing, it was clear that Mr.

Rosenberg had made significant efforts to refine the time entries
supporting the fee petition.
advice regarding revisions.

Undoubtedly, he took Mr. Gittes’
To the extent that he did so, rather

than simply submit redacted time sheets to allow direct
comparison by the Court, Mr. Rosenberg prepared eleven
spreadsheets (Exhibits 18-28) summarizing time entries and
explaining his revisions.

The Court fully believes that Mr.

Rosenberg did so in an effort to painstakingly verify and justify
every billing entry for which a fee award is requested.
Unfortunately, the overall approach to the task of recording and
compiling time in this case demonstrates that Mr. Rosenberg did
not initially record his time with the desired end in mind - that
end being the Court’s review of a prevailing party’s fee petition
- and that made his task, and the Court’s much more difficult.
All of the above is necessary to say that the Court is now
required to consider a fee petition, in a case noteworthy for its
length and procedural history, which is supported by unduly
cumbersome documentation.

Consequently, in an effort to achieve

some level of efficiency, the Court will work within the
conceptual confines of these eleven spreadsheets.

However, the

Court has neither the time nor the inclination to repeatedly
cross-reference among multiple exhibits containing all the
various iterations of billing records in this case to verify a
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specific time entry’s summarization.

Nevertheless, the Court

will attempt to identify any specific time entry noncompensable
on its face to the extent it is obvious from the summary.

This

approach requires a brief explanation of Dr. Szeinbach’s method
of organization evidenced by the relevant spreadsheets.
Plaintiff’s Exhibit 28 sets forth, by category, the total
billable hours for which fees are requested through May 31, 2017.
Exhibits 18 through 26 correspond to the individual categories
and summarize time entries from other exhibits in support.

As

noted, post-trial time is reflected in other exhibits and the
spreadsheets refer to these exhibits as well.

Time billed

between June 1, 2017 and June 11, 2017 appears to be subject to
its own separate exhibit, Exhibit 51.

It is to these various

exhibits that the Court will now turn.
Court Filings:

Exhibit 18

This exhibit, designated as court filings, contains a
summary of time entries relating to time spent drafting the
complaint and drafting and reviewing various motions for the time
period from August 12, 2008 through May 12, 2014.

Dr. Szeinbach

seeks an award of fees for 824.80 hours of time in this category.
Of these hours, 808.75 hours are attributed to work undertaken by
Mr. Rosenberg and 16.05 hours are attributed to Mr. Ball’s work.
This spreadsheet indicates that deductions were made for clerical
time and that various deductions were made on Mr. Gittes’
recommendation.

There are also several additions based on

previously omitted time.
Discovery:

Exhibit 19

This spreadsheet contains a summary of time entries relating
to time spent on discovery from January 1, 2006 thought May 7,
2014.

Dr. Szeinbach seeks an award of fees for 206.60 hours of

time.

All of this time relates to work undertaken by Mr.

Rosenberg.

This exhibit reflects deductions for clerical time
-16-

and the addition of previously omitted time.
Depositions:

Exhibit 20

This exhibit contains a summary of entries for time spent
relating to depositions between March 17, 2009 and April 30,
2014.

Dr. Szeinbach seeks a fee award for 564.45 hours of time

in this category.

The Court notes that the time summaries

include 8.5 hours of time relating to Carmeen Yarbrough.

Mr.

Gittes testified that time relating to Ms. Yarbrough should have
been deducted.

Mr. Rosenberg confirmed this.

Inadvertently,

however, compensable time relating to Dr. Buerki was deducted
instead.

The Court declined Mr. Rosenberg’s suggestion to simply

consider Ms. Yarbrough’s time as a substitute for Dr. Buerki’s.
Consequently, the Court will disallow the time in this category
relating to Ms. Yarbrough.
This exhibit also contains deductions for clerical time and
significant deductions based on Mr. Gittes’ recommendations
regarding time billed relating to Dr. Szeinbach’s expert, Dr.
Schondelmeyer.

There are also minimal additions for previously

omitted time.
Exhibit 20 also identifies 3.3 hours of time attributed to
Mr. Ball’s work.

Mr. Ball’s time, however, is described as

“motion in limine projects.”

This description does not appear

strictly to relate to the category of depositions.

At the same

time, there is nothing in the record suggesting that Mr. Ball did
not expend this time.

With the deduction relating to Ms.

Yarbrough, the time represented by this category totals 555.90
hours, with 3.3 hours attributed to Mr. Ball and 552.60 hours
attributed to Mr. Rosenberg.
Research:

Exhibit 21

This exhibit contains a summary of time entries relating to
research for the time period from August 4, 2008 through January
25, 2014.

Dr. Szeinbach seeks a fee award for 234.20 hours of
-17-

time in this category.

The summary entries identify research

relating to a number of issues, including spoliation, Title VII
retaliation, misconduct, and admissibility issues.

Other summary

entries relate to time spent on document review and
correspondence and memorandum drafting.
This spreadsheet also indicates certain reductions based on
Mr. Gittes’ recommendations and includes additions for previously
omitted time.

The Court notes that this category contains .25

hours for time relating to Dr. Schondelmeyer.

Consistent with

the stated intention that all time relating to this witness
should be deducted, the Court will disallow this time entry.

Of

the remaining 233.95 hours in this category, 1.7 hours are
attributed to Mr. Ball’s research time and 232.25 hours are
attributed to Mr. Rosenberg’s time.
Court Appearances: Exhibit 22
This spreadsheet contains a summary of time entries relating
to court appearances made from October, 2008 through April 25,
2014.

The summary entries indicate appearances at status

conferences, a mediation, and oral argument before the Court of
Appeals.

There are no time deductions indicated, but there are

some instances of the addition of previously omitted time.
The first time summary describes a meeting with counsel for
Ohio State and not a court appearance.

Further, the time

summaries also include preparation time.

Dr. Szeinbach seeks a

fee award for 100.8 hours in this category.

Of this time .25

hours are attributed to Mr. Ball’s work described as “status
conference issues billed by Dave Ball” and the remaining 100.55
hours are attributed to Mr. Rosenberg’s time.
Communications: Exhibit 23
These time summaries cover the period from August 8, 2008
through May 29, 2014.

Most of the summary entries relate to

communications between Mr. Rosenberg and Dr. Szeinbach.
-18-

There

are minimal deductions but several additions of previously
omitted time.

Dr. Szeinbach seeks a fee award for 82.5 hours of

Mr. Rosenberg’s time in this category.
Trial Preparation: Exhibit 24
These time summaries relate to the time period from January
27, 2014 through June 2, 2014.

There are some deductions as well

as some additions for previously omitted time.

Dr. Szeinbach

seeks fees for 697.25 hours of time in this category broken down
as follows: 79.5 hours for Ms. Jaquish’s time, 4 hours for Mr.
Ball’s, and the remaining time attributed to Mr. Rosenberg.
There is one hour of time designated to time involving Ms.
Yarbrough.

