NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0277n.06

No. 14-2134

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHRISTOPER JAMES BAILEY,

Plaintiff-Appellant,

v.

SCOUTWARE, LLC,

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

MICHIGAN

BEFORE: NORRIS, SUTTON, and DONALD, Circuit Judges.

PER CURIAM. Christopher James Bailey appeals the district court’s order granting in 

part and denying in part his motion for attorney fees and costs. In support of his appeal, Bailey 

filed an affidavit from one of his attorneys. The defendant, Scoutware, LLC, has moved to strike

the affidavit and to recover fees and costs associated with filing the motion to strike. Because 

counsel’s affidavit is not part of the district court record and there are no special circumstances 

that would warrant supplementing the record with the affidavit, we grant the motion to strike, see 

United States v. Murdock, 398 F.3d 491, 499-501 (6th Cir. 2005), but we deny Scoutware’s 

request for an award of fees and costs.

Bailey filed a complaint against Scoutware, alleging that it breached the parties’

employment contract and violated Michigan’s Whistleblowers’ Protection Act by terminating his 

employment and failing to pay him certain compensation. Bailey sought monetary, declaratory, 
No. 14-2134

Bailey v. Scoutware, LLC

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and injunctive relief. A jury found in favor of Bailey, awarding him $2,000 for the breach of 

contract claim and $20,500 for his whistleblower claim.

After the district court entered judgment in his favor, Bailey moved to recover 

approximately $200,000 in attorney fees and over $17,000 in costs as the prevailing party on the 

whistleblower claim. The district court granted in part Bailey’s motion, concluding that the 

proper fee award was $25,000.

On appeal, Bailey argues that, in determining the appropriate fee award, the district court

used an incorrect methodology and failed to properly assess the relevant factors. “Under both 

Michigan and federal law, a trial court’s award of attorney fees is generally reviewed under the 

abuse-of-discretion standard.” Shields v. Gov’t Emps. Hosp. Ass’n, Inc., 490 F.3d 511, 514-15 

(6th Cir. 2007). “The district court’s factual determinations, on the other hand, are reviewed 

under the clearly erroneous standard, and its legal interpretations are reviewed de novo.” Id.

at 515.

Where, as here, federal jurisdiction is based on diversity of citizenship, an award of 

attorney fees is governed by state law. See Hometown Folks, LLC v. S & B Wilson, Inc., 643 

F.3d 520, 533 (6th Cir. 2011). Under Michigan law, when calculating a fee award, the trial court 

must first determine the hourly fee customarily charged in the locality for similar legal services 

and multiply that fee by the number of hours reasonably expended in the case. Smith v. Khouri, 

751 N.W.2d 472, 479 (Mich. 2008). The court must then consider whether an adjustment is 

warranted based on other specified factors, including the professional standing and experience of 

the attorney, the difficulty of the questions involved and skill needed to perform the legal service 

properly, and the amount in question and results obtained. Id. at 478-80.
No. 14-2134

Bailey v. Scoutware, LLC

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Here, despite Bailey’s argument to the contrary, the district court used the correct 

methodology to calculate an appropriate fee award. The court first determined the customary 

hourly legal fee for the work performed, it multiplied that fee by the hours that it concluded were 

reasonably expended, and it considered whether any adjustments were warranted. And the 

court’s determination that the proper fee award was $25,000 was not an abuse of discretion. The 

court rationally concluded that $250 per hour was an appropriate billing rate, given the nature 

and simplicity of the case and the location and experience of the attorneys involved, and that one 

hundred hours was a reasonable amount of time to spend litigating the case through trial. It was 

also reasonable for the district court to conclude that a greater fee award was not warranted on 

the basis that pretrial matters were unnecessarily protracted, a portion of the fees being requested 

were for work that was duplicative and unnecessary, and Bailey recovered only a fraction of 

what he sought.

Accordingly, we affirm the district court’s order granting in part and denying in part 

Bailey’s motion for attorney fees and costs.