May v. Webb et al

Filing 86

ORDER Concerning Attorney's Fees. Defendants' 71 Motion for Attorney Fees is denied. Plaintiff's 76 Motion for Attorney Fees is granted in part and denied in part. The motion is granted to the extent of $12,043.00 and otherwise denied. Judgment shall enter in Plaintiff's favor against Defendants, by Judge Walker D. Miller on 6/21/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Walker D. Miller

Civil Action No. 09-cv-01353-WDM
ROBERT A. MAY,
Plaintiff,
v.
KYLE HOWARD WEBB, et al.,
Defendants.
__________________________________________________________________
ORDER CONCERNING ATTORNEYS’ FEES
__________________________________________________________________
This matter is before me on the Plaintiff’s Motion for Determination of Attorney
Fee Award (ECF No. 76) and Defendants’ Motion for Award of Costs and Attorney Fees
(ECF No. 71). Each party opposes the other’s motion. Plaintiff’s motion was pursuant
to my Order on Motion for Entry of Judgment and Award of Attorneys’ Fees and Costs
(ECF No. 69), in which I ordered that Plaintiff was entitled to attorneys’ fees and costs
incurred up until the time of receipt of Defendants’ check for $36,823.00. Id at 6.
Plaintiff’s motion now seeks to recover those fees. Defendants’ motion asserts that they
too are “prevailing parties” pursuant to the parties’ agreement and are entitled to
recover fees and costs.
Background
I incorporate and restate the “Background” sections of my previous orders (ECF
Nos. 60 & 69).

Discussion
Plaintiff’s motion for fees and costs seeks recovery for fees and expenses
charged by Plaintiff’s Texas counsel, Daryl B. Crown, in the amount of $9,940.00, and
Colorado counsel, Bieging Shapiro & Burrus LLP, in the amount of $8,723.00.1 Plaintiff
submits with his motion copies of billings of each and an affidavit of Steven E. Abelman,
a practicing attorney in Denver with the law firm of Brownstein Hyatt Farber Schreck
LLP opining that the hourly rate charged by Plaintiff’s counsel and the hours billed were
reasonable for the Denver metro area pursuant to the factors set out in Disciplinary Rule
1.5 of the Colorado Rules of Professional Conduct.
Defendants objected to the motion and argue each of the fifteen factors, which,
Defendants point out, were not well covered by Plaintiff’s motion. In particular,
Defendants argue that recovery should be limited to those expenses incurred from
commencement of litigation and not before. I disagree. Certainly for the Colorado firm,
reasonable expenses include the lawyers informing themselves in order to properly file
a complaint. Nothing suggests that any of the Colorado firm’s charges are not part of
“all reasonable costs and expenses” incurred by the prevailing party. See Bowman v.
Blair, 889 P.2d 1069, 1075 (Alaska 1995). On the other hand, a review of the Crown
bills do not enable me to conclude that the hours charged prior to the decision to
commence litigation are properly charged as reasonable expenses. From May of 2007
through May of 2008 there are indications that some of the charges may be related to
the ultimate issue but others do not and some are even redacted. It is not my role to
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Expenses are included in those amounts but there appears to be no dispute
concerning those expenses.
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review billings like a careful auditor in order to separate the wheat from the chaff. As
the Supreme Court recently noted, “trial courts need not, and indeed should not,
become green-eyeshade accountants.” Fox v. Vice, __ S. Ct.__, 2011 WL 2175211 at
*8 (U.S. June 6, 2011). Accordingly, Mr. Crown’s charges from May 7, 2007 through
May 15, 2008 will not be awarded.
Defendant also asserts that Texas counsel’s hours were duplicative or
unnecessary. I tend to agree. Once a competent Colorado firm had been selected
there is no need to “over lawyer” a matter. Mr. Crown never entered his appearance in
this matter and, although he may well have provided reasonable service to his client, I
do not deem his review functions to be necessary expenses for a fee recovery; these
hours instead appear duplicative. See Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir.
1983). However, contacting and informing Colorado counsel of the nature of the case
and its factual background are appropriately chargeable. Charges from Dec. 18, 2008
until March 6, 2009 are of that nature and the 16.6 hours at $200/hr (or $3,320.00 total)
for that time period should be allowed.
Defendants also argue that Plaintiff was only partially successful in the claims
made and that at least the “constructive trust” theory had little merit. Although I
recognize that plaintiffs tend to “over-plead” their cases, defendants also tend to “over
defend” by routinely listing every possible defense. Again, I decline to ferret out what
may be the hours attributable to an inappropriate constructive trust theory or other
claims.
In any case, Plaintiff prevailed on a “significant claim affording some of the relief
sought,” entitling him to prevailing party status. Tex. State Teachers Ass’n v. Garland
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Indep. Sch. Dist., 489 U.S. 782, 791 (1989) (emphasis added). Accordingly, Plaintiff is
entitled to recover the $8,723.00 charged by the Colorado firm for the relevant time
period and $3,320.00 of the charges from the Texas lawyer or a total of $12,043.00.
The same analysis determines Defendants’ motion for award of costs and
attorney’s fees (ECF No. 71) as well. Plaintiff prevailed on the central issue of the case
and is entitled to recovery in accordance with the Supreme Court’s reasoning in the
Tex. State Teachers Ass’n case as well as the standards of the Colorado Supreme
Court. See Boyd Rosene & Assocs., Inc. v. Kansas Mun. Gas Agency, 123 F.3d 1351,
1352 (10th Cir. 1997) (attorneys’ fee issue in a diversity action is substantive and
controlled by state law). Under Colorado law, the issue of who is the prevailing party
under a fee-shifting agreement is left to my discretion. Lawry v. Palm, 192 P.3d 550,
570 (Colo. App. 2008). Even assuming that Defendants are somehow prevailing
parties, I maintain my prior determination that the Plaintiff was the prevailing party on
the significant issue of this litigation. Accordingly, Defendants’ motion should be denied.
It is therefore ordered:
1. Defendants’ Motion for Award of Costs and Attorneys’ Fees (ECF No. 71) is
denied.
2. Plaintiff’s Motion for Determination of Attorney Fee Award (ECF No. 76) is
granted in part and denied in part. The motion is granted to the extent of $12,043.00
and otherwise denied.
3. Judgment shall enter in Plaintiff’s favor against Defendants for attorneys’ fees
and costs in the amount of $12,043.00.
DATED at Denver, Colorado, on June 21, 2011.
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BY THE COURT:

s/ Walker D. Miller
United States Senior District Judge

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