Szeinbach v. Ohio State Univ., Case No. 2:08-cv-822
| Decision Date | 30 June 2017 |
| Docket Number | Case No. 2:08-cv-822 |
| Parties | Sheryl L. Szeinbach, Plaintiff, v. The Ohio State University, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Sheryl L. Szeinbach, Plaintiff,
v.
The Ohio State University, Defendant.
Case No. 2:08-cv-822
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
June 30, 2017
Magistrate Judge Kemp
OPINION AND ORDER
There has been much written lately about the cost and delay associated with resolving cases in federal court. While there is literature on both sides of the question - some suggesting that even with the recent changes to the Federal Rules of Civil Procedure and with more active case management on the part of judges, it still costs too much and takes too long to get a decision in a federal case, and others pointing out that the average time and expense to bring such a case to resolution is not out of line - this case could serve as a poster child for the argument that federal court litigation has become prohibitively expensive.
As numerous other opinions and orders issued by both this Court and by the Court of Appeals for the Sixth Circuit reflect, Dr. Szeinbach filed this case in 2008, asserting that she had been unfairly targeted for investigation based on allegations of research misconduct, and that the real motive behind Ohio State's actions related to her filing of a discrimination claim and her support of another colleague's similar claim. After more than two years of motions practice and discovery, the Court granted summary judgment to Ohio State. Dr. Szeinbach successfully appealed that decision, although the appeal took another year and
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a half to resolve. Once the mandate issued, it took almost two more years for the case to proceed to trial, and then only after the Court issued a 72-page opinion and order denying a renewed motion for summary judgment.
The trial lasted fourteen days. At the end, the jury returned a verdict in favor of Dr. Szeinbach on a claim of co-worker retaliation which was, according to the verdict, something that Ohio State supervisors or members of management either knew or had reason to know about, and also something that those same officials either condoned, tolerated or encouraged, or failed adequately to respond to.
Inevitably, a post-trial motion followed, which was granted in part and denied in part. In the meantime, Dr. Szeinbach, as the prevailing party, moved for attorneys' fees under 42 U.S.C. §1988 and supplemented that motion. Dr. Szeinbach then appealed Judge Abel's order granting some post-trial relief to Ohio State, and Ohio State cross-appealed. The cross-appeal was dismissed, but Dr. Szeinbach persisted in her appeal, which ultimately (i.e. fifteen months later) was decided against her. She then petitioned the United States Supreme Court for a writ of certiorari but was, again, unsuccessful. While all that was happening, the attorneys' fees matter was stayed.
After the fee issue was reactivated, the Court made a preliminary ruling denying one of Ohio State's arguments about the effect of an offer of judgment, and it set the matter for a hearing. The docket reflects that in the five months which elapsed since that order was entered, there were 24 additional docket entries made; the hearing was continued once; and the Court held two discovery conferences. The two-day hearing then ensued. By the time this Opinion and order will be issued, the case will have been pending for almost nine years. It is not surprising that Dr. Szeinbach's attorney is asking for a million-
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dollar fee. It is also not surprising that Ohio State's outside counsel, who handled this case for a period of time (but not including the trial, any of the post-trial motions or second appeal, and any proceedings on the attorneys' fees portion of the case), billed 12,400.45 hours of time for their work. See Exhibit 15, p., l64.
It is not possible, at this point, to place either blame or responsibility on any one party or institution for this nine-year saga. Some cases have to be tried. This may have been one of them. Some cases are very complex. That appears to be true of this case as well. The best that can be said now is that it is time for the Court to write what will hopefully be the final chapter (although given that this order is appealable, that is by no means certain). The Court now turns to the issue of what is a reasonable fee for the time expended by Dr. Szeinbach's counsel in proving her case.
Generally, parties are required to pay their own attorney's fees. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010). Congress enacted 42 U.S.C. §1988(b) as an exception to this general rule "in order to ensure that federal rights are adequately enforced." Id. Under that statute, a court has discretion to award a prevailing party, other than the United States, a reasonable attorney's fee. 42 U.S.C. §1988. Title VII also provides for a recovery of reasonable attorney's fees by a prevailing plaintiff. 42 U.S.C. §2000e-5(k). The standard of awarding attorney's fees to a prevailing party under §1988 applies to awards under Title VII. Virostek v. Liberty Township Police Department/Trustees, 14 Fed.Appx. 493, 509 (6th Cir. 2001).
"Although §1988 uses permissive language regarding fee awards, 'the Supreme Court has read [§1988] as mandatory where
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the plaintiff prevails and special circumstances are absent.'" Hescott v. City of Saginaw, 757 F.3d 518, 523 (6th Cir. 2014), quoting Deja Vu v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 421 F.3d 417, 420 (6th Cir. 2005). A party is considered a prevailing party if she "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In Hensley, the Supreme Court explained that '[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. This amount is referred to as the "lodestar." Garner v. Cuyahoga Cnty. Juvenile Ct., 554 F.3d 624, 642 (6th Cir. 2009).
"The award-seeking party should submit evidence of the hours worked and the rates sought." The Northeast Ohio Coalition for the Homeless v. Husted, 831 F.3d 686, 702 (6th Cir. 2016), citing Hensley, 461 U.S. at 433. "If 'documentation of hours is inadequate, the district court may reduce the award accordingly.'" Id. Fee applicants must exercise "billing judgment," meaning counsel is expected to "exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice is ethically obligated to exclude such hours from his fee submission." Id. Courts are required to exclude from the lodestar calculation hours that were not reasonably expended. Id. Courts are not required to act as "green-eyeshade accountants" and "achieve auditing perfection" but must simply do "rough justice." Fox v. Vice, 563 U.S. 826, 838 (2011). Finally, "[d]etermination of an appropriate fee award 'should not result in a second major litigation.'" Abernathy v. Corinthian Colleges, Inc., 2014 WL 4272723 *5 (S.D. Ohio Aug. 29, 2014), quoting Hensley, 461 U.S. at 437.
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The legal standard for calculating a reasonable hourly rate is exceedingly well-documented in the case law. A reasonable hourly rate is typically "the prevailing market rate, defined as the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record." Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004). Judge Marbley recently explained the standard in Autrey v. Food Concepts International, LP, 2017 WL 1163845, at *3-4 (S.D.Ohio March 29, 2017) in this way:
In determining a reasonable hourly rate, "[t]he appropriate rate ... is not necessarily the exact value sought by a particular firm, but is rather the market rate in the venue sufficient to encourage competent representation." Sykes v. Anderson, 419 Fed.Appx. 615, 618 (6th Cir. 2011) (internal quotations omitted). The market rate is "the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record." Gonter v. Hunt Value Co., 510 F.3d 610, 618 (6th Cir. 2007). Comparable skill and experience, of course, means skill and experience in the specific area of law at issue in the case. Snide v. Disc. Drug Mart, Inc., No. 1:11-cv-244, 2013 U.S. Dist. LEXIS 165584, *22-*25, 2013 WL 6145130 (N.D. Ohio Oct. 30, 2013).
In making its determination, the court may "consider a party's submissions, awards in analogous cases, state bar association guidelines, and its own knowledge and experience from handling similar requests for fees." Northeast Ohio Coalition for Homeless v. Husted ("NEOCH"), No. 2:06-cv-896, 2014 WL 4829597, at *12 (S.D. Ohio Sept. 29, 2014) (vacated in part on other grounds) (quoting Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 Fed.Appx. 496, 499 (6th Cir. 2011)). The fee applicant bears the burden to "produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 (1984).
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The Court may also consider an attorney's own normal billing rates to help calculate a reasonable fee. Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995). It is with this standard in mind that the Court will consider the issue of the reasonable hourly rate requested by Dr. Szeinbach's counsel.
Dr. Szeinbach's lead counsel from the preparation and filing of the complaint through the fee hearing was Eric Rosenberg. He currently practices with Rosenberg & Ball, a small firm located in Granville, Ohio. At the hearing, Mr. Rosenberg testified that he started practicing law in 1998. Prior to Dr. Szeinbach's trial, he had tried over 20 cases. He started his career with the Ohio Attorney General's Office, eventually...
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