                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0262n.06

                                     Nos. 10-5704, 10-5741

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
ROBERT LEWIS BAAR,                                )                             Mar 07, 2012
                                                  )                       LEONARD GREEN, Clerk
       Plaintiff-Appellant Cross-Appellee,        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
JEFFERSON COUNTY BOARD OF                         )    WESTERN DISTRICT OF KENTUCKY
EDUCATION; STEPHEN W. DAESCHNER;                  )
CAROLYN MEREDITH; MELISSA PAYNE;                  )
MARSHA DOHN; JAMES JURY,                          )                  OPINION
                                                  )
       Defendants-Appellees Cross-Appellants.     )



BEFORE: COOK, WHITE, and DONALD, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. This is the second time this case is before us. On

Robert Baar’s first appeal, this court reversed the district court’s grant of summary judgment to

Defendants on his claim that Defendant Jefferson County Board of Education (JCBE) and the

individual Defendants1 violated the First Amendment by banning his attendance at meetings of a

local club for chemistry teachers, the Louisville Area Chemistry Alliance (LACA), and affirmed the

grant of summary judgment to Defendants on his remaining constitutional claims brought under 42

U.S.C. §§ 1983 and 1985. Baar v. Jefferson Cnty. Bd. of Educ., 311 F. App’x 817 (6th Cir. 2009).


       1
        Defendant Daeschner is the former Superintendent of the Jefferson County Public Schools
(JCPS), Meredith is JCPS’ Director of Employee Relations, Dohn is the principal of Jeffersontown
High School, Payne is a JCPS science teacher, and Jury is the principal of Ballard High School. See
Barr, 686 F. Supp. 2d at 701.
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Defendants then lifted the ban on Baar’s attendance at LACA meetings. On remand, the district

court entered an order enjoining Defendants from prohibiting Baar’s participation in LACA or

similar groups and, on Defendants’ motion for summary judgment, dismissed Baar’s official capacity

claims and held that the individual defendants were entitled to qualified immunity. Baar v. Jefferson

Cnty. Bd. of Educ., 686 F. Supp. 2d 699 (W.D. Ky. 2010). The district court denied Defendants’

motion for costs and attorney fees and awarded Baar costs and attorney fees in an amount less than

requested. Baar v. Jefferson Cnty. Bd. of Educ., No. 3:06-CV-75-H, 2010 WL 1949667 (W.D. Ky.

May 13, 2010).

       In this second appeal, Baar challenges the district court’s grant of qualified immunity to

Defendants Jury and Meredith, and dismissal of his official-capacity claims against Defendants

JCBE and Daeschner. Defendants cross-appeal the denial of their motion for costs and the award

of attorney fees and costs to Baar. We AFFIRM in all respects.

                                                  I

       The background is amply set forth in our decision in the first appeal:2

               On February 7, 2002, Baar, a public-school teacher in Jefferson County,
       Kentucky, sent a letter to one of his colleagues, Missy Payne, which spoke of
       increasing “danger” to Payne and her family. Payne had received several
       “inappropriate letters” from Baar before, JA 60, so she told the principal about this
       one. On February 8, after conferring with the Jefferson County Board of Education,
       the principal held a meeting with Baar, where Baar agreed to sign a “Memorandum
       of Understanding” requiring him “to discontinue communication in any form, verbal
       or written, with Missy Payne,” JA 46. In June 2002, after further investigation, the
       principal issued a written reprimand to Baar for his repeated “inappropriate


       2
       The broader procedural and factual background is set forth in the district court’s opinion on
remand and is not repeated here. See Baar, 686 F. Supp. 2d at 702-03.

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        communications” with Payne. JA 60. The reprimand informed Baar that he would
        be transferred to another school and reiterated that he should have “no further contact
        with Ms. Payne or her family.” JA 60.

                In response, Baar filed a grievance against the school board, which the board
        and the teachers’ union eventually settled. While the settlement agreement required
        the board to remove the June 2002 written reprimand from Baar’s personnel file, it
        said nothing about the February 2002 “Memorandum of Understanding.” Baar soon
        began teaching at another Jefferson County high school.

                For some time, it looked like the problem had been resolved. In September
        2005, however, Baar sent Payne the following email: “Count me in for the LACA
        meeting on the 29th. I will bring the money for the dues to the meeting. Bob.” JA
        55. LACA stands for the “Louisville Area Chemistry Alliance,” a professional
        organization of chemistry teachers that Baar co-founded, and one in which he
        actively participated from 1992 to 2001 but had no involvement after 2001. As Baar
        explained it, he sent the email because he wanted to attend an upcoming LACA
        meeting and because Payne was listed as the RSVP-contact person.

                 The email led to more discipline. In December 2005, the principal issued
        Baar a written reprimand, which: (1) disciplined him for violating the February 2002
        “Memorandum of Understanding”; (2) instructed him not to communicate with
        Payne “in any form or fashion”; and (3) prohibited him from “represent [ing] ... the
        Jefferson County Public Schools at any [LACA] meeting.” JA 50. The third
        restriction, the parties agree, permanently prohibits Baar from attending any future
        LACA meetings.

                In February 2006, Baar filed this lawsuit in federal court against Payne, the
        Jefferson County Board of Education, the superintendent, two other school-board
        officials and two principals (all told, the “school board”). Seeking relief under 42
        U.S.C. §§ 1983 and 1985, he claimed (as relevant here) that the school board had
        violated his . . . First Amendment rights.

Baar, 311 F. App’x at 819-20.
                                                   II

        We first address Baar’s argument that Defendants waived the defense of qualified immunity

by arguing it for the first time after his first appeal to this court. There is no dispute that Defendants

pleaded qualified immunity as a defense in their answer to Baar’s original complaint.

