Joseph Hines v. City of Columbus , 676 F. App'x 546 ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0052n.06
No. 16-3333
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH HINES, ) FILED
) Jan 20, 2017
Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk
)
v. )
)
CITY OF COLUMBUS, OHIO; DEBRA PAXTON; )
THOMAS DEWITT; EDWARD PRIME, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Defendants-Appellees, ) COURT FOR THE
) SOUTHERN DISTRICT OF
and ) OHIO
)
KIMBERLY JACOBS; RICHARD BASH; )
CHRISTOPHER BOWLING; LUELLEN )
KUYKENDOLL; JAMES MORROW; PATRICK )
SHAFFER; EARL WESTFALL; IAN PRUITT, )
)
Defendants. )
BEFORE: SUHRHEINRICH, SUTTON, and McKEAGUE, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Plaintiff Joseph Hines (Plaintiff) seeks a new trial
following a jury verdict in this civil rights action alleging excessive use of force by several City
of Columbus, Ohio police officers. He also challenges the district court’s reduction of his
attorneys’ fees award.
I.
On August 29, 2012, at about 11:45 p.m., several Columbus police officers, including
Defendants-Appellees Debra Paxton (Paxton), Thomas DeWitt (DeWitt), and Edward Prime
No. 16-3333, Hines v. City of Columbus
(Prime) (collectively Defendants), arrested Plaintiff for littering and underage drinking.1 The
officers used force in arresting Plaintiff, causing injuries, which included post-concussive
syndrome with contusions on his face, chemosis of his eyes from mace, and post-traumatic stress
disorder. Plaintiff incurred $10,303.00 in medical bills.
In his amended complaint, Plaintiff brought excessive force and § 1983 conspiracy
claims against five Columbus police officers and failure-to-intervene claims against three of
those officers. The district court dismissed the excessive force claims against two of the officers,
granted summary judgment to all five officers on the conspiracy claims, and dismissed a failure-
to-intervene claim against one of the officers. Three officers—Defendants—were tried by jury
on the remaining excessive force and failure-to-intervene claims.
Without objection from Plaintiff, the district court granted Paxton’s motion for judgment
as a matter of law on the excessive force claim. The jury awarded Plaintiff $30,000 in
compensatory damages on his excessive force claim against DeWitt and denied punitive damage
against him. They found in favor of Prime on the excessive force claim. The jury found in favor
of Paxton and DeWitt on the failure-to-intervene claims.
After the district court entered judgment, Plaintiff’s attorneys filed petitions for attorneys’
fees and costs. Plaintiff sought fees and costs totaling $91,342.05 to the law firm of David A.
Goldstein Co., L.P.A. (the Goldstein Firm), of Columbus, Ohio, and $211,600.43 to the law firm
of Fieger, Fieger, Kenney & Harrington, P.C. (the Fieger Firm) of Detroit, Michigan, for a grand
total award of $302,942.48. Observing that this amount was “more than ten times the jury’s
damages award” of $30,000, the district court reduced it to “a more reasonable amount.” ID#
3109-10. The district court adjusted the rates the Fieger Firm requested to align with rates
1
Plaintiff was charged with various offenses including resisting arrest and causing harm to a law enforcement
officer, obstructing official business, underage intoxication, and an open container violation. Plaintiff pleaded guilty
to the littering charges and the others were dismissed. ID# 746-47.
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No. 16-3333, Hines v. City of Columbus
reported in the Ohio State Bar Association Report, The Economics of Law Practice in Ohio in
2013, available at https://www.ohiobar.org/NewsAndPublications/Documents/OSBA_EconOf
LawPracticeOhio.pdf. and charged by local counsel, David Goldstein, ID# 3113-15, and red-
lined “specific instances of unreasonable hours billed.” ID# 3115-18. Except for 1.5 hours, the
district court did not reduce the Goldstein Firm’s requested rates or hours. The district court
further reduced the lodestar amount of both sets of attorneys’ fees requests by 50% to reflect the
“minimal” degree of success obtained. ID# 3118-21. Thus, the Fieger Firm’s attorneys’ fees
were reduced from $176,075.00 to $39,878.80, and its costs were cut from $35,525.43 to
$13,077.04. Similarly, the court reduced the Goldstein Firm’s attorneys’ fees from $89,360.00
to $44,997.00, but did not reduce its costs. ID#3126.
