good morning your honour's my name is brian graff i'm with a law firm ryan swanson in cleveland we represent the appellant in this case being s f the railway company and may it please the court i would like to reserve three minutes if i can for  honour's nowhere in the district court district court's order in on fees and costs in this case did it compare the amount of damages sought versus or in determined by the  jury versus the amount of damages received which was twenty thousand dollars and twenty thousand dollars was the sole relief provided to the respondent in this case under this court's precedent particularly in mccown vs city of fun tammas such a such a comparison should have been the district court's primary consideration in determining what your ward was reasonable instead when the district court concluded that it would not engage in any reduction of the load of the lodestar amount on the basis of limited success with one caveat that i'll talk about in a moment with respect to opposition in summary judgment motion the court relied on authority one case bhal vs port authority trans hudson corp in which attorney fee award was allowed to exceed compensatory damages but that's not the proper comparison w on an federal railroad safety act claim your honor yes however it was not simply one claim that the respondent submitted it was under one federal statute it was all of her claims were under the federal railroad safety act but miss wallace the respondent made multiple claims and in the record you will even see in closing argument counsel for respondent highlighted and articulated that she still had t claims remaining for the jury it's also i think important to note that in response to the single claim theory urged by the responded that here under two a one zero nine miss wallace alleged both a violation of focused on the motion the summary judgment part of it and now let's say hypothetically if she had you won certain things on summary judgment and that she was allowed to go to trial on other things if hypothetically if she'd gone to trial and lost if it was a defense verdict then she would have no claim that's true your honor right so but she did win something twenty thousand dollars know and then she got twenty thousand dollars and so it wouldn't be your position that it was improper for the court to look at summary judgment but it was improper not to look at everything is that your position or are you saying the good the judge can't look at summary judgment at all no i know your honor absolutely the judge can look at summary judgment and i believe that is in macau in itself that  the court said lack of success on summary judgment must figure into the calculation of fees so i don't take issue with the fact that the judge did look at the opposition to summary judgment and reduce the amount spent by counsel fifty percent on that however what the court failed to do and what we submit is an abuse of discretion your honor is that it made no such articulation or allotment for her lack of success at trial but let's say  send it back couldn't if the court then looks at the twenty thousand talks about the punitive damages and maybe the court could articulate i know it's your position that there was no public benefit trent there's more discussion in the public benefit and so the court says well i think that there was some sort of benefit because i've got it i mean arguably the court could get to the same place right i don't believe you're going to running against that i'm a loon absolutely court doesn't even talk about the trial it's a little bit of both it's certainly i think it's problematic that the court doesn't talk about the lack of success at trial absent the punitive damages failure at trial and i think the court engages in a fl analysis on the punitive damages piece which i can talk about in a second but at its core also i think there is an a requirement that the district court reduced the field ward to reflect a reasonable amount that would have been a would have been expended to achieve the results obtained i think that's what mccown mcginnis and the supreme court precedent that they rely upon say and here when we look at the district courts lodestar calculation even when it reduces the amount spent opposing summary judgment there are critical things that it completely fails to account for completely fails the damages that the respondent claim were in no way diminished by the summary judgment order not one piece in fact as the court knows from the briefing her damages claims increased exponentially at trial and through closing argument she asked for what three thousand three hundred thousand she no in in closing argument coun made an argument for the equivalent of one point four five million dollars in emotional distress damages there was also a measure of damages roughly north of forty nine thousand dollars in back pay that were defeated on at the close of the plaintiff's case so no she asked for significantly more than than i want that and if i can take one thing off the table under local rule fifty four d clarke's taxation of costs is final unless it is appealed to the courts award of taxation of cost in this case is we submit so so related to challenging the district court's attorney fiord that it's inseparable what we're not doing enough with respect to the taxation of costs and this is i think a twenty thousand dollar issue but what we're not doing with respect to the taxation of costs is challenging in any way any item that the district court or that the clerk concluded was a an appropriate taxable cost ok all we're saying is in the taxation of cost was issued by the district court subsequent to the court's order on theon cost that is challenged what and what our what our contention is and our objection to the order is is the court in that order said i'm not going to reduce for lack of success at trial either attorneys fees or costs x own says expenses thank you your honor the difference there there is a difference there is a difference costs that were awarded by the clerk's office or taxable cost that they get on the prevailing party gets automatically can we do you can quibble about the amounts because the clerk might go too far but that's a separate item a allows for extra award of quote expenses slash costs that are not taxable by the clerk the court has to do it and that's what you're really complaining about not the judge c said when the clerk taxed cost you should have appealed that to the district court and you didn't so i thought that they will but i'm concerned about the way you characterize the district court judge's order you said he didn't take account of lack of success his order says limited success it won't work what you're quibbling about is that he doesn't write the words whatever you sought three hundred thousand you sought three hundred thousand dollars you he's done these cases for a number of years i agree he knows how to award tourney's fees he knows the rules and the and the dynamics of an attorney feel request understood here on our case law you know we we have impose such a burden on the district courts on these attorneys fees they have to go through the records just like he did here he went through the through the hourly hourly requests he looked at their hourly rate he cut out duplicate hours he did his own billing judgement he looked at the nature of the clerk at the claim his judge as judge callahan said this there may have been two separate claims one for interference and one for retaliation the retaliation was based on a number of different theories sure she prevailed on that claim which seems to have been the core claim that she was retaliated against and he says he took account of the limited success and in his judgment complained about it if you want his judgment was such that the the that they wore that he gave in you may think it's too high and maybe we all think it's too high but he was exercising his discretion based upon a record that he saw how long was a trial here eight days your honor the problem respectfully your honor is that what and then again i have nothing but the utmost respect for judge really and he is exceedingly experienced we will not quarrel with that however the damages that that or the reduction that was made for time it's been spent opposing summary judgment didn't address at all the delta between what was asked for and what was obtained it didn't address the fact yes your honor to some degree in terms of the amount to be awarded for punitive damages if the issue arose if there was a finding of maliciousness there was a bifurcation so in the maliciousness was on the table when the jury went back to deliberate is absolutely true all right so is there any other was there any other like a deposition in a word or e expert that was just devoted to punitive damages there were experts that certainly yes there were two experts george deval and nancy less and that who were both each deposed and who aspects of their testimony you know were related to punitive damages theories among other things also in you know for instance the you know failed allegation of medical interference there was you know depositions of hospital staff with respect to those issues so there were trial cause pretrial costs that were endured and should we have segregate out the time that was judge really acknowledge that there was i think fifty five hours he said you know with that were spent on punitive damages that he did segregate out and said i'm not going to i'm not going to deduct any further and he says that because he says two things one he says p damages were in and of itself a separate claim that's right but punitive damages also weren't in and of themselves a separate claim and mcginnis and the ninth circuit said that was an abuse of discretion not to consider that and send and take it take that into account and then secondly he says well there is enough on punitive damages to go to the jury it was created an issue of fact but just simply creating an issue of fact is not make a claim successful of course and under this court's precedent in u s supreme court precedent it's clear this case to mcginnis but he let it off by saying the judge really considered the punitive damages award this is different the urgency that it makes this case distinguishable from mcginnis where this court found that the district court had abused his discretion by refusing to make any such relation the railroads argument here is not that judge silly or the excuse me that the district court did not make earlier refused to consider a charge him an argument really just silly though seems to focus on the summary judgment which is kind of unusual because when you if i mean obviously even though you prevailed on some things as summary judgment if you'd lost a trial that would have been the end of it right so it's really what that's just kind of a along the path and yes he can talk about it but he doesn't talk a lot about really what happened at trial and i can't find that  he i think you even argue that the attorney even if the attorneys fee award should be reduced based on wallace's lack of success the award is justified because the result confers the public that benefit that's one of the things you argue but i can't find a finding by the district court on that that it did for a public benefit so it would seem to me if you know if we were to find that the judge really it's hard to believe in certain ways that the judge if you sit there at trial that you don't know that a trial happened and what you know and you're not thinking about that but but he doesn't really articulate to match on ok well shelling out twenty thousand dollars and she was asking for one point whatever million and she didn't get punitive damages and doesn't talk about what if there isn't discussed any finding on public benefit there's  there's not a finding by the district court on public benefit again it's our position that an explicit finding on public benefit would not have been necessary here i know but if we we can't make that here that wouldn't be  do i understand if the court is believes that a public benefit finding would be necessary and again it's our position that it would not be necessary in this case for the reasons explained in our are there are not explicit find that there's not as there were a pounds counsel heads articulated you know references to the closing argument this court and courts around the country have also said that a plaintiff and plaintiff's counsel should not be faulted by seeking you know including additional claims by asking a jury to award a certain amount and that it can't simply be a mathematical formula saying well when you look at what was requested in closing argument persons what the jury awarded mr i mean it's absolutely right and i think the jury deliberated for approximately twenty hours i i haven't made reductions based on any breaks they took on lunch i'm just going by the the district court docket not to mention all the pretrial as over ok oculus it exactly and this court and again courts around the country have held that you know this is the reason why these things are best and with district court discretion i will be the first to admit that if the judge really had second time based on limited success or partial success and i was here as the appellant i would have a very difficult argument i'm not saying that i would necessarily lose the argument but it would be very difficult these things are vested with the district court because the district court with all respect to the panel is more familiar with the issues but what if what if the district court had said specifically i am just not going to consider the fact that you didn't get p e damages were not our argument for punitive damages and that was not successful the district court declined to make a further reduction a second reduction or arguably even a third reduction based on that finding but the district court did articulate in its order that the punitive damages claim was not successful and discusses the it attributed fifty