Shelly Cook v. Greenleaf Twp., Mich. ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0290n.06
No. 20-1985
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
SHELLY COOK; CHRISTINA GIBBARD, ) Jun 15, 2021
) DEBORAH S. HUNT, Clerk
Plaintiffs-Appellees, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
GREENLEAF TOWNSHIP, MICHIGAN; ) MICHIGAN
JUDY KELLER; RANDALL SCHUETTE; )
KEN BROWN; ROSIE QUINN, )
)
Defendants-Appellants. )
BEFORE: ROGERS, WHITE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge. The district court required a rural township’s officials to pay
over $137,000 in attorney’s fees after Christina Gibbard won a mere $500 on claims under
Michigan’s Open Meetings Act. The officials now challenge this attorney’s fees award, arguing
both that it includes fees for work unrelated to the Open Meetings Act and that it is clearly
excessive as compared to Gibbard’s limited success in this suit. On appeal, however, these
township officials simply assert that the attorney’s fees must have included unrelated work without
challenging any specific billing entry or citing any supporting facts. Their conclusory argument
does not suffice under our deferential clear-error standard of review. And while the fees may be
gargantuan in relation to the small amount that Gibbard recovered, the Open Meetings Act itself
caps a plaintiff’s damages at $500. So the statute requires courts to grant an award of “actual” (not
No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
“reasonable”) attorney’s fees in order to ensure that attorneys will accept these types of cases
despite the small potential recovery. We thus must affirm the award.
I
This case stems from a contentious township board meeting in Greenleaf Township,
Michigan. For years Christina Gibbard and Shelly Cook attended nearly every board meeting. On
October 18, 2016, the board held a special meeting to consider settling a suit by the township’s
former supervisor. State law required a majority of the board to authorize this meeting in writing.
Gibbard questioned the township clerk, Judy Keller, about whether a majority had done so.
After the meeting, Keller told Gibbard to accompany her to her office purportedly to
retrieve a document showing that the board had properly called the meeting. When they got there,
Keller started berating Gibbard instead. Gibbard began recording her. The recording showed
Keller get close to Gibbard at one point; Gibbard alleged that Keller made physical contact.
Gibbard decided to leave without the document. As she left, the township treasurer sought to
forcibly turn off her camera. Keller also noticed that Gibbard had been recording her. She ran
toward Gibbard to grab the camera. Gibbard thought that Keller was going to tackle her, but a
man stepped between them.
Hearing the ruckus, Cook arrived on the scene in time to see Keller rushing Gibbard. Cook
claims to have watched Keller’s husband then grab Gibbard’s hand to pry away her camera. Cook
began to record the encounter too. As Keller’s husband confronted Gibbard, Keller quickly
approached Cook, told her to “shut that damn camera off,” and tried to slap it away.
Gibbard and Cook sued Greenleaf Township, several township officials (Keller, Randall
Schuette, Ken Brown, and Rosie Quinn), and Keller’s husband. Gibbard and Cook brought federal
claims under 42 U.S.C. § 1983 against the township officials, alleging that their actions violated
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
the First Amendment. Gibbard and Cook also brought various state-law claims. They alleged,
among other things, that Keller and her husband had committed both a common-law assault and a
common-law battery. They also alleged that Keller and Schuette had violated Michigan’s Open
Meetings Act.
Several of the claims survived summary judgment, so the case proceeded to trial. The jury
delivered a mixed verdict. It rejected Gibbard’s and Cook’s federal constitutional claims and their
common-law assault claims. It also rejected Cook’s claims under the Open Meetings Act. Yet the
jury found for Gibbard on her Open Meetings Act claims against Keller and Schuette and awarded
her $250 in damages from each defendant. It also found in favor of Gibbard and Cook on their
battery claims against Keller and her husband. It awarded Gibbard $750 in damages and Cook
$1,000 in damages from each of these two defendants.
The Open Meetings Act allowed Gibbard to recover her attorney’s fees from Keller and
Schuette. She initially sought $142,695.50. The district court partially granted her motion. It
rejected Keller and Schuette’s argument that the attorney’s fees had to be proportional to the $500
in damages that Gibbard recovered, holding that her attorneys were entitled to full payment under
Michigan law. But the court recognized that the attorneys could seek to recover only for the time
spent on Gibbard’s successful Open Meetings Act claims, not for time on unrelated claims. It
ordered the parties to confer in the hope that they would reach an agreement on the fees that were
unrelated to Gibbard’s Open Meetings Act claims.