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                                                   A

        [I]mmunity, whether qualified or absolute, is an affirmative defense which must be
        affirmatively pleaded . . . . [I]t follows that failure to do so can work a waiver of the
        defense. And since certain of the interests protected by the doctrines of immunity are
        conceptually distinct, and all of them are procedurally distinct, the failure to plead
        immunity may, at different stages of the litigation, work either a partial or complete
        waiver. Hence, we conceive it possible that one might assert immunity as an
        affirmative defense to the complaint and thus as an affirmative defense to ultimate
        liability without putting in issue his or her right to be free of subjection to trial or,
        before that, to the burdens of discovery.

Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir. 1986). The defense is subject to the same

procedural rules as other defenses,” thus a district court has discretion to find a waiver of qualified

immunity “if a defendant fails to assert the defense within time limits set by the court of if the court

otherwise finds that a defendant has failed to exercise due diligence or has asserted the defense for

dilatory purposes.” English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994).

        Such a waiver, however, need not waive the defense for all purposes but would
        generally only waive the defense for the state at which the defense should have been
        asserted. Thus, for example, a defendant who fails to timely assert the defense prior
        to discovery may waive the right to avoid discovery but may nonetheless raise the
        issue after discovery on summary judgment or at trial.

Id.
                                                   B

        The district court explained its conclusion that Defendants did not waive the defense of

qualified immunity stating, inter alia:

        the Court must determine whether Defendants have waived the defense either by
        failing to assert it or by waiting too long to file a motion to dismiss on this ground.
        Immunity must be affirmatively pleaded, English v. Dyke, 23 F.3d 1086, 1090 (6th
        Cir.1994), and Defendants have done so [i]n their answer to the original complaint
        . . . Merely pleading the defense, however, may not end Defendants’ responsibilities.


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               The complaint was filed in 2006; extensive discovery followed; summary
       judgment was granted; and then reversal [sic reversed] on appeal. During this entire
       time, Defendants did not move for dismissal on the grounds of qualified immunity.
       Only now have Defendants raised the defense by motion. Thus, having obtained a
       judgment from the Sixth Circuit that his rights may have been violated, Plaintiff now
       faces a qualified immunity motion which will either bar his claim or further delay it
       through interlocutory appeal. See Mitchell v. Forsyth, 472 U.S. 511, 530 [] (1985)
       (holding that the denial of a claim of qualified immunity is an appealable “final
       decision” within the meaning of 28 U.S.C. 1291).

                The Sixth Circuit has not comprehensively addressed the circumstances under
       which defendants might actually waive their qualified immunity defense. However,
       several Sixth Circuit panels have held generally that a “waiver” of qualified
       immunity at one stage of the litigation does not necessarily constitute a waiver for all
       future stages. English, 23 F.3d at 1090 (citing Kennedy v. City of Cleveland, 797
       F.2d 297, 300-01 (6th Cir. 1986)); Abel v. Harp, 278 Fed. Appx. 642, 648 (6th Cir.
       2008) (finding that the defendant did not waive qualified immunity by failing to
       assert it in his pre-answer motion to dismiss that was granted and then asserting it for
       the first time on remand). See also Brown v. Crowley, 312 F.3d 782 (6th Cir. 2002).
       ....
                Our case originally contained multiple claims. Qualified immunity may not
       have applied to all of them. Defendants raised the defense in their answer but not in
       their first motion for summary judgment. At this stage in the proceedings and after
       the first appeal, the issue is much narrower. There is no reason to suspect that
       Defendants’ motives were improper, and . . . the circumstances here are not unusual.
       The Sixth Circuit appears to give broad latitude for defendants to raise qualified
       immunity even after dispositive motions and appeals have proceeded for some time.

              Therefore, this Court concludes that Defendants may raise this defense by
       motion at this time.

Baar, 686 F. Supp. 2d at 706-707.

                                                  C

       Baar acknowledges that the district court was “probably correct” to hold that the Sixth Circuit

appears to give broad latitude for defendants to raise qualified immunity even after dispositive

motions and appeals have proceeded for some time, and cites no authority contrary to that applied


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by the district court, but asserts that this case “would be a fit vehicle” for this court to join the several

circuit courts that hold that failure to assert qualified immunity until after an appeal constitutes a

waiver of the defense.

        We conclude that the district court did not abuse its discretion by permitting Defendants to

assert the defense of qualified immunity after Baar’s initial appeal to this court. See Kennedy, 797

F.2d at 300; English, 23 F.3d at 1090. Baar’s amended complaint asserted numerous claims based

on disputed facts. Defendants’ answer to the original complaint asserted immunity as a defense. The

district court properly noted that had Defendants raised the qualified-immunity defense earlier, it

likely would not have applied to all Barr’s claims. On remand to the district court following the first

appeal, the issues were vastly narrowed and the facts largely uncontested. Baar does not assert that

Defendants had improper motives in asserting the defense following the initial appeal to this court.

In sum, Barr has not provided evidence that this is the unusual case where the district court should

have deemed the defense waived. See English, 23 F.3d at 1090 n.1 (“Conceivably, a plaintiff may

be so prejudiced by a defendant’s failure to raise the defense, especially when the delay was

intentional, that the trial court may decide the defense is completely waived.”)

                                                    III

        Baar next argues that this court in the first appeal determined that his First Amendment claim

passed the Pickering3 balancing test, that that determination is the law of the case, and that the

district court was thus precluded on remand from reaching the issue of qualified immunity.



        3
            Pickering v. Board of Education, 391 U.S. 563 (1968).

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                                                  A

       A bit of background is necessary. The constitutionality of restrictions on government

employee speech is determined under Pickering v. Board of Education, 391 U.S. 563 (1968). There,

the Supreme Court recognized that “the State has interests as an employer in regulating the speech

of its employees that differ significantly from those it possesses in connection with regulation of the

speech of the citizenry in general.” Id. at 568. Once a court determines that the employee’s speech

relates to a matter of public concern, the court must balance the employee’s interests, as a citizen,

in commenting on matters of public concern against the State’s interest, as an employer, in

promoting the efficiency of the public services it performs through its employees. Id.; see also

Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006).

