Fleischhauer v. Feltner

3 F.3d 148
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 20, 1993
DocketNos. 92-3337, 92-3461 and 92-3775
StatusPublished
Cited by11 cases

This text of 3 F.3d 148 (Fleischhauer v. Feltner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleischhauer v. Feltner, 3 F.3d 148 (6th Cir. 1993).

Opinion

WELLFORD, Senior Circuit Judge.

This ease has béen before this court on a prior occasion. See Fleischhauer v. Feltner, 879 F.2d 1290 (6th Cir.1989) (in which we filed a supplemental opinion), cert. denied, 493 U.S. 1074, 110 S.Ct. 1122, 107 L.Ed.2d 1029 (1990). This case is now before us on appeal from an award of attorney fees to the plaintiffs in this RICO action. For the following reasons, we AFFIRM the district court’s award of attorney’s fees.

Four different district judges have been involved in this case since June of 1984. The original trial was set to take place before Judge Herman Weber in April of 1986, but the defendants moved to change attorneys on the day of trial, and to continue the trial.1 Once the trial took place, with Judge Carl Rubin now presiding, the jury awarded the plaintiffs a sizable verdict. The plaintiffs filed an application for attorney fees and costs which was amended to comply with the district court’s requirements.2 The district court waited to act on this application pending the outcome of the first appeal on the merits. Once this court decided the questions before it on appeal, the district court then awaited the outcome of the petitions for certiorari which were denied in February [150]*150and March of 1990. See Feltner v. Fleischhauer, 493 U.S. 1074, 110 S.Ct. 1122, 107 L.Ed.2d 1029 (1990); 494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 611 (1990). The plaintiffs then filed a motion for extension of time to file their supplemental application for fees and the district court granted their motion extending the time until May 17, 1990. The plaintiffs did not file a supplemental fee request within the allotted time.3

Eventually, the defendants requested an evidentiary hearing on the applications for attorney fees and costs, but the district court denied their request. Instead, the district court held a conference on December 19, 1991, at which time all parties explained that an evidentiary hearing was unnecessary to settle the remanded issues. Consequently, the amount of attorney fees was the only remaining controversy before the court. The court advised all parties at this conference that “it would render a decision on Plaintiffs fee application based upon the documents of record as of February 1, 1992.”4

The plaintiffs filed a supplemental fee application on February 3, 1992. The defendants filed a motion to strike that application as untimely. The district court entered an order refusing to review the supplemental fee application explaining:

Not only did Plaintiffs fail to supplement their fee request within that permitted extension, but they failed even to suggest at the December 19, 1991 conference that they intended to request additional fees. Moreover, they failed to file their supplemental request by the firm February 1, 1992 deadline set by the Court and agreed to by the parties at the conference. They further neither requested an extension of time beyond that deadline, nor offered any justification for the untimeliness of their filing.

The district court concluded: “[i]n light of Plaintiffs’ flagrant disregard of the February 1, 1992 deadline set by the Court, Defendants’ motion to strike is well taken.” The court denied the plaintiffs’ supplemental fee application but awarded plaintiffs fees from previous applications.

In the plaintiffs’ 1987 fee request, the plaintiffs sought fees for attorney F. Harrison Green’s claimed 897 hours of work between 1983 and 1984. Green was suspended by the Ohio Supreme Court from the practice of law on July 21, 1982 and was not reinstated until January 6, 1988, during which time Green was ineligible to practice law in the state of Ohio. The plaintiffs did not deny that Green was not licensed to practice law. Instead, they argued that the district court did not suspend him until August 5, 1988, and that he was therefore entitled to compensation for his services in that court. In denying this request, the court stated:

Plaintiffs ask this Court to compensate Mr. Green for concealing his suspension by awarding him the $224,250 in “fees” he now requests, as payment for a time when he would not have been permitted to practice in this Court had he revealed the status of his licensure in this state.
This Court is not inclined to so reward Mr. Green’s deceit.5

In our consideration of the issues on the merits, we overturned the damages award against one of the defendants which amounted to one-eighth of the total damages assessed. The district court, acknowledging that the amount of damages does not neces[151]*151sarily indicate the degree of success obtained, decided that the damages were a “reasonable indicator of the relative extent to which Plaintiffs’ efforts were directed toward each Defendant.” Finding no other reliable indicator, the district court reduced the hours listed in the fee application by one-eighth to account for this court’s reversal of damages as to one defendant. The district court, however, did not reduce the award for the unsuccessful Ohio fraud claim because the RICO claim dominated the action.

The district court noted the 1983 local hourly rate study, which the trial instructions directed would be used, and its recommendation that an intermediate partner would be paid $113.43 and a senior partner, $128.34. Despite this study, plaintiffs ask to be reimbursed at a rate of $250.00 an hour. Moreover, one of plaintiffs’ attorneys admitted to the court that his actual hourly rate was $100. The court found that the plaintiffs’ attorneys did not achieve “exceptional success” to justify an enhanced fee award. In light of all these factors, the court determined that the two attorneys involved would be allowed $150 an hour.

As footnoted earlier, Judge Weber, one of the judges who handled this matter prior to Judge Rubin, awarded the plaintiffs’ attorneys $30,000 in fees when the defendants moved to continue the case on the day of trial. While the plaintiffs claimed those costs were not requested in their fee application in 1987, they admitted: “Defendants are correct, the plaintiffs, by oversight, did not credit the defendants’ $30,000 payment.” The district court held, therefore, that defendants were entitled to a $30,000 credit on the fees allowed.

I. FEBRUARY 3RD SUPPLEMENTAL FEE APPLICATION

Plaintiffs argue that the district court did not follow local or federal rules and thus, the February 3rd supplemental application should have been considered. The plaintiffs also argue that the district court improperly computed the time ignoring Fed.R.Civ.Proc. Rule 6(a)6. Judge Rubin set out at the conference that he would make a decision after reviewing all documents filed by February 1, 1991.

• Computation under Rule 6(a), by its very nature, is only necessary when a court orders something to be done in a particular number of days.

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3 F.3d 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleischhauer-v-feltner-ca6-1993.