Digital Satellite Connections, LLC et al v. DISH Network Corporation et al

Filing 323

ORDER Concerning Motion for Attorney Fees and Motion for Review of Costs Taxation. Defendants' Second Renewed Request Under Federal Rules 54(d)(2) for an Award of Attorney Fees Against Plaintiff Kathy King Pursuant to the Terms of the 2010 R etailer Agreement [# 303 ] is granted in part and denied in part as indicated in the attached Order. Plaintiffs' Motion for Review of Clerk's Taxation of Costs [Dkt. 310] [# 313 ] is denied. Kathy King and Digital Satellit e Connections, LLC are ordered to pay the costs taxed in the Bill of Costs [# 310 ], 10,607.59 dollars, to Dish Network Corporation, Dish Network, LLC, Dishnet Satellite Broadband, LLC. To the extent costs taxed in the Bill of Costs [# 310 ] duplicate costs documented in the motion for attorney fees [# 303 ], Kathy King and Digital Satellite Connections, LLC need pay such costs only once. By Judge Robert E. Blackburn on 09/26/2018. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02934-REB
DIGITAL SATELLITE CONNECTIONS, LLC, and,
KATHY KING,
Plaintiffs,
v.
DISH NETWORK CORPORATION,
DISH NETWORK, LLC, and
DISHNET SATELLITE BROADBAND, LLC,
Defendants.

ORDER CONCERNING MOTION FOR ATTORNEY FEES
AND MOTION FOR REVIEW OF COSTS TAXATION
Blackburn, J.
This matter is before me on the following: (1) the Defendants’ Second
Renewed Request Under Federal Rules 54(d)(2) for an Award of Attorney Fees
Against Plaintiff Kathy King Pursuant to the Terms of the 2010 Retailer
Agreement [#303]1 filed October 27, 2017; and (2) the Plaintiffs’ Motion for Review
of Clerk’s Taxation of Costs [Dkt. 310] [#313] filed November 21, 2017. The parties
filed concomitant responses [#306 & #314] and replies [#312 & #315]. I grant the
motion for attorney fees in part and deny it in part. I deny the motion for review of
taxation of costs.

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“[#303]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

I. BACKGROUND
The defendants, Dish Network Corporation, Dish Network, LLC, and Dishnet
Satellite Broadband, LLC (collectively Dish) seek an award of attorney fees and costs
against plaintiff Kathy King. In orders [#196, #220, #246] addressing the motions for
summary judgment of Dish and a motion for reconsideration, I granted summary
judgment in favor of Dish Network, LLC and against the plaintiffs / counterclaim
defendants, Ms. King and Digital Satellite Connections LLC (DSC), on the breach of
contract counterclaim of Dish. In addition, I entered orders requiring DSC and Ms. King
to specifically perform certain obligations they have under a 2010 retailer agreement
and trademark license agreement between Ms King and DSC, as retailers, and Dish
Network LLC.
All the claims asserted by Ms. King against Dish were resolved in favor of Dish
when I granted the motion for summary judgment of Dish as to each of the claims of the
plaintiffs. Order [#196]. In addition, I granted summary judgment in favor of Dish as to
each of the defenses and affirmative defenses asserted by Ms. King in response to the
breach of contract counterclaim of Dish. Finally, Dish voluntarily dismissed all of its
other counterclaims, leaving viable only its counterclaim for breach of contract. Order
[#270]. Again, Dish obtained judgment against Ms. King on its breach of contract
counterclaim.
Ms. King and DSC filed an appeal of the judgment against them. Amended
Notice of Appeal [#276]. The United States Court of Appeals for the Tenth Circuit
affirmed the judgment against Ms. King and DSC in all respects. Order and Judgment
[#317].