       Defendants argued in their first motion for summary judgment that Baar’s attendance at

LACA meetings was not constitutionally protected because it involved matters of personal interest,

not public concern, and that even if it was constitutionally protected, JCBE’s interests in maintaining

an efficient and harmonious educational environment clearly outweighed Baar’s interest in attending

the meetings. R. 16 at 19-20. The district court granted Defendants’ motion, finding as a matter of

law that Baar’s association with LACA did not involve matters of public concern. Thus, the district

court found it unnecessary to apply Pickering balancing. Baar, 686 F. Supp. 2d at 703.

       In the first appeal, this court determined that Baar’s association with LACA did involve a

matter of public concern, and concluded that “[a]t this stage of the case, the claim . . . satisfies

Pickering balancing:”



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       Prohibition on Baar attending any future LACA meetings. The school board’s ban
       on Baar’s attendance at all future LACA meetings . . . [is] a direct restriction not on
       what Baar can say but on whom he can associate with-and apparently for all time.
       Although the same framework governs freedom-of-association and free-speech
       claims, see Akers, 352 F.3d at 1036; Boals v. Gray, 775 F.2d 686, 692 (6th Cir.1985),
       the breadth and timeless nature of this restriction permits Baar to take this claim to
       a jury.

               Baar’s association with LACA involves a matter of public concern. LACA
       is “an independent group of science teachers from private schools, public schools,
       [and] parochial schools,” JA 202, and its stated goal is the improvement of science
       education in the schools, something that is “a subject of general interest and of value
       and concern to the public at the time of publication.” City of San Diego, 543 U.S. at
       84, 125 S.Ct. 521; see also Leary v. Daeschner (Leary I), 228 F.3d 729, 737 (6th
       Cir.2000) (“The subject [ ] of ... the appropriate educational program to be
       implemented [is] undoubtedly [a] matter[ ] of concern to the community at large.”).
       The services provided by LACA-holding professional-development classes,
       developing safety protocols for in-classroom lab experiments and providing a forum
       to discuss the science curriculum, textbooks, lesson plans, effective teaching
       techniques and ways to improve science education-have value not only to chemistry
       teachers (such as Baar) but to the general public as well.

                It may be true, as the school board points out, that LACA is not devoted to
       criticizing the school board’s implementation of the science curriculum or to bringing
       to light official wrongdoing. But while speech that attacks policy decisions or that
       exposes public malfeasance represent quintessential “examples of speech that would
       involve matters of public concern,” Hughes v. Region VII Area Agency on Aging, 542
       F.3d 169, 182 (6th Cir.2008), they do not make up the universe of protected speech.
       Also included is speech on “issues of community importance,” Leary II, 349 F.3d at
       900, that can “be fairly considered as relating to [a] matter of political, social or other
       concern to the community,” Connick, 461 U.S. at 146, 103 S.Ct. 1684.

               At this stage of the case, the claim also satisfies Pickering balancing. Baar
       has a substantial interest in participating in LACA, a group he cofounded, one he
       regularly attended in the past and one designed for the professional development of
       chemistry teachers like him. The organization provides an opportunity for Baar to
       network with other chemistry teachers, to learn how he can do his job more
       effectively and to change science education for the better.

               The school board, we appreciate, also has a substantial interest in curbing
       Baar’s improper communications with Payne, which ran the risk of compromising

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        the school board’s ability to deliver a valuable education in an harassment-free work
        environment. What tips the balance in Baar’s favor is the breadth of the school
        board’s prohibition. The December 2005 directive prohibits Baar from attending any
        LACA meeting for all time, no matter the purpose of the meeting, no matter whether
        Baar plans to talk to Payne there, no matter indeed whether Payne plans to attend the
        meeting or for that matter remains a teacher in the Louisville area. Nothing about
        Baar’s past problems concerns his association with LACA. It is Baar’s
        communications with Payne, not Baar’s association with LACA, that threaten to
        “undermine a legitimate goal or mission” of the school board or “create disharmony
        among co-workers.” Rodgers v. Banks, 344 F.3d 587, 601 (6th Cir.2003) (internal
        quotation marks omitted).

                 No doubt, a prohibition on Baar’s involvement with LACA is one way to
        prevent Baar from communicating with Payne, but it is not the only way and it is not
        a way that comports with Pickering’s admonishment that public employers must
        balance their own interests with the First Amendment rights of their employees.
        Because the school board bears the burden of justifying broader restrictions on
        speech with ever-stronger State interests and because the school board has given no
        tenable explanation for such a sweeping and everlasting prohibition, it is not entitled
        to summary judgment on this claim. See NTEU, 513 U.S. at 466-68, 115 S. Ct. 1003;
        Nat'l Treasury Employees Union v. United States, 3 F.3d 1555, 1566 (D.C. Cir.1993)
        (Silberman, J., dissenting from denial of rehearing en banc) (“The breadth, as well
        as the weight, of the governmental restriction is of course relevant to the Pickering
        analysis. When the government burdens substantially more speech than required by
        its asserted interest, then its asserted interest might not outweigh that greater burden.
        After all, the greater the burden on speech, ceteris paribus, the more the Pickering
        balance will point toward invalidation of the rule.”) (internal quotation marks
        omitted).

Baar, 311 F. App’x at 822-23.

                                                   B

        We agree that the determination that Baar’s claim satisfies the Pickering test is the law of the

case. As is evident from this court’s opinion in the first appeal, however, qualified immunity was

not at issue in the first appeal. And, the inquiry whether a government official is entitled to qualified

immunity differs from the inquiry whether a plaintiff’s right to freedom of association was violated


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(the Pickering question). Both inquiries look to whether a constitutionally protected right was

violated, but the qualified-immunity inquiry has an additional requirement – that the court determine

whether that constitutional right was clearly established at the pertinent time such that a reasonable

official would have understood that his behavior violated that right. Shehee v. Luttrell, 199 F.3d

295, 299-300 (6th Cir. 1999). As the district court observed on remand, this court’s determination

in the first appeal that “[a]t this stage of the case, the claim . . . satisfies Pickering balancing,” is not

the same as deciding a motion for summary judgment brought on grounds of qualified immunity.

Baar, 686 F. Supp. 2d at 712.

