UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICAH FIALKA-FELDMAN, 

 Case Number 08-CV-14922 

 Plaintiff, Hon. Patrick J. Duggan 

v. 

OAKLAND UNIVERSITY BOARD 

OF TRUSTEES, GARY D. RUSSI, MARY BETH 

SNYDER, and LIONEL MATEN, in their 

official capacities, 

 

 Defendants. 

__________________________________________________________________________/ 

DEFENDANTS’ RESPONSE TO 

PLAINTIFF’S MOTION FOR REASONABLE ATTORNEYS’ FEES
i 

TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................................................................................. i

ISSUE PRESENTED.................................................................................................................iii

TABLE OF AUTHORITIES......................................................................................................iv

INTRODUCTION ...................................................................................................................... 1

BACKGROUND ........................................................................................................................ 1

ARGUMENT.............................................................................................................................. 3

I. Plaintiff’s Counsel’s Claimed Billing Rates Are Unreasonably High. ..................... 3

II. Plaintiffs’ Request For Fees Is Not Supported By Appropriate Billing 

Records................................................................................................................ 4

A. Plaintiff’s Records Do Not Support, and Indeed Contradict, 

Plaintiff’s Claim of Reasonableness. ..........................................................5 

1. Nearly One-Half of Plaintiffs’ Time Records Contain No 

Case-Specific Description of the Task Performed. .........................5 

2. Where There is a Time Entry Note, Under Most 

Circumstances It is Too Vague or Incomplete to Support a 

Claim of Its Reasonableness. .........................................................7 

III. Even If Plaintiff’s Records Were Not Vague And Incomplete, The Majority 

Of Fees Sought Would Still Be Unreasonable....................................................... 7

A. Excessive Time on Internal Conferences Is Not Reasonable. .....................8 

B. Plaintiff Is Not Entitled to Fees for Unnecessary Time Spent by 

Lawyers at Depositions.............................................................................8 

C. Plaintiff Is Not Entitled to Fees For Unreasonable Travel Time. ................9 

D. Fees Related to Chris Davis....................................................................10 

E. Fees Related to Attorney Mark Cody......................................................11 

F. Fees Related to Veena Rao .....................................................................12 
ii 

G. Fees Related to Attorney Joshua Kay......................................................13 

H. Fees Unreasonably Sought for Pre-Litigation Activities...........................14 

IV. Plaintiff Was Not a Prevailing Party for Purposes of His Motion for 

Preliminary Injunction, and Consequently, Is Not Entitled to Fees 

Associated with that Motion............................................................................... 14

V. Plaintiff’s Fee Award Should Be Reduced Because He Had Limited 

Success on His Claims........................................................................................ 15

CONCLUSION.........................................................................................................................17
iii 

ISSUE PRESENTED

I. Whether Plaintiff has failed to meet his burden to support the appropriateness and 

reasonableness of his request for attorneys’ fees? 

II. Whether Plaintiff’s request for attorneys’ fees is unreasonable due to inflated 

billing rates considering the size and location of Plaintiff’s counsel’s practice, the 

experience level of counsel, and the fact that they bore no risk due to their being 

salaried employees of a non-profit state-funded agency? 

III. Whether Plaintiff’s request for attorneys’ fees relating to his unsuccessful motion 

for preliminary injunction and amending his complaint to add claims for which he 

was unsuccessful is unreasonable and should be disallowed? 

IV. Whether Plaintiff’s request for attorneys’ fees is unreasonable and should be at 

least partially disallowed since Plaintiff only partially prevailed on the one count 

that was not dismissed, in that damages and broader injunctive relief were not 

obtained? 

V. Whether Plaintiff’s request for attorneys’ fees relating to the extensive amount of 

time spent litigating pretext and other issues involved with his disparate treatment 

and disparate impact claims, on which he did not prevail, is unreasonable and 

should be disallowed? 

VI. Whether Plaintiff’s request for attorneys’ fees relating to time spent advising his 

client with respect to matters predating the initiation of his lawsuit are 

unreasonable and should be disallowed? 

VII. Whether Plaintiff’s counsels’ time records using template billing and task codes 

with no detail relating to the work performed, or vague entries describing the work 

but without sufficient detail to discern its purpose or activity, should be 

disregarded since they are inadequate to support his petition, as a matter of law, 

and therefore all fees claimed with respect to those entries should be disallowed? 

VIII. Whether Plaintiff’s request for attorneys fees for such activities as undocumented 

and excessive travel, and performing low level and clerical tasks, engaging 

excessive research, monitoring public relations, conducting internal office meeting 

among attorneys, overstaffing depositions and hearings, and supervising skilled 

attorneys, are unreasonable and should be disallowed? 

