Hill v. City of Aurora, Colorado

Filing 119

ORDER. Sanctions in the amount of $4,130.00 are hereby awarded to the Defendant and against Plaintiff's counsel Derek W. Cole. Sanctions shall be remitted in full on or before 9/3/2011. By Magistrate Judge Kathleen M. Tafoya on 8/3/11. (mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 10–cv–01134–PAB–KMT

GEORG K. HILL,
Plaintiff,
v.
THE CITY OF AURORA, COLORADO, a municipal corporation,
Defendant.

ORDER

This matter comes before the court on “Defendant’s Itemized Accounting of Costs,
Including Attorneys’ Fees, per Magistrate’s Order Dated June 1, 2011 [Doc. No. 88]” (“Notice”)
filed on June 20, 2011. (Doc. No. 92.) “Plaintiff’s (Amended) Response to [Doc. No. 92]”
(Doc. No. 103) (“Resp.”) was filed on July 6, 2011 and Defendants’ Reply in Support of
“Defendant’s Itemized Accounting of Costs, Including Attorneys’ Fees, per Magistrate’s Order
Dated June 1, 2011 [Doc. No. 88]” was filed on July 22, 2011. (Doc. No. 110.)
Background
On April 28, 2011, Defendant filed three discovery motions: “Defendant’s Fed. R. Civ.
P. 37 Motion to Compel Answers to Defendant’s First Set of Interrogatories” (Doc. No. 83);
“Defendant’s Fed. R. Civ. P. 37 Motion to Compel the Deposition of Plaintiff” (Doc. No. 84);

and “Defendant’s Fed. R. Civ. P. 37 Motion to Compel Plaintiff to Respond To Defendant’s
Second Set of Interrogatories, Requests for Admissions, and Requests for Production of
Documents to Plaintiff” (Doc. No. 85). The motions were referred to this court by District Judge
Philip A. Brimmer for ruling on the same day. (Doc. No. 86.) Having recognized early in the
case that deadlines and other obligations attendant to pursuing a federal matter would need to be
clearly communicated to counsel, this court issued a Minute Order setting forth a briefing
schedule consistent with the requirements of D.C.COLO.LCivR 7.1C for the three pending
motions and set the matter for hearing after all briefing was complete. (Doc. No. 87.)1 Plaintiff
was ordered to file his response to the three motions on or before May 20, 2011. (Minute Order,
Doc. No. 87.)
On June 1, 2011, eleven days after plaintiff had been ordered to file his responses to the
pending motions, the court noted that Plaintiff had not filed a response to any of the motions.
The court therefore concluded “that the Plaintiff does not object to the relief requested and
confesses the motions.” (Order, Doc. No. 88.) See Fed. R. Civ. P. 37(b)(2) (sanctions for noncompliance with discovery include that designated facts may be taken as established).
Additionally, this court, after analyzing the facts before it pursuant to Fed. R. Civ. P. 26 and 37,
found there was “no showing whatsoever that plaintiff was substantially justified in not

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This court does not grasp Plaintiff’s argument that this briefing schedule, providing
particular and specific dates by which responses and replies must be filed to the three pending
motions and setting a hearing date after full briefing could possibly be confusing or done in “cart
before the horse” fashion. (Resp. at 1-2.) In the court’s experience, requiring counsel to comply
with the Local Rules and allowing each side to fully brief motions prior to conducting any
hearing would be the usual and customary manner of proceeding with discovery disputes.
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providing the discovery or in opposing the motions to compel” and awarded costs as mandated
by Rule 37.
Defendant thereafter filed its itemized accounting herein and the court allowed Plaintiff
to file any response regarding the reasonableness of Defendant’s Itemized Account on or before
June 28, 2011. (Minute Order, Doc. No. 93.) The date for Plaintiff’s response was later
extended upon his request to July 5, 2011. (Doc. No. 96.) The response was timely filed.2
Analysis
Defendant requests fees and costs in the amount of $4,130.00 for the preparation and
filing of Doc. Nos. 83, 84 and 85. (Notice ¶ 3.) Hours billed for attorney Schimberg were a
total of 13.9 at $220.00 per hour. Additionally, 6.7 hours were billed as attributable to Scott W.
Drusch. associate attorney, at $160.00 per hour. (Affidavit of Timothy P. Schimberg, Notice,
Ex. A.) The Affidavit was supported by detailed, itemized billing records submitted by Mr.
Schimberg that represented the invoiced billing submitted to his client for the concomitant
work. (Id., Ex. A-3.) The professional resumes of Mr. Schimberg and Mr. Drusch were also
attached. (Id., Ex. A-1 and A-2.)
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:
To determine the reasonableness of a fee request, a court must begin by calculating the
so-called “lodestar amount” of a fee, and a claimant is entitled to the presumption that this

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Plaintiff filed his response on July 5, 2011 and on July 6, 2011 filed his Amended
Response.
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lodestar amount reflects a “reasonable” fee. The lodestar calculation is the product of a 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).
Unfortunately, Plaintiff has chosen not to address either of the components under which
the court must base a decision, choosing instead to malign the court and opposing counsel in an
attempt to cast blame upon others for his own failure to abide by both the court’s explicit order
and D.C.COLO.LCivR 7.1C. In the small part of Plaintiff’s response that deals with the
“merits” of his position as opposed to his character assassination, he contends that attorney fees
should not be awarded in light of the holdings of the Tenth Circuit in Houston v. Norton, 215
F.3d 1172 (10th Cir. 2000) and the United States Supreme Court in Hughes v. Rowe, 449 U.S. 5,
14-16 (1980).3 The court rejects this argument.
Based on the court’s experience with the fees and rates of attorneys practicing in the
District of Colorado federal court, the court finds the hourly rates charged by the associate

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Plaintiff’s reliance on these two cases is sorely misplaced. Both cases dealt with an
award of fees and/or costs against a plaintiff, proceeding pro se, in a Section 1983 civil rights
case whose case was dismissed on summary judgment, not a represented Plaintiff in an
employment matter where the fees and costs awarded relate to Fed. R. Civ. P. 37 discovery.
Further, the Supreme Court held that fees could be awarded against the pro se civil rights
plaintiff if certain findings were made. Given the different structure of this case such findings
are inapplicable.
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attorney and Mr. Schimberg are reasonable and in line with, or below, prevailing market rates.
Further, the hours expended are also reasonable given the number of discovery issues presented.
Presumably Plaintiff does not disagree on this issue – reasonableness of the hours expended and
the hourly fees charged – since he filed no objection directly related to the reasonableness of the
fees in any manner whatsoever.
The remaining issue for this court, then, is whether the previously awarded discovery
sanctions should be awarded against “the disobedient party, the attorney advising that party, or
both.” Fed. R. Civ. P. 37(b)(2)(C). When an attorney is representing a client, it is incumbent
upon the attorney to calendar and track response dates and other court matters which are date or
time sensitive. Apparently, from the arguments of Plaintiff after-the-fact, Plaintiff did not intend
to confess the motions to compel. It appears that his counsel simply ignored the court’s order to
file a response.4 Therefore, the court concludes that the sanctions of $4,130.00 must be awarded
against the attorney advising the party, Derek W. Cole.
Therefore, it is ORDERED
Sanctions in the amount of $4,130.00 are hereby awarded to the Defendant and against

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Again, somewhat imponderably, Mr. Cole alleges that his failure to file a response as
required is the Court’s fault for issuing a Minute Order providing him with a date certain by
which he must file a response and a date and time for a hearing after the responses and replies
were filed and the matter at issue. (Resp. at 1.)
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Plaintiff’s counsel Derek W. Cole. Sanctions shall be remitted in full on or before September 3,
2011.
Dated this 3rd day of August, 2011.

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