NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0208n.06

Nos. 10-3836/10-3901

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JESSICA DELLARUSSIANI, et al.,

Plaintiffs-Appellants,

v.

ED DONNELLY ENTERPRISES, INC., et al.,

Defendants-Appellees.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF OHIO

OPINION

Before: MOORE, SUTTON, and DONALD, Circuit Judges.

Bernice B. Donald, Circuit Judge. This action, which is before this court for the second

time, arises from the employment of Appellants Jessica Dellarussiani, Derrick Kinchen, Chad

Larson, Jill Puff, Debbie Brunke and Nathan Buscher (collectively, “Appellants”) by Appellees Ed

Donnelly and Ed Donnelly Enterprises, Inc. (collectively, “EDE”). Appellants brought suit under

the Fair Labor Standards Act (“FLSA”) and the equivalent Ohio statute alleging that EDE failed to

pay wages to which Appellants were entitled. The district court entered judgment in favor of

Appellants pursuant to EDE’s Rule 68 Offer of Judgment on Counts One and Two of the complaint.1

Subsequently, the parties were unable to agree on the reasonable attorneys’ fees to which Appellants

were entitled. In their first Application for an Award of Attorneys’ Fees and Costs, Appellants’

counsel sought $155,171.50 in attorneys fees and $8,012.70 in costs. On January 18, 2008, the

The district court also granted summary judgment in favor of EDE on Count Three, a ruling 1

upheld by this court in an earlier appeal.
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district court entered an order awardingAppellants $5,614.50 in attorneys’ fees and $410.44 in costs. 

On appeal of that order, we remanded with additional instructions to the district court regarding the

proper calculation of Appellants’ attorneys’ fees. See O’Brien v. Ed Donnelly Enterprises, Inc., 575

F.3d 567 (6th Cir. 2009). On remand, the district court found that Appellants were entitled to an

additional $15,844.73 in attorneys’ fees and costs, for a total award of $20,691.63. Appellants

timely appealed the district court’s ruling, and EDE cross-appealed.

For the following reasons, we AFFIRM.

I. BACKGROUND

Appellants are former employees oftwoMcDonald’s franchises in Bellefontaine, Ohio. EDE

owned and operated the restaurants at issue. Appellants alleged that EDE failed to pay all of the

regular and overtime wages to which they were entitled under the FLSA and Ohio law. Appellants

originally opted in as plaintiffs in O’Brien v. Ed Donnelly, Inc., Case No. C2-04-085 (“O’Brien”),

a related action still pending in the United States District Court for the Southern District of Ohio. 

That action was brought by the same law firm, Ferron & Associates (hereinafter, “Ferron”), who

represent Appellants in the present matter. 

On November 8, 2004, the district court conditionally certified O’Brien as a collective action

under § 216(b) of the FLSA. After extensive discovery, however, the court found that the O’Brien 2

plaintiffs had failed to establish that they were similarly situated and decertified the class. 

When O’Brien began, Ferron sent notices to hundreds of former EDE employees. Only 2

thirty-six opted into the action. Thus, O’Brien initially involved a total of thirty-eight plaintiffs. 

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Thereafter, on March 22, 2007, Ferron filed the instant lawsuit on behalf of six former opt-in

plaintiffs from O’Brien . 

On May 24, 2007, EDE served on Ferron a Rule 68 Offer of Judgment (hereinafter, “Offer”)

that provided:

Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendants

[EDE] hereby offer judgment to be taken against them on Counts One and Two of

the plaintiffs’ complaint in this action in the following amounts as to each plaintiff,

plus costs accrued to date and reasonable attorneys’ fees:

Brunke $146.04

Buscher $71.32

Kinchen $148.64

Larson $1953.54

Wagner $196.36

West $3,626.30

This Offer of Judgment may be accepted by any one or more of the plaintiffs

and is not conditioned upon agreement of all plaintiffs. If this offer is accepted by

one or more plaintiffs, the Court would at the appropriate time determine the

appropriate amount of attorneys’ fees, if any, to be awarded to plaintiffs’ counsel. 