The Court will disallow this time, bringing the total

number of hours designated in this category to 696.25, with
612.75 of these hours attributed to Mr. Rosenberg’s time.
A review of these time summaries indicates that there are
several instances where Mr. Rosenberg billed in a range from 9 to
15.5 hours on a particular day under this category.

Further,

there are several time summaries describing the work undertaken
as “[d]eveloped projects to be handled by Rosenberg & Ball
attorneys and/or independent contractors hired on a project basis
& assisted with same.”
Trial:

Exhibit 25

This category suggests that it would include only the time
billed by counsel for representing Dr. Szeinbach over fourteen
days of trial in June, 2014.

Dr. Szeinbach seeks a fee award for

440.65 hours of time in this category broken down as follows:
238.25 hours attributed to Mr. Rosenberg’s time, 155.9 hours
attributed to Ms. Jaquish’s time, and 46.5 hours attributed to
Mr. Ball’s time.

A quick cross-reference to the time sheets

indicates that not all of the time entries relate strictly to
time billed over the fourteen days of trial.
Post-trial:

Exhibit 26

-19-

This category includes Mr. Rosenberg’s time beginning on
June 25, 2014 relating to the interim fee petition and continuing
through May 31, 2017.

Dr. Szeinbach seeks attorney fees relating

to 303.25 hours for this time period broken down as follows.

For

the time period ranging from June 25, 2014 through December 18,
2014, the summary entries indicate that Mr. Rosenberg spent 131.
75 hours, including 16.75 hours on the interim fee petition, 100
hours on the memorandum contra Ohio State’s motion for a new
trial (this represents a reduction of 80 hours based on Mr.
Gittes’ recommendation) and 15 hours relating to the attorney fee
petition.

For the time period from October 5, 2016 through

February 28, 2017, Mr. Rosenberg spent 42 hours preparing for the
fee hearing as reflected in Exhibit 31.

For the time period

between March 1, 2017 and May 31, 2017, Mr. Rosenberg spent 129.5
hours preparing for the hearing as reflected in Exhibit 32.
Fee Hearing:

Exhibit 51

As noted, this spreadsheet summarizes Mr. Rosenberg’s
billing records for the time period between June 1, 2017 and June
11, 2017; Mr. Ball’s time entries between May 25, 2017 and June
11, 2017; and Tracy Turner’s time entries from April 8, 2017
through June 11, 2017.

According to this exhibit, Mr. Rosenberg

billed for 95.25 hours of time at the rate of $350 per hour and
Mr. Ball and Ms. Turner billed $2925 and $4958.50, respectively
at the rate of $325 per hour.

In addition to this time, Mr.

Rosenberg agreed to be compensated for 12 hours of time per day
spent at the fee hearing.
Certainly, based on all of the above, the Court has some
concerns.

The amount of time designated for trial preparation or

the trial itself suggests Mr. Rosenberg began billing for trial
preparation as early as January 27, 2014.

By way of example,

during one seven-day period in May, 2014, Mr. Rosenberg billed 71
hours for trial preparation.

See Exhibit 24, pp. 10-15.
-20-

While

the Court is mindful of both the nature of Mr. Rosenberg’s
practice and the contrast he drew with the resources of Ohio
State, numerous time entries suggest a tendency to overwork
particular issues.

This tendency to overwork issues is evident

from the total hours of other specific categories as well.
Further, as Mr. Fishel noted, there are a few examples of “block
billing,” which make it difficult for the Court to determine
exactly what Mr. Rosenberg was doing, and, therefore, whether he
spent a reasonable amount of time doing it.
Beyond this, the Court notes that the impact of Mr.
Rosenberg’s less-than-precise record keeping cannot be
overstated.

His entire method of tracking his time led to his

creation of the spreadsheets themselves.

The time Mr. Rosenberg

devoted to their creation could not have been insignificant.

By

his own admission, he was revising these documents late into the
eve of the fee hearing.

As a result, Ohio State’s counsel did

not obtain copies until the last minute.

As indicated, Mr.

Rosenberg’s approach has made a meaningful line-by-line analysis
of the billing entries an impossibility.

Moreover, as the Court

observed above, despite Mr. Rosenberg’s best efforts, errors and
irregularities continue to exist even in the most recent
iterations of the billing contained in the spreadsheets.

In

fact, given the state of the billing records as presented, the
Court would be well within its discretion in denying all the time
he spent preparing of the original and supplemental fee petitions
in this case.
For these reasons, the Court finds that only an across-theboard reduction will adequately address the issues apparent here.
In determining the appropriate amount of such a reduction, the
Court will weigh not only the deficiencies set forth above, but
the testimony of both experts.
Mr. Gittes testified regarding the significant efforts he
-21-

undertook in preparing his opinion.

Some of the information he

reviewed included all of the substantive decisions of the trial
court and the Court of Appeals, the complete trial transcript,
the summary judgment briefing, the motions in limine, and select
deposition testimony.

Based on this review, Mr. Gittes testified

that, given the factual intensity of Dr. Szeinbach’s claims, all
14 of her witnesses challenged by Ohio State were necessary.

In

his view, it would have been malpractice if Mr. Rosenberg did not
call certain of these witnesses.

He addressed with remarkable

specificity the need for testimony from particular witnesses.
For example, with respect to Drs. Roig and Dolnick, Mr. Gittes
testified that, although their testimony was excluded, they were
recognized experts on the issue of practices that seriously
deviate from those accepted within the relevant scholarly
community.

Further, he explained the necessity of all of

counsel’s work directed to Dr. Lee and Dr. Elton as relevant to
the misconduct issues.

Beyond this, to the extent that Ohio

State raised the issue of “losing” claims, Mr. Gittes clarified
that these were not so much claims but factual issues about what
conduct constituted an adverse action.

Further, he explained

that he would have pursued a spoliation motion and instruction
based on the circumstances of the destruction and loss of records
and the failure of preservation efforts.

In short, Mr. Gittes

testified in impressive detail regarding the specific need for
Mr. Rosenberg’s efforts on Dr. Szeinbach’s behalf and opined that
a reasonable attorney would have believed the work for which fees
are being sought to be reasonably expended, despite the
particular outcome of any specific motion or position.
Mr. Fishel, on the other hand, testified that he did not
find it necessary to review significant portions of the record in
preparing his opinion.

He explained that, in concluding that the

time spent by counsel was clearly excessive, he considered the
-22-

issue from the perspective of what a client reasonably would
expect to pay.

While he identified some specific examples of

time he considered to be excessive, including time spent on the
memorandum contra Ohio State’s motion for summary judgment, he
declined to offer an opinion as to what a reasonable amount of
expended time on that effort alone, or overall, would be.
Taking all of this into account, the Court concludes that a
20% reduction in Mr. Rosenberg’s hours claimed through the end of
2014 is appropriate and reasonable.

