James et al v. Holte et al
Filing
168
ORDER Plaintiffs Motion for Attorneys Fees and Costs ECF No. 164 is GRANTED as to attorneys fees and DENIED WITHOUT PREJUDICE as to costs; Plaintiffs are AWARDED attorneys fees in the amount of $234,147.20; Costs shall be assessed against the Defendant in an amount to be determined by the Clerk of Court upon the filing of a motion that complies with Local Rule 54.1, by Judge William J. Martinez on 2/22/2013.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-02591-WJM-CBS
STEVE JAMES,
AARON D’MIZE,
ANTONIO LABATO,
CHARLES KING,
ARIN HART,
GEORGE WHITTINGTON,
AMY REYES, a/k/a Amy Arnett,
DELFINO ORTEGA, and
KEVIN MOORE,
Plaintiffs,
v.
RODNEY FENSKE, in his official capacity as Lake County Sheriff,
DOLORES SEMSACK, in her official capacity as Lake County Commissioner,
MICHAEL BORDOGNA, in his official capacity as Lake County Commissioner, and
CARL SCHAEFER, in his official capacity as Lake County Commissioner,
Defendants.
ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES
After a six day trial, the jury returned a verdict in favor of Plaintiffs on their claims
brought under the Fair Labor Standards Act and the Due Process Clause of the
Fourteenth Amendment. (ECF No. 157-9.) The Court awarded Plaintiff liquidated
damages and judgment was entered in favor of Plaintiffs. (ECF No. 163.)
Before the Court is Plaintiffs’ Motion for Attorney Fees and Costs (“Motion”).
(ECF No. 164.) For the reasons set forth below, the Motion is granted in part as to
Plaintiffs’ request for attorneys’ fees and denied without prejudice as to Plaintiffs’
request for costs.
I. ATTORNEYS’ FEES
In order to obtain attorney's fees, “a claimant must prove two elements: (1) that
the claimant was the ‘prevailing party’ in the proceeding; and (2) that the claimant’s fee
request is ‘reasonable.’“ Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173,
1176 (10th Cir. 2010).1
1.
Prevailing Party
With respect to the first prong, Defendants contend that the Court should reduce
the Plaintiffs’ fee award because the Court granted summary judgment in favor of
Defendants on a number of Plaintiffs’ claims. (ECF No. 165 at 2-3.) Plaintiffs argue
that, because all of their claims related to a common core of facts, the Court should not
reduce the fee award. (ECF No. 167 at 3.)
The Court agrees with Plaintiffs. While Plaintiffs did not prevail on all of their
claims, or against all of the originally named Defendants, all of their claims were
interrelated and, at trial, Plaintiffs prevailed on the key issues at the heart of this case.
Thus, the Court will not reduce the fee award due to the lack of success on any
particular claim or against any particular Defendant. See Hensley v. Eckerhart, 461
U.S. 424, 434-35 (1983) (where plaintiff’s claims involve a “common core of facts” or
are “based on related legal theories”, a fee award should not be reduced due to lack of
success on all claims).
1
Flitton was a civil rights case but the Tenth Circuit has previously instructed district
courts to use the same standard in FLSA cases. See Lamon v. City of Shawnee, Kan., 972
F.2d 1145, 1159 (10th Cir. 1992).
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2.
Reasonableness of the Fee
“The most useful starting point for determining the amount of a reasonable fee is
the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley, 461 U.S. at 433. This is commonly referred to as the “lodestar
method” for calculating fees. Id.
Defendants argue that a number of entries on Plaintiffs’ counsels’ time sheets
are not related to this case and, therefore, these hours were not reasonably expended
on this litigation. (ECF No. 165 at 8-9.) Defendants also contend that Plaintiffs’ should
not recover for the time spent drafting the Second Amended Complaint and the
Stipulated Motion to Dismiss Edward Reinhardt because the Court struck the Second
Amended Complaint and ordered that the parties were to bear their own fees and costs
associated with the Motion to Dismiss. (Id. at 11.) The Court agrees with Defendants
on these points and will not compensate Plaintiffs for the time spent by their attorneys
on these issues. Having reviewed the time sheets, the Court finds that 7 attorney work
hours and 1.5 paralegal hours are not compensable in this action for the reasons cited
by Defendants. The amounts billed for these hours will not be included in the Court’s
attorneys’ fees award.
Defendants next argue that the hourly rates charged by Plaintiffs’ counsel are
excessive. (ECF No. 165 at 7-8.) Plaintiffs have billed their time at the following hourly
rates: (1) Reid Elkus - $350.00; (2) Donald Sisson - $330.00; (3) Associates - $280.00;
and (4) Paralegals - $130.00 and $120.00. (ECF No. 167-3.) The parties have
submitted competing expert affidavits regarding the reasonableness of these rates.