The parties could not agree. Gibbard renewed her fees motion. Although subtracting about
30 hours of work as unrelated to her Open Meetings Act claims, Gibbard now sought payment for
the time spent on this attorney’s fees dispute. She thus requested even more: $143,799.50. Keller
and Schuette’s response did not challenge any specific billing entry. The district court gave them
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
a second chance to raise such a challenge by ordering supplemental briefing and allowing them to
request an evidentiary hearing. Keller and Schuette’s supplemental brief switched tactics by
objecting to nearly every billing line on the same grounds: that they were either vague or related
to more than Gibbard’s Open Meetings Act claims. Gibbard replied with declarations from her
attorneys asserting that they spent nearly all of their time on the “common core of facts” relating
to all claims, including the Open Meetings Act claims. The parties waived the proposed
evidentiary hearing.
The district court granted Gibbard’s renewed motion in part. It held that Gibbard could
not seek payment for the time spent on the attorney’s fees dispute because the defects in Gibbard’s
original motion had caused the dispute. But it held that all of Cook’s and Gibbard’s claims were
“directly related” to the same confrontation after the October 18 board meeting. Op., R.121,
PageID#2921. So it found that “virtually all of the time devoted to the matter” related to Gibbard’s
Open Meetings Act claims. Id. The court awarded Gibbard $137,724.50 in fees. The township
defendants appeal this award.
II
A
Under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts generally must follow
state substantive law and federal procedural law when resolving state claims falling within their
jurisdiction. See, e.g., Degussa Admixtures, Inc. v. Burnett, 277 F. App’x 530, 532 (6th Cir. 2008);
Mayer v. Gary Partners & Co., 29 F.3d 330, 332–35 (7th Cir. 1994). The courts have recognized
two types of attorney’s fees awards under this dichotomy. See Scottsdale Ins. Co. v. Tolliver, 636
F.3d 1273, 1279–80 (10th Cir. 2011). When a state legislature allows a party to seek attorney’s
fees as part of the recovery on a successful state-law claim, federal courts view this legislative
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
“policy” choice as substantive and so applicable in federal court. See Degussa, 277 F. App’x at
532 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 52 (1991)). Conversely, courts treat an
award of attorney’s fees for bad-faith litigating conduct as “procedural” and so governed by federal
standards. See Gen. Elec. Co. v. Latin Am. Imports, S.A., 127 F. App’x 157, 159 (6th Cir. 2005)
(citing First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 528 (6th Cir.
2002)). In this case, Keller and Schuette do not dispute that Michigan’s Open Meetings Act applies
in federal court because it authorizes “substantive” fees tied to a winning claim. The Act provides:
“A public official who intentionally violates this act shall be personally liable in a civil action for
actual and exemplary damages of not more than $500.00 total, plus court costs and actual attorney
fees to a person or group of persons bringing the action.” Mich. Comp. Laws § 15.273(1).
We generally look to state-court decisions for guidance on the substantive elements of a
state-law claim. See Germain v. Teva Pharms. (In re Darvocet, Darvon, and Propoxyphene Prods.
Liab. Litig.), 756 F.3d 917, 937 (6th Cir. 2014). We thus look to state-court decisions for guidance
on the substantive standards that govern a fee award under this Michigan statute. Unlike some
statutes that give courts discretion to grant “reasonable” fees, the Michigan courts have held that
the statute’s mandatory language requires courts to award “actual” fees. See Speicher v. Columbia
Twp. Bd. of Election Comm’rs, 832 N.W.2d 392, 395 (Mich. Ct. App. 2012) (per curiam)
(interpreting a similar provision); Booth Newspapers, Inc. v. Wyoming City Council, 425 N.W.2d
695, 701–02 (Mich. Ct. App. 1988) (same). These courts have recognized that a lawyer’s “actual”
fees are those that “exist[] in . . . fact or reality.” Omdahl v. West Iron Cnty. Bd. of Educ., 733
N.W.2d 380, 382 (Mich. 2007) (citation omitted).
