Arend v. Paez
Filing
186
ORDER granting in part and denying in part 172 Motion for Attorney Fees by Judge Daniel D. Domenico on 7/1/19.(pglov)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Daniel D. Domenico
Civil Action No. 12-cv-01270-DDD-SKC
VALERIE AREND,
Plaintiff,
v.
HECTOR PAEZ, in his personal capacity,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR ATTORNEYS’ FEES
This matter is before the Court on Plaintiff’s Motion for Attorney Fees (Doc.
172), filed December 14, 2018.1 On January 10, 2019, Defendant filed a response in
opposition to the motion, and on January 31, 2019, Plaintiff filed her reply. For the
reasons stated below, Plaintiff’s motion is GRANTED in part and DENIED in part.
I.
BACKGROUND
This civil rights case arose out of a May 16, 2010, incident involving a former
Denver Police Officer, Hector Paez, who kidnapped and sexually assaulted Plaintiff
Valerie Arend (“Plaintiff”). Following lengthy and contentious criminal proceedings
in the state court, Paez was ultimately convicted of sexual assault-in custody of law
1
Upon the passing of Judge Wiley Y. Daniel, this matter was reassigned to the
undersigned on May 21, 2019.
1
and second-degree kidnapping of Plaintiff. Paez appealed his conviction, which was
affirmed by the Colorado Court of Appeals.
On May 14, 2012, Plaintiff initiated this lawsuit against Hector Paez
(“Defendant”) asserting a claim pursuant to 42 U.S.C. § 1983 for unlawful seizure,
excessive force, and cruel and unusual punishment. On February 20, 2014, Judge
Daniel denied without prejudice Plaintiff’s initial motion for partial summary
judgment on the issue of liability and administratively closed this case pending a
resolution of the Defendant’s appeal of his underlying state court criminal
conviction. (Doc. 80.) On September 27, 2017, Plaintiff filed a motion to reopen this
case, attaching both the Colorado Court of Appeals’s December 31, 2015 opinion
affirming the Denver District Court’s judgment of conviction and the Colorado
Supreme Court’s denial of Defendant’s Petition for Writ of Certiorari. On September
27, 2017, Judge Daniel granted Plaintiff’s motion and reopened this case for good
cause shown. After the case was reinstated, on October 26, 2017, Plaintiff filed a
renewed motion for partial summary judgment on the issue of liability. On June 20,
2018, Judge Daniel issued a written order granting summary judgment in favor of
Plaintiff and against the Defendant as to liability on her Section 1983 claim. (Doc.
104.) Thus, on October 29–30, 2018, Plaintiff’s sole remaining claim for damages
was tried to a jury. The jury awarded Plaintiff $167,250.00 in actual damages and
$100,000.00 in punitive damages. On November 1, 2018, final judgment was
entered for Plaintiff. (Doc. 164.)
2
II.
ATTORNEYS’ FEES
Plaintiff seeks an award of attorneys’ fees in the amount of $84,114.16,
reflecting 358.4 hours expended by three attorneys at rates ranging from $225 to
$250 per hour. Two of the attorneys also bill a total of 25.6 hours for travel time at
$120 per hour plus mileage.
Title 42 U.S.C. § 1988 provides that in federal civil rights actions, including
suits like the instant case brought under 42 U.S.C. § 1983, “the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of
the costs.” To obtain attorney’s fees under § 1988, “a claimant must prove two
elements: (1) that the claimant was the prevailing party in the proceeding; and (2)
that the claimant’s fee request is reasonable.” Robinson v. City of Edmond, 160 F.3d
1275, 1280 (10th Cir. 1998) (internal quotations and citations omitted). “The fee
applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.” Case v. Unified
Sch. Dist. No. 233, Johnson County, Kansas, 157 F.3d 1243, 1249 (10th Cir. 1998)
(internal citations omitted); see also Mares v. Credit Bureau of Raton, 801 F.2d
1197, 1210 (10th Cir. 1986) (internal citations omitted) (holding that it is “counsel’s
burden to prove and establish the reasonableness of each dollar, each hour, above
zero”).
