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Imwalle v. Reliance Medical Products

November 9, 2006


The opinion of the court was delivered by: Herman J. Weber, Senior Judge United States District Court


This matter is before the Court upon plaintiff's application for attorney fees and costs (doc. 115) and revised application for attorney fees and costs (doc. 128). Defendants have filed a response in opposition (doc. 119). A hearing on the request for fees and costs was held on October 19, 2006.

I. Introduction

Plaintiff Dennis Imwalle brought federal and state law claims alleging he was terminated from his employment with defendants on account of his national origin, on account of his age, and in retaliation for filing a discrimination charge with the EEOC. Plaintiff also brought claims for breach of an employment agreement and violation of Ohio public policy. The Court granted summary judgment in favor of defendants on the latter two claims and denied summary judgment on the remaining claims. The case proceeded to trial on those claims. At the conclusion of five days of trial testimony, the jury returned a verdict in favor of plaintiff on his claim of retaliation for opposing unlawful employment discrimination by defendants. The jury awarded plaintiff compensatory damages in the amount of $185,000.00.

Plaintiff filed his application for attorney fees and costs after the trial had concluded. Plaintiff originally sought an award of $249,727.00 for attorney fees and $12,796.93 in costs for a total of $262,523.93. Defendants objected to the requested hourly rates for several of the attorneys as lacking any evidentiary support and/or excessive. Defendants also raised objections to fees and expenses incurred by paralegal Kathi Huber in accompanying Attorney Randy Freking to Switzerland for two depositions; hours claimed for time legal assistants spent preparing a pleading board and discovery notebook; pre-litigation hours that plaintiff's prior counsel, Robert Klingler, claimed that were unrelated to plaintiff's EEOC proceedings; nominal hours billed by Attorneys Megan Clark, Kelly Mulloy Myers, Leanne Montgomery, and Elizabeth Loring; and fees and expenses related to a Jury Focus Group. Defendants further argued that the lodestar amount should be reduced by 10% for insufficient billing descriptions and that it should be further reduced by 50% to account for plaintiff's limited success.

In the revised application, plaintiff seeks an additional award of $5,286.31 for attorney fees, $2,273.70 in costs, and $3,937.61 for post-judgment interest. Plaintiff agrees to a reduction in the hourly rate sought for Mr. Freking, a deduction of $227.50 billed for legal assistant work, and $2,000.00 in expenses related to use of the Jury Focus Group. Plaintiff submits that all other fees and costs submitted in the initial application are proper, leaving a total of $252,598.34 in fees and costs.

Plaintiff seeks the Court's approval of the following rates for counsel, as adjusted at the hearing:

Randolph H. Freking$356.65 Sheila M. Smith$275.00 George M. Reul, Jr.$250.00 Kelly Mulloy Myers$250.00 Megan E. Clark$225.00 Anne Koize Wittenauer$135.00 Ron Seibel$175.00 Leanne R. Montgomery$175.00 Elizabeth S. Loring$150.00 Heather M. Schisler$150.00 Marcie Warrington$150.00

II. Applicable law

Title 42 U.S.C. § 2000e-5(k) provides that in any action under that subchapter, the court, in its discretion, may allow the prevailing party a reasonable attorney fee as part of the costs. The Sixth Circuit has acknowledged that the standard for awarding attorney fees under § 2000e-5(k) is essentially the same as that which governs a fee award under 42 U.S.C. § 1988, so that the same case law applies to fee requests under either statute. See Virostek v. Liberty Township Police Department/Trustees, 14 Fed.Appx. 493, 510 (6th Cir. 2001) (not published in Federal Reporter) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983); Smyth v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985)).

A useful starting point for determining the amount of a reasonable fee is the lodestar, calculated by multiplying the number of hours reasonably expended on the litigation by the reasonable hourly rate. Hensley, 461 U.S. at 433. Where the party seeking the fee has established that the number of hours and the rate claimed are reasonable, the lodestar is presumed to be the reasonable fee to which counsel is entitled. Pa. v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 564 (1986) (citing Blum v. Stenson, 465 U.S. 886, 897 (1984)).

Where the plaintiff has obtained "excellent results," her attorney should ordinarily recover a fully compensatory fee. Hensley, 461 U.S. at 435. In such a case, the fee award should not be reduced solely because the plaintiff did not succeed on each of her claims. Id. On the other hand, if a claimant has achieved only partial success, the number of hours reasonably expended on the litigation as a whole multiplied by the hourly rate may yield an excessive amount. Id. at 436. This may be true even if the claims raised were interrelated. Id. Under these circumstances, the most critical factor is the degree of success obtained. Id.

Where the plaintiff has succeeded on only some of her claims for relief, the court must address two issues. First, the court must determine whether the claims on which the plaintiff failed to prevail were unrelated to the claims on which she succeeded. Second, the court must ascertain whether the plaintiff achieved a degree of success that renders the hours reasonably expended a satisfactory basis for making a fee award. Hensley, 461 U.S. at 434.

Where the plaintiff has presented distinctly different claims for relief based on different facts and legal theories, work on an unsuccessful claim cannot be considered to have been "expended in pursuit of the ultimate result achieved." Id. at 435 (quoting Davis v. County of Los Angeles, 8 E.P.D. ΒΆ9444, at 5049 (C.D. Cal. 1974)). Therefore, no fee may be awarded for services performed on the unsuccessful claim. Id. Conversely, where the plaintiff's claims for relief involve common facts or related legal theories, so that much of counsel's time will have been devoted generally to the litigation as a whole, the ...

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