Yet the Michigan courts have also imposed two limits on the recoverable fees. They have
held (at least for a nearby provision) that a plaintiff may not recover attorney’s fees for “matters
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
unrelated to” the Open Meetings Act claim when the plaintiff’s suit pursued other claims. See
Speicher, 832 N.W.2d at 399 (interpreting Mich. Comp. Laws § 15.271(4)). They have also held
that the ban on charging an “illegal or clearly excessive fee” in the Michigan Rules of Professional
Conduct restricts the amount that lawyers may recover under these fee-shifting statutes. Mich. R.
of Prof’l Cond. 1.5(a); see Zoran v. Township of Cottrellville, 913 N.W.2d 359, 362 (Mich. Ct.
App. 2017) (per curiam); Speicher, 832 N.W.2d at 395–96. Gibbard does not dispute on appeal
that these two substantive limits applied to her request for attorney’s fees.
Given that Gibbard’s right to fees arises from Michigan law, how should we choose our
standard of review for the district court’s award? Does this appellate standard also qualify as
“substantive” under Erie, in which case we would look to the standards that Michigan appellate
courts use to review attorney’s fees awards? Or does it qualify as “procedural,” in which case we
would apply our own federal standards? As we have previously suggested, it is likely procedural
(and so a question of federal law). See Auto. Support Grp., LLC v. Hightower, 503 F. App’x 411,
421 n.5 (6th Cir. 2012); cf. Mayer, 29 F.3d at 334. Yet we need not conclusively decide this Erie
question here because the parties agree on our standard of review. They both note that we should
review the district court’s ultimate attorney’s fees award for an abuse of discretion and any
underlying factual findings for clear error. (These same standards apply under both federal and
state law anyway. Compare Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 702–03
(6th Cir. 2016), with Speicher, 832 N.W.2d at 397.)
B
Keller and Schuette raise two arguments under these principles. They argue that the district
court committed clear error when finding that all of the attorney hours included within Gibbard’s
renewed request for attorney’s fees related to Gibbard’s successful Open Meetings Act claims.
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
They also argue that the court abused its discretion because its attorney’s fees award was clearly
excessive in light of Gibbard’s limited success in this suit.
1
Keller and Schuette claim that some of the legal work in Gibbard’s renewed request for
attorney’s fees was not compensable under the Open Meetings Act. They do not dispute the district
court’s legal conclusion that legal work is compensable as long as it is “related to” the claims under
that Act. Cf. Fox v. Vice, 563 U.S. 826, 836, 839 (2011) (adopting causation test under federal
law). Instead, they argue that Gibbard’s renewed request for attorney’s fees included legal work
that was unrelated to her Open Meetings Act claims. Yet their appellate brief’s two-page argument
on this pure fact question falls well short of establishing a clear error.
The district court reasoned that “all of the issues derived from, and interrelated with, a
common core of facts” about the confrontation after the October 18 board meeting. Op., R.121,
PageID#2921. It thus found that the time that Gibbard requested in her renewed motion was
compensable because she “established how all time recorded relative to her modified fee request
is related in some respect to the [Open Meetings Act] claim, even if [it] also related to non-[Open
Meetings Act] claims.” Id., PageID#2923.
We review this factual finding for clear error. That standard of review requires us to give
“deference” to the district court. Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017). As long as its
finding is “plausible” when reviewed against the whole record, we have no grounds to disturb it.
Degussa, 277 F. App’x at 536 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573–74
(1985)). The appellant, moreover, bears the burden of proving that the district court’s finding
lacked an adequate evidentiary basis. See Franklin v. Aycock, 795 F.2d 1253, 1258 (6th Cir. 1986).
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
Keller and Schuette have utterly failed to satisfy this burden on appeal. To begin with,
they tell us almost nothing about the requested attorney’s fees. They do not identify the number
of hours that the court awarded. They do not identify the attorneys involved. And they do not
identify any work performed by these attorneys. Indeed, Keller and Schuette do not list any
specific billing entry—not one—that they claim was for work “unrelated to” Gibbard’s Open
Meetings Act claims. Speicher, 832 N.W.2d at 399. They simply state what is, in essence, a legal
conclusion (that the award includes unrelated work) without offering any factual support.
Keller and Schuette also do not tell us anything about the factual or legal bases for the
Open Meetings Act claims as compared to the other legal claims. They leave us in the dark about
what the Open Meetings Act requires or what specific conduct violated it. Consider one example.
