Hartley v. Time Warner Cable NY, LLC

Filing 101

ORDER Regarding Attorney Fees and Costs 58 and 95 . ORDERED that Plaintiff shall pay to the Defendant the sum of $2,500.00 in reasonable and necessary attorney fees for having to prepare, file, and attend a hearing on Defendant's Mot ion to Compel and for Attorneys' Fee (docket no. 58), a Reply (docket no. 78) and a Supplement (docket no. 90). Payment of the $2,500.00 shall be made on or before November 29, 2013 by Magistrate Judge Michael J. Watanabe on 11/04/13. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00158-RM-MJW
PATRICK HARTLEY,
Plaintiff,
v.
TIME WARNER NY CABLE LLC,
Defendant.

ORDER REGARDING ATTORNEY FEES AND COSTS
(Docket Nos. 58 and 95)

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court for consideration on attorney fees. The court has
considered the Affidavit of Nathan D. Chapman Itemizing Attorneys’ Fees Incurred in
Connection with Defendant’s Motion to Compel, and for Attorneys’ Fees (docket no. 95).
In addition, the court has considered Plaintiff’s Response to Defendant’s Request for
Fees (docket no. 97) and Defendant Time Warner NY Cable LLC’s Reply in Support of
Affidavit Requesting Attorneys’ Fees Associated with Motion to Compel (docket no. 99).
Furthermore, the court has taken judicial notice of the court’s file and has considered
applicable Federal Rules of Civil Procedure and case law. The court now being fully
informed makes the following findings of fact, conclusions of law, and order.
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

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2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard on the issue of attorney fees;

4.

That on October 11, 2013, I held a hearing on Defendant’s Motion
to Compel and for Attorneys’ Fee (docket no. 58). At this hearing,
I granted in part and denied in part the subject motion (docket no.
58) and awarded Defendant reasonable attorney fees and costs.
The parties were ordered to meet and confer to see if they could
agree upon the amount of attorney fees and costs, but if they could
not agree, then my Order set out a briefing schedule on the issue of
attorneys fees and costs. The parties were unable to agree upon
the amount of attorney fees and costs, and thus such issue is
before myself for consideration. See docket no. 94;

5.

That when evaluating a motion for attorney fees, the court must
follow the three-step process set forth in Ramos v. Lamm, 713 F.2d
546 (10th Cir.1983), overruled on other grounds by Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 725
(1987); Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 2011
WL 3568165, at *2 (D. Colo. Aug. 15, 2011). The first step in
determining a fee award is to determine the number of hours
reasonably spent by counsel for the party seeking the fees. Malloy
v. Monahan, 73 F.3d 1012, 1017 (10th Cir. 1996); Ramos, 713 F.2d

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at 553. Factors considered in a reasonableness determination
include: (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
allotted to a specific task. Brokers’ Choice of Am., Inc. v. NBC
Universal, Inc., 2011 WL 3568165, at *2 (D. Colo. Aug. 15, 2011)
(citing Rocky Mountain Christian Church v. Board of County
Comm'rs of Boulder County, 2010 WL 3703224, at *2-3 (D.Colo.
Sept. 13, 2010)). “Counsel for the prevailing party should make a
good faith effort to exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary.” Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983). Although courts are obligated
to exclude hours not reasonably expended from the fee award,
courts need not “identify and justify every hour allowed or
disallowed, as doing so would run counter to the Supreme Court's
warning that a ‘request for attorney's fees should not result in a
second major litigation.’” Malloy, 73 F.3d at 1018 (quoting Hensley,
461 U.S. at 437); Fox v. Vice, 131 S. Ct. 2205, 2216 (2011)
(“[C]ourts need not, and indeed should not, become greeneyeshade accountants. The essential goal in shifting fees . . . is to

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do rough justice, not to achieve auditing perfection. So trial courts
may take into account their overall sense of a suit, and may use
estimates in calculating and allocating an attorney’s time.”).
Once the Court has determined the number of hours reasonably
spent, it must then determine a reasonable hourly rate of
compensation. Ramos, 713 F.2d at 555. “A reasonable rate is the
prevailing market rate in the relevant community.” Malloy, 73 F.3d
at 1018 (citing Blum v. Stenson, 465 U.S. 885, 897 (1984)). The
party seeking the award has the burden of persuading the court
that the hours expended and the hourly rate are both reasonable.
Id.