In the Court’s view, this

percentage reduction adequately addresses the concerns raised by
Mr. Fishel; the state of the billing records themselves; and the
Court’s view that there is a notable difference between Mr.
Rosenberg’s view of how much time should be spent on particular
tasks and the Court’s view of what is reasonable.

This is not to

say that Mr. Rosenberg intentionally overworked various tasks,
but that the Court is not persuaded that he worked as efficiently
as the hypothetical “reasonable attorney” would have done under
the same circumstances.
Given the significant reductions which Mr. Rosenberg has
already made to his billing entries, about which both he and Mr.
Gittes testified, the Court does not believe any higher
percentage reduction is warranted.

At the same time, the Court

finds that a deduction of only 20%, given both the testimony and
the state of the billing records, adequately recognizes the
significance of Mr. Rosenberg’s effort through the culmination of
the trial phase of the case.
The Court sees no reason to make a similar across-the-board
reduction for either Mr. Ball’s or Ms. Jaquish’s time.

Even

though the Court noted some irregularities with respect to the
categorization of Mr. Ball’s time in the exhibits, there is
nothing in the record to suggest that he did not expend this time
or that it was unreasonable given the nature of the litigation.
-23-

Further, the efforts of these attorneys were devoted to discrete
projects and their billable time is small in comparison to the
overall time expended in this case.
The Court will award the following rates and hours to
calculate the lodestar, broken down by the categories identified
in Dr. Szeinbach’s Exhibit 28:
Hours Requested
Mr. Rosenberg
Mr. Ball

808.75
16.05

Court filings
Hours Awarded
Rate
647
16.05

Amount

$325
$275

$210,275.00
$4413.75
Sub-total: $214,688.75

$325

$53,716
Sub-total: $53,716

Discovery
Mr. Rosenberg

206.60

165.28
Depositions

Mr. Rosenberg
Mr. Ball

552.60
3.30

Mr. Rosenberg
Mr. Ball

232.25
1.70

442.08
3.30

$325
$275

$143,676.00
$907.50
Sub-total: 144,583.50

Research
185.80
1.70

$325
$275

Court Appearances
80.44
$325
.25
$275

Mr. Rosenberg
Mr. Ball

100.55
.25

Mr. Rosenberg

82.5

66

Mr. Rosenberg
Mr. Ball
Ms. Jaquith

612.75
4
79.50

Trial Preparation
490.2
$325
4
$275
79.50
$200

Mr. Rosenberg
Ms. Jaquish
Mr. Ball

238.25
155.9
46.5

190.60
155.9
46.5

Communications
$325

$60,385.00
$467.50
Sub-total: $60,852.50
$26,143.00
$68.75
Sub-total: $26,211.75
$21,450.00
Sub-total: $21,450.00
$159,315.00
$1100.00
$15,900.00
Sub-total: $176,315.00

Trial
$325
$200
$275

$61,945.00
$31,180.00
$12,787.50
Sub-total: $105,912.50

Post-trial through December 18, 2014
Mr. Rosenberg

131.75

105.40

$325

-24-

$34,255.00
Sub-total: $34,255.00

This brings the Court to the post-trial time from October 5,
2016 through June 11, 2017.

The Court finds an across-the-board

30% reduction of Mr. Rosenberg’s time to be necessary based on
its personal knowledge and observation of the conduct of this
litigation since the reassignment of this case in March, 2015
through the conclusion of the fee hearing on June 13, 2017.

This

observation was provided through the briefing on the original and
supplemental attorneys’ fees petitions, conferences held in
preparation for the fee hearing, and the fee hearing itself.
Throughout these events, the Court personally witnessed
examples of inefficiency, overworking and preparedness issues.
One example that stands out to the Court (beyond the spreadsheet
creation) is that Mr. Rosenberg subpoenaed attorneys from the
Taft law firm to appear and testify at the fee hearing as to the
hours they billed in this case as reflected in Plaintiff’s
Exhibit 1.

Not surprisingly, this issue was ultimately addressed

through stipulation.

But that did not occur without some filing

of motions and the attendance of Taft’s managing partner at the
opening of the hearing.

This was wholly unnecessary.

The Court

does not view Mr. Rosenberg’s efforts in this regard as illmotivated, but does consider them to be an indication of an
overall tendency to lose sight of practicality.
As to the other justifications for a 30% reduction, Mr.
Rosenberg conceded that both his original and supplemental fee
petitions were inaccurate - in some cases, significantly so.

It

also appears to the Court that Mr. Rosenberg was not able,
without substantial help from Mr. Gittes, to make the types of
judgment calls and refinement of raw hours expended that is
required by the case law.

Further, it can legitimately be asked

why Ohio State should be required to pay for work needed to bring
Mr. Rosenberg’s time records into a state that they should have
been in to begin with.

Perhaps even a 30% reduction is being
-25-

generous to Mr. Rosenberg, but it represents the Court’s effort
to reach a number that is fair to both sides, recognizing that
Ohio State was not completely blameless in making the fee
litigation more complicated than it needed to be.
Consequently, the Court will award the following amounts for
this portion of time:

Mr. Rosenberg

Mr. Rosenberg

Mr. Rosenberg

Post-trial time from October 5, 2016 through February 28, 2017
Hours Requested
Hours Awarded
Rate
Amount
42
29.4
$325
$9,555.00
Sub-total: $9,555.00
Post-trial time from March 1, 2017 through May 31, 2017
129.5
90.7
$325
$29,461.25
Sub-total: $29,461.25
Post-trial time from June 1 through June 11, 2017
95.25
66.67
$325
$21,667.75
Sub-total: $21,667.75

Beyond the above time, Tracy Turner entered an appearance in
advance of the fee hearing and conducted the direct examination
of Mr. Rosenberg.

Exhibit 51 contains her invoice.

This invoice

indicates that she billed the amount of $4,958.50 for the time
period between April 8, 2017 and June 11, 2017, at the rate of
$325.00 an hour.

Although evidence directed to Ms. Turner’s

education and relevant experience was not presented at the
hearing, Ohio State has not challenged Ms. Turner’s proposed
billing rate.

The Court has no other information from which it

could conclude that she should not command this hourly rate.
Consequently, the Court will approve her hourly rate, and her
hours, as submitted.
Exhibit 51 also includes an invoice for Mr. Ball’s time for
the time period from May 25, 2017 through June 11, 2017.
According to this invoice, Mr. Ball billed 9 hours at the rate of
$325.00 per hour.

Consistent with the rate awarded for Mr.