Defendants answer “yes” to each of these questions. 
iv 

TABLE OF AUTHORITIES

Page

Cases

Abner v. Kan. City S. Ry. Co., 

541 F.3d 372 (5th Cir. 2008)..........................................................................6, 15 

Childress v. Williams, 

1999 US Dist. LEXIS 22982 (E.D. Mich. 1999) ............................ 3, 4, 5, 6, 8, 12 

E.E.O.C. v. E.J. Sacco, 

102 F. Supp. 2d 413 (E.D. Mich. 2000) .........................................................8, 12 

Gates v. Gomez, 

60 F.3d 525 (9th Cir. 1995).................................................................................13 

Grendel’s Den, Inc. v. Larkin, 

749 F.2d 945 (1st Cir. 1984) .................................................................................5 

H.J. Inc. v. Flygt Corp., 

925 F.2d 257 (8th Cir. 1991)..................................................................... 7, 11, 12 

Hadix v. Johnson, 

65 F.3d 532 (6th Cir. 1995)...................................................................................3 

Hensley v. Eckerhart, 

461 U.S. 424 (1983) .......................................................................... 4, 14, 15, 16 

Hopwood v. Texas, 

999 F. Supp. 872 (W.D. Tex. 1998)...............................................................9, 13 

In re Samuel R. Pierce, Jr., 

190 F.3d 586 (D.C. Cir. 1999) .......................................................................7, 11 

Miller v. Woodharbor Molding & Millworks, 

174 F.3d 948 (8th Cir. 1999)...........................................................................7, 11 

New Life Ministries v. Charter Township of Mt. Morris, 

2006 U.S. Dist. LEXIS 74303 (Oct. 12, 2006 E.D. Mich.).................................15 

The Fair Housing Council of Greater Washington v. Landow, 

999 F.2d 92 (4th Cir. 1993).................................................................................16 

Trimper v. City of Norfolk, 

58 F.3d 68 (4th Cir. 1995).....................................................................................5 
v 

Troy School District v. Boutsikaris, 

317 F. Supp. 2d 788 (E.D. Mich. 2004) ...............................................................3 

Webb v. Board of Education of Dyer County, Texas, 

471 U.S. 234 (1985) ..........................................................................................14 

Statutes

29 U.S.C. § 794a .............................................................................................................1 

42 U.S.C. § 1988.........................................................................................................3, 5 
INTRODUCTION

The right to attorneys’ fees under Section 504 of the Rehabilitation Act is as follows: 

“[T]he court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as 

part of the costs.” 29 U.S.C. § 794a (emphasis supplied). As stated in detail below, the Court 

will be well within its discretion to deny Plaintiff’s fee request. The time spent by Plaintiff’s 

counsel on the one count of Plaintiff’s Complaint in which he achieved only limited success is 

undocumented, unreasonable and was billed at an inflated rate. The Motion should be denied. 

BACKGROUND

Plaintiff filed a Complaint on November 25, 2008 alleging the following: Count I, 

Violation of the Fair Housing Act, Denial of a Requested Reasonable Accommodation; Count 

II, Violation of the Fair Housing Act Discrimination, Disparate Impact; Count III Violation of 

Section 504 of the Rehabilitation Act of 1973, Discrimination; and Count IV Violation of 

Section 504 of the Rehabilitation Act of 1973, Denial of Reasonable Accommodation. Plaintiff 

filed a Motion for Preliminary Injunction and Expedited Consideration with respect to his FHA 

claims in Count I on December 15, 2008, which this Court denied on February 5, 2009. 

On February 26, 2009, Plaintiff filed a Motion for Leave to File Amended ComplaintAdding Defendants, for the sole purpose of adding Gary D. Russi, Mary Beth Snyder and 

Lionel Maten as individual defendants sued in their official capacities. This Court granted in 

part and denied in part that Motion on April 20, 2009, allowing Plaintiff to file a First 

Amended Complaint adding President Russi, Vice President Snyder and Mr. Maten to Counts 

II and III only. 

On May 5, 2009, Plaintiff filed a Motion for Leave to File Second Amended Complaint, 

which this Court granted, allowing Plaintiff to add Count II, Violation of the Fair Housing Act, 
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Disparate Treatment; Count III, Violation of Section 504 of the Rehabilitation Act of 1973, 

Disparate Treatment; Count V, Violation of the Americans with Disabilities Act-Title II, 

Disparate Treatment; and Count VI, Violation of Section 504 of the Rehabilitation Act, 

Disparate Impact. 

The parties concluded discovery and on November 13 and November 16, 2009, 

Defendants and Plaintiff, respectively, filed Motions for Summary Judgment. On December 

23, 2009, this Court issued its Opinion and Order dismissing Counts I, II, III, V and VI of 

Plaintiff’s Second Amended Complaint with prejudice, but granting Plaintiff the injunctive 

relief sought in Count IV of his Second Amended Complaint, permitting Plaintiff to live in the 

Oakland University dormitories for one semester. Plaintiff subsequently filed a Bill of Costs 

and Motion for Reasonable Attorneys Fees. 

Plaintiff is represented by a public interest agency funded by the State of Michigan. 

Accordingly, all of its attorneys are salaried and bear no risk with respect to the outcome of 

this case. 

As will be demonstrated below, Plaintiff is not entitled to the exorbitant $176,841.43 of 

attorneys’ fees sought in his motion. First, the attorney hourly rates that Plaintiff seeks are 

inflated. Second, the majority of the fees sought in the motion are not supported by 

sufficiently descriptive time entries to justify the reasonableness of the fees. Third, many of the 

requested fees are duplicative, unnecessary or were for tasks performed by a more senior 

lawyer instead of an associate, paralegal or even secretary, as would have been appropriate. 