        Because qualified immunity was not at issue in the first appeal, this court did not address

whether, given the state of the law at the time, a reasonable official would have known that his

behavior violated Baar’s First Amendment rights. The district court was thus not precluded from

considering the issue of qualified immunity on remand.

                                                     C

        Baar next contends that although in some cases application of the Pickering test to determine

if defendants are entitled to qualified immunity will present a different issue and yield a different

result than application of the Pickering test to determine if a constitutional violation has occurred,

this is not such a case. Baar relies on Williams v. Kennedy, 24 F.3d 1526 (6th Cir. 1994),4 and Stern


        4
         In Williams, the plaintiff, a field office manager who supervised 30 employees for
Kentucky’s Cabinet of Human Resources’ Department for Employment Services (DES), was
demoted for criticizing hiring and promotion practices tied to political patronage. The plaintiff
alleged that superiors told her and other DES office managers that they were expected to hire and
promote the “Governor’s people” for positions under their supervision and that failure to cooperate
would result in “serious consequences.” 24 F.3d at 1530. The district court denied the defendants’

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v. Shouldice, 706 F.2d 742 (6th Cir. 1985),5 in which the application of Pickering demonstrated that

the plaintiffs’ activities were protected not only for the purpose of determining whether a

constitutional violation had occurred, but also for the purpose of determining whether the defendants

were entitled to qualified immunity.

       To be sure, application of the Pickering test informed the qualified immunity inquiry in these

cases. However, neither case suggests that the last step of the immunity inquiry, i.e., determining

whether the law was clearly established such that the defendants would have known that the

plaintiff’s interests in speaking or associating on the matter of public concern outweighed the

government’s interests in efficiency, may be dispensed with if the court finds a violation of a

plaintiff’s First Amendment rights.


motion for summary judgment brought on grounds of qualified immunity. Id. at 1532. This court
affirmed, concluding that the plaintiff’s statements regarded matters of public concern, and “that the
contours of the public employee’s right to be free from adverse employment action on the basis of
protected speech were sufficiently clear in May 1990 and May 1991 (the time of Williams’ removal
and demotion) that a reasonable official would understand that taking such action on the basis of
statements that were critical of political patronage employment practices . . . and other politically
corrupt activities would violate that right.” Williams, 24 F.3d at 1536-37.
       5
          In Stern, this court applied Pickering and found that the plaintiff, a college professor who
claimed that he was denied tenure in retaliation for exercising First Amendment rights, had engaged
in protected speech when he advised a student whom the college had suspended to seek legal advice,
and that the district court should have decided that question in the first instance rather than submit
it to the jury. 706 F.2d at 747-48. The defendants argued that even if the plaintiff’s speech merited
First Amendment protection, they were entitled to qualified immunity because the law in this area
was developing in the early 1970s and they did not violate a clearly established constitutional right.
Id. at 749. Having discussed earlier in the opinion that the record was devoid of evidence that the
plaintiff’s counseling adversely affected the College, id. at 748, this court determined that a
reasonable person should have known in 1970-71 that the plaintiff’s speech was constitutionally
protected under Pickering and thus concluded that the individual defendants were not entitled to
immunity. Id. at 749.

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        Continuing his argument, Barr addresses this controlling inquiry, asserting that it should be

obvious to any reasonable public official that a sweeping and everlasting prohibition on a teacher’s

constitutionally protected association with a club of science teachers would not pass constitutional

muster, and that “[t]his is a case where the obvious and odious nature of the Defendants’ violation

of [his] right of association entitled him to prevail without regard to the imprecision of Pickering

balancing standards.”6 Barr cites the following language in Williams:

                Defendants argue that because particularized balancing is necessary under
        Pickering and its progeny, they are entitled to qualified immunity because the
        contours of a public employee’s free speech rights are unclear. See Benson v.
        Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, 479 U.S. 848 [] (1986).
        Defendants also cite our statement in Meyers v. City of Cincinnati, 934 F.2d 726, 729
        (6th Cir. 1991), referring to the Pickering balancing test as a “somewhat imprecise
        standard.” We agree that in many public employee free speech cases it would be
        unclear to a reasonable official what the outcome of the balancing inquiry should be.
        However, the instant case presents a situation where the employee has spoken out on
        matters of great public concern, and these statements apparently had only minimal
        effect on the efficiency of the office. In other words, this is not a case where the
        imprecision of the standard makes a difference.

Williams, 24 F.3d at 1537. The defendants in Stern similarly argued that because Pickering

“required courts to balance various factors . . . , no person could reasonably predict in a given

situation whether discharging an employee would violate the latter’s first amendment rights.” Stern,

706 F.2d at 749.

        Baar’s argument is not persuasive. Williams stands for the proposition that the inherent

imprecision of the Pickering test itself does not support a finding of qualified immunity but it

recognizes that its application is fact specific. Granted, the district court in the instant case discussed


        6
            Pl.’s Br. at 22.

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“the inherent difficulty in deciding whether a reasonable person would ever know where the

Pickering balancing test would eventually fall in these circumstances,” 686 F. Supp. 2d at 710, but

it did not conclude that Meredith and Jury were entitled to qualified immunity simply because the

outcome of Pickering balancing is difficult to predict. Instead, the district court observed that “the

mere existence of a balancing test does not entitle defendants to qualified immunity,” and proceeded

to analyze pre-2005 cases in order to determine whether the law was so clearly established at that

time such that Meredith and Jury would have known that prohibiting Baar’s attendance at LACA

meetings violated the First Amendment, 686 F. Supp. 2d at 712, as is required of courts when

qualified-immunity is at issue. See Guercio v. Brody, 911 F.2d 1179, 1183 (6th Cir. 1990) (The

qualified-immunity inquiry requires the district court “to determine whether the law was so clearly

established at the time of the incident that a reasonably competent public official should have known

that a course of action would be inconsistent with a public employee’s rights as defined in

Pickering.”). Baar’s arguments thus fail.

                                                  IV

         Baar maintains that even if this court’s prior decision did not decide the qualified immunity

issue, Defendants Jury and Meredith were not entitled to qualified immunity in any event.