Ball’s previous time entries, the Court will award an hourly rate
of $275.00 per hour for this time.
Ms. Turner

15.25

Additional Time
15.25

-26-

$325

$4958.50

Mr. Ball
Mr. Rosenberg

9
24

9
24

$275

$2475.00
$7800.00
Sub-total: $52,891.53

The final amount of time for which the Court has approved
an award of fees is the carry over time from Schottenstein, Zox &
Dunn.
Schottenstein, Zox & Dunn
Sub-total: $37,658.03
Based on all of the above, the total amount of attorneys’

fees approved by the Court can be summarized as follows:
Attorneys’ Fees Summary
Court Filings

$214,688.75

Discovery

$ 53,716.00

Depositions

$144,583.50

Research

$ 60,852.50

Court Appearances

$ 26,211.75

Communications

$ 21,450.00

Trial Preparation

$176,315.00

Trial

$105,912.50

Post-Trial through 12/18/2014

$ 34,255.00

Post-Trial through 2/28/2017

$

Post-Trial through 5/31/2017

$ 29,461.25

Post-Trial through 6/11/2017

$ 21,667.75

Additional Time

$ 15,233.50

SZ&D Time

$ 37,658.03

Total

9,555.00

$951,560.53

Finally, Mr. Rosenberg agreed to a 40-hour reduction for
time relating to the backpay issue following the Court of
Appeals’ ruling.

This results in a reduction of $13,000 to the

-27-

above total of $951,560.53.

For this reason, the lodestar is

calculated at $938,560.53.
C.

Degree of Success

The lodestar calculation does not end the Court’s inquiry.
Hensley, 461 U.S. at 464.

The lodestar amount may be adjusted,

either up or down, based on a number of factors.

Here, Mr.

Rosenberg agreed to forego a multiplier if the Court awarded an
hourly rate in excess of the amount at which he actually billed.
Because the Court has done so, it will not consider an upward
modification to the lodestar amount.
“When analyzing the degree of success in the context of a
lawsuit where it is ‘difficult to divide the hours expended on a
claim-by-claim basis....the district court should focus on the
significance of the overall relief obtained by the plaintiff in
relation to the hours reasonably expended on the litigation.’”
Hines v. DeWitt, 2016 WL 2342014 (S.D. Ohio May 4, 2016), quoting
Hensley, at 435.
With respect to this first question, as already explained,
Mr. Gittes provided detailed testimony regarding the
interrelatedness of Dr. Szeinbach’s claims.

Ohio State failed to

present any meaningful evidence to the contrary.

For these

reasons, the Court easily concludes that the claims on which Dr.
Szeinbach failed to prevail are related to the co-worker
retaliation claim on which she succeeded.
Further, the Court concludes that the overall level of
success achieved here is justifiably characterized as
significant.

Mr. Gittes testified in some detail about the

formidable challenges inherent in this and similar cases.

As

even a brief review of the Court’s record highlights, this was a
hard fought case on both sides.
The decision to pursue this case after summary judgment was
granted in Ohio State’s favor led to a favorable Court of
-28-

Appeals’ decision and ultimately a damages award at trial.
Although her backpay award was reduced, Dr. Szeinbach obtained an
award of $300,000.
difficult case.

That is a significant degree of success in a

As the Court previously concluded, this result,

taking into consideration the attorneys’ fees issue, exceeded
Ohio State’s offer of judgment.

All of these factors support the

conclusion that there is no reasonable basis for a downward
adjustment to the lodestar amount.
II. Costs
A. Legal Standard
Fed.R.Civ.P. 54(d) allows a court to award costs to a
prevailing party.

Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437, 441 (1987).

In Title VII cases, a court may award

a prevailing plaintiff costs under both 2000e-5(k) and 28 U.S.C.
1920.

Lensing v. Potter, 2015 WL 10892073, *10 (W.D. Mich. Aug.

20, 2015).

Courts view the award of attorney fees under §2000e-

5(k) as including reasonable out-of-pocket expenses that an
attorney would normally charge to a fee-paying client.

Id.

28

U.S.C. §1920 authorizes an award of costs for clerk and marshal
fees, transcript fees, printing and copying costs, witness fees,
and docketing fees under §1923.

“Although costs are presumed

taxable, the prevailing party must nevertheless demonstrate that
the costs (1) are authorized by federal law, (2) are reasonable,
and (3) were necessary to the prosecution of the case.”

Id., at

*11, citing Berryman v. Hofbauer, 161 F.R.D. 341, 344 (E.D. Mich.
1995).
As the Court explained in Lensing:
The Sixth Circuit Court of Appeals has held that
Rule 54(d) creates a presumption in favor of awarding
costs and that the district court exercises discretion
in denying costs. Knology, Inc. V. Insight Commc’ns
Co., L.P., 460 F.3d 722, 726 (6th Cir. 2006). That
presumption, however, will not sustain an award of
costs in the absence of a showing that the cost was
-29-

reasonably necessary. Jones v. Unisys Corp., 54 F.3d
624, 633 (10th Cir. 1995)(finding that the district
court did not abuse its discretion in denying costs for
copying that were not reasonably necessary, in spite of
the presumption favoring an award of statutorily
authorized costs).
Once entitlement to the award is established, to
overcome the presumption that the prevailing party is
entitled to taxable costs, the objecting party bears
the burden of showing that the cost was either
unnecessary or unreasonable. See id. at 296; BDT
Prods., Inc. v. Lexmark Int’l, Inc., 405 F.3d 415, 419420 (6th Cir. 2005) abrogated on other grounds by
Taniguchi, 132 S.Ct. 1997. Because the award of costs
is limited to those enumerated by the statute, “there
is a presumption that those costs not expressly
authorized by 1920 are precluded.” Segovia v.
Montgomery Cnty, Tennessee, 593 Fed.Appx. 488, 493 (6th
Cir. 2014)(involving a request for costs under §1988
for expenses recoverable only under §1920). The Court
proceeds with these two presumptions in mind.
Generally, if the requested cost falls within one of
the enumerated categories in §1920, and the
reasonableness and necessity of the cost is relatively
obvious, the burden falls on [the opposing party] to
show why the costs was not reasonable or necessary.
See Farella v Hockaday, 304 F.Supp.2d 1076, 1082 (C.D.
Ill. 2004)(holding, that where the purpose, nature, and
amount of each expense is obvious, counsel’s conclusory
affidavit stating that each charge was reasonable and
necessary was sufficient to establish entitlement to
award). However, where the requested cost must be
awarded under §2000e-5(k), because it does not fall
under §1920, [the prevailing plaintiff] must establish
with evidence both the reasonableness and necessity of
the requested costs.
Id., at *11.
B.

Requested Costs

Dr. Szeinbach requests an award of costs in the amount of
$164,836.08.

This amount is set forth in Exhibit 27.

Consistent

with the exhibits relating to time entries, this Exhibit is a
compilation of the cost entries contained in counsel’s billing
records with a cross-reference to specific pages of those
-30-

records.
Mr. Rosenberg testified that all costs being sought in the
fee petition were necessary and were incurred in the litigation
of Dr. Szeinbach’s case.

Ohio State does not address the costs

as set forth on Exhibit 27 but did address, only through
argument, the numerous cost entries in Exhibit 8.

