Howell v. Conkle et al

Filing 26

REPORT AND RECOMMENDATIONS re 25 Joint MOTION for Attorney Fees filed by Robert J. Howell. It is RECOMMENDED that the Court enter final judgment in plaintiff's favor in the amount of $13,328.75. Objections to R&R due by 12/8/2014. Signed by Magistrate Judge Norah McCann King on 11/19/14. (jr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT J. HOWELL,
Plaintiff,
vs.

Civil Action 2:13-cv-406
Judge Watson
Magistrate Judge King

MICHAEL CONKLE, et al.,
Defendants.
REPORT AND RECOMMENDATION
This is a civil rights action under 42 U.S.C. § 1983 in which
plaintiff alleged that defendants, Perry Township, one of its police
officers and its trustees, violated plaintiff’s civil rights when
plaintiff was arrested on a warrant directed to another person.

On

March 25, 2014, plaintiff filed Plaintiff’s Notice of Acceptance of
Offer of Judgment, ECF 13.

The notice stated that plaintiff intended

to submit a petition for costs and attorney’s fees.
Court entered judgment for plaintiff the next day.

Id.

The Clerk of

ECF 15.

Plaintiff

thereafter filed a motion for attorney’s fees pursuant to Fed. R. Civ.
P. 68(a) and 42 U.S.C. §§ 1983, 1988.

ECF 19.

The parties disagreed

whether the offer of judgment included costs and attorney’s fees.
Defendants argued that costs were included in the offer of judgment
and, alternatively, sought relief from judgment pursuant to Fed. R.
Civ. P. 60(b)(6).

ECF 20. On October 24, 2014, the Court concluded

that plaintiff is entitled to an award of costs, including reasonable
attorney’s fees, and denied defendants’ motion for relief from
judgment.

Opinion and Order, ECF 23.

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This matter is now before the Court, upon a specific order of
reference pursuant to 28 U.S.C. § 636(b)(1)(B), see Opinion and Order,
ECF 23, for a report and recommendation on “the issue of the
reasonableness of the fees.”

Id. at pp. 13-14.

On October 24, 2014,

the undersigned issued an Order “encourage[ing] the parties to discuss
plaintiff’s fee request with a view to reaching agreement as to the
appropriate amount of fees and costs.”

Order, ECF 24.

On November

17, 2014, the parties filed a Joint Motion for Costs and Attorney Fees
Pursuant to Fed. R. Civ. P. 68(a), 42 U.S.C. § 1983 and 42 U.S.C. §
1988, ECF 25.

The parties

jointly move the Court to enter judgment in Plaintiff’s
favor in the amount of $13,328.75, which includes
Defendants’ $4,500 offer of judgment, plus, pursuant to 42
U.S.C. §§ 1983 and 1988, and agreed-upon award of
attorney’s fees and costs of $8,828.75.
Id.

The parties represent that the
requested amount is a reduction of $3,106.35 in the amount
originally requested by Plaintiff, see Doc. 19, and has
been agreed to by the parties as a full and final
settlement of this action, including any appeal by
Defendants of this Court’s Order of October 24, 2014 (Doc.
23).

Id.

The parties have stipulated that “the sum of $8.828.75 [is] a

reasonable amount of fees and costs to which Plaintiff is entitled.”
Id.
Upon consideration of all the appropriate factors and the
parties’ arguments, see ECF 19, 20, 21, 24, the Court concludes that
the requested fee is reasonable.

It is therefore RECOMMENDED that the

Court enter final judgment in plaintiff’s favor in the amount of
$13,328.75, which includes defendants’ $4,500 offer of judgment, plus
an award of reasonable attorney’s fees and costs of $8,828.75 pursuant

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to 42 U.S.C. §§ 1983 and 1988.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

November 19, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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