On appeal, Plaintiff contends that he was denied a fair trial and is entitled to a new one
because the district court (1) erred in denying his Batson challenge during jury selection; and (2)
improperly denigrated his counsel and his case through comments and unfavorable evidentiary
rulings. Plaintiff also argues that the 50% across-the-board reduction of attorneys’ fees and costs
was unreasonable.
II.
A.
Initially we consider Defendants’ contention that Plaintiff forfeited his new trial issues
because he failed to move for either judgment as a matter of law pursuant to Fed. R. Civ. P. 50 or
a new trial pursuant to Fed. R. Civ. P. 59.2
2
Seeking such relief would have been futile anyway. The material issues in this case involved conflicting witness
testimony, which “lies at the core of the jury’s factfinding function.” 9B CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FED. PRAC. & PROC. § 2527 (3d ed. & Supp. 2016). “A testimonial conflict of this kind can be resolved
only by the jury; this basic principle prevents the grant of a motion for judgment as a matter of law under Rule 50(a)
. . . .” Id.
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No. 16-3333, Hines v. City of Columbus
“Rule 50 is meant to preserve the judge’s power to determine evidentiary sufficiency”
and does not govern pure questions of law like evidentiary challenges. Belk, Inc. v. Meyer Corp.,
U.S., 679 F.3d 146, 161 (4th Cir. 2012). Purely legal questions, “as long as they are properly
preserved, may be considered on appeal,” in the absence of a Rule 50 motion. Id.; Chemetall
GMBH v. ZR Energy, Inc., 320 F.3d 714, 720 (7th Cir. 2003); 9B CHARLES ALAN WRIGHT
& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2540 (3d ed. 2014 & Supp. 2016)
(stating that “[i]f there have been errors at the trial, duly objected to, dealing with matters other
than the sufficiency of the evidence, they may be raised on appeal from the judgment even
though there has not been either a renewed motion for judgment as a matter of law or a motion
for a new trial”). Relatedly, the renewal requirement of Rule 50(b) applies only to challenges to
the sufficiency of the evidence. Doherty v. City of Maryville, 431 F. App’x 381, 385-86 (6th Cir.
2011). Furthermore, a Rule 59 motion is not a prerequisite to appellate review of contested
rulings that were preserved in the trial court. Howe v. City of Akron, 801 F.3d 718, 750 (6th Cir.
2015) (quoting 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2818 (3d ed. 2015)). This argument is without merit.
B.
Plaintiff, who is African American, complains that the district court erred in denying his
Batson3 challenge because Defendants did not offer a race-neutral explanation for excluding one
of the African-American jurors. “The ‘Constitution forbids striking even a single prospective
juror for a discriminatory purpose.’” Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting
Snyder v. Louisiana, 552 U.S. 472, 478 (2008)). Batson set up a three-step process for
determining whether a juror has been struck for a discriminatory purpose. First, the party
3
Batson v. Kentucky, 476 U.S. 79 (1986). Batson challenges apply in civil litigation. Edmonson
v. Leesville Concrete Co. Inc., 500 U.S. 614, 616, 629 (1991).
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No. 16-3333, Hines v. City of Columbus
asserting the Batson violation must make a prima facie showing that a peremptory challenge is
based on race. If that showing is made, the party who exercised the strike must offer a race-
neutral explanation. That explanation need not rise to the level of a challenge for cause, but
instead need only be a plausible, race-neutral reason for peremptorily striking the juror. Purkett
v. Elem, 514 U.S. 765, 767-68 (1995). Third, the trial court must determine whether the
opposing party has shown purposeful discrimination. Foster, 514 U.S. at 1747.
Defendants exercised their first peremptory challenge to remove Juror #78, an African
American. ID# 3100. Plaintiff did not contemporaneously object to Juror #78’s removal.
However, when Defendants used their third peremptory challenge to strike Juror #37, also an
African American, Plaintiff argued that Defendants were “systematically excusing members of
ethnicity. The first excused was somebody of African-American descent. . . . And the individual
that he has just proposed to be excused, Number 37, is African-American.” ID# 3102. Plaintiff
noted again that “Two of the three preemptories were African-American challenges.” ID# 3103.
