Shrader v. Biddinger et al

Filing 313

ORDER denying as moot 301 APPEAL OF MAGISTRATE JUDGE DECISION to District Court; granting 302 Motion for Attorney Fees; granting 306 Motion for Attorney Fees; granting 308 Motion for Attorney Fees. Judgment shall enter accordingly. By Magistrate Judge Michael J. Watanabe on 2/22/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01881-REB-MJW
GREG SHRADER,
Plaintiff(s),
v.
DR. ALAN BIDDINGER,
EARIK BEANN,
WAVE 59 TECHNOLOGIES INT’L INC.,
WILLIAM BRADSTREET STEWART,
INSTITUTE OF COSMOLOGICAL ECONOMICS,
SACRED SCIENCE INSTITUTE, and
WAVE 59 TECHNOLOGIES INT’L INC. OWNER’S [sic] AND OFFICERS,
Defendant(s).

ORDER ON
PLAINTIFF [sic] WRITTEN OBJECTIONS TO MOTION FOR AWARD OF ATTORNEY
FEES (Docket No. 301),
MOTION FOR ENTRY OF MONEY JUDGMENT FOR ATTORNEYS’ FEES BY
DEFENDANT-APPELLEE DR. ALAN BIDDINGER (Docket No. 302),
MOTION OF WAVE59 TECHNOLOGIES INT’L, INC. AND EARIK BEANN FOR
APPEAL-RELATED ATTORNEYS’ FEES (Docket No. 306), and
MOTION FOR AWARD OF ATTORNEYS’ FEES INCURRED ON APPEAL OF
DEFENDANTS WILLIAM BRADSTREET STEWART, SACRED SCIENCE INSTITUTE
AND INSTITUTE OF COSMOLOGICAL ECONOMICS, INC. (Docket No. 308)

Entered by Magistrate Judge Michael J. Watanabe

In an Order entered on April 27, 2011, Judge Blackburn dismissed the plaintiff’s
claims against defendant Dr. Alan Biddinger without prejudice for lack of personal
jurisdiction over defendant in this forum and awarded Dr. Biddinger his reasonable

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attorney fees as required by § 13-17-201, C.R.S., provided he filed a motion for such
that conformed in substance to the requirements of D.C.COLO.LCivR 54.3. (Docket
No. 128). On February 17, 2012, I granted Dr. Biddinger’s Motion for Entry of Money
Judgment for Attorney Fees (Docket No. 15) to the extent that Dr. Biddinger was
awarded attorney fees in the amount of $36,037.50. (Docket No. 258).
In an Order entered on March 21, 2012 (Docket No. 276), Judge Blackburn
dismissed the claims against defendants William Bradstreet Stewart, Institute of
Cosmological Economics, and Sacred Science Institute (“the Stewart defendants”)
without prejudice for lack of personal jurisdiction in this forum. (Docket No. 276 at 5).
With respect to the plaintiff’s claims for relief against defendants Earik Beann, Wave59
Technologies Int’l Inc., and Wave59 Technologies Int’l Owners and Officers (“the
Wave59 defendants”), Judge Blackburn dismissed such claims as follows: the claims
against such defendants for conspiracy were dismissed without prejudice, and all of
plaintiff’s remaining claims against such defendants were dismissed with prejudice.
(Docket No. 276 at 5). In addition, Judge Blackburn directed that defendants, Earik
Beann, Wave59 Technologies Int’l Inc., Wave59 Technologies Int’l Inc. Owners and
Officers, William Bradstreet Stewart, Institute of Cosmological Economics, and Sacred
Science Institute be awarded their reasonable attorney fees as required by §13-17-201,
C.R.S., provided they file a motion for such that conformed in substance to the
requirements of D.C.COLO.LCivR 54.3. (Docket No. 276 at 6).
In an Order entered on June 26, 2012, I granted the Motion of Defendants
Wave59 Technologies Int’l Inc. and Earik Beann for Entry of Money Judgment for
Attorney Fees (Docket No. 288) to the extent that defendants Wave59 Technologies