Defendants assert that the district court correctly dismissed the claims against Jury and Meredith in

their individual capacities on qualified immunity grounds because no reasonable school official

could have understood 1) that Baar had a constitutionally protected right to attend LACA meetings,

and 2) that preventing Baar from attending LACA meetings would trump JCBE’s interest in assisting

Payne.

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                                                   A

        We review de novo the district court’s grant of summary judgment, and determine “whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” In re Calumet Farm, Inc., 398 F.3d 555,

558 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The

district court’s determination regarding qualified immunity is also reviewed de novo. Williams v.

Commonwealth of Ky., 24 F.3d 1526, 1533 (6th Cir. 1994).

        Under the judicially-created exception of qualified immunity, government officials

performing discretionary functions7 “are immune from civil liability when acting in an official

capacity if their actions do not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.” Shehee, 199 F.3d at 299-300.

        The focus in determining whether an official is entitled to qualified immunity is on
        the objective legal reasonableness of the official’s actions in light of clearly
        established law. Harlow [v. Fitzgerald], 457 U.S. [800,] 818 [(1982)]. An allegation
        of malice will not alone defeat an official’s claim to immunity. Malley v. Briggs, 475


       7
         Baar does not contest the district court’s determination that Jury and Meredith were engaged
in a discretionary function:

        When developing the 2005 reprimand, Jury and Meredith did not follow any simple
        procedure or standard punishment policy. Rather, they crafted a remedy for unusual
        circumstances. Courts routinely hold that such actions constitute the type of
        discretionary governmental function to which qualified immunity may apply. See,
        e.g., McCullough v. Wyandanch Union Free School District, 187 F.3d 272 (2d
        Cir.1999) (applying qualified immunity where a teacher was terminated in violation
        of his free speech rights); Lytle v. Wondrash, 182 F.3d 1083 (9th Cir.1999) (applying
        qualified immunity where teacher was terminated for his negative statements about
        the school district). By this same logic, the actions of Jury and Meredith are clearly
        discretionary governmental functions.

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        U.S. 335, 341 [] (1986) . . . . We should focus on whether, at the time defendants
        acted, the rights asserted were clearly established by decisions of the Supreme Court
        or the courts of this federal circuit. . . . . It is not determinative that the plaintiff has
        asserted the violation of a broadly stated general right . . . .

Garvie v. Jackson, 845 F.2d 647, 649-50 (some internal citations omitted). It is for the district court

“to determine whether the law was so clearly established at the time of the incident that a reasonably

competent public official should have known that a course of action would be inconsistent with a

public employee’s rights as defined in Pickering.” Guercio, 911 F.2d at 1183. Where public

employers move for summary judgment on the basis of qualified immunity, the issue is whether

reasonably competent officials could disagree on whether the plaintiff’s speech or association was

protected by the First Amendment. Malley v. Briggs , 475 U.S. 335, 341(1986) (“The standard to

be applied in resolving the ‘clearly established law’ predicate within the Harlow touchstone of

‘objective legal reasonableness’ is defined in Malley v. Briggs with clarity: “if officers of reasonable

competence could disagree on this issue, immunity should be recognized.’”) ; Guercio, 911 F.2d at

1185-86 (citing Malley, 475 U.S. at 341); Florio v. Skorepa, 961 F.2d 1577 (6th Cir. 1992) (table

disposition).

                                                     B

        The inquiry governing here is whether the law was clearly established such that the

defendants would have known at the time of Baar’s 2005 reprimand: 1) that Baar’s association with

LACA involved a matter of public concern, and 2) that his interests in associating on the matter of

public concern outweighed JCBE’s interests in efficiency. Garvie v. Jackson, 845 F.2d 647, 651 (6th

Cir. 1988); see also Habel v. Twp. of Macomb, 258 F. App’x 854, 858-59 (6th Cir. 2007). If


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reasonable officials could have disagreed on either issue the defendants are entitled to qualified

immunity. Garvie, 845 F.2d at 651.

        On remand, the district court determined that given the state of the law at the time of Baar’s

2005 reprimand, reasonable officials could have disagreed on the issue whether Baar’s interests

outweighed JCBE’s, and that Defendants were thus entitled to qualified immunity. 686 F. Supp. 2d

at 710-12. The district court’s determination whether reasonable officials would have known that

Baar’s association with LACA involved a matter of public concern is less clear. Baar asserts that

the district court held that Baar’s right to associate with LACA was not only a matter of public

concern, but that it constituted a clearly established constitutional right of which a reasonable public

official would know. Defendants argue, more broadly, that the court expressly found that Baar did

not have a clearly established right to attend LACA meetings. Defendants are correct, as the district

court stated at the end of its qualified-immunity discussion: “The Court respectfully finds no pre-

existing Sixth Circuit or Supreme Court precedent that clearly established Plaintiff’s rights such that

a reasonable official in similar circumstances would have known that prohibiting Plaintiff’s

attendance at the LACA meetings violated Plaintiff’s constitutional rights.” 686 F. Supp. 2d at 713.

                                                     C

        Baar argues that the district court interpreted this court’s “tipping” language, see Barr, 311

F. App’x at 823 (“At this stage of the case, the claim also satisfies Pickering balancing. Baar has

a substantial interest in participating in LACA . . . The school board . . . also has a substantial interest

in curbing Baar’s improper communications with Payne, which ran the risk of compromising the

school board’s ability to deliver a valuable education in an harassment-free work environment. What

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Nos. 10-5704, 10-5741
Baar v. Jefferson Cnty. Bd. of Educ. et al.

tips the balance in Baar’s favor is the breadth of the school board’s prohibition.”) as meaning a bare

tipping, rather than as a “veritable elephant in Constitutional jurisprudence.” He contends that the

court interpreted the facts that militated toward qualified immunity in a light most favorable to Jury

and Meredith, thus violating the principle that Pickering balancing be objective. He asserts that the

district court discounted the fact that he had no communication with Payne for the 3 1/2 years before

his email to her of September 2005, that the email was completely innocent, that both he and Payne

no longer worked at the same school, and that he “apparently attended the September, 2005 LACA

meeting without generating any complaint from Payne.” Baar maintains that had the district court

considered these facts, it would have been unable to conclude that his future attendance at LACA

meetings would in any manner adversely affect JCBE’s interests in efficiency and harmony in the

workplace. He also argues that his refusal to agree not to attend the September 2005 LACA meeting

did not weigh in Jury and Meredith’s favor on the Pickering scale because they in fact did not

discipline him until several months after the meeting, at which time, Baar maintains, all was peaceful

between him and Payne.

