Zinna et al v. Jefferson County et al
ORDER by Chief Judge Philip A. Brimmer on 3/18/2019, re: 424 Defendant Estate of James Congrove's Request for Ruling on Plaintiff's Motion for Attorney Fees is DENIED as moot; 425 defendant's Motion to Substitute Jeffers on County as Defendant is DENIED. ORDERED that Plaintiff's Motion for Award of Reasonable Attorney's Fees andNon-Taxable Costs [Docket No. 326] is GRANTED in part and DENIED in part as stated in this order. ORDERED that plaintiff is awarded $365,667.80 in trial attorney's fees. (sphil, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 05-cv-01016-PAB
MICHAEL L. ZINNA,
JUDY CONGROVE, as personal representative of the estate of James Congrove,
This matter comes before the Court on Plaintiff’s Motion for Award of
Reasonable Attorney’s Fees and Non-Taxable Costs [Docket No. 326], Defendant
Estate of James Congrove’s Request for Ruling on Plaintiff’s Motion for Attorney Fees
[Docket No. 424], and defendant’s Motion to Substitute Jefferson County as Defendant
[Docket No. 425].
Plaintiff filed this lawsuit in 2005. Docket No. 1. The Tenth Circuit has
summarized the underlying facts of this case as follows:
[Plaintiff] was affiliated with BJC Development Corporation (“BJC”) in 2000
when a real estate transaction between BJC and Jefferson County,
Colorado failed to materialize. The ensuing dispute was ongoing in 2003
when [plaintiff] launched the website JeffcoExposed.com, and later,
ColoradoExposed.com. These websites served as platforms through
which [plaintiff] reported on public meetings and speculated about
corruption in Jefferson County government. . . . After the websites caught
the attention of several Jefferson County Commissioners, including
[defendant, plaintiff] became the target of a variety of antagonistic
Zinna v. Congrove, 680 F.3d 1236, 1237-38 (10th Cir. 2012) (“Zinna I”). Plaintiff initially
asserted a variety of claims against nineteen defendants. Id. at 1238. By the time of
trial, however, the only claim remaining was a claim for First Amendment retaliation
against defendant James Congrove. Id.; see also Docket No. 273; Docket No. 288 at
3-4. On December 9, 2009, a jury returned a verdict in plaintiff’s favor, finding that
defendant had “used his authority as a Jefferson County Commissioner to take adverse
action against [plaintiff] in violation of the First Amendment to the United States
Constitution.” Docket No. 316-1. The jury awarded plaintiff $1,791 in damages. Id.
On January 20, 2010, plaintiff filed a motion seeking $491,417.50 in attorney’s
fees and costs. See Docket No. 326. The court1 analyzed the factors set forth in Farrar
v. Hobby, 506 U.S. 103, 116-22 (1992), 2 and concluded, based on those factors, that
plaintiff should recover only the “reasonable cost of presenting this case to the jury
which warrants a fee of $8,000.” Docket No. 356 at 3. On appeal, the Tenth Circuit
found that the court misapplied the Farrar factors and held that plaintiff’s “victory was
not merely technical” and that plaintiff “is entitled to the reasonable attorneys’ fees
related to his successful First Amendment claim.” Zinna I, 680 F.3d at 1242. The
Tenth Circuit further found that the $8,000 fee was not based on an appropriate
lodestar calculation. Id. The Tenth Circuit remanded the case for further proceedings.
This case was assigned to another judge in this district until July 2014.
The Farrar factors are: (1) the degree of success obtained, (2) the extent to
which the plaintiff succeeded on his theory of liability, and (3) the public purpose served
by the plaintiff’s success. See Phelps v. Hamilton, 120 F.3d 1126, 1132 (10th Cir.
On remand, the court again found that the jury’s minimal award indicated “the
jury’s evident evaluation . . . that [defendant’s First Amendment] violation was merely
technical.” Docket No. 391 at 4. Based on the f inding that plaintiff established only a
technical First Amendment violation, the court awarded plaintiff $16,240 in attorney’s
fees, “measured by the application of [plaintiff’s counsel’s] $290.00 rate to seven hours
daily for the eight days” of trial. Id. at 7-8. In a separate order, the court awarded
plaintiff attorney’s fees and costs totaling $18,687.50 for the time spent on plaintiff’s
appeal in Zinna I. Docket No. 398 at 7.
On appeal, the Tenth Circuit concluded that the court, in limiting plaintiff’s award
of attorney’s fees to $16,240, “acted in contravention of the law of the case doctrine.”
Zinna v. Congrove, 755 F.3d 1177, 1182 (10th Cir. 2014) (“Zinna II”). Because the
Tenth Circuit held in Zinna I that plaintiff’s victory was not merely technical, the court
was not permitted to reach the contrary conclusion on remand. Id. The Tenth Circuit
affirmed the court’s award of appellate fees, but remanded the case for further
proceedings and ordered that the case be reassigned to a different district judge. Id. at
The case was subsequently reassigned to this Court. Docket No. 412. The
Court ordered plaintiff’s counsel to file a status report indicating whether the case could
be resolved on the current record or whether plaintiff intended to submit further briefing
on the issue of appellate fees. Docket No. 418 at 4. Plaintiff indicated that he did not
intend to file a motion for attorney’s fees with regard to his second appeal, and that the
record was “complete for the adjudication of the plaintiff’s initial motion for attorney’s
fees and costs.” Docket No. 419 at 1-2, ¶¶ 1, 3.