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Int’l Inc., and Earik Beann were awarded attorney fees in the amount of $46,448.45.
(Docket No. 297). In that same Order, I also granted the Motion for Attorneys’ Fees of
Defendants William Bradstreet Stewart, Sacred Science Institute and Institute of
Cosmological Economics, Inc. (Docket No. 290), to the extent that defendants William
Bradstreet Stewart, Sacred Science Institute, and Institute of Cosmological Economics,
Inc., were awarded attorney fees in the amount of $29,602.50.
Plaintiff appealed the dismissal of his claims and the attorney fee awards. In an
Order and Judgment entered on November 29, 2012, the United States Court of
Appeals for the Tenth Circuit affirmed the judgment of the District Court as well as the
award of attorney fees. (Docket No. 298). With respect to the fees, the court
specifically found that
[t]he district court dismissed Defendants pursuant to Rule 12(b), and its
application of Colo. Rev. Stat. § 13-17-201 was proper.
We also hold that the district court did not abuse its discretion in the
amount of attorney fees awarded. The district court carefully reviewed
Defendants’ affidavits and time records in support of their fee requests
pursuant to the relevant factors set forth in Ramos v. Lamm, 713 F.2d 546
(10th Cir. 1983), overruled on other grounds by Pennsylvania v. Del. Valley
Citizens’ Council for Clear Air, 483 U.S. 711, 725 (1987). The district
court meticulously determined the number of hours spent and the
reasonable hourly rate of compensation. The fee awards were therefore
reasonable.
(Docket No. 298 at 7-8).
Thereafter, in an Order filed on January 8, 2013, the Tenth Circuit remanded the
case to the District Court for the sole purpose of determining the amount of reasonable
appellate-related attorney fees. The court stated as follows in that Order:
Defendants-Appellees Dr. Alan Biddinger; Earik Beann and Wave
59 Technologies International (the “Beann Defendants”); and William

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Bradstreet Stewart, the Sacred Science Institute, and the Institute of
Cosmological Economics, Inc. (the “Stewart Defendants”) move
separately for an order awarding appellate-related attorney fees and
remanding the case to the district court for a determination of the
reasonable amount of such fees. We previously affirmed the district
court’s award of attorney fees at the district court level pursuant to Colo.
Rev. Stat. § 13-17-201. Under Colorado law, a Colorado court must
award a defendant in a tort action who prevails on a Rule 12(b) dismissal
motion reasonable attorney fees in defending that action. Jones v. Denver
Post Corp., 203 F.3d 748, 757 (10th Cir. 2000). “A party who successfully
defends a dismissal order is entitled to recover reasonable attorney fees
incurred on appeal.” Wilson v. Meyer, 126 P.3d 276, 284 (Colo. App.
2005).
Plaintiff’s arguments against awarding appellate-related attorney
fees simply repeat his arguments against awarding attorney fees pursuant
to § 13-17-201 in general. We already addressed those arguments and
found them lacking. Accordingly, we grant Defendants’ request for
appellate-related attorney fees and remand to the district court to
determine the amount of reasonable fees as guided by Ramos v. Lamm,
713 F.2d 546 (10th Cir. 1983), overruled on other grounds by Pennsylvania
v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 725 (1987).
(Docket No. 300 at 2-3).
Eight days after that Order was filed by the Tenth Circuit, plaintiff filed his
“WRITTEN OBJECTIONS TO MOTION FOR AWARD of Attorney Fees by
Defendants/Appellees William Bradstreet Stewart, Sacred Science Institute and Institute
of Cosmological Economics, Inc. Alan Biddinger, Earik Beann Wave59 Technologies
International” (Docket No. 301) in which he argues once again against the imposition of
attorney fees. The Tenth Circuit, however, has already ruled on the propriety of the
imposition of appellate-related attorney fees in this case. The matter remanded to this
court is only a determination of the amount of such attorney fees that should be
awarded to the defendants. Moreover, on January 23, 2013, the Tenth Circuit issued
an Order concerning plaintiff’s objections, finding as follows:

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This matter is before the court following the receipt of Appellant
Shrader’s written objections to our order awarding attorney’s fees to the
three groups of appellees in this case. We have construed the objections
as a petition for panel rehearing of that order. So construed, the petition is
denied. See 10th Cir. R. 40.3 (“The court will accept only one petition from
any party to an appeal.”).
A copy of this order, as well as the January 8, 2013 order awarding
attorney’s fees shall serve as a supplement to the mandate issued on
January 4, 2013.
(Docket No. 310). Therefore, such objections, docketed here as a motion at Docket No.
301, should be denied as moot.
Now before the court, pursuant to the Tenth Circuit’s order of remand, are the
following three motions: (1) the Motion for Entry of Money Judgment for Attorneys’
Fees by Defendant-Appellee Dr. Alan Biddinger (Docket No. 302); (2) the Motion of
Wave59 Technologies Int’l, Inc. and Earik Beann for Appeal-Related Attorneys’ Fees
(Docket No. 306); and (3) the Motion for Award of Attorneys’ Fees Incurred on Appeal of
Defendants William Bradstreet Stewart, Sacred Science Institute and Institute of
Cosmological Economics, Inc. (Docket No. 308). In all three of these motions, the
defendants complied with the requirements for seeking attorney fees set forth in
D.C.COLO.LCivR 54.3.
Plaintiff has filed his purported objections to such motions. (Docket No. 312).
Those objections, however, are identical to what plaintiff filed as Docket No. 301 with
only one additional statement that “All attorneys have requested fees in excess of
$125.00 an hour, Plus the Hours billed are extremely out of proportion, to the hours
needed on this Case.” (Docket No. 312 at 4).
The court has carefully reviewed the three motions, including the detailed time

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statements. In addition, the court has given due consideration to the plaintiff’s
objections, virtually all of which were already considered and rejected by the Tenth
Circuit. Finally, the court has considered applicable Federal Rules of Civil Procedure
and case law and has taken judicial notice of the court’s file. The court now being fully
informed makes the following findings, conclusions of law, and Order.
Section 13-17-201, C.R.S., provides that where any tort action is dismissed on
motion of the defendant before trial under Rule 12(b) of the Colorado Rules of Civil
Procedure, “such defendant shall have judgment for his reasonable attorney fees in
defending the action.” § 13-17-201, C.R.S. “The statute has been held equally
applicable to a dismissal under Fed. R. Civ. P. 12(b) of a tort claim brought pursuant to
Colorado law.” Brammer-Hoelter v. Twin Peaks Charter Academy, 81 F. Supp.2d 1090,
1102 (D. Colo. 2000).
When evaluating a motion for attorney fees, the court must follow the three-step
process set forth in Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983), overruled on other
grounds by Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S.
711, 725 (1987). Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 2011 WL
3568165, at *2 (D. Colo. Aug. 15, 2011). The first step in determining a fee award is to
determine the number of hours reasonably spent by counsel for the party seeking the
fees. Ramos, 713 F.2d at 553. Factors considered in a reasonableness determination
include: (1) whether the amount of time spent on a particular task appears reasonable in
light of the complexity of the case, the strategies pursued, and the responses
necessitated by an opponent's maneuvering; (2) whether the amount of time spent is
reasonable in relation to counsel's experience; and (3) whether the billing entries are

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sufficiently detailed, showing how much time was allotted to a specific task. Brokers’
Choice of Am., Inc. v. NBC Universal, Inc., 2011 WL 3568165, at *2 (D. Colo. Aug. 15,
2011) (citing Rocky Mountain Christian Church v. Board of County Comm'rs of Boulder
County, 2010 WL 3703224, at *2-3 (D.Colo. Sept. 13, 2010)). “Counsel for the
prevailing party should make a good faith effort to exclude from a fee request hours that
are excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S.
424, 434 (1983). Although courts are obligated to exclude hours not reasonably
expended from the fee award, courts need not “identify and justify every hour allowed or
disallowed, as doing so would run counter to the Supreme Court's warning that a
‘request for attorney's fees should not result in a second major litigation.’” Malloy v.
Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (quoting Hensley, 461 U.S. at 437); Fox
v. Vice, 131 S. Ct. 2205, 2216 (2011) (“[C]ourts need not, and indeed should not,
become green-eyeshade accountants. The essential goal in shifting fees . . . is to do
rough justice, not to achieve auditing perfection. So trial courts may take into account
their overall sense of a suit, and may use estimates in calculating and allocating an
attorney’s time.”).
Once the Court has determined the number of hours reasonably spent, it must
then determine a reasonable hourly rate of compensation. Ramos, 713 F.2d at 555. “A
reasonable rate is the prevailing market rate in the relevant community.” Malloy, 73
F.3d at 1018 (citing Blum v. Stenson, 465 U.S. 885, 897 (1984)). The party seeking the
award has the burden of persuading the court that the hours expended and the hourly
rate are both reasonable. Id.
The third step consists of multiplying the reasonable hourly rate by the number of

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hours reasonably expended to determine the “lodestar” amount. Hensley, 461 U.S. at
433.
Here, defendant Biddinger seeks appellate-related attorney fees in the amount of
$23,458.50. More specifically, he seeks an award based on the following hours
expended and hourly rates: senior attorney Thomas B. Kelley - 36.4 hours at $455 per
hour, for a total of $16,562.00; associate Michael Beylkin - 17.9 hours at $335 per hour,
for a total of $5,996.50; legal assistant Marla D. Kelley - 6.2 hours at $75 per hour, for a
total of $465.00; paralegal Jennifer Pinkerton-Burke - 2.8 hours at $75 per hour, for a
total of $210.00; and paralegal Kathleen Snyder - 3.0 hours at $75 per hour, for a total
of $225.00. Defendant notes that although the legal assistant and paralegals actually
billed their time at a higher hourly rate, he seeks compensation for their work at the rate
of only $75 per hour as that was the rate previously approved in this matter. (See
Docket No. 258). The motion is supported by the Declaration of attorney Kelley (Docket
No. 303) which details his background and has attached as an exhibit the detailed time
statements his firm submitted to Dr. Biddinger for the appellate work in this case.
The Wave59 defendants seek appellate-related attorney fees totaling
$11,212.50. More specifically, they seek fees for attorney Jonathan A. Braun for 66
hours at an hourly rate of $165.00, for a total of $10,890.00, and for legal assistant
Janet Johnson for 4.3 hours at an average hourly rate of $75.00, totaling $322.50.
They have filed attorney Braun’s Affidavit which details his background and includes a
breakdown of his billing to the Wave59 defendants for the appellate work in this case.
The Stewart defendants seek appellate-related attorney fees totaling $8,239.50,
broken down as follows: 28.2 hours by attorney Christ C. Polychron at a rate of $285

