Avalanche Equipment, LLC v. Williams-Southern Company, LLC

Filing 70

ORDER Approving in Part 58 Motion for Interest; GRANTING in part and DENYING in part 60 Motion for Attorney's Fees; GRANTING 63 Motion to Correct Final Judgment; and GRANTING 66 Motion to Withdraw as Attorney, Attorney Steven C. Janiszewski terminated, by Magistrate Judge Nina Y. Wang on 6/11/15.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02827-NYW-MJW
AVALANCHE EQUIPMENT, LLC,
Plaintiff,
v.
WILLIAMS-SOUTHERN CO., LLC,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter comes before the court on the Affidavit of Tom Wilson in Support of Interest
Calculation (“Interest Application”) [#58] filed by Plaintiff Avalanche Equipment, LLC
(“Plaintiff” or “Avalanche”) and Plaintiff Avalanche Equipment, LLC's Fee And Expense
Application Following Entry Of Judgment And Award Of Attorneys’ Fees (“Motion for Fees”)
[#60], both filed on January 14, 2015. Defendant Williams-Southern Co., LLC (“Defendant” or
“Williams-Southern”) has not filed any response to either motion. In addition, there are two
other motions before the court: Plaintiff Avalanche Equipment LLC's Motion To Correct Final
Judgment Consistent With Court's Findings, Conclusions, And Order For Judgment (“Motion to
Correct”) [#63], and the Unopposed Motion to Withdraw From Representation Of WilliamsSouthern Company, LLC and Notice of Intent to Withdraw [#66] filed on May 15, 2015.
Originally, Plaintiff initiated this action in state court alleging four counts: (1) breach of
contract; (2) unjust enrichment; (3) breach of implied contract; and (4) open accounting. [#3].
Each of the counts sought identical damages, i.e., $180,163.59, together with 18% interest per

annum, attorney’s fees and costs. [Id.] By the time the case was tried, Avalanche opted to
pursue only the breach of contract claim. [#55]. After a two-day trial, this court found in favor
of Avalanche and against Williams-Southern on the claim of breach contract. [Id.] As part of
the Findings, Conclusions, and Order for Judgment, Judge Boland ordered:
(1) For rent on equipment in the amount of $161,646.80;
(2) For interest on the past due balance for rental charges at the rate of
1.5% per month through the date of these Findings, Conclusions, and
Order for Judgment, to be established by an affidavit to be submitted on or
before January 14, 2015;
(3) For reasonable attorneys’ fees to be awarded on the submission of a
fee application, to be submitted on or before January 14, 2015;
(4) For its costs, to be awarded pursuant to Fed. R. Civ. P. 54(d)(l) and
D.C.COLO.LCivR 54.1; and
(5) For post-judgment interest as provided by law.
[#55 at 9].
I.

Motion to Correct the Final Judgment
The court will first turn to Plaintiff’s Motion to Correct. The Final Judgment entered by

the Clerk of the Court specifically adopts the court’s Findings, Conclusions and Order for
Judgment, but inadvertently left out the words “per month” after 1.5%. [#56 at 1]. Therefore,
the court GRANTS the Motion to Correct [#63].
II.

Application for Interest and Motion for Attorney’s Fees and Costs
As directed by the court’s Findings, Conclusions, and Order for Judgment, Avalanche

filed an Affidavit calculating prejudgment interest at the rate of 1.5% per month and a Motion
for Attorney’s Fees on January 14, 2015. Williams-Southern did not take issue, or otherwise
respond, to either filing. The court has reviewed the papers and supporting documentation

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offered by Avalanche, the Complaint [#3], the Scheduling Order [#12], and the Final Pretrial
Order [#27]. The court now turns to the appropriate calculation.
In calculating a reasonable attorney’s fee, I apply the lodestar principles stated in
Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). “The lodestar calculation is
the product of the number of attorney hours reasonably expended and a reasonable hourly rate.”
Id. (internal quotations and citation omitted).
A.

Reasonable Time Expended

The first step in calculating a fee award is to determine the number of hours reasonably
spent by counsel for the party seeking the fees. The burden of proof lies with the prevailing party
seeking fees. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “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. Reg'l Dist. Council v. Mile High Rodbusters, Inc., No. 13-CV-00214-REB-KLM,
-- F. Supp. 3d --, 2015 WL 1087048, at *8 (D. Colo. Mar. 9, 2015) (citing) 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, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987))).
In conjunction with the Motion for Fees, counsel for Avalanche have properly submitted
affidavits and detailed billing statements. In her supporting affidavit, lead counsel for Avalanche
claims it has incurred attorneys’ fees and expenses from Arnold & Arnold, LLP in the total
amount of $ 47,389.72 through January 14, 2015. [#60-1 at ¶ 2]. In addition, counsel also states

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that it has incurred attorneys’ fees and expenses from North Dakota counsel, the Mackoff
Kellogg Law Firm, in the amount of $1,140.68 1. [#60-8 at ¶¶ 3, 7].
Statement of Oil & Gas Lien.

The Motion provides that the Statement of Oil & Gas

Lien was performed by Mackoff Kellogg Law Firm. Avalanche obtained an oil and gas lien
when Williams-Southern did not make any payments with respect to its rental accounts with
Avalanche. [#12 at 2]. The liens, however, are not directly related to the breach of contract
claim brought to trial; rather the liens were an attempt to secure payment prior to the court case.
Indeed, they predate the litigation by a number of months. [#60-8].
In addition, none of the billing records indicates a quantum of time expended by any
individual attorney, or any billing rate.

Nor do certain billing records provide sufficient

description of the work undertaken to determine whether they are reasonably related to the
litigation. For instance, Mr. Peterson’s entries have no explanation to indicate that “review &
respond to emails” is even related to this action, much less reasonably related. Therefore, the
court disallows all of the attorney’s fees and costs associated with the Mackoff Kellogg Law
Firm.
Initiation of Action in Colorado State Court.

Avalanche next claims $2,828.25 2

associated with it initiation of the action in Colorado state court. [#60-1 at 2]. The court has
reviewed the detailed billing provided by Ms. Arnold and note as follows:

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Lead counsel for Avalanche at the Arnold & Arnold firm indicates that Avalanche has incurred
$2,133.68 in attorneys’ fees and expenses for counsel in North Dakota. [#60-1 at ¶ 3]. However,
lead counsel at the North Dakota firm, Charles Peterson, attests that only $ 1140.68 were
incurred, and the underlying billing statements only amount to $ 1140.68.
2

Avalanche has also included $342.09 in costs, associated with service of process, copies,
docketing fees, e-filing expenses, and postage and delivery. Other than the docketing fee of
$224.00, the other items are typically expenses that are considered overhead, and are included in
the attorney’s hourly rate. Therefore, the court awards only the docketing fee of $224.00. See
Ramos v. Lamm, 539 F. Supp. 730, 753 (D. Colo. 1982).
4

•

Avalanche claims time for Candace Mitchell, who is identified as a paralegal [#60
at 3] but does not explain Ms. Mitchell’s level of experience and redacts out the
substance of discussions. [#60-3 at 1]. In addition, part of the description left is
“make arrangements for phone conference on Wednesday,” that reflects a purely
administrative task. [Id.] Because no information is provided about Ms. Mitchell,
Avalanche has failed to carry its burden of establishing that the .2 hours expended
by Ms. Mitchell are reasonable. See White v. Calvary Portfolio Servs., LLC, Case
No. 11-cv-2217, 2012 WL 899280, *4 (D. Colo. 2012).

•

In addition, a number of the tasks are performed by an unidentified “Tara Lynn
Neal,” again with no description of her experience level. The Arnold & Arnold
Law Firm did not charge its client for some of Ms. Neal’s services, but again,
without more, Avalanche has failed to carry its burden of establishing the 2 hours
that were charged for Ms. Neal’s services. Id. Therefore, the court excludes
them.

•

Moreover, some of the tasks performed by Ms. Shirk are also related to
administrative tasks, such as researching the location of the party (.4 on 8/28/13);
discussing service options with an unidentified “Tara Lynn” (.4 on 9/5/13); 3 and
“conference with Tara Lynn re: who to instruct the sheriff to service and what
options to provide’ (.25 on 9/6/13). Therefore, the court excludes 1.15 hours from
Ms. Shirk’s time associated with initiating the state court complaint.

•

Finally, Mr. Havn charged .25 hours to discuss an unidentified matter with an
unidentified paralegal on 9/5/2013. The description fails to provide the court
adequate basis to conclude that such time was reasonably spent on the litigation of
this matter and is not duplicative of other time being charged by either Ms.
Arnold or Ms. Shirk. Therefore, the court excludes .25 hours for Mr. Havn’s
time.

Removal to Federal Court. This category of attorneys’ fees is associated with the
litigation in federal court through trial, and Avalanche seeks $39,514.00, with an additional
$714.87 in costs. [#60 at 4]. A number of the costs have been already included, and paid by the
bill of costs. [Id.] In addition, the court declines to award Arnold and Arnold, particularly as a
local firm in Littleton, Colorado, mileage and parking as there is no contention in Ms. Arnold’s
Affidavit that this is a normal charge for local attorneys of private clients in this area. See Ramos
v. Lamm, 713 F.2d 546, 559 (10th Cir. 1983); Vialpando v. Johanss, 619 F. Supp. 2d 1107, 1130
3

It is unclear how much time Ms. Shirk devoted to the service issues, and therefore, the court
subtracts the smaller unit.
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(2008). The other costs of online PACER research and postage and courier services are simply
part of the overhead costs. Id. Therefore, the court declines to award any costs associated with
this time period.
In reviewing the time entries of Ms. Arnold, Ms. Shirk, Mr. Keltner, and Ms. Van Sittert
leading up to trial, the entries generally look reasonable. However, the court notes the following
issues:
•

Counsel has elected to redact out certain information from the entries, making it
difficult for the court to understand whether such entries are reasonable. For
instance, there are entire entries that are redacted so that the court has no
opportunity to determine whether they are, in fact, reasonable. See, e.g., [# 60-4
at 5 (K. Shirk entry dated 4/17/14), 6 (J. Arnold entry dated 4/23/14)]. The
redactions are pervasive; almost every page of the billing statements include some
redactions.

•

In other entries, it appears that attorneys, rather than support staff, are performing
administrative duties such as preparing exhibits with labels and bates numbers, at
unreduced rates. See e.g., [#60-5 at 5 (Mr. Keltner entry 9/10/14)].

Post-Trial Attorney’s Fees. Avalanche also includes a request for post-trial attorney’s
fees in the amount of $3,990.00. A review of the entries indicate that they are associated with
analyzing Judge Boland’s decision and the preparation and filing of this instant motion, which
were necessitated by Avalanche’s success at trial. However, these entries include some of the
same issues with redaction and attorney billing for non-legal work, including the “redact [] 31
pages of invoices.” [#60-6 at 2]. In addition, the post-trial fees appear disproportionately high
for the substance of the motion; i.e., they amount to 10% of the total litigation fees and are more
than 50% higher than the fees attributed to preparing and filing the complaint, despite the fact
that the substance of the motion and supporting affidavits is straightforward.

See Infant

Swimming, Inc. v. Shidler, 505 F. Supp. 3d 790, 799-800 (D. Colo. 2007) (identifying
considerations for determining whether to award post-trial fees).

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B.

Reasonable Hourly Rate

The court next turns to considering the applicable rates. Avalanche bears the burden of
establishing that the requested rates are in line with comparable rates in the legal community.
See Guides Ltd. v. Yarmouth Group Property Mgm’t Co., 295 F.3d 1065, 1078 (10th Cir. 2002);
Etherton v. Owners Ins. Co., -- F. Supp. 3d --, 2015 WL 920689 (D. Colo. Mar. 2, 2015). To
satisfy its burden, Avalanche must produce “satisfactory evidence—in addition to the attorney's
own affidavits—that the requested rates are in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v.
Stenson, 465 U.S. 886, 895 n.11 (1984). The fact that an attorney charges such rates is relevant
to the reasonableness of the rates, but is not dispositive. See Lucero v. City of Trinidad, 815 F.2d
1384, 1385 (10th Cir.1987).
Ms. Arnold’s Affidavit does not preesent any evidence, or explain why the rates of the
attorneys who worked on the instant matter are consistent with the prevailing rates for similar
attorneys in Denver.

[#60-1]. Nevertheless, based on the court’s own experience and in

comparison with information provided by the Colorado Bar Association’s 2012 Economic
Survey Snapshot, an hourly rate of $290 for an attorney who has practiced over 31 years and a
$200 hourly rate for attorneys who have practiced between two and five years are on the high
median side, but nonetheless, are reasonable.
C.

Lodestar Calculation

In light of its concerns, the court awards attorneys’ fees and costs as follows:
$2,532.00 for the period denoted as Initiation of Action in State Court
$31,611.60 for the period denoted as Following Removal to Federal Court, reflecting a
20% reduction based on the concerns set out above. While I have identified specific examples, I

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do not engage in a line by line analysis. See White, 2012 WL 899280, at *4 (citing Fox v. Vice,
131 S.Ct 2205, 2217 (2011). In doing so, I conclude that the four claims originally asserted in
this instant action shared a common core of facts and presented related legal theories so that no
reduction is necessary based on Avalanche’s abandonment of the claims for unjust enrichment,
implied breach of contract, and open accounting prior to trial. See Barnett, Inc. v. Shidler, 200
Fed.Appx. 734, 747 (10th Cir. 2006).
$3,192.00 for the period denoted as Post-trial, reflecting a 20% reduction based on the
concerns set out above. Avalanche makes no argument, and the court finds no justification, to
adjust the lodestar calculation upwards or downwards, given the circumstances of this case. See
Harvey Barnett, Inc. v. Shidler, 200 Fed App’x 734, 746 (10th Cir. 2006). All said, the
attorneys’ fee award amounts to $37,335.60, or approximately 23% of the recovery of
$161,646.80, which the court uses as a secondary measure to check the reasonableness of the fee
award.
D.

Interest Calculation

The court awarded Avalanche prejudgment interest at the rate of 1.5% per month, but in
its judgment, did not specify whether such interest would be simple interest or compound
interest. The Affidavit of Tom Wilson in Support of Interest Calculation and the exhibit attached
thereto appear to reflect interest calculations on a compounding basis. For instance, simple
interest for a debt of $6,135.63 at a monthly rate of 1.5%, for 19 months would amount to
$1,748.45, whereas the $ 2006.05 is calculated on a compounding basis. [#58-1]. The longstanding rule is in actions between private parties, “in the absence of a contract therefor or some
statute, compound interest is not allowed to be computed upon a debt.” Cherokee Nation v.
United States, 270 U.S. 476, 490, 46 S. Ct. 428, 433-34, 70 L. Ed. 694 (1926). A review of the

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Credit Application attached the Complaint only indicates that “past due interest is 1.5% per
month on all past due balances,” without an express statement that such interest would be
compounded. [#3 at 9]. The statement that shows past due amounts also does not address
interest. [Id. at 10-12]. Nor does Mr. Wilson in his Affidavit explain the basis for compounded,
rather than simple, interest. [#58].
Therefore, I APPROVE IN PART the Application for Interest [#58], LIMITING the
award of interest to 1.5% per month of simple interest and GRANT IN PART, AND DENY IN
PART the Motion for Attorney’s Fees [#60], and AWARD Plaintiff $37,335.60. 4
III.

Motion to Withdraw
Counsel for Defendant seeks to withdraw from representation, stating that Williams-

Southern has terminated Steven Janiszewski of the law firm of Riggs, Abney, Neal, Turpen,
Orbison & Lewis, P.C. [#66]. That Motion to Withdraw, with an attendant notice about
Williams-Southern’s inability to proceed pro se was served on both opposing counsel and
Williams-Southern. Given the fact that the court has now disposed of all the pending motions,
an Amended Final Judgment will be entered, and the case is closed, there should be little, if
anything, remaining for the Parties. While the Motion to Withdraw provides no supporting
documentation for the court to consider as to whether Williams-Southern has, in fact, terminated
the law firm and/or Mr. Janiszewski and the court has not held a hearing in which a
representative of Williams-Southern has appeared, the court accepts the representation of counsel
as an officer of the court and GRANTS the Motion to Withdraw, with specific notice to
Defendant that a corporate entity may not proceed pro se.
4

Plaintiff’s Motion for Fees also included $ 484.65 of taxable costs that were included in the Bill
of Costs. [#60 at 1]. The costs referenced in the motion do not correspond with those listed on the
Bill of Costs; however, the Clerk of the Court taxed the full amount requested as of January 16, 2015
and accordingly, these costs are not included in the court’s Order.
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Accordingly, IT IS ORDERED:
(1)

Plaintiff Avalanche Equipment LLC's Motion To Correct Final Judgment
Consistent With Court's Findings, Conclusions, And Order For Judgment
(“Motion to Correct”) [#63] is GRANTED;

(2)

The Clerk of the Court is DIRECTED to enter an Amended Final Judgment that
states, in pertinent part, “ORDERED that Plaintiff AVALANCHE EQUIPMENT,
LLC recover from the Defendant WILLIAMS-SOUTHERN COMPANY, LLC
the amount of one hundred sixty-one thousand, six hundred forty-six dollars and
eighty cents ($161,646.80), which includes prejudgment interest at the rate of
1.5% per month, plus post-judgment interest at the rate of .27%”;

(3)

Affidavit of Tom Wilson in Support of Interest Calculation [#58] is APPROVED
IN PART, and Avalanche is DIRECTED to submit an updated Affidavit in
Support of Interest Calculation based on simple, rather than compounded, interest
no later than June 17, 2015;

(4)

Plaintiff Avalanche Equipment, LLC's Fee And Expense Application Following
Entry Of Judgment And Award Of Attorneys' Fees (“Motion for Fees”) [#60] is
GRANTED IN PART and DENIED IN PART,

(5)

Plaintiff Avalanche Equipment LLC is AWARDED $ 37,335.60 in attorney’s fees
and costs;

(6)

Plaintiff Avalanche Equipment LLC’s request for $484.65 in court costs is
DENIED AS MOOT; and

(7)

Unopposed Motion to Withdraw From Representation Of Williams-Southern
Company, LLC and Notice of Intent to Withdraw [#66] is GRANTED.

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DATED: June 11, 2015

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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