II. MOTION FOR ATTORNEY’S FEES
A. Scope of Remand
The Court begins by clarifying the issues that need not be addressed in this
In his status report, plaintiff states that “it is incorrect to assume . . . that a proper
Farrar analysis has previously been performed by the Court.” Docket No. 419 at 3. To
the extent this argument implies that the Court is obligated to re-weigh the Farrar
factors, the Court disagrees. The Tenth Circuit has already considered the Farrar
factors and determined that plaintiff achieved more than a technical victory at trial.
Accordingly, the Court may not re-weigh those factors for purposes of this remand. See
Zinna II, 755 F.3d at 1180 n.1 (“Our prior opinion made clear that Zinna achieved more
than a technical victory at trial. Thus, . . . the district court violated our mandate by
reevaluating the Farrar factors and determining trial fees without first calculating a
lodestar.”); Zinna I, 680 F.3d at 1242 (remanding “for the district court to determine –
based on the facts and the timesheets submitted by Zinna – what work warrants
The Court also does not need to address the issue of costs or appellate fees. As
the Tenth Circuit noted in Zinna II, Zinna I did not disturb Judge Matsch’s September
24, 2010 award of costs. Zinna II, 755 F.3d at 1183. Moreover, plaintiff waived any
challenge to Judge Matsch’s March 15, 2013 award of appellate fees by inadequately
briefing the issue on appeal. Id. at 1182-83.
The Court’s task, for purposes of this remand, is therefore limited to determining
a reasonable award of trial attorney’s fees.
Plaintiff moves for an award of $503,562 in attorney’s fees under 42 U.S.C.
§ 1988(b) and D.C.COLO.LCivR 54.3. See Docket No. 326 at 1; Docket No. 348 at 1,
19 (increasing fee request to $503,562). Section 1988(b) provides that, “[i]n any action
or proceeding to enforce a provision of section 1983 . . . of this title . . ., the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the
costs.” 42 U.S.C. § 1988(b). Because “[t]he purpose of § 1988 is to ensure effective
access to the judicial process for persons with civil rights grievances[,] . . . . a prevailing
plaintiff should ordinarily recover an attorney’s fee unless special circumstances would
render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal
quotation marks omitted).3
The reasonableness of a fee request is determined by calculating the “lodestar
amount,” which represents the number of hours reasonably expended multiplied by a
reasonable hourly rate. Hensley, 461 U.S. at 433. While there is a strong presumption
that this method yields a reasonable fee, see Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 552 (2010), the party seeking an award of attorney’s fees has the initial burden of
establishing the reasonableness of each dollar and each hour for which the party seeks
an award. Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995).
There is no dispute that plaintiff is the prevailing party for purposes of his fee
request. See Docket No. 339 at 1 (agreeing that, “[b]y virtue of the jury’s verdict,
Plaintiff is the prevailing party for purposes of his claim for attorney fees and nontaxable costs”).
1. Hourly Rate
Plaintiff requests compensation for work performed by attorneys Christopher
Beall, Chris Paulsen, and Adam Platt, as well as paralegal work performed by Marla
Kelly and Steven Zansberg. Docket No. 326 at 5. Defendant argues that the hourly
rates for Mr. Paulsen and Mr. Platt are unreasonable. Docket No. 339 at 11, 13.
A “reasonable rate” is defined as the prevailing market rate in the relevant
community for an attorney of similar experience. Guides, Ltd. v. Yarmouth Group Prop.
Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). T he party requesting fees bears
“the burden of showing that the requested rates are in line with those prevailing in the
community.” Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998).
Plaintiff proposes an hourly rate of $225 per hour for Mr. Paulsen. Docket No.
348 at 11. 4 During the period in which Mr. Paulsen served as plaintiff’s attorney – June
3, 2005 to November 16, 2006, see Docket Nos. 1, 123 – he was a solo practitioner
with between four and five years of legal experience. Docket No. 326-11 at 2. Given
Mr. Paulsen’s experience, plaintiff’s proposed billing rate is well within the range of
attorney billing rates reported in the Colorado Bar Association’s 2008 Econom ic Survey,
see Docket No. 326-9 at 2 (reporting billing rates ranging from $150 to $286 per hour
for an attorney with less than five years in practice), and commensurate with rates
approved in other cases in this district. See, e.g., Colo. Right to Life Committee, Inc. v.
Kaufman, No. 03-cv-01454-WDM, 2008 WL 4197790, at *3 (D. Colo. Sept. 10, 2008)
While plaintiff suggests an hourly rate of $275 in his fee motion, Docket No. 326
at 5, this is inconsistent with the rate charged by Mr. Paulsen for his work on plaintiff’s
behalf. Docket No. 326-10. Given that plaintiff argues in favor of a $225 rate in his
reply brief, the Court assumes that the $275 figure is a typographical error.
(finding $200 to be a reasonable hourly rate for “inexperienced attorneys”); Lucas v.
Kmart Corp., No. 99-cv-01923-JLK-CBS, 2006 WL 2729260, at *5 (D. Colo. July 27,
2006) (finding $275 to be a reasonable hourly rate for associate attorneys); Bat v. A.G.
Edwards & Sons, Inc., No. 04-cv-02225-REB-BNB, 2006 WL 446078, at *3 (D. Colo.
Feb. 21, 2006) (approving of $190 hourly rate for attorney with two years’ experience).
