Powers et al v. FMNow LLC et al

Filing 145

ORDER: Defendants Emcon Associates, Inc., Michael Cocuzza and Michael Michowski are awarded the total sum of $8,025.00 as sanctions against Plaintiffs for causing Defendants to incur needless attorney fees to have the offending non-disclosed discoverable documents stricken for use as was more fully explained in this courts Order [Doc. No. 123 ]. It is further ORDERED The total amount of $8,025.00 is due and payable from Plaintiffs to Defendants on or before thirty days from the date of this Order, by Magistrate Judge Kathleen M. Tafoya on 9/27/2017. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–03006–KMT
WILLIAM POWERS,
MAP MANAGEMENT LLC, and
BLACK WIDOW LLC,
Plaintiffs,
v.
EMCON ASSOCIATES, INC.,
MICHAEL COCUZZA, and
MICHAEL MICHOWSKI,
Defendants.

ORDER

This matter is before the court on Emcon Associates, Inc.’s “Itemization of Fees and
Costs” filed July 10, 2017. [Doc. No. 125.] Plaintiffs’ Objection to Defendants’ Itemization of
Fees and Costs” [Doc. No. 131] was filed on July 17, 2017.
On June 29, 2017, this court granted Defendant’s “Motion to Strike Exhibits 36-39 to
Reply in Support of Motion for Partial Summary Judgment” [Doc. No. 105]. As part of the
ruling, the court granted Defendants’ request for reimbursement of reasonable costs associated
with bringing the motion and filing the reply. Defendants were directed to file an itemization of
their claimed attorney’s fees. Plaintiffs’ objection to the amount of the fees goes only to the
number of hours expended and does not challenge the Defendants’ submission with respect to
the reasonableness of Defendants counsels’ hourly rates.

LEGAL STANDARD
“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 court’s calculation of the lodestar carries with it a strong presumption of
reasonableness. Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 78 F. Supp. 3d 1307, 1315 (D.
Colo. 2014), amended, No. 12-CV-02308-CMA-CBS, 2014 WL 7187153 (D. Colo. Dec. 17,
2014), aff’d, 827 F.3d 1256 (10th Cir. 2016);
Payan v. Nash Finch Co., 310 P.3d 212 (citing Hensley, supra). The court may then adjust this
amount.
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 Sch. Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998). “A
district court is justified in reducing the reasonable number of hours 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.

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Once the court has adequate time records, it must then ensure the attorneys requesting
fees have exercised reasonable billing judgment under the circumstances of the case. 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.
Ultimately, in all cases where the court considers awarding attorneys’ fees to a party, the
Court must consider the factors articulated in Johnson v. Ga. Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92
(1989)). Those factors are: (1) time and labor required; (2) novelty and difficulty of question
presented by the case; (3) skill requisite to perform the legal service properly; (4) preclusion of
other employment by the attorneys due to acceptance of the case; (5) customary fee, (6) whether

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the fee is fixed or contingent; (7) any time limitations imposed by the client or circumstances; (8)
amount involved and results obtained; (9) experience, reputation and ability of the attorneys; (10)
“undesirability” of the case; (11) nature and length of the professional relationship with the
client; and (12) awards in similar cases. Gottlieb v. Barry, 43 F.3d 474, 482 n.4 (10th Cir. 1994)
(citing Johnson, 488 F.2d at 717-19).
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 that led to
over-billing).
ANALYSIS
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.,
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.

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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, 896
n.11 (1984).
John Keen, one of the partners with Gordon & Rees, submitted an affidavit which stated
that partners John Keen and Lance Ream billed their client at the rate of $250.00 per hour and
associate Ann Reinert billed the client at $215.00 per hour. Defendants submitted actual
redacted invoices to support their claim for both rate and hours. (See Itemization, Ex. B,
Invoices No. 20433460 and 20438953.) There was no separate resume or resume summary to
support the billing rates for the partners or the associate.
Nonetheless, in Pandeosingh v. Am. Med. Response, Inc., No. 14-CV-01792-PAB-KMT,
2015 WL 1476446, at *4 (D. Colo. Mar. 27, 2015), this court laid out a comprehensive survey of
billing rates in the Denver, Colorado area. Since that time, the court has repeatedly considered
attorney billing rates in connection with sanctions awards for discovery abuse. This court finds
the billing rates for all the attorneys involved in the case representing Defendants are reasonable
and customary for the Denver metropolitan area.
2.

Hours Claimed.

When more than one attorney works on a case, a court must be mindful of the danger of
duplicative over-billing. Often, however, a more experienced billing partner will delegate work
to an associate billing at a lower rate for completion of initial drafts and research. The partner,

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with a higher billing rate, can then expend far fewer hours on review and correction, thus saving
the client money in the long run.
Defendants submitted meticulous, contemporaneous time records which appear to be the
actual (redacted) client billing for the work in question. In examining the records, the court
found no evidence of excessive double billing in this case, even though three attorneys were
associated with the case. In fact, Mr. Ream appears to have shouldered the primary
responsibility in drafting the Motion to Strike Exhibits and the Reply. Since Mr. Ream is a
partner however, billings for review by Mr. Keen and Ms. Reinert, although very minor, will
nonetheless not be allowed. Mr. Ream spent 21 hours creating the Motion, which included one
hour spent communicating with opposing counsel and with his clients. The court considers this
to be an excessive amount of time spent to draft a motion for a straightforward legal issue.
Therefore, the court will allow 12 hours of Mr. Ream’s drafting time for the original motion and
the one hour of communication time as part of the sanctions attributed to Plaintiffs for bringing
and filing the Second Motion to Strike.
Mr. Ream submitted billings to support 22.60 hours of his time reviewing and analyzing
the Response and in drafting Defendants’ Reply. Only .30 hours of time was spent on
communication with clients and opposing counsel. The court again finds that this amount is not
reasonable and instead finds that 18 hours of attorney time spent on these two tasks, inclusive of
the communications time, is a reasonable number of hours spent under the facts of this case.
Additionally, Mr. Keen apparently was communicating with the clients and strategizing about
the stance to take in the Reply, while Mr. Ream was drafting the documents, so the court will

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find 1.10 hours of Mr. Keen’s time spent in those endeavors to also be reasonable and
attributable.
Therefore, the court will allow in total 32.10 of partner attorney time at the rate of
$250.00 per hour to have been reasonably spent in pursuant of the Second Motion to Strike and
bringing the matter to the court for resolution, for a total of $8,025.00 in attorney’s fees.
It is ORDERED
Defendants Emcon Associates, Inc., Michael Cocuzza and Michael Michowski are
awarded the total sum of $8,025.00 as sanctions against Plaintiffs for causing Defendants to
incur needless attorney fees to have the offending non-disclosed discoverable documents stricken
for use as was more fully explained in this court’s Order [Doc. No. 123].
It is further ORDERED
The total amount of $8,025.00 is due and payable from Plaintiffs to Defendants on or
before thirty days from the date of this Order.
Dated September 27, 2017.

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