NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0208n.06 Nos. 10-3836/10-3901 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

J ESSI CA DEL L ARUSSI ANI , et al., Plaintiffs-Appellants,

v. ED DON NEL L Y ENTERPRI SES, I NC., et al., Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE SOUTHERN DI STRI CT OF OH I O

OPI NI ON Before: M OORE, S UTTON, and DONALD , Circuit J udg es. Bernice B. Donald, Circuit Judge. This action, which is before this court for the s econd time, arises from the employ ment of App el lants J essica Dellar ussiani, Der

rick Kinchen, Chad L arson, J ill Puff, Debbie Br unke and Nathan Busc her (collec tively , “Appe llants”) by Appellee s Ed Donnelly and Ed Donnelly Enterpr ises, Inc. (c ollectively , “EDE” ). Appellants brought suit under the Fa ir L abor Standards Act (“F L SA”) and the equivalent Ohio statute alleg ing that EDE failed to pay wag es to which Appellants wer e entitled. The distr i ct court enter ed judgme nt in favor of Appellants pursuant to EDE’s Rule 68 Offe r of J udg ment on Counts One and Two of the complaint. 1 Subsequently , the parties wer e unable to ag ree on the rea sonable attorney s’ fee s to which Appellants

wer e entitled. In their first Application for an Awar d of Att o rn ey s ’ Fe es and Costs, Appellants’

counse l s o u gh t $ 1 5 5,171.50 in attorney s fee s and $8,012.70 in costs. On J anuar y 18, 2008, the

The district court also g rante d summary judgme nt in favor of EDE on Count Three , a ruling 1 upheld by this court in an ea

rlier a ppeal.Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. district court enter ed an order awa rding Appellants $5,614.50 in attorney s’ fee s and $ 4 1 0

. 4 4 in c o s ts

. On appea l of that order , we rema nded with additional instructions to the district court reg arding the proper calc ulation of Appellants’ attorney s’ fee s. See O’Brien v. Ed Donnelly Enterprises, Inc. , 575 F.3d 567 (6th Cir. 2009). On rema nd, the district court found that Appellants wer e en t i t l ed to an additional $15,844.73 in attorney s’ fee s and costs, for a total awa rd of $20,69 1

. 6 3

. Ap p el lants timely appea led the district cour t’s ruling , and EDE c ross-appe aled. For the following rea sons, we AF F IRM

.

I. BACKG ROUND Appellants are former e mp lo y e e s o f tw o M c D o n a ld ’ s fra nchises in Be llefontaine, Ohio. EDE owned and operated the restaur ants at issue. Appellants alleg ed that EDE fa i l ed to pay all of the regular and overtime wag es to which they wer e entitled under the FL SA and Ohio law. Appellants orig inally opted in a s plaintiffs in O’Brien v. Ed Donnelly, Inc. , Case No. C2-04-085 (“ O’Brien ”),

a re lated ac tion sti ll pending in the United States District Court f or the Southern District of Ohio. That action was broug ht by the same law firm, Fe rron & As s o ciates (her einaf ter, “F err on”), who repr esent Appe llants in the present matter

. On November 8, 2004, the district court conditionally cer tified O’Brien as a collective action under § 216(b) of the FL SA. After extensive discovery , howeve r, the court found that the O’Brien 2 plaintiffs had failed to est ab l i s h that they wer e simil arly situated and dece rtified the class.

When O’Brien beg an, Ferr on sent n o t i ces to hundreds of former EDE employ ees. Only 2 thirty -six opted into the action. Thus, O’Brien initially involved a total of thirty -eight plaintiffs. - 2 -Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. There afte r, on Marc h 22, 2007, Ferr o n fi l ed the instant lawsuit on behalf of six former opt-in plaintiffs from O’Brien

. On May 24, 2007, EDE serve d on Fe rron a Rule 68 Offe r of J udg ment (her einaf ter, “Of fer ”) that provided: Pursuant to Rule 68 of the Fe dera l Rules of Civil Procedur e, defe ndants [EDE] here by offe r j udg ment to be taken ag ainst them on Counts One an d T wo of the plaintiffs’ complaint in this action in the following amounts as to eac h plaintiff, plus costs acc rued to date and r easona ble attorne y s’ fe es: Br unke $146.04 Busc her $71.32 Kinchen $148.64 L arson $1953.54 Wagne r $196.36 West $3,626.30 This Offe r of J udg ment may be acc epted by any one or more of the plaintiffs and is not conditioned u pon ag ree ment of all plaintiffs. I f t his offe r i s acc epted by one or more plaintiffs, the Court would at the appropr iate ti m e d et ermine the appropr iate amount of attorney s’ fees, i f any , to be aw ar d ed to plaintiffs’ counsel. This Offe r of J udg ment is made for t he purposes specifie d in Rule 68 and is not to be construed either as an admission t h at defe ndants are liable in this action or that plaintiffs have suffe red a

ny rec overa ble damag es. EDE base d the dollar amounts in their Offer on the s worn affidavits fil ed by eac h of t he plainti ffs in O’Brien and also on the “ damag e ca lculations” pre pare d by Fe rron in O’Brien

