Mills v. Prudential Insurance Company of America, The et al

Filing 68

ORDER granting Appellate Attorneys' Fees to Stephen Mills 65 . The Court GRANTS the renewed motion for appellate attorneys fees (Doc. 65), awarding Stephen Mills $6,253.50 in appeal-related attorneys' fees by Judge David M. Ebel on 02/11/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:11-cv-02127-DME-CBS
KATHLEEN MILLS,
Plaintiff,
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation;
STEPHEN MILLS, an individual,
Defendants.
ORDER GRANTING APPELLATE ATTORNEYS’ FEES TO STEPHEN MILLS
This matter comes before the Court on Defendant Stephen Mills’ Renewed
Motion for an Award of Appellate Attorneys’ Fees (Doc. 65). The Court GRANTS that
motion.
I. Background
Plaintiff Kathleen Mills sued Defendants Prudential Insurance Company of
America and Stephen Mills. Defendants prevailed when this Court dismissed Kathleen
Mills’ action pursuant to Fed. R. Civ. P. 12(b)(6). See Mills v. Prudential Life Ins. Co. of
Am., 856 F. Supp. 2d 1218, 1220 (D. Colo. 2012). The Tenth Circuit affirmed, see Mills
v. Prudential Life. Ins. Co. of Am., 513 F. App’x 713, 714 (10th Cir. 2013) (unpublished),
cert denied, 134 S. Ct. 174 (2013), and then granted Stephen Mills “an award of
reasonable appeal-related attorney’s fees” under Colo. Rev. Stat. § 13-17-201, Mills v.
Prudential Ins. Co. of Am., No. 12-1208, Order at 1 (10th Cir. Apr. 25, 2013). The Tenth

Circuit remanded this case for this Court to determine the amount of fees to be
awarded. Id.
Stephen Mills filed an initial motion for appellate fees with this Court, which the
Court dismissed as deficient but without prejudice to his refiling an adequate fee motion.
Before the Court now is Stephen Mills’ renewed appellate fee motion, requesting an
award of $6,253.50 in appellate attorneys’ fees.
II. Kathleen Mills’ objections to the fees requested
Kathleen Mills objects only to the amount of fees requested, on four bases. First,
she objects to Stephen Mills’ request for fees incurred, not to defend Kathleen Mills’
appeal, but instead to review the petition for certiorari that she filed in the United States
Supreme Court after losing her appeal. Because the Tenth Circuit’s award of “appealrelated attorney’s fees” is broad enough to encompass these fees and because Colo.
Rev. Stat. § 13-17-201 provides that Stephen Mills “shall” recover his attorneys’ fees “in
defending this action,” the Court rejects Kathleen Mills’ first objection.
Next, Kathleen Mills argues that Stephen Mills cannot recover attorneys’ fees
incurred for the preparation of the initial, deficient appellate fee motion that he filed with
this Court. 1 That first motion was deficient because Stephen Mills failed to provide this
Court with enough information, as required by D.C.Colo.LCivR 54.3(B), to rule on the
motion. He has now provided that additional information to the Court in his renewed fee
motion. That information, when combined with the first fee motion, adequately
documents his appellate fee request. The attorneys’ fees he requests specifically for
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Kathleen Mills does not argue that Stephen Mills generally cannot recover fees
incurred for pursuing a fee award under Colo. Rev. Stat. § 13-17-201.

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the preparation of his appellate fee motions reflect the cumulative legal work necessary
to present the fee request properly to this Court. Further, the requested attorneys’ fees
related to the fee motions are reasonable; they do not reflect unnecessary or excessive
charges, or charges for redundant legal work. The Court, therefore, declines to reduce
the amount of attorneys’ fees Stephen Mills has requested for the preparation of the two
appellate fee motions he filed with this Court.
Kathleen Mills’ third objection to the fee request is that the total amount of fees
requested is unreasonable because Stephen Mills is seeking more fees for pursuing his
fee motions than he is seeking for defending Kathleen Mills’ appeal. That being said,
Kathleen Mills does not challenge as unreasonable the fees requested for any specific
legal service. And it is logical that Stephen Mills did not incur more significant attorneys’
fees for defending against Kathleen Mills’ appeal because he joined the appellate brief
submitted by his Co-defendant Prudential. Comparing the fees Stephen Mills is seeking
for defending the appeal with those he is seeking for pursuing a fee award does not,
then, suggest that the total amount of fees Stephen Mills is requesting is unreasonable.
Lastly, Kathleen Mills contends that the series of three affidavits Stephen Mills
submitted in support of his appellate fee request are unreliable because they are
inconsistent. Stephen Mills submitted three affidavits from his attorneys in support of
his appellate fee request, each detailing the amount of time his attorneys spent
defending Kathleen Mills’ appeal and seeking attorneys’ fees for that work. Stephen
Mills submitted the first affidavit to the Tenth Circuit, in March 2013. He submitted the
other two affidavits to this Court, one in May 2013 and one in December 2013. There

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are discrepancies in the amount of time documented in the three affidavits. But
Stephen Mills explained that those discrepancies reflect either additional relevant legal
work or errors in the original fee calculations. Kathleen Mills does not specifically
challenge those explanations, which are adequate to support awarding fees in the
amounts set forth in the latest affidavit filed with this Court in December 2013. See
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., No. 09-cv-00717-CMA-BNB, 2011
WL 3568165, at *2 (D. Colo. Aug. 15, 2011) (unreported) (noting that, “[a]lthough courts
are obligated to exclude hours not reasonably expended from the fee award, courts
need not ‘identify and justify every hour allowed or disallowed,’” quoting Malloy v.
Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996)); see also Fox v. Vice, 131 S. Ct. 2205,
2216 (2011) (“The essential goal in fee shifting . . . is to do rough justice, not to achieve
auditing perfection.”).
III. Conclusion
In addition to addressing and rejecting each of Kathleen Mills’ objections to the
amount of appellate attorneys’ fees Stephen Mills has requested, the Court has also
considered the reasonableness of the fee request under the factors set forth in Ramos
v. Lamm, 713 F.2d 546, 552-59 (10th Cir. 1983), overruled in part by Pennsylvania v.
Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 714-15, 717 n.4, 724-25
(1987) (rejecting enhancement of fee award for “contingency of success”). See Shrader
v. Beann, 503 F. App’x 650, 655 (10th Cir. 2012) (unpublished), cert. denied, 134 S. Ct.
102 (2013). Having done so, the Court finds that the appellate attorneys’ fees that
Stephen Mills has requested, $6,253.50, are reasonable.

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Accordingly, the Court GRANTS the renewed motion for appellate attorneys’ fees
(Doc. 65), awarding Stephen Mills $6,253.50 in appeal-related attorneys’ fees.
Dated this

11th

day of

February

, 2014.

BY THE COURT:
s/ David M. Ebel
U. S. CIRCUIT COURT JUDGE

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