       The flaw in Baar’s argument is that the district court discussed the weight of the parties’

respective interests insofar as necessary to its determination whether the state of the law at the time

of Baar’s 2005 reprimand was such that Jury and Meredith would have known that they violated

Baar’s First Amendment rights. The district court recognized that its task was to determine whether

Baar’s rights were so clearly established that reasonable public officials could not differ on the

constitutionality of their conduct, and that it was not to determine the outcome of Pickering

balancing of the parties’ interests. 686 F. Supp. 2d at 712. This is in keeping with established law:

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       [In Pickering,] the Supreme Court instructed that a public employee’s interest in
       [association] on matters of public concern is protected by the first amendment only
       insofar as it is of greater weight than the employer’s interest in ‘promoting the
       efficiency of the public services it performs through its employees.’ 391 U.S. at 568
       []. Under this familiar rule of balance, the employee’s rights to free [association] are
       qualified by the countervailing interests of his employer. When a Pickering claim is
       adjudicated on its merits, it is for the fact-finder, be it jury or court, to determine the
       relative weight of these potentially antithetical interests. In the qualified immunity
       context, by contrast, it is the responsibility of the court to determine if the law was
       so clearly established at the time of the incident that a reasonably competent public
       official should have known that a course of action would be inconsistent with a
       public employee’s rights as defined in Pickering.

                Accordingly, having in the first instance properly defined the ‘clearly
       established by law’ inquiry, this court must, in disposing of a qualified immunity
       motion, place the totality of the well-pleaded non-conclusory allegations of the
       complaint on the Pickering scale to balance a public employee’s interest in
       commenting on matters of public concern against the employer’s interest in
       ‘promoting the efficiency of the public services it performs through its employees,’
       id. at 568 []. Without concluding where that balance ultimately comes to rest – a
       decision reserved for the trier of fact – this court must dispose of the motion to
       dismiss on the basis of qualified immunity pursuant to the dictates of Harlow,
       Malley, Anderson, Garvie, etc., by determining whether [the plaintiff’s] rights under
       Pickering, as opposed to whether the general teachings of Pickering, were so clear
       at the time in question that reasonable minds could not differ on the constitutionality
       of her discharge.

Guercio, 911 F.2d at 1183-84 (emphasis added).

       Here, the district court properly analyzed pre-2005 cases to determine whether the state of

the law at that time was such that reasonable officials in Jury or Meredith’s position would have

known that Baar’s interests outweighed Defendants’, and determined that the cases did not provide

clearly established guidance. Baar, 686 F. Supp. 2d at 710-12. Of necessity, the district court

discussed the weight of the parties’ respective interests in these cases in order to determine whether




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the cases provided clear guidance to Meredith and Jury that their conduct violated Baar’s First

Amendment right.

       We agree with the district court that reasonably competent officials could disagree on

whether Baar’s interest in attending LACA meetings “outweighed the school district’s legitimate

interests in prohibiting attendance,” Baar, 686 F. Supp. 2d at 710, and that Meredith and Jury were

thus entitled to qualified immunity.

                                                 V

       Baar asserts that the district court should not have dismissed his claims against JCBE and

Superintendent Daeschner in their official capacities. He maintains that it was JCBE’s policy, usage

or custom to permit Meredith to conduct interminable investigations into alleged teacher wrongdoing

and that she was also the final decision maker for the Board in the matter of Baar’s 2005 discipline.

Baar thus contends that JCBE and Daeschner are liable for Meredith’s acts and the acts of her

subordinate, Jury, and that Meredith (through Jury) was the JCBE’s final policymaking authority.

                                                 A

       We review the district court’s grant of summary judgment de novo. In re Calumet Farm,

Inc., 398 F.3d at 558 (6th Cir. 2005).

       Having determined that JCBE received notice of this suit against its employees and itself, and

responded, and that any judgment against the individual defendants in their official capacities would

be a judgment against JCBE, the district court dismissed the official-capacity claims against the

individual Defendants as duplicative of the claim against JCBE and unnecessary. Baar, 686 F. Supp.

2d at 703-04.

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       Baar does not challenge this particular ruling, and his argument as to the individual

Defendants is misplaced – it does not recognize that Daeschner, Meredith or Jury’s decision-making

authority has nothing to do with the official-capacity claims against those individuals.

               Personal-capacity suits seek to impose personal liability upon a government
       official for actions he takes under color of law. Official-capacity suits, in contrast,
       ‘generally represent only another way of pleading an action against an entity of which
       an officer is an agent.’ Monell v. New York City Dept. of Social Services, 436 U.S.
       658, 690, n.55 [] (1978). As long as the government entity receives notice and
       opportunity to respond, an official-capacity suit is, in all respects other than name,
       to be treated as a suit against the entity. Brandon [v. Holt], 469 U.S. [464,] 471-72
       [(1985)]. It is not a suit against the official personally, for the real party in interest
       is the entity. Thus, while an award of damages against an official in his personal
       capacity can be executed only against the official’s personal assets, a plaintiff seeking
       to recover on a damages judgment in an official-capacity suit must look to the
       government entity itself.