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The 2010 Retailer Agreement provides that in any suit between Dish and Ms.
King, a “Retailer” under the terms of the agreement, to enforce the terms of the
agreement, the prevailing party shall be entitled to recover its “costs, expenses and
reasonable attorney fees”:
17.11 Attorneys' Fees. In the event of any suit, action or arbitration
between Retailer and/or any of its Affiliates, on the one hand, and DISH
and/or any of its Affiliates, on the other hand, including without limitation
any and all suits, actions or arbitrations to enforce this Agreement, any
Business Rules, any Promotional Program or any provisions hereof or
thereof, subject to Section 15.3.3, the prevailing party shall be entitled to
recover its costs, expenses and reasonable attorneys' fees, at arbitration,
at trial and on appeal, in addition to (and without limitation of) all other
sums allowed by law. The provisions of this Section 17.11 shall survive
expiration or termination of this Agreement (for any reason or no reason)
indefinitely.
Werner Declaration [#100 - filed under restriction], Exhibit 7 [#100-3 filed under
restriction] (Retailer Agreement), ¶ 17.11. Under this provision, Dish now seeks to
recover its reasonable attorney fees and costs.
II. STANDARD OF REVIEW
The breach of contract claim of Dish is a claim under the laws of the state of
Colorado. Therefore, Colorado law controls. In the absence of an express statute,
court rule, or private contract to the contrary, attorney fees generally are not recoverable
by the prevailing party in a contract or tort action. Allstate Ins. Co. v. Huizar, 52 P.3d
816, 818 (Colo. 2002) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421
U.S. 240, 247, 95 (1975); Bernhard v. Farmers Ins. Exch., 915 P.2d 1285, 1287
(Colo.1996); Bunnett v. Smallwood, 793 P.2d 157, 160 (Colo.1990)). The Colorado
and federal standards for calculating reasonable attorney fees are essentially identical.

The starting point for any calculation is the “lodestar,” that is, the number of hours
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reasonably expended multiplied by a reasonable hourly rate. Payan v. Nash Finch
Co., 310 P.3d 212, 217 (Colo. App. 2012); Hensley v. Eckerhart, 461 U.S. 424, 433
(1983); Malloy v. Monahan, 73 F.3d 1012, 1017-18 (10th Cir. 1996). In determining the
reasonable number of hours spent on the litigation, the applicant must exercise the
same “billing judgment” as would be proper in setting fees for a paying client. Hensley,
461 U.S. at 437; Malloy, 73 F.3d at 1018. A “reasonable rate” is defined as the
prevailing market rate in the community in question for an attorney of similar
experience. Blum v. Stenson, 465 U.S. 886, 895 (1984); Balkind v. Telluride
Mountain Title Co., 8 P.3d 581, 588 (Colo. App. 2000). The “local market rate” is
usually defined by the state or city in which the case is litigated. Ellis v. Univ. of Kan.
Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998) (looking at “the prevailing market rates
in the relevant community”).
“In awarding attorney fees, the trial court may consider, among other factors, the
amount in controversy, the duration of representation, the complexity of the case, the
value of the legal services to the client, and the usage in the legal community
concerning fees in similar cases. No one of these factors is conclusive.” Melssen v.
Auto-Owners Ins. Co., 285 P.3d 328, 339 (Colo. App.,2012) (citation omitted).2 “The
party requesting an award of attorney fees bears the burden of proving by a
preponderance of the evidence its entitlement to such an award.” American Water

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Rule 1.5 of the Colorado Rules of Professional Conduct provides a similar list of factors. "The
factors to be considered in determining the reasonableness of a fee include the following:(1) the time and
labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the
legal service properly;(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;(3) the fee customarily charged in the locality
for similar legal services;(4) the amount involved and the results obtained;(5) the time limitations imposed
by the client or by the circumstances;(6) the nature and length of the professional relationship with the
client;(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and(8)
whether the fee is fixed or contingent."