. The district court ultimately enter ed ju dg ment in favor of Appellants on Counts One and Two in acc ordanc e with the terms of EDE’s Offe r. The court also found that Appellants could not preva il

on Count Three as a matter of law and g rante d summary judgme nt in favor of EDE. As to the issue 3

Count Three was a claim for liquidated damag es under Ohio’s Prompt Pay Act, Ohio Rev. 3 Code § 4113.15(B ). The Act provides that “[w]here wag es rema in unpaid for thirty day s beyond the - 3 -Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. of attorney s’ fee s, the court direc ted Fe rron to file a motion “se tting forth the amount claimed, and detailing the basis for suc h calc ulation.” I n its first application for an awa rd of attorney s’ fee s, Fe rron soug ht an awa rd of $155,171.50 in fee s and $8,012.70 in costs incurre d throug h May 24, 2007. Fe rron arg ued that beca

use “most of the leg al service s nece ssary to prosec ute [Appellants’] claims

. . . wer e rende red in connec tion with the O’Brien matter,” it was entitled to rec over all of the costs and fe es i n cu rre d in O’Brien

. In opposition to the motion, EDE argued that Ferr o n s h o u l d not be awa rded any fee s incurre d in O’Brien beca

use “[n] ot only wer e [Appellants] unsucce ssful in O’Brien , only a small fra ction of the fee s claimed by [Ferr on] bear any relationship to the claims upon which [Appellants] in this action can be considere d to have pr evailed.” 4 The dist rict court g rante d in part and denied i n part Ferr on’s application for fees. I t found that Fe rron’ s i n v o i ce was “rife with examples of entries that are not even arguably related to the FL SA claims for these six Plaintiffs.” The c ourt also found that

regularly schedule d payday

. . . and n o co n t est [,] court order[,] or dispute of any w age claim

. . . exis ts acc ounting for non p ay ment, the employ er . . . is liable [i n liquidated damag es] to the employ ee. . . .” Id. (empha sis added)

. The district court found that, beca use EDE disputed whether Appellants wer e owed any wag es, Appellants could not rec over under the Act and EDE was entitled to summary

judgme nt. I n particula

r, EDE argued that many of the fee s incurre d in O’Brien we re g ener ated by 4 Fe rron’ s “unsucc essful and unwar rante d attempts to cobble toge ther a collective action wher e none proper ly exis ted.” EDE also pointed out that the parties spent time in O’Brien litigating the merits of the state-law fra

ud claim, which is still pending wi t h re s p ec t to the two rema ining O’Brien plaintiffs, but which is not a claim that Fe rron pursued on behalf of Appellants. Finally , EDE argued that signific ant time was spent in O’Brien litigating issues related to the thirty -two plaintiffs who are not parties to the instant matter.

- 4 -Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. contra ry to [Ferr on’s] aver

ments, no meaning ful revie w, no deletion of inappropriate char g es, and no billing judgme nt was exercised in the prepa ration of the fee application. In ad d i t i o n , [Ferr on has] failed to meet [ its] burden of prese nting this Court with time rec ords of sufficie nt detail to a ffor d the Court a rea sonable manner for d et er m i n i n g how much time was spent on tasks in the O’Brien matter that contributed to the succe ss of t h e s i x P l aintiffs in this action. Instead, the vast majority of the entries contain descr iptions that ag g reg ate tasks—often tasks relating to differ ent plaintiffs who are not plaintiffs in this action—in one entry

. Thoug h the names of the six Plaintiffs in this action do sporadica lly appea r in the O’B r i en I nvoice, there is not a single entry in which it is clea r that all the time associate d with that entry was spent in fur

thera nce of claims of one or more of the Plaintiffs in this case . Due to [Fe rron’ s] lack of billing judgme nt a nd inadequate documentation of hours, it is difficult for this Court to deter mine how much time was spent on tasks in the O’Brien matter that we re ne cessa ry , not redunda

nt, and contributory to the succe ss o f the six Plaintiffs in this action.