Although defendant argues that $150 per hour would be more appropriate, defendant
has not rebutted plaintiff’s evidence that $225 per hour is a reasonable hourly rate for
an attorney with Mr. Paulsen’s experience.5
With regard to Mr. Platt, the Court finds that plaintiff’s proposed billing rate –
$245 per hour – is high, given that Mr. Platt was an associate attorney with only two to
three years of legal experience when he worked on this case. Docket No. 326-1 at 6,
¶ 16; Docket No. 326-8. 6 The Court finds $225 per hour to be a more reasonable
hourly rate. Defendant advocates for a lower hourly rate of $175, Docket No. 339 at 13,
but makes no showing that such a rate is reasonable for an attorney with Mr. Platt’s
education and experience. Moreover, the Court has already determined that $225 is a
reasonable hourly rate for Mr. Paulsen. Although Mr. Platt had fewer years in practice
than Mr. Paulsen, he also had specific experience representing the news media.
Docket No. 326-1 at 6, ¶ 16. A rate of $225 is therefore appropriate.
Defendant suggests that Mr. Paulsen’s hourly rate should be reduced based on
the quality of his work. See Docket No. 339 at 11 (noting that the “original and first
amended complaint were prolix and incomprehensible”). The Court disagrees.
Defendant does not develop this argument, and the rate of $225 per hour already
accounts for Mr. Paulsen’s limited experience as an attorney.
Mr. Platt entered his appearance in this case on June 2, 2008. Docket No. 218.
He withdrew as counsel on May 3, 2010. Docket Nos. 349, 350.
Defendant does not challenge the hourly rates for the work performed by
Christopher Beall, Marla Kelley, and Steven Zansberg. Nonetheless, the Court finds
that plaintiff’s proposed billing rate of $160 per hour for paralegal work is unsupported.
Such a rate is at the high end of the paralegal billing rates reported in the Colorado Bar
Association’s 2008 Economic Survey, see Docket No. 326-9 at 35 (reporting rates
ranging from $74 per hour to $173 per hour, depending on experience), and would only
be appropriate for a paralegal with significant experience. Because plaintiff has not
provided any information regarding the experience and qualifications of Ms. Kelley and
Mr. Zansberg, the Court finds $100 per hour to be a reasonable rate f or the work they
performed on this case. 7 This rate is consistent with the rates generally approved for
paralegal work in this district. See, e.g., Morris v. Potter, No. 06-cv-00432-MSK-CBS,
2008 WL 5381475, at *6 (D. Colo. Dec. 22, 2008) (f inding rate of $100 per hour for
paralegal time to be reasonable); Infant Swimming Research, Inc. v. Faegre & Benson,
LLP, No. 07-cv-00839-LTB-BNB, 2008 WL 5044499, at *2 (D. Colo. Nov. 19, 2008)
(approving rate of $75 per hour for paralegal time); Lucas, 2006 WL 2729260, at *5
(approving of blended average rate of $110 per hour for work done by paralegals).8
2. Hours Expended
To determine the reasonableness of the hours expended, a court considers
several factors. First, it considers whether the fees pertain to tasks that would ordinally
To the extent plaintiff seeks reimbursement for paralegal work performed by Mr.
Platt, see Docket No. 348 at 13, the same rate will apply.
By contrast, the Court finds plaintiff’s proposed hourly rate for Mr. Beall, $275 $290, to be reasonable and will apply that rate in determining the lodestar.
be billed to a client. See Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983),
overruled on other grounds by Penn. v. Del. Valley Citizens’ Council for Clean Air, 483
U.S. 711, 717 n.4 (1987). The party seeking fees must also demonstrate that its
counsel used “billing judgment” in winnowing down the hours actually spent to those
reasonably expended. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir.
2005); Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d 1243, 1250
(10th Cir. 1998) (“Counsel for the party claiming the fees has the burden of proving
hours to the district court by submitting meticulous, contemporaneous time records that
reveal, for each lawyer for whom fees are sought, all hours for which compensation is
requested and how those hours were allotted to specific tasks.”). “In determining what
is a reasonable time in which to perform a given task,” an attorney submitting billing
entries should consider the following factors: (1) the complexity of the case; (2) the
number of reasonable strategies pursued; (3) the responses necessitated by the
maneuvering of the other side; and (4) “the potential duplication of services” caused by
the presence of multiple attorneys when one would suffice. Ramos, 713 F.2d at 554.
Ultimately, the Court’s goal is to fix a fee that would be equivalent to what the attorney
would reasonably bill for those same services in an open market and fees will be denied
for excessive, redundant, and otherwise unnecessary expenses. Ramos, 713 F.2d at
Plaintiff seeks reimbursement for a total of 1,971.6 attorney and paralegal hours
expended on the litigation. Docket No. 348-1 at 5. Defendant challenges this amount
on three grounds. First, he contends that plaintiff’s hours calculation should be reduced
to account for computational errors. Docket No. 339 at 10-11. Second, defendant
argues that plaintiff is not entitled to fees for work performed on matters that should
have been delegated to support staff, work performed by Mr. Beall before he became
counsel of record, and work that was redundant or irrelevant. Id. at 13. Finally,
defendant requests that the Court reduce the attorney hours included in plaintiff’s fee
motion to account for time spent on unsuccessful claims. Id. at 11-12, 13-16.
a. Calculation Errors
Defendant asserts that plaintiff’s counsel miscalculated the number of hours
reflected in his time records. See Docket No. 339 at 10-11. In the contested tim e
entries, plaintiff’s counsel charged for 102.70 hours expended on the litigation. See
Docket No. 339-1 at 44. According to defendant, however, those same entries reflect a
total of only 79.7 hours. See id. While plaintiff concedes the majority of the
computational errors identified by defendant, he argues that counsel’s time entries for
October 14, 2009 and November 6, 2009 are accurate. See Docket No. 348 at 9-10;
see also Docket No. 326-2 at 55, 58 (showing contested time entries). The Court
agrees and therefore accepts plaintiff’s revised time records, Docket No. 348-1, which
remedy the computational errors correctly identified by defendant.
