Martinez et al v. Red's Towing

Filing 81

ORDER by Magistrate Judge Kristen L. Mix on 7/23/15. # 63 Motion for Attorney Fees is GRANTED in part and DENIED in part. # 76 Motion for Attorney's Fees [#76] is DENIED as moot. # 78 Amended Motion for Attorneys Fees is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Plaintiffs are awarded attorneys' fees in the amount of $43,955.00. IT IS FURTHER ORDERED that the Judgment # 42 entered on November 26, 2014, is AMENDED to include the award of attorneys' fees to Plaintiffs. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00458-KLM
LEONARD MARTINEZ,
DOUG PATRICK,
SAMANTHA PATRICK,
DEVIN QUINTANA,
SCOTT ROSENBAUM,
STEVEN ROSENBAUM,
JOSEPH VIALPANDO,
MICHAEL WOLFE,
DENNIS GREGORY,
FRANCISCO MEDINA, and
SCOTTIE LEE WRAY,
Plaintiffs,
v.
RED’S TOWING,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Motion for Attorney’s Fees [#63]1 (the
“First Motion”), to which Defendant filed a Response [#65] in partial opposition and Plaintiffs
filed a Reply [#66]; on Plaintiffs’ Motion for Attorney’s Fees [#76] (the “Second Motion”),
to which Defendant filed a Response [#77]; and on Plaintiffs’ Amended Motion for
Attorney’s Fees [#78] (the “Amended Motion”), to which Defendant filed a Response [#79]
and Plaintiffs filed a Reply [#80]. For the reasons set forth below, the First Motion [#63]

1

“[#63]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). The Court uses this convention throughout this Order.

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and Amended Motion [#78] are GRANTED in part and DENIED in part, and the Second
Motion [#76] is DENIED as moot.2
On November 2, 2014, Plaintiffs filed a Notice of Acceptance of Offer of Judgment
[#32], stating that all Plaintiffs except Mr. Martinez and Mr. Wolfe accepted Defendant’s
Offer of Judgment [#32-1]. The Offer of Judgment states in relevant part: “Defendant
agrees to pay all reasonable and necessary attorney fees, as determined by the Court,
incurred by Plaintiffs up to and including the date of this offer.” Offer of Judgment [#32-1].3
In the First Motion [#63], Plaintiffs seek a determination by the Court as to the amount of
“all reasonable and necessary attorney fees” that must be paid by Defendant. Defendant
does not contest that it must pay Plaintiffs’ attorneys’ fees in accordance with the accepted
Offer of Judgment.
On May 5, 2015, the parties filed a Stipulated Motion to Dismiss With the Court
Determining Reasonable Costs [#74], in which the parties state that they have settled the
claims with respect to the remaining two Plaintiffs, Mr. Martinez and Mr. Wolfe, and that as
part of the settlement they agreed to have the Court determine the reasonable fees and
costs that should be paid by Defendant. These fees are the subject of the Amended
Motion [#78]. The Court addresses both the First Motion [#63] and the Amended Motion
[#78] simultaneously, because the requested fees and costs do not appear to overlap and
the Motions therefore complement one another.
A.

Attorneys’ Fees
2

The Second Motion [#76] was amended by, and thus superceded by, the Amended Motion

[#78].
3

Although the Offer of Judgment states that it concerns “all Plaintiffs’ claims against
Defendant,” the parties have proceeded on the understanding that the acceptance of the Offer of
Judgment is valid as to only nine of the eleven Plaintiffs.

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Pursuant to D.C.COLO.LCivR 54.3, a party seeking an award of expenses must
provide “a detailed description of the services rendered, the amount of time spent, the
hourly rate, and the total amount claimed; and a summary of the relevant qualifications and
experience.”

Plaintiffs submitted three Affidavits [#63-3, #63-4, #76-1] authored by

Attorney Sara A. Green (“Green”) and Attorney Karen O’Connor (“O’Connor”). The
Affidavits, along with supporting documentation, include an itemized list of fees incurred
[#63-1, #78-2], the hourly rates charged by counsel, their experience, and costs expended
[#63-6, #78-3]. The Court finds that Plaintiffs have satisfied the requirements of Local Rule
54.3.
1.