Ohio State’s

primary objections to the cost entries are that they relate to
unsuccessful claims or are vague.
An initial problem that is immediately apparent from Exhibit
27 is that Dr. Szeinbach seeks recovery for the fees relating to
time spent by Mr. Bittner and Mr. Ball at the Schottenstein firm
as costs.

As explained above, this time was considered in the

lodestar calculation and is not a recoverable cost.
An additional problem is that the requested cost amounts are
plagued by the same record keeping issues as the time entries.
The submissions require cross-referencing among various exhibits
both to allow the Court to address Ohio State’s concerns to the
extent appropriate and to make its own reasonableness analysis.
Again, the difficulty created by this manner of presentation
cannot be overstated.

Nevertheless, Court will make its best

effort to do a reasonableness analysis.

To be clear, the Court

will use Exhibit 27 as the most currently available
representation of the costs for which Dr. Szeinbach is seeking an
award.
In Exhibit 27, the cost entries appear to be presented
chronologically.

The entries can be categorized as follows:

filing fees; photocopies (both commercially and in-house); court
reporters/transcripts; parking; food; subpoenas; postage;

expert

witness fees (Dr. Roig, Dr. Dolnick and Mr. Gittes); PACER
charges; witness fees; process server fees; and trial exhibits
and supplies.

In this exhibit, Dr. Szeinbach also notes certain

items not billed and the location of the receipt for an expense
-31-

or the lack of a receipt.

The cost calculation also appears to

include interest at the rate of 4%.
As the Court reads Exhibit 27, excluding the line item for
attorney fees and the interest calculations, Dr. Szeinbach
includes 134 line item charges for which she is seeking
compensation as costs.
$99,059.83.

These line items total, without interest,

To the extent that these line items relate to costs

for food, Dr. Szeinbach notes a $1,000 deduction.
27, p. 10, line 161.

See Exhibit

This brings the total award for costs she

is seeking, exclusive of interest, to $98,059.83.

The Court will

address each category of fees as designated by Ms. Szeibach.
Transcript Fees
Exhibit 27 contains 52 line items designated as either
“Court reporter and/or deposition transcript” or “Transcript
Expense” for which Dr. Szeinbach is seeking an award of costs.
See Exhibit 27.

By way of example, lines 17 and 18 of Exhibit 27

identify expenses in the amount of $586.22 and $622.00,
respectively, both with a cross-reference to Exhibit 8.

A review

of Exhibit 8 indicates that these costs were incurred on April
23, 2009 and represent costs for a portion “of Spectrum invoice
for Massaro deposition transcript and a portion “of Spectrum
invoice for Raj deposition.”

Most entries are similar in nature

with respect to the many witnesses in this case.

A quick cross-

referencing of the exhibits, however, indicates some
inconsistencies in the billing records.

For example, there are

several charges related to “Raj’s” deposition and only some of
the invoices appear to have been billed to Dr. Szeinbach (see,
e.g., Ex. 27, p. 9, line 148).

Further, another expense

identified as a transcript expense (see Exhibit 27, p. 10, line
153) is actually an amount for Dr. Seoane’s travel expenses to
and from Boston and hotel accommodations for five unnamed
witnesses.

Additionally, there is some suggestion of potential
-32-

duplicate billing for certain deposition charges (see Exhibit 27,
p. 10, line 48).

All 52 line items as claimed by Dr. Szeinbach

total $35,640.33.
An award of “fees for printed or electronically recorded
transcripts necessarily obtained for use in the case” is
authorized under §1920.

“Necessity is determined as of the time

of the taking, and the fact that a deposition is not actually
used at trial is not controlling.”

Sales v. Marshall, 873 F.2d

115, 120 (6th Cir. 1989).
The number of line items, comprising a sizeable amount of
the costs sought to be awarded, is not unexpected given the welldocumented factual intensity of this case.

Mr. Gittes’ extensive

review of the record supported his conclusion that all of the
witnesses challenged by Ohio State were necessary to the
prosecution of this case.
testimony.
contrary.

Mr. Rosenberg provided similar

Ohio State did not present any evidence to the
However, as explained above, the Court has noted some

irregularities and potential duplicate billing.

Consequently,

while the Court is satisfied that most of the entries for
transcript and court reporter fees were necessarily obtained for
use in this case, a reduction in the amount requested is
required.

Consequently, the Court finds the appropriate amount

of reasonable and necessary costs to be $30,399.95 and the Court
will award that amount.
Copying Fees
Exhibit 27 includes ten line items relating to costs for
photocopies, including line 160 which identifies $11,042.80 for
in-house copying costs at ten cents per page.

The documentation

relating to these items is remarkably inadequate for such a basic
cost.

Some of these items are identified as “Deposition

photocopies and/or parking.”
30-33.

See, e.g., Exhibit 27, p. 2, lines

Taking line 33 as an example, this line indicates that
-33-

costs of $13.73 were incurred on June 23, 2009.

This line

further indicates that this charge was documented on both Mr.
Rosenberg’s billing records - Exhibit 8, page 23 - and the
receipts - Exhibit 29, pp. 39-41.

The amount reflected in

Exhibit 8 is $11.44 for parking fees and photocopy charges and
Exhibit 29 contains an indecipherable receipt making it
impossible for the Court to attempt to reconstruct Mr.
Rosenberg’s math.

Further, the entry relating to the in-house

copying costs literally states “hand written record kept on postit notes - with cumulative total carried forward.”
Costs for copies may be awarded under §1920(3) or (4).
Costs are generally recoverable when the costs are incurred for
documents prepared for the court or the opposing party.

Lensing

v. Potter, 2015 WL 10892073, *18 (W.D. Mich. Aug. 20, 2015).
Copy costs for the convenience of counsel are generally not
recoverable.

Id.

The Court of Appeals has instructed that

courts should not simply “rubber stamp” a party’s photocopying
expenses without examining them for reasonableness.

Huntsville

Golf Development, Inc. v. Brindley Const. Co., 2011 WL 4960421,
*5 (M.D. Tenn. Oct. 18, 2011).
scrutiny than other costs.

Such costs are subject to greater

Id. The court may reduce the number

of copies to account for copies obtained for the convenience of
counsel when there are non-itemized requests.

Id.

As explained above, the Court is without any meaningful
information from which it could determine how many copies may
have been made for convenience of counsel as opposed to for the
court and opposing party.

At the same time, the record in this

case easily supports the conclusion that Dr. Szeinbach incurred a
significant amount of copying costs.

The Court simply cannot

determine a precise amount based on the documentation before it.
Consequently, it will discount the requested amount of in-house
copying fees by 50% and award Dr. Szeinbach $5,521.40 in costs
-34-

for photocopies.

The Court will not make a cost award for

relating to the commercial photocopies because of the inadequate
documentation.
Filing Fees
Exhibit 27 denotes costs of $350 and $405 representing the
initial filing fee for this case incurred in 2008
first appeal in 2011.

and for the

These combined amounts total $755.00.