b. Unnecessary, Redundant, or Noncompensable Work
Defendant objects to three categories of time entries included in plaintiff’s billing
records: (1) time spent on “irrelevant,” “unrelated,” or “unnecessary” matters; (2) time
spent on tasks that could have been performed by a paralegal; and (3) time spent by
Mr. Beall before he had formally entered an appearance on behalf of plaintiff. See
Docket No. 339-1 at 45-49. 9
As to the first category, plaintiff asserts that the time entries for November 16,
2007 and August 2009 were related to either the scheduling of discovery matters in this
lawsuit or counsel’s efforts to respond to defendant’s request for information concerning
attorney’s fees and costs. Docket No. 348 at 12. Plaintif f also contends more broadly
that “the vast bulk of the time entries challenged [by defendant] relate to work
generated by the defendant’s discovery demands and discovery tactics concerning
economic damages.” Id. at 13. In his declaration, Mr. Beall stated that only those
hours spent on this action were included in the compilation of time entries. Docket No.
326-1 at 4. Given defendant’s failure to elaborate on his objections, see Docket No.
339 at 13 (arguing only that plaintiff is not entitled to fees for “redundant or irrelevant
matters”); Docket No. 339-1 at 45-47 (stating, without further elaboration, that hours
claimed were “unrelated,” or “unnecessary”), the Court finds no basis on which to
exclude the challenged hours from plaintiff’s lodestar calculation. 10
Defendant next challenges plaintiff’s entitlement to fees for hours spent on
matters that could have been delegated to support staff. Docket No. 339 at 13.
Plaintiff concedes that these hours should have been billed at a paralegal rate. See
To the extent that defendant challenges plaintiff’s entitlement to fees for hours
spent on unsuccessful claims, see Docket No. 339 (challenging hours spent on matters
in which plaintiff “obtained no results”); Docket No. 339-1 at 45-47 (challenging time
spent on claim for economic damages), that issue will be addressed below.
Plaintiff concedes that the April 26, 2009 entry for revisions to “M. Zinna draft
discovery requests to D. Cinquanta” related to a different case and has excluded those
hours from his amended time records. See Docket No. 348 at 13 n.3; see also Docket
No. 348-1 at 56.
Docket No. 348 at 13. Plaintiff’s fee award will therefore be adjusted in accordance
with the paralegal rate set above.
Defendant’s final argument is that plaintiff should not be compensated for hours
expended by Mr. Beall before he became counsel of record. Docket No. 339 at 13.
This argument is without merit. The Tenth Circuit has held that whether an attorney
has entered an appearance in a case is not relevant to the issue of attorney’s fees.
See Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d 1243, 1252 (10th
Cir. 1998) (noting that “our cases do not require an entry of appearance in order for the
court” to grant an award of attorney’s fees). Because plaintiff has demonstrated that
Mr. Beall’s time was spent on matters related to this litigation, see Docket No. 348 at 14
(explaining that Mr. Beall was “advising and counseling” plaintiff as to this litigation);
Docket No. 339-1 at 49 (challenged time entries reflecting time spent on matters related
to litigation), Mr. Beall’s pre-appearance hours will not be excluded from plaintiff’s fee
c. Reduction to Account for Partial Success
Defendant argues that any fee award should be substantially reduced to account
for plaintiff’s limited success in the litigation. Specifically, defendant requests that the
Court (1) exclude, from the lodestar calculation, the hours spent by Mr. Paulsen on
claims unrelated to defendant; (2) exclude the hours spent by Mr. Beall on unsuccessful
claims; and (3) reduce the lodestar amount by seventy-five percent. See Docket No.
339 at 11-12, 13-16.
Defendant does not challenge the reasonableness of Mr. Beall’s preappearance hours on any other ground.
When a party prevails on only certain claims, the Court applies a two-part
framework to determine a reasonable fee award. See R. M-G. v. Bd. of Educ. for the
Las Vegas City Schools, 645 F. App’x 672, 676 (10th Cir. 2016) (unpublished). The
Court first asks whether the party lost “on claims that were unrelated to the claims on
which he succeeded.” Hensley, 461 U.S. at 434. If so, the unrelated claims must “be
treated as if they had been raised in separate lawsuits, and . . . no fee may be awarded
for services on the unsuccessful claim.” Id. at 435. If the claims are related, however,
the Court must consider “the significance of the overall relief obtained by the plaintiff in
relation to the hours reasonably expended on the litigation.” Id.
Plaintiff’s first amended complaint asserted three causes of action against
nineteen defendants. Plaintiff’s first cause of action alleged violations of the federal
Racketeer Influenced and Correct Organizations (“RICO”) statute, 18 U.S.C. § 1964,
and civil conspiracy under Colorado law. See Docket No. 61-1 at 47-51. These claims
were based on allegations that various county officials had conspired to: (1) breach
their contractual duties under the development agreement entered into by BJC
Development Corporation and Jefferson County by failing to negotiate the agreement in
good faith, id. at 13-15, ¶¶ 41-47; (2) threaten BJC with the loss of contractual rights
under the development agreement if plaintiff attempted to obtain public records or
attend public meetings of the Board of County Commissioners of Jefferson County, id.
at 16-18, ¶¶ 51-53; (3) discriminate against plaintiff by failing to provide him with the
same fee waivers as other members of the media, id. at 18, ¶ 54; (4) make a record of
matters discussed at public meetings, id., ¶ 55; (5) negotiate the sale or lease of county
property without giving BJC or plaintiff the opportunity to bid on the purchase of the
property, id. at 19, ¶ 56; (5) retaliate against witnesses who were willing to testify on
behalf of BJC in its state contract action against Jefferson County, id. at 20, ¶ 58; (6)
illegally purchase commercial aviation property at Jefferson County Airport to compete
with BJC, id. at 21, ¶ 59; (7) defame BJC and its officers by providing known associates
and clients of the company with false information about BJC, id. at 21, ¶ 60; (8) violate
plaintiff’s rights by ordering “close contact” surveillance of plaintiff any time he was in
the Jefferson County Courts and Administration Building, id. at 23, ¶ 66; (9) bribe the
law clerk of the district court judge presiding over BJC’s state-court lawsuit to include
facts in the judge’s written opinion that were not contained in the record, id. at 24-26,
¶¶ 68-76; and (10) cause plaintiff to publish libelous information on his website, id. at
27, ¶¶ 77-80.
Plaintiff’s second cause of action asserted that defendants violated plaintiff’s
First Amendment rights by making the success of BJC’s and Jefferson County’s
settlement negotiations contingent on plaintiff ceasing all journalistic activities, including
filing Open Records Act requests for public information and attending and reporting on
political events in Jefferson County. Id. at 29-30, ¶¶ 86, 88-89. In his final cause of
action, plaintiff alleged that defendant Congrove had executed false documents using
plaintiff’s name in order to obtain a bank loan. Id. at 38-45, ¶¶ 49-98.
Through subsequent amendments to his complaint, plaintiff eliminated the
majority of claims and defendants initially involved in the lawsuit. In the operative
complaint, filed on January 25, 2006, plaintiff asserted a § 1983 claim against
defendant Congrove and the Jefferson County Board of County Commissioners for
violation of his rights under the First Amendment. Docket No. 89. On May 23, 2008,
Judge Matsch granted summary judgment in favor of Jefferson County on plaintiff’s
municipal liability claim, Docket No. 217, and further narrowed the scope of the lawsuit
by granting defendant’s pre-trial motion in limine to preclude plaintiff from seeking
certain economic damages. See Docket No. 273 (granting defendant’s motion in
limine, Docket No. 263, which sought to preclude plaintiff from presenting evidence at
trial regarding damages arising out of failed negotiations over the BJC development
deal and U.S. Bank’s foreclosure on the deed of trust granted by Ralph and Carmella
Aiello). After plaintiff’s presentation of his case-in-chief at trial, the court determined
that there had been no evidence to support a claim for economic damages related to
the loss of plaintiff’s radio show. Docket No. 312 at 4; Docket No. 384 at 4.
Accordingly, only two issues were submitted to the jury: (1) whether defendant
Congrove had violated plaintiff’s First Amendment rights; and (2) whether plaintiff was
entitled to emotional distress damages. Docket No. 384 at 4. On December 9, 2009,
the jury returned a verdict finding that defendant had “used his authority as a Jefferson
County Commissioner to take adverse action against Mr. Zinna in violation of the First
Amendment” and awarding $1,791.00 in damages. Docket No. 316-1.
Defendant argues that plaintiff’s lodestar amount should be reduced to account
for plaintiff’s partial success in the litigation. As noted above, this argument requires
the Court to determine the relationship between plaintiff’s successful and unsuccessful
The Court begins by addressing the first and third causes of action asserted in
plaintiff’s first amended complaint. Defendant argues that Mr. Paulsen’s hours should
be reduced to account for the time he spent on these claims. Docket No. 339 at 11-12.
“[C]laims are related if they are based on a common core of facts” or “related legal
theories.” Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173, 1177 (10th Cir.
2010) (citing Jane L., 61 F.3d at 1512); see also Hensley, 461 U.S. at 434 (claims are
unrelated if they are “based on different facts and legal theories). Here, the first and
third causes of action advance entirely different legal theories than plaintiff’s First
Amendment claim against defendant Congrove. However, only the third cause of
action is based on an entirely different set of facts – namely defendant’s
misappropriation of plaintiff’s name on financial documents.12 By contrast, there is
some factual overlap between plaintiff’s civil conspiracy/RICO claims, which were
predicated in part on defendants’ interference with plaintiff’s journalistic activities, see
Docket No. 61-1 at 19, ¶ 57 (alleging that defendants conspired “to chill or violate the
rights of Plaintiff Zinna by attempting to intimidate . . . Plaintiff Zinna not to publish freely
and not to speak freely his thoughts”), and plaintiff’s First Amendment claim against
defendant Congrove. See Chavez v. Stomp, 2014 WL 12796784, at *8 (D.N.M. Feb.
27, 2014) (agreeing with defendants’ “concession that the Title VII discrimination and
§ 1983 claims [were] related for purposes of § 1988, since both counts [were] based on
interference with religious freedom”); Spano v. Simendinger, 613 F. Supp. 124, 125-26
While plaintiff alleged that the acts underlying his third cause of action “were
the substantial motivating factor for Defendant James Congrove to insist that the Board
of County Commissioners of the County of Jefferson . . . impose prior restraint and
impermissible viewpoint discrimination against Plaintiff Zinna,” Docket No. 61-1 at 38,
¶ 48, they do not appear to be the factual basis for plaintiff’s First Amendment claim.