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Development, Inc. v. City of Alamosa, 874 P.2d 352, 383 (Colo. 1994).
III. ATTORNEY FEES
Ms. King never has filed a response addressing the substance of the request for
an award of attorney fees of Dish. Dish filed its first motion for attorney fees [#285] on
April 7, 2017. Ms. King filed a motion for discovery [#290] concerning attorney fees and
to stay all discovery and response deadlines concerning the motion for attorney fees.
No stay was granted,and Ms. King never filed a response to the first motion for attorney
fees [#285]. The appeal of the plaintiffs was pending when the first motion for attorney
fees was filed.
Dish filed its second motion for attorney fees [#303] “out of an abundance of
caution.” Motion [#303], p. 2 n. 1. The second motion requests relief identical to the
relief sought in the first motion [#285]. The caution of Dish was born of some confusion
about when final judgment entered in this case. In her response [#306] to the present
motion for attorney fees, Ms. King does not address the substance of the motion.
Rather, she claims the current motion for attorney fees is not timely and should be
denied on that basis. I disagree. The docket of this case demonstrates clearly that
Dish has been both persistent and timely in seeking an award of attorney fees.
A. Prevailing Party
Dish defended successfully against all of the claims Ms. King asserted against
Dish. In addition, Dish was successful on its breach of contract claim against Ms. King.
With that success, Dish obtained essentially all of the relief it sought in each and all of
its counterclaims. The claims of Ms. King and the counterclaims of Dish all arose under
the Retailer Agreement or the closely related trademark license agreement or involved
claims and issues closely tied to those agreements. Without question, Dish is the
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prevailing party in this lawsuit.
B. Reasonable Number of Hours
This case was filed in March 2013. Throughout its long history, this case was
particularly contentious. The case involved extensive motion practice and numerous
discovery disputes. The case was litigated heavily up to the eve of trial, which was set
for November 3, 2014. That trial was vacated and continued without date. Ultimately,
all claims were resolved on dispositive motions.
In its motion for attorney fees, Dish seeks an award of attorney fees from the
inception of this case through and including the summary judgment decisions of the
court and the entry of an order for specific performance. Motion [#303-1], Declaration of
Erik C. Kane [#303-1], p. 1. In that period of time, counsel for Dish says a total of
6,660.30 hours of attorney and support staff time were billed to Dish. Id. Ms. King has
not asserted any basis to conclude that this number of hours is unreasonable in the
context of this case. I have reviewed the billing records of counsel for dish [#302 - filed
under restriction]. I find that the number of hours billed by counsel for Dish is
reasonable, given the nature of this litigation. I note that Dish is not seeking an award
of attorney fees for substantial amounts of work performed after the summary judgment
and specific performance orders were issued in this case. To the extent there may be
hours billed unreasonably in the billing statements of record, the fact that Dish does not
seek attorney fees beyond the order granting specific performance provides some
cushion which mitigates any such error.
Dish seeks to recover attorney fees for time spent responding to proceedings Ms.
King initiated in the U.S. Trademark office and time spent adjudicating a UDRP
arbitration regarding the domain names at issue under the Retailer agreement and
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related trademark license agreement. Motion [#303], p. 6. These proceedings fall
within the scope of the attorney fees provision of the Retailer Agreement because these
proceedings involve a “suit, action or arbitration . . . .” Retailer Agreement, ¶ 17.11.
Thus, recovery of fees for these hours by Dish is proper.
C. Reasonable Hourly Rate
The Retailer Agreement, an agreement written by Dish, includes a provision that
provides that the venue for any lawsuit concerning a dispute between the parties shall
be the United States District Court for the District of Colorado or the appropriate state
court located in the City and County of Denver, Colorado. Retailer Agreement, ¶ 15.5.
Of course, this lawsuit was litigated in the United States District Court for the District of
Colorado. Given these circumstances, a reasonable hourly rate is determined by
examining the prevailing market rate in the Denver area for attorneys of similar
experience.
Dish contends this case would affect its interests not only in Colorado, where the