Later he reiterated that “there were only two African-Americans in the entire venire, and the
defense has struck them both. And with a Batson objection, I’m arguing that, one; they can’t do
this because they’re systematically excluding African-Americans.” ID# 3105. In response, the
district court said, “Well, they have excused one without any objection. And, okay, go ahead
now. Do you wish to respond, Mr. Mangan [counsel for Defendants]?” ID# 3105. At that point,
defense counsel offered a race-neutral explanation for striking Juror #37, ID# 3105-06, which the
district court accepted, and then overruled the objection. Plaintiff does not challenge this ruling
on appeal. See Appellant’s Br. at 27 n.8.; Reply Br. at 3. However, defense counsel did not
offer any explanation for peremptorily striking Juror #78, the district court did not ask defense
counsel to give one, and Plaintiff did not insist that defense counsel provide one. The question
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No. 16-3333, Hines v. City of Columbus
on appeal is whether Plaintiff can assert a Batson challenge regarding Juror #78 where Plaintiff
did not make a Batson challenge when Juror #78 was peremptorily dismissed, but before any
perceptible “pattern” of race-based challenges had emerged.
Plaintiff’s Batson challenge regarding Juror #78 was timely under our precedent. In
United States v. Tomlinson, we held that “a strictly contemporaneous objection is not required
and that a party’s Batson objection is timely if it is made before the jury is sworn and the trial
commences.” Tomlinson, 764 F.3d 535, 537 (6th Cir. 2014); see also United States v. Reid,
764 F.3d 528, 533 (6th Cir. 2014) (holding that “a Batson challenge must be raised
contemporaneously with the voir dire process or prior to the time that the venire is dismissed”).
Plaintiff timely made the Batson challenge regarding Juror #78 as soon as he perceived what he
thought to be “a pattern of strikes against African American jurors.” See Tomlinson, 764 F.3d at
538.
Nonetheless, because Plaintiff failed to demand that defense counsel give a race-neutral
explanation for peremptorily striking Juror #78 once Plaintiff perceived a pattern, he forfeited his
right to seek one for the first time on appeal. Plaintiff’s counsel was a highly experienced trial
attorney who did not hesitate when it came to making a record for appeal on other matters. See,
e.g., ID# 2168-70, 2436-37. Yet he inexplicably made no effort to have the district court follow
the second and third Batson steps to ensure a proper record for appeal as to Juror #78.4 While
4
The record reflects why Plaintiff’s counsel probably did not pursue his Batson challenge as to Juror # 78 below. In
her jury questionnaire, Juror #78 indicated that she had been involved in a personal injury lawsuit, yet when the
district court inquired of the venire whether anyone had been involved in any lawsuits, she did not raise her hand.
She explained that “It completely escaped my mind.” ID# 3091. She also stated at a sidebar that the city attorney
had charged her husband with domestic violence in 2012 or 2103. ID# 3092-93. She explained that she forgot to
mention the incident during the trial court’s questioning, because she was “kind of in a fog” that morning due to her
diabetes and failure to eat that morning. ID# 3093. In addition, although she did not know him, her son had been
represented in a personal injury lawsuit in 2013 by attorney Fred Benton, one of the Plaintiff’s defense attorneys in
the criminal case arising out of the same incident. ID# 1216, 1239-40, 1263-64, 3093-94 Furthermore, she also
failed to mention when asked about contacts with the City Attorney’s Office that she was criminally charged by that
office for passing bad checks in 1992, because she didn’t remember. ID# 3094-95.
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No. 16-3333, Hines v. City of Columbus
not exactly “invited error,” Plaintiff should not be allowed to use the appellate process “to profit
from the legal consequences of having the ruling set aside” when he could have corrected the
error contemporaneously. In re Bayer Healthcare & Merial Ltd. Flea Control Prods. Mktg. &
Sales Litig., 752 F.3d 1065, 1072 (6th Cir. 2014) (quoting Harvis v. Roadway Exp., Inc., 923
F.2d 59, 61 (6th Cir. 1991)). Thus, we hold that although Plaintiff properly raised the Batson
issue with respect to Juror #78 once the purported pattern of race-based peremptory challenges
occurred (even though the challenge was not made at the time Juror #78 was struck), Plaintiff
failed to make a record in the district court sufficient to preserve the issue for appeal.
