Pandeosingh v. American Medical Response, Inc. et al

Filing 116

ORDER. Ordered "Plaintiffs Itemized Costs Associated with Retaking Depositions of Steve Murphy and Paul Anderson" filed October 23, 2015 76 is accepted in part. The Defendants shall pay to Plaintiff the total sum of $1,631.91 in ex tra costs incurred with respect to the need for continued depositions of Steve Murphy and Paul Anderson pursuant to the courts October 20, 2014 Order. Ordered that "Plaintiff's Itemized Calculation of Costs & Fees Associated with Bringing H er Motion to Compel Documents On Defendants' Privilege Logs in the District of Colorado" 81 is accepted in full. The Defendants shall pay to Plaintiff the total sum of $2,605.60. Defendants shall remit the total sum of $4,237.61 to the Plaintiff on or before April 13, 2015.Defendants shall file with the court proof of payment of the $4,237.61 on or before April 15, 2015. Entered by Magistrate Judge Kathleen M. Tafoya on 03/27/15. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01792–PAB–KMT
SAVITRI PANDEOSINGH,
Plaintiff,
v.
AMERICAN MEDICAL RESPONSE, INC.,
GLOBAL MEDICAL RESPONSE, INC., and
EMERGENCY MEDICAL SERVICES CORP.,
Defendants.

ORDER

This matter is before the court on “Plaintiff’s Itemized Costs Associated with Retaking
Depositions of Steve Murphy and Paul Anderson” filed October 23, 2015 (“Cost Request #1”)
[Doc. No. 76]. “Defendants’ Opposition to Plaintiff’s Itemized Costs Associated with the
Retaking of the Depositions of Steven Murphy and Paul Anderson” was filed on November 4,
2014 [Doc. No. 79]. No Reply was filed.
Additionally, the court considers “Plaintiff’s Itemized Calculation of Costs & Fees
Associated with Bringing Her Motion to Compel Documents On Defendants’ Privilege Logs in
the District of Colorado” filed November 6, 2014 (Cost Request #2”) [Doc. No. 81].
“Defendants’ Response to Plaintiff's Itemized Calculation of Costs and Fees Associated with
Motion to Compel Documents On Defendants’ Privilege Log” was filed on November 24, 2014
[Doc. No. 89] and “Plaintiff’s Reply in Support of Her Itemized Calculation of Costs and Fees

Associated with Her Motion to Compel Documents On Defendants’ Privilege Logs” [Doc. No.
96] was filed on December 3, 2014. Both requests are ripe for review and ruling.
I.

COST REQUEST #1
A.

Costs Incurred for Re-Taking Depositions.

Plaintiff has submitted costs for the following categories of expenses for which they seek
reimbursement: (1) Round trip train fare Washington D.C. to New York, New York and taxi at
destination; (2) overnight hotel expenses May 11 and 12, 2014; (3) meal charges for the same
time period; (4) court reporter fees and transcript for the Steve Murphy deposition; and (5) court
reporter fees and transcript for the Paul Anderson deposition.
Defendants do not object to the expense of the round trip train travel for Mr. Levesque of
$464.00. 1 Defendants limit their objections to costs submitted which they claim would have
been incurred by Plaintiff even if the attorney for Defendants had not wrongfully instructed the
witness not to answer. As to the deposition of Mr. Murphy, Defendants argue that the cost of the
one night’s hotel room would have been necessary in Ft. Lauderdale for the continuation of Mr.
Murphy’s deposition because the deposition ended at 5:52 p.m.. Therefore, Mr. Levesque would
have had to stay over one night in Ft. Lauderdale to complete the deposition of Mr. Murphy even
if the objection had not been made. The same argument is made with respect to the overnight
New York lodging to finish the deposition of Paul Anderson. Mr. Anderson’s first deposition
ended at 6:52 p.m. so Defendants argue any additional testimony would, by necessity of the
hour, have been taken the next day. Therefore, costs would have been incurred for an overnight
stay in Trinidad to continue the original deposition. Dovetailing that argument, the Defendants
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Defendants do not specifically mention the taxi fare submitted of $52.60, therefore the court
infers there is no objection.
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also argue that meals for that additional day should also be excluded.
Additionally, Defendants argue that the costs for the transcripts of testimony and for
exhibits would have been costs incurred in any event had the two depositions continued each into
their second day. Further, they argue that costs for the additional hours with the court reporter
would also have been incurred for the continuing the depositions in the first instance.
The court overrules the objection of Defendants to the two nights lodging which was
incurred by Mr. Levesque. The Plaintiff’s attorney was unnecessarily forced to expend his
attorney time to travel to New York to take the depositions. If the depositions had simply gone
forward as scheduled and resumed the same day, the six hours that Mr. Levesque spent on the
train would not have been necessary. 2 Therefore, the court finds that the costs of the hotel that
were incurred in New York were necessary and should be borne by the Defendants. However,
the court does not accept the rate of $359.00 for the hotel room as submitted by Plaintiffs
because the General Services Administration Per Diem Rate in May of 2014 for New York City
lodging was a maximum of $267.00 per night. Of course counsel may stay wherever they like
when traveling so long as their clients do not object to the cost. But when the costs are to be
shifted, the court must determine what costs are reasonable. The court determines that the
government per diem rate is the “reasonable” rate for a hotel in New York City at the time.
Therefore the court will allow expenses of $534.00 for two nights lodging, plus city tax at .058%
($30.97) plus $4.00 New York City occupancy fee and New York City state tax of .924 ($49.34).
Accordingly, lodging costs will be awarded in the total amount of $618.31.
The court will also allow meal expenses at the government per diem rate of $71.00 per
2