This Offer of Judgment is made for the purposes specified in Rule 68 and is not to

be construed either as an admission that defendants are liable in this action or that

plaintiffs have suffered any recoverable damages.

EDE based the dollar amounts in their Offer on the sworn affidavits filed by each of the plaintiffs

in O’Brien and also on the “damage calculations” prepared by Ferron in O’Brien. 

The district court ultimatelyentered judgment in favor of Appellants on Counts One and Two

in accordance with the terms of EDE’s Offer. The court also found that Appellants could not prevail

on Count Three as a matter of law and granted summary judgment in favor of EDE. As to the issue 3

Count Three was a claim for liquidated damages under Ohio’s Prompt Pay Act, Ohio Rev. 3

Code § 4113.15(B). The Act provides that “[w]here wages remain unpaid for thirty days beyond the

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of attorneys’ fees, the court directed Ferron to file a motion “setting forth the amount claimed, and

detailing the basis for such calculation.”

In its first application for an award of attorneys’ fees, Ferron sought an award of $155,171.50

in fees and $8,012.70 in costs incurred through May 24, 2007. Ferron argued that because “most of

the legal services necessary to prosecute [Appellants’] claims . . . were rendered in connection with

the O’Brien matter,” it was entitled to recover all of the costs and fees incurred in O’Brien. In

opposition to the motion, EDE argued that Ferron should not be awarded any fees incurred in

O’Brien because “[n]ot only were [Appellants] unsuccessful in O’Brien, only a small fraction of the

fees claimed by [Ferron] bear any relationship to the claims upon which [Appellants] in this action

can be considered to have prevailed.”4

The district court granted in part and denied in part Ferron’s application for fees. It found

that Ferron’s invoice was “rife with examples of entries that are not even arguably related to the

FLSA claims for these six Plaintiffs.” The court also found that 

regularly scheduled payday . . . and no contest[,] court order[,] or dispute of any wage claim . . .

exists accounting for nonpayment, the employer . . . is liable [in liquidated damages] to the

employee. . . .” Id. (emphasis added). The district court found that, because EDE disputed whether

Appellants were owed anywages, Appellants could not recover under the Act and EDE was entitled

to summary judgment.

In particular, EDE argued that many of the fees incurred in O’Brien were generated by 4

Ferron’s “unsuccessful and unwarranted attempts to cobble together a collective action where none

properly existed.” EDE also pointed out that the parties spent time in O’Brien litigating the merits

of the state-law fraud claim, which is still pending with respect to the two remaining O’Brien

plaintiffs, but which is not a claim that Ferron pursued on behalf of Appellants. Finally, EDE argued

that significant time was spent in O’Brien litigating issues related to the thirty-two plaintiffs who are

not parties to the instant matter.

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contrary to [Ferron’s] averments, no meaningful review, no deletion of inappropriate

charges, and no billing judgment was exercised in the preparation of the fee

application. In addition, [Ferron has] failed to meet [its] burden of presenting this

Court with time records of sufficient detail to afford the Court a reasonable manner

for determining how much time was spent on tasks in the O’Brien matter that

contributed to the success of the six Plaintiffs in this action. Instead, the vast

majority of the entries contain descriptions that aggregate tasks—often tasks relating

to different plaintiffs who are not plaintiffs in this action—in one entry. Though the

names of the six Plaintiffs in this action do sporadically appear in the O’Brien

Invoice, there is not a single entry in which it is clear that all the time associated with

that entry was spent in furtherance of claims of one or more of the Plaintiffs in this

case.