case was pending, but nationwide. That fact, Dish contends, merits its use of highly
specialized intellectual property counsel. Motion [#303-1], Declaration of Erik C. Kane
[#303-1], p. 5. The attorneys whose work is reflected on the billing statements of
counsel for Dish are located in Washington DC and New York City. Generally, hourly
rates for highly skilled attorneys are higher in those cities than they are in Denver.
I disagree that this case had a tenor with such nationwide import that the relevant
reasonable hourly rate is the prevailing market rate in Washington DC or New York City.
Primarily, this case involved questions about the rights of the parties under two
contracts, the Retailer Agreement and the related trademark license agreement.
Essentially, this case was a fairly complex commercial contract dispute between Dish
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and one of its retailers. No doubt, there were overlays of trademark law, but, compared
to the contract issues, the trademark overlays were relatively minor. Thus, I find and
conclude that a reasonable hourly rate must be determined based on the prevailing
market rate for the type of legal work at issue in the relevant market of Denver,
Colorado.
The time period covered in the billing statements of counsel for Dish is 2013 to
2016. During that time period, the prevailing Denver market rate for high level attorneys
in a complex business disputes was in the range of 550 to 580 dollars per hour. During
that time period, the prevailing Denver market rate for attorneys with a high level of
education, but fewer years of experience as an attorney, and addressing complex
business disputes, was in the range of 280 to 350 dollars per hour.
The billing statements of counsel for Dish reflect many hours billed by attorneys
with a fairly high level of experience at hourly rates from 630 to 895 dollars per hour.
Similarly, attorneys with a high level of education but fewer years of experience as an
attorney are billed at relatively high rates when compared to the Denver market rate.
Rather than parse the education and experience of each Dish attorney and the hourly
rate of each Dish attorney, I find and conclude that an overall 30 percent discount of the
hourly rates proposed by Dish reflects the prevailing market rate for the type of legal
work at issue in the relevant market, Denver, Colorado.
A court assessing a motion for reasonable attorney fees need not parse and
evaluate every individual billing entry and determine the amount of a reasonable award
down to the last penny. See Fox v. Vice, 563 U.S. 826, 838 (2011) (“[T]rial courts need
not, and indeed should not, become green-eyeshade accountants. The essential goal
in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.
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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.”); Malloy v. Monahan, 73
F.3d 1012, 1018 (10th Cir. 1996) (“[T]he district court 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.”)
(citation and internal quotation marks omitted).
D. Lodestar Figure & Conclusion
Counsel for Dish reasonably billed 6,660.30 hours to Dish in relation to this case.
Applying the hourly rates reflected in the billing statements of counsel for Dish, those
hours result in a total fee of 3,553,153 dollars. To reflect a reasonable hourly rate in the
relevant market, Denver, Colorado, I find and conclude that this total figure must be
reduced by 30 percent. Applying that reduction, I find that a reasonable attorney fee is
2,487,207 dollars. I find that this lodestar figure is reasonable. Thus, I find that I need
not consider other factors in determining reasonable attorney fees.
IV. COSTS
Counsel for Dish says they billed 184,757.52 dollars in disbursements for costs
including, but not limited to, expert witness fees, deposition expenses, local counsel
fees, travel expenses, research services, and copies. Ms. King does not address costs
in her response [#306] to the motion for attorney fees. However, in the Plaintiffs’
Motion for Review of Clerk’s Taxation of Costs [Dkt. 310] [#313], Ms. King and DSC
challenge the Bill of Costs [#310] filed by the clerk of the court taxing costs against Ms.
King and DSC. I address that motion below.
Concerning costs sought by Dish against Ms. King under ¶ 17.11 of the Retailer
Agreement, I find and conclude that the costs documented by Dish are reasonable in
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the context of this litigation. Those costs are documented in an attachment to the
motion for attorney fees. Motion [#303], Declaration of Erik C. Kane [#303-1], Exhibit 2
[#302-1 - #302-9]. Those costs total 184,757.52 dollars.
In the Plaintiffs’ Motion for Review of Clerk’s Taxation of Costs [Dkt. 310]
