Gol TV, Inc. v. EchoStar Satellite Corporation et al
Filing
121
ORDER. Plaintiff's 103 Motion for Award of Reasonable Attorney's Fees Pursuant to the Parties' Contract is granted in part and denied in part. Plaintiff shall be awarded $71,537.50 in attorney's fees. By Judge Philip A. Brimmer on 9/13/11.(mnf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 08-cv-02143-PAB-MJW
GOL TV, INC., a Florida corporation,
Plaintiff,
v.
ECHOSTAR SATELLITE CORPORATION, a Colorado corporation, and
ECHOSTAR SATELLITE, L.L.C., a Colorado limited liability company, n/k/a Dish
Network, L.L.C.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s motion for attorney’s fees [Docket
No. 103]. The motion is fully briefed and ripe for disposition.
I. BACKGROUND
Plaintiff filed this breach of contract case on October 3, 2008. See Docket No. 1
(Complaint). Plaintiff alleged that defendants breached the parties’ Affiliation
Agreement by failing to make several license fee payments and brought claims for
breach of contract or, in the alternative, quantum meruit. The parties proceeded
through discovery and, on July 6, 2009, the parties filed cross motions for summary
judgment, plaintiff seeking only partial summary judgment on its claim for breach of
contract. See Docket Nos. 53, 55. After the magistrate judge entered the Final Pretrial
Order and the Court set the case for trial, the Court issued an order denying
defendants’ motion for summary judgment and granting plaintiff’s motion for summary
judgment. See Docket No. 89. The Court ultimately issued an order on damages and
directed entry of judgment on August 23, 2010. See Docket No. 99. Judgment entered
in the case on August 24, 2010.
Plaintiff filed the instant motion for attorney’s fees due under the parties’ contract
on September 13, 2010. Pursuant to the parties’ stipulation, the Clerk taxed costs
against defendants in the amount of $1,495.17 on October 13, 2010.
II. ANALYSIS
Plaintiff seeks reasonable attorney’s fees pursuant to the parties’ Affiliation
Agreement which provided for “reasonable attorney fees” to the prevailing party “in the
event of any suit or action to enforce or interpret this Agreement or any provision
thereof.” See Docket No. 103-1 at 15, ¶ 13.3.1 Defendants do not contest that plaintiff
is the prevailing party and thus entitled to fees under the contract, nor do defendants
dispute that the “lodestar” method is the appropriate way to calculate the fees owed.
This calculation determines a presumptively reasonable fee by multiplying the number
of attorney hours “reasonably expended on the litigation” by a “reasonable hourly rate.”
See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
Defendants do, however, object to the billing rates sought by plaintiff and the
number of attorney hours. The Court will address each of these objections in turn.
A. Hourly Rates
Plaintiff seeks compensation for its counsel at the rate of $535 an hour for the
work of Steven D. Zansberg, $505 an hour for Christopher P. Beall, $350 an hour for
1
Plaintiff sought $98,778.79 in fees in its original motion, but corrected this
amount to $97,887.50 in its reply. See Docket No. 120 at 1 n.1.
2
Adam M. Platt, and $225 an hour for Marla D. Kelley. According to Mr. Beall’s affidavit,
Mr. Zansberg and Mr. Beall are partners at Levine Sullivan Koch & Schulz, L.L.P. in
Denver and Mr. Platt is a former associate of that firm.2 Mr. Beall provided professional
backgrounds for each of these attorneys, but not for Ms. Kelley. Mr. Beall states that
these billing rates are the “standard rates [his] law firm charges to New York and
international media companies such as Gol TV, Inc.” and “reflect the experience and
expertise of [his] law firm in representing major media companies.” See Docket No.
103-2 at 5. Mr. Beall also states that “[t]hese rates are competitive in the legal markets
in which [his] firm operates, and were paid by Gol TV, Inc. based on an arms-length
engagement agreement with the plaintiff.” Id.
Defendants object that these rates are too high for the Denver legal market.
Defendants present the affidavit of Steven W. Kelly, a member of the Denver law firm
Silver & DeBoskey, P.C., who states that he reviewed the qualifications and
background of plaintiff’s counsel and the history of the case and opines that the hourly
rates sought by plaintiff exceed the prevailing rates charged by similarly experienced
attorneys practicing commercial litigation in the Denver area. See Docket No. 113-1.