Kentucky v. Graham, 473 U.S. at 165-66 (emphasis in original). This analysis has been echoed by

this court in Smith v. Leis, 407 F. App’x 918 (6th Cir. 2011), and cases cited therein:

               ‘[I]ndividuals sued in their official capacities stand in the shoes of the entity
       they represent.’ Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (citing Kentucky
       v. Graham, 473 U.S. 159, 165 [] (1985)). ‘Official-capacity suits . . . represent only
       another way of pleading an action against an entity of which an officer is an agent.’
       Monell v. Dep’t of Soc. Servcs. New York City, 436 U.S. 658, 690 n.55 [] (1978); see
       also Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (“A suit against an
       individual in his official capacity is the equivalent of a suit against the governmental
       entity.”) As long as the governmental entity receives notice and an opportunity to
       respond, an official-capacity suit “imposes liability on the entity that he represents.”
       Brandon v. Holt, 469 U.S. 464, 471-72 [] (1985).

Leis, 407 F. App’x at 927-28.

       Relying on Graham, Monnell, and Holt, the district court properly concluded that “any

judgment against the individual defendants in their official capacities will, in reality, be a judgment

against JCBE and will only be collectible against JCBE.” Baar, 686 F. Supp. 2d at 704.

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       The district court observed:

               The Sixth Circuit has never specifically decided whether district courts should
       actually dismiss official capacity claims where the local government is already a
       party. In the Eastern and Western Districts of Kentucky, however, the judges have
       adopted the practical approach of dismissing the official capacity claims. See Clark
       v. Kentucky, 229 F. Supp. 2d 718, 721-22 (E.D. Ky. 2002); Meredith v. Jefferson
       County Bd. of Educ., No. 3:02-CV-620-H, 2007 WL 3342258, at *2 (W.D. Ky. Nov.
       9, 2007). This Court believes this is the more logical approach. Thus the official
       capacity claims [against the individual defendants] will be dismissed.

Baar, 686 F. Supp. 2d at 704.

       As discussed in section B below, the district court went on to determine that JCBE was not

liable under § 1983 as a matter of law where there was no evidence that Superintendent Daeschner

approved Jury’s reprimand of Baar, and there was no evidence that the reprimand was pursuant to

a JCBE custom or policy or that it was undertaken by a final decision- maker. Id. at 705-06. Had

the district court addressed JCBE’s liability first, and then addressed the official-capacity claims

against the individual Defendants, it would have comported with several decisions of this court that

approved the dismissal of official-capacity claims against individual defendants where the

government entity is a party and the plaintiff fails to demonstrate that a policy or custom of the

defendant government entity played a part in the violation. See Petty v. Cnty. of Franklin, Oh., 478

F.3d 341, 344, 348-50 (6th Cir. 2007) (where district court dismissed official-capacity claim against

individual defendant because plaintiff failed to present evidence that any county actors were

deliberately indifferent to his medical needs, this court upheld the dismissal noting that “To the

extent that Petty’s suit is against [Sheriff] Karnes in his official capacity, it is nothing more than a

suit against Franklin County itself,” and that plaintiff failed to present evidence that County had


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policy or custom that was moving force behind violation of his constitutional rights); Rothhaupt v.

Maiden, 144 F. App’x 465, 471 (6th Cir. 2005) (where district court dismissed official-capacity

claims against several individual defendants because plaintiff did not demonstrate they acted

pursuant to municipal custom or exhibited deliberate indifference to his constitutional rights, this

court affirmed, noting that official-capacity suits generally represent only another way of pleading

an action against an entity of which an officer is an agent, and that to establish liability therefor,

plaintiff must demonstrate the entity itself, through policy or custom, played a part in violation) .

          Under these authorities and given that the district court (albeit after dismissing the official-

capacity claims against the individuals) properly determined that JCBE was not liable as a matter

of law, we find no error.

                                                     B

          Remaining is Baar’s argument that the district court improperly dismissed his claim against

JCBE. We review the district court’s grant of summary judgment de novo. In re Calumet, 398 F.3d

at 558.

          The district court properly relied on Adkins v. Board of Education of Magoffin County,

Kentucky, 982 F.2d 952, 957-58 (6th Cir. 1993), where we explained :

                  Since Monnell v. New York City Dept. of Social Services, 436 U.S. 658
          (1978), it has been established that local governing bodies are “persons” within the
          meaning of [42 U.S.C. § 1983]. While such a body is not liable under responde[a]t
          superior for an employee or officer’s acts, it may be sued for having caused a
          constitutional tort through “a policy statement, ordinance, regulation, or decision
          officially adopted and promulgated by that body’s officers.” Id. at 690 []. Since such
          bodies can act only through natural persons, the critical question is whether the
          person committing the act did so pursuant to official policy. A formally adopted


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       policy is not required: established usage or custom may be sufficient. Id. at 690-91
       [].
       ....
               In [City of St. Louis v.] Praprotnik, [485 U.S. 112 (1988)], Justice O’Connor,
       writing for a plurality, emphasized the importance of determining, if possible, where
       state law places final policymaking authority. . . . Id. at 125 []. The opinion also
       stressed the necessity of identifying the official or officials responsible under state
       law for making policy in the particular area of the body’s business involved in the act
       alleged to be unconstitutional. Id. at 123 [].

The district court held that JCBE cannot be liable as a matter of law because Jury and Meredith, the

only individuals involved in Baar’s reprimand, did not act pursuant to official policy and neither had

final policymaking authority:

               So far in this litigation, neither this Court nor the Sixth Circuit has had
       occasion to consider whether JCBE, either directly or through suit against an
       employee in her official capacity, could be liable to Plaintiff for violations of his
       constitutional rights. The Supreme Court has described the circumstances for such
       § 1983 liability in Monell v. New York City Dept. of Social Services, 436 U.S. 658
       [] (1978). A local governmental entity is considered a person within the meaning of
       § 1983, Id. at 662 []; it has no liability simply because its employee violates another's
       constitutional rights, Id. at 691 []; and it is liable only where the employee's act
       represents an official policy or custom of that government, Id. at 694 []. See also
       Kentucky v. Graham, 473 U.S. 159, 167 [] (1985). Since Monell, the Sixth Circuit
       has elaborated on the scope of municipal liability:

               While [local governing bodies are] not liable under respondent [sic]
               superior for an employee or officer’s acts, it may be sued for having
               caused a constitutional tort through “a policy statement, ordinance,
               regulation, or decision officially adopted and promulgated by that
               body’s officers.” Since such bodies can act only through natural
               persons, the critical question is whether the person committing the act
               did so pursuant to official policy. A formally adopted policy is not
               required; established usage or custom may be sufficient.