A. Prevailing Party
A plaintiff may be considered a prevailing party for attorneys’ fees purposes if
he or she “succeed[s] on any significant issue in litigation which achieves some of
3
the benefit the part[y] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424,
433 (1983) (internal citations omitted). Here, the Court found liability in favor of the
Plaintiff on her 42 U.S.C. § 1983 claim, and the jury awarded both actual damages
and punitive damages, and Defendant does not contest Plaintiff’s status as a
prevailing party. The dispute is as to the reasonableness of the amount of requested
fees.
B. Reasonableness of the Fee Request
“The most useful starting point for determining the amount of a reasonable
fee is the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Id. “This calculation provides an objective basis on which to
make an initial estimate of the value of a lawyer’s services.” Id. In other words, “[t]o
determine the reasonableness of a fee request, a court must begin by calculating the
so-called lodestar amount of a fee, and a claimant is entitled to the presumption
that this lodestar amount reflects a reasonable fee.” Robinson, 160 F.3d at 1281
(internal quotations and citations omitted).
In determining the reasonableness of the hours expended, a court considers
several factors, including: (1) whether the amount of time spent on a particular task
appears reasonable in light of the complexity of the case, the strategies pursued,
and the responses necessitated by an opponent’s maneuvering; (2) whether the
amount of time spent is reasonable in relation to counsel’s experience; and (3)
whether the billing entries are sufficiently detailed, showing how much time was
4
allotted to specific tasks. See Ramos v. Lamm, 713 F.2d 546, 553–54 (10th Cir.
1983).
“The party seeking an award of fees should submit evidence supporting the
hours worked and rates claimed.” Hensley, 461 U.S. at 433. “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.” Case, 157 F.3d at 1250.
Once the court has adequate time records before it, “it must then ensure that
the winning attorneys have exercised ‘billing judgment.’” Case, 157 F.3d at 1250
(quoting Ramos, 713 F.2d at 553). “Billing judgment consists of winnowing the
hours actually expended down to the hours reasonably expended.” Id. “Hours that
an attorney would not properly bill to his or her client cannot reasonably be billed to
the adverse party, making certain time presumptively unreasonable.” Id. (citing
Ramos, 713 F.2d at 553–54) (giving as an example time spent doing background
research); Hensley, 461 U.S. at 434, 437 (expecting counsel to exercise their “billing
judgment,” “mak[ing] a good faith effort to exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary”).
In other words, the district court should exclude from this initial fee
calculation hours that were not “reasonably expended.” Hensley, 461 U.S. at 434
(internal quotation omitted). Factors that typically will be considered are
5
(1) whether the tasks being billed would normally be billed
to a paying client,
(2) the number of hours spent on each task,
(3) the complexity of the case,
(4) the number of reasonable strategies pursued,
(5) the responses necessitated by the maneuvering of the
other side, and
(6) potential duplication of services” by multiple lawyers.
Robinson, 160 F.3d at 1281 (internal quotations omitted). In sum, the Court must
“ask what hours a reasonable attorney would have incurred and billed in the
marketplace under similar circumstances.” Id.
1. Reasonable Number of Hours
Based on a careful review of the billing records, it appears that attorney
Alison Ruttenberg was the lead attorney in this case from its inception until early
2018, when she became ill. Ms. Ruttenberg drafted the majority of the pleadings,
including the renewed motion for partial summary judgment on the issue of
liability, which was ultimately granted by the Court. Ms. Ruttenberg submitted a
billing statement for 127.5 hours of work on this case.
Attorney Lauren Maytin and Attorney Daniel Murphy represented Plaintiff
during the 2-day damages trial before Judge Daniel along with post-trial matters.
Additionally, both Ms. Maytin and Mr. Murphy bill for time spent representing
Plaintiff on matters related to the Defendant’s underlying criminal proceedings,
which spanned approximately eight years. Ms. Maytin billed 152.60 hours for her
6
work on this case along with an additional 24 hours of travel time. Mr. Murphy
billed 78.32 hours working on this case along with 1.6 hours travel time.
Defendant contends that the requested attorney hours should be reduced for
excessive, vague, and unnecessary billing. D.C.COLO.LCivR 54.3(b)(2) requires the
Plaintiff to include “a detailed description of the services rendered, the amount of
time spent, the hourly rate charged, and the total amount claimed.” See Hensley,
461 U.S. at 433 (stating that “the party seeking an award of fees should submit
evidence supporting the hours worked and rates claimed. Where the documentation
of hours is inadequate, the district court may reduce the award accordingly.”).