C.
Plaintiff asserts that the district court’s comments and rulings “improperly and
unnecessarily denigrated Plaintiff’s counsel,” depriving him of a fair trial. Appellant’s Br. at 30.
1.
Plaintiff claims on appeal that the district court “repeatedly and unnecessarily chastised
Plaintiff’s counsel, often in the presence of the jury.” Appellant’s Br. at 31.
We typically review a district court’s conduct during a trial for abuse of discretion.
United States v. McAllister, 693 F.3d 572, 584 (6th Cir. 2012). Plaintiff did not seek to recuse
the district judge and did not object at trial to the district court’s allegedly objectionable
statements. We therefore review the district court’s conduct simply for plain error. Id. Plain
error requires Plaintiff to “show (1) error (2) that was obvious or clear, (3) that affected
defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation of
the judicial proceedings.” Id.-7-
No. 16-3333, Hines v. City of Columbus
Plaintiff offers only four examples of alleged bias.5 But none of these isolated comments
were anything more than “ordinary efforts at courtroom administration.” Liteky v. United States,
510 U.S. 540, 556 (1994). At worst, the court displayed irritation with Plaintiff counsel’s “habit
of arguing with the Court after it’s made a ruling.” ID# 2381-82 (emphasis added). Even so, the
remark was made outside of the jury’s earshot, at a sidebar. In short, Plaintiff has not shown bias
denying him a fair trial. Cf. United States v. Hickman, 592 F.2d 931, 936 (6th Cir. 1979) (bias
shown where the trial judge repeatedly interrupted the proceedings in a manner that favored the
government). Consequently, we find no plain error.
2.
Plaintiff further claims that his case was “undermined by [evidentiary] rulings.”
Appellant’s Br. at 32. This court reviews a district court’s evidentiary rulings for abuse of
discretion. Burley v. Gagacki, 834 F.3d 606, 617 (6th Cir. 2016). A district court abuses its
discretion when it relies on clearly erroneous facts, improperly applies the law, employs an
erroneous legal standard, or commits a clear error of judgment. Id. (citations omitted). Even if
the district court errs, we will reverse only if the error affected the outcome of the trial. Id.Stated differently, if an evidentiary error did not substantially sway the jury and thus did not
materially affect the verdict, reversal is not required. Id. (citations omitted).
On appeal, Plaintiff lists ten examples of allegedly erroneous evidentiary rulings. See
Appellant’s Br. at 32-36. None of these rulings are based on clearly erroneous facts or improper
application of the law. Rather, all were routine evidentiary rulings, well within the district
court’s proper exercise of its discretion in evidentiary matters.
5
These included an admonition against stating the grounds for an objection until asked; a decision to withhold ruling
on the admission of Plaintiff’s exhibits until the end of the case (in which Plaintiff concurred); irritation with
plaintiff counsel’s habit of arguing with the court after its ruling; and a direction to avoid using an exemplar without
first seeking permission.
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First, the district court refused to allow Plaintiff to use a skull during Dr. Shiener’s
testimony to demonstrate a brain injury. That was not an abuse of discretion. As the court
noted, Dr. Shiener “only saw [Plaintiff] for a psychiatric counsel,” and the exhibit could have
been “confusing and prejudicial” to the jury. ID# 2135.
Second, it was not an abuse of discretion to bar Plaintiff from introducing during Dr.
Shiener’s redirect examination photographs of Plaintiff’s facial abrasions because they were not
discussed during direct or cross-examination. See United States v. Pope, 335 F. App’x 598, 603
(6th Cir. 2009) (stating that “[t]he tradition in the federal courts has been to limit the scope of
redirect examination to the subject matter brought out on cross-examination”) (internal quotation
marks and citation omitted).
Third, the district court did not err in allowing Dr. Shiener to testify about the
metabolizing effects of alcohol in response to questions by defense counsel. Although not a
toxicologist, Dr. Shiener is a medical doctor, board-certified in psychiatry with expertise in
addiction psychiatry and therefore arguably qualified by education and experience to understand
the metabolizing of alcohol. See Fed. R. Evid. 702. In any event, his testimony was actually
favorable to Plaintiff. See ID# 2172-73 (“Q. Now, when we talk about alcohol, based on your
knowledge and experience, you know that if a .07 is taken at some point sometime earlier when
it actually happened, it would probably be higher because of metabolization, correct? A. No.
That’s incorrect. We don’t know, unless we have two blood alcohol levels spaced apart, whether
the blood alcohol level is going up or down. . . . What governs alcohol is how much food is
onboard and by the higher concentration. . . . As regards Four Loko, it’s around six percent
alcohol, and it’s possible, even likely, that the alcohol was in his stomach, and his blood alcohol
level kept going up after this incident.”).
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No. 16-3333, Hines v. City of Columbus
Fourth, the testimony of Plaintiff’s friend Anthony Clark regarding Plaintiff’s use of
marijuana and related troubles in 2011 was relevant to challenge Dr. Shiener’s opinion that
Plaintiff suffered cognitive and mood impairment due to a secondary traumatic brain injury
caused by the incident. See ID# 2152. Plaintiff had downplayed his marijuana usage to Dr.
Shiener and told him that he had never been in trouble with the police. ID# 2167-68. As the
district court observed, heavy marijuana usage could be relevant to Dr. Shiener’s diagnosis of his
alleged disabilities. ID# 2380-81. See Fed. R. Evid. 403. And Plaintiff testified later in the trial
that he had smoked marijuana. ID# 2546. Defendants’ failure to obtain FBI Agent Latisha
Hartsough’s testimony about Clark’s prior inconsistent statements concerning Plaintiff’s
marijuana usage and related trouble became unnecessary when Clark admitted that Plaintiff had
gotten into trouble in 2011 for possessing marijuana. ID# 2383.
Fifth, the district court did not abuse its discretion in telling Plaintiff’s counsel to “move
things along” during the direct examination of Plaintiff, when counsel was attempting to elicit
testimony on such irrelevant topics as Plaintiff’s parents’ jobs, his college application process,
and his roommates’ majors. See ID# 2492-2501. Even if it wasn’t entirely irrelevant, any
probative value of the testimony was substantially outweighed by considerations of undue delay
or waste of time and was therefore within the district court’s discretion. See Fed. R. Evid. 403.
Sixth, the district court properly prohibited Plaintiff from asking defense witness
Columbus Police Officer Thomas Page (Page) to offer an opinion as to the appropriateness of the
degree of force used on Plaintiff. Page was called as a fact witness to explain the officer’s
training and was not disclosed as an expert witness. See ID# 2734, 2773. Moreover, from the
record it appears that Plaintiff was attempting to suggest that Page was not asked to provide an
opinion regarding Defendants’ use of force because Page found it unreasonable. See ID# 2773
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No. 16-3333, Hines v. City of Columbus
(“Q. You don’t have any opinions as to whether or not the force used on [Plaintiff] was
appropriate, correct? A. Well – [Defense counsel]: Objection. THE COURT: Sustained.”).
Allowing such testimony would have confused the jury and unfairly prejudiced Defendants, and
was therefore properly excluded under Fed. R. Evid. 403.
Seventh, the district court correctly stopped Plaintiff’s counsel from asking Page on
cross-examination about a Department of Justice review of the City of Columbus’s police
department records, because Plaintiff was referring to an unrelated 1999 lawsuit involving the
United States and the City of Columbus that had nothing to do with the City’s striking training.
ID# 2801-02.
Eighth, the district court properly limited Plaintiff from asking Defendant Paxton on
cross-examination about her Action Response Report until Plaintiff had elicited inconsistent
statements from the witness. See ID# 2277-82. Plaintiff also complains that the district court
sustained Defendants’ objection to his question to Defendant Paxton that she was asked to be
interviewed by the FBI after the incident at issue. ID# 2276-77. On appeal Plaintiff suggests
that he was attempting to show that Paxton had invoked her Fifth Amendment rights.
