Courthouse News Service v. O'Shaughnessy

Filing 55

OPINION AND ORDER granting in part and denying in part 49 Motion for Attorney Fees. The Clerk is DIRECTED to ENTER JUDGMENT accordingly and CLOSE the case. Signed by Judge Sarah D. Morrison on 11/15/2023. (merc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
COURTHOUSE NEWS SERVICE,
Plaintiff,
:
v.
MARYELLEN O’SHAUGHNESSY,
in her official capacity as Clerk
of the Franklin County Court of
Common Pleas,

Case No. 2:22-cv-2471
Judge Sarah D. Morrison
Magistrate Judge Chelsey M.
Vascura
:

Defendant.
OPINION AND ORDER
Courthouse News Service brought this lawsuit under 42 U.S.C. § 1983
against Maryellen O’Shaughnessy, in her official capacity as Clerk of the Franklin
County Court of Common Pleas (“FCCCP”). It asserted that Ms. O’Shaughnessy
violated its rights under the First and Fourteenth Amendments to the United
States Constitution because FCCCP’s e-filing system delayed publication of newly
filed complaints thereby restricting the press’s and public’s qualified right to access
those materials. (See generally Compl. ECF No. 1.) Courthouse News filed a Motion
for a Preliminary Injunction on the same day as its Complaint, moving the Court to
enjoin Ms. O’Shaughnessy “from enforcing [her] policy and practice of restricting
press and public access to newly e-filed, non-confidential civil complaints.” (P.I.
Mot., ECF Nos. 3, 3-1, PageID 104.)
The Court held an informal preliminary conference on the P.I. Motion where
Ms. O’Shaughnessy raised jurisdictional concerns, so the Court set a briefing

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schedule on her Motion to Dismiss. (ECF Nos. 6, 14.) The Motion to Dismiss was
denied. (ECF No. 20.) Ms. O’Shaughnessy then asked this Court to permit her to file
an interlocutory appeal of the Opinion and Order denying her Motion to Dismiss
(ECF No. 26), Courthouse News opposed (ECF No. 29), and this Court denied that
request, finding the criteria under 42 U.S.C. § 1292(b) were not met (ECF No. 35).
The parties briefed the P.I. Motion (ECF Nos. 28, 33), and the Court granted
that Motion and enjoined Ms. O’Shaughnessy from restricting public access to
newly e-filed, nonconfidential, civil complaints until after such complaints are
processed. (ECF No. 38, PageID 713.) Ms. O’Shaughnessy notified the Court that
she was filing an interlocutory appeal of the preliminary injunction. (ECF No. 39.)
Then the parties settled “all matters currently in controversy between them, other
than the issue of attorney’s fees and costs” and asked the Court to enter a Consent
Order, which it did. (ECF No. 48.) The interlocutory appeal was dismissed through
a stipulation of dismissal. Courthouse News Service v. Maryellen O'Shaughnessy,
Case No. 23-3326 (6th Cir. Apr. 18, 2023), ECF Nos. 16, 17.
This matter is now before the Court on Courthouse News’s Motion for
Attorney’s Fees, in which Courthouse News asks that it be awarded attorney’s fees
and costs in the amount of $241,120.40. (ECF No. 49, PageID 751.) In response, Ms.
O’Shaughnessy argues that the amount of attorney’s fees sought is unreasonable for
several reasons. (ECF No. 53.) After thorough consideration, the Court GRANTS in
part the Motion pursuant to the following analysis.

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I.

ANALYSIS
The Court calculates an award of attorney’s fees by using the lodestar

method, under which a reasonable hourly rate is multiplied by the number of hours
reasonably expended on the litigation. Lee v. Javitch, Block & Rathbone, LLP, 568
F. Supp. 2d 870, 875 (S.D. Ohio 2008). Because of its objectivity, “there is a strong
presumption that the lodestar figure is reasonable.” Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 554 (2010) (internal quotations omitted). The reasonable hourly rate
should be determined according to “the ‘prevailing market rate[s] in the relevant
community.’” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000)
(quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)) (emphasis removed). The
reasonable number of hours will not include “hours that are excessive, redundant,
or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
The lodestar method is designed to attract competent counsel to vindicate a
person’s constitutional rights but is not intended to serve as a windfall for
attorneys. Coulter v. Tenn., 805 F.2d 146, 149 (6th Cir. 1986), abrogated on other
grounds by The Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 692 (6th
Cir. 2016).
A.

Reasonable Hourly Rate

The first part of the Court’s lodestar calculation is a reasonable hourly rate.
Although Ms. O’Shaughnessy did not dispute the hourly rates charged by
Courthouse News’s counsel, the Court begins with its own evaluation of the rates
charged.