Of course, the court did not include attorney fees as part of the calculation of costs for re-taking
the two depositions,
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day. Both May 11 and May 13, 2014 were half days. Therefore, the court will allow $142.00 in
meal costs.
The court agrees with the defendants that the majority of the court reporter fees which
were incurred would have been born by Plaintiff had not defense counsel interposed the
instruction not to answer and concluded the deposition early. The hourly rate for the additional
hours of testimony would have been incurred as would the costs of the videotapes and the
transcript. The only additional costs which were incurred by Plaintiff appear to be the “first
hour” fees, which this court likens to an “appearance fee” charged by the service simply to show
up at the deposition site. Since such an appearance fee would have already been incurred at the
beginning of the original depositions of Mr. Murphy and Mr. Anderson, those costs are
additional. Therefore, the court will award $355.00 in extra court reporter costs.
Therefore the court orders that the Defendants shall pay to Plaintiffs the total sum of
$1,631.91 in extra costs incurred with respect to the need for continued depositions of Steve
Murphy and Paul Anderson pursuant to the court’s October 20, 2014 Order [Doc. No. 75].
COST REQUEST #2
A.

Costs and Fees Awarded as Sanction

On October 30, 2014, this court considered “Plaintiff’s Motion to Compel Production of
Documents on Defendants’ Privilege Logs” (“Mot. Priv. Log”) [Doc. No. 31], filed July 21,
2014. The court found that Defendants had failed to sufficiently prepare a privilege log for
withheld documents and further that Defendants had responded to Plaintiff’s motion in a
dismissive manner, rather than attempting to remedy their woefully inadequate privilege log.
Based on Defendants’ “unreasonable and intractable position,” the court granted Plaintiff its
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costs and attorney fees in bringing and prosecuting the motion. (Mot. Priv. Log at 6; October 30,
2014 Order [Doc. No. 78] (“Priv. Log Order”).)
Plaintiff submitted an accounting in the total amount of $2,605.60, representing its claim
for attorney’s fees.
“The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended . . . multiplied by a reasonable hourly rate” which will
result in what is commonly called the loadstar calculation. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). “This calculation provides an objective basis on which to make an initial estimate of
the value of a lawyer’s services.” Id. “[A] claimant is entitled to the presumption that this
lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998)
The party seeking an award of fees should submit specific evidence supporting the hours
worked and rates claimed. Hensley, 461 U.S. at 433. The Tenth Circuit has noted that
“[c]ounsel for the party claiming the fees has the burden of proving hours to the district court by
submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees
are sought, all hours for which compensation is requested and how those hours were allotted to
specific tasks.” Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998). “A
district court is justified in reducing the number of hours considered if the attorney’s time
records are ‘sloppy and imprecise’ and fail to document adequately how he or she utilized large
blocks of time.” Id.; see also Robinson, 160 F.3d at 1281.
Once the court has adequate time records, it must then ensure that the attorneys
requesting fees have exercised reasonable billing judgment under the circumstances of the case.
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Id. “Billing judgment consists of winnowing the hours actually expended down to the hours
reasonably expended.” Id; see also Hensley, 461 U.S. at 434, 437 (counsel are expected to
exercise their billing judgment, “mak[ing] a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary”).
When a court examines the specific tasks listed by an attorney claiming fee
reimbursement, the court must first determine if the fees are properly chargeable under the
circumstances of the case and then whether the number of hours expended on each task is
reasonable. Id. Among the factors to be considered are: (1) whether the tasks being billed would
normally be billed to a paying client, (2) the number of hours spent on each task, (3) the
complexity of the case, (4) the number of reasonable strategies pursued, (5) the responses
necessitated by the maneuvering of the other side, and (6) potential duplication of services by
multiple lawyers. Robinson, 160 F.3d at 1281. “In this analysis, [the court should] ask what
hours a reasonable attorney would have incurred and billed in the marketplace under similar
circumstances.” Id.
The Tenth Circuit has also opined that “[a] general reduction of hours claimed in order to
achieve what the court determines to be a reasonable number is not an erroneous method, so long
as there is sufficient reason for its use.” Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203
(10th Cir. 1986) (reduction in fees appropriate due to inexperience of an attorney which led to
over-billing).
1.

