United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. Pearson United States District Judge
before the Court is Plaintiffs' Motion for Relief from
the Court's Order pursuant to Fed.R.Civ.P. 60(b). ECF No.
56. For the following reasons, the Court denies
Plaintiffs' Motion and grants Defendants request for
Plaintiffs' Motion for Relief (ECF No. 56)
the Court's Order finding that Defendants were entitled
to summary judgment, Defendants moved for attorney's
fees. ECF No. 53. The Motion was served on all parties,
including counsel for Plaintiffs, electronically via the
Court's Electronic Case Filing system. Plaintiffs did not
oppose the Motion within the cutoff set by Local Rule 7.1.
The Court granted Defendants' Motion, finding that fees
were warranted. ECF No. 55 at PageID #: 1615-16.
move for relief from the Court's Order pursuant to
Fed.R.Civ.P. 60(b). ECF No. 56. Plaintiffs' counsel
admits that he received an e-mail notifying him of
Defendants' Motion for Fees, but contends that the e-mail
was misfiled in his inbox, and, therefore, he failed to read
the Motion. Id. at PageID #: 1618.
Civ. P. 60(b)(1) permits courts to relieve a party, or its
legal representative, from a final judgment, order, or
proceeding for mistake, inadvertence, surprise, or excusable
neglect. Plaintiffs argue that the electronic notification
was “inadvertently, mistakenly, or by electronic
failure not transferred to Plaintiffs' counsel's
inbox.” ECF No. 56 at PageID #:1619. Plaintiffs'
counsels' reason for missing the cut-off to respond is
not sufficient to justify relief under Rule 60(b)(1). Parties
have “an affirmative duty to monitor the docket”
to keep informed of motions they may want to oppose. See
Yeschivk v. Mineta, 675 F.3d 622, 629 (6th Cir. 2012)
(citing Kuhn v. Sulzer Orthopaedics, Inc., 498 F.3d
365, 370-71 (6th Cir. 2007) and Reinhart v. U.S.
Dep't Of Agric., 39 F. App'x 954, 956-57 (6th
Cir. 2002) (noting that parties have an affirmative duty to
monitor the docket for orders they may wish to appeal).
Although electronic dockets permit e-mail notification, this
technological convenience does not excuse counsel's duty
to keep apprised of docket activity. See Santos-Santos v.
Torrest-Centeno, 842 F.3d 163, 168-69 (1st Cir. 2016)
(attorney's failure to monitor the docket not rise to
Rule 60(b)‘s “demanding standard”).
Additionally, although Plaintiffs are represented by two
counsel, no explanation was offered as to why Plaintiffs'
second counsel did not timely respond to the Motion.
Plaintiffs' Motion for Rule 60(b) relief is
alternative, the Court accepts Plaintiffs' Opposition to
Defendants' Supplemental Brief in Support of
Attorneys' Fees (ECF No. 59) as a tardy response to
Defendants' Motion for Fees. Although Plaintiffs argue
that fees are inappropriate because “this case hinges
on an invalid ordinance, ” ECF No. 59 at PageID #:
1659, the Court already considered this argument in its Order
granting summary judgment to Defendants, and finds no reason
to reconsider its decision now. Accordingly, the Court finds
Plaintiffs' argument to be without merit.
Calculation of Defendants' Fees
Defendants had not yet demonstrated that their fees were
reasonable, the Court was unable to determine the appropriate
amount of fees under the lodestar method when it granted
Defendants' Motion for Attorney's Fees. ECF No. 53 at
PageID #: 1616; see also Hensley v. Eckerhart, 461
U.S. 424, 433 (1983) (courts should multiply the
attorney's reasonable hourly rate by the number of
reasonable hours worked). Defendants have since filed
supplemental materials to support their claim that their
request is reasonable. ECF No. 57.
Supreme Court has indicated that courts are to calculate
attorney fees under the “lodestar” method.
Blanchard v. Bergeron, 489 U.S. 87, 94 (1989);
Pennsylvania v. Delaware Valley Citizens' Council for
Clean Air, 478 U.S. 546, 565 (1986) (“Delaware
Valley I”). Under this methodology, the Court multiples
the number of hours reasonably expended by the attorney by
the attorney's reasonable hourly rate. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983); Lavin v.
Husted, 764 F.3d 646, 649 (6th Cir. 2014). There is a
“strong presumption” that the figure so
calculated represents a reasonable fee. Delaware Valley I,
478 U.S. at 565. The lodestar must be based on the
“prevailing market rates in the relevant
community.” Blum v. Stenson, 465 U.S. 886, 895
Robert J. Tscholl, an Ohio attorney familiar with
Defendants' representation and the Northeast Ohio legal
community, reviewed Defendants' requested fees and found
them to be reasonable. ECF No. 57-2 at PageID #: 1644-46.
Prior to December 1, 2015, associates billed at a rate of
$115.00 per hour, and partners billed at a rate of $130.00
per hour. Id. at PageID #: 1645, ¶ 4. After
January 1, 2016, associates and partners billed at a rate of
$130.00 per hour and $145.00 per hour, respectively.
Id. Attorney Tscholl found these rates to be below
the customary and reasonable rate for the type of work and
for work performed in this area. Id. at PageID #:
1645, ¶ 5.
reviewed Attorney Tscholl's affidavit, Defendants'
time sheets, and that which was submitted by the parties, the
Court finds the number of hours expended on the matter and
the requested rates to be reasonable. The Court next
multiplies the hourly rate by hours expended:
Attorney James F. Mathews: $130.00 hourly rate x 18.4 hours =