The district court’s summary-judgment opinion suggested that Schuette’s Open Meetings Act
violation occurred at later meetings when he videotaped Gibbard and cut her off during a public
comment. Op., R.45, PageID#394–95. Perhaps Schuette could have shown how the factual
development of, and legal research for, this claim had nothing to do with the other claims. But
“‘[j]udges are not like pigs, hunting for truffles’ that might be buried in the record”; it was
Schuette’s job on appeal to identify the attorney hours that were unrelated to the Open Meetings
Act claim against him and the factual basis for that argument. Dibrell v. City of Knoxville, 984
F.3d 1156, 1163 (6th Cir. 2021) (citation omitted). He (and Keller) failed to do so.
The district court, moreover, did everything that it could to allow Keller and Schuette to
develop evidence showing that Gibbard’s attorneys sought payment for unrelated work. Cf.
Speicher, 832 N.W.2d at 400. When Keller and Schuette raised a general objection, it permitted
them to file a supplemental brief objecting with specificity. It also made clear that it would hold
an evidentiary hearing during which they could poke holes in Gibbard’s assertion that her
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
requested fees all related to the Open Meetings Act claims. But their supplemental brief merely
listed conclusory objections to every billing entry. And they waived the fact-gathering hearing.
In response, Keller and Schuette accurately point out that Gibbard bore the burden of proof
to establish her entitlement to the requested attorney’s fees. See Speicher, 832 N.W.2d at 400.
But that burden of proof applied in the district court. We do not sit as a second trier of fact. The
burden switched to Keller and Schuette on appeal to prove that the district court’s factual findings
were clearly erroneous. See Franklin, 795 F.2d at 1258. Their conclusory argument that the award
“must” have included work for unrelated issues does not suffice to meet this burden of proof given
their complete failure to identify specific factual support for it.
2
Even if the requested attorney’s fees were for work compensable under the Open Meetings
Act, Keller and Schuette next argue that the district court’s ultimate award was still “clearly
excessive.” Yet the district court did not abuse its discretion with this award.
Michigan Rule of Professional Conduct 1.5(a) indicates that “[a] fee is clearly excessive
when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and
firm conviction that the fee is in excess of a reasonable fee.” The rule identifies eight factors for
courts to consider to decide on the “reasonableness of a fee.” Id. These factors include “the time
and labor required, the novelty and difficulty of the questions involved, and the skill requisite to
perform the legal service properly,” “the fee customarily charged in the locality for similar legal
services,” “the amount involved and the results obtained,” “the nature and length of the
professional relationship with the client,” “the experience, reputation, and ability of the lawyer or
lawyers performing the services,” and “whether the fee is fixed or contingent.” Id. The Michigan
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
courts have described Rule 1.5(a) as establishing a “high standard” that “is essentially an
articulation of the clear-and-convincing-evidence burden of proof[.]” Zoran, 913 N.W.2d at 363.
Keller and Schuette ignore most of these factors when arguing that the attorney’s fees
award was clearly excessive. They do not dispute that Gibbard’s attorneys charged a reasonable
hourly rate commensurate with the rates in their locality. Nor do they challenge the attorneys’
skill or experience. And apart from their (rejected) factual argument that the attorneys billed for
work unrelated to the Open Meetings Act, they do not argue that the attorneys’ time entries for
individual tasks were excessive. They do not, for example, suggest that the lawyers spent too
many hours preparing for specific depositions or conducting particular legal research. Cf. Ne.
Ohio Coal. for the Homeless, 831 F.3d at 703–14. They also do not dispute that Gibbard’s
attorneys spent over two years extensively litigating this case. As the district court recognized,
this case included “discovery, dispositive motions, motions in limine, a full jury trial, and post-
judgment motions[.]” Op., R.109, PageID#2747. Most of the relevant Rule 1.5(a) factors thus
fully supported the district court’s award.
Keller and Schuette respond with one—and only one—factor: “the amount involved and
the results obtained” in the suit. Mich. R. of Prof’l Cond. 1.5(a)(4). They argue that the fee award
was excessive because it dwarfed Gibbard’s monetary recovery and because Gibbard and Cook
lost some other claims, including their federal claims under § 1983. We see two problems with
this argument.