Due to [Ferron’s] lack of billing judgment and inadequate documentation of hours,

it is difficult for this Court to determine how much time was spent on tasks in the

O’Brien matter that were necessary, not redundant, and contributory to the success

of the six Plaintiffs in this action. . . . Thus, the Court concludes that the proper

award is the amount invoiced in this case by [Ferron] for [Appellants’] FLSA claims.

Having determined that the fees incurred in O’Brien were not recoverable, the court awarded Ferron

only the fees and expenses incurred in the instant matter, for a total award of $6,024.94. 

On appeal of that order, we found that Ferron was not barred under the FLSA from

recovering a portion of the fees incurred in O’Brien. O’Brien v. Ed Donnelly Enterprises, Inc., 575

F.3d 567, 576 (6th Cir. 2009). Responding to EDE’s argument that the FLSA authorizes an award

of fees only in “the action” where a plaintiff prevails, we stated that “[s]uch a wooden reading of the

statute is unnecessary.” Id. We acknowledged that discovery in the instant case took place when

Appellants were still parties to O’Brien, and thus, we remanded to the district court for a

determination of an appropriate fee award. Id. We did so “notwithstanding the inadequacy and

perhaps even the impropriety in the billing records that [Ferron] had originally presented to the

district court.” Id. In light of our reading of the FLSA, we directed the district court to give Ferron

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“one more opportunity to present records that reflect fees incurred in pursuit of and which benefitted

the Dellarussiani plaintiffs’ claims on which they prevailed” pursuant to the Offer. Id. We

cautioned, however, that “absent a specific showing of benefit to the Dellarussiani plaintiffs, fees

[could not] be recovered for expenses incurred for the claims of O’Brien plaintiffs who did not file

suit in Dellarussiani, nor for the claims of the lead plaintiffs in O’Brien who remained after the

collective action was decertified.” Id. at 577. 

In its second application for attorneys’ fees, Ferron sought a total of $110,705.83, which was

comprised of three distinct components: (1) $92,181.73 in fees and expenses incurred in O’Brien,

which it argued directly benefitted Appellants in the instant case; (2) $11,430.18 in fees and costs

incurred in appealing the district court’s initial order; and (3) $7,093.97 in fees and costs incurred

in proceeding on remand, which included preparation of the second application for attorneys’ fees. 

The district court awarded Ferron an additional $13,371.04 in attorneys’ fees and $1,178.04 in costs

incurred in O’Brien, and $1,095.65 in costs for the first appeal. Both sides appealed. 5

II. LAW & ANALYSIS

A district court’s award of attorneys’ fees and the determination of the amount of fees are

reviewed for abuse of discretion. See, e.g., Scotts Co. v. Central Garden & Pet Co., 403 F.3d 781,

788 (6th Cir. 2005); Johnson v. Jones, 149 F.3d 494, 503 (6th Cir. 1998); Hadix v. Johnson, 65 F.3d

532, 534 (6th Cir. 1995). We will reverse only if we are firmly convinced that the trial court made

When added to the previous award of $6,024.94, the court awarded Ferron a total of 5

$20,691.63 in fees and expenses. 

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a mistake, for instance, by relying on clearly erroneous findings of fact, by improperly applying the

law, or by using an erroneous legal standard. Tucker v. City of Fairfield, 398 F.3d 457, 461 (6th Cir.

2005). We examine in turn each of the three categories of fees for which Ferron sought recovery.

A. Fees Incurred in O’Brien

In its attempt to comply with our directive to provide adequately detailed billing records on

remand, Ferron submitted to the district court the same invoice that accompanied its initial

application for fees. The district court noted that Ferron had

not amended the actual Invoice to include only those time entries that directly benefit

[Appellants]. Rather, [Ferron] has created a 124-page Index that is derived from the

original Invoice. It essentially cuts a few lines from the Invoice and randomly

discounts a few entries, but still includes numerous entries that do not even remotely

benefit [Appellants]. . . . The Index does not further clarify [the inadequacies

previously identified in the Invoice], but rather is just derivative of what appears on

the Invoice. The Court is therefore unable to determine the exact amount of

attorneys’ fees that benefitted [Appellants] as instructed by the Sixth Circuit. . . 

