govinfo:USCOURTS-ohsd-2_91-cv-00464-0

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN DOE, et al.,
Plaintiffs,
v.
STATE OF OHIO, et al.,
Defendants.
:
:
:
:
:
:
Case No. 2:91-cv-464
Judge Holschuh
Magistrate Judge Kemp
MEMORANDUM OPINION & ORDER
On October 21, 2009, the Court approved a partial settlement in the above-captioned class-
action lawsuit.  The Consent Order provided that Plaintiffs were prevailing parties with respect to
those claims that had been resolved and, therefore, were entitled to reasonable attorneys’ fees and
costs pursuant to the Individuals with Disa bilities Education Act (“IDEA”), 20 U.S.C. §
1415(i)(3)(B)(i).  The Consent Order further provided that if the parties could not agree on fees and
costs, the issue would be submitted to the Court.
On February 12, 2010, Plaintiffs filed a Moti on to be Awarded Fees, seeking a total of
$268,565.  (Doc. 178).  Defendants objected, arguing that Plaintiffs sought hourly rates that were
far above the market rate and payment for certain non-compensable matters.  After the motion was
fully briefed, the parties informed the Court that Defendants did not object to $180,955.50 of the
amount requested by Plaintiffs and would pay this portion on or before June 30, 2010.  (Doc. 187). 
On May 25, 2010, because the Court was unable to tell from the record which specific objections
had been resolved by the parties and which rema ined, it directed the parties to file a Joint
Supplement in connection with the pending motion, setting forth what still remained in dispute. 
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 1 of 10  PAGEID #: <pageID>
(Doc. 188).
On June 29, 2010, the parties filed their Joint Supplement as directed, indicating that they
had resolved all disputes concerning the propriety of certain time entries, and the only remaining
issue to be resolved by the Court was the appropriate hourly rate for each of Plaintiffs’ attorneys. 
The parties indicated that once the Court resolved this issue, they should be able to settle the rest of
the matter on their own.  They proposed to “apply the hourly rates fixed by the Court to the time
entries they have now agreed upon, give the Defendants credit for the amounts paid pursuant to the
Court’s April 29, 2010 order and within 60 days of this court’s determination of appropriate billing
rates, submit an agreed order journalizing any amounts due Plaintiffs for the services described in
the original fee application.”  (Joint Supplement) .  The parties agree that  there is no need for an
evidentiary hearing with respect to the question of reasonable attorney fees. 
I. Applicable Law
Prevailing parties may be awarded “reasonable attorneys’ fees” under the IDEA.  See
 20
U.S.C. § 1415(i)(3)(B)(i).  Reasonable attorneys’ fees are determined using the “lodestar” method. 
To calculate the appropriate award, the number of hours reasonably expended on the litigation is
multiplied by a reasonable hourly rate.  See
 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).1  
In determining what the level of compensation for each category of
service should be, the court should look to the fair market value of
the services provided. In most communities, the marketplace has set
a value for the services of attorneys, and the hourly rate charged by
an attorney for his or her services will normally reflect the training,
background, experience and skill of the individual attorney. For those
attorneys who have no private practice, the rates customarily charged
1  In rare and exceptional circumstances, the lodestar amount may be enhanced for
superior attorney performance.  See Perdue v. Kenny A., 130 S.Ct. 1662, 1674 (2010).  Plaintiffs
in this case do not seek an enhanced fee award.   
2
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 2 of 10  PAGEID #: <pageID>
in the community for similar services can be looked to for guidance.
Northcross v. Board of Ed. of Memphis City Schs., 611 F.2d 624, 638 (6th Cir. 1979).  The party
seeking attorney fees bears the burden of justifying the reasonableness of the requested hourly rate. 
See Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). 
II. Positions of the Parties
Defendants maintain that Plaintiffs, who are represented by attorneys from the Ohio Legal
Rights Service, have failed to prove that the hourly rates requested are consistent with the prevailing
market rate.  The following chart summarizes the parties’ positions with respect to appropriate
hourly rates for each of the attorneys and paralegals who worked on this litigation:
Attorney/Paralegal Hourly Rate Sought by
Plaintiffs
Hourly Rate Deemed
Reasonable by Defendants
Michael Kirkman (attorney) $355 $245
Susan Tobin (attorney) $350 $245
Kerstin Sjoberg-Witt
(attorney)
$275 $185
Jason Boylan (attorney) $225 $165
Kristen Henry (attorney) $225 $165
Vanessa Cotteral (attorney) $175 $165
Angela Jenkins (paralegal) $125 $90
Laura Bordeau (paralegal) $125 $90
A. Plaintiffs
Michael Kirkman, Executive Director of the Ohio Legal Rights Service, set the hourly rates
requested by Plaintiffs based on his “personal knowledge of rates in the community charged by
3
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 3 of 10  PAGEID #: <pageID>
attorneys of similar knowledge and experience for cases which are the same level of risk and
complexity as LRS’ cases.” (Kirkman Aff. ¶¶ 12-13). 
In support of their request, Plaintiffs point first to the attorney fees awarded by Judge Smith
in Ray v. Franklin County Board of Elections, No. 2:08-cv-1086 (S.D. Ohio June 2, 2008).  In Ray,
Susan Tobin and Jason Boylan were among several attorneys who represented a disabled woman
requesting accommodations to enable her to exercise her right to vote.  After finding in plaintiff’s
favor, the court, on June 2, 2009, granted her motion for attorneys’ fees and found that the billing
rates requested, $275 per hour for Ms. Tobin and $175 per hour for Mr. Boylan, were reasonable
and comparable to the rates of other local attorneys.  (Ex. to Mot. to be Awarded Fees).  
Plaintiffs also submitted an affidavit of Andrew K. Cuddy, a New York lawyer who focuses
his practice on special education law.  The affidavit does not indicate how long Mr. Cuddy has been
practicing law; however, it states that he is rec ognized as having expertise in the field of special
education law.  Cuddy’s affidavit was filed in Winkelman v. Parma City School District
, No. 1:08-
cv-02135-DCN (N.D. Ohio 2008), an IDEA case in which Mr. Cuddy represented the prevailing
party.  In the affidavit, Mr. Cuddy stated that his hourly rate of $375 was consistent with the
prevailing market rate for an attorney with his experience in the Northern District of Ohio.  (Ex. to
Mot. to be Awarded Fees).   
In addition, Plaintiffs submitted the declaration of Franklin J. Hickman, a lawyer from
Cleveland who has specialized in disability law for more than 30 years.  His standard hourly rate for
special education cases is $300.  Nevertheless, he notes that this case is a complex class action and
states that “[t]he rates sought  by counsel in this case are typi cal of those billed by attorneys of
similar background and experience for this type of litigation in the relevant market.”   (Hickman
4
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 4 of 10  PAGEID #: <pageID>
Decl. at ¶¶ 25, 27-28).
Finally, Plaintiffs note that in Kennedy v. City of Zanesville, No. 2:03-cv-1047, a complex
civil rights case, Ms. Sjoberg-Witt requested $325 per hour, and attorneys with similar experience
to Mr. Boylan and Mr. Henry requested $225 per hour.  Plaintiffs in Kennedy sought $150-275 per
hour for work done by paralegals. 
B. Defendants
Defendants maintain that the hourly rates requested by Plaintiffs are well above the market
rates.  Defendants first point to “The Economics of Law Practice in Ohio,” published by the Ohio
State Bar Association in 2007.  (Ex. to Defs.’ Mem. Regarding Atty. Fees).  According to the 2007
survey, the average hourly fee for lawyers with more than 25 years experience, like Mr. Kirkman
and Ms. Tobin, is $219.  The average hourly fee for lawyers with 6-10 years experience, like Ms.
Sjoberg-Witt, is $177.  For lawyers with less than 5 years experience, like Mr. Boylan, Ms. Henry,
and Ms. Cotteral, the average hourly rate is $156.  And for paralegals with 10 years experience, like
Ms. Jenkins and Ms. Bordeau, the average hourly rate is $80.  (App. at 24, 26).  
Defendants also argue that the hourly fees sought by the most experienced attorneys in this
case are significantly higher than the fees sought and awarded in other recent disability rights cases
in Ohio.  In Keene v. Zelman, No. 2:06-cv-389, an IDEA case assigned to Judge Graham, Franklin
Hickman requested $250 per hour and Ms. Tobin requested $275 per hour in September of 2007. 
(App. at 49, 68).  In Doe v. Hogan , No. 2:04-cv-914, a case assigned to Judge Marbley, Michael
Kirkman requested attorney fees at the rate of $260 per hour in June of 2005.  (App. at 64).  
The hourly rates Plaintiffs seek for their le ss-experienced attorneys are also significantly
higher than the rates requested in other cases.  In Lancaster v. Highland Local School District , a
5
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 5 of 10  PAGEID #: <pageID>
Northern District of Ohio case, plaintiffs , in 2005, sought $175 per hour for a disability rights
attorney with approximately five years experi ence.  (App. at 79). In  December of 2008, in Ray ,
Kevin Truitt, an attorney with four years experience, requested $200 per hour, and Mr. Boylan
requested $175 per hour.  (App. at 84, 87).  
Finally, Defendants note that a nationwide compensation survey of paralegals shows that the
average hourly rate for a paralegal with 10 years experience in 2008 is only $99 per hour.  (App. at
103-04).  Even though the bar surveys and some of the affidavits relied upon by Defendants are a
few years old, Defendants nevertheless argue that because economic conditions have kept legal fees
flat, these documents remain relevant.
III. Discussion
The Supreme Court has noted that fee-shifting statutes are designed to encourage competent
attorneys to represent clients in meritorious civil rights cases by assuring that the attorneys will be
paid a reasonable fee if their clients prevail.  However, fee-shifting statutes are “not designed as a
form of economic relief to improve the financial lot of attorneys.”  Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986).  The Sixth Circuit has noted that “[a]
reasonable fee is one that is adequate to attr act competent counsel, but . . . [does] not produce
windfalls to attorneys.”  Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995) (quoting Blum, 465 U.S.
at 897).
A. OSBA Survey
On several occasions, the Sixth Circuit has approved of the use of a state bar survey of
hourly billing rates in determining a reasonable hourly rate.  See Gonter v. Hunt Valve Co., Inc., 510
F.3d 610, 618 n.6 (6th Cir. 2007) (usi ng the Ohio State Bar Association survey as “a point of
6
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 6 of 10  PAGEID #: <pageID>
reference”);  Auto Alliance Int’l Inc. v. United States Customs Serv., 155 F. App’x 226, 228 (6th
Cir. 2005) (finding that the district court appropriately relied on a state bar survey in determining
the prevailing market rate).  
As one of my colleagues has noted, the OSBA survey “is a helpful reference point” in
determining the prevailing market rate, but the average hourly billing rates do not adequately take
all relevant factors into account.  See  Lee v. Javitch, Block & Rathbone, 568 F.Supp.2d 870, 876
(S.D. Ohio 2008).  For example, the average hourly billing rate does not account for the complexity
of the litigation or the fields of specialties of the attorneys.2  Plaintiffs maintain that the Court should
rely not on the average hourly billing rates for attorneys with a certain number of years of
experience, but rather on the hourly billing rates in the 75th or 95th percentile for attorneys
practicing in downtown Columbus ($289 and $424 respectively).  Plaintiffs maintain that these rates
better reflect the skill and experience necessary to represent clients in complex class action litigation
like this.  In the Court’s view, although the OSBA survey is a useful tool in determining the
prevailing market rate, it is much more helpful to look at the hourly billing rates found by Ohio
courts to be reasonable in similar cases for attorneys with similar experience.  
B. Similar Cases
Among the cases submitted by the parties, Ray v. Franklin County Board of Elections
appears to be the most relevant and the most recent.  As Defendants note, the hourly rates requested
by plaintiff’s counsel in that case were not contested.  Nevertheless, in June of 2009, Judge Smith
specifically found that the $275 hourly rate requested by Ms. Tobin and the $175 hourly rate
2  The Court notes that, according to the OSBA survey, the average hourly rate for
attorneys practicing “Education/School Law” is $197.  (App. at 25).
7
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 7 of 10  PAGEID #: <pageID>
requested by Mr. Boylan were reasonable and were comparable to the rates of other local attorneys
with similar experience.  Judge Smith also f ound that the $200 per hour rate requested by Kevin
Truitt, an attorney with four years experience, was reasonable.  (Ex. to Mot. to be Awarded Fees). 
Also, in Doe v. Hogan , in an order issued on March 27, 2006, Judge Marbley found that Mr.
Kirkman’s request for fees at the rate of $260 per hour was reasonable.    
The other evidence submitted by Plaintiffs in support of their request for significantly higher
hourly fees is not persuasive.  For example, they rely on Mr. Cuddy’s affidavit, submitted in
connection with his fee request in Winkelman.  Plaintiffs note that Cuddy urged the court to find that
his requested hourly rate of $375 was consistent w ith the prevailing market rate in Ohio.  What
Plaintiffs fail to disclose is that although Mr. Cuddy requested $375 per hour, the court ultimately
concluded that a reasonable hourly rate was only $275.  (See 5/22/09 Order, Document No. 19, in
Case No. 1:08-cv-02135-DCN (N.D. Ohio 2008).
 Plaintiffs also rely on affidavits submitted in connection with the fee request in Kennedy
v. City of Zanesville.  In Kennedy, Ms. Sjoberg-Witt requested $325 per hour, attorneys with similar
experience to Mr. Boylan and Mr. Henry requested $225 per hour, and paralegals requested $150-
275 per hour.  However, because the parties reached a settlement on the issue of attorneys’ fees, the
court never made any determination concerning whether the rates requested were reasonable.3   
Mr. Kirkman avers that the hourly rates he se t for the OLRS attorneys were based on his
personal knowledge of rates in the community char ged in similar cases by attorneys with similar
knowledge and experience, but he offers very little corroborating evidence to support his belief. 
Likewise, although Mr. Hickman avers that the hourly rates requested by the attorneys in this case
3  The same is true in Keene, the case cited by Defendants.
8
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 8 of 10  PAGEID #: <pageID>
are typical of those billed by attorneys of similar background and experience in Ohio, there is little
evidence to support a finding that the rates requested are in line with the prevailing market rates. 
The Court notes that Mr. Hickman, who has more experience than any of Plaintiffs’ counsel in this
case, charges only $300 per hour for his services.  (Hickman Decl. ¶ 25).  Yet Michael Kirkman and
Susan Tobin request more than $50 per hour in excess of that amount.
As noted above, Plaintiffs bear the burden of proving that the rates requested are consistent
with the prevailing market rate.  In the Cour t’s view, they have not satisfied this burden. 
Nevertheless, based on the evidence presented, the Court also concludes that the hourly rates
suggested by Defendants are too low.  They fail to adequately take into account the complexity of
this class action litigation.  
IV. Conclusion
In determining appropriate reasonable hourly rates in this case, the Court has considered all
of the evidence presented, but has given significant weight to the hourly fees approved by Judge
Smith in Ray
.  The Court has adjusted the hourly rates upward to some extent to account for the
complexity of this litigation, the added experience gained by Plaintiffs’ counsel over the past year
or so, and the effects of inflation.
The Court finds that reasonable hourly rates for Plaintiffs’ counsel and paralegals in this case
are as follows:
Michael Kirkman: $300 per hour
Susan Tobin: $300 per hour
Kerstin Sjoberg-Witt: $220 per hour
Jason Boylan: $190 per hour
Kristen Henry: $190 per hour
Vanessa Cotteral: $170 per hour
Angela Jenkins: $95 per hour
Laura Bordeau: $95 per hour
9
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 9 of 10  PAGEID #: <pageID>
The Clerk is directed to remove Plaintiffs’ motion for attorney fees (Doc. 178) from the list
of pending motions.  Within 60 days of the date of  this Order, the parties shall submit an Agreed
Order journalizing any amounts due Plaintiffs for the services described in the original fee
application. 
As set forth in the Joint Supplement, Plaintiffs will also submit a supplemental fee demand
to Defendants for time spent pursuing their fees.  The parties are encouraged to do their best to reach
an agreement on this issue.  However, if the issue is not resolved within 60 days of the date of this
Order, Plaintiffs may file a supplemental motion for attorney fees.   
IT IS SO ORDERED.
Date: July 19, 2010 /s/ John D. Holschuh      
John D. Holschuh, Judge
United States District Court  
   
10
Case: 2:91-cv-00464-MHW-CMV Doc #: 193 Filed: 07/19/10 Page: 10 of 10  PAGEID #: <pageID>

Passage view · GavelSight