The Court finds some merit in Defendant’s challenges. Initially, the total
amount of hours billed by Plaintiff’s three attorneys appears to be excessive based
on the nature of this case and its duration. While this case was stayed and
administratively closed for a number of years during the pendency of the
Defendant’s criminal proceedings, the matter before this Court was relatively
straightforward. Liability was resolved during the summary judgment stage after
Defendant had already been convicted in state court, and the case proceeded to a
two-day jury trial on damages.
The Court finds several of the entries appear to be unreasonable or
duplicative. “The term duplicative in the context of attorney’s fees requests usually
refers to situations where more than the necessary number of lawyers are present
2
In the initial motion, Mr. Murphy asserted that he worked a total of 76.8 hours,
but in the reply brief, he added an additional 1.5 hours spent drafting the reply
brief.
7
for a hearing or proceeding or when multiple lawyers do the same task. The more
lawyers representing a side of the litigation, the greater the likelihood will be for
duplication of services.” Robinson, 160 F.3d at 1285 n.10 (internal citations and
quotation marks omitted). Here, there are duplications with multiple co-counsel
regarding the drafting of the complaint—a document which should not have taken a
collective 7 hours to complete.3 Ms. Ruttenberg also billed more than thirty-six
hours to “review transcript of Defendant’s criminal trial . . . and take notes relevant
to the civil case.” (Doc. 172, Ex. 1.) While the Court is hesitant to dissuade counsel
from a thorough review of a related criminal trial, spending an additional 12 hours
doing so only days after this case was administratively closed is not a reasonable
endeavor at that time.
Furthermore, the billing statements are somewhat imprecise. (Id.) By way of
example, on May 18, 2013, Ms. Ruttenberg, for a second straight day, billed 8 hours
to “research offensive collateral estoppel, go through all the pertinent documents
and draft declaration and draft motion for summary judgment on the issue of
liability.” (Id.) Defendant suggests this is evidence of block billing. The practice
known as “block billing consists of attorneys recording large blocks of time for tasks
without separating the tasks into individual blocks or elaborating on the amount of
3
In addition to the 4 hours Ms. Ruttenberg spent reviewing documents and
drafting the complaint, Ms. Maytin spent another 3 hours drafting it, and the
resulting document was simple and short. While attorneys are encouraged, in
accordance with Federal Rule of Civil Procedure 8, to keep their pleadings “short
and plain,” it would be unreasonable for attorneys of the skill and experience
level at issue here to spend seven hours drafting the complaint in this case. (See
Doc. 1.)
8
time each task took.” Flying J Inc. v. Comdata Network, Inc., 322 F. App’x 610, 617
(10th Cir. 2009) (citing Robinson, 160 F.3d at 1284). But “block billing” is not
strictly prohibited. See Phillips v. LuckyGunner, LLC, No. 14-CV-02822-RPM, 2015
WL 3799574, at *4 (D. Colo. June 17, 2015). At most, this imprecise practice may be
evidence that a claimed amount is excessive. But at least, it may obfuscate the
correct result of a task like the present one.
Next, the Court turns to the hours billed by Ms. Maytin and Mr. Murphy. In
violation of D.C.COLO.LCivR 54.3(b)(2), both Ms. Maytin’s billing statement and
Mr. Murphy’s billing statement are rife with general, vague, or unintelligible
descriptions such as “research 1983 actions,” “emails,” “phone conference,” “phone
discussion,” “Review/Respond emails,” “TC’s F&T LM re:case (x3),” “Mtg. W/ VA &
WTts,” “LM melt down,” “Additional research,” and “TCT LM.” (ECF No. 172, Exs.
2–3). The record is replete with charges by Ms. Maytin and Mr. Murphy billing time
for emails, telephone conferences, or correspondence with each other. There are also
entries which movants do not contest relate only to the ongoing criminal trial or
informing Ms. Arend about the progress of the same.4 Certainly, it may be
4
For example, Ms. Maytin has several entries like the one on 3/13/2012 (all before
this case was filed) that clearly relate to the criminal matter: “spoke w/ VA –
trial date set for May 7, 2012; e-mail DM and AR trial date.” (Doc. 172-2, at 2–4.)
In all, Defendants suggest that up to 2.9 hours of Ms. Maytin’s requested fee
time relates exclusively to the criminal case. The Court’s review suggests
approximately half of this time may have been related to this civil proceeding
and the other half solely to the criminal case.