Fourth, a significant amount of the requested fees are associated with Plaintiff’s Motion for 

Preliminary Injunction, on which he was not the prevailing party. Consequently he is not 

entitled to a recovery of those fees. And finally, Plaintiff’s counsel made no effort to allocate 
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the fees incurred to any of Plaintiff’s distinct claims, making it difficult for this Court to 

determine the reasonableness of the fees incurred, especially when Plaintiff was ultimately 

unsuccessful on five out of the six claims he brought. 

In light of the above, Defendants request that this Court deny Plaintiff’s motion for fees 

in its entirety. In the alternative, Defendants request that this Court significantly reduce any 

award by the amounts that Plaintiff has not demonstrated are reasonable. 

ARGUMENT

I. Plaintiff’s Counsel’s Claimed Billing Rates Are Unreasonably High. 

As this Court observed in Childress v. Williams, 1999 US Dist. LEXIS 22982 (E.D. 

Mich. 1999) (copy attached as Exhibit 1) rev’d on other grounds Hudson v Coleman, 347 F.3d 

138 (6th Cir. 2003), “[a] reasonable rate is one that is the prevailing rate in the forum market, 

for a civil rights attorney of comparable skill and experience to that of the attorney making the 

fee motions.” The Sixth Circuit has summarized the controlling standard this way: “Attorney 

fees under § 1988 are to be based on market rates for the services rendered . . . . Ordinarily, 

courts look to ‘[rates] prevailing in the community for similar services by lawyers of reasonably 

comparable skill, experience, and reputation.” Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 

1995). Furthermore, as the court noted in Hadix, “Section 1988 does not guarantee civil 

rights plaintiffs the best counsel in the country; it guarantees them competent counsel.” See 

Troy School District v. Boutsikaris, 317 F. Supp. 2d 788 (E.D. Mich. 2004) (rejecting a 

request for rates ranging from $220 to $300 and finding instead that $150 is a reasonable 

hourly rate for a prevailing party in an IDEA case in Michigan). 

Applying these standards, the hourly rates that Plaintiff’s counsel claims are inflated. 

According to the 2007 State Bar of Michigan: 2007 Economics of Law Practice in Michigan 
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Survey (Exhibit 2, pp. 18, 20 and 23), the median hourly rate for an attorney with Chris Davis, 

Mark Cody and Veena Rao’s levels of experience is approximately $200, yet for a case 

commencing only a year later they are billing their services at rates of $250, $300 and $250 per 

hour, respectively. Under the same survey, the median hourly rate for an attorney with 

Gabrielle Frampton’s experience is approximately $175, yet she billed her services at $250 per 

hour. Id. 

Considering the above State Bar of Michigan survey, it is apparent that Plaintiff’s 

counsel’s billing rates are inflated. Consequently, this Court should reduce any award given to 

Plaintiff by the following: 

Attorney Fee Charged Appropriate Fee % Reduction of Fee 

Award 

Cody $300 $200 33% 

Davis $250 $200 25% 

Rao $250 $200 25% 

Frampton $250 $175 30% 

II. Plaintiffs’ Request For Fees Is Not Supported By Appropriate Billing Records. 

Relying on Hensley v. Eckerhart, 461 U.S. 424 (1983), courts generally employ the 

lodestar calculation – the hours reasonably expended multiplied by a reasonable hourly rate – 

as a “useful starting point” for determining a fee award. Hensley, 461 U.S. at 433. 

In Hensley, the Supreme Court held “the fee applicant bears the burden of . . . 

documenting the appropriate hours expended.” Hensley, 461 U.S. at 436. In Childress, 

supra, this Court recognized the duty of a fee applicant to document those hours through 

“contemporaneous and meticulous billing records.” Plaintiff has failed to provide records that 
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even approach this standard and have failed to prove the reasonableness of his requested fees. 

To the contrary, the fees requested by Plaintiff are demonstrably unreasonable. 

A. Plaintiff’s Records Do Not Support, and Indeed Contradict, Plaintiff’s Claim 

of Reasonableness. 

As this Court recognized in Childress, supra, “the attorney fees provision of 42 U.S.C. 

§ 1988 was put in place to aid the civil rights plaintiff; it was ‘not designed as a form of 

economic relief to improve the financial lot of attorneys, nor [was it] intended to replicate 

exactly the fee an attorney could earn through a private fee arrangement with his client.’” An 

application for fees must therefore comply with a scrupulous standard of reasonableness; the 

applicant is under a duty to minimize its fees, see Trimper v. City of Norfolk, 58 F.3d 68, 76 

(4th Cir. 1995); an applicant must exclude from a fee request hours that are excessive, 

redundant, or unnecessary, id. at 74; “[t]he attorney’s account of the value of the legal services 

and the amount of time spent must be scrutinized with care,” Grendel’s Den, Inc. v. Larkin, 

749 F.2d 945, 950 (1st Cir. 1984); and, as this Court noted in Childress, the applicant must 

support the request with “meticulous” records. Plaintiff’s application does not even approach 

this standard. 

