Carbajal v. Warner et al

Filing 786

ORDER by Magistrate Judge Kristen L. Mix on 2/29/16. Motion for Attorney Fees Incurred in Responding to Plaintiff's Motion # 756 is GRANTED.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02862-PAB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
CAROL WARNER, in her individual capacity,
DAVID ROMERO, in his individual capacity,
JOE QUINTANA, in his individual capacity,
BILL RAILEY, in his individual capacity,
CHRIS WELDON, in his individual capacity,
BENJAMIN SCHROEDER, in his individual capacity,
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
ADAM BARRETT, in his individual capacity,
JOEL SMITH, in his individual capacity,
JESSE REMBERT, in his individual capacity,
JAY LOPEZ, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity,
CITY AND COUNTY OF DENVER, a political subdivision of the State of Colorado,
DARIN DESEL, Police Officer for the Denver Police Department, in his individual
capacity,
FRED MCKEE, Sheriff for the Delta Sheriff’s Department, in his individual capacity,
PERRY SPEELMAN, Police Officer for the Denver Police Department, in his individual
capacity, and
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Denver Defendants’ Motion for Attorney

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Fees Incurred in Responding to Plaintiff’s Motion [#756]1 (the “Motion”). Plaintiff, who
proceeds as an incarcerated pro se litigant,2 filed a Response [#767] in opposition to the
Motion [#756], and the Denver Defendants filed a Reply [#775]. The Court has reviewed
these filings, the entire docket, and the applicable law, and is sufficiently advised in the
premises.
On November 24, 2015, the Court granted Defendants permission to file a motion
seeing an award of attorneys’ fees and costs expended in connection with certain frivolous
discovery motions filed by Plaintiff. See Order [#753] at 16. Although Plaintiff had filed four
separate motions for which the Denver Defendants seek attorneys’ fees, all four relate to
Plaintiff’s request to compel production from the Denver Defendants. See Motion to Open
Discovery [#731]; Motion for Sanctions and Emergency Hearing [#733]; Third Motion for
Extension of Time [#740]; Motion for Stay of Summary Judgment Proceedings [#741].
Plaintiff’s four motions were denied by the Court after examining the merits of each one in
detail. See Order [#753].
Pursuant to Fed. R. Civ. P 37(a)(1), “a party may move for an order compelling
disclosure or discovery.” Pursuant to Fed. R. Civ. P. 37(a)(5)(B), “[i]f the discovery motion

1

“[#756]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

The Court is mindful that it must construe the filings of a pro se litigant liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court is not a pro se litigant's advocate, nor shall the Court “supply additional
factual allegations to round out [a pro se litigant’s] complaint or construct a legal theory on [his]
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at
1110). In addition, Plaintiff, as a pro se litigant, must follow the same procedural rules that govern
other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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is denied, the court . . . must, after giving an opportunity to be heard, require the movant
. . . to pay the party . . . who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees.” An exception to this mandate exists “if the
motion was substantially justified or other circumstances make an award of expenses
unjust.” Fed. R. Civ. P. 37(a)(5)(B). Incorporating the Court’s analysis in its prior Order
[#753], the Court cannot find that Plaintiff’s discovery motions practice here was
substantially justified or that other circumstances (such as unsubstantiated alleged
misconduct by Defendants) make an award of expenses unjust.3 Order [#] at 6. The Court
therefore does not have discretion regarding whether Plaintiff must pay the Denver
Defendants’ reasonable fees. See Fed. R. Civ. P. 37(a)(5)(B)
The Court next proceeds to determine the amount of fees and costs for which
Plaintiff is responsible. Pursuant to D.C.COLO.LCivR 54.3(b), a party seeking an award
of expenses must provide “a detailed description of the services rendered, the amount of
time spent, the hourly rate charged, and the total amount claimed” as well as “a summary
of relevant qualifications and experience.” The Denver Defendants submitted one affidavit,
authored by their attorney David C. Cooperstein (“Cooperstein”) [#756-1] on behalf of
himself and co-counsel Jennifer Johnson (“Johnson”). The Affidavit [#756-1] includes a
detailed description of services rendered, the amount of time expended by Mr. Cooperstein
in connection with the discovery motions (11.9 hours), the amount of time expended by Ms.
Johnson in connection with the discovery motions (24.9 hours), Mr. Cooperstein’s hourly
rate ($215.00), Ms. Johnson’s hourly rate ($180.00), and the attorneys’ respective

3

The Court notes that Plaintiff does not proceed in forma pauperis in this action.

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qualifications and experience. Mr. Cooperstein seeks $2,558.50 and Ms. Johnson seeks
$4,482.00, for a total of $7,040.50 in fees. The Court finds that the requirements of Local
Rule 54.3(b) are satisfied.
Turning to the reasonableness of Mr. Cooperstein and Ms. Johnson’s hourly rates,
the party seeking attorneys’ fees bears the burden of producing “satisfactory evidence . .
. that the requested rates are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Blum v.
Stenson, 465 U.S. 886, 896 n.11 (1984). Mr. Cooperstein has practiced law since 2006
has worked at the Denver City Attorney’s Office on cases concerning civil rights litigation
involving Denver’s law enforcement agencies since 2014. Affidavit [#756-1] ¶¶ 4-6. Ms.
Johnson has practiced law since 2008 has worked for the City of Denver on civil rights
litigation since 2014. Id. ¶¶ 12-13. The Court finds that their respective hourly rates of
$215.00 and $180.00 are reasonable in this jurisdiction for counsel with their respective
experiences and qualifications. See Shrader v. Beann, No. 10-cv-01881-REB-MLW, 2012
WL 527480, at *3 (D. Colo. Feb. 12, 2012) (finding that an hourly rate of $425 for senior
attorneys in the Denver area is reasonable); Broker's Choice of Am., Inc. v. NBC Universal,
Inc., No. 09-cv-00717-CMA-BNB, 2011 WL 3568165, at *8-9 (D. Colo. Aug. 15, 2011)
(same); Carbajal v. O’Niell, 2015 WL 6446945, at *4 (D. Colo. Oct. 26, 2015) (holding that
Mr. Cooperstein’s hourly rate was “slightly lower than rates typically charged by other
lawyers . . . of similar skill and experience in the Denver metropolitan area”).
A party seeking an award of attorneys’ fees must demonstrate that the fees it seeks
are reasonable. See Dewey v. Hewlett Packard Co., No. 05-cv-01482-REB-MJW, 2007
WL 707462, at *1 (D. Colo. Mar. 5, 2007). Therefore, counsel must make a good faith
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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 reasonable attorneys’ fees is the “lodestar,” that is, the number of hours
reasonably expended multiplied by a reasonable hourly rate.

Id. 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 U.S. at 436-37. The Court therefore exercises
its “discretion in making this equitable judgment” and need 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 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).
Based on the undersigned’s thirty-one years of combined private and judicial
experience and careful consideration of Mr. Cooperstein’s Affidavit and the issues
underlying this matter, the Court finds that Mr. Cooperstein and Ms. Johnson’s claimed fees
are reasonable here. See, e.g., Onesource Commercial Prop. Servs., Inc. v. City & Cty.
of Denver, No. 10-cv-02273-WJM-KLM, 2011 WL 3583398, at *2 (D. Colo. Aug. 12, 2011).
Thus, the Court finds: (1) that Mr. Cooperstein’s hourly compensation of $215.00 is
reasonable; (2) that Ms. Johnson’s hourly compensation of $180.00 is reasonable; (3) that
the 11.9 hours of attorney time annotated by Mr. Cooperstein are reasonable; and (4) that
the 24.9 hours of attorney time annotated by Ms. Johnson are reasonable. Accordingly,
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the Court concludes that the Denver Defendants are entitled to an award of $7,040.50 in
fees they incurred as a result of Plaintiff’s discovery motions.
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#756] is GRANTED.
IT IS FURTHER ORDERED that the Denver Defendants shall file a Notice
containing the name and address of the person or entity to whom any check, money order,
or other form of payment may be made payable on or before March 14, 2016.

Dated: February 29, 2016

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