The third step consists of multiplying the reasonable hourly rate by
the number of hours reasonably expended to determine the
“lodestar” amount. Hensley, 461 U.S. at 433;
6.

That here, Defendant seeks attorney fees totaling $20,520.63.
Defendant has filed an affidavit of counsel Nathan D. Chapman
which includes an itemized spreadsheet of billable time and hours.
See docket no. 95. The billable hourly rate requested by Defendant
for co-counsel Paul G. Sherman is $279.00 per hour, and the
billable hourly rate requested by Defendant for counsel Chapman is
$324.00 per hour. Mr. Chapman is an associate with the law firm of
Wargo & French, LLP. It appears that Mr. Sherman is also an

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associate with the law firm of Wargo & French, LLP, noting that his
hourly rate is lower than Mr. Chapman’s. Both Mr. Chapman and
Mr. Sherman have been practicing law for approximately eight
years according to the affidavit. See paragraph 6 of docket no. 95.
The affidavit suggests that Defendant has been billed 67.60 hours
by Wargo & French, LLP, for having to prepare, file, and attend a
one hour and six-minute hearing on Defendant’s Motion to Compel
and for Attorneys’ Fee (docket no. 58), a Reply (docket no. 78), and
a Supplement (docket no. 90). See page 17 of docket no. 95;
7.

That Defendant asserts that these hourly rates for counsel
Chapman and Sherman are reasonable in light of the gravity of
plaintiff’s allegations, the strategies pursued by plaintiff, the
complexity of the case, and the work necessitated by plaintiff’s
filings. In addition, Defendant asserts that the amount of time is
supported by the fact that the time spent was reasonable and
necessary. Defendant also asserts that the rates for counsel
Chapman and Sherman are reasonable in light of the skill
demonstrated by counsel, the complexity of the issues involved,
and the beneficial results;

8.

That Plaintiff objects to the amount of attorney fees sought, both
the number of hours expended and the hourly rates claimed. He
does not agree with the statements made regarding the complexity
of the issues or the amount of time billed by counsel Chapman and

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Sherman;
9.

That the court has followed the three-step process set forth in
Ramos v. Lamm in evaluating the Defendant’s claims for attorney
fees. I have reviewed the documentation submitted by defense
counsel and find that the number of hours claimed are not
reasonable. The total amount of time spent on a the various
itemized tasks appears unreasonable in light of the complexity of
the case, the strategies pursued, and the work necessitated by the
volume, quality, length, and content of the Plaintiff’s filings. In
addition, the time expended was unreasonable in relation to relief
being sought in the Defendant’s Motion to Compel and for
Attorneys’ Fee (docket no. 58) and in relation to defense counsels’
experience. I find that a total of ten (10) hours of attorney time is
reasonable and was necessary in order to prosecute Defendant’s
Motion to Compel and for Attorneys’ Fees (docket no. 58);

10.

That with regard to the reasonableness of the rates, I am familiar
with the rates charged by attorneys in this area and conclude that
given their experience, skill, and specialization, the rates sought by
the various defense attorneys are unreasonable. I note that Judge
Arguello has found that an hourly rate $425 was reasonable.
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 2011 WL
3568165, at *9 (D. Colo. Aug. 15, 2011). However, the level of
experience and expertise by those attorneys in the Brokers’ Choice

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of Am., Inc. Case, were much greater than counsel Chapman and
Sherman. I find that the hourly fee sought for counsel Chapman
and Sherman is somewhat excessive and find that an hourly rate of
$250 would be a reasonable hourly rate of compensation in this
area for both counsel Chapman and Sherman, noting their level of
experience and length of practice; and
11.

That multiplying the reasonable hourly rate by the number of hours
reasonably expended, I find as follows. The Defendant should be
awarded a total of $2,500.00 [10 hours x $250.00 per hour =
$2,500.00] as reasonable attorney fees for having to prepare, file,
and attend a hearing on Defendant’s Motion to Compel and for
Attorneys’ Fee (docket no. 58), a Reply (docket no. 78), and a
Supplement (docket no. 90).
ORDER

Based on the foregoing, it is hereby ORDERED that Plaintiff shall pay to the
Defendant the sum of $2,500.00 in reasonable and necessary attorney fees for having
to prepare, file, and attend a hearing on Defendant’s Motion to Compel and for
Attorneys’ Fee (docket no. 58), a Reply (docket no. 78) and a Supplement (docket no.
90). Payment of the $2,500.00 shall be made on or before November 29, 2013.
Date: November 4, 2013
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge