Oppenheimer v. City of Madeira, Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DOUG OPPENHEIMER,

Plaintiff,

Case No. 1:19-cv-770

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Bowman

CITY OF MADEIRA, OHIO, et al.,

Defendants.

OPINION AND ORDER

This cause comes before the Court on the Magistrate Judge’s July 15, 2022,

Report and Recommendation (“R&R,” Doc. 66). There, the Magistrate Judge

recommends that the Court grant in part Plaintiff Doug Oppenheimer’s Motion for

Fees and Costs (Doc. 55), and award Oppenheimer $66,430.52 in fees and $486.88 in

costs for his successful prosecution of his First Amendment claim against the City’s

sign ordinances. (R&R, Doc. 66, #678).

For the reasons stated more fully below, the Court ADOPTS the R&R (Doc.

66) IN PART. More specifically, having reviewed the docket, the Court concludes

that both parties to this lawsuit have unnecessarily increased the costs of litigation.

For its part, the City continued to press arguments that the Court specifically rejected

in earlier Orders, requiring Oppenheimer to incur expenses responding to those

already rejected arguments. But Oppenheimer likewise has incurred (and caused)

unnecessary costs—for example, on two occasions seeking defaults the very day after

a responsive pleading was due, apparently without even bothering to confer with

opposing counsel as to the reason for the filing oversight. Accordingly, having

reviewed the City’s objections, the Court concludes that it will GRANT

Oppenheimer’s Motion for Fees and Costs (Doc. 55) IN PART, revising the fee award

downward to $60,474.52, and awarding $486.88 in costs (to which no party objected).

BACKGROUND

A. The Underlying Case.

The City of Madeira had a sign ordinance restricting the quantity and size of

temporary signs on residential property based on content. (R&R, Doc. 66, #659). City

officials sought to enforce the regulation against Oppenheimer, demanding that he

remove two signs in his yard criticizing the City council and advocating for certain

candidates in a then-upcoming election. (Id.). Oppenheimer complied, but then sued,

asserting a First Amendment violation. (Id.). He sought both injunctive relief

(preventing future enforcement of the ordinance) and monetary damages (for the

City’s conduct in demanding he remove his signs). (Id.). Oppenheimer also sought a

temporary restraining order (TRO). (Id. at #660). Before the Court could rule on that

request, though, the City repealed the sign regulations. (Id.). All told, Oppenheimer’s

signs were down for about two weeks. (Id. at #659).

That was not the end of the matter, though. Oppenheimer continued his suit

seeking money damages for the harm he allegedly incurred in complying with the

City’s unconstitutional demand (i.e., in removing the signs). (Id. at #660). And the

City, notwithstanding having repealed the ordinances, sought to defend the lawsuit.

In particular, the City moved to dismiss Oppenheimer’s Complaint, arguing that he

lacked standing. (Doc. 13, #87).

That led to a flurry of moves and countermoves, including an Amended

Complaint (Doc. 15), an Application for Default (Doc. 21), a Motion to Strike the

Application for Default (Doc. 24), and a renewed Motion to Dismiss for Lack of

Standing (filed in response to the Amended Complaint, but one day late, which is

what gave rise to the Application for Default) (Doc. 23). The Magistrate Judge then

issued an R&R recommending the Court deny the renewed Motion to Dismiss, as

Oppenheimer clearly had standing at the time he filed suit (which is the relevant

time at which to measure standing). (Doc. 31, #235). Moreover, to the extent the City

instead meant to argue mootness, the R&R found that Oppenheimer’s claim for

money damages for the City’s past conduct prevented the case from becoming moot,

notwithstanding the City’s repeal of the offending ordinances. (Id. at #235–36). No

party objected to that R&R, and this Court adopted it. (Doc. 32).

That set off another flurry of filings, including another Application for Default

(Doc. 33), an untimely (again by one day) answer to the Amended Complaint (Doc.

34), and a Motion to Strike that untimely answer (Doc. 35). The Magistrate Judge

denied the Application for Default and the Motion to Strike on August 31, 2020. (Doc.