Appellant’s Br. at 35. However, he told the district court merely that it was “relevant because
she didn’t give a statement to the FBI, but all the witnesses did.” ID# 2777. In any event, the
probative value was substantially outweighed by the danger of unfair prejudice and confusion of
the issues.
Ninth, the district court properly allowed Defendants to impeach Clark with statements
he made to FBI Agent Hartsough. See ID# 2726-28. The record reflects that this questioning
was properly done under Fed. R. Evid. 613(b).
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No. 16-3333, Hines v. City of Columbus
Tenth, Plaintiff’s questioning of Blair Patmon on redirect examination went beyond the
scope of cross-examination. Thus, the district court did not abuse its discretion in excluding it.
ID# 2011.
Furthermore, Plaintiff fails to explain how or why these allegedly erroneous rulings,
viewed individually or cumulatively, materially affected the jury’s verdict so as to warrant a new
trial. This court has consistently held that “[a] party may not raise an issue on appeal by
mentioning it in the most skeletal way, leaving the court to put flesh on its bones.” Bickerstaff v.
Lucarelli, 830 F.3d 388, 396 (6th Cir. 2016) (quoting United States v. Hendrickson, 822 F.3d
812, 829 n.10 (6th Cir. 2016)). “Issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.” Id. (quoting McPherson v.
Kelsey, 125 F.3d 989, 995 (6th Cir. 1997). In fact, we do not see how any of these rulings could
have had a materially adverse impact on Plaintiff’s case and find no abuse of discretion.
D.
Plaintiff challenges the district court’s significant reduction of his requested attorney’s
fees and costs. We review the court’s ruling for abuse of discretion. See Imwalle v. Reliance
Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008). We give considerable deference to the
district court, in light of its “superior understanding of the litigation and the desirability of
avoiding frequent appellate review of what essentially are factual matters.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983).
1.
Plaintiff argues that the district court’s 50% across-the-board reduction of the lodestar
after already reducing the Fieger Firm’s attorney’s fees by 136.2 hours and its hourly rates by an
average of 36% was an abuse of discretion. Initially, Plaintiff suggests that the district court’s
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No. 16-3333, Hines v. City of Columbus
“animus” against the “out-of-forum” Fieger Firm is the reason for the significant reduction in
fees. However, the record reflects that the district court simply applied the well-established rule
in this circuit that renown alone is not compensable under fee-shifting statutes, see Coulter v.
Tennessee, 805 F.2d 146, 149 (6th Cir. 1986), abrogated on other grounds by Ne. Ohio Coal. for
the Homeless (NEOCH) v. Husted, 831 F.3d 686 (6th Cir. 2016), and that there was no special
need for the Fieger Firm “because local counsel, Mr. Goldstein, could have tried this case.”
ID# 3118. See NEOCH, 831 F.3d at 716 (stating that “the mere fact that a particular attorney has
a national reputation for expertise in the relevant kind of litigation does not constitute proof that
the attorney’s expertise was necessary to the litigation”) (internal quotation marks, brackets, and
citation omitted). Plaintiff claims that Harrington and Goldstein “took a team approach to this
litigation,” pointing out that Harrington conducted voir dire, gave opening statements and closing
arguments, and handled most of the witness examinations. Appellant’s Br. at 37-38.
But Plaintiff does not dispute the district court’s finding that Goldstein “did most of the work in
discovery and examined witnesses at trial,” ID# 3118, or its finding that “Mr. Harrington’s trial
preparation was excessive, possibly the result of his lack of involvement in the case until after
the summary-judgment stage.” ID# 3117. Plaintiff has failed to show that the district court’s
rulings were animated by out-of-forum animus rather than application of settled law in this
circuit regarding out-of-town counsel. See NEOCH, 831 F.3d at 716; Hadix v. Johnson, 65 F.3d
532, 535-36 (6th Cir. 1995); Coulter, 805 F.2d at 149; see generally McKelvey v. Sec’y of U.S.
Army, 768 F.3d 491, 494 (6th Cir. 2014) (stating that court of appeals must “be mindful of the
trial court’s ring-side view of the proceedings”).