. . . Thus, the Court conclude s that the p ro p er awa rd is the amount invoiced in this case by [Ferr on] for [Appellants’] FL SA claims. Having deter

mined that the fee s incurre d in O’Brien wer e not rec overa ble, the court awa

rded Fe rron only the fe es and e x penses incur red in the instant matter , for a total awar d of $6,024.94. On appea l of that order , we found that Fe rron was not barr ed under the FL SA from

rec overing a portion of the fee s incurre d 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 FL SA authorizes an awa rd of fee s only in “the action” wher e a plaintiff preva ils, we stated that “[s] uch a wooden rea ding of the
statute is unnece ssary .” Id. We acknow ledg ed that d i scover y in the i nstant case took place when Appellants wer e still parties to O’Brien , and thus, we rema nded t o t he district court for a deter mination of an appropri at e fee awa rd. Id. We did so “notwithstanding the inadequa cy and perha ps even the impropriety in the billing rec ords that [Ferr on] had orig inally prese nted to the district court.” Id

. I n light of our rea ding of the FL SA, we direc ted the district court to g ive Fe rron

- 5 -Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. “one more opportunity to prese nt rec ords that ref lect fee s incurre d in pursuit of and which benef itted the Dell a r ussiani plaintiffs’ claims on which they preva iled” pursuant to the Offe r. Id. We cautioned, how ever , that “abse nt a spec ific showingof bene fit to the Dellarussiani plaintiffs, fee s [could not] be rec overe d for expenses incurre d for the claims of O’Brien plaintiffs who did not file suit in Dellarussiani , nor fo r t h e cl aims of the lead plaintiffs in O’Brien who rema ined afte r the collective a ction was de cer tified.” Id. at 577. I n its second application for attorney s’ fee s, Fe rron soug ht a total of $110,705.83, which was comprised of

three distinct components: (1) $92,181.73 in fee s and expenses incurr ed in O’Brien , which it argued dire ctly

benef itted Appellants in the instant case ; (2) $11,430.18 in fee s and costs incurre d in appea ling the district court’s i nitial order ; and (3) $7,093.97 in fee s and costs incurr ed in proce eding on rema

nd, which included prepa

ration of the second application for attorney s’ fee s. The district court awa

rded Fe rron an additional $13,371.04 in attorney s’ fee s and $1,178.04 in costs incurre d in O’Brien , and $1,095.65 in costs for the first appe al. Both sides a ppeale d. 5

II. LAW & ANALYSIS A di strict court’s awar d of attorney s’ fees and the determination of t he am o u n t o f fe es are revie wed 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 reve rse only if we are firmly convince d that the trial court made

When added to the previous aw ard of $6,024.94, the court awa rded Fe rron a total of 5 $20,691.63 in fee s and expenses. - 6 -Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al.

a mistake, for instance, by relying on clea rly err oneous finding s of fac t, by improperly applying the law, or by using an err oneous leg al standard. Tucker v. City of Fairfield , 398 F.3d 457, 461 (6th Cir. 2005). We examine in turn eac h of the thre e ca teg ories of f

ees f or which F err on soug ht rec overy . A. F ees Incurr ed in O’Brien I n its attempt to comply with our direc tive to provide adequately detailed billing rec ords on

rema nd, Fe rron submitt ed to the district court the s am e i n v oice that acc ompanied its initial application for

fee s. The district cour

t noted that Fe rron ha d
not amende d the actua l I nvoice to include only those time entries that direc tly benef it [Appellants]

. Rather, [Ferr on] has cre ated a 124-pag e Index that is derive d from the orig inal I nvoice. I t essentially cuts a few lines from the I nvoice and randomly discounts a few entries, but still includes numerous entries that do not even remotely benef it [Appellants]

. . . . The Index does not further cl arify [t he inadequa cies previously identified in the Invoice], but rathe r is just deriva tive of what appea

rs on the I nvoice. The Court is there fore unable to deter mine the exact amount of attorney s’ fe es that bene fitted [Appellants] as instructed by the Six th Circuit. . . The Court finds that [Ferr on’s] I n v o i ce lacks sufficie nt detail to revie w the rea sonablene ss of the hours expended that benef it [Appellants]

