Loncar et al v. Western Peak, LLC et al

Filing 186

ORDER granting Motion for Entry of Judgment 174 ; granting Motion for Extension of Time to File Response/Reply 182 ; denying as moot Motion for Extension of Time to File Response/Reply 185 . Judgment shall enter in favor of defendants David R . Fiore, Western Peak, LLC and JC Ventures and against George M. Allen for attorneys fees in the amount of $41,826.50. judgment shall enter in favor of defendants Cynthia M. Peters and Prosperity Bookkeeping, Inc. and against George M. Allen for attorneys fees in the amount of $26,183.00.By Judge Philip A. Brimmer on 5/3/12.(pabcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 08-cv-01592-PAB-CBS
ROBERT LONCAR, et al.,
Plaintiffs,
v.
WESTERN PEAK, LLC, a Colorado limited liability company, et al.,

Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the motion for entry of judgment [Docket No.
174] filed by defendants David R. Fiore, Western Peak, LLC, and JC Ventures
(collectively, the “Western Peak defendants”) on January 16, 2012.
On March 30, 2011, the Court granted [Docket No. 169] the motions for
attorneys’ fees pursuant to 28 U.S.C. § 1927 filed by the Western Peak defendants
[Docket No. 145] and by defendants Cynthia M. Peters and Prosperity Bookkeeping,
Inc. [Docket No. 148]. The Court ordered the defendants to file affidavits complying
with D.C.COLO.LCivR 54.3 documenting the fees incurred as a result of the
unreasonable multiplication of the proceedings by plaintiffs’ attorney George M. Allen.
The defendants filed their respective affidavits on April 25 and May 2, 2011.
See Docket Nos. 170, 171. Mr. Allen filed a document entitled “Status Report
Regarding Response to Attorney Fee Submissions,” in which he informed the Court that

he had “sent out requests for conferral regarding a motion intended to be filed either
late today or tomorrow morning seeking an extension of time to June 13, 2011 to file a
response regarding the pending submissions for award of attorney fees.” Docket No.
172 at 1. In light of his failure to respond, the Western Peak defendants request in the
present motion that judgment now enter against Mr. Allen in the amount of $41,826.50.
On February 13, 2012, the Court issued a Minute Order [Docket No. 176]
granting Mr. Allen’s motion for an extension of time [Docket No. 175] until February 17,
2012 to respond to the present motion. Mr. Allen filed a second motion for extension of
time at 11:59 p.m. on February 17, 2012 [Docket No. 177] requesting one additional
business day to file a response. Despite Mr. Allen’s failure to comply with this Court’s
Practice Standards, see Practice Standards (Civil cases), Judge Philip A. Brimmer
§ I.G.2 (“Any motion for extension of time shall be filed no later than three business
days before the date the motion, response, reply, or other paper is due.”) (emphasis in
original), the Court granted Mr. Allen leave to file a response no later than February 21,
2012. Mr. Allen filed an untimely response [Docket No. 179] on February 23, 2012.
See also Docket No. 180 (Supp. to Resp.); Docket No. 181 (Notice of Typographical
Error in Supp. to Resp.). Three days later, he filed a motion requesting a retroactive
extension of time [Docket No. 182] to file his response. Although the Court agrees with
the Western Peak defendants that Mr. Allen failed to show good cause for his untimely
filing, see Docket No. 183, the Court will consider his response.
In his response, Mr. Allen contends that defendants deliberately withheld
inculpatory business records and that to award fees pursuant to 28 U.S.C. § 1927

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would reward such conduct. As the Court stated in the March 30, 2011 order, “Mr.
Allen provides no authority for the proposition that defendants’ failure to comply with
discovery requests precludes an award of fees under section 1927.” Docket No. 169 at
8. The Court further concluded that “[t]his alleged failure to disclose documents is
ultimately irrelevant to whether Mr. Allen had a reasonable basis to assert federal
jurisdiction.” Id. Mr. Allen contends that the documents, once produced, were
“damning,” Docket No. 179 at 2, but still fails to “deny defendants’ allegation that he
deliberately attempted to manufacture federal jurisdiction in this case,” Docket No. 169
at 7, the conduct which the Court concluded unreasonably multiplied these
proceedings. Therefore, the Court finds no basis to revisit the substantive basis for its
award of fees to defendants.
Turning to the Western Peak defendants’ affidavit documenting those fees, the
Court must determine the reasonableness of their request. As an initial matter, Mr.
Allen’s response does not dispute the reasonableness of either the hours or rates
requested by the Western Peak defendants. Moreover, as noted above, defendants
Cynthia M. Peters and Prosperity Bookkeeping, Inc. filed their affidavit documenting
their fee request on May 2, 2011. See Docket No. 171. Mr. Allen has not interposed
any challenge to the reasonableness of the rates or hours documented therein. The
Court therefore will take up the reasonableness of their request as well.
In Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998), the Tenth Circuit
reviewed the approach to be used in calculating an award of attorney’s fees, stating
that,
[t]o determine the reasonableness of a fee request, a court must begin by
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calculating the so-called “lodestar amount” of a fee, and a claimant is
entitled to the presumption that this lodestar amount reflects a “reasonable”
fee. The lodestar calculation is the product of the number of attorney hours
“reasonably expended” and a “reasonable hourly rate.”
Id. at 1281. The analysis has two components: first, whether the hours billed “were
‘necessary’ under the circumstances,” id.; and second, whether the hourly rate charged
“is the prevailing market rate in the relevant community.” Guides, Ltd. v. Yarmouth
Group Property Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002).
The Court has reviewed the billing records in the defendants’ affidavits, which
reflect work conducted over approximately two years, see Docket No. 169 (March 30,
2011 Order), to ensure that the hours claimed and the rates charged are reasonable.
Having engaged in that independent review, and in the absence of any objection by Mr.
Allen to any of the claimed hours or rates, the Court has found no basis to conclude
that the time spent was not reasonably necessary or that the hourly rates fail to
reasonably relate to the prevailing rates in Denver, Colorado. Consequently, it is
ORDERED that Mr. Allen’s motion for extension of time [Docket No. 182] is
GRANTED. It is further
ORDERED that the Western Peak defendants’ motion for extension of time to
file a reply [Docket No. 185] is denied as moot. It is further
ORDERED that the motion for entry of judgment [Docket No. 174] filed by
defendants David R. Fiore, Western Peak, LLC, and JC Ventures is GRANTED.
Judgment shall enter in favor of defendants David R. Fiore, Western Peak, LLC and JC
Ventures and against George M. Allen for attorneys’ fees in the amount of $41,826.50.
It is further
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ORDERED that judgment shall enter in favor of defendants Cynthia M. Peters
and Prosperity Bookkeeping, Inc. and against George M. Allen for attorneys’ fees in the
amount of $26,183.00.

DATED May 3, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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