1. Nearly One-Half of Plaintiffs’ Time Records Contain No CaseSpecific Description of the Task Performed. 

Plaintiff’s Time/Billable Hours Data Report contains the following information in 

database form: Date, MPAS Staff, Job Title, Action/Service, Time Entry Note, Time Amount 

in Hours, Employee Billable Hourly Rate, Time in Hours x Employee Billable Hourly Rate, 

Discount, Total Billable Amount. The field “Action/Service” is populated by standardized 

billing codes that provide no case-specific information about the task performed; i.e., MeetingConsultation with Other MPAS Staff (One-to-One, Small Groups); Legal-Writing Brief, 
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Amicus, Other Legal Documents; Documentation-Service Request & Client Notes, etc. While 

there is a field, “Time Entry Note,” available for the timekeeper to include a case-specific 

description of the task performed, Plaintiff’s counsel frequently ignored it altogether. 

Using the time records of the lead attorney in this case, Chris Davis, as a prime and 

egregious example, of Mr. Davis’ 577 time entries supporting his claimed $145,537.50 in fees, 

only 253, or less than one-half, contain a “Time Entry Note” with a minimal (and in most 

cases, still insufficient) case-specific explanation for the charge. Similarly, of Gabrielle 

Frampton’s 73 time entries, only 31 contain a “Time Entry Note” with a case-specific 

explanation of the charge. Indeed, Plaintiff is seeking fees in the amount of $69,787.50, for 

331.70 hours, where there is absolutely no case-specific description about the service 

performed. See Exhibit 3 for a list of the fees to which Defendants object due to the lack of 

any case-specific information in the “Time Entry Note” field. 

Plaintiff’s failure to describe the tasks performed as they specifically relate to the case 

at issue makes it impossible for this Court to determine whether nearly one-half of the time 

entries for the attorneys who performed the lion’s share of work on this case are reasonable. 

These are certainly not the type of “meticulous records” that this Court in Childress, supra, 

held were necessary to support the reasonableness of a fee award. 

Accordingly, Defendants request that this Court reduce any fee award to Plaintiff by, at 

a minimum, $69,787.50, for those 331.70 hours -- the amount of all fees for which Plaintiff has 

not provided a case-specific description. See Abner v. Kan. City S. Ry. Co., 541 F.3d 372, 

383 (5th Cir. 2008) (affirming district court decision to deduct from fee award expenses that 

were “unreasonable" because the descriptions of the work performed were too vague). 
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2. Where There is a Time Entry Note, Under Most Circumstances It 

is Too Vague or Incomplete to Support a Claim of Its 

Reasonableness. 

On occasion, Plaintiff’s counsel did include case-specific information about the task 

performed in the Time Entry Notes. Most of this information is so vague and abbreviated that 

it gives little or no information to support the reasonableness of the task performed. 

Consider, for example, the following from the records of Chris Davis’ time: “affidavits” 

(12/08/08); “w/ Gabrielle” (07/01/09); “discovery rules” (01/27/09); “E-mail Gabel” 

(11/10/09); “M Peterson” (11/09/09). See Exhibit 4 for a list of all time entries to which 

Defendants object on the basis of an insufficient Time Entry Note description. 

Such entries do not demonstrate the reasonableness of the activity undertaken, let alone 

the reasonableness of the time spent on it, and support this Court’s exercising its discretion to 

substantially reduce or deny the fee request. See H.J. Inc. v. Flygt Corp., 925 F.2d 257 (8th

Cir. 1991) (upholding a reduction of the lodestar because of numerous vague entries such as 

“legal research,” “trial prep,” and “met w/ client”); see also In re Samuel R. Pierce, Jr., 190 

F.3d 586 (D.C. Cir. 1999) (reducing the lodestar because billing records included generalized 

descriptions such as “various calls” or “review of materials”), Miller v. Woodharbor Molding 

& Millworks, 174 F.3d 948 (8th Cir. 1999) (noting that generalized billing hinders the court’s 

ability to conduct a meaningful review of the fee application). Accordingly, any fee awarded to 

Plaintiff should be reduced by $78,325.00 for 325.90 hours. 

III. Even If Plaintiff’s Records Were Not Vague And Incomplete, The Majority Of Fees 

Sought Would Still Be Unreasonable. 

This Court could deny a total of $148,112.50 in fees (for 657.60 hours) for the reason 

that Plaintiff’s counsel either failed to provide any time record describing a case-specific task 

associated with a time record or because of vague and incomplete time records. However, 
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even if Plaintiff’s counsel’s time records were complete, there are additional grounds for 

denying many of the requested fees.

1

A. Excessive Time on Internal Conferences Is Not Reasonable. 

An overwhelming number of time entries of all four lawyers working on this case have 

the Action/Service code: “Meeting-Consultation with Other MPAS Staff (One-on-One, Small 

Groups)” or the like; in fact, there are a total of 116 entries totaling fees in the amount of 

$14,722.18 for 61.43 hours of internal meetings at MPAS. See Exhibit 5 for time entries for 

internal MPAS meetings to which Defendants object. In Childress, supra, this Court cited 

“attorneys conferring with each other” as an example of “an unnecessary expenditure of time.”2 

Consequently, Defendants request that this Court reduce any fee award by $14,722.18 for the 

fees associated with 61.43 hours of internal conferencing at MPAS. 