. Fu rt h er , the interming ling of the time entries, in combi n at i o n with the lack of detail, make it impossibl e to distinguish the tasks within eac h entry that benef

it [ Appellants]. The di s t ri ct co u rt acknow ledg ed that Fe rron had “dele ted a few entries as not benef itting the Dellarussiani Plaintiffs,” but found that it had “not near ly excluded enoug h.” For instance, Fe rron soug ht to rec over time spent on unsucce ssful motions in O’Brien and on motions that perta ined only
to the claims of O’Brien plaintiffs who wer e not parties to the instant case . Additionally , the court reje cted as inadequa

te Fe rron’ s “gene ric statement[s] that the work perf ormed benef

its the Dellarussiani Plaintiffs,” as these statements failed to descr ibe the work that Fe rron actua lly

- 7 -Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. p er fo rm ed. The court conclude d that the non-spec ific nature of Fe rron’ s billing entries made i t impossibl e to simply “subtrac t the number of hours that did not benef it the Dellarussiani Plaintiffs.” Thus, the court fashioned what it deter mined to be an appropr iate formula for calc ulating the fee s Fe rron could rec over for work perf ormed in O’Brien

. T h e court started with the assumption “that the g ener al descr iptions on the I nvoice wer e for all 38 orig inal O’Brien plaintiffs.” Considering that Appellants constituted six of the thirty -eig ht O’Brien plaintiffs, the court order ed a proportional

awa rd—six teen pe rce nt, or roug hly six thirty -eig hths—of the O’Brien fee s sought. H aving revie wed the invoice and the Index, we ag ree with the district court’s char acte r iz a ti o n of Fe rron’ s submissi ons. Eac h billing entry on the thirty -one pag e O’Brien invoice is supplemented by a cor responding“explanation” in the Index. W e note, initially , that the Index does not provide ad d i t i o n al ev idence , as we reque sted, to support the fee s Fe rron soug ht in the O’Brien matter. R at h er , as EDE pointed out to the district court, the Index contains Fe rron’ s arguments , whi ch attempt to char acte rize various billing entries in way s that show at least a tang ential relationship to the claims of Appe llants in the instant case. The g ener ic descriptions in the I ndex, howeve r, shed littl e or no light on the particula r work that eac h billing entry repr esents. We ag ree with the district court, therefor e, that it is impossibl e to deter mine if or how the work re p re s en t ed b y those billing entries further ed t h e cl aims of Appellants, or even if the amount of time billed for eac h entry is

rea sonable. Moreove r, g iven that there is no supporting documentation to substantiate Fe rron’ s attempt to supplement vague descr iptions of work perf ormed as much as five y ear s ago, we are skeptical a

bout the reliability

of the e x planations in the Index.

- 8 -Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. Despite these defic iencies, and consonant with our conclusion that the FL SA was not an absolute bar to the rec o v er y o f s o m e portion of the fee s g ener ated in O’Brien , the district court endea vored to awa

rd Fe rron what it deter

mined to be a rea sonable proportion of those fee s. I f Fe rron believed it was entitl ed to rec over a g reater fee a war d, it was incumbent upon the firm to produce adequate proof that the fee s soug ht specific ally benef itted Appellants. Fe rron’ s failure to do so was to its detriment. The district court conclude d that the evidenc e Fe rron prese nted was inadequate to justify the fee s soug ht. The court considere d the evidenc e befor e it and articulated a logic al rationale for its ca lculation of fe es. This was not an a buse of discr etion. W e l i k ewise reje ct EDE’s argument that the district court err ed in awa rding any fee s for Fe rron’ s wor k i n O’Brien

. EDE contends that the district court “wa s require d to awa rd fee s only wher e there was a specific showing of benef it to [Appellants] ,” and points out that the district court’s order repe atedly noted t hat Ferron’ s I ndex did not make such a showing

. There fore , EDE arg ues, “upon the district court’s clea r conclusion that it was unable to deter mine the amount of attorney s’ fee s that related to [Appellants] , it should have denied [Ferr on’s] application in its entirety , and its

awa rd of f ees c ontrary

to this C ourt’s direc tive was a n abuse of

discretion.” We disagree . When deter

mining a rea sonable attorney s’ fee , courts consider a my riad of fac tors “in light of the cong ressional policy underlying the substantive portions of the statute providing for the awa rd of fee s.” United Slate, Tile & Composition Roofers, Damp and W aterproof W

orkers Ass’n, Local 307 v. G & M Roofing and Sheet Me t a l Co. , 732 F.2d 495, 501 (6th Cir. 1984). The FL SA was

