United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER MODIFYING AND ADOPTING THE REPORT
AND RECOMMENDATION CONCERNING ATTORNEY FEES AND
HONORABLE PAUL L. MALONEY UNITED STATES DISTRICT JUDGE.
matter is before the Court on each parties' objections to
the Special Master's Report and Recommendation (ECF No.
334) regarding attorney's fees and costs. The parties
have followed a winding path while litigating this case for
the last five years, ultimately resulting in Plaintiff
gaining a due process hearing and, after a two-day jury
trial, an award of $100, 000 in punitive damages for denial
of due process under 42 U.S.C. § 1983. As a result of
the punitive damages award, Plaintiff is entitled to
reasonable attorney's fees and costs under 42 U.S.C.
§ 1988. Now, the legal battle continues-shifting to a
dispute over Plaintiff's counsel's hourly rate and
compensable hours, among other things. A Special Master, H.
Rhett Pinsky (“Pinsky”), was appointed pursuant
to Federal Rule Civil Procedure (“FRCP”) 53(b)(1)
to make a recommendation as to attorney's fees and costs.
Pinsky has filed his Report and Recommendation (R&R) with
the Court. In accordance with FRCP 53(f), the Court
thereafter ordered the parties to respond with their
objections within 14 days. (ECF No. 335.) The Court now
proceeds to review the R&R and consider appropriate
action in light of Pinsky's findings and analysis.
parties largely accept the R&R but cannot agree as to the
proper measure of fees for Plaintiff's counsel, Herron;
disputes remain as to both his compensable hourly rate and
the total number of hours for which fees can be awarded.
Pinsky adjudged Herron's applicable hourly rate to be
$350. He came to this figure based upon his personal
knowledge that competent employment lawyers in Grand Rapids
charge between 300 and 400 dollars an hour. Plaintiff argues
that an attorney with healthcare expertise was needed and
that a rate of $390 reflects the rate health care attorneys
command. Defendant argues that Herron is a general
practitioner and that the appropriate barometer for his fee
is $250 an hour, reflective of the market for employment
lawyers in Kalamazoo and/or Lansing.
Plaintiff objects to the percentage-based reduction Pinsky
applied to Herron's hours. Pinsky found that 33.3 percent
of Herron's hours prior to the appeal related to
Plaintiff's successful legal claim, amounting to 106.3
compensable hours of the 319 hours he sought. Instead,
Plaintiff argues that 85 percent of Herron's pre-appeal
hours are compensable because he believes he
“prevailed” in obtaining equitable relief as well
as on the legal claim. He additionally asserts that his
actual time spent pursuing the successful legal claim
amounted to 202 hours, or 63.3 percent of his pre-appeal
the parties dispute Pinsky's conclusion that Mercedes
Dordeski was not entitled to fees. Plaintiff claims that the
Court directed him to proceed with an administrative hearing
with the Secretary of Health and Human Services; the
Defendant responds that the Court merely informed Plaintiff
that his argument over MSU's “eligibility” to
file reports with the National Practitioners' Data Bank
was subject to the exhaustion requirement and that it did not
direct Plaintiff to pursue a hearing.
Court adopts the following summary from the Report and
Recommendation for purposes of this motion.
a surgeon, was summarily suspended from his position at
Michigan State University on the Health Team and his
privileges as a member of that team were terminated without a
due process hearing on March 8, 2012. Plaintiff, on the same
day, filed a lawsuit alleging a due process violation under
42 U.S.C. § 1983. He requested equitable relief through
a temporary restraining order which was denied. Eventually,
the relief requested included withdrawing a report to the
National Practitioners' Data Bank-an entity to which
physicians who have lost their privileges are reported. Such
report can have a deleterious effect on a physician's
career. After much litigation, he was unsuccessful in
obtaining such injunctive relief, although the Court on
February 13, 2013 ordered a due process hearing, the result
of which was to uphold the original decision. However, after
a 2-day trial, a jury awarded him a $100, 000 in punitive
damages for denial of due process.
relevant procedural history can be briefly recounted. After
over four years of litigation, Plaintiff's received a
jury verdict for a $100, 000 award of punitive damages on his
§ 1983 claim for violation of his due process rights.
(ECF No. 301.) Plaintiff filed a corresponding motion for
attorney's fees and costs after judgment entered (ECF No.
303); Defendants filed a response. (ECF No. 306.) The Court
then filed a notice of intent to appoint a special master for
plaintiff's motion for attorney's fees under FRCP 53.
(ECF No. 319.) A corresponding order was entered on March 24,
2017, appointing H. Rhett Pinsky as Special Master. (ECF No.
then issued a thorough and thoughtful R&R on July 17,
2017. (ECF No. 334). Each party filed their objections in a
timely manner (ECF No. 337-38) as well as response briefs.
(ECF No. 339-40.) The Court now reviews the objections to the
R&R de novo. Fed.R.Civ.P. 53(f).
42 U.S.C. § 1888, the court may, in its discretion,
provide reasonable attorneys' fees to prevailing parties
in § 1983 cases. The primary concern in evaluating a
request for attorney's fees “is that the fee
awarded be reasonable.” Reed v. Rhodes, 179
F.3d 453, 471 (6th Cir. 1999). “A reasonable fee is one
that is adequate to attract competent counsel, but . . .