Mr. Murphy also billed for time that pre-dated the civil complaint, including for
meetings with district attorneys and preparing for news interviews. (Doc. 172-5.)
The Court is unpersuaded by movant’s suggestion that press conferences related
to the criminal case were billable in this civil matter because “[a]ny preparation
9
appropriate for both counsel to bill time for occasional strategy planning sessions,
where both are bringing value to the discussion, but mere transmission of
information between the attorneys does not translate to double value to the client or
case. See Clawson v. Mountain Coal Co., No. 01-cv-02199-MSK-MEH, 2007 WL
4225578 (D. Colo. Nov. 28, 2007) (stating that “meetings that are conducted simply
to assign a task, or to ensure that a task is progressing as requested, do little to
advance the substance of the litigation and should not give rise to a fee award”).
Additionally, both Ms. Maytin and Mr. Murphy bill for numerous hours spent on
trial preparation, drafting jury instructions and the verdict form, and attending the
two-day trial on damages. In September and October 2018, Ms. Maytin has twelve
separate billings entries referencing work done on the jury instructions while Mr.
Murphy has six similar billing entries. The Court find that these entries are an
unnecessary duplication of services, especially given the short duration of the trial
and the relatively non-complex nature of the damages claim.
As to the unnecessary expenditure of attorney time on clerical and other
tasks, Defendant accurately points out several occasions in which Ms. Maytin billed
for tasks that seemingly should have been performed by clerical staff. For example,
there are numerous billing entries for administrative tasks such as: printing and
for interviews (billed by Murphy) were necessary to ensure the criminal case
would proceed.” (Doc. 179 ¶ 10.) The 1.9 hours Mr. Murphy put into these news
interviews and related preparation are non-compensable. The additional 2.5
hours Defendants claim are related only to the criminal case appear to have
some bearing on the civil action for planning purposes, and the Court will reduce
these hours accordingly.
10
emailing court documents and case pleadings; filing documents with the Court;
faxing documents; reviewing email notices confirming that documents were
properly filed; and coordinating conference calls. (See Doc. 172, Ex. 2.) Certainly,
these tasks did not call upon Ms. Maytin’s legal knowledge or expertise.
Considering the Ramos factors, Ms. Maytin has not proven that time spent on these
administrative or scheduling matters is normally billed to the client.
Given the Court’s consideration of the evidence and governing law, the billing
records reflect instances of billing for excessive time, duplicative services, and
services not attributable to this civil matter. The Court does, however, recognize
that some duplication was unavoidable given Ms. Ruttenberg’s health-related
departure from the case. So instead of serving as a “green-eyeshade accountant,
scouring the individual billing entries for evidence of waste or fat,” Hayes, No. 15cv-02015-REB-NYW (D. Colo. July 2, 2018) (Doc. 220, at 6); see Fox, 563 U.S. at 838,
the Court finds that a general reduction of 25% of the requested hours is
appropriate. See DeGrado, 2009 WL 1973501, at *10; Carr v. Fort Morgan School
Dist., 4 F. Supp. 2d 998, 1003 (D. Colo. 1998) (determining that an across-the-board
reduction of requested attorney fees is appropriate).
Finally, the Court turns to Defendant’s objection to (primarily) Ms. Maytin’s
request for 24 hours of travel time at a reduced hourly rate of $120. The record
reflects that Ms. Maytin billed for travel time to Denver from Aspen on three
separate occasions. (Doc. 172, Ex. 2.) Mr. Murphy billed for 1.6 hours for “drive time
to deposition” and to the “bill of costs hearing.” (Id. at Ex. 5.) The pleadings indicate
11
that all of this travel was by car, suggesting that counsel was otherwise
unproductive during this travel time. In Achondo v. Anderson, Crenshaw & Assocs.,
LLC, 616 F.3d 1098, 1105–06 (10th Cir. 2010), the Tenth Circuit explained that
although attorney travel time may be compensable in a fee award, “a trial court has
discretion to apply a reduced hourly rate if the time is otherwise unproductive.” Id.
at 1106. Here, given the reduced rate charged by counsel ($120 per hour), the Court
believes it appropriate to award the hours claimed for such travel.