(ECF Nos. 164-1 & 167-1.) The Court has reviewed this information and finds that the
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hourly rates charged by Plaintiffs’ counsel are somewhat high given each attorney’s
experience level and the customary rates in the Denver legal market for employment
lawyers. Thus, the Court will award fees at the following rates: (1) Reid Elkus $300.00; (2) Donald Sisson - $275.00; (3) Associates - $230.00; and (4) Paralegals $125.00.
Defendants also argue that Plaintiffs’ counsel spent an excess amount of time on
various tasks during this litigation. (ECF No. 165 at 3-4, 8-10.) In their Reply Brief,
Plaintiffs implicitly acknowledge a degree of excess time in that they agree to reduce
their request for fees by ten percent (and their own expert supported this concession).
(ECF No. 167 at 6.) Having presided over this action, including the pre-trial motion
practice and the seven-day jury trial, the Court is intimately familiar with the case. The
Court notes that this was a multi-Plaintiff collective action which, by its nature, requires
more time and effort from counsel than a typical single plaintiff case. However, aside
from the additional logistics and complications that necessarily result from the multiplaintiff nature of this action, the actual wage and hour issues involved here were not
complex. Thus, the Court finds that number of hours expended by counsel on this case
were slightly above what is reasonable. Accordingly, the Court will apply a 5%
reduction to the total hours worked by Plaintiffs’ counsel.
In sum, Plaintiffs request attorneys’ fees in the amount of $260,306.65 (after
their 10% voluntary reduction). After reducing the hours requested by 5% and reducing
the hourly rates as set forth above, the Court awards Plaintiffs attorneys’ fees in the
amount of $234,147.20.
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II. COSTS
Plaintiffs also request reimbursement for their costs. (ECF No. 164 at 8-15.)
The only aspect of costs that will be addressed in this Order is the cost associated with
Plaintiffs’ expert witness. All other issues related to costs will be decided by the Clerk
upon filing of a separate request for costs that complies with applicable Local Rules.
At trial, Plaintiffs prevailed on claims under the Fair Labor Standards Act
(“FLSA”) and 42 U.S.C. § 1983. Each of these statutory schemes contains a fee
shifting provision. See 29 U.S.C. § 216(b) (in an FLSA case, the court shall “allow a
reasonable attorney’s fee to be paid by the defendant, and costs of the action.”); 42
U.S.C. § 1988 (allowing for recovery of “a reasonable attorney’s fee as part of the
costs”). However, neither the FLSA’s fee-shifting provision nor § 1988 allow a
prevailing party to recover its expert witness fees. See West Virginia Univ. Hosp., Inc.
v. Casey2, 499 U.S. 83, 102 (1991) (“§ 1988 conveys no authority to shift expert fees.”);
Gray v. Phillips Petroleum, 971 F.2d 591, 594 (10th Cir. 1992) (holding that § 216(b)
“does not provide explicitly authority to award expert witness fees” to the prevailing
party).
“[A]bsent explicit statutory or contractual authorization for the taxation of the
expenses of a litigant’s witness as costs, federal courts are bound by the limitations set
out in 28 U.S.C. § 1821 and § 1920.” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482
U.S. 437, 445 (1987). Plaintiffs have failed to cite any explicit statutory authority for
2
Since Casey, Congress has amended § 1988 to permit courts to award expert witness
fees to the prevailing party, but only for cases arising under 42 U.S.C. § 1981 and 1981(a).
See 42 U.S.C. § 1988(c).
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awarding them Dr. Pacey’s expert witness fees. Accordingly, the Court denies
Plaintiffs’ request for reimbursement of the full amount paid to Dr. Pacey. Nothing in
this ruling, however, prohibits Plaintiffs from recovering whatever amount is permitted
under Federal Rule of Civil Procedure 54(d) and/or 28 U.S.C. §§ 1920 and 1821.
With respect to the remaining categories of costs, the Court finds that, as the
prevailing party, Plaintiffs are entitled to recover costs. However, the Court leaves the
task of awarding the amount of costs to the Clerk in accordance with Local Rule 54.1.
Thus, Plaintiff’s request for costs is denied without prejudice to Plaintiffs filing a
separate request for costs that complies with Local Rule 54.1.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Plaintiffs’ Motion for Attorneys Fees and Costs (ECF No. 164) is GRANTED as to
attorneys’ fees and DENIED WITHOUT PREJUDICE as to costs;
2.
Plaintiffs are AWARDED attorneys’ fees in the amount of $234,147.20;
3.
Costs shall be assessed against the Defendant in an amount to be determined
by the Clerk of Court upon the filing of a motion that complies with Local Rule
54.1.
Dated this 22ndday of February, 2013.
BY THE COURT:
William J. Martínez
United States District Judge
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