United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT.
Learning, Inc. ("Plaintiff') objects to the report
and recommendation ("R&R") issued by
now-retired Magistrate Judge Kemp, which recommended denying
Plaintiff's motion for attorneys' fees. Obj., ECF No.
jury trial on the various claims and counterclaims in this
case, the jury rendered verdicts awarding $36, 825.16 to
Plaintiff and $130, 141.77 to Step by Step Academy, Inc.
("Defendant") for a net award of $93, 316.61 to
Defendant. Relevant to the instant motion, the jury answered
"yes" to an interrogatory asking whether Defendant
breached the Custom Software Development Agreement
("SDA") at issue in this case but awarded $0 in
damages to Plaintiff for the breach. Verdict form 2-3, ECF
thereafter moved for $81, 067.90 in attorneys' fees and
$22, 964.92 in costs based on the jury's conclusion that
Defendant breached the SDA. Mot. Atty. Fees, ECF No. 103.
Defendant opposed the motion, Resp., ECF No. 106, and
Plaintiff replied, Reply, ECF No. 108.
Judge Kemp, to whom the case was assigned, issued an R&R
that recommended denying Plaintiffs motion. R&R, ECF No.
115. The R&R explained that the SDA states in pertinent
part, "[i]f any legal action is necessary to enforce
this Agreement, the prevailing party will be entitled to
reasonable attorney fees, costs and expenses." SDA 6,
ECF No. 1-3, PAGEID # 70. The R&R then concluded that the
SDA did not define the phrase "prevailing party, "
but that Plaintiff was not a prevailing party under
applicable case law because Plaintiff did not win any damages
on its breach of contract claim nor did the legal
relationship of the parties change. R&R 6, ECF No. 115.
STANDARD OF REVIEW
Judge Kemp issued the R&R pursuant to Federal Rule of
Civil Procedure 72(b). Under that rule, the Undersigned must
determine de novo any part of the Magistrate
Judge's disposition that has been properly objected to.
Fed.R.Civ.P. 72(b)(3). The undersigned may accept, reject, or
modify the R&R, receive further evidence, or return the
matter to the Magistrate Judge with instructions.
objects that the R&R misstates the facts and either
misapplies the applicable law or applies the wrong law with
respect to the R&R's primary conclusion that
Plaintiff is not a "prevailing party" because it
won neither damages nor a change in the relationship of the
however, Plaintiff does not object to the R&R's
second, separate conclusion that Plaintiff is not a
prevailing party under Ohio law on its breach of contract
claim because it did not achieve success on the final element
of its claim-damages. R&R 7, ECF No. 115. The R&R
agreed with Defendant on this "additional argument"
that a breach of contract claim under Ohio law contains four
elements: a contract, performance by the plaintiff, breach by
the defendant, and damages to the plaintiff. Id. The
R&R further agreed that although interrogatories may
separate these elements into distinct questions for a jury to
answer, each element is still essential to a claim for breach
of contract such that a failure by the jury to find any
element means the plaintiff failed on its claim. Id.
Because the jury found that Defendant breached the SDA but
did not award damages, the R&R agreed with Defendant that
Plaintiff was not a prevailing party on its breach of
contract claim. Id.
R&R notified the parties of the right to object to
"specific proposed findings or recommendations to which
objection is made" and specifically warned the parties
that a failure to object would result in a waiver of the
right to de novo review by the Undersigned as well
as a waiver of the right to appeal the Undersigned's
decision adopting the R&R. R&R 8, ECF No. 115.
Plaintiff failed to object to this conclusion, and the Court
therefore ADOPTS the R&R on this basis
without conducting a de novo review. The Court,
accordingly, DENIES Plaintiff's motion
for attorneys' fees and costs, ECF No. 103.
the Court were to consider Plaintiff's objections to the
primary portion of the R&R, it would overrule the same.
respect to their factual objections, Plaintiff first argues
that the R&R incorrectly states that there were only two
claims relating to the software development project (cross
claims for breach of contract) ...