OneSource Commercial Property Services, Inc. et al v. City and County of Denver et al

Filing 84

ORDER re: 76 Order on Motion to Compel, IT IS FURTHER ORDERED that Plaintiffs shall remit payment of $2,000 to Defendants on or before September 9, 2011. by Magistrate Judge Kristen L. Mix on 8/12/2011. (erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02273-WJM-KLM
ONESOURCE COMMERCIAL PROPERTY SERVICES, INC., a Colorado corporation, and
AFFORDABLE SWEEPING, INC., a Colorado corporation,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER, a municipal corporation,
APRIL HENDERSON,
CALVIN BLACK,
KEN GREENE, and
XAVIER DURAN,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on my Order compelling Plaintiffs to respond to
Defendants City and County of Denver, Xavier DuRan, Ken Greene and Calvin Black’s
outstanding discovery requests and permitting an award of expenses to Defendants. Order
[#76] at 8. The history of the discovery dispute and the justification for the award of
expenses is set forth in my prior Order and is not reproduced here. Pursuant to the Order,
I directed the parties to file additional pleadings regarding the amount of attorneys’ fees and
costs sought by Defendants and the reasonableness of such expenses. Id. Defendants1
filed an Affidavit on July 25, 2011 [Docket No. 77], and Plaintiffs filed an Objection on

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Defendant Calvin Black is represented by separate counsel. Although he also secured
a favorable ruling on the Motion to Compel, his counsel did not submit an affidavit of expenses
to be considered here. Moreover, the Court notes that Defendant April Henderson was not
involved in the prior discovery dispute. Accordingly, references to Defendants hereafter refer
exclusively to Defendants City and County of Denver, Xavier DuRan and Ken Green.

August 4, 2011 [Docket No. 82]. Having considered the parties’ pleadings, the Court
awards Defendants attorneys’ fees as set forth below.
As a preliminary matter, pursuant to D.C.COLO.LCivR 54.3B., a party seeking an
award of expenses must provide “a detailed description of the services rendered, the
amount of time spent, the hourly rate, and the total amount claimed; and a summary of the
relevant qualifications and experience.” Defendants submitted an Affidavit authored by
counsel Gillian M. Fahlsing, which includes an itemized list of fees incurred, the hourly rates
charged by counsel and staff, and their experience. As per the Affidavit, Defendants
incurred attorneys’ fees (including paralegal fees) in the amount of $3,325.00. Defendants
do not appear to seek reimbursement for costs. Although Plaintiffs contend that the
Affidavit is not sufficiently detailed, I find that Defendants have satisfied the requirements
of Local Rule 54.3B.

Moreover, the hourly rates appear to be reasonable for this

jurisdiction. The Court addresses the issue of the amount of the award below.
A party seeking an award of attorneys’ fees and costs must demonstrate that the
expenses it seeks are reasonable. See Dewey v. Hewlett Packard Co., No. 05-cv-01482REB-MJW, 2007 WL 707462, at *1 (D. Colo. Mar. 5, 2007) (unpublished decision).
Therefore, counsel must make a good faith effort to exclude hours or costs that are
“excessive, redundant or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434
(1983). Generally, the starting point for any calculation of a reasonable attorneys’ fee is
the “lodestar,” that is, the number of hours reasonably expended multiplied by a reasonable
hourly rate. Hensley, 461 U.S. at 433; Malloy v. Monahan, 73 F.3d 1012, 1017-18 (10th
Cir.1996). The Court is not required to reach a lodestar determination in every instance,
however, and may simply accept or reduce a fee request within its discretion. Hensley, 461
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U.S. at 436-37.
As noted in my prior Order, Defendants were the prevailing party and, therefore, are
entitled to be compensated for what ultimately turned out to be an avoidable discovery
dispute. Order [#76] at 4-8; see Fed. R. Civ. P. 37(a)(5)(A). Reviewing the Affidavit, while
I agree that Plaintiffs unnecessarily caused the expenditure of time, money and resources
to resolve the dispute, I credit Plaintiffs’ contention that Defendants appear to seek
reimbursement for fees incurred prior to the time the dispute became ripe. See Objection
[#82] at 2. I further credit Plaintiffs’ contention that, in some instances, Defendants did not
appear to exercise appropriate billing judgment. See id. at 3. While neither of these
contentions absolves Plaintiffs of the imposition of sanctions, they do factor into the Court’s
determination of a reasonable award under the circumstances.
Specifically, in their Objection, Plaintiffs contend that expenses incurred prior to the
date that their discovery responses were due should not be credited. Id. at 2. I agree.
Moreover, I also agree that several entries appear unnecessarily excessive or
inappropriate. See id. at 2-3. For example, Plaintiffs highlight the billing entry on May 24,
2011 where Defendants billed .6 hours to read a one-page minute order and a onesentence email. Id.; see Affidavit [#77] at 3. Plaintiffs also highlight multiple entries related
to communications with counsel for Defendant Henderson. Objection [#82] at 2; Affidavit
[#77] at 2-3. As noted earlier, this Defendant was not involved in the discovery dispute.
In addition to the arguments advanced by Plaintiffs in their Objection, I credit several
arguments raised earlier by Plaintiffs during the briefing on the Motion to Compel. Namely,
Plaintiffs argued that they did not intentionally delay production of the requested discovery
and, rather, were attempting to work cooperatively with Defendants to resolve the matter.
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See Response [#70] at 1. Moreover, they noted that they are small business owners with
limited financial resources. See id. at 10-11. While I did not credit these contentions to
decline an award of expenses, they factor into the determination of a reasonable amount.
Given the above, rather than “attempt[ing] to identify specific hours that [could] be
eliminated,” I exercise my “discretion in making this equitable judgment” and do not
“apportion the fee award mechanically” by considering each claimed expense and
determining its reasonableness overall. Hensley, 461 U.S. at 436-40 (holding that the
Court “should make clear that it has considered the relationship between the amount of the
fee awarded and the results obtained”); see also Praseuth v. Rubbermaid, Inc., 406 F.3d
1245, 1257, 1259 (10th Cir. 2005) (permitting Court to reduce amount of fees claimed
where billing judgment is in doubt); White v. GMC, Inc., 908 F.2d 675, 684-85 (10th Cir.
1990) (noting that the amount of fees accumulated to secure the desired result must be
reasonably related to the type and significance of issue in dispute).
Simply, “[i]t does not [always] follow that the amount of time actually expended is the
amount of time reasonably expended.” Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir.
1980) (emphasis added). Based upon my twenty-five years of combined private and
judicial experience and my careful consideration of Defendants’ Affidavit, the discovery
issues and Plaintiffs’ pleadings, I find that Defendants’ claimed expenses exceed what are
reasonable here and should be reduced to $2,000. This reduction takes into account that
several billing items appear inappropriate or excessive and that Plaintiffs have limited
financial means.
IT IS FURTHER ORDERED that Plaintiffs shall remit payment of $2,000 to
Defendants on or before September 9, 2011.
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Dated: August 12, 2011
BY THE COURT:
s/ Kristen L. Mix
United States Magistrate Judge
Kristen L. Mix

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