The Court finds that [Ferron’s] Invoice lacks sufficient detail to review the

reasonableness of the hours expended that benefit [Appellants]. Further, the

intermingling of the time entries, in combination with the lack of detail, make it

impossible to distinguish the tasks within each entry that benefit [Appellants]. 

The district court acknowledged that Ferron had “deleted a few entries as not benefitting the

Dellarussiani Plaintiffs,” but found that it had “not nearly excluded enough.” For instance, Ferron

sought to recover time spent on unsuccessful motions in O’Brien and on motions that pertained only

to the claims of O’Brien plaintiffs who were not parties to the instant case. Additionally, the court

rejected as inadequate Ferron’s “generic statement[s] that the work performed benefits the

Dellarussiani Plaintiffs,” as these statements failed to describe the work that Ferron actually

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performed. The court concluded that the non-specific nature of Ferron’s billing entries made it

impossible to simply “subtract the number of hours that did not benefit the Dellarussiani Plaintiffs.”

Thus, the court fashioned what it determined to be an appropriate formula for calculating the

fees Ferron could recover for work performed in O’Brien. The court started with the assumption

“that the general descriptions on the Invoice were for all 38 original O’Brien plaintiffs.” Considering

that Appellants constituted six of the thirty-eight O’Brien plaintiffs, the court ordered a proportional

award—sixteen percent, or roughly six thirty-eighths—of the O’Brien fees sought. 

Having reviewed the invoice and the Index, we agreewith the district court’s characterization

of Ferron’s submissions. Each billing entry on the thirty-one page O’Brien invoice is supplemented

by a corresponding “explanation” in the Index. We note, initially, that the Index does not provide

additional evidence, as we requested, to support the fees Ferron sought in the O’Brien matter. 

Rather, as EDE pointed out to the district court, the Index contains Ferron’s arguments, which

attempt to characterize various billing entries in ways that show at least a tangential relationship to

the claims of Appellants in the instant case. The generic descriptions in the Index, however, shed

little or no light on the particular work that each billing entry represents. We agree with the district

court, therefore, that it is impossible to determine if or how the work represented by those billing

entries furthered the claims of Appellants, or even if the amount of time billed for each entry is

reasonable. Moreover, given that there is no supporting documentation to substantiate Ferron’s

attempt to supplement vague descriptions of work performed as much as five years ago, we are

skeptical about the reliability of the explanations in the Index. 

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Despite these deficiencies, and consonant with our conclusion that the FLSA was not an

absolute bar to the recovery of some portion of the fees generated in O’Brien, the district court

endeavored to award Ferron what it determined to be a reasonable proportion of those fees. If Ferron

believed it was entitled to recover a greater fee award, it was incumbent upon the firm to produce

adequate proof that the fees sought specifically benefitted Appellants. Ferron’s failure to do so was

to its detriment. The district court concluded that the evidence Ferron presented was inadequate to

justify the fees sought. The court considered the evidence before it and articulated a logical rationale

for its calculation of fees. This was not an abuse of discretion. 

We likewise reject EDE’s argument that the district court erred in awarding any fees for

Ferron’s work in O’Brien. EDE contends that the district court “was required to award fees only

where there was a specific showing of benefit to [Appellants],” and points out that the district court’s

order repeatedly noted that Ferron’s Index did not make such a showing. Therefore, EDE argues,

“upon the district court’s clear conclusion that it was unable to determine the amount of attorneys’

fees that related to [Appellants], it should have denied [Ferron’s] application in its entirety, and its

award of fees contrary to this Court’s directive was an abuse of discretion.” We disagree.