Problem One: Although the jury awarded Gibbard just $250 for each of her claims, the
Open Meetings Act allows a plaintiff to recover only “damages of not more than $500.00 total”
per claim. Mich. Comp. Laws § 15.273(1). Because the Act strictly limits the recovery in this
way, it makes little sense to interpret Rule 1.5(a) as prohibiting attorney’s fees that are significantly
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
larger than the “amount involved” or “results obtained.” Those amounts and results will always
be small. At the same time, the Act notes that an official “shall” be liable for $500 plus the “actual”
attorney’s fees incurred to win the suit. Id. The “actual” fees will often substantially exceed $500.
Indeed, the Michigan legislature adopted the Act’s various causes of action because prior laws had
lacked an adequate “enforcement mechanism” to ensure that government officials were following
the Act’s substantive standards. See Omdahl, 733 N.W.2d at 383. Yet it would all but gut this
particular “enforcement mechanism” if attorney’s fees were strictly proportional to the $500 cap.
Problem Two: Keller and Schuette rely primarily on federal cases interpreting 42 U.S.C.
§ 1988, which allows a court “in its discretion” to grant “reasonable” attorney’s fees to a
“prevailing party” in a civil-rights suit. See, e.g., Farrar v. Hobby, 506 U.S. 103, 114–16 (1992);
Hensley v. Eckerhart, 461 U.S. 424, 433–40 (1983). When deciding what qualifies as “reasonable”
fees, the Supreme Court made clear that courts should initially consider the “number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S.
at 433. Yet the Court also recognized that plaintiffs asserting § 1983 claims can obtain a range of
results. They will often pursue many different claims, all of which, if successful, would be
compensable under § 1988. See id. at 434–35. They will also often seek many different types of
relief, including injunctive relief and damages awards ranging from nominal damages to millions
of dollars. See Farrar, 506 U.S. at 114. So the results obtained in the § 1983 suit also affect the
“reasonableness” of the fee award. See id. at 114–16; Hensley, 461 U.S. at 434–37.
This framework does not neatly translate over to Gibbard’s claims under the Open
Meetings Act in this case. To begin with, Keller and Schuette fail to explain why caselaw
interpreting a statute permitting a court to grant reasonable fees is relevant to a statute mandating
that the court grant actual fees. Cf. Dep’t of Nat. Res. & Env’t v. Rexair, Inc., 2013 WL 6182641,
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
at *2–4 (Mich. Ct. App. Nov. 26, 2013) (per curiam). Courts have less discretion to limit attorney’s
fees under this state law than they do under § 1988. See Booth, 425 N.W.2d at 701–02. Section
1983, moreover, does not limit damages the way the Open Meetings Act does. A $250 recovery
by a § 1983 plaintiff seeking millions of dollars may look like “nominal damages,” but the same
recovery by an Open Meetings Act plaintiff does not. See Farrar, 506 U.S. at 114–16.
In addition, a § 1983 plaintiff may seek to recover for many different constitutional claims
(all of which are compensable under § 1988) but prevail on only one. The “results obtained” in
that case may seem quite unimpressive. See Hensley, 461 U.S. at 434–35. Here, by contrast,
Gibbard fully prevailed on the Open Meetings Act claims brought against Keller and Schuette. To
be sure, she also lost (and won) other federal and state claims under § 1983 and state common law.
But the Open Meetings Act did not permit her to obtain attorney’s fees on these claims anyway.
Win or lose, she was entitled to zero under the Act. That is why the district court needed to make
the factual finding that all of her attorneys’ work related to the Open Meetings Act claims. Once
it made that finding, however, her losses (or wins) on the other claims should not affect her
entitlement to fees under the Act. The “results obtained” instead should focus on her success on
the compensable claims. And she was quite successful when judged from this vantage point. All
told, we see no abuse of discretion in the district court’s conclusion that the Rule 1.5(a) factors
supported its attorney’s fees award.
One last point. The Open Meetings Act made Keller and Schuette each “personally liable”
for the attorney’s fees that were required to prove their individual violations. Mich. Comp. Laws
§ 15.273(1). The district court, however, appeared to indicate that all “Defendants” were liable
for a lump sum. Op., R.121, PageID#2926. Yet the township defendants do not argue that the fee
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No. 20-1985, Cook, et al. v. Greenleaf Twp., Mich., et al.
award should have been limited to Keller and Schuette or split up for the attorneys’ specific work
on the specific claims against each person. We thus need not consider that issue.
We affirm.
13