[#313], Ms. King and DSC contend the clerk of the court improperly awarded costs
against DSC. DSC claims Dish is not a prevailing party as to DSC because Dish did not
prevail on any counterclaims against DSC. However, all of the claims of DSC against
Dish were dismissed with prejudice. Further, DSC was ordered to specifically perform
various obligations that are at the heart of this case. Order [#246]. Without doubt, Dish
was a prevailing party as against DSC. Thus, it was proper to award costs against
DSC.
Ms. King and DSC also contend that costs for some transcripts were awarded
improperly under 28 U.S.C. § 1920(2) & (4) because those transcripts were not
necessarily obtained for use in the case. Most of the transcripts in question are
transcripts of hearings before the magistrate judge when he provided legal authority and
direction to the parties. Dish contends these transcripts were the best record of the
direction and orders of the magistrate judge. I agree. The transcripts for which costs
were awarded by the clerk were reasonably necessary to the litigation of this case.
Ms. King and DSC contend Dish did not demonstrate that certain costs it
expended in searching and retrieving certain documents properly may be awarded as
costs under § 1920(4) or that these costs were reasonably necessary to the litigation of
this case. The documents at issue are documents relating to the Kathy King’s
identity, certified copies of corporate records for both the corporate plaintiff and Dish,
the, and official copies of historical versions of the plaintiffs’ website, all of which
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were listed on DISH Network’ trial exhibit list. The cost of searching for and obtaining
these documents was reasonably necessary to the litigation of this case and properly
awarded as costs under § 1920.
In the Plaintiffs’ Motion for Review of Clerk’s Taxation of Costs [Dkt. 310]
[#313], the plaintiffs do not present any valid challenge to the costs awarded to Dish in
the Bill of Costs [#310]. Therefore, this motion is denied.
V. CONCLUSION & ORDERS
Based on the nature and extent of this litigation and the applicable law
concerning attorney fees, Dish is entitled to an award of reasonable attorney fees of
2,487, 207 dollars. Under ¶ 17.11 of the Retailer Agreement, Dish is entitled to an
award of reasonable costs in the amount of 184,757.52 dollars. Dish is awarded these
attorney fees and costs, and plaintiff Kathy King is ordered to pay these amounts to
dish.
In addition, the Bill of Costs [#310] filed by the clerk of the court taxing costs
against plaintiffs Kathy King and Digital Satellite Connections, LLC is correct. Costs
taxed in the Bill of Costs [#310] total 10,607.59 dollars. Kathy King and Digital Satellite
Connections, LLC are ordered to pay that amount to Dish. To the extent costs taxed in
the Bill of Costs [#310] duplicate costs documented in the motion for attorney fees,
Kathy King and Digital Satellite Connections, LLC need pay such costs to Dish only
once. The Plaintiffs’ Motion for Review of Clerk’s Taxation of Costs [Dkt. 310]
[#313] is denied
THEREFORE, IT IS ORDERED
1. That the Defendants’ Second Renewed Request Under Federal Rules
54(d)(2) for an Award of Attorney Fees Against Plaintiff Kathy King Pursuant to
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the Terms of the 2010 Retailer Agreement [#303] is granted in part;
2. That Dish Network Corporation, Dish Network, LLC, and Dishnet Satellite
Broadband, LLC, are awarded reasonable attorney fees in the amount of 2,487, 207
dollars;
3. That Dish Network Corporation, Dish Network, LLC, and Dishnet Satellite
Broadband, LLC, are awarded reasonable costs in the amount of 184,757.52 dollars;
4. That the attorney fees and costs specified in paragraphs two (2) and three (3)
above, are payable to Dish Network Corporation, Dish Network, LLC, and Dishnet
Satellite Broadband, LLC by plaintiff Kathy King;
5. That otherwise, the Defendants’ Second Renewed Request Under Federal
Rules 54(d)(2) for an Award of Attorney Fees Against Plaintiff Kathy King
Pursuant to the Terms of the 2010 Retailer Agreement [#303] is denied;
6. That the Plaintiffs’ Motion for Review of Clerk’s Taxation of Costs [Dkt.
310] [#313] is denied;
7. That Kathy King and Digital Satellite Connections, LLC are ordered to pay the
costs taxed in the Bill of Costs [#310], 10,607.59 dollars, to Dish Network Corporation,
Dish Network, LLC, Dishnet Satellite Broadband, LLC; and
8. That to the extent costs taxed in the Bill of Costs [#310] duplicate costs
documented in the motion for attorney fees [#303], Kathy King and Digital Satellite
Connections, LLC need pay such costs only once.
Dated September 26, 2018, at Denver, Colorado.
BY THE COURT:

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