B. Plaintiff Is Not Entitled to Fees for Unnecessary Time Spent by Lawyers at 

Depositions 

This Court has held that time billed by staff other than the essential participating lawyer 

at a deposition is unreasonable and not recoverable. See E.E.O.C. v. E.J. Sacco, 102 F. Supp. 

2d 413, 420-21 (E.D. Mich. 2000); Sykes v. Anderson, 2008 U.S. Dist. LEXIS 110347 (E.D. 

Mich. Oct. 31, 2008) (case attached as Exhibit 6). Here, Chris Davis was the lead counsel on 

all depositions in this case. Nonetheless, Plaintiff is seeking a fee recovery of $6,357.83 for 

25.49 hours spent by other lawyers attending, but not participating in, the depositions. See 

Exhibit 7 for a list of time entries to which Defendants object due to excessive coverage at a 

 

1

Some of the fees described in the following sections are duplicative of the fees to which 

Defendants objected on the basis of the grounds set forth on Exhibits 3 and 4. In other words, 

many of the fees can be denied on multiple grounds. 

2 Nor do these office conference entries even display the limited virtue of consistency. For 

example, on 12/23/08 Ms. Frampton recorded an entry stating that she conferred with Mr. 
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deposition. Consequently, Defendants request that this court reduce any fee award by 

$6,357.83, for 25.49 hours. 

C. Plaintiff Is Not Entitled to Fees For Unreasonable Travel Time. 

Plaintiff seeks recovery of certain travel time that is clearly unreasonable. First, 

Plaintiff is seeking to recover fees associated with travel time for Gabrielle Frampton. Ms. 

Frampton records in her time entries that she travelled on six dates, yet not a single time entry 

identifies to where Ms. Frampton is travelling or for what purpose. See Exhibit 8 for a chart 

listing the dates of Ms. Frampton’s travel time entries and fee associated with each. 

Further troubling is the fact that although Ms. Frampton recorded three hours of travel 

time on both 01/07/09 and 06/23/09, there are no corresponding time entries for any actual 

legal work performed on either of those dates. Significantly, this case was exclusively litigated 

in Oakland and Wayne Counties, and so it is difficult to conceive why so many three hour trips 

were incurred. As it relates to her travel on 05/28/09, 06/30/09, 07/17/09, and 08/06/09, Ms. 

Frampton does include corresponding entries for legal work performed on those dates, but 

none of that work suggests that she had to travel anywhere other than to her place of 

employment to perform it. It is not reasonable for Ms. Frampton to claim attorneys’ fees for 

her commute time. All of Ms. Frampton’s’ 17 hours travel time should be deducted from any 

fee award; that deduction totals $4,250.00. 

As it relates to the fees associated with the travel time of Chris Davis, in Hopwood v. 

Texas, 999 F. Supp. 872 (W.D. Tex. 1998), the District Court condemned the practice of 

awarding the full amount of fees associated with travel time, and cut fees attributable to travel 

in half. See Hopwood, 999 F. Supp at 914. In this case, that would reduce any fee award by 

 

Davis, but Mr. Davis did not record an entry suggesting that he conferred with Ms. Frampton. 
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$2,550.00 (10.45 hours), or 1⁄2 of the total fees claimed for Mr. Davis’ travel time. See Exhibit 

9 for a chart listing the dates of Mr. Davis’ travel time entries and fee associated with each. 

D. Fees Related to Chris Davis 

Mr. Davis’ time amounts for $145,537.50 of the $176,841.43 sought by Plaintiff. Mr. 

Davis’ time is, by far, the most poorly recorded and kept. As set forth in Exhibit 3, of his 577 

time entries, only 253, or less than one-half, contain a “Time Entry Note” with a case-specific 

explanation for the charge. Furthermore, as set forth in Exhibit 4, much of Mr. Davis’ time is 

not supported by a sufficiently clear Time/Entry Note describing the work performed. For 

these reasons alone, a substantial portion of Mr. Davis’ fees should be denied. 

Nonetheless, there are other grounds for denying the request for Mr. Davis’ fees. For 

instance, even though Mr. Davis was supported by two associates billing at $150 per hour, he 

still spent 68.60 hours of his claimed time performing, charging fees of $13,200, “LegalResearch (e.g. Westlaw, Lexis) at a rate of $250 per hour. See Exhibit 10 for a chart of the 

time entries to which Defendants object relating to Mr. Davis Lexis and Westlaw research 

charges. This fee request is unreasonable in light of the fact that Mr. Davis had less expensive 

attorneys at his disposal who could certainly have performed this work. Further, over 68 hours 

is clearly excessive since the case law utilized in this matter was well established and the same 

cases were used in virtually all briefings submitted to this Court from the outset of this matter. 

As a result, Mr. Davis’ fees should be reduced by $13,200, for 68.60 hours. 