enac ted to “eliminate labor conditions detrimental to the maintenanc e of the minimum standard [of] living for worke rs.” Id. (interna l quotations omitted). The availability of attorney s’ fee s under the - 9 -Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. FL SA ref lects the cong ressional i n t en t that these policies be vindicated and that worke rs have eff ective a cce ss to the judicial proce ss. Id. at 502. I t is true that we cautioned Fe rron that it could not rec over O’Brien fee s absen t a specific showing of benef

it to Appellants. Howeve r, we also acknow ledg ed “[t] he rea lity

. . . that discovery

conce rning the Dellarussiani plaintiffs’ claims took pl ace in O’Brien ,” and it g oes without saying that Fe rron expended time and resour ces and incurred fe es throug hout the discovery proce ss. I nasmuch as these eff

orts ultimately contributed to the judgme nt in Appellants’ favor —albeit, pursuant to EDE’s Offe r—there undeniably was some benefit to App el l ants

. To prec lude Fe rron from rec overing any of its discovery -re lated fee s and expenses in the instant matter would not further the cong ressional policy underlying the FL SA and its provision for att o rney s’ fee s for preva iling plaintiffs. I n light of these considerations, t he district cour t’s awa rd of a rea sonable propor

tion of O’Brien fee s was not an a buse of discr etion. B. Fe es Incurre d on Ap peal of the Distr ict Court ’s F irst Order Fe rron a lso argues that t he dis trict court erre d in declining to awa rd it fee s “in prosec uting the Plaintiffs’ succe ssful appea l” of t h e d i s t ri ct court’s first order

. In the appea l to which Fe rron ref ers, Appellants challeng ed the district c ourt’s entry of judg ment on Counts One and Two of the complaint, the g rant of summary judgme nt in favor of EDE on Count Three , and the amount of the attorney s’ fee awa

rd. On appea l, we upheld the district court’s dispositi on of Counts One and Two 6

I n the same appea l, counsel also ch al l en ged sever al of the district court’s ruling s in 6 O’Brien

. Howeve r, to the extent that any of those challeng es we re suc cessf ul, the y do not be ar on our analy sis of the prese nt issue. For the purposes of the i n s tant case , we consider only whether Appellants we re suc cessf ul in their appea l of the district court’ s rulings in Dellarussiani

.

- 10 -Nos. 10-3836/10-3901

Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. in acc ordanc e with the Offe r of J udg ment. We also upheld the district court’s summary dispositi on of C ount Three in favor of EDE. In light of our reading of t he FL SA, howeve r, we re m an ded the issue of attorney s’ fee s to the district court, admonishing Fe rron to prese nt billing rec o r d s s u f f ic iently detailed to allow the c ourt to calc ulate an a ppropriate awa

rd. Be cause we aff

irmed its dispositi on of the substantive p o rt i o n s o f Appellants’ claims, the district court conclude d that Appellants wer e not “pre vailing parties” on appea l—at least, not as that phrase is commonly understood. Fe rron was only succe ssful in secur ing a second chanc e to submit adequate bi lling records so the c ourt could dete rmine an a ppropriate fee awa

rd. The district court deter mined that this was not an outcome that justified an awa rd of attorney s’ fee s for a “succ essful appea l” within the meaning of the FL SA. Howeve r, acknow ledg ing that Fe rron was at least partially

succe ssful on the issue of atto rn ey s’ fee s, the district court awa rded Fe rron its costs incurre d on appea l. We find this resolution reasonable, a nd not an abuse of discre tion. C. F ees Incurr ed on Rem and Finally , Fe rron argues that it was entitled to rec over fee s and costs incurre d in “prose cuting Appellants’ claims on rema nd.” On rema

nd, howeve r, Fe rron was no longe r prosec uting the claims of the Dellarussiani plaintiffs. The onl y t as k wi th which Fe rron was char g ed on rema nd was the prepa ration and submissi on of adequate billing rec ords to ref lect the ti m e b i l l ed in O’Brien that specific ally benef

itted the Dellarussiani plaintiffs. The district court proper ly conclude d that Fe rron was not entitled to collect fees incurred as a result of i ts own i n ad eq u ate billing practices. As the
court noted, these fee s could have bee n a voided entirely had the orig inal application been sufficie ntly

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Dellarussiani, et al., v. Ed Donnelly Ente rprises, Inc., e t al. detailed. Thus, Fe rron is not entitled to a statutory awa rd of fee s for this a dditional expenditure of time and ef

fort.

III. CONCLUSION For the fore g oing r easons, the district c ourt’s aw ard of attorney s’ fe es is AF F IRMED

.

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