When determining a reasonable attorneys’ fee, courts consider a myriad of factors “in light

of the congressional policy underlying the substantive portions of the statute providing for the award

of fees.” United Slate, Tile & Composition Roofers, Damp and Waterproof Workers Ass’n, Local

307 v. G & M Roofing and Sheet Metal Co., 732 F.2d 495, 501 (6th Cir. 1984). The FLSA was

enacted to “eliminate labor conditions detrimental to the maintenance of the minimum standard [of]

living for workers.” Id. (internal quotations omitted). The availability of attorneys’ fees under the

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FLSA reflects the congressional intent that these policies be vindicated and that workers have

effective access to the judicial process. Id. at 502. 

It is true that we cautioned Ferron that it could not recover O’Brien fees absent a specific

showing of benefit to Appellants. However, we also acknowledged “[t]he reality . . . that discovery

concerning the Dellarussiani plaintiffs’ claims took place in O’Brien,” and it goes without saying

that Ferron expended time and resources and incurred fees throughout the discovery process. 

Inasmuch as these efforts ultimately contributed to the judgment in Appellants’ favor—albeit,

pursuant to EDE’s Offer—there undeniably was some benefit to Appellants. To preclude Ferron

from recovering any of its discovery-related fees and expenses in the instant matter would not further

the congressional policy underlying the FLSA and its provision for attorneys’ fees for prevailing

plaintiffs. In light of these considerations, the district court’s award of a reasonable proportion of

O’Brien fees was not an abuse of discretion. 

B. Fees Incurred on Appeal of the District Court’s First Order

Ferron also argues that the district court erred in declining to award it fees “in prosecuting

the Plaintiffs’ successful appeal” of the district court’s first order. In the appeal to which Ferron

refers, Appellants challenged the district court’s entry of judgment on Counts One and Two of the

complaint, the grant of summary judgment in favor of EDE on Count Three, and the amount of the

attorneys’ fee award. On appeal, we upheld the district court’s disposition of Counts One and Two 6

In the same appeal, counsel also challenged several of the district court’s rulings in 6

O’Brien. However, to the extent that any of those challenges were successful, they do not bear on

our analysis of the present issue. For the purposes of the instant case, we consider only whether

Appellants were successful in their appeal of the district court’s rulings in Dellarussiani.

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in accordance with the Offer of Judgment. We also upheld the district court’s summary disposition

of Count Three in favor of EDE. In light of our reading of the FLSA, however, we remanded the

issue of attorneys’ fees to the district court, admonishing Ferron to present billing recordssufficiently

detailed to allow the court to calculate an appropriate award.

Because we affirmed its disposition of the substantive portions of Appellants’ claims, the

district court concluded that Appellants were not “prevailing parties” on appeal—at least, not as that

phrase is commonly understood. Ferron was only successful in securing a second chance to submit

adequate billing records so the court could determine an appropriate fee award. The district court

determined that this was not an outcome that justified an award of attorneys’ fees for a “successful

appeal” within the meaning of the FLSA. However, acknowledging that Ferron was at least partially

successful on the issue of attorneys’ fees, the district court awarded Ferron its costs incurred on

appeal. We find this resolution reasonable, and not an abuse of discretion.

C. Fees Incurred on Remand

Finally, Ferron argues that it was entitled to recover fees and costs incurred in “prosecuting

Appellants’ claims on remand.” On remand, however, Ferron was no longer prosecuting the claims

of the Dellarussiani plaintiffs. The only task with which Ferron was charged on remand was the

preparation and submission of adequate billing records to reflect the time billed in O’Brien that

specifically benefitted the Dellarussiani plaintiffs. The district court properly concluded that Ferron

was not entitled to collect fees incurred as a result of its own inadequate billing practices. As the

court noted, these fees could have been avoided entirelyhad the original application been sufficiently

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detailed. Thus, Ferron is not entitled to a statutory award of fees for this additional expenditure of

time and effort.

III. CONCLUSION

For the foregoing reasons, the district court’s award of attorneys’ fees is AFFIRMED.

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