Hourly Rates

Both implicit in any award of attorneys’ fees, and explicit in the award in the instant
case, is the requirement that any such fees must be reasonable. See Mares v. Credit
Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir. 1986) (stating that a party requesting
attorneys’ fees has burden to “prove and establish the reasonableness of each dollar, each
hour, above zero”); Robinson, 160 F.3d at 1281 (stating that a prevailing party must make
good faith effort to exclude from a fee request any excessive, redundant or otherwise
unnecessary hours). A “reasonable rate” is defined as the prevailing market rate in the
relevant community for an attorney of similar experience. Guides, Ltd. v. Yarmouth Grp.
Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002); Malloy v. Monahan, 73 F.3d 1012,
1018 (10th Cir. 1996). The party requesting fees bears “the burden of showing that the
requested rates are in line with those prevailing in the community.” Ellis v. Univ. of Kan.
Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998). In order to satisfy this burden, Plaintiffs
must produce “satisfactory evidence–in addition to the attorney’s own affidavits–that the

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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).
Plaintiffs request attorneys’ fees calculated at the rate of $400 per hour for Ms.
Green and $350.00 per hour for Ms. O’Connor. See Motion [#63] at 7. In support of these
attorneys’ hourly rates, Ms. Green provides Affidavits [#63-3; #76-1] in which she states
that she is an attorney employed by Bachus & Schanker, LLC; that she has been a
practicing attorney for thirteen years; that she has tried over thirty jury trials and sixty bench
trials; and that she has represented numerous clients on employment-related matters. Ms.
O’Connor provides an Affidavit [#63-4] in which she states that she has been a practicing
attorney for eight years, primarily practicing in Florida and more recently in Colorado; that
she has tried over sixty jury trials and twenty bench trials; that she has represented
numerous clients on employment-related matters; and that in 2014 she was lead counsel
and sole trial counsel for a Fair Labor Standards Act (“FLSA”) Collective Action involving
numerous plaintiffs.
The Court calculates fees based on prevailing rates in the Denver metropolitan area.
See Scadden v. Weinberg, Stein & Assoc., LLC, No. 12-cv-02454-PAB-MEH, 2013 WL
1751294, at *5 (D. Colo. Apr. 23, 2013). The parties direct the Court’s attention to the
following cases. First, Plaintiffs cite Duran v. Koehler, No. 10-cv-01569-REB-KMT, 2014
WL 4197578, at *3 (D. Colo. Aug. 25, 2014), in which the District Judge approved (in the
absence of argument or evidence from the defendant), an hourly rate of $300 per hour for

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attorneys with three years of experience in civil rights litigation.4 First Motion [#63] at 8;
Reply [#66] at 2; Amended Motion [#78] at 7; Reply [#80] at 2. Second, Defendant cites
Olivares v. UFP Lafayette, LLC, No. 12-cv-01082-CMA-KLM, 2013 WL 2477124, at *1 (D.
Colo. June 10, 2013), in which the District Judge approved a billing rate of $280.00 per
hour for lead counsel and $200 per hour for co-counsel in a FLSA case. Response [#65]
at 4-5. Third, Defendant cites Home v. Scott’s Concrete Contractor, LLC. No. 12-cv-01445WYD-KLM, 2013 WL 3713905, at *10 (D. Colo. Apr. 24, 2014), in which the undersigned
approved billing rates of $280.00 and $200.00 per hour for the attorneys in a FLSA case.
Response [#65] at 5.
Plaintiffs provide a copy of the Colorado Bar Association’s 2012 Economic Survey
Snapshot. Pls.’s Ex. 5 [#63-5]. Using this document, Defendant provides a well-reasoned
analysis of Ms. Green’s and Ms. O’Connor’s hourly rates as they relate to associates with
their level of experience in their line of work at a firm in downtown Denver the size of
Bachus & Schanker. Response [#65] at 2-4. Taking into account these factors, Defendant
appropriately concludes that a median hourly rate for Ms. Green is about $240 per hour
and for Ms. O’Connor is about $225. Id. at 4. The Court notes, however, that these
median rates are for 2012 and not for 2014-2015, the time frame in which this case was
litigated.
“If the district court does not have adequate evidence of prevailing market rates for
attorney fees, then it may, ‘in its discretion, use other relevant factors, including its own
knowledge, to establish the rate.’ A district judge may consider his or her ‘own knowledge
4

Plaintiffs did not provide either the Westlaw citation for this opinion or the docket number
of the motion [#121] and opinion [#151] in Civil Action 10-cv-01569-REB-KMT. The opinion [#151]
does not specifically state the hourly rate and experience for these attorneys. The underlying
motion [#121] provides this information at page 17, note 7.

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of prevailing market rates as well as other indicia of a reasonable market rate.’” Reichers
v. Del. Asset Mgmt., No. 13-cv-02171-CMA-CBS, 2013 WL 6096136, at *3 (quoting
Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006)). Based on the Court’s experience,
as well as the evidence and case law provided by the parties regarding the prevailing
market rate in the Denver area for attorneys of Ms. Green’s and Ms. O’Connor’s experience
representing plaintiffs in this type of case, the Court finds that hourly billing rates of $300
per hour for Ms. Green and $250 per hour for Ms. O’Connor are reasonable rates for
Plaintiffs’ attorneys. See Home Loan Investment Co. v. St. Paul Ins. Co., ___ F. Supp. 3d
___, 2014 WL 6723965, at *6-7 (D. Colo. Nov. 25, 2014) (generally discussing the
prevailing rates for attorneys in Colorado).
2.