(S.D.N.Y. 1985) (finding no basis to reduce fee award where, “[a]lthough time was
spent investigating a claim of conspiracy and coverup which was dropped prior to trial,
this claim also arose out of the same incident and the fruits of such investigation might
have been useful in proving the underlying claim”); see also M.S. ex rel. J.S. v. Utah
Schs. for Deaf & Blind, 822 F.3d 1128, 1138 (10th Cir. 2016) (noting that cases
“involving truly unrelated claims . . . are unlikely to arise with great frequency” (internal
quotation marks omitted)). Accordingly, only the third cause of action is entirely
“unrelated” to plaintiff’s successful First Amendment claim under Hensley.13
Defendant also argues that plaintiff should not recover for the time Mr. Beall
spent on plaintiff’s unsuccessful claims for economic damages. See Docket No. 339 at
13; Docket No. 339-1 at 44-47 (objecting to time entries related to claims spent on
economic damages). However, defendant does not assert that the econom ic damages
Defendant suggests that plaintiff’s fee award should be limited to those hours
spent on matters specifically related to defendant Congrove. The Court disagrees.
See Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1281 (7th Cir. 1983) (holding that,
“when . . . a plaintiff raises a claim for relief that relates to several defendants, not all of
whom are held liable, the total time expended on the claim for relief should be counted
in awarding the plaintiff attorney’s fees so long as the defendants from whom plaintiff
did not obtain relief were not named frivolously”); Bustamante v. Albuquerque Police
Dep’t, 1991 WL 125307, at *5 (D.N.M. Apr. 24, 1991) (“As long as the claims are
related and not frivolous and the same factual information must be developed, the fact
that a plaintiff succeeds against only one of multiple defendants does not require
attorney’s fees to be apportioned on the basis of a percentage of the defendants
against whom plaintiffs were successful; recovery against only one of several
defendants still reflects achievement of the basic relief sought and justifies awarding
attorney’s fees for all time reasonably spent in achieving that result.”). Because
plaintiff’s claims against the other defendants were factually related to plaintiff’s claim
against defendant Congrove and non-frivolous, see Docket No. 319 (denying motions
for sanctions on ground that the court was “unable to say that the allegations made
against the moving defendants by the plaintiff’s previous counsel . . . were frivolous and
completely lacking in support”), the time spent litigating those claims is compensable.
plaintiff was seeking were unrelated to the First Amendment violations. Nor is there any
evidence that Judge Matsch made such a finding in dismissing the damages claims.
See Docket No. 263 at 5-6 (quoting court as saying that, “even if there could be a nexus
between the claims that are properly here under 1983 and the collapse of the
negotiations, the ultimate effect was that the county prevailed, so . . . the failure of the
negotiations didn’t lead to any loss in the ultimate effect”); Docket No. 312 at 4 (stating
that there had “been no evidence presented to support a claim for economic damages
with respect to the radio show”). The Court therefore finds that plaintiff’s claim for
economic damages is “related” to his successful First Amendment claim for purposes of
determining a reasonable fee award.14
Hensley calls for a different analysis depending on whether an unsuccessful
claim is related or unrelated to the claim on which the plaintiff ultimately prevailed. If a
claim is unrelated, then “no fee may be awarded for services on [that] claim.” Hensley,
461 U.S. at 435. The Court has concluded that only the third cause of action asserted
in plaintiff’s first amended complaint was “unrelated” to plaintiff’s successful First
Amendment claim against defendant Congrove. Accordingly, the Court must determine
how to reduce plaintiff’s fee award to account for the time spent on that claim.
Counsel’s billing records are not so detailed as to allow a precise determination
of the number of hours spent on the third cause of action. It also appears that Mr.
Paulsen spent much of his time developing the case as a whole and responding to
Defendant does not challenge the hours expended on plaintiff’s § 1983 claim
against Jefferson County, which was dismissed on summary judgment. See Docket
No. 217. Nevertheless, the Court finds that this claim was clearly related to the First
Amendment claim against defendant Congrove on which plaintiff prevailed.
motions that were largely unrelated to that claim. See generally Docket No. 348-1 at
14-26. Where, as in this case, it is difficult to identify the number of hours expended on
a particular claim, courts have reduced the plaintiff’s fee award by a percentage
amount. See, e.g., Chavez, 2014 WL 12796784, at *9 (reducing fee award by 10%
where “there was substantial overlap in testimony and preparation between Plaintiff’s
successful and unsuccessful claims”); Milham v. Perez, No. 03-cv-00702-MSK-MJW,
2005 WL 1925770, at *4 (D. Colo. Apr. 11, 2005) (applying 50% reduction to fee award
where “counsel’s billing records [were] not so granular” as to allow the court to “make a
precise finding as to what times were spent developing what claims”); see also Hensley,
461 U.S. at 436-37 (stating that “[t]here is no precise rule or formula” for accounting for
a plaintiff’s limited success and giving courts the discretion to “attempt to identify
specific hours that should be eliminated, or . . . simply reduce the award to account for
the limited success”).15 The Court will follow the same approach here. Specifically, the
Court will reduce, by twenty-five percent, the total hours expended by Mr. Paulsen prior
to the drafting of the third amended complaint.16 The Court finds a twenty-five percent
reduction appropriate because, although the third cause of action represents thirty-
One time entry specifically relates, at least in part, to the third cause of action,
see Docket No. 348-1 at 14 (April 13, 2005 time entry for 0.9 hours for meeting “with
Zinna to discuss results of legal research concerning civil RICO and conspirators
violations of criminal statutes and civil cause of action for invading Zinna’s privacy for
using his forged signature” (emphasis added)). Half of that time – or 0.45 hours – will
therefore be excluded from plaintiff’s fee award.