Similarly, Mr. Davis is seeking recovery of $5,650 worth of fees for 24.60 hours of his 

time spent “Filing, Faxing, File/Records Organizing,” despite the fact that he has two 

associates and no doubt a clerical employee who could perform these tasks at a substantially 

 

Indeed, Mr. Davis did not even submit an entry indicating he was in the office that day. 
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reduced rate, if not for free. See Exhibit 11 for a chart of the time entries to which Defendants 

object relating to Mr. Davis “Filing, Faxing, File/Records Organizing” charges. It is not 

reasonable for Mr. Davis to seek recovery of fees for performing administrative and clerical 

tasks. Consequently, Mr. Davis’ fees should be reduced by $5,650 for 24.60 hours. 

Mr. Davis is also seeking recovery for fees he incurred attending public meetings of 

Oakland University’s Board of Trustee meetings. Mr. Davis’ attendance at these meetings was 

not an expense incurred for the purposes of litigating these claims. While he may have been 

curious about these meetings, there was certainly no basis for attending them that related to 

this lawsuit. Indeed, Plaintiff has not produced any evidence that the agendas of these 

meetings included topics related to his lawsuit. Consequently, Mr. Davis’ fees for the 8 hours

he claims for attending the Board of Trustees meetings are not recoverable, and the fee amount 

should be reduced by $2,000. See Exhibit 12 for a chart of the time entries to which 

Defendants object relating to Mr. Davis attendance at Board of Trustee Meetings. 

E. Fees Related to Attorney Mark Cody 

Plaintiff is seeking $6,900 in fees for an attorney named Mark Cody, whose time is 

billed at $300 per hour. Mr. Cody did not file an appearance in this lawsuit until just a few 

days before the oral argument on the motions for summary judgment in December 2009; he did 

not take a single deposition or argue a single motion, and he had no substantive contact with 

Defendants’ counsel. Nonetheless, Plaintiff claims the following as “reasonable” fees for Mr. 

Cody: 

• $725 for seven time entries described vaguely as “Case Review.” (1/13/08, 

12/02/08, 1/29/09, 3/24/09, 5/4/09, 7/20/09, 11/25/09, 12/28/09) These fees 

should be deducted because there is inadequate documentation to support that 

they were reasonably incurred. See H.J. Inc., supra; In re Samuel R. Pierce, Jr., 

190 F.3d 586 (D.C. Cir. 1999); Miller v. Woodharbor Molding & Millworks, 

174 F.3d 948 (8th Cir. 1999). 
- 12 -

• $1,350 for six internal office conferences with MPAS staff, including 

conferences and emails to discuss media issues (11/26/08, 4/23/0910/09/09, 

12/7/09, 12/28/09, 1/4/10). These fees should be deducted as unnecessary 

office conferences. Childress, supra.

• $825 for four telephone calls and meetings with “outside parties related to 

Client’s issues.” (11/26/08, 3/2/09, 12/7/09, 1/4/10) None of these entries 

explain the purpose of the contact with these “outside parties” or how these 

contacts in any way related to the litigation. These fees should be deducted 

because there is inadequate documentation to support that they were reasonably 

incurred. H.J. Inc., supra; In re Samuel R. Pierce, Jr., supra; Miller, supra. 

• $ 375 to attend District Court hearing. Mr. Cody did not participate in the 

hearing. This fee should be deducted because Mr. Cody was not the essential 

lawyer participating at the hearing. See E.E.O.C. v. E.J. Sacco, supra; Sykes, 

supra.

Mr. Cody’s fees are unreasonable, and Plaintiff should not be compensated for them. 

Plaintiff’s lead counsel on this case was Chris Davis. By all accounts – including the 

statements in his own affidavit – he was more than qualified to take the lead in this case. Mr. 

Davis did the lion’s share of the work, took and defended every deposition, and argued every 

court hearing. There was absolutely no need to have Mr. Cody, a more expensive lawyer than 

Mr. Davis, working behind the scenes on this case and accompanying Mr. Davis to depositions 

and court hearings. This is especially true where Mr. Davis also had three other attorneys 

working on the case with him. Mr. Cody’s fees of $6,900 for 26.49 hours should be denied 

since they are unreasonable, excessive and incurred unnecessarily. See Exhibit 13 for a chart 

listing the time entries regarding Mr. Cody to which Defendants object and the fee associated 

with each. 

F. Fees Related to Veena Rao 

Mr. Davis was not only assisted by Ms. Frampton and Mr. Cody on this case, he was 

also assisted by a third lawyer, Veena Rao. Ms. Rao billed $83.33 to “Review news stories 
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and articles re: decision, options programs.” (01/04/10) Courts have held that fees related to 

public and media relations efforts are not recoverable. See Hopwood, 999 F. Supp. at 913 

(“the public relations efforts in this case clearly relate to the divisive political – as opposed to 

legal – issue of affirmative action”); see also Gates v. Gomez, 60 F.3d 525, 535 (9th Cir. 1995) 

(holding that the district court abused its discretion in awarding plaintiff’s attorney fees for 

attending a conference and for “media contact,” noting that “these are the kinds of activities 

that attorneys generally do at their own expense”). Plaintiff ignores this authority and cites no 

authority to the contrary. 

Ms. Rao apparently replaced Ms. Frampton as counsel assisting Mr. Davis on this case. 