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A reasonable fee is a fee sufficient to attract competent counsel, but that does
not produce windfalls for attorneys. Blum, 465 U.S. at 895. In determining a
reasonable hourly rate, what is important “is not necessarily the exact value sought
by a particular firm, but instead is the market rate in the venue sufficient to
encourage competent representation.” Gonter v. Hunt Valve Co., 510 F.3d 610, 618
(6th Cir. 2007). The “market rate” is what lawyers with comparable skill and
experience can reasonably charge within the Court’s venue. Id.
“It is well-established that a district court has broad discretion to determine
what constitutes a reasonable hourly rate for an attorney.” Am. Broad. Cos., Inc. v.
Brunner, No. 1:04CV750, 2008 WL 11450441, at *10 (S.D. Ohio Sept. 30, 2008)
(cleaned up). “A district court may rely on a party’s submissions, awards in
analogous cases, state bar association guidelines, and its own knowledge and
experience in handling similar fee requests.” Van Horn v. Nationwide Prop. & Cas.
Ins. Co., 436 F. App’x 496, 499 (6th Cir. 2011). Moreover, because “the
determination of a reasonable rate is difficult given wide variations in lawyers’
experience, skill and reputation,” an attorney’s “customary client billing rate is one
reliable indicia of that attorney’s prevailing market rate.” West v. AK Steel Corp.
Ret. Accumulation Pension Plan, 657 F. Supp. 2d 914, 932 (S.D. Ohio 2009) (citing
Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir.1995)).
Here, Courthouse News was represented by three well-respected law firms.
Courthouse News seeks fees for fourteen billers (three paralegals and eleven
attorneys) at these rates:

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Year
Admitted

Hourly
Rate at
Start of
Litigation

Hourly
Rate at End
of
Litigation

Hours
Expended

Total
Sought

1983

$500

$600

142.5

$78,934.00

2010

$350

$425

10.2

$3,570.00

2018

$250

$300

414.5

$111,517.00

2022

$125

$125

1.9

$237.50

2021

$240

$240

1.1

$264.00

2022

$175

$250

7.8

$1,635.00

1972

$650

$650

0.4

$260.00

2023

$245

$245

17.8

$4,361.00

Paralegal for
6 years

$180

$180

2.8

$504.00

Paralegal

$200

$215

28.2

$6,040.50

Paralegal for
over 20 years

$250

$250

7.7

$2,055.00

1996

$731

$731

38.4

$28,070.40

J.G. Fetterly, BCLP

2003

$765

$765

3.7

$2,830.50

J. Ginsberg, BCLP

2009

$765

$765

1.1

$841.50

678.1

$241,120.40

Name, Firm
John C. Greiner,
Faruki PLL
Darren W. Ford,
Faruki PLL
Alexandra Berry,
Bricker Graydon, LLP
Liam McMillan,
Bricker Graydon, LLP
Whitney J. Glover,
Bricker Graydon, LLP
Sebastian West,
Bricker Graydon, LLP
John B. Pinney,
Bricker Graydon, LLP
Sergio G. Fernandez,
Faruki PLL
Kelly Finn,
Faruki PLL
Cecily M. Perez,
Bricker Graydon, LLP
Stephanie Henson,
Bricker Graydon, LLP
R.E. Matteo-Boehm,
BCLP

TOTAL

(See ECF No. 49-2, ¶ 11.)
Courthouse News has also submitted the affidavit of attorney William G.
Porter, a partner with Vorys, Sater, Seymour and Pease LLP in Columbus. (Id.) Mr.
Porter states that he is familiar with the rates charged in the Columbus legal
community and he believes that the hourly rates sought by Plaintiff’s counsel are
reasonable. (Id. ¶ 12.)

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Earlier this year, in another First Amendment case, this Court concluded
that, for two attorneys with 28 and 35 years of experience respectively, a range of
$380 to $450 per hour in the years 2021 and 2022 is reasonable. Regenold v. Ohio
State Bd. of Educ., No. 2:21-CV-1916, 2023 WL 4549365, at *2 (S.D. Ohio July 14,
2023) (Graham, J.). The Court used a rate of $500 an hour in Regenold because of
counsel’s considerable experience and expertise, as well as their excellent
representation in that case. (Id.)
The Court is hampered in its analysis of the fees in this case by the fact that,
other than the years in practice, Courthouse News provides no information on the
background, education, experience, position, or sample cases of any of the lawyers it
identifies as having billed on the case. In his expert evaluation, Mr. Porter
references his “knowledge of normal rates charged by lawyers of the same caliber
and experience in the Columbus, Ohio legal community,” (ECF No. 49-2, ¶ 12) so
perhaps Courthouse News provided information to Mr. Porter that it did not provide
to the Court.
Rates in Excess of $500. Counsel provided excellent representation to
Courthouse News. However, the Court finds that some of the rates charged are not
reasonable for the Columbus legal community. While the Court finds no issue with
those rates under $350 per hour, some of the more seasoned lawyers working on
this case had rates above $600, and even $700, per hour. Reflecting on the market
rate in this Court’s venue, the Court finds such rates excessive and $500 per hour a
more appropriate rate that would have attracted competent counsel. See Regenold,