These fees are recoverable under §1920 and will be allowed.
Parking Fees
Thirty-nine entries on Exhibit 27 make some reference to
parking expenses.

Some of them delineate a specific parking fee.

Others denote a parking fee within a block notation relating to
costs for food or other expenses.

As noted, Dr. Szeinbach has

taken a lump sum deduction for food expenses.

Several of the

entries on Exhibit 27 are unaccompanied by a receipt.

This makes

it difficult for the Court to determine accurately the total
amount of parking fees Dr. Szeinbach seeks to recover through her
cost award.

The isolated entries reflecting parking charges

suggest a range from $3.00 to $9.00.
Certainly, courts have awarded costs for parking fees under
§2000e-5(k) as expenses ordinarily billed to a paying client.
Lensing, 2015 WL 10892073, at *19.

Under this circumstance, the

Court will allow a recovery of $6.00 for each instance of parking
for a total of $234.00.
Process Servers, Witness Fees, and Subpoenas
There are multiple entries relating to subpoenas, witness
fees and subpoenas contained in Exhibit 27.

This category

required some cross-referencing to other exhibits to even begin
to understand the billing entries.

Based on this cross-

referencing, these entries appear to include the following: $100
- subpoenas for Adam Uhas on August 7, 2009 and January 25, 2010;
$125.00 -

subpoena for Dr. Lee on March 26, 2010; $40.00 -35-

witness fees for Dr. McCamey on April 15, 2014; $165.00 - process
server expense for Dr. McCamey on April 28, 2014; $850.00 witness fee expense for Dr. McCamey on April 29, 2014; $365.44 witness fees for Ohio State witnesses
$59.04
$97.12
$53.44
$47.84
$59.04
$48.96

broken down as follows -

Jennifer Moseley;
Robert Buerki;
John Fowble;
Anne Massaro;
Melap Nahata;
Priscilla Hapner.

See Exhibit 29, pages 124-129; $226.34 - witness fees for Ohio
State adverse witnesses on May 11, 2014, broken down as follows $59.04
$47.84
$54.46
$65.00

Olga Gonzales;
Carole Anderson;
Charles Brooks;
Carmen Yarbrough.

See Exhibit 29 pp. 131-134; $798.70 - process server fees for out
of state Ohio State witnesses on May 31, 2014, broken down as
follows Matthew Platz;
Dale Vandre;
William Hayton;
Robert McGrath;
Joseph Dasta.
See Exhibit 29 pp. 135-141; $690.00 - process service fees on May
29, 2014, broken down as follows $65.00
$65.00
$65.00
$65.00
$65.00
$65.00
$65.00
$65.00
$105.00
$65.00

Charles Brooks;
Anne Massaro;
Carole Anderson;
Priscilla Hapner;
Jennifer Mosley;
Milap Nahata;
Carmeen Yarbrough;
Olga Esquivel-Gonzalez;
Robert Buerki;
John Fowble.

See Exhibit 29, pp. 147-149; $668.78 - airfare and trial expenses
for lay witness Jessie Au, as broken down in Exhibit 29, p. 200
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There is an additional process server expense appearing in
Exhibit 27 at line 152 in the amount of $805.70 with a crossreference to Exhibit 29, pp. 191-197, as the location of the
corresponding receipt.

The receipts, however, are court reporter

invoices for what appear to be daily trial transcripts of select
witness testimony.
this category.

This amount will not be considered within

The Court also notes that its review of the

invoices relating to the process server fees for the out-of-state
Ohio State witnesses do not reflect strictly service of process
fees.

Rather, additional fees are reflected in the $798.70

total, including witness fees and subpoena fees.

Based on the

state of the record-keeping in this case, the Court will not
consider these other fees.
The Court of Appeals has authorized service of process fees
under §1920(1) for private process servers, but only up to the
amount the United States Marshal would have charged.

Lensing,

2015 WL 10892073, at *17, citing Arrambide v. Wal-Mart Stores,
Inc., 33 Fed.Appx. 199, 203 (6th Cir. 2002).

In 2014, the

Marshals Service charged $65 per hour for each item served plus
travel costs.

Consequently, the Court will award $650.00 for the

service of process fees on May 29, 2014 and $325.00 for the
service of process fees on May 31, 2014, and $65.00 for service
on Dr. McCamey for a total award of $1,040.00 for service of
process fees.
Further, 1920(3) authorizes a court to award witness fees.
“‘The witness fee identified in 1930(3) is defined in 28 U.S.C.
1821.’” Lensing, at *15, quoting Crawford Fitting, 482 U.S. at
440-41.

“Section 1821(a)(1) requires a witness who attends court

or a deposition scheduled under a rule or by order of the court
to be paid fees.”

Id.

“Subsection (b) authorizes a witness fee

of $40 per day of attendance, in addition to mileage.”

Id.

With respect all witness fees with the exception of Dr.
-37-

McCamey and Jessie Au, the receipts indicate a flat fee payment
and do not itemize between witness fees and mileage or
subsistence fees.

The requested amounts, however, do not seem

out of line with the inclusion of mileage or subsistence fees
above the witness fees.

Moreover, Ohio State has not challenged

these requested costs on this basis.

Consequently, the Court

will award costs in the amount of $591.78 for witness fees
relating to the witnesses other than Dr. McCamey and Jessie Au.
There are two requests for witness fees relating to Dr.
McCamey - the standard $40.00 witness fee and what appears to be
a professional deposition service fee in the amount of $850.00.
There was no testimony at the fee hearing indicating that Dr.
McCamey’s role in the litigation was as an expert witness
retained by Ms. Szeinbach.
request will be denied.

Consequently, the $850.00 witness fee

See Lensing, at *16 (denying

professional service fees for individuals not retained as expert
witnesses).

However, the Court sees no reason to decline to

award costs for the statutory witness fee of $40.00 for Dr.
McCamey.
This brings the Court to Dr. Szeinbach’s lay witness,
Jessie Au.

Dr. Szeinbach seeks costs for airfare, mileage to and

from the airport and meals for one day at the per diem rate for
Columbus.

Dr. Szeinbach represents the relevant per diem to have

been $56.00 per day.

Receipts for Ms. Au’s travel expenses are

contained in Exhibit 29 at pages 199-202.

Ohio State did not

contest this per diem rate.
Available witness expenses in addition to attendance include
travel and subsistence fees as set forth in 28 U.S.C. §1821.
Lensing, at *15, quoting L&W Supply Corp. v. Acuity, 475 F.3d
737, 738 (6th Cir. 2007).

Under that statute, “[a] witness who

travels by common carrier shall be paid for the actual expenses
of travel on the basis of the means of transportation reasonably
-38-

utilized and the distance necessarily traveled to and from such
witness’s residence....

A receipt or other evidence of actual

cost shall be furnished.”