Mr. Kelly opines that the prevailing hourly rates for an attorney with Mr. Beall’s
experience in the Denver market would range between $225 and $375, between $240
and $385 for an attorney with Mr. Zansberg’s experience, and between $175 and $255
for an attorney with Mr. Platt’s experience. See Docket No. 113-1 at 4-5. Mr. Kelly also
2
Mr. Beall submitted an affidavit in support of the motion for fees in compliance
with D.C.COLO.LCivR 54.3. The affidavit does not state what Ms. Kelley’s role at the
firm is. However, defendants characterize her as a “legal assistant” and plaintiff does
not dispute this characterization. See Docket No. 113 at 3.
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opines that the prevailing rate for a legal assistant or paralegal in the Denver area is
between $25 and $140 per hour. See id. at 5.
In the Tenth Circuit, a reasonable hourly rate for an award of attorney’s fees is
determined by looking at “what the evidence shows the market commands for . . .
analogous litigation.” Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1255 (10th
Cir. 1998). The party requesting fees bears “the burden of showing that the requested
rates are in line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Ellis v. University of Kan.
Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998) (quotation and citation omitted).
Plaintiff does not offer any evidence that the rates it seeks would routinely be charged
by attorneys engaged in commercial litigation in the Denver area. Rather, Mr. Beall
asserts that these are both the rates that his firm normally charges “New York and
international media companies” and the rates that it actually charged plaintiff here.
However, the Tenth Circuit has held that the rates of the local area should be applied
unless “the subject of the litigation was so unusual” as to require an out-of-state litigator
with special expertise.3 See Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006).
Plaintiff has not demonstrated that such special expertise was necessary in this
relatively straightforward contract dispute, notwithstanding plaintiff’s status as a media
company or defendants’ reputation for aggressive litigation tactics. See Docket No. 120
at 3. Although plaintiff posits several litigation scenarios that might have necessitated
media expertise, plaintiff does not argue that it made use of this expertise as the
3
Although Levine Sullivan Koch & Schulz, L.L.P. is, in fact, located in Denver, it
is analogous to an out-of-state firm as it seeks compensation at national rates.
4
litigation actually played out. See id. The fact that plaintiff actually paid these higher
rates is relevant to their reasonableness, but it is not dispositive. See Lucero v. City of
Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987) (prevailing rates at the firm seeking fees
are “relevant but not conclusive in determining a reasonable rate”). Here, defendants
have submitted evidence that the rates sought by plaintiff are substantially above the
local market rate for similar work, and plaintiff has not responded with any evidence
demonstrating that they are in fact prevailing market rates. Nonetheless, taking into
account the evidence that plaintiff paid an above market rate based on its expectation
of potentially complex issues, the Court will reduce the rates requested by plaintiff to the
higher end of Mr. Kelly’s provided ranges for the Denver market. Thus, the Court will
award plaintiff fees for Mr. Beall at $375 an hour, Mr. Zansberg at $385 an hour, Mr.
Platt at $255 an hour, and Ms. Kelley at $140 an hour.
B. Number of Hours
Defendants claim that plaintiff seeks an unreasonable number of attorney hours.
First, defendants argue that plaintiff seeks time billed by more expensive partners that
could reasonably have been performed by less expensive associates. The Court finds
that this objection does not have merit. Although partners did perform the bulk of work
on the case, the billing records submitted by plaintiff do not show improperly top-heavy
billing or delegation of “routine tasks” as argued by defendants. See Docket No. 113 at
5 (citing Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3rd Cir. 1983)). Rather, they
demonstrate that plaintiff’s counsel delegated simple tasks to an associate or a legal
assistant and performed the substantive work efficiently themselves. The Court
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concludes, based on its review of the billing records submitted by plaintiff, that the ratio
of partner hours to associate or legal assistant hours is reasonable.
Finally, defendants argue that two time entries were billed for work related to
other cases. See Docket No. 113 at 7-8. The Court agrees that these entries include
work not related to this litigation and, therefore, are not appropriately awarded to
plaintiff here. Accordingly, the Court will reduce the award by .9 hours of Mr.
Zansberg’s time and 1.6 hours of Mr. Beall’s time related to these two entries.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that plaintiff’s Motion for Award of Reasonable Attorney’s Fees
Pursuant to the Parties’ Contract [Docket No. 103] is GRANTED in part and DENIED in
part. It is further
ORDERED that plaintiff shall be awarded $71,537.50 in attorney’s fees.
DATED September 13, 2011.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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