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2023 WL 4549365, at *2. Thus, the following attorneys’ rates are reduced to $500
per hour: John B. Pinney, R.E. Matteo-Boehm, J.G. Fetterly, and J. Ginsberg.
Unjustified Rate Increases. Also, this case was filed in June 2022 and the
Consent Order was entered one year later. Courthouse News does not provide any
explanation as to why increases in lawyers’ rates are appropriate during litigation
lasting for such a short time and the Court finds that there is no justification for
increased rates in a fee award in this case. The lack of justification is particularly
stark in light of the fact that, among other things, Mr. Greiner’s rate began at $500
per hour, went up to $535 in January 2022, went up again to $615 in January 2023,
and then went down to $600 in March 2023. (ECF No. 49-1.) The Court will use the
lawyers’ rates at the start of the litigation, rather than the end.
B.

Reasonable Hours Expended

Second, to calculate the lodestar, the Court must determine the reasonable
number of hours expended. “[T]he prevailing party’s lawyer should be the first
gatekeeper in this task, exercising the same billing judgment she would with one’s
client.” Hines v. DeWitt, No. 2:13-CV-1058, 2016 WL 2342014, at *1 (S.D. Ohio May
4, 2016), aff’d sub nom. Hines v. City of Columbus, Ohio, 676 F. App’x 546 (6th Cir.
2017) (citing Hensley, 461 U.S. at 434). The Court’s focus is on “mixed questions
about whether the lawyer used poor judgment in spending too many hours on some
part of the case or by unnecessarily duplicating the work of co-counsel.” Coulter, 805
F.2d at 151. Excessive, redundant, or otherwise unnecessary hours will not be
counted. Hensley, 461 U.S. at 434. While representation by multiple legal counsel

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“can be productive,” “the danger of duplication [is] a waste of resources which is
difficult to measure.” Coulter, 805 F.2d at 152.
Nominal Billers. Some Courthouse News billers are listed as billing less
than four hours total. Such nominal hours strike the Court as redundant or
otherwise unnecessary work that adds little substance or value to the case and
therefore will not be counted. For example, John Pinney billed for 0.4 hours for
reviewing a court order but did no substantive work in the case. (See, ECF No. 49-1,
PageID 810.) See Hensley, 461 U.S. at 436–37 (“The district court may attempt to
identify specific hours that should be eliminated, . . . [t]he court necessarily has
discretion in making this equitable judgment.”).
Prefiling Fees. Next, Ms. O’Shaughnessy disputes the reasonableness of the
hours spent by Courthouse News’s attorneys on the initial pleadings and in “block
billed” time entries. (ECF No. 53.) Ms. O’Shaughnessy points out that Courthouse
News billed about $175,000 in attorney’s fees before the litigation was filed in
connection with preparing the complaint, P.I. Motion, and supporting affidavits. (Id.
PageID 862–63; ECF No. 53-1, ¶ 11.) She highlights that Courthouse News has filed
dozens of the same cases over 13 years throughout the country, and thus had many
templates to work from. (Id. PageID 857.)
While the Court finds no issue with Courthouse News’s “block billing” here, it
agrees that the hours spent on the initial filings were excessive. Before filing the
lawsuit, the billing records indicate there were at least ten timekeepers billing on
the matter. (ECF No. 49-1.) Given that Courthouse News had filed many similar
complaints and preliminary injunction motions before, $175,000 in pre-filing fees is
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excessive. See e.g., Citizens for Cmty. Values, Inc. v. Upper Arlington Pub. Libr. Bd.
Of Trustees, No. C-2-08-223, 2010 WL 1253892, at *3 (S.D. Ohio Mar. 24, 2010)
(Smith, J.) (“This Court and other Ohio district courts have found that where the
prevailing party’s counsel has filed similar complaints in other matters, or drafted
briefs duplicating the same research, case law and legal arguments filed in other
cases, this is a legitimate basis to reduce the party’s claimed attorney’s fees as
excessive.”); Estep v. Blackwell, No. 1:06CV106, 2006 WL 3469569, at *3 (S.D. Ohio
Nov. 29, 2006) (Watson, J.) (concluding “twenty-two hours for work, which to a great
percentage is duplicative” of work in another similar case “is unreasonable”);
Disabled Patriots of Am. v. Genesis Dreamplex, LLC, No. 3:05 CV 7153, 2006 WL
2404140, at *6 (N.D. Ohio Aug. 18, 2006) (similar holding).
Courthouse News’s counsel spent more than 300 hours to draft, revise, and
review the complaint, P.I. Motion, and accompanying affidavits, all of which appear
to have been adapted from prior templates. (See ECF No. 53, PageID 856; ECF No.
53-1, PageID 882–86 (highlighting “copy/paste examples”).) The Court finds the
time spent reviewing and editing the complaint and other initial papers is excessive
and reflects redundant and unnecessary work. Having analyzed the billing records
(ECF No. 49-1), and based on its own experience in handling similar fee requests
and its knowledge of the case, the Court finds $75,000 to $100,000, though still
high, to be a reasonable fee for preparing the Complaint and Motion for Preliminary
Injunction in this case.
The information provided by Courthouse News does not provide enough data
for the Court to make precise, pre-complaint, hour cuts. Moreover, “[c]ourts have
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recognized the impracticality of specifying each and every hour to be excluded in a .
. . fee application . . . in which voluminous billing records must be examined,” and
“for this reason, most circuits, including the Sixth, have authorized across-the-board
fee reductions as an appropriate method of trimming fat from a fee application.”
Cleveland Area Bd. of Realtors v. City of Euclid, 965 F. Supp. 1017, 1021 n.5 (N.D.
Ohio 1997) (citations and quotations omitted); Szeinbach v. Ohio State Univ., No.
2:08-CV-822, 2017 WL 2821706, at *10 (S.D. Ohio June 30, 2017) (Kemp, M.J.)
(“only an across-the-board reduction [would] adequately address the issues
apparent,” which included “a tendency to overwork particular issues” and “errors
and irregularities” in the billing spreadsheets).
Recognizing that in making an across-the-board fee reduction the Court
would likely be double-counting (or put differently, double-cutting) some attorney
time and fees as a result of the adjustments already made above, the Court will cut
$75,000, rather than $100,000, from the fees charged. While such math is imprecise,
the Court finds a total fee award of $135,936 (calculated below) reasonable given
the work performed and result achieved. This adjusted amount reflects plaintiff
counsel’s high-quality legal work and successful result but is not excessive.
C.

