                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 13a0097n.06

                                      Nos. 11-1508, 11-1690

                           UNITED STATES COURT OF APPEALS                                   FILED
                                FOR THE SIXTH CIRCUIT                                   Jan 29, 2013
                                                                                  DEBORAH S. HUNT, Clerk
JONATHAN BELL,                                          )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
PREFIX, INCORPORATED,                                   )    THE EASTERN DISTRICT OF
                                                        )    MICHIGAN
       Defendant-Appellee.                              )
                                                        )


Before: SILER and MOORE, Circuit Judges; VAN TATENHOVE, District Judge.*

       SILER, Circuit Judge. Following a favorable jury verdict in his Family and Medical Leave

Act (FMLA) case against defendant Prefix, Incorporated, plaintiff Jonathan Bell appeals the district

court’s partial grant and partial denial of his request for attorneys’ fees and motion for costs and

expenses. Additionally, Bell appeals the district court’s denial of his motion for sanctions and seeks

a remand for determination of “fees for fees” based on his efforts to secure the correct attorneys’

fees, costs, and expenses. For the following reasons, we AFFIRM the district court’s judgment.

                                                  I.

       In 2005, Bell filed the instant action against Prefix, alleging violations of the FMLA as well

as retaliation and wrongful discharge under state law. Prefix filed a motion to dismiss under Rule




       *
          The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

12(b)(6) or, in the alternative, for summary judgment. The motion was denied. Then Prefix moved

for summary judgment and the district court granted Prefix’s motion. On appeal, we reversed.

       On remand, Prefix moved again for summary judgment, this time challenging Bell’s state-

law claims. Bell moved for default judgment as to liability based on Prefix’s failure to answer the

complaint. The district court denied this motion and allowed Prefix to file its answer with

affirmative defenses. Later, the district court granted the defendant’s motion for summary judgment

as to Count III of the complaint and damages for emotional distress.

       Bell then filed a motion to strike defendant’s affirmative defenses with prejudice and to

impose sanctions for frivolous and vexatious pleading. Prefix agreed to withdraw two of its

affirmative defenses in response. The district court determined that sanctions were not warranted

and refused to strike any of the remaining affirmative defenses.

       In 2009, at trial, the jury returned a verdict in favor of Bell and awarded him $14,563.00 in

damages. The next month, Bell moved under Rule 54(d) and 29 U.S.C. § 2617(a)(3) for attorneys’

fees and costs in the amount of $512,953.43. Bell requested, in the alternative, that the court grant

his motion for sanctions pursuant to Rule 11 or section 1927, seeking a reconsideration of the court’s

earlier ruling. The district court partially granted and partially denied the motion and ordered Bell

to tender documentation of his reasonable costs. As to attorneys’ fees, the court awarded $101,600

for 508 hours of work at $200 per hour to Bell’s counsel. However, the district court found Bell’s

original requests for costs to be improper and ordered him to prepare a revised bill consistent with

King v. Gowdy, 268 F. App’x 389 (6th Cir. 2008), and 28 U.S.C. § 1920. The court again denied

Bell’s request for sanctions.

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Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

       Bell tendered a bill of costs for $30,060.68. Prefix objected to the request and asked the

court to reduce the total bill of costs to $1,170. The district court partially granted and partially

denied Bell’s request, ultimately awarding $3,171.52.

                                                  II.

       We review a district court’s award of attorney fees under the abuse-of-discretion standard.

Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008). We review associated

factual findings under the clear-error standard. Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d

989, 998 (6th Cir. 2012). Bell argues that the court failed to apply the correct standard as set forth

in Perdue v. Kenny A., 130 S. Ct. 1662 (2010); violated the Due Process Clause by reducing the

attorneys’ fees by 80% without a hearing; and made and relied on clearly erroneous findings of fact

by contradicting uncontroverted affidavits.

                                                A.

       As to the standard, the district court did not abuse its discretion. Bell contends that the

Supreme Court’s Perdue decision specifically rejected any application of a test set out in Johnson

v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Indeed, in holding that the lodestar

amount properly accounts for exceptional attorney performance in most circumstances, the Supreme

Court observed that the Johnson test provided limited guidance to district courts and could lead to

arbitrary results. However, before applying the twelve-factor Johnson test in this circuit, we evaluate

attorneys’ fees by calculating the lodestar amount – “multiplying the reasonable number of hours

billed by a reasonable billing rate.” Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999). Then, the

court may adjust the lodestar amount based on the twelve factors of the Johnson test. Id. The

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Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

Supreme Court made no comment about such supplemental reliance on the Johnson test and instead

simply emphasized that the lodestar amount constitutes the best available mechanism for calculating

attorneys’ fees.

       In the instant action, the district court repeatedly emphasized the lodestar amount by focusing

its calculations on ascertaining a reasonable fee and a reasonable number of hours billed. It thus

evaluated attorneys’ fees in accordance with Sixth Circuit precedent not contradicted by Perdue.

Therefore, we find no abuse of discretion.

                                              B.

      Bell asserts a property interest in a more robust awarding of attorneys’ fees and contends no

individual can be deprived of such an interest without a hearing under the Due Process Clause. Both

legally and factually, Bell’s argument lacks merit.

      Legally, as the Supreme Court has observed, “[a] request for attorney’s fees should not result

in a second major litigation.” Hensley v. Eckhart, 461 U.S. 424, 437 (1983). Bell relies on Mathews

v. Eldridge, 424 U.S. 319 (1979), and courts have cited Mathews beyond its disability benefits focus,

including in the context of attorneys’ fees, to delineate when “some form of hearing” may be

required. See, e.g., Rein v. Socialist People’s Libyan Arab Jamahiriya, 568 F.3d 345, 354-55 (2d

Cir. 2009) (addressing disposition of contractually negotiated attorneys’ fees); In re Hancock, 192

F.3d 1083, 1085-86 (7th Cir. 1999) (evaluating allegations of lack of notice and opportunity for

hearing). However, those courts did not require an evidentiary hearing. See Rein, 568 F.3d at 354;

In re Hancock, 192 F.3d at 1086. Ultimately, parties must have had notice of opposing arguments

and an opportunity to present their side of the story, not necessarily an evidentiary hearing. Angelico

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Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 279 (3d Cir. 1999); G.J.B. & Associates v. Singleton, 913

F.2d 824, 830 (10th Cir. 1990); Alizadeh v. Safeway Stores, Inc., 910 F.2d 234, 236 (5th Cir. 1990).

        Factually, Bell’s argument also fails. He made the request for attorneys’ fees, and after a

response by Prefix, he had a full and fair opportunity to reply. Moreover, Bell sought to prompt the

district court to rule on the request based solely on the briefing already completed.

                                                C.

        Finally, the district court did not abuse its discretion by making and relying on clearly

erroneous findings of fact. Bell specifically contends that the court should not have relied on a 2007

State Bar of Michigan survey to define the “reasonable rate” of compensation. Additionally, Bell

asserts that the district court clearly erred by finding the antagonism and protracted litigation in the

case to be the fault of both parties, not just Prefix.

        Bell argues that the delay in receipt of attorneys’ fees should have resulted in a more

substantial award based on a different “reasonable rate.” However, the district court found that

Bell’s attorneys lost at least some of their business by devoting time and attention to the case and

incorporated that finding appropriately into its calculus. Bell additionally contends that Prefix

should have settled the case promptly after his filing of the complaint, instead of mounting any

defense. We find this rather unusual argument to lack merit, where both parties aggressively

litigated their positions.

        Bell further contends that the district court clearly erred by finding that both parties bore

responsibility for the antagonistic and protracted nature of the litigation. However, the record

establishes that Bell advocated antagonistically and that, contrary to his assertions, such antagonism

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Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

was not always linked to inappropriate actions by Prefix or requirements of the district court. The

district court did not clearly err in finding both parties responsible for the antagonism and resulting

protracted litigation.

                                             III.

       Bell appeals from the district court’s order finding that he raised no new arguments for the

imposition of sanctions and denying to impose any. We review the denial of such a motion under

the abuse-of-discretion standard. See Gonzales v. Texaco, Inc., 344 F. App’x 304, 306 (9th Cir.

2009); Brubaker Kitchens, Inc. v. Brown, 280 F. App’x 174, 184 (3d Cir. 2008); Swoopes v. Mayhue,

57 F.3d 1070, at *1 (6th Cir. 1995) (table). Bell simply contends that Prefix’s post-remand conduct

in the case has not been objectively reasonable, including pleading improperly grounded defenses.

Because Bell made the same arguments previously, asserting Prefix’s defenses to be improper, the

motion for reconsideration offered no new basis for imposing sanctions against Prefix. The district

court properly came to this conclusion.

                                             IV.

      Bell argues that the district court abused its discretion by failing to apply the correct standard

to award reasonable out-of-pocket expenses allowable under the FMLA. He asserts that costs and

expenses available to the prevailing party in an FMLA action should not be limited by Rule 54(d)

or 28 U.S.C. § 1920 and seeks a remand for a proper determination of his costs and expenses under

the correct standard.

       We review denial of costs and expenses under the abuse-of-discretion standard. Andretti v.

Borla Performance Indus., Inc., 426 F.3d 824, 836 (6th Cir. 2005). A district court acts within its

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Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

discretion in denying “the shifting of costs when the prevailing party’s expenditures are unreasonably

large, when the prevailing party prolonged the litigation or injected unmeritorious issues, in cases

that are close and difficult, and where ‘the prevailing party’s recovery is so insignificant that the

judgment amounts to a victory for the defendant.’” Id. (quoting White & White, Inc. v. Am. Hosp.

Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986) (internal quotation marks omitted)). However, the

FMLA provides that “[t]he court shall, in addition to any judgment awarded to the plaintiff, allow

. . . other costs of the action to be paid by the defendant.” 29 U.S.C. § 2617(a)(3).

      Neither the Supreme Court nor circuit courts have addressed whether Rule 54(d) and section

1920 limit the FMLA’s “other costs” language, but district courts have consistently applied the rule

and statute in making cost awards to prevailing parties in FMLA cases. See, e.g., Lenon v. Starbucks

Corp., No. 3:11-CV-1085-BR, 2012 WL 1377042, at *2, 7 (D. Or. Apr. 19, 2012) (slip copy);

Garcia v. Renaissance Global Logistics, LLC, No. 10-13122, 2012 WL 1130543, at *5 (E.D. Mich.

Apr. 4, 2012) (slip copy); DuChateau v. Camp Dresser & McKee, Inc., No. 10-60712-CIV, 2012 WL

1069166, at *1-3 (S.D. Fla. Mar. 29, 2012) (slip copy). None of the three cases cited by Bell

suggests a different result under the FMLA “other costs” statutory language and the facts of the

instant case. See Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 969 (10th Cir. 2002);

Herold v. Hajoca Corp., 864 F.2d 317, 323 (4th Cir. 1988); Reichman v. Bonsignore, Brignati &

Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987). In point of fact, only one of the three cases relied

on by Bell even involves an FMLA claim.

       In Smith, upon which Bell heavily relies, the Tenth Circuit addressed an argument that the

FMLA’s “other costs” language should be considered analogous to the costs provision of the Fair

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Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

Labor Standards Act (FLSA). Smith, 298 F.3d at 968-69. Specifically, Smith contended that FMLA

costs may extend beyond the proscriptions of Rule 54(d) and section 1920, but the defendant argued

the costs sought to be merely overhead expenses typically absorbed by law firms and thus not

reimbursable. Id. That court never reached the ultimate issue of statutory interpretation because

Smith failed to detail the out-of-pocket expenses at issue in any way, much less as separate from the

usual overhead expenses absorbed by law firms. Id. at 969. Instead, the court held that, upon

general remand for recalculation of attorneys’ fees and costs, the district court should again deny the

sought out-of-pocket expenses. Id. The instant case reflects the same conceptual problems, so Smith

counsels affirming the district court’s judgment, rather than reversing. Here, Prefix contended that

Bell’s “other costs” mostly constituted typical overhead expenses and should be denied. The district

court agreed, finding the reimbursable costs to be those permitted under section 1920, and ordered

Bell to submit a revised bill of costs. Reviewing the revised submission, the district court discovered

that Bell failed to revise most of the costs requests as directed, but the court still granted some of the

overall costs sought. Such a decision is consistent with Smith.

                                              V.

          Finally, Bell seeks a remand for determination of post-trial attorneys’ fees, costs, and

expenses, including litigation of post-judgment motions before the district court and the instant

appeals. He argues that the fees, costs, and expenses should be awarded as under a “fees for fees”

logic. However, the record reflects no “fees for fees” request by Bell before the district court.

Without a decision from the district court, we have no jurisdiction to evaluate any part of the “fees

for fees” request associated with trial-court advocacy. See 28 U.S.C. § 1291. Additionally, because

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Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

we affirm the district court in all respects, Federal Rule of Appellate Procedure 39 presupposes no

award of costs to Bell. See Fed. R. App. P. 39(a)(1).

