Boxer F2, L.P. v. Flamingo West, Ltd. et al.

Filing 138

ORDER on Plaintiff's Motion for Attorneys' Fees and Costs Pursuant to the Court's Order Dated May 4, 2015; 133 Motion is GRANTED IN PART and DENIED IN PART for the reasons set forth in the body of this Order, and Plaintiff isawarded $23,597.78 to be taxed jointly and severally against all Defendants.Defendants shall pay to Plaintiff $23,597.78 on or before July 10, 2015, by Magistrate Judge Michael J. Watanabe on 6/11/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00317-PAB-MJW
BOXER F2, L.P., a Texas limited partnership,
Plaintiff,
v.
FLAMINGO WEST, LTD., d/b/a LEGALWIZ PUBLICATIONS,
BRONCHICK & ASSOCIATES,
WILLIAM BRONCHICK, and
BRONCHICK & ASSOCIATES, P.C.,
Defendants.
ORDER ON PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS
PURSUANT TO THE COURT’S ORDER DATED MAY 4, 2015
(Docket No. 133)
MICHAEL J. WATANABE
United States Magistrate Judge
The Court granted Plaintiff’s motion for discovery sanctions and awarded
attorneys’ fees and costs, on May 4, 2015. (Docket No. 130.) The parties have been
unable to agree on the fees and costs to be awarded, and the matter is now before the
Court on Plaintiff’s motion to set the amount. (Docket Nos. 133 & 134.) The Court has
considered the parties’ filings (Docket Nos. 133 & 137), taken judicial notice of the
Court’s entire file in this case, and considered the applicable Federal Rules of Civil
Procedure, statutes, and case law. Now being fully informed, the Court makes the
following order.

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The Court finds the following dates to be relevant to the analysis:
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2/11/2015: Second Court order compelling discovery
2/25/2015: Defendant provides native files
3/02/2015: Plaintiff’s renewed motion for sanctions
3/16/2015: Defendants’ responses to plaintiff’s renewed motion
3/23/2015: Plaintiff purchases QuickBooks Enterprise software
3/24/2015: Defendants provide partially functioning username and password
3/30/2015: Plaintiff’s reply to Defendants’ responses
4/10/2015: Court orders Defendants to make records available on premises
4/23/2015: Plaintiff inspects Defendants records on premises
4/29/2015: Court hearing on renewed motion
4/30/2015: Defendants’ final production of documents
5/04/2015: Court grants sanctions

In the Court’s order granting Plaintiff’s renewed motion, the Court concluded that
“Plaintiff should have purchased QuickBooks Enterprise and attempted to open the files
prior to filing its renewed motion for sanctions.” (Docket No. 130, p.6.) The Court
awarded sanctions nonetheless, based on Defendants’ continued intransigence in
failing to provide sufficient password access (going so far as to deny access to virtually
all Flamingo West records until after the April 29th evidentiary hearing). But
nonetheless, the Court believes Plaintiff was too quick to renew the motion. As a result,
the Court will decline to award attorneys’ fees incurred between February 11, 2015, and
March 23, 2015.
Past that, Defendants’ arguments are all untenable. Defendants’ primary
argument is that they should be liable for no more than ten hours of Plaintiff’s attorneys’
time because, Defendants say, they complied with the Court’s discovery orders by
tendering native files on February 25, 2015, they provided all relevant password access
on March 26, 2015, and all Defendants other than Flamingo West Ltd. were in

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compliance no later than April 23, 2015. All of these arguments go to the merits of the
underlying sanction order—and the Court will not revisit its determinations now.
Defendants have raised these arguments in their objections to Judge Brimmer, and if
Judge Brimmer overrules the award of sanctions, he will also make a decision at that
time as to whether the award of attorneys’ fees should be modified or vacated.
Further, while it is true that only Flamingo West Ltd. remained noncompliant past
April 23, 2015, sanctions would nonetheless be appropriate against the other
Defendants for failing to be compliant up until that point. Moreover, the Court will not
differentiate between Defendants, as all records for all entities are under the common
control of William Bronchick. The sanctions are imposed jointly and severally against all
Defendants.1
As to Defendants’ remaining arguments:
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Defendants argue that a third attorney did not need to be present at the
evidentiary hearing. But Plaintiff has not claimed attorneys’ fees for any third
attorney, so this point is moot.



Defendants argue that, as to the Bronchick Defendants, all records were
accessible by Plaintiff by March 26, 2015. This is contrary to the Court’s
finding that the password permissions were changed at some point prior to
April 23, 2015 (Docket No. 130, p.3), and is also irrelevant as the Court will
not differentiate between the conduct of the Bronchick Defendants and the
conduct of Flamingo West Ltd.

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1

Defendants argue that Plaintiff’s renewed motion was not complex and did
not require the time it took to be filed—but this point is moot, since the motion
was filed before March 23, 2015, and the Court declines to award attorneys’
fees for that time frame.

Defendants argue that the attorneys’ fees are duplicative of the expert
witness fees. This argument makes no sense and is summarily rejected.

The Court hereby expressly imposes the sanction against Defendants and not against
the attorney representing the Bronchick Defendants, Richard Strauss.

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

Finally, Defendants argue that Expert Witness Robert Aucone’s time should
not be taxed to them because he did not review all of Defendants’ records in
their entirety. The relevance of this point is not clear, and the argument is
thus rejected.

Defendants make no further arguments as to the reasonableness of Plaintiff’s
claimed fees. See generally In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 625 F.Supp.2d
1143, 1148 (D. Colo. 2009) (listing Johnson factors for reasonableness). The Court has
independently reviewed the fees and finds them reasonable on their face. The Court
therefore awards Plaintiff its fees and costs incurred in this discovery dispute from
March 23, 2015, through May 4, 2015.
Plaintiff’s bill of costs and fees, broken out by item, shows:
Hours
Before March
23rd

Hours
March 23rd &
Later

Rate

Total
Claimed

Total March
23rd & Later

Expert Fees for
Craig Spillman

0.6

19.8

$130.00

$2,652.00

$2,574.00

Expert Fees for
Robert Aucone

0

8.4

$325.00/
$350.00

$2,805.00

$2,805.00

Attorney Fees for
Adrienne Toon

16.5

43.4

$185.00

$11,081.50

$8,029.00

Attorney Fees for
Christopher Taravella

2.3

30.4

$250.00

$8,175.00

$7,600.00

Law Clerk Fees for
Chris Carry

1

0

$85.00

$85.00

$0.00

Paralegal fees for
Deborah Harant

1

11.4

$90.00

$1,116.00

$1,026.00

Purchase of
QuickBooks Enterprise

$982.08

$982.08

Airfare for Plaintiff's
Representative to
Attend Hearing

$581.70

$581.70

Total

$27,478.28

$23,597.78

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ORDER
It is hereby ORDERED that, in satisfaction of the Court’s May 4, 2015, award of
attorneys’ fees, costs, and expert-witness fees (Docket No. 130, p.9), Plaintiff Boxer F2,
L.P.’s Motion for Attorneys’ Fees and Costs (Docket No. 133) is GRANTED IN PART
and DENIED IN PART for the reasons set forth in the body of this Order, and Plaintiff is
awarded $23,597.78 to be taxed jointly and severally against all Defendants.
Defendants shall pay to Plaintiff $23,597.78 on or before July 10, 2015.

Dated:

June 11, 2015
Denver, Colorado

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