five hours to the punitive damages claim but was declining to reduce declined to accept the railroads argument to reduce the fees for those hours spent saying that they were still reasonable even though the jury disagreed with our position that this case did warn in the damages well if you lose on something if you lose on punitive damages can the court then just say well i'm not going to give are i'm not going to factor that in has he would he he considered and said i'm not going to give you a fifty five there's not going to be a fifty five hour reduction even though you lost on now is that wrong is that legal or i don't know it no your honor i don't believe it is how do you pull that out of your hat it because i believe that there's a difference between saying i'm not going to consider this versus i'm going to consider there were it would be one thing of judge really had said you know being as have has made this argument i'm not going to considerate what happened here is he said being as it has made that argument i have considered it considered it and i am rejecting that that's the distinguishing factor between this case and the hypothetical that you're question posts so he didn't flat out say that even though you lost on punitive damages and there's fifty five hours that were put in for p on the issue yet so he refuses to or he says whom clued those fifty five hours now is that the proper standard is sufficient evidence to go to the jury is with that drawn from i believe it's drawn from the the overarching excusing the overarching standard under hensley and  purdue and other cases that have a ply address attorney fees as were these hours reasonable but you would concede if you had lost on everything then even though it was reasonable for your case to go to the wouldn't have been denied because the hours weren't reasonable it would have been denied because the condition precedent before the court reaches that determination before the court is supposed to engage in its law to start analysis that this not to your question but i believe it was you how do you extract these how do you engage in these it's very difficult there are some to find it very frustrating when i was a district it exactly and there is you know in some circumstances it can be you know easily attributable to one thing or another that's not that was not the fact here in this case you know that the standard in this case was your did everything that the railroad did which the jury found violated federal law did that rise to a certain level that entitled it to punitive damages this was not a i buy this was not a situation where the case where you know there was a specific witness or a specific expert that sold we discussed that's not often i mean that's not unusual usually you have the behavior which you put in  e basic liability and then you argue from those facts that this was so outrageous to rise to the level of malice melissa's behavior but it's and our laws still nonetheless ok you have to distinguish between the two in the sense that you did see unit damages and  therefore you know the district court needs to take into account that fact arguably he did i mean he said what i read but  he said it was sufficient evidence to go to the jury and that's why i asked you where did that come from i don't know if the i think it would fall panel overruled the district court's discretion and say we're going to look soley at the dollar amount which which well that would be one option the other option which you allude to is we need to remand to the district court to do a better explanation of why he came to these conclusions why jerry wiping out the fees yes your honor i want to address very briefly that it in addition to the public policy behind these cases which this court has routinely recognize in its decisions i believe most recently and perhaps most or articulately in concurrence in the bravo case which the railroad side in its twenty eight day letter that eat if these fees are going to be tied it attorney's fees under the f r as they are going to be tied to the dollar amount awarded and that consideration is going to control control everything it will would be very difficult for it individual plaintiffs to not want a defense judge pies as you address this court this case has been heavily litigated this case is now more than eight years old this case stems from an incident that happened in november of two thousand and eight and we're here now in february of tw seventeen to hopefully finally put this case wrap this case up and allow both the court and the firms to close their files on it very briefly judge callahan you addressed the taxation of costs and the impact of local rule fifty four as we explained in our brief the railroad had every ability here to ask the district court to review that it failed to do so the case that it cited to the district court it is completely i complete non sequitur where in that case the then appellant had challenged the kirks taxation to the district court and this court explicitly held in walker th a party's failure to challenge a kirk's taxation is dispositive of whether or not that party had waived the right to appeal it b n has not done that here and its appeal on that issue is waived i see my time has expired yes leave hopefully for quick points thank your own counsel has made the argument that litigants should not be faulted for asking for a certain amount or pursuing certain claims respectfully i think the appellant have a different perspective on it and i don't believe that we want to encourage litigants and parties to overvalue their cases it does create the need for there in the requirement of additional time and expense that a defendant has to defend overreaching encourages all the wrong behaviors it leads to cases that last an eight day jury trial for a claim that was worth twenty thousand dollars what would you have was do if we remand the case to the district court to address the issues that you've raised here you want is to just reverses fiel warrior and do our own calculations or do you want to send of bags so you can check the boxes that you think he failed to do a search you're on i lack of success or i have i believe yes i believe that an instruction that lack of success at trial must be taken into account should be the instruction there of what or whether it could be should be taken to account would  probably probably suffice as well but i believe it should be with instruction that lack of success at trial must be taken into account again mccown teaches us that lack of success on summary judgment is taken into account so why shouldn't lack of success at trial b e similarly take into account this is a case in which the you know the respondent only obtained one percent of what she asked for one percent and to make no reduction based on lack of success a trial under those circumstances we believe to be an abuse of discretion ok thank you very much right here as it were as i said earlier we're going to take a short ten minute recess before we hear cole