38). Six months later, Oppenheimer moved for summary judgment. (Doc. 43). The

City opposed, again largely relying on the already-rejected argument that the City’s

repeal of the offending ordinances left Oppenheimer with no case. (Doc. 48).

The Magistrate Judge issued an R&R recommending that the Court grant

Oppenheimer’s Motion for Summary Judgment, and award nominal damages in the

amount of $1,000, as well as attorneys’ fees and costs. (Doc. 51). Once again, no party

objected, and the Court adopted that R&R. (Doc. 52).

That left the matter of quantifying the attorneys’ fees and costs, which is what

leads to the instant dispute. On February 21, 2022, Oppenheimer moved for an award

of $97,029.50 in attorneys’ fees and costs in the amount of $486.88. (Doc. 55, #402).

The City opposed the request as to fees (but not costs), claiming that a reasonable

attorneys’ fee in this case would be in the range of $21,000–$37,000. (Doc. 64-1, #600).

B. The Report and Recommendation at Issue.

On July 15, 2022, the Magistrate Judge issued the R&R at issue here. (Doc.

66). In that R&R, the Magistrate Judge recommends that the Court award attorneys’

fees of $66,430.52. (Id. at #678). The roughly $30,000 reduction from what

Oppenheimer requests is the result of two factors working in tandem. First, the

Magistrate Judge suggests that the appropriate hourly rate for Oppenheimer’s two

lead attorneys is $517.08/hour, rather than the $610/hour that they requested. (Id.

at #676, 678). Readjusting the lodestar to reflect that lower hourly rate, the resulting

attorneys’ fee award would be $83,038.15. (Id. at #678). Second, with the lodestar

thus adjusted, the R&R further recommends a 20% “global reduction” to account for

the fact that Oppenheimer prevailed on only one of his claims (for damages) and not

the other (for injunctive relief). (Id.). Based on that global reduction, the R&R

recommends an award of $66,430.52 (i.e., $83,038.15 x 80%). (Id.). As the City did not

object to Oppenheimer’s request for $486.88 in costs, the R&R further recommends

awarding that amount. (Id. at #664, 678).

C. The City’s Objections.

Unlike previous the R&Rs in this case, the City filed Objections to this most

recent R&R. (Doc. 67). In particular, the City advances two arguments, both of which

are aimed solely at the Magistrate Judge’s determination that a global reduction of

“only” 20% is appropriate here.

First, the City claims that the Magistrate Judge’s basis for limiting the global

reduction to only 20% was her finding that Oppenheimer did not actively litigate the

injunctive relief issue (i.e., the claim on which he lost) after the Court’s ruling on the

Motion to Dismiss. According to the City, this is not true, and thus cannot serve as a

basis for limiting the Magistrate Judge’s global reduction. (Id. at #683–84).

Second, the City claims that the Magistrate Judge got other key facts wrong,

or misapplied them, in arriving at that global reduction. For example, the City notes

that the R&R finds that Oppenheimer’s own “early motion practice added fuel to the

fire,” and yet still recommends awarding 80% of the lodestar amount. (Id. at #684–

85). Moreover, the City claims that the R&R mischaracterizes when the City made

clear that it would not reenact the allegedly unconstitutional provisions (thus putting

a nail in the coffin of the request for injunctive relief). (Id. at #685). Finally, the City

claims that the R&R erred in stating that the City failed to attach exhibits to its

expert declaration to support the City’s claim that the Complaint here was largely

cut and paste from a complaint in another action. (Id.).

Based on these two objections, the City asks the Court to reject the R&R, and

“award attorney fees in an amount reasonably proportionate to the Court’s nominal

damages award.” (Id. at #686).

LEGAL STANDARD

Under Fed. R. Civ. P. 72(b)(3), district courts review an R&R de novo after a

party files a timely objection. This review, however, applies only to “any portion to

which a proper objection was made.” Richards v. Colvin, No. 2:12-cv-748, 2013 WL

5487045, at *1 (S.D. Ohio Sept. 30, 2013). In response to such an objection, “[t]he

district court ‘may accept, reject, or modify the recommended disposition; receive

further evidence; or return the matter to the magistrate judge with instructions.’” Id.