Plaintiff’s third amended complaint, filed on January 25, 2006, narrowed the
scope of the litigation to include only plaintiff’s municipal liability claim against Jefferson
County and the First Amendment claim against defendant Congrove. See Docket No.
three percent of the total claims asserted in the first amended complaint, that claim,
which was only asserted against defendant Congrove in his individual capacity and
Does 1-50, Docket No. 61-1 at 54, appears to have generated less work for plaintiff’s
counsel during the initial stages of the litigation. Indeed, as reflected by plaintiff’s
subsequent amendment to the pleadings, Docket No. 89, defendant Congrove’s alleged
appropriation of plaintiff’s name on financial documents was not the focus of the
Mr. Paulsen spent a total of 224.35 hours on the litigation prior to the filing of the
third amended complaint. See Docket No. 348-1 at 14-26. 17 After applying the twentyfive percent reduction, plaintiff is entitled to compensation for 168.26 hours spent by Mr.
Paulsen prior to the filing of the third amended complaint, and a total of 282.01 hours
spent on the litigation as a whole.18
Defendant also seeks a general, seventy-five percent reduction of the lodestar to
account for plaintiff’s limited recovery at trial. See Docket No. 339 at 4-9, 14-16; see
also Hensley, 461 U.S. at 434 (“The product of reasonable hours times a reasonable
rate does not end the inquiry. There remain other considerations that may lead the
district court to adjust the fee upward or downward, including the important factor of the
‘results obtained.’”). In determining what effect to give plaintiff’s partial success on
This number does not include the 0.45 hours that have already been deducted
for purposes of the fee award, see note 15 supra, or the time spent drafting the third
amended complaint and accompanying motion.
The Court calculated the 282.01 figure by subtracting twenty-five percent of
224.35 hours – or 56.09 hours – from the 338.1 total hours claimed for Mr. Paulsen in
the fee motion. See Docket No. 348-1 at 5.
related claims, such as plaintiff’s claims for damages, the Court must consider “the
significance of the overall relief obtained by the plaintiff in relation to the hours
reasonably expended on the litigation.” Id.
The Court finds that a seventy-five percent reduction of the lodestar is
unwarranted. As the Tenth Circuit has already determined, plaintiff’s recovery at trial –
though low in comparison with the amount he requested – was not merely “technical.”
Zinna I, 680 F.3d at 1242. Moreover, plaintiff succeeded in vindicating his First
Amendment rights, which was a central goal of the lawsuit. See id. at 1240 (holding it
was evident, based on jury’s finding that Congrove had “used his authority . . . to take
adverse action against Zinna in violation of the First Amendment,” that “Zinna
succeeded on a significant issue in litigation which achieves some of the benefits he
sought in bringing suit” (internal quotation marks omitted); see also Chavez, 2014 WL
12796784, at *10 (rejecting defendant’s proposed 50% reduction in fee award where
plaintiff succeeded on his relatively important First Amendment retaliation claim).
On the other hand, plaintiff’s billing records show that counsel spent a number of
hours pursuing unsuccessful claims for economic damages and responding to motions
by defendants who were dismissed from the lawsuit prior to trial. See, e.g., Docket No.
348-1 at 15-27 (time records showing substantial number of hours spent responding to
motions to dismiss and motions for sanctions filed by defendants other than defendant
Congrove), 56-58 (time records showing over thirty hours devoted to motion in limine
concerning damages). In light of this, the Court finds that the total number of hours
expended on the litigation was not reasonable in relation to the results obtained. See
Hensley, 461 U.S. at 435; Zinna I, 680 F.3d at 1242 n.1 (noting that, although the
district court’s $8,000 fee award was arbitrary, plaintiff was “clearly not entitled to
$503,000” in attorney’s fees, which included “costs for work related to Zinna’s failed
damages request and for litigation surrounding claims in which Zinna did not succeed”).
Having determined that the number of hours expended on the litigation was
unreasonable, the Court has discretion to “attem pt to identify specific hours that should
be eliminated” or to “simply reduce the award to account for the limited success.”
Hensley, 461 U.S. at 436-37. Here, the Court opts f or the latter approach and finds that
a twenty percent reduction in the lodestar appropriately accounts for plaintiff’s lack of
success against all of the defendants (except for defendant Congrove) initially named in
the lawsuit, as well as for the significant discrepancy between the monetary relief
sought, see Docket No. 339-1 at 15-17 (asserting millions of dollars in economic
damages), and the monetary relief obtained. See Doe ex rel. Doe v. Keala, 361 F.