Insisting that “the verdict is against the great weight of the evidence” and that “the
evidence supported a much larger verdict,” Plaintiff claims that the district court wrongly
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No. 16-3333, Hines v. City of Columbus
focused on the amount of the verdict. Appellant’s Br. at 47. The district court observed that
Plaintiff’s overall relief “was slight in relation to the hours expended on the litigation,” noting
that Plaintiff “prevailed on only one of his many claims against only one of the five officers he
sued.” ID# 3120. The court compared the size of the jury verdict ($30,000) to Plaintiff’s last
settlement demand ($5,000,000), and Defendants’ last settlement offer ($10,000). Id. The
verdict was .6% of what Plaintiff asked for, and the requested attorneys’ fees were ten times that
amount. Id.The district court did exactly what Hensley requires—it looked to the degree of success
obtained. See Hensley, 461 U.S. at 434-36 (holding that the lodestar calculation “does not end
the inquiry,” and that the court also must look to “other considerations,” including “the important
factor of the ‘results obtained’”). “[T]he most critical factor is the degree of success obtained.”
Id. at 436. Indeed, a trial court abuses its discretion when it does not consider the relationship
between the fee awarded and the success obtained. See Dean v. F.P. Allega Concrete Const.
Corp., 622 F. App’x 557, 559 (6th Cir. 2015). Considering a rejected settlement offer is one way
of measuring the degree of success. McKelvey, 768 F.3d at 495 (quoting Farrar v Hobby, 506
U.S. 103, 114 (1992)).6 “Few, if any, reasonable litigants would call a monetary judgment that
comes in well under the money offered to settle the case a success.” Id. Moreover, when a
plaintiff achieves limited success, a fee award based on the lodestar calculation may be
excessive, even if the claims are interrelated and nonfrivolous. Hensley, 461 U.S. at 436.
Plaintiff argues that McKelvey is inapposite because it involved an award of attorney’s
fees under the Fed. R. Civ. P. 68 and not § 1988. This is incorrect. McKelvey involved the
6
In McKelvey, the focus was on the defendant’s settlement offer, which was higher than the jury award. Here, the
jury verdict was higher than Defendants’ last settlement offer, but not by much. The district court compared the
award to Plaintiff’s final settlement demand, which we believe is an equally valid measure of lack of success
obtained.
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No. 16-3333, Hines v. City of Columbus
award of attorney’s fees under 29 U.S.C. § 794a(b) of the Rehabilitation Act of 1973. See
McKelvey, 768 F.3d at 494. McKelvey rejected the argument that the existence of Rule 68
prevents district courts applying fee-shifting statutes from considering rejected settlement offers.
See id. at 496 (stating that the “overlapping function” of Rule 68 and reductions to the lodestar
based on prior settlement offers “does not divest district courts of discretion to consider those
offers when setting a reasonable attorney’s fee under § 794a(b) and other similar fee-shifting
statutes that treat fees as part of costs”). Plaintiff also gets it wrong when he claims that
McKelvey “never analyzed § 1988 and never cited Hensley.” Appellant’s Br. at 48.7 McKelvey
cites Hensley, the seminal case on attorney’s fees under 42 U.S.C. § 1988, for its key proposition
that “‘the most critical factor’ to a reasonable fee ‘is the degree of success obtained.’”
McKelvey, 768 F.3d at 495 (quoting Hensley, 461 U.S. at 436) (alteration omitted). McKelvey’s
reliance on Hensley is not remarkable since, as McKelvey obviously recognized, the two statutes
contain virtually identical language. Compare § 794a(b) (stating that under the Rehabilitation
Act “the court, in its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs”), with § 1988(b) (stating that under § 1983 and
similar statutes “the court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs”).
Plaintiff asserts that this case in analogous to DiLaura v. Township of Ann Arbor,
471 F.3d 666 (6th Cir. 2006), where the district court reduced by 60% the requested attorneys’
fee award because the plaintiffs ultimately prevailed on only one of their claims. Id. at 669.
We held that was an abuse of discretion because the case involved a common core of facts. Id. at
672-73. The lower court therefore erred in treating the various claims as distinct, reducing the
7
Plaintiff also points out that McKelvey did not cite Perdue v. Kenny A ex rel. Winn, 559 U.S. 542 (2010). But in
Perdue the Supreme Court was troubled by the district court’s failure to properly justify why it had increased the
requested fees by 75 percent rather than by some other arbitrary figure. Id. at 557.