To that end, she is billing $41.67 to file papers withdrawing Ms. Frampton as counsel 

(12/08/09) and also $166.67 getting herself familiarized with the case by filing an appearance 

(10/05/09) and reviewing documents in the matter (10/07/09). It is not reasonable to claim 

fees necessary to replace Ms. Frampton. These are internal administrative matters. 

A portion of Ms. Rao’s fees do not meet the reasonableness test. See Exhibit 14 for a 

chart listing the entries for fee associated with Ms. Rao to which Defendants’ object. 

Consequently, any fee award should be reduced by $291.67 for the 1.17 hours billed by Ms. 

Rao. 

G. Fees Related to Attorney Joshua Kay 

While Joshua Kay’s Time Entry Notes appear more complete than the other attorneys 

seeking fees by actually describing the services he performed to a certain extent, it appears 

from most of these notes that Mr. Kay’s services on this case were strictly duplicative and the 

10.04 hours and $1,506 of fees incurred by Mr. Kay’s participation were mostly for Kay’s 

training and education. For instance, Kay billed $75 to observe a court hearing. (06/16/09). 
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He billed $150 to “Copied DVD for discovery purposes.” (09/04/09); and he billed $363 to 

“read all briefs etc. in preparation for Chris Davis moot court.” (01/06/09) The remainder of 

Mr. Kay’s time is described principally as discussions related to strategy. None of Kay’s time 

rises to the level of a recoverable fee, and the award should be reduced by the amount of his 

hours and fees claimed, i.e., 10.40 hours and $1,506. See Exhibit 15 for a chart listing the 

entries for fee associated with Mr. Kay to which Defendants object. 

H. Fees Unreasonably Sought for Pre-Litigation Activities 

Plaintiff’s petition includes 58.13 hours, or $14,550, for time which preceded the filing 

of the Complaint. See Exhibit 16 for a chart listing pre-litigation fees to which Defendants 

object. This request is improper. Only time relating to an “action or proceeding” under 

Section 504 are payable. See, e.g., Webb v. Board of Education of Dyer County, Texas, 471 

U.S. 234 (1985). Early meetings with Plaintiff and his parents and his requests for 

accommodations are not activities for which fees are awardable. Id. They not only predate the 

filing of the Complaint, they predate the precursors of the Complaint. Therefore, this time 

should be disallowed and any fee awarded should be reduced by $14, 550 for 58.13 hours. 

IV. Plaintiff Was Not a Prevailing Party for Purposes of His Motion for Preliminary 

Injunction, and Consequently, Is Not Entitled to Fees Associated with that Motion. 

In Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) the United States Supreme Court 

held that “the fee applicant bears the burden of establishing entitlement to an award.” As a 

threshold matter Plaintiff must therefore establish that he qualifies as a “prevailing party” 

within the meaning of § 1988. While Plaintiff is arguably currently a prevailing party on Count 

IV of his Second Amended Complaint (Defendants’ have appealed the Opinion and Order 

granting Plaintiff injunctive relief), he was not a prevailing party on his Motion for Preliminary 

Injunction filed on December 15, 2008 and premised on a count which was ultimately 
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dismissed. Consequently, he is not entitled to an award of any attorneys’ fees associated with 

that Motion. New Life Ministries v. Charter Township of Mt. Morris, 2006 U.S. Dist. LEXIS 

74303 (Oct. 12, 2006 E.D. Mich.) (case attached as Exhibit 17); Abner v. Kan. City S. Ry. 

Co., 541 F.3d 372, 383 (5th Cir. 2008). 

In light of the fact that it is nearly impossible to discern from the majority of Plaintiff’s 

counsels’ time entries exactly what specific services were performed on a given date, it can be 

reasonably assumed that the majority of the time billed between the time that Plaintiff filed the 

Complaint on November 25, 2008 and the date of the preliminary injunction hearing on 

January 13, 2009 was incurred as a result of the Motion for Preliminary Injunction. That time 

is summarized in Exhibit 18. 

Since Plaintiff was not the prevailing party for purposes of his Motion for Preliminary 

Injunction, he is not entitled to an award of fees for work performed in conjunction with that 

Motion. As a result, any award of fees to Plaintiff should be reduced by $21,751 for 87.64 

hours, or fees and hours close thereto. 3

V. Plaintiff’s Fee Award Should Be Reduced Because He Had Limited Success on His 

Claims. 

The Supreme Court in Hensley, supra, held as follows: 

If . . . a plaintiff has achieved only partial or limited success, the 

product of hours reasonably expended on the litigation as a 

whole times a reasonable hourly rate may be an excessive 

amount. This will be true even where the plaintiff’s claims were 

interrelated, nonfrivolous, and raised in good faith . . . . [T]he 

most critical factor is the degree of success obtained. 

(Emphasis added) 

* * * * * 

 

3

7.5 hours of Mr. Davis’ time during that time period and 4.3 hours of Ms. Frampton’s time 

may be attributable to activities not related to the Motion for Preliminary Injunction. If the 

Court agrees that this is the case, the amount above would be reduced by $2,950. 
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The district court may attempt to identify specific hours that 

should be eliminated, or it may simply reduce the award to 

account for the limited success. 

