Bazarewski et al v. Beaver Creek Ski Area, Inc et al

Filing 67

ORDER granting 55 Motion for Attorney Fees, defendant's attorneys are collectively awarded $73,509.50 in fees, by Judge Raymond P. Moore on 8/27/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-03218-RM-MJW
WILLIAM BAZAREWSKI, and
HEATHER BAZAREWSKI,
Plaintiffs,
v.
THE VAIL CORPORATION d/b/a VAIL RESORTS MANAGEMENT COMPANY,
Defendant.
ORDER GRANTING MOTION FOR ATTORNEYS’ FEES
THIS MATTER is before the Court on the Motion for Award of Attorneys’ Fees, (the
“Motion”) filed by Defendant The Vail Corporation d/b/a/ Vail Resorts Management Company
(“Defendant” or “Vail”) (ECF No. 55). As discussed herein, the Motion is GRANTED.
C.R.S. § 13-17-201 allows the trial court to award reasonable attorney fees to a defendant
when it dismisses a tort action under Rule 12(b)(6). The party seeking the award bears the
burden to show that the hourly rate is reasonable. Malloy v. Monahan, 73 F.3d 1012, 1018 (10th
Cir. 1996). A reasonable rate is the prevailing market rate in the relevant community. Guides,
Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002).
On March 4, 2014, this Court granted Defendant’s Motion to Dismiss. (ECF No. 52.)
Defendant subsequently filed the Motion, and Plaintiff filed a Response on April 16, 2014. (ECF
No. 59.) Defendant argues that “Vail is entitled to an award of $71, 259.50 in attorney’s fees
pursuant to Colorado law.” (ECF No. 55 at 1.) Plaintiff does not dispute the amount of hours
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billed by Vail’s attorneys in defending this matter, nor does Plaintiff dispute that Vail is entitled
to reasonable attorney fees in defending this action, but Plaintiff does dispute that the billing
rates charged by Vail’s attorneys are reasonable. Specifically, Plaintiff points to the
“discounted” rates charged by Wheeler Trigg O’Donnell, LLP personnel, $360 per hour for
attorney Craig May, $305 an hour for attorney Tina Ruhland, and $145 an hour for paralegal
Sharon Gottsefeld. They also point to the $235 per hour rate charged by Vail’s in-house
attorneys. Plaintiffs point to no specific authority or other figure they would deem reasonable,
but simply ask the Court to “reduce these fees to an amount it deems reasonable.” (ECF No. 59
at 2.)
In support of its motion, Vail included an affidavit by Samuel N. Shapiro, Vail’s in-house
litigation counsel. Mr. Shapiro set forth facts and opinions in support of the billing rates charged
by Vail’s attorneys. For instance, Mr. Shapiro cited Mr. May’s thirteen years of experience in
Colorado litigation, “primarily on defending personal injury and product liability cases and on
commercial disputes.” (ECF No. 55-1.) Ms. Ruhland has been admitted to practice in Colorado
since 2010. Ms. Gottesfeld has 30 years of experience in personal injury and commercial
litigation as a paralegal. Mr. Shapiro’s affidavit lays out his opinion that the billing rates charged
by the Wheeler Trigg personnel were reasonable based on his “personal knowledge of the hourly
rates charged for this type of litigation by attorneys of comparable experience in this
community.” (ECF No. 55-1 at 2.)
Mr. Shapiro also stated that “[t]he reasonable hourly billing rate for both Mr. Benora and
I in defending this case is $235.00, which has been calculated by conservatively averaging the
hourly rates charged for this type of litigation by attorneys of comparable experience in this
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