       AFFIRMED.




                                               -9-
Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

        KAREN NELSON MOORE, Circuit Judge, dissenting. Although district courts have

discretion in calculating fee awards, this discretion is not absolute. Adcock-Ladd v. Sec’y of

Treasury, 227 F.3d 343, 349 (6th Cir. 2000). “Among other things, the district court ‘must provide

a clear and concise explanation of its reasons for the fee award.’” Id. (quoting Hadix v. Johnson, 65

F.3d 532, 535 (6th Cir. 1995)). As to both the hours and the rate that the district court used its

calculation, the attorney fee award in this case was unreasonable.

        In selecting an hourly rate based on 2007 figures, the district court failed to consider the fact

that this litigation lasted until 2009. As we have held, “the district court has the discretion to choose

either current or historical rates so long as it explains how the decision comports with the ultimate

goals of awarding reasonable fees.” Gonter v. Hunt Valve Co., 510 F.3d 610, 617 (6th Cir. 2007).

The district court gave no such explanation in this case. The district court assumed that Bell’s

counsel had to turn down other business opportunities due to the length of Bell’s case, but this

passing observation was part of the opinion’s analysis of whether to enhance or reduce the ultimate

lodestar amount, not what hourly rate to apply. Moreover, opportunity costs are not the only

consideration in selecting a reasonable rate in instances of delayed payment; the time value of

money, for example, is also a factor.

        The district court cut counsel’s requested hours from 1618 hours to 508 hours, a reduction

of approximately seventy percent. Although a district court can make properly supported across-the-

board reductions in the number of hours in the requested fee award, Prefix has not identified, and

I have not found, any case in which the reduction was as high as the seventy-percent cut in this case.

Because the district court identified some troubling entries and practices in the fee request, a

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Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

reduction of some degree was not an abuse of discretion. Such a drastic cut necessitates a more

thorough and specific explanation, however.

       The district court relied heavily on a comparison with the unrelated case of Barrett v. Detroit

Heading, LLC, No. 05-72341, 2007 WL 1655434 (E.D. Mich. June 7, 2007), aff’d on other grounds,

311 F. App’x 779 (6th Cir. 2009); No. 05-72341, 2009 WL 3465366 (E.D. Mich. Oct. 23, 2009), to

determine an appropriate number of hours in this case. We never reviewed, let alone approved, the

fee award in Barrett. Although the district court identified some similarities and some differences

between Barrett and this case, it did not address other relevant points of comparison. The district

court did not state, for example, whether the motions practice in Barrett was as extensive as in this

case.1 Although we have held that the hourly rates used to calculate fee awards in prior cases can

sometimes be relevant, B & G Mining, Inc. v. Dir., Office of Workers’ Comp. Programs, 522 F.3d

657, 664 (6th Cir. 2008), neither the district court nor Prefix cited any authority for the proposition

that a “reasonable hours” determination from a prior case should inform the award in a subsequent

case. Moreover, having a district court rely on the fees that it awarded in one previous case in

calculating other awards in other cases could lead to a self-perpetuating cycle in which any requested



       1
         On a related point, the district court found that the extended scope of this litigation was
attributable to both parties, but did not make any comparison of the number of hours worked by
counsel for each side when determining how many of Bell’s counsel’s hours were reasonable.
Counsel for Prefix sought approximately $56,500 in attorney fees for the pre-appeal period in this
case; for the same period, Bell’s counsel sought approximately $68,500. A fee award need not
exactly parallel the amount charged by opposing counsel, but that amount is not irrelevant.
Moreover, the fact that Bell’s counsel may have expended some time filing and arguing unnecessary
motions does not mean that they should not be compensated for time spent responding to equally
unnecessary motions filed by Prefix.

                                                - 11 -
Nos. 11-1508, 11-1690
Bell v. Prefix, Inc.

amount that is greater than the previous award is rejected as unreasonable. The district court must

instead evaluate the circumstances of the particular case before it.

       Finally, the district court did not explain why it refused to award costs for the expert fees of

Robert Zimmerman. The FMLA expressly provides for recovery of “reasonable expert witness

fees,” 29 U.S.C. § 2617(a)(3). The fact that the district court denied Prefix’s motion in limine to

exclude Zimmerman’s testimony suggests that fees incurred in procuring that testimony were

reasonable, and thus taxable. Because the district court did not identify any reason that such costs

were unreasonable, the court should have included them in the cost award.




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