       Adkins v. Bd. of Educ. of Magoffin County, Ky., 982 F.2d 952, 957 (6th Cir.1993).
       Under this jurisprudence, the actions of a single official can also only create liability
       for the local government where that official has “final policymaking authority.” Id.


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       “[W]hether an official has such final authority is a question of state law.” Id. (citing
       City of St. Louis v. Praprotnik, 485 U.S. 112, 123 [] (1988)).

               In fact, the Adkins case is particularly instructive here. The Sixth Circuit
       confronted a superintendent’s decision not to recommend a secretary for contract
       renewal because she would be working for her husband. The Circuit found that this
       action infringed upon the secretary’s constitutional right to privacy in intimate
       relationships. Nevertheless, the school board itself was not liable for the
       superintendent’s actions. First, it had no policy regarding the hiring of spouses.
       Under Kentucky state law, the school board itself made all final decisions relating to
       personnel hiring and firing. While it was true that the superintendent must
       recommend a candidate for the school board to consider the candidate, the Court
       nevertheless found that the school board, not the superintendent, had “final
       policymaking authority.” Id. at 959. Therefore, the Court dismissed the claims
       against the school board, holding that they were not liable under Monell. Id. In light
       of the explanation in Adkins, the result here is pretty clear.

               As in Adkins, no one contends here that Jury acted “pursuant to official
       policy” when he decided to bar Plaintiff from future LACA meetings. Nor is there
       evidence in any of the discovery that either Jury or Meredith had final policymaking
       authority such that JCBE might be liable under the Monell doctrine. Moreover, the
       Court has found no state law placing final policymaking authority over teacher
       discipline with principals or human relations managers.FN5 All state laws appear to
       vest employee policy decisions in either the school board or the superintendent. See
       KRS §§ 161.790, 160.370 & 160.340.

               FN5 . The only defendants involved in the decision of how to
               reprimand Plaintiff were Jury (a principal) and Meredith (the human
               relations manager).

               No evidence suggests that Defendant Daeschner, the superintendent,
       approved Jury’s action. Even if Daeschner was eventually made aware of the
       reprimand and did not remove it, such a failure to act does not give rise to school
       board liability. See Adkins, 982 F.2d at 958 (“The fact that the Board did not
       question Whitaker’s decision to not recommend employment for Mrs. Adkins is
       immaterial. The plurality opinion in Praprotnik addressed this question: ‘Simply
       going along with discretionary decisions made by one’s subordinates, however, is not
       a delegation to them of the authority to make policy.’”). Here, as in Adkins, Jury’s
       2005 Reprimand did not represent fulfillment of any established JCBE custom or
       policy, nor was it undertaken by a final decision maker, which appears to be JCBE
       or Daeschner. It was a discretionary act taken in special circumstances and cannot

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       be deemed a basis for JCBE’s direct liability. Plaintiff claims no other basis for
       liability on the part of JCBE.

              Therefore, the Court finds, as a matter of law, that JCBE is not liable under
       § 1983, either directly or through any official capacity claim.

Baar, 686 F. Supp. 2d at 704-06.

       We find no error. Baar failed to establish that Jury and Meredith acted pursuant to a policy

or custom of JCBE. And, Baar does not challenge that under Kentucky law, employee policy

decisions are vested in the school board or superintendent. See Ky. Rev. Stat. Ann. §§ 161.790,

160.370 and 160.340. He nonetheless asserts that Meredith was the final decision-maker in his 2005

reprimand because he had no recourse beyond her, such as a direct appeal to the Board of Education,

and because the union had abandoned his cause. He also contends that, at least in his case, Meredith

was the final policymaking authority over him.

       As the district court recognized, the actions of a single official can only create liability for

the local government where that official has final policymaking authority, and whether an official

has such final authority is a question of state law. Adkins, 982 F.2d at 957 (citing Praprotnik, 485

U.S. at 123). Under Kentucky law neither Meredith or Jury could have final policy-making authority

over Baar.

       For the reasons stated, we affirm the district court’s grant of summary judgment to

Defendants.

                                                 VI

       On cross-appeal, Defendants assert that the district court erred in denying their motion for

costs pursuant to an Offer of Judgment, Fed. R. Civ. P. 68, because the Offer was not ambiguous,

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Nos. 10-5704, 10-5741
Baar v. Jefferson Cnty. Bd. of Educ. et al.

Baar did not obtain a judgment more favorable than the Offer, the district court failed to determine

how many hours Baar’s attorney expended on unsuccessful claims that are unrelated to Baar’s sole

successful claim, and that Baar should not be permitted to recover attorney fees and costs because

the billing and cost records are woefully imprecise.

       We review for clear error the district court’s factual findings concerning the circumstances

under which an offer of judgment pursuant to Fed. R. Civ. P. 68 is made, and its legal interpretations

of Rule 68 de novo. Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 837 (6th Cir. 2005).

Review of the district court’s award of attorney fees and costs is for abuse of discretion. Imwalle

v. Reliance Med. Prod., Inc., 515 F.3d 531, 551 (6th Cir. 2008).

       One of Defendants’ claims is raised for the first time on appeal– that $1,415.57 in costs

should not have been awarded to Baar. Because Defendants did not object below to this amount,

see R.E. 163-2 at 13, we deem it waived. United States v. Dyer, 580 F.3d 386, 393 n.3 (6th Cir.

2009). Defendants’ remaining claims are thoroughly addressed in the district court’s opinion, which

we adopt. Baar, 2010 WL 1949667 (W.D. Ky. May 13, 2010).

                                          CONCLUSION

       We AFFIRM the district court’s grant of summary judgment to Defendants, its award of

attorney fees and costs to Baar, and its denial of Defendants’ motion for costs.




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