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fees based on a strict win-loss ratio, in violation of Hensley. See id. at 673. Although the district
court in this case remarked that Plaintiff “fail[ed] to prevail” on unrelated claims, and
“remain[ed] mindful” that Plaintiff succeeded on only one claim, it nonetheless focused on the
significance of the overall relief obtained rather than dividing hours, in part because the billing
statements made it difficult to divide the hours expended on a claim-by-claim basis. ID# 3119-
20.
In essence, Plaintiff is claiming that because the jury should have returned a higher
damages award, the district court should not have used that amount in assessing the degree of
success obtained. In other words, he is basically asking us to override the jury’s evaluation of
the merits of the case—at least to the extent of measuring reasonable attorneys’ fees. But
credibility determinations, weight to be given the evidence, and inferences to be drawn from the
facts are quintessentially jury functions, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986), and the Supreme Court has told us that the measure of reasonable attorneys’ fees goes
hand-in-hand with the damages award, see Hensley, 461 U.S. at 435-36. We decline to
circumvent the Court’s directive.
Second, Plaintiff contends that the district court failed to explain adequately its award.
Hensley also requires that a district court “provide a concise but clear explanation of its reasons
for the fee award.” Id. at 437. The district court did that as well. The district court noted that
Plaintiff brought multiple claims against multiple defendants, but prevailed on only one claim
against one defendant. Moreover, the monetary relief awarded was slight compared to
Plaintiff’s projection of the case in his settlement offer. As the district court correctly noted,
“although important,” the verdict was “only a sliver of the monetary success [Plaintiff] sought
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and only slightly more than Defendant offered to settle the case.” ID# 3121. The court’s
analysis easily satisfies Hensley’s requirement of a “clear but concise explanation.”
Plaintiff also claims that the district court did not explain why it chose 50%. Cf. Perdue
v. Kenney A ex rel. Winn, 559 U.S. 542, 557 (2010). But as the district court explained,
Plaintiff’s monetary success was “slight,” and only a “sliver” of the monetary judgment Plaintiff
sought. Nonetheless, the court did not reduce the attorneys’ fees award by a commensurate
amount.
2.
Plaintiff also objects to the 40% across-the-board reduction of the Fieger Firm’s costs.
Section 1988 permits the award of “those incidental and necessary expenses incurred in
furnishing effective and competent representation.” Ohio Right to Life Soc., Inc., v. Ohio
Elections Comm’n, 590 F. App’x 597, 605 (6th Cir. 2014) (quoting Waldo v. Consumers Energy
Co., 726 F.3d 802, 827 (6th Cir. 2013)). This includes photocopying, paralegal expenses, and
travel and telephone charges. Id.The district court disallowed all expert-witness fees and travel expenses for out-of-town
counsel8 and applied a 40% reduction to the Fieger Firm’s remaining bill of costs, after noting
that some of the costs appeared excessive; e.g., more than $8,000 in phone and copying costs
alone (including $158 for three phone calls, and the Fieger Firm’s rates for document
reproduction, which included a $920 charge to reproduce exhibits before trial). ID# 3125. The
court did not reduce the Goldstein Firm’s bill of costs. ID# 3126.
Plaintiff maintains that “out-of-forum” animus also motivated the district court’s decision
to reduce costs. Appellant’s Br. at 53. We reject this argument for a second time. Because the
district court found that out-of-forum counsel’s efforts were unnecessary, it was not irrational or
8
Plaintiff does not challenge either of these two rulings.
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unreasonable to conclude that the associated costs were somewhat duplicative and in the same
proportion as the attorneys’ fees reduction. Cf. Coulter, 805 F.2d at 152 (stating that where
duplication, which is difficult to measure, is a problem, the district court may have to make
across-the-board reductions by reducing certain items by a percentage figure). Moreover, his
appeal brief fails to provide any citations to authority or the record to support his argument. See
Fed. R. App. P. 28(a)(8)(A) (requiring appellant’s brief to provide “contentions and the reasons
for them, with citations to authorities and parts of the record on which the appellant relies”).
III.
For the foregoing reasons we AFFIRM the district court’s entry of judgment and the fees
award.
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