24 Hour Fitness USA, Inc. v. Blazier

Filing 24

Order Denying 23 Reconsideration of Attorney Fee Award, by Judge John L. Kane on 11/2/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-03195-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
BRIAN ABEYTA,
Defendant.
Civil Action No. 11-cv-3196-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
ERIN ADDESSO,
Defendant.
Civil Action No. 11-cv-3197-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
OSKAR BERCEDONI,
Defendant.
Civil Action No. 11-cv-3199-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
AARON BUTLER,
Defendant.
Civil Action No. 11-cv-3200-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
ERIC CONRY,
Defendant.
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Civil Action No. 11-cv-3201-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
TRAVIS ESTEY,
Defendant.
Civil Action No. 11-cv-3202-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
IAN LENTZ,
Defendant.
Civil Action No. 11-cv-3203-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
DAN LINDSTROM,
Defendant.
Civil Action No. 11-cv-3204-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
CHRISTIE MASONE,
Defendant.
Civil Action No. 11-cv-3205-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
JASON McDONALD,
Defendant.

2

Civil Action No. 11-cv-3206-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
DUSTIN MOBLEY,
Defendant.
Civil Action No. 11-cv-3207-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
JOHN PERRY,
Defendant.
Civil Action No. 11-cv-3208-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
EMMANUEL MARCHICA,
Defendant.
Civil Action No. 11-cv-3209-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
MEGAN RODRIGUEZ-HOEPER,
Defendant.
Civil Action No. 11-cv-3218-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
MARK SCHMUKAL,
Defendant.

3

Civil Action No. 11-cv-3219-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
SARAH SHANAHAN,
Defendant.
Civil Action No. 11-cv-3221-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
SHANNON SIDWELL,
Defendant.
Civil Action No. 11-cv-3226-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
LANCE SMITH,
Defendant.
Civil Action No. 11-cv-3227-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
MARYBETH VANHORN,
Defendant.
Civil Action No. 11-cv-3229-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
BRADFORD WILSON,
Defendant.

4

Civil Action No. 11-cv-3230-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
JENNIFER YENTES,
Defendant.
Civil Action No. 11-cv-3284-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
JOHN KOBBEMAN,
Defendant.
Civil Action No. 11-cv-3285-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
ROBERT SUREN,
Defendant.
Civil Action No. 11-cv-3374-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
JACQUELINE BLAZIER,
Defendant.
Civil Action No. 11-cv-3375-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
MICHAEL ALAN STONEHOUSE,
Defendant.

5

Civil Action No. 12-cv-114-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
MATTHEW POPELKA,
Defendant.
Civil Action No. 12-cv-115-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
NICHOLE RAE,
Defendant.
Civil Action No. 12-cv-122-JLK
24 HOUR FITNESS, USA, INC., a California corporation d/b/a 24 HOUR
FITNESS,
Plaintiff,
v.
KRISTIN HARMAN,
Defendant.
______________________________________________________________________________
ORDER DENYING RECONSIDERATION OF ATTORNEY FEE AWARD
______________________________________________________________________________
Kane, J.
Before me is LITTLER MENDELSON’S MOTION TO RECONSIDER SEPTEMBER
24, 2012 ORDER OR, ALTERNATIVELY, TO PROVIDE RELIEF FROM ORDER in the
above-captioned cases. Littler Mendelson organizes its motion into three issues, each of which I
will address in turn.
First, considering, as Littler Mendelson correctly points out, the three-day mailing rule
still applies even where documents are not “mailed” at all but rather electronically filed, my

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September 24, 2012 Order is revised to delete the finding that the Response to the Motion was
untimely filed.
Second, though the Response was indeed timely filed, its content, like that of the instant
motion, is unpersuasive. Accordingly, the Order awarding attorney fees stands, both as against
the firm and as against Mr. Kirkpatrick individually. Quite simply, Mr. Kirkpatrick is counsel of
record in this case, and, as such, he is obligated to comply with the Colorado Rules of
Professional Conduct. 1 See D.C. Colo. L.CivR 83.4.
Third, the Order applies only to the 28 cases pending in this court. Courts elsewhere can
take whatever action or inaction each deems appropriate. The only instance in which actions
taken in other courts would warrant sanctions in this court is if such actions were taken in
violation of an order of this court. No such order was entered in this case. With the revision to
show the Response as timely filed, and adding the foregoing clarification, the September 24,
2012 Order stands.
Dated: November 2, 2012

BY THE COURT:
/s/John L. Kane
Senior U.S. District Court Judge

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Mr. Kirkpatrick is especially advised to review Colorado Rule of Professional Conduct 3.2 and its comment,
duplicated below for counsel’s convenience.
RULE 3.2. EXPEDITING LITIGATION
A lawyer shall make reasonable efforts to expedite litigation consistent with
the interests of the client.
COMMENT
[1] Dilatory practices bring the administration of justice into disrepute. Although
there will be occasions when a lawyer may properly seek a postponement for
personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation
solely for the convenience of the advocates. Nor will a failure to expedite be
reasonable if done for the purpose of frustrating an opposing party’s attempt to
obtain rightful redress or repose. It is not a justification that similar conduct is
often tolerated by the bench and bar. The question is whether a competent lawyer
acting in good faith would regard the course of action as having some substantial
purpose other than delay. Realizing financial or other benefit from otherwise
improper delay in litigation is not a legitimate interest of the client.

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