Consequently, the Court will costs in

the amount of $668.78 for this witness’ travel costs.
The Court recognizes, as explained above, that Dr. Szeinbach
seeks a cost award for similar witness fees for Dr. Seoane’s
travel expenses to and from Boston and for five unnamed
witnesses’ hotel accommodations.

There is no supporting

documentation for these expenses other than a handwritten invoice
noting a lump sum payment.

This documentation is insufficient to

support a cost award for these expenses.
Ms. Szeinbach has provided no documentation to support the
requested costs for subpoenas issued to Mr. Uhas or Dr. Lee.
Consequently, the Court will not award costs relating to these
subpoenas.
PACER Fees
Exhibit 27 contains seven entries for PACER charges
identified simply as “PACER expense[s].”

These entries total $70

and range in date from November 27, 2012 through June 15, 2014.
The entries the Court cross-referenced on Exhibit 8 simply
indicate a PACER charge without any identification as to the
nature of or reason for the charge.

Ohio State objects to some

of these charges on vagueness grounds.

As noted, however, Mr.

Rosenberg testified that all costs were reasonable and necessary
to the litigation.

Consequently, the Court will award costs for

PACER charges in the amount of $70.00.
Fee Expert Fred Gittes
Exhibit 27 sets forth expert witness for Mr. Gittes at
$37,475.65.

Mr. Gittes testified at the hearing that through

June 8, 2017, his fee was $40,858.75.

This is consistent with

the invoices Dr. Szeinbach has included in Exhibit 32 for Mr.
Gittes’ time November 11, 2016 through June 8, 2017.
-39-

“Section

2000e-5(k) permits a court to award the prevailing party in a
Title VII action ‘a reasonable attorney’s fees (including expert
fees).’

A plain reading of the statute confirms that expert fees

are included within, or a subset of, attorney’s fees.”

Howe v.

City of Akron, 2016 WL 916701, *22 (N.D. Ohio March 10, 2016),
quoting E.E.O.C. v. Peoplemark, Inc., 732 F.3d 584, 592 (6th Cir.
2013). In Peoplemark, the Court of Appeals explained that “[t]he
benchmark for awarding expert fees under the statute is
reasonableness.”

Id. at 594.

Further, the party requesting

expert fees and costs must come forward with sufficient
documentation to enable the court to test the reasonableness of
the request.
The Court has no difficulty determining the reasonableness
of this expert witness fee expense.

As noted throughout this

opinion, Mr. Gittes spent extensive time in preparation of his
report and his hearing testimony.

As documented, his efforts

resulted in significant reductions to time entries for which Dr.
Szeinbach ultimately seeks a fee award.

Consequently, the Court

will award costs for expert witness fees in the amount of
$40,858.75.
Experts Roig and Dolnick
Exhibit 27 sets forth costs for what appear to be the
professional service fees of Drs. Dolnick and Roig.

These

entries are identified as “Roig Retainer” in the amount of
$500.00;

“Roig invoice” in the amount of $1000; “Dolnick

invoice” for $2625.00; and “Dolnick invoice” for $1500.

Contrary

to what would be expected relating to professional services,
there are no invoices or receipts for these charges except with
respect to the Roig retainer.

This receipt, found on page 30 of

Exhibit 29, indicates a payment made on May 19, 2009, in the
amount of $1020 and allocated between Dr. Szeinbach and Dr.
Seoane.

However, the Court recognizes that there can be no
-40-

question that these individuals were experts retained by Dr.
Szeinbach.

The motions practice in this case and the testimony

at the fee hearing clearly support such a conclusion.
does not suggest otherwise.

Ohio State

As explained, fees for expert

witnesses may be awarded to a prevailing Title VII plaintiff
under 42 U.S.C. §2000e-5(k).

Consequently, the Court will award

these costs in the amount of $5625.00.
Postage
Exhibit 27 includes five entries totaling $111.66 designated
as postage costs.

This includes the amount of $91.39 on February

8, 2010.

There are no receipts relating to any of these postage

entries.

Exhibit 8, the billing records, indicates that the

$91.39 amount represents a Federal Express overnight charge
pertaining to the McGrath deposition exhibits.
awarded costs related to postage fees.

Courts have

See Schumacher v. AK

Steel Corp. Ret. Acc. Pension Plan, 995 F.Supp.2d 835 (S.D. Ohio
2014).

Federal Express charges are not necessarily routinely

awarded as costs.

See, e.g., Choike v. Slippery Rock University

of Pennsylvanie of the State System of Higher Educ., 2007 WL
3120097) (W.D. Pa. Oct. 22, 2007)(finding unreasonable request
for cost of overnight federal express necessitated by location of
plaintiffs’ counsel).

Because the charges in this category are

not well-documented and the Court has no basis upon which to
evaluate the necessity for the Federal Express charge, the Court
will deny the request for an award of these costs.
Trial Exhibit and Supplies
Exhibit 27 identifies three line items relating to costs for
trial exhibit supplies and expenses.

These line items reflect

the following amounts: $236.04 from May 26 - 30, 2014; $952.25
from May 31, 2014 - June 2, 2014; and $42.33 for June 7, 2014.
The receipts pertaining to these items contained in Exhibit 29
indicate that these charges are for copies and other supplies
-41-

representing “‘incidental and necessary expenses incurred in
furnishing effective and competent representation.’”

Lankford v.

Reladyne, LLC, 2016 WL 3640691 (S.D. Ohio June 29, 2016)(awarding
costs for similar items).

Consequently, the Court will award

costs for these items in the amount of $1230.62.
Attorney Fee Hearing Costs
Exhibit 27 contains a single line item relating to a lump
sum amount of $1220.30 for “photocopy, subpoena, process server,
and other expenses related to Attorney Fee Hearing.”
cites to Exhibit 32, pages 17 - 28.

This entry

The Court has reviewed the

designated pages of Exhibit 32 and it is not obvious to the Court
how the requested amount was calculated.

Adding the amounts on

these combined pages does not yield the requested amount.
Further, there are items reflected in the receipts for which an
award of costs would not be made under either §1920 or as a cost
typically billed to a paying client.

On the other hand, some

expenses appear to be fairly categorized as incidental and
necessary expense of the type approved relating to the trial.
Without belaboring the issue, the Court’s review of these
receipts indicates that an award of costs in the amount of
$490.00 is reasonable and appropriate for expenses related to the
fee hearing.
Based on all of the above, the cost award approved by the
Court can be summarized as follows:
Costs Summary
Transcripts

$30,399.95

Copying

$ 5,521.40

Filing

$

755.00

Parking

$

234.00

Process Servers, Witnesses &
Subpoenas

$ 2,340.56

-42-

PACER

$

70.00

Fee Expert Fred Gittes

$40,858.75

Experts Roig & Dolnick

$ 5,625.00

Postage

$0

Trial Exhibits & Supplies

$ 1,230.62

Attorney Fee Hearing

$

Total

$87,525.28

490.00

Additional Issues
Ohio State raised two separate issues in its closing
argument which appear to sound in judicial estoppel.

First, it

contended that at a status conference conducted on February 21,
2014, Mr. Rosenberg represented that he would be seeking fees
only at the rate at which he billed Dr. Szeinbach.

That argument

was based on statements made at pages 59-61 of the transcript
(Doc. 236) where Mr. Rosenberg, in discussing a document request
for the bills he sent to Dr. Szeinbach, said that he had no
obligation to produce the actual bills.

Magistrate Judge Abel

agreed, but also commented that Ohio State was entitled to know
how much Dr. Szeinbach had paid in fees and that if she became
the prevailing party, that information was “relevant” and it
would be helpful for “OSU [to] know that its exposure is in the
lawsuit in terms of settlement ....”
After further discussion, Mr. Rosenberg said this about how
much he might request in fees: “[A]s I explained earlier on it,
this is what I’ll be asking for based on what I received.
not the billing rate.” (Tr. 61)(emphasis supplied).

It is

In an

earlier part of the same conference, OSU’s counsel brought up the
fact that they had not received a quarterly statement of fees and
expenses in some time, and also noted that Mr. Rosenberg had not
disclosed his hourly billing rate to Dr. Szeinbach, but “tells us
what he got in some other case.”

Id. at 40.

-43-

He responded that

he had “all kinds of hourly rates for clients, down to free,” and
that he had recently itemized his fees “based on what I was
recently awarded by this Court.”

Id. at 41.

Mr. Rosenberg

testified at the hearing that he was referring to a case in which
he had been awarded fees at the rate of $275.00 per hour, and the
transcript of the status conference bears that out; he commented
that when he was an associate at Bricker and Eckler, his rate was
$225.00 per hour, and “I’d hope that I’m worth 50 bucks more
since then.”

Id.

Judge Abel also advised the parties that if

there were an attorneys’ fee motion, Dr. Szeinbach “would have
the burden of proving the reasonableness of the attorney’s fees
and the rate, which is generally the rate for an attorney of Mr.
Rosenberg’s experience and years of practice in this community.”
Id.
There is only one reasonable interpretation of these
comments, and it is not that Mr. Rosenberg had made some
commitment to seek fees only at the rates he used when billing
Dr. Szeinbach.

He said just the opposite, and there was a

discussion about the fact that he had, at that point, given Ohio
State a number based on a $275.00 per hour rate.

The Court

cannot construe that discussion to be an agreement on Mr.
Rosenberg’s part to seek fees only at that rate even if the fee
matter was not resolved until 2017, and Judge Abel clearly
articulated the correct standard, so Ohio State cannot now argue
that it was misled in some way by statements made at the status
conference.

Even if it could make that argument, however, it has

no impact on the legal issues now before the Court.
The Court of Appeals, in Bonkowski v. Allstate Ins. Co., 544
Fed. Appx. 597, 602 (6th Cir. Aug. 23, 2013), explained the
doctrine of judicial estoppel this way:
“Judicial estoppel is an equitable doctrine that
preserves the integrity of the courts by preventing a
party from abusing the judicial process through cynical
-44-

gamesmanship, achieving success on one position, then
arguing the opposite to suit an exigency of the
moment.” Teledyne Indus., Inc. v. Nat'l Labor Relations
Board, 911 F.2d 1214, 1217–18 (6th Cir.1990). “
‘[W]here a party assumes a certain position in a legal
proceeding, and succeeds in maintaining that position,
he may not thereafter, simply because his interests
have changed, assume a contrary position, especially if
it be to the prejudice of the party who has acquiesced
in the position formerly taken by him.’ ” Lorillard
Tobacco Co. v. Chester, Willcox & Saxbe, LLP, 546 F.3d
752, 757 (6th Cir.2008) (quoting New Hampshire v.
Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d
968 (2001)). Thus, the doctrine “bars a party from (1)
asserting a position that is contrary to one that the
party has asserted under oath in a prior proceeding,
where (2) the prior court adopted the contrary position
either as a preliminary matter or as part of a final
disposition.” Id. (citing Browning v. Levy, 283 F.3d
761, 775 (6th Cir.2002); Teledyne, 911 F.2d at 1218)
(internal quotations omitted).
Here, the Court did not adopt any position in response to
the comments made by Mr. Rosenberg at the status conference other
than the position that, should he move for fees, he would be
entitled to be paid at the prevailing market rate for an attorney
with similar experience.

Further, Ohio State was unable to

identify any prejudice it suffered from his comments, or any way
in which its conduct in this case might have been different had
he not made those statements.

Judicial estoppel simply does not

apply here.
The second estoppel argument advanced by Ohio State is no
more persuasive.
that Mr.

Ohio State adduced some evidence at the hearing

Rosenberg had said many times during the courts of the

trial that he was “alone” and trying a case against three
attorneys for the defendant.

It did not direct the Court’s or

any witness’s attention to specific statements appearing in the
trial transcript, which is part of the record, so this argument
is somewhat difficult to put into precise context, but the Court

-45-

is willing to assume, for purposes of this Opinion, that Mr.
Rosenberg made comments to that effect.

In fact, Mr. Rosenberg

had asked another attorney associated with his firm, Diane C.
Jaquish, to sit through the entire trial as an observer and to
consult with him about the progress of the case.

Dr. Szeinbach

has asked for Ms. Jaquish’s fees to be paid as part of the
Court’s fee award.

Ohio State contended that it would now be

unfair to allow her to recover those fees because Mr. Rosenberg
made misrepresentations about her participation to the Court and
to the jury.
Again, looking at the elements of judicial estoppel, the
Court did not adopt any specific position or make any rulings
based upon Mr. Rosenberg’s statements.

Further, it cannot be

inferred that the jury did so, because it was properly instructed
not to consider such extraneous matters when reaching its
verdict.

Additionally, Ohio State did not articulate any

reliance on those statements or any change in its litigation
position or strategy because of them.

It also admits that Ms.

Jaquish actually spent the time she is claiming.

While the Court

does not condone any misrepresentations Mr. Rosenberg might have
made on this subject - although, again, it is not necessary to
actually determine if he said anything that was not true - such
statements have no legal impact on the attorneys’ fees issue now
before the Court.

There is a difference between a vague feeling

of unfairness and a legal defense to an attorneys’ fee petition,
and this argument clearly falls into the former category.
Consequently, the Court gives no weight to either of these
arguments.
III.

Order

For the reasons stated above, the motion for attorneys’ fees
and costs (Doc. 358 as supplemented by Doc. 384) is granted in
part.

Plaintiff is awarded 938,560.53 in attorneys’ fees.
-46-

Further, Plaintiff is awarded costs in the amount of $87,525.28.
The Clerk is directed to enter a judgment in Plaintiff’s favor in
the amount of $1,026,085.81.
/s/ Terence P. Kemp
United States Magistrate Judge

-47-