Hours Expended

A party seeking an award of attorneys’ fees must demonstrate that the expenses it
seeks are reasonable. See Dewey v. Hewlett Packard Co., No. 05-cv-01482-REB-MJW,
2007 WL 707462, at *1 (D. Colo. Mar. 5, 2007). Therefore, counsel must make a good
faith effort to exclude hours or costs that are “excessive, redundant or otherwise
unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Generally, the starting
point for any calculation of reasonable attorneys’ fees is the “lodestar,” that is, the number
of hours reasonably expended multiplied by a reasonable hourly rate. Hensley, 461 U.S.
at 433; Malloy v. Monahan, 73 F.3d 1012, 1017-18 (10th Cir. 1996). The Court is not
required to reach a lodestar determination in every instance, however, and may simply
accept or reduce a fee request within its discretion. Hensley, 461 U.S. at 436-37.
Defendant argues that the hours billed by Ms. Green with respect to two types of
tasks should be reduced or eliminated. See Response [#65] at 6. First, Ms. Green

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expended 8.0 hours total on December 2 and 22, 2013, researching the viability of this
case. Pls. Ex. 1 [#63-1] at 1-2. Defendant argues that this was excessive, given Ms.
Green’s experience in this area of the law. Response [#65] at 6. Second, Ms. Green
expended 0.5 hours total on August 27, 2014, September 2 and 11, 2014, and October 14,
2014, to file various motions and other documents with the Court. Pls. Ex. 1 [#63-1] at 7,
8, 12. Defendant disputes the time relating solely to the filing of the documents, not the
time regarding other connected tasks such as the drafting or conferral. Response [#65] at
6.
The Court exercises its “discretion in making this equitable judgment” and does not
“apportion the fee award mechanically” by considering each claimed expense and
determining its reasonableness overall. Hensley, 461 U.S. at 436-40 (holding that the
Court “should make clear that it has considered the relationship between the amount of the
fee awarded and the results obtained”); see also White v. GMC, Inc., 908 F.2d 675, 684-85
(10th Cir. 1990) (noting that the amount of fees accumulated to secure the desired result
must be reasonably related to the type and significance of issue in dispute). Based on the
undersigned's thirty years of combined private and judicial experience and careful
consideration of the Affidavits and the issues underlying this matter, the Court finds that the
claimed hours are reasonable here. See, e.g., Onesource Commercial Prop. Servs., Inc.
v. City & Cnty. of Denver, No. 10-cv-02273-WJM-KLM, 2011 WL 3583398, at *2 (D. Colo.
Aug. 12, 2011).
Thus, the Court finds that: (1) Ms. Green’s hourly compensation of $300.00 is
reasonable; (2) Ms. O’Connor’s hourly compensation of $250.00 is reasonable; (3) the
138.6 hours of attorney time recorded by Ms. Green are reasonable, see [#63-1] at 13,

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[#78-2] at 2; and (4) the 9.5 hours of attorney time recorded by Ms. O’Connor are
reasonable. Accordingly, the Court concludes that Plaintiffs are entitled to an award of
$43,955.00 in attorneys’ fees.
B.

Costs
Defendant does not contest $1,178.28 in costs. First Motion [#63] at 9; Response

[#79] at 3. Defendant does contest the $4,580.00 in costs attributed to Plaintiffs’ retention
of an expert witness to conduct calculations of overtime allegedly owed to them. Response
[#79] at 1.
The parties are generally in agreement that Plaintiffs are to be awarded costs in this
action. See Stipulated Motion to Dismiss With the Court Determining Reasonable Fees
and Costs [#74]; Defendant’s Fed. R. Civ. P. 68 Offer of Judgment [#32-1]. However, the
appropriate method for determining the amount of and obtaining the award of costs is to
follow the procedure outlined in D.C.COLO.LCivR 54.1.
Accordingly, to the extent the parties seek an order determining the amount of costs
to be awarded to Plaintiffs, the request is denied without prejudice. The parties are
directed to comply with D.C.COLO.LCivR 54.1 with respect to the award of costs in this
action.
Based on the foregoing,
IT IS HEREBY ORDERED that the First Motion [#63] is GRANTED in part and
DENIED in part.
IT IS FURTHER ORDERED that the Amended Motion [#78] is GRANTED in part
and DENIED in part.
IT IS FURTHER ORDERED that the Second Motion [#76] is DENIED as moot.
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IT IS FURTHER ORDERED that Plaintiffs are awarded attorneys’ fees in the amount
of $43,955.00.
IT IS FURTHER ORDERED that the Judgment [#42] entered on November 26,
2014, is AMENDED to include the award of attorneys’ fees to Plaintiffs.

Dated: July 23, 2015

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