Robert W. Thomas and Anne McDonald Thomas Revocable Trust, The v. Inland Pacific Colorado, LLC et al

Filing 93

ORDER; This matter is before the Court regarding 90 Declaration of Tyler L. Farmer Regarding Expenses Incurred in Bringing Plaintiff's Motion to Compel. It is hereby ORDERED that Plaintiff is awarded no attorneys' fees in connection with its oral motion to compel, by Magistrate Judge Kristen L. Mix on 11/13/2012. (klmcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03333-WYD-KLM
THE ROBERT W. THOMAS AND ANNE MCDONALD THOMAS REVOCABLE TRUST,
trust domiciled in the State of Washington,
Plaintiff and Counter Defendant,
v.
FIRST WESTERN TRUST BANK, a Colorado company, and
TIMOTHY O’BYRNE,
Defendants;
INLAND PACIFIC COLORADO, LLC, a Nevada limited liability company, and
WESTMINSTER PROMENADE DEVELOPMENT COMPANY II, LLC, a Nevada limited
liability company,
Defendants and Counterclaimants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Declaration of Tyler L. Farmer Regarding
Expenses Incurred in Bringing Plaintiff’s Motion to Compel [Docket No. 90; Filed
October 29, 2012] (the “Declaration”).

Defendants Inland Pacific Colorado, LLC,

Westminster Promenade Development Company II, LLC and Timothy O’Byrne (collectively
“Defendants”) have filed a Response in Opposition [#92; Filed November 6, 2012]
(“Response”). No reply was permitted. See [#88].
I.

BACKGROUND
On October 17, 2012, the Court held a telephonic hearing regarding a discovery

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dispute between Plaintiff and Defendants over Defendant Timothy O’Byrne’s financial
records. [#86]. After hearing argument from both sides, the Court stated that it was
inclined to grant the oral motion to compel discovery responses and award fees. Before
doing so, however, the Court directed the parties to submit Plaintiff’s requests for
production, Defendant O’Byrne’s responses and the privilege log for its review, which they
did. [#86]. The Court then explained that absent a notice from the parties within five days
of the hearing that they had resolved the issue, it would issue a written order on the motion
to compel. Id.
On October 22, 2012, Defendants filed a Notice Regarding Telephonic Discovery
Hearing [#87] stating that they had resolved the discovery dispute and that they had
provided all the documents discussed during the hearing. Based on the Notice, the Court
issued a Minute Order [#88] stating that while the dispute over the documents had been
resolved, the Notice reflects that the issue of attorneys’ fees had not. The Minute Order
further stated that “[a]fter reviewing the information provided at the hearing and the
materials submitted thereafter, the Court finds that pursuant to Fed. R. Civ. P. 37(a)(5)(A),
Plaintiff is entitled to the reasonable expenses it incurred in bringing the motion.” [#88].
The Court then ordered Plaintiff to “file affidavits and information in compliance with
D.C.COLO.LCivR 54.3 regarding the reasonable expenses incurred in bringing the motion
to compel.” Id. The Court did not require a motion seeking fees because it already
determined Plaintiff was entitled to its reasonable fees. See id.
II.

ANALYSIS
The Declaration submitted by Plaintiff’s counsel seeks $3,111.50 in fees in

connection with the motion to compel. [#90] at 4. Defendants argue in the Response that
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Plaintiff is not entitled to fees under Fed. R. Civ. P. 37(a)(5)(A)(ii) because Defendant
O’Byrne’s objections were substantially justified. [#92] at 4-6. Alternatively, they argue that
Plaintiff’s failure to comply with D.C.COLO.LCivR 54.3 precludes an award of fees. Id. at
6-7. Because the Court already determined Plaintiff was entitled to its reasonable fees,
Defendants’ first argument is without merit. As to the second argument, however, the Court
agrees that Plaintiff’s Declaration fails to comply with D.C.COLO.LCivR 54.3.
D.C.COLO.LCivR 54.3.B provides that a motion for fees “shall include the following
for each person for whom fees are claimed:
1.

a detailed description of the services rendered, the amount of time
spent, the hourly rate, and the total amount claimed; and

2.

A summary of relevant qualifications and experience.”

To determine a reasonable fee award, the Court must conduct a lodestar calculation
as set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See Anchondo v.
Anderson, Crenshaw & Assocs., LLC, 616 F.3d 1098, 1102 (10th Cir. 2002). A lodestar
calculation requires multiplying the number of attorney hours expended to resolve an issue
or perform a task by a reasonable hourly billing rate. Hensley, 641 U.S. at 433. To
determine the number of hours expended, the Court reviews counsel's billing entries to
ensure that counsel exercised proper billing judgment. Case v. Unified Sch. Dist. No. 233,
Johnson Cnty., Kan., 157 F.3d 1243, 1250 (10th Cir. 1998) (internal quotation marks
omitted). Once the Court determines the lodestar, it may “adjust the lodestar upward or
downward to account for the particularities” of the work performed. Phelps v. Hamilton, 120
F.3d 1126, 1131 (10th Cir. 1997).
“Billing judgment consists of winnowing the hours actually expended down to the
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hours reasonably expended.”

Case, 157 F.3d at 1250.

“In determining what is a

reasonable time in which to perform a given task,” an attorney submitting billing entries
should consider the following factors: (1) the complexity of the case; (2) the number of
reasonable strategies pursued; (3) the responses necessitated by the maneuvering of the
other side; and (4) “the potential duplication of services” caused by the presence of multiple
attorneys when one would suffice. Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983)
(overruled on other grounds by Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air, 483 U.S. 711, 725 (1987)). The burden is on the party requesting fees to prove that
its counsel exercised proper billing judgment. Case, 157 F.3d at 1250 (“Counsel for the
party claiming the fees has the burden of proving hours to the district court by submitting
meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are
sought, all hours for which compensation is requested and how those hours were allotted
to specific tasks.”).
Here, Plaintiff fails to provide the required detailed information for the Court to make
a determination regarding the reasonableness of the requested fees. See [#90] at 4. The
Declaration identifies a paralegal, associate and partner but provides only the total time
expended by each along with their respective billing rates. Id. It provides no description
of the work performed or the time expended on each task. Id. Nor does the Declaration
explain the relevant qualifications and experience of the three individuals who worked on
the matter. Id.
The Court’s Minute Order [#88] clearly directed Plaintiff to provide the detailed
information required by D.C.COLO.LCivR 54.3. Plaintiff having failed to provide that
information, the Court will not speculate as to whether the requested fees are reasonable.
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Accordingly,
IT IS HEREBY ORDERED that Plaintiff is awarded no attorneys’ fees in connection
with its oral motion to compel.
Dated: November 13, 2012

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