Mosch et al v. Henry et al

Filing 165

ORDER accepting in part and rejecting in part 162 Report and Recommendations. 155 Motion to Enter Judgment for Attorneys Fees and Expenses Incurred is granted in part. By Judge Philip A. Brimmer on 4/10/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02438-PAB-BNB
ALVIN MOSCH,
PATRICIA C. MOSCH, and
DAVID K. MOSCH, each individually and d/b/a Mosch Mining Company,
Plaintiffs,
v.
JOHN HENRY, a/k/a John T. Henry a/k/a John L. Henry,
UNITED STATES REAL ESTATE CORPORATION, and any one claiming by
of through any of the named persons,
Defendants.
_____________________________________________________________________
ORDER REGARDING MAGISTRATE JUDGE’S RECOMMENDATION
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge Boyd N. Boland filed on March 7, 2013 [Docket No. 162]. The
Recommendation states that objections to the Recommendation must be filed within
fourteen days after its service on the parties. See 28 U.S.C. § 636(b)(1)(C). The
Recommendation was served on March 7, 2013. No party has objected to the
Recommendation.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(“[i]t does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when

neither party objects to those findings”). In this matter, the Court has reviewed the
Recommendation to satisfy itself that there is “no clear error on the face of the record.”1
Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court
concludes that the Recommendation does contain a clear error. The affidavit [Docket
No. 155-1] in support of the motion for attorneys’ fees [Docket No. 155] seeks
attorneys’ fees at a rate of $250.00 per hour before January 1, 2013 and $300.00 per
hour after that date. However, in multiplying the number of hours reasonably incurred
by the reasonable hourly rate, which the Recommendation found to be between
$250.00 and $300.00, the Recommendation used a rate of $350.00 per hour, instead of
$300.00 per hour, after January 1, 2013. This clerical error resulted in the award being
overstated by $350.00. The Court finds no clear error in the Recommendation’s
calculation of the number of hours and no clear error in its approval of a rate ranging
from $250.00 to $300.00 per hour. Accordingly, it is
ORDERED as follows:
1. The Recommendation of United States Magistrate Judge [Docket No. 162] is
ACCEPTED in part and REJECTED in part.
2. Plaintiff’s Motion to Enter Judgment for Attorneys’ Fees and Expenses
Incurred [Docket No. 155] is granted in part. Plaintiffs are awarded attorney fees in the
amount of $49,200.00.

1

This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
2

DATED April 10, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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