Geiger et al v. Master United 12 LLC et al

Filing 106

ORDER granting 98 Motion for Attorney Fees. By Magistrate Judge Boyd N. Boland on 1/13/2015.(alowe)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Civil Action No. 14-cv-00240-REB-BNB ZACH GEIGER, ROBERT ABELARDO, ADAM GOLDSTEIN, and RYAN KING, Plaintiffs, v. Z-ULTIMATE SELF DEFENSE STUDIOS, LLC, a California limited liability company, PAUL TAYLOR, individually, and in his capacity as owner, partner, and corporate officer, WILLIAM CLARK, individually and in his capacity as owner, partner, and corporate officer, KRIS ESZLINGER, individually, and in his capacity as owner, partner, and corporate officer, FRANK LEY, individually and in his capacity as owner, partner, and corporate officer, HANS PROSCH, individually, and in his capacity as owner, partner, and corporate officer, MASTERS UNITED III LLC, dba Z-Ultimate Self Defense Studios, an Arizona limited liability company, MASTERS UNITED 11, LLC, an Arizona limited liability company d/b/a Z-Ultimate Self Defense Studios, KATA 7, LLC, an Arizona limited liability company b/a/a Z-Ultimate Self Defense Studios, Z-ULTIMATE MARTIAL ARTS SUPPLIES LLC, a California limited liability company, Z-ULTIMATE SPECIALIZED ACCOUNTING LLC, a California limited liability company, Z-ULTIMATE UNIVERSITY OF MARTIAL ARTS PROFESSIONALS LLC, a California limited liability company, MASTERS UNITED I, LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, MASTERS UNITED 12 LLC, MASTERS UNITED 111 LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company MASTERS UNITED V LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company Z-ULTIMATE EVENTS LLC, a Colorado limited liability company, A L MARTIAL ARTS, INC., d/b/a Z-Ultimate Self Defense Studios, a Colorado corporation WLC MANAGEMENT, INC., d/b/a Z-Ultimate Self Defense Studios, a Colorado corporation MASTERS UNITED VI LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company MASTERS UNITED 8 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company MASTERS UNITED 15 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company UNITED PARTNERS - BROOMFIELD LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company UNITED PARTNERS - CASTLE ROCK LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company UNITED PARTNERS - CENTENNIAL LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - CHICAGO #2 d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - CHICAGO #4 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - COLORADO SPRINGS 1 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - COLORADO #1 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - COLORADO #2 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - COLORADO #3 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - COLORADO #4, LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - DENVER LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - DENVER SOUTH LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - FORT COLLINS LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - GLENVIEW LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - HIGHLANDS RANCH LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - HIGHLANDS RANCH 2 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - KANSAS CITY #3 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - KANSAS CITY 1 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - KANSAS CITY #4 LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - KEN CARYLE LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - LAFAYETTE LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - LAKEWOOD LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, 2 UNITED PARTNERS - LEAWOOD LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - LITTLETON LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - LONGMONT LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - OLATHE LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - OVERLAND PARK NORTH LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - OVERLAND PARK SOUTH LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - PARKER LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - SKOKIE LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - SMOKEY HILL LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - THORNTON LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - WEST ARVADA LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - WESTMINSTER LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, UNITED PARTNERS - WHEAT RIDGE LLC, d/b/a Z-Ultimate Self Defense Studios, a Colorado limited liability company, Z-ULTIMATE COLORADO SPRINGS, a Colorado business, Z-ULTIMATE DENVER, a Colorado business, Z-ULTIMATE HIGHLANDS RANCH EAST, a Colorado business, Z-ULTIMATE PARKER, a Colorado business, Z-ULTIMATE SMOKEY HILLS, a Colorado business, UNITED PARTNERS - LAYTON LLC, d/b/a Z-Ultimate Self Defense Studios, a Utah limited liability company, UNITED PARTNERS - SANDY LLC, d/b/a Z-Ultimate Self Defense Studios, a Utah limited liability company, UNITED PARTNERS - SOUTH JORDAN LLC, d/b/a Z-Ultimate Self Defense Studios, a Utah limited liability company, UNITED PARTNERS - SOUTH OGDEN, LLC, d/b/a Z-Ultimate Self Defense Studios, a Utah limited liability company, UNITED PARTNERS - UTAH LLC, d/b/a Z-Ultimate Self Defense Studios, a Utah limited liability company, UNITED PARTNERS - WEST JORDAN LLC, d/b/a Z-Ultimate Self Defense Studios, a Utah limited liability company, UNITED PARTNERS - CHANDLER LLC, d/b/a Z-Ultimate Self Defense Studios, an Arizona 3 limited liability company, UNITED PARTNERS - SCOTTSDALE LLC, d/b/a Z-Ultimate Self Defense Studios, an Arizona limited liability company, UNITED PARTNERS - GRAYHAWK LLC, d/b/a Z-Ultimate Self Defense Studios, an Arizona limited liability company, UNITED PARTNERS - SCOTTSDALE 2 LLC, d/b/a Z-Ultimate Self Defense Studios, an Arizona limited liability company, UNITED PARTNERS - TEMPE LLC, d/b/a Z-Ultimate Self Defense Studios, an Arizona limited liability company, UNITED PARTNERS - BALLARD LLC, d/b/a Z-Ultimate Self Defense Studios, a Washington limited liability company, UNITED PARTNERS - BELLEVUE LLC, d/b/a Z-Ultimate Self Defense Studios, a Washington limited liability company, UNITED PARTNERS - KENT LLC, d/b/a Z-Ultimate Self Defense Studios, a Washington limited liability company, UNITED PARTNERS - KIRKLAND LLC, d/b/a Z-Ultimate Self Defense Studios, a Washington limited liability company, UNITED PARTNERS - MERCER LLC, d/b/a Z-Ultimate Self Defense Studios, a Washington limited liability company, UNITED PARTNERS - MILL CREEK LLC, d/b/a Z-Ultimate Self Defense Studios, a Washington limited liability company, UNITED PARTNERS - REDMOND LLC, d/b/a Z-Ultimate Self Defense Studios, a Washington limited liability company, UNITED PARTNERS - AGOURA HILLS LLC d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - ANAHEIM HILLS LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - BRANFORD LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - CAMPUS LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - CARLSBAD LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - CARMEL MOUNTAIN LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - CHINO HILLS, LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - CLAIREMONT, LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - CORONA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - CYPRESS LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - DANVILLE LLC, d/b/a Z-Ultimate Self Defense Studios, a California 4 limited liability company, UNITED PARTNERS - DUBLIN LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - ENCINO LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - ESCONDIDO LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - FALLBROOK LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - HACIENDA HEIGHTS LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - LA CANADA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - LA JOLLA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - LA MIRADA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - LAGUNA NIGUEL LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - LAKEWOOD LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - LAYTON LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - LONG BEACH LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - MARINA DEL REY LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - MIRA MESA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - MURRIETA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - NORWALK LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - ORANGE HILLS, LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - POINT LOMA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - PORTOLA HILLS LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - POWAY LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - RANCHO CUCAMONGA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - REDONDO BEACH LLC, d/b/a Z-Ultimate Self Defense Studios, a 5 California limited liability company, UNITED PARTNERS - SAN MATEO LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - SOUTH OGDEN LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - STUDIO CITY LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - THOUSAND OAKS LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - TIERRASANTA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - VALENCIA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - VILLA PARK LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, UNITED PARTNERS - VISTA LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, and UNITED PARTNERS - WESTWOOD LLC, d/b/a Z-Ultimate Self Defense Studios, a California limited liability company, Defendants. ______________________________________________________________________________ ORDER ______________________________________________________________________________ This matter arises on Plaintiffs’ Application for Attorneys’ Fees and Expenses [Doc. # 98, filed 12/15/2014] (the “Motion for Attorneys’ Fees”), which is GRANTED as specified. I previously granted the Plaintiffs’ Motion for Order for Spoliation Sanctions, Order [Doc. # 85], finding that “the defendants destroyed evidence by altering the profit and loss statements” and that defendant William Clark directed that the evidence be altered “in bad faith and with a malicious intent.” Id. at 15. In addition, however, I found that the “resulting prejudice to the plaintiffs is slight because either the information is available elsewhere or the probative value of the evidence is not great.” Id. at 18. Because it was impossible to fashion a proportional evidentiary sanction to address the spoliation, but some sanction is necessary to 6 deter future misconduct and to make clear that the destruction or alteration of evidence is not tolerated, I imposed a monetary sanction against the defendants in the amount of the plaintiffs’ reasonable expenses, including attorneys’ fees, incurred in connection with the despoiled evidence. Id. at pp. 18-20. To facilitate the sanction, I ordered the plaintiffs to file a fee application specifying the attorneys’ fees and expenses claimed. Id. at 20. The plaintiffs have complied. They seek attorneys’ fees for time incurred by four lawyers, totaling 195.75 hours, in the amount of $53,807.50, plus costs of $5,054.80, for a total award of $58,862.30. Motion for Attorneys’ Fees [Doc. # 98] at 2. The defendants object to the request, arguing that the number of hours claimed by plaintiffs’ counsel is unreasonable, fees are claimed for duplicative effort, and fees are claimed based on vague time entries and block billing. Opposition [Doc. # 103]. I have reviewed with care the time entries of plaintiffs’ counsel as well as considered the reasonableness of the claim as a whole. In general, I find that a claim for 195.75 hours and $53,807.50 to be unreasonable. The discovery of the altered and destroyed profit and loss statements was made possible by a disclosure made by the defendants’ former bookkeeper and did not require substantial investigation. The law on spoliation of evidence is well-settled in this circuit. The hearing on the Spoliation Motion [Doc. # 52] lasted less than one day. In my view, the plaintiffs could and should have presented the Spoliation Motion in not more than 100 hours, and I will award fees for that amount of time only. Although the plaintiffs may prefer a line-byline assessment of their claim, I “need not, and indeed should not, become [a] green-eyeshade accountant[]” auditing individual time entries. Fox v. Vice, 131 S.Ct. 2205, 2217 (2011). To the contrary, a “district court need not identify and justify every hour allowed or disallowed, as 7 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 v. Monahan, 73 F.3d 1012, 1018 (10th cir. 1996) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). This is because “[t]he essential goal in shifting fees (to either party)is to 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.” Fox, 131 S.Ct. at 2216. The second step in assessing a reasonable fee is to determine a reasonable hourly rate. Here, three of the four lawyers bill at $300 per hour. The defendants do not object to that rate, and I find that it is reasonable. Guides, Ltd. v. Yarmouth Group Property Mgmt., Inc., 295 F.3d 1065, 1079 (10th Cir. 2002) (holding that a trial court may use its own knowledge in determining a reasonable rate). See Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1259 (10th Cir. 2005) (approving the district court’s determination of the applicable hourly rate by “relying of its knowledge of rates of lawyers with comparable skill and experience” practicing in the relevant market). Multiplying the number of hours reasonably incurred (100) by the reasonable hourly rate ($300) results in the award of a reasonable attorneys’ fees of $30,000. In addition, I find that the plaintiffs incurred reasonable costs of $4,841.25 in expert witness fees; $34.50 for transcription of the Clark voice mail; and $179.30 for duplication and preparation of exhibit notebooks, for a total cost award of $5,055.05. For unexplained reasons, the plaintiffs seek costs of only $5,054.80, which I will award. IT IS ORDERED: (1) The plaintiffs are awarded their reasonable expenses, including attorneys’ fees, 8 incurred in connection with the despoiled evidence, in the amount of $35,054.80; (2) The award is made jointly and severally against all defendants, but not defense counsel; and (3) The defendants shall satisfy this award on or before January 30, 2015. Dated January 13, 2015. BY THE COURT: s/ Boyd N. Boland United States Magistrate Judge 9

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