(quoting Fed. R. Civ. P. 72(b)(3)). By contrast, if a party makes only a general

objection, that “has the same effect[] as would a failure to object.” Howard v. Sec’y of

Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991); Boyd v. United States, No.

1:16-cv-802, 2017 WL 680634, at *1 (S.D. Ohio Feb. 21, 2017). That is, a litigant must

identify each issue in the R&R to which he or she objects with sufficient clarity that

the Court can identify it, or else that issue is deemed waived. Miller v. Currie, 50 F.3d

373, 380 (6th Cir. 1995) (“The objections must be clear enough to enable the district

court to discern those issues that are dispositive and contentious.”).

As to any unobjected portion of the R&R, by contrast, the advisory committee

notes to Federal Rule of Civil Procedure 72(b) suggest that the Court still must

“satisfy itself that there is no clear error on the face of the record in order to accept

the recommendation.” Redmon v. Noel, No. 1:21-CV-445, 2021 WL 4771259, at *1

(S.D. Ohio Oct. 13, 2021) (citing cases).

LAW AND ANALYSIS

The Court begins its analysis by observing that, in the City’s Objections, the

City does not expressly object either to the hourly rate that the Magistrate Judge

found was appropriate here, or to the hours that the attorneys expended in this

action. To be sure, the Objections purport to “incorporate[] by reference [the]

arguments [the City] advanced in its Memorandum in Opposition to Plaintiff’s

Motion for an Award of Attorney Fees,” (Doc. 67, #680), where the City did attack

both the hourly rate and the hours expended. (Doc. 62, #530–31). But such

incorporation by reference does not qualify as a “specific objection” to the R&R. See,

e.g., Greiner v. Cnty. of Oceana, No. 1:19-CV-936, 2021 WL 4316769, at *2 (W.D. Mich.

Sept. 23, 2021) (“To the extent Plaintiff also attempts to ‘incorporate by reference’ his

briefing to the Magistrate Judge, such attempt is misplaced. ‘[A]n objection that does

nothing more than state a disagreement with the magistrate’s suggested resolution,

or simply summarizes what has been presented before, is not an “objection” as that

term is used in the context of Federal Rule of Civil Procedure 72.’” (quoting Brown v.

City of Grand Rapids, No. 16-2433, 2017 WL 4712064, at *2 (6th Cir. June 16, 2017)));

Hunter v. Hamilton Cnty. Ct. of Common Pleas, No. 1:16-cv-561, 2019 WL 2281542,

at *11 (S.D. Ohio May 29, 2019) (“Such incorporation by reference, however, fails to

meet the requirement of ‘specific written objections’ to the Report and

Recommendation.” (emphasis original)).

Given the lack of a specific objection on these issues, the Court reviews the

Magistrate Judge’s recommendation for clear error. The Court finds none. The hourly

rate that the Magistrate Judge recommends is one that the City’s own expert opined

was reasonable as to one of the plaintiff’s attorneys. (Geoppinger McCoy Decl., Doc.

64-1, #597; see also Durst Decl., Doc. 58, #486). And the Court finds that it was not

“clear error” to apply that rate for both, as each is a seasoned litigator with over 25

years of experience. (R&R, Doc. 66, #677). Likewise, the Court concludes that the

Magistrate Judge did not clearly err in determining that the hours expended here

were reasonable (although, as described below, the Court ultimately concludes that a

further reduction is warranted due to the nature of some of the tasks on which the

attorneys spent those hours). Accordingly, given the City’s failure to object to the

lodestar amount, the Court concludes that this lodestar serves as an appropriate

starting point here.

That leaves the question of the Magistrate Judge’s recommendation for a

“global reduction” of 20%. The City says it should be more, raising two arguments in

that regard.1 First, as noted, the City claims that the Magistrate Judge erred in

concluding that Oppenheimer discontinued “actively litigating” his claim for

prospective relief after the Court ruled on the Motion to Dismiss. (Obj., Doc. 67, #683–

84). The Court is not convinced. To be sure, the City is able to cite two specific

instances in which Oppenheimer re-raised his argument on that issue, but they were

passing references in his reply brief on summary judgment. (Id. at #684). And the

Magistrate Judge did not ignore those statements in concluding that Oppenheimer

had discontinued his litigation efforts, as the City seems to suggest. Rather, she

1 For his part, Oppenheimer claims it should be less, but he did not object to the R&R. Rather,

he raises that argument in his opposition to the City’s objections. (Doc. 69, #696). That doesn’t

work. If a party seeks relief from an R&R, that party must timely file objections. See Fed. R.

Civ. P. 73(b). Oppenheimer did not do so.

explained that Oppenheimer raised the issue on reply solely to respond to an

argument that the City itself had made in its opposition to summary judgment. (R&R,

Doc. 66, #671). Thus, this Court concludes that the City errs in claiming that the

Magistrate Judge misunderstood the record on that issue.

Most of the other alleged mischaracterizations or misunderstandings do not

provide any basis for relief either. For example, the Court agrees with the City that

the Magistrate Judge erred in concluding that the City’s expert neglected to attach

the exhibits to which the expert referred in her report. But, having reviewed those

exhibits, the Court agrees with the Magistrate Judge that the significant new case-

specific material in the Complaint here supports a finding that this action was not

simply a “cut and paste” job from the previous action. (Id. at #674). To be sure, there

are aspects of the Complaint here that share similarity to the complaint in the other

action. But that is to be expected; both actions are First Amendment challenges to

local sign ordinances. It would be somewhat surprising if an attorney working on both

cases did not use pleadings in the former case as at least a starting point for pleadings

in a subsequent one. But the key point for current purposes is that the time that

Oppenheimer’s counsel claims for drafting complaints here does not strike the Court

as excessive, even considering that he had a baseline from which to start.

That said, one aspect of the City’s objections gives the Court some pause—the

City’s observation that part of the excessive litigation cost here was driven by

Oppenheimer’s “early motion practice.” (Obj., Doc. 67, #684–85). Having reviewed the

docket, the Court agrees that Oppenheimer contributed to this case being far more

extensively litigated than it needed to be. For example, as described above, on two

separate occasions, Oppenheimer filed for default the day after a responsive pleading

was due. That strikes the Court as gamesmanship, rather than a good faith effort to

resolve the matter. And, based on the Court’s review of the billing records, it appears

that Oppenheimer’s counsel expended roughly 14.4 hours addressing issues relating

to those default findings. (See Hartman Fee Statement, Doc. 56-2). Accordingly, the

Court finds that an additional reduction of $5,9562 is warranted.3

CONCLUSION

For the foregoing reasons, the Court ADOPTS the R&R (Doc. 66) IN PART,

and thereby GRANTS Oppenheimer’s Motion for Fees and Costs (Doc. 55) IN PART,

revising the fee award downward to $60,474.52, and awarding $486.88 in costs.

Accordingly, the Court GRANTS JUDGMENT in Oppenheimer’s favor

against the City in the amount of $61,961.40 (i.e., attorneys’ fees, plus costs, plus

the $1,000 previously awarded in nominal damages). The Clerk shall

ENTER JUDGMENT in that amount and TERMINATE this matter on the

Court’s docket.

2 This represents 14.4 hours x $517.08/hr x 80%. Multiplying by 80% is necessary, because the Magistrate Judge’s

final award of $66,430.52 already applies a global reduction of 20% to all hours incurred, including those incurred on

the default judgment activities. Thus, in determining the net amount to be removed, that Court must apply that same

reduction. Stated alternatively, if the lodestar is reduced by 14.4 hours x $517.08/hr, or $7445.95, as the Court finds

that it should be, the net award changes by 80% of that amount.

3 This could be characterized as a challenge to the lodestar hours, which, as noted above, the City declined to expressly

make. At the same time, however, in the City’s objection to the “global reduction,” as described above, the City did

point to Oppenheimer’s “early motion practice,” which the Court treats as a reference to Oppenheimer’s attempt to

secure default judgment. Thus, the Court concludes that the City has preserved its objection to the hours related to that

activity, even if the City characterized it as a challenge to the global reduction.

SO ORDERED.

September 13, 2022 .

DATE DOUGLAS R. COLE \

UNITED STATES DISTRICT JUDGE

11