2. Reasonable Hourly Rate
The Tenth Circuit indicates that “the court must look to ‘what the evidence
shows the market commands for civil rights or analogous litigation.”’ Burch v. La
Petite Academy, Inc., 10 F. App’x 753 (10th Cir. 2001) (quoting Case, 157 F.3d at
1243). The local market rate is usually the state or city in which counsel practices.
Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1999) (looking at
“the prevailing market rate in the relevant community”); Case, 157 F.3d at 1256
(looking at fees charged by lawyers in the area in which the litigation occurs). The
court is also entitled to consider the quality of counsel’s performance in setting the
fee. Ellis, 163 F.3d at 1203.
Ms. Ruttenberg requests a rate of $250 per hour while Ms. Maytin and Mr.
Murphy request a rate of $225 per hour. Counsel submitted declarations, resumes,
an affidavit from Attorney Richard L. Ott, and several state court orders in support
of their contention that the requested rates are below the billing standards for civil
rights cases in this legal market. (See Docs. 172, 179). Further, the Court notes the
12
following decisions where the same or similar hourly rates were deemed reasonable
in civil rights cases. See White v. Chafin, No. 13-cv-01761-CMA-MJW, 2016 WL
9735066, * 4 (D. Colo. Sept. 23, 2016) (approving rates of $500 per hour for lead
counsel, $275–$450 per hour for co-counsel, and $150 per hour for paralegal);
Martinez v. Valdez, 125 F. Supp. 3d 1190 (D. Colo. 2015) (approving rates of $300–
$500 per hour for counsel and $150 per hour for paralegal); Schlenker v. City of
Arvada, No. 09-cv-1189-WDM-KLM, 2010 WL 2843414, *2 (D. Colo. July 19, 2010)
(approving rates of $400–$450 per hour for counsel and $110 per hour for
paralegal); Barnett v. Bd. of County Commissioners of Montrose, No. 14-cv-01765JAP-GPG, 2015 WL 13614118, *5 (D. Colo. Dec. 14, 2015) (approving rates of $400
per hour for lead counsel and $75 per hour for a paralegal after surveying recent
District of Colorado cases that address contested hourly rates); Carbajal v. Warner,
No. 10-cv-02862-PAB-KLM, 2016 U.S. Dist. LEXIS 24517 (D. Colo. Feb. 29, 2016)
(awarding hourly rate of $215 for attorney in civil rights litigation) (overruled on
grounds other than the hourly fee amount awarded); Shrader v. Beann, No. 10-cv01881-REB-MJW, 2012 U.S. Dist. LEXIS 20575 (D. Colo. Feb. 17, 2012) (concluding
that hourly rate of $425 is reasonable for senior attorneys and hourly rate of $75 is
reasonable for legal assistant); Profita v. Puckett, No. 15-cv-01237-DME-CBS, 2017
U.S. Dist. LEXIS 63168, at *77 (D. Colo. Apr. 25, 2017) (approving attorney hourly
rate of $275).
Upon a careful review of the parties’ proffered evidence and the comparable
cases from this District, the Court concludes that the requested hourly rates are
13
appropriate. The Court finds that $225–$250 per hour are reasonable rates in the
Denver area for attorneys of similar background and experience as Plaintiff’s
counsel. After accounting for the reduction of hours detailed above, the lodestar
calculation is as follows:
Attorney
Hourly
Rate
Hours Billed After
25% Reduction
Total Fee
Alison Ruttenberg
$250
127.5-25% (31.88)=95.62
$23,905.00
Lauren Maytin
$225
152.6-25% (38.15)=114.45
$25,751.25
Daniel Murphy
$225
78.3-25% (19.58)=58.72
$13,212.00
Lauren Maytin Travel Time
$120
24
$2,880.00
Daniel Murphy Travel Time plus
Mileage
$120
1.6
$192.00 +
$16.66 mileage
$208.66
276.48
$65,956.91
Total
III.
CONCLUSION
Based on the foregoing, it is ORDERED that Plaintiff’s Motion for Attorney
Fees (Doc. 172) is GRANTED IN PART and DENIED IN PART. Plaintiff is
awarded attorneys’ fees in the reduced amount of $65,956.91 as set forth in this
Order. It is FURTHER ORDERED that the Final Judgment shall be amended to
reflect the award of attorneys’ fees.
Dated: July 1, 2019
BY THE COURT:
s/Daniel D. Domenico
Daniel D. Domenico
United States District Judge
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?