Supp. 2d 1171, 1187 (D. Haw. 2005) (reducing lodestar to account for the plaintiff’s lack
of success against certain defendants and the low damages award which, “[m]easured
against the years of litigation, the considerable amount of resources expended on th[e]
case, and Plaintiffs’ (and their counsels’) expectations,” represented a “substantial
defeat”). While “a plaintiff who has won substantial relief should not have his attorney’s
fee reduced simply because the district court did not adopt each contention raised,”
Hensley, 461 U.S. at 440, plaintiff sought a far broader vindication of his First
Amendment rights than that which he ultimately obtained. See Flitton v. Primary
Residential Mortg., Inc., 614 F.3d 1173, 1178 (10th Cir. 2010) (“A reduced f ee award is
appropriate if the relief, however, significant, is limited in comparison to the scope of the
litigation as a whole.” (internal quotation marks and alteration omitted)). Moreover, it is
clear from plaintiff’s discovery responses that vindicating his First Amendment rights
was not his only objective in bringing the lawsuit. He also sought significant monetary
relief. See Docket No. 339-1 at 15-17 (asserting millions of dollars in economic
damages); see also Jane L., 61 F.3d at 1511 (stating that district courts “must make a
qualitative assessment to determine what less-than-perfect results are ‘excellent,’
justifying full recovery, or to what extent [a plaintiff’s] ‘limited success’ should effect a
reduction in the lodestar”). Because plaintiff achieved only limited success in relation to
that goal, a twenty percent reduction of the lodestar is appropriate. Compare Flitton,
614 F.3d at 1178 (holding that district court did not abuse its discretion in declining to
reduce fee award based on degree of success where, although the plaintiff’s ultimate
damages award “did not approach the amount of damages she sought, her award of
over $350,000 in th[e] Title VII suit was not inconsequential”), and Chavez, 2014 WL
12796784, at *9 (finding lesser reduction of ten percent appropriate where the plaintiff
“succeeded on a relatively important claim . . . and achieved a significant damages
award” (emphasis added)), with Doe ex rel. Doe, 361 F. Supp. 2d at 1187 (applying a
fifty percent reduction to lodestar where “the monetary relief obtained [was] far less
than that sought by the plaintiff”).
3. Calculation of Lodestar
The hours reasonably expended by plaintiff’s counsel (before the additional
twenty percent reduction for limited success) are as follows: 650.9 hours for Mr. Beall;
106.1 hours for Ms. Kelley; 282.01 hours for Mr. Paulsen; 863.2 attorney hours for Mr.
Platt; 11.8 paralegal hours for Mr. Platt; and 1.5 hours for Mr. Zansberg. Docket No.
348-1 at 5.19 When these amounts are multiplied by the reasonable hourly rates
identified above, the resulting lodestar is $457,084.75, or $187,472.50 f or Mr. Beall,20
$10,610.00 for Ms. Kelley, $63,452.25 for Mr. Paulsen, $195,400.00 for Mr. Platt, and
$150.00 for Mr. Zansberg. After the twenty percent reduction to account for plaintiff’s
limited overall success, plaintiff is entitled to a fee award of $365,667.80. The Court
finds this to be a reasonable sum in light of the hours expended on the litigation and the
III. MOTION FOR SUBSTITUTION
Defendant separately moves to substitute Jefferson County as defendant in this
case pursuant to Fed. R. Civ. P. 25(c). Docket No. 425. 21 In support of the motion,
defendant states that Jefferson County has agreed to indemnify her against any
judgment entered against her as personal representative of James Congrove’s estate.
Id. at 2. Defendant asserts that “[t]he only reason that the Estate remains open is
Although Mr. Beall’s summary table does not differentiate between Mr. Platt’s
attorney hours and paralegal hours, the time records show that Mr. Platt spent 11.8
paralegal hours on the litigation. See generally Docket No. 348-1 at 13-80.
Mr. Beall raised his hourly rate from $275 to $290 between December 24, 2007
and January 22, 2008. See Docket No. 348-1 at 35-36.
On January 23, 2012, while this case was on appeal to the Tenth Circuit,
counsel for defendant James Congrove notified the court that James Congrove had
died. Docket No. 383. Plaintiff subsequently moved to substitute Judy Congrove, in
her capacity as personal representative of Mr. Congrove’s estate, as the defendantappellee for purposes of the appeal. Docket No. 384 at 13 n.2. T he Tenth Circuit
granted plaintiff’s motion on June 5, 2012. Id.
because the Personal Representative is the named defendant in this action” and that, in
light of Jefferson County’s agreement to indemnify defendant, “there is no reason for
the Personal Representative to remain a party.” Id.
Federal Rule Civ. P. 25(c) provides that, “[i]f an interest is transferred, the action
may be continued by or against the original party unless the court, on motion, orders
the transferee to be substituted in the action or joined with the original party.”
Defendant makes no showing that Jefferson County’s agreement to indemnify
her in the event of an adverse judgment constitutes a transfer of interest within the
meaning of Fed. R. Civ. P. 25(c). See In re Chalasani, 92 F.3d 1300, 1312 (2d Cir.
1996) (“Although granting substitution of one party in litigation for another under Rule
25(c) is a discretionary matter for the trial court, such discretion may not be abused by
allowing substitution in the absence of a transfer of interest.” (internal citation omitted));
In re Publication Paper Antitrust Litig., 2013 WL 3155371, at *3 (D. Conn. June 20,
2013) (denying motion for substitution where third party had agreed only to indemnify
defendant, not assume defendant’s liability directly). Nor does the Court perceive any
reason to substitute Jefferson County as a defendant at this stage of the litigation.
Defendant states that James Congrove’s estate remains open only because the
Personal Representative is named as a defendant. However, given the Court’s ruling
on plaintiff’s motion for attorney’s fees above, there are no issues left to be resolved in
For the foregoing reasons, it is
ORDERED that Plaintiff’s Motion for Award of Reasonable Attorney’s Fees and
Non-Taxable Costs [Docket No. 326] is GRANTED in part and DENIED in part as
stated in this order. It is further
ORDERED that plaintiff is awarded $365,667.80 in trial attorney’s fees. It is
ORDERED that Defendant Estate of James Congrove’s Request for Ruling on
Plaintiff’s Motion for Attorney Fees [Docket No. 424] is DENIED as moot. It is further
ORDERED that defendant’s Motion to Substitute Jefferson County as Defendant
[Docket No. 425] is DENIED.
DATED March 18, 2019.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge
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