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per hour (total $8,037.00); 0.5 hours by attorney Rory R. Wicks at a rate of $345 per
hour (total $172.50); and 0.4 hours by legal assistant Sara Kent at a rate of $75 per
hour (total $30). These hours are supported by their detailed billing entries.
The court has followed the three-step process set forth in Ramos v. Lamm in
evaluating these defendants’ claims for attorney fees. The court has reviewed the
documentation submitted by defense counsel and finds that the number of hours
claimed are reasonable. The billing entries attached to all three motions are sufficiently
detailed, showing how much time was allotted to the various tasks. The amount of time
spent on a the various itemized tasks appears reasonable in light of the complexity of
the case, the strategies pursued, and the work necessitated by the plaintiff’s filings. In
addition, the time expended was reasonable in relation to counsels’ experience. Finally,
upon review of the billing entries, the court finds that the defendants are entitled to
recover fees for the itemized work of the legal assistants/paralegals.
With regard to the reasonableness of the rates, the court is familiar with the rates
charged by attorneys in this area. As this court previously noted in this case, Judge
Arguello has found that an hourly rate $425 (in fact for Mr. Kelley) was reasonable.
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 2011 WL 3568165, at *9 (D. Colo.
Aug. 15, 2011). The court thus finds that the hourly rate sought by senior attorney
Kelley ($455) should be reduced to $425.1 The hourly fees sought by the other

1

Consequently, defendant Biddinger should be awarded a total of $22,366.50,
rather than the $23,458.50 sought, broken down as follows: senior attorney Thomas B.
Kelley - 36.4 hours at $425 per hour, for a total of $15,470.00; associate Michael
Beylkin - 17.9 hours at $335 per hour, for a total of $5,996.50; legal assistant Marla D.
Kelley - 6.2 hours at $75 per hour, for a total of $465.00; paralegal Jennifer PinkertonBurke - 2.8 hours at $75 per hour, for a total of $210.00; and paralegal Kathleen Snyder

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attorneys are substantially lower and were previously approved by this court in this
case. This court finds that given their experience, skill, and specialization, a rate of
$425 per hour for Mr. Kelley and the lower rates sought by the other attorneys are
reasonable. In addition, as this court previously found, the $75 hourly fee now sought
for legal assistant time is a reasonable hourly rate of compensation in this area.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Plaintiff [sic] WRITTEN OBJECTIONS TO MOTION FOR
AWARD of Attorney Fees by Defendants/Appellees William Bradstreet Stewart, Sacred
Science Institute and Institute of Cosmological Economics, Inc. Alan Biddinger, Earik
Beann Wave59 Technologies International (Docket No. 301) is DENIED AS MOOT. It
is further
ORDERED that the Motion for Entry of Money Judgment for Attorneys’ Fees by
Defendant-Appellee Dr. Alan Biddinger (Docket No. 302) is GRANTED to the extent that
defendant Biddinger shall be awarded appellate-related attorney fees in the amount of
$22,366.50. It is further
ORDERED that the Motion of Wave59 Technologies Int’l, Inc. and Earik Beann
for Appeal-Related Attorneys’ Fees (Docket No. 306) is GRANTED, and defendants
Wave59 Technologies Int’l and Earik Beann shall be awarded appellate-related attorney
fees in the amount of $11,212.50. It is further
ORDERED that the Motion for Award of Attorneys’ Fees Incurred on Appeal of
Defendants William Bradstreet Stewart, Sacred Science Institute and Institute of

- 3.0 hours at $75 per hour, for a total of $225.00.

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Cosmological Economics, Inc. (Docket No. 308) is GRANTED, and defendants William
Bradstreet Stewart, Sacred Science Institute, and Institute of Cosmological Economics,
Inc., shall be awarded appellate-related attorney fees in the amount of $8,239.50.
It is further ORDERED that judgment shall enter accordingly.

Date: February 22, 2013
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge