Miller v. Food Concepts International, LP et al

Filing 176

ORDER denying 150 Motion for Attorney Fees. Signed by Judge Algenon L. Marbley on 9/21/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSEPH MILLER,
Plaintiff,
v.
FOOD CONCEPTS INTERNATIONAL,
LP, et al,
Defendants.

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2:13-CV-00124 (Miller)
2:13-CV-00125 (Crozier)
2:13-CV-00126 (Coleman)
2:13-CV-00127 (Gibbs)
2:13-CV-00129 (Johnson)
2:13-CV-00130 (Troyer)
2:13-CV-00132 (Tigner)
2:13-CV-00133 (McEldowney)
2:13-CV-00134 (Keegan)

JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION & ORDER
This matter is before the Court on Defendants’ Motion for Attorneys’ Fees and Costs.
(Doc. 150.) The Motion is DENIED.
I.

BACKGROUND

Plaintiff Joseph Miller commenced this action against Defendants Darren Del Vecchio,
Food Concepts International, LP, and Abuelo’s International LP (collectively, “Defendants”) in
the Franklin County Court of Common Pleas. Nine other plaintiffs also filed Complaints against
the Defendants, and Defendants removed all the cases to this Court on February 12, 2013.1 The
cases were consolidated for purposes of discovery. Plaintiffs were former and current employees
of Abuelo’s restaurant in Columbus, Ohio. All Plaintiffs pleaded violations of the Fair Labor

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One Plaintiff, Rachel Autrey, accepted Defendants’ offer of judgment on April 3, 2016 and is
no longer a party to this suit. See Autrey v. Food Concepts, Case No. 2:13-cv-131 (Doc. 76).
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Standards Act (“FLSA”) and breach of contract claims. (See Doc. 38 at 1.)2 Wesley T. Fortune
serves as counsel to all Plaintiffs.
Defendants filed a motion in limine to exclude the testimony of Plaintiffs’ proffered
opinion witness, Stephen C. Oberhousen, contending that: (1) Oberhousen was unqualified to
render any expert opinion in this case; (2) any opinion he would offer would not assist the trier of
fact; (3) he intended to testify to a legal conclusion regarding the FLSA; and (4) he was
unqualified as a witness because Fortune Law Limited, Plaintiffs’ counsel’s law firm, is
Oberhousen’s joint employer. (Doc. 125.) The Court granted the motion, not reaching all of
Defendants’ arguments but disqualifying Oberhousen under Federal Rule of Evidence 702
because he “is not qualified by his knowledge, skill, experience, training, or education to offer
opinion testimony.” (Doc. 147 at 7.) The Court further found:
First, although Oberhousen professes to have been involved as an opinion witness in five
matters, there is no evidence that he has submitted an expert report in any of these
matters and in his deposition he gave little to no indication of the type of opinions he
offered in those cases. Second, he lacks any relevant “knowledge, skill, experience,
training, or education” in any subject-matter area at issue in this case. Fed. R. Evid. 702.
Although Oberhousen holds an MBA and has some experience with data management,
the Court finds that this training and experience is not relevant to the issues of harm and
damages calculations to which Oberhousen intends to testify. His testimony does not
“result[] from a process of reasoning which can be mastered only by specialists in the
field.” W. Tenn. Chapter of Associated Builders & Contractors, Inc. v. City of Memphis,
219 F.R.D. 587, 591 (W.D. Tenn. 2004) (citing Fed. R. Evid. 701 advisory committee’s
notes to 2000 amendments). The Court considers Oberhousen’s contributions to this case
to be administrative, which does not qualify him as an opinion witness.
(Id.) Defendants have now filed a motion for attorneys’ fees that, they concede, is “an
extraordinary request.” (Doc. 150 at 2.) They contend that Plaintiffs’ counsel acted improperly
and in bad faith in designating Oberhousen as an opinion witness in this case and ask the Court,

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Unless otherwise specified, all document citations are to the docket in Miller v. Food Concepts,
Case No. 2:13-cv-124.
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pursuant to its inherent power and under 28 U.S.C. § 1927, to order Plaintiffs’ counsel to pay
their fees and costs in dealing with Oberhousen throughout this litigation. (Id. at 3.)
II.