Id. at 436. A plaintiff who achieves only limited success may thus recover only limited fees. 

To that end, a lawyer representing a party with multiple claims has a duty to “make every 

effort to submit time records which specifically allocate the time spent on each claim.” The 

Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92 (4th Cir. 1993). 

Plaintiff did not prevail in his widely trumpeted goal of opening the doors of Oakland 

University’s dormitories to any disabled “student” unable to qualify for regular admission to 

the University as a result of his or her disability. Instead, Plaintiff prevailed in his individual 

dream of living in the dorms, as this Court made clear in its Opinion and Order that its decision 

related solely to Plaintiff. Opinion and Order (December 23, 2009) at pp. 18 and 23. As to 

the Count on which he prevailed, he did not achieve all relief prayed for. While he did obtain 

an injunction, he failed in his effort to obtain compensatory and punitive damages. 

Furthermore, five of the six counts Plaintiff filed did not survive summary judgment, 

including all of Plaintiff’s claims regarding disparate impact and disparate treatment 

discrimination. Significantly, most of the efforts in discovery and even briefing before this 

Court were devoted to the claims on which he did not prevail, i.e., the claims of disparate 

treatment and disparate impact. As this Court may recall, Plaintiff desperately sought to prove 

that intentional discrimination occurred and that Defendants’ denial of Plaintiff’s housing 

application was a pretext for discrimination. This Court specifically held that such was not the 

case, and that instead the University was acting in a manner consistent with its long-standing 

policies. The accommodation issue on which Plaintiff ultimately prevailed entailed little 

discovery time or even factual disputes. 
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Thus, this Court can and should exercise its discretion by awarding Plaintiff limited fees

associated with his limited success in this case, including the time spent researching and 

amending the original Complaint since the Count on which he prevailed was in the original 

complaint. The problem is that Plaintiff’s counsel made no effort to keep time records that 

made any allocation to the time spent on each claim. His failure to do so should bar his 

recovery of any fees, since this Court has been presented with no evidence upon which it could 

eliminate time spent on unsuccessful claims. 

CONCLUSION

This case, while pled as a six count action, boiled down to a one count action – a count 

which was in Plaintiff’s original Complaint and on which Plaintiff could not meet the standard 

for the award of a Preliminary Injunction. All time expended briefing and researching the 

amendments to the Complaint, the Motion for Preliminary Injunction, the unsuccessful counts, 

was unnecessary. All time traveling, attending meetings, doing administrative work, is also not 

reimbursable. Plaintiff also should not be rewarded for only being partially successful on his 

remaining claim. What is left are counsel’s labors for attending six partial-day depositions 

(three per side) and drafting briefs relating to the cross-motions for summary judgment. For 

this single count, regarding a single plaintiff, for a case that never reached trial, Plaintiff’s 

request for more than $176,000 is, in a word, exorbitant. 

The unreasonableness of Plaintiff’s request is even more clear when the following math 

is applied, based on the figures provided above. For instance, when the hours claimed are 

reduced merely on the basis of appropriate documentation, i.e., 657.60 hours, the approximate 

$178,800 claim quickly drops to approximately $30,700. This amount could be further 

reduced by some of the other time objected to above, but which is difficult to do in order to 
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avoid double counting. If only $5,000 of that other time is factored into as also being 

unreasonable, then the amount claimed becomes closer to $26,000. If the remaining amount is 

reduced by a factor of two-thirds due to Plaintiff’s lack of success on all claims (which is based 

on generously lumping the claims into three categories – FHA Claims, ADA Claims and 504 

Claims, and then recognizing that Plaintiff was, at best, only partially successful on one-third of 

his claims), then Plaintiff’s claim (at the claimed billing rates) is closer to $8,700. When the 

market billing rate of $200 is applied to all of these hours, Plaintiff’s claim becomes more 

appropriately $7,100. 

Plaintiff has woefully failed to meet his burden to support his petition. The Court 

should therefore exercise its discretion to deny it or modify it to a more reasonable and 

appropriate figure given what Plaintiff can appropriately document as reasonable (which he has 

significantly not done) and what was appropriate to litigate the count on which he partially 

prevailed. 

Respectfully submitted, 

BUTZEL LONG, a professional corporation

By: /s/ Robert A. Boonin 

Robert A. Boonin (P38172) 

Regan K. Dahle (P53975) 

350 South Main Street, Suite 300 

Ann Arbor, Michigan 48104 

(734) 995-3110 

boonin@butzel.com

dahle@butzel.com

Attorneys for Defendants 

Dated: February 3, 2010 
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Certificate of Service

I hereby certify that on February 3, 2010, I electronically filed the foregoing paper, 

Notice of Appeal, with the Clerk of the Court using the ECF system which will send 

notification of such filing to the attorneys of record. 

Respectfully submitted, 

BUTZEL LONG, a professional corporation

By: /s/ Robert A. Boonin 

Robert A. Boonin (P38172) 

Regan K. Dahle (P53975) 

350 South Main Street, Suite 300 

Ann Arbor, Michigan 48104 

(734) 995-3110 

boonin@butzel.com

dahle@butzel.com

Attorneys for Defendants