Fee Calculation

Given the above findings, the proposed attorney’s fee and cost award is
modified as follows:

10

Name, Firm

Year
Admitted

Hourly Rate at
Start of Litigation

Hourly Rate at
End of Litigation

Hours
Expended

Total
Sought

Adjusted Rate

Adjusted Total

John C. Greiner,
Faruki PLL

1983

$500

$600

142.5

$78,934.00

$500

$71,250.00

Darren W. Ford,
Faruki PLL

2010

$350

$425

10.2

$3,570.00

$350

$3,570.00

Alexandra Berry,
Bricker Graydon, LLP

2018

$250

$300

414.5

$111,517.00

$250

$103,625.00

Liam McMillan,
Bricker Graydon, LLP

2022

$125

$125

1.9

$237.50

$125

$0.00

Whitney J. Glover,
Bricker Graydon, LLP

2021

$240

$240

1.1

$264.00

$240

$0.00

Sebastian West,
Bricker Graydon, LLP

2022

$175

$250

7.8

$1,635.00

$175

$1,365.00

John B. Pinney,
Bricker Graydon, LLP

1972

$650

$650

0.4

$260.00

$500

$0.00

Sergio G. Fernandez,
Faruki PLL

2023

$245

$245

17.8

$4,361.00

$245

$4,361.00

Kelly Finn,
Faruki PLL

Paralegal
for 6 years

$180

$180

2.8

$504.00

$180

$0.00

Cecily M. Perez,
Bricker Graydon, LLP

Paralegal

$200

$215

28.2

$6,040.50

$200

$5,640.00

Stephanie Henson,
Bricker Graydon, LLP

Paralegal
for over 20
years

$250

$250

7.7

$2,055.00

$250

$1,925.00

R.E. Matteo-Boehm,
BCLP

1996

$731

$731

38.4

$28,070.40

$500

$19,200.00

J.G. Fetterly, BCLP

2003

$765

$765

3.7

$2,830.50

$500

$0.00

J. Ginsberg, BCLP

2009

$765

$765

1.1

$841.50

$500

678.1

$241,120.40

SUBTOTAL
(Across-the-Board Fee
Reduction)
TOTAL

$0.00
$210,936.00
($75,000)
$135,936.00

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II.

CONCLUSION
Accordingly, Courthouse News’s Motion for Attorney’s Fees (ECF No. 49) is

GRANTED in part. Courthouse News is awarded $135,936 in attorney’s fees and
costs. The Clerk is DIRECTED to ENTER JUDGMENT accordingly and CLOSE
the case.
IT IS SO ORDERED.

/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE

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