LEGAL STANDARD

This Court has the inherent power to award sanctions for bad-faith conduct in litigation.
Runfola & Assocs. v. Spectrum Reporting II, 88 F.3d 368, 375 (6th Cir. 1996) (per curiam).
Whether to award sanctions in the exercise of its inherent power is within the discretion of the
Court. First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 510 (6th Cir.
2002). Inherent powers “must be exercised with restraint and discretion.” Chambers v. NASCO,
Inc., 501 U.S. 32, 44 (1991). The Court may assess attorney fees in its inherent discretion when
a party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. at 45-46
(citation omitted). The relevant question for the Court is whether the party has “show[n] bad
faith by delaying or disrupting the litigation or by hampering enforcement of a court order.” Id.
at 46 (citation omitted); Williamson v. Recovery Ltd. P’ship, 826 F.3d 297, 302 (6th Cir. 2016).
Under 28 U.S.C. § 1927, “[a]ny attorney or other person ... who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such
conduct.” Sanctions under § 1927 sanctions are discretionary, Runfola, 88 F.3d at 375, and
require “more than negligence or incompetence” but “something less than subjective bad faith,”
Hall v. Liberty Life Assurance Co. of Boston, 595 F.3d 270, 276 (6th Cir. 2010) (citation
omitted).
III.

ANALYSIS

In their fee motion, Defendants catalogue a number of instances in which Plaintiffs’
purported expert, Oberhousen, wasted their time and money, including responding to Plaintiffs’
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earlier sanctions motion, which Defendants characterize as frivolous, moving to strike an
improper affidavit from Oberhousen, dealing with expert reports that Oberhousen submitted after
the relevant deadlines and later amended, drafting the motion in limine to disqualify Oberhousen,
and drafting a motion to strike the documents Plaintiffs filed late in support of their opposition to
Defendants’ motion in limine. (Doc. 150 at 9.) They also cite unprofessional emails from
Plaintiffs’ counsel that they characterize as insulting and demeaning. (Id. at 7-8.) The Court
understands Defendants’ frustration because it, too, has expended significant time dealing with a
litany of discovery issues, missed deadlines, and request for extensions in this case. It is also
true that the Court has found, in granting Defendants’ earlier motion to strike Plaintiffs’ late-filed
exhibits in support of their opposition to the motion to disqualify Oberhousen as an opinion
witness, that Plaintiffs’ counsel made misrepresentations to Defendants in seeking an extension
of time to file that opposition brief. (Doc. 145 at 3-4.)
Defendants also point out that Plaintiffs’ counsel has been sanctioned for engaging in bad
faith litigation under Ohio Revised Code § 2323.51 by the Ohio Court of Appeals due to
improper discovery conduct. See State ex rel. Davis v. Metzger, 2014-Ohio-4555, 2014 WL
5141649, at *2 (Ohio Ct. App. Oct. 9, 2014). In Davis, the court ordered Fortune to pay attorney
fees of $28,332.05 to opposing counsel for filing a complaint for a writ of mandamus for a public
records request and then, when the records were produced to him shortly thereafter, proceeding
to engage in lengthy discovery rather than dismissing the mandamus action or amending his
complaint to reflect that he had received the requested documents. See State ex rel. Davis v.
Metzger, 2013-Ohio-1620, 2013 WL 1729353, at *3-4 (Ohio Ct. App. Apr. 17, 2013).
Although Plaintiffs’ counsel’s misrepresentation regarding the motion for extension of
time disturbs the Court, and the Court will certainly take that incident into account when

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determining whether to grant any future such requests by Plaintiffs’ counsel, the Court cannot
say that this incident, or the others cited by Defendants, reflect bad faith or otherwise vexatious
conduct. Additionally, although Oberhousen did admit in his deposition that he is not an expert
on the FLSA, Plaintiffs’ argument in opposition to Defendants’ motion in limine to exclude
Oberhousen’s testimony focused on Oberhousen’s supposed expertise in handling and analyzing
massive quantities of data for purposes of damages calculations under the FLSA. (Doc. 132 at
11.) Despite ultimately rejecting Plaintiffs’ argument and granting the motion in limine, the
Court cannot say that this argument was entirely frivolous so as to warrant sanctions. (See Doc.
147 at 6-7.) The Court finds that the exclusion of Oberhousen as an opinion witness is a
sufficient sanction for Plaintiffs’ counsel’s conduct here. Unlike in the state-court case in which
he was sanctioned, Defendants have not shown that Plaintiffs’ counsel’s conduct has gone
beyond “negligence or incompetence.” Hall, 595 F.3d at 276. Nor is the Court convinced that
Plaintiffs’ counsel has acted in bad faith or hampered the enforcement of a court order.
Chambers, 501 U.S. at 46. Accordingly, the Court declines to impose sanctions on Plaintiffs’
counsel at this time.
IV.

CONCLUSION

For the foregoing reasons, Defendants’ Motion for Attorneys’ Fees and Costs is
DENIED. (Doc. 150.)
IT IS SO ORDERED.

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 21, 2016  

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