Attorney Billing Rates

A reasonable hourly billing 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.,
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Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). A court may use its own knowledge of the
prevailing market rate to determine whether the claimed rate is reasonable. Id. at 1079; see also
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 on its knowledge of rates for
lawyers with comparable skill and experience practicing” in the relevant market). The party
requesting fees bears “the burden of showing 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.” Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir.
1998) (internal citations omitted). In order to satisfy this burden, the party requesting fees 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).
Plaintiff seeks reimbursement for the time spent by Terrence P. Collingsworth, Managing
Partner with Conrad & Scherer, LLP in Washington, D.C. who has “over thirty years’ experience
as a litigator, primarily handling complex international cases.” (Cost Request #2 at 12.) Mr.
Collingsworth has taught constitutional and employment law at several law schools.
Additionally, Plaintiff seeks reimbursement for hours spent by Charity Ryerson, Associate with
Conrad & Scherer, LLP who graduated from Georgetown University Law Center in 2012;
Cassandra Webster Lenning, Associate with Conrad & Scherer, LLP who graduated from Duke
University School of Law in 2011; and Lesley Wharton, Paralegal, Conrad & Scherer, LLP.
Having sought fee reimbursement in this case from the New York Magistrate Judge once
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previously, Plaintiff seeks reimbursement at the rates deemed reasonable by Magistrate Judge
Reyes at that time, rather than at their full billing rates. Plaintiff seeks reimbursement at the rates
of $400.00 per hour for Terrence Collingsworth, $150.00 per hour for Charity Ryerson and
Cassandra Webster Lenning, and $80.00 per hour for paralegal Lesley Wharton.
Last year Senior Judge Lewis T. Babcock collected cases on the then-prevailing attorney
hourly fee rates in the Colorado area in Hitchens v. Thompson National Properties, LLC, Case
No. 12-cv-02367-LTB-BNB, 2014 WL 2218094, at *2 (D. Colo. May 29, 2014). In analyzing
the $250.00 hourly billing rate of one of the attorneys who “graduated from law school in 2005,
has been licensed to practice for eight years, and is licensed in several states and federal courts
including Colorado, Montana, Nevada, and North Dakota,” the court found $250.00 per hour “a
reasonable rate for an attorney of [that] experience in the Denver legal market. Id.; see also
Peterson–Hooks v. First Integral Recovery, LLC, No. 12–cv–01019–PAB–BNB, 2013 WL
2295449, at *7 n.10 (D. Colo. May 24, 2013) (collecting comparable cases). Judge Babcock also
found that the higher billing rates for three other attorneys, one at $430 an hour and two at $405
an hour, were also reasonable for attorneys described as follows: (1) the $430 billing attorney
had 30 years of experience litigating complex business and commercial disputes and regularly
handles trial, arbitration, mediation and appeal of large construction, fire subrogation and
business matters; (2) the first $405 billing attorney had 25 years of experience and regularly
handles complex commercial litigation, including securities matters; and (3) the second $405
billing attorney had 20 years of experience litigating complex business and commercial disputes.
Id.
Other cases have examined and upheld billing rates as high as $700.00 per hour in the
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Colorado area. See Dines v. Toys “R” Us., Inc., Civil Action No. 12-cv-02279-PAB-KMT, 2014
WL 201735, at *2 (D. Colo. Jan. 17, 2014)(in considering sanctions for discovery violation,
approving rate of $330.00 per hour for attorney with 40 years of practice in complex commercial
litigation); Xtreme Coil Drilling Corp. v. Encana Oil & Gas Corp., 958 F. Supp. 2d 1238 (D.
Colo. July 23, 2013) (“the prevailing rates in Denver for experienced litigators approach $400
per hour in recent years” and holding $450 per hour represented the maximum hourly rate that
could be considered reasonable for lead trial counsel); Home Design Servs. v. Collard Props.,
LLC, Case No. 10-cv-00011–MSK–BNB, 2012 WL 2862881, *3 (D. Colo. July 11, 2012)
(approving rate of $395.00 per hour for lead attorney); Jankovic v. Exelis, Inc., Case No. 12–cv–
01430–WJM–KMT, 2013 WL 1675936 (D. Colo. Apr. 17, 2013) (approving rate of $430 per
hour); Watson v. Dillon Cos., Inc., Case No. 08–cv–00091–WYD–CBS, 2013 WL 4547521, *2
(D. Colo. Aug. 28, 2013) (approving rate of $550 per hour for lead attorney); Biax Corp. v.
NVIDIA Corp., Case No. 09–cv–01257–PAB–MEH, 2013 WL 4051908 (D. Colo. Aug. 12,
2013) (relying on 2010 National Law Journal (“NLJ”) billing survey showing Denver firms
billed between $285 and $810 per hour for partners; approving rates of over $700 per hour for
partners with comparable experience, but only “given the complexity of the subject matter, the
high stakes of the case, and the contentiousness of the dispute”).
I find that the billing rates for the listed attorneys and paralegal as set by Magistrate
Judge Reyes (See Doc. No. 89-2 at 4) are reasonable hourly rates for the Denver metropolitan
area as well and will condition this award on those submitted rates.

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2.

Hours Claimed.

Plaintiff has submitted contemporaneous billing records which support the hours claimed
by the Plaintiff for legal work associated with converting the original motion to the Colorado
format, for drafting an original Reply and for otherwise presenting the issues to this Colorado
court.
First, the court disagrees with Defendants’ objection to the percentage parsing of the
paralegal’s work on the conversion of motions for the purposes of reassertion in the Colorado
forum. This is a commendable use of paralegal skills and avoids having an attorney spend time
and effort on re-drafting documents already billed to the client in attorney fees. Therefore the
court will allow the costs requested to reimburse the paralegal for 3.695 hours at $80.00 per hour
for a total of $295.60.
Associate attorney Charity Ryerson apparently did the heavy lifting on the Reply Brief
for which Plaintiff claims 8.5 hours of her time. Mr. Collingsworth claims he spent 2.25 hours
reviewing the Plaintiff’s re-drafted motion, the Defendants’ response, and Plaintiff’s Reply.
Associate Cassandra Webster Lenning spent .90 hours working on revisions in the Reply.
Itemized bills were submitted to support these hours.
The court finds that the hours spent by the three attorneys are reasonable in relation to the
issues involved in the motion and the value of the case and therefore will allow the hours.
Therefore, the Defendant will be ordered to pay $2,605.60 as sanctions to the Plaintiff pursuant
to the court’s October 30, 2014 Privilege Log Order.
IT IS ORDERED
1.
“Plaintiff’s Itemized Costs Associated with Retaking Depositions of Steve
Murphy and Paul Anderson” filed October 23, 2015 [Doc. No. 76] is accepted in part.
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The Defendants shall pay to Plaintiff the total sum of $1,631.91 in extra costs incurred
with respect to the need for continued depositions of Steve Murphy and Paul Anderson
pursuant to the court’s October 20, 2014 Order.
2.
“Plaintiff’s Itemized Calculation of Costs & Fees Associated with Bringing Her
Motion to Compel Documents On Defendants’ Privilege Logs in the District of
Colorado” [Doc. No. 81] is accepted in full. The Defendants shall pay to Plaintiff the
total sum of $2,605.60.
3.
Defendants shall remit the total sum of $4,237.61 to the Plaintiff on or before
April 13, 2015.
4.
Defendants shall file with the court proof of payment of the $4,237.61 on or
before April 15, 2015.
Dated this 27th day of March, 2015.

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