1

In granting that motion, the Court ensured that Plaintiffs had complied with Federal Rule

of Civil Procedure 23(h)’s procedural requirements for an award of attorney fees and costs. 

Specifically, the Court found that Plaintiffs had notified the class, via a class notice published in

The Monroe Evening News, of Plaintiffs’ unopposed motion for attorney fees and costs in the

amount of $85,000, and of the class members’ right to object to the motion within thirty days. 

(July 19, 2004, Opinion at 3.) The Court confirmed that no class member had objected to that

motion. (Id.)

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THE MONROE, MICHIGAN CENTER FOR

INDEPENDENT LIVING, INC., et al.; on

behalf of themselves and all others similarly

situated, 

Plaintiffs,

v.

CITY OF MONROE, MICHIGAN,

Defendant.

___________________________________ /

Case Number: 02-CV-73130-DT

JUDGE PAUL D. BORMAN

UNITED STATES DISTRICT COURT 

ORDER DIRECTING THE PARTIES TO PROVIDE CLASS MEMBERS WITH

REASONABLE NOTICE OF: 1) PLAINTIFFS’ MOTION FOR AWARD OF

ATTORNEY FEES AND COSTS FOR TIME EXPENDED 

BETWEEN DECEMBER 24, 2003, AND JANUARY 14, 2005, AND

2) THE CLASS MEMBERS’ RIGHT TO FILE ANY OBJECTIONS TO THAT MOTION

WITHIN THIRTY DAYS OF THE DATE THAT SUCH NOTICE IS GIVEN

Now before the Court is Plaintiffs’ Motion for Award of Attorneys Fees and Costs for

Time Expended Between December 24, 2003, and January 14, 2005. 

On July 19, 2004, the Court granted Plaintiffs’ Unopposed Motion for Award of Attorney

Fees and Costs for Time Expended from Inception of the Lawsuit Through December 23, 2003.1

2:02-cv-73130-PDB-VMM Doc # 50 Filed 07/11/05 Pg 1 of 4 Pg ID 429
2

On January 13, 2005, the Court, pursuant to the parties’ stipulation, issued an order directing

Plaintiffs to submit to this Court a claim for attorney fees and costs arising from their Motion for

Contempt, filed on September 24, 2004. In that order, the Court noted that it would determine

the reasonableness of the fees and costs incurred by Plaintiffs’ counsel.

On January 25, 2005, Plaintiffs filed the instant motion, in which they seek an award of

attorney fees and costs arising from their contempt motion, as directed. Plaintiffs also seek,

however, an award of attorney fees and costs arising from their research and briefing on classcertification issues from December 24, 2003, through January 14, 2005, the date upon which the

Court held a fairness hearing under Federal Rule of Civil Procedure 23(e). Plaintiffs seek an

award in the amount of $32,942.63 to Heberle & Finnegan, P.L.L.C., and an award in the

amount of $4,832.25 to Megan Buffington, a paralegal.

On January 25, 2005, Defendant filed a response. While Defendant does not oppose

Plaintiffs’ motion to the extent that it seeks an award of attorney fees and costs arising from

Plaintiffs’ contempt motion, Defendant contends that Plaintiffs are not entitled to an award of

such fees and costs arising from their additional class-certification work. (Resp. at 2.)

Federal Rule of Civil Procedure 23(h) permits a court to award reasonable attorney fees

and non-taxable costs authorized by law or agreement of the parties. The Americans with

Disabilities Act, 42 U.S.C. § 12101, et seq., the Rehabilitation Act, and Michigan’s Persons with

Disabilities Civil Rights Act, M.C.L. § 37.1301-02, all provide for attorneys fees and costs to

prevailing plaintiffs. See 42 U.S.C. § 12133; 29 U.S.C § 794a; M.C.L. § 37.1301-03. To

recover an award of attorney fees and costs under Rule 23(h), the parties must first move the

2:02-cv-73130-PDB-VMM Doc # 50 Filed 07/11/05 Pg 2 of 4 Pg ID 430
2

Fed. R. Civ. P. 54(d)(2) governs claims for attorneys’ fees and related nontaxable

expenses.

3

court, under Rule 54(d)(2), for such an award “at a time set by the court.”2

 Fed. R. Civ. P.

23(h)(1). Notice of the motion “must be served on all parties and, for motions by class counsel,

directed to class members in a reasonable manner.” (Id.) After notice is provided, any class

member, or party against whom judgment is sought, may object to the motion. Fed. R. Civ. P.

23(h)(2). Regardless of whether objections are filed, the Court may, in its discretion, hold a

hearing to determine whether an award is justified, and, if so, to set a reasonable fee. Fed. R.

Civ. P. 23(h)(3); see also Official Commentary. The Court must, however, “find the facts and

state its conclusions of law on the motion.” (Id.)

In the instant motion, Plaintiffs have neither represented nor submitted any evidence

demonstrating that Rule 23(h)’s procedural requirements for an award of attorney fees and costs

were satisfied. Specifically, Plaintiffs have not shown that class members received reasonable

notice of Plaintiffs’ Motion for Award of Attorney Fees and Costs for Time Expended Between

December 24, 2003, and January 14, 2005 as well as of the class members’ right to object to that

motion within a reasonable time. In its January 13, 2005, order directing Plaintiffs’ to file a

motion for an award of attorney fees and costs arising from their contempt motion, the Court did

not expressly order that the class members receive such notice as it had done with Plaintiffs’

previous motion for an award of attorney fees and costs.

The Court, therefore, directs the parties to provide class members with reasonable notice

of: 1) Plaintiffs’ Motion for Award of Attorney Fees and Costs for Time Expended Between

December 24, 2003, and January 14, 2005, seeking such fees and costs in the amount of

2:02-cv-73130-PDB-VMM Doc # 50 Filed 07/11/05 Pg 3 of 4 Pg ID 431
4

$37,774.88; and 2) the class members’ right to file any objections to that motion within thirty

days of the date that such notice is given. Alternatively, the Court directs the parties to submit to

the Court evidence demonstrating that such notice has already been given and whether any class

member has filed an objection within a reasonable time of receiving such notice. 

After the parties advise the Court that the time for filing objections to Plaintiffs’ motion

has expired, as set forth in the requisite notice, the Court will determine whether a hearing on the

motion is necessary and, thereafter, will determine whether the requested award is justified and,

if so, the reasonableness of the amount requested.

SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: July 11, 2005

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on July

11, 2005.

s/Jonie Parker 

Case Manager

2:02-cv-73130-PDB-VMM Doc # 50 Filed 07/11/05 Pg 4 of 4 Pg ID 432