Valdez v. Derrick, III et al

Filing 385

ORDER. Defendants' Motion to Stay Attorney Fee Proceedings (ECF No. 369 ) is DENIED. Plaintiff's Motion for Attorney's Fees and Costs (ECF No. 358 ) is GRANTED IN PART and DENIED IN PART. Plaintiff is AWARDED $1,132,327.40 in attorney's fees and $18,199.60 in costs. SO ORDERED by Judge William J. Martinez on 4/12/2022.(trvo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0109-WJM-STV
MICHAEL VALDEZ,
Plaintiff,
v.
ROBERT MOTYKA, Jr., Denver Police Officer in his individual capacity, and
CITY AND COUNTY OF DENVER, a municipality,
Defendants.
ORDER DENYING DEFENDANTS’ MOTION TO STAY ATTORNEY FEE
PROCEEDINGS AND GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS
This matter is before the Court on Defendants Robert Motyka, Jr. and City and
County of Denver’s (“Denver”) (jointly, “Defendants”) Motion to Stay Attorney Fee
Proceedings (“Motion to Stay”) (ECF No. 369). Also before the Court is Plaintiff Michael
Valdez’s Motion for Attorney’s Fees and Costs (“Fee Motion”) (ECF No. 358), to which
Defendants responded (ECF No. 380), and Plaintiff replied (ECF No. 383).
For the reasons stated below, the Motion to Stay is denied, and the Fee Motion is
granted in part and denied in part.
I. BACKGROUND
Motyka, a Denver police officer, shot Plaintiff at least once at the end of a car
chase on January 16, 2013. Plaintiff filed this lawsuit on January 15, 2015, alleging
inter alia, that Motyka opened fire after all danger had passed, in violation of the Fourth
Amendment, and that Denver has failed to train its police officers to prevent such

violations. (See, e.g., ECF Nos. 1, 152.)
This matter proceeded to a 9-day jury trial beginning on September 13, 2021.
(ECF No. 307.) On September 23, 2021, a jury awarded Plaintiff $131,000 against
Motyka and $2,400,000 against Denver. (ECF No. 329.)
On November 1, 2021, the Court granted in part and denied in part Plaintiff’s
Motion for Prejudgment Interest and awarded Plaintiff $38,856 in prejudgment interest
on Plaintiff’s economic damages. (ECF No. 339.) On the same day, the Court entered
Final Judgment. (ECF No. 340.)
Defendants filed a Notice of Appeal on November 15, 2021 (ECF No. 344), and
Plaintiff filed a Notice of Cross-Appeal on November 29, 2021 (ECF No. 362). The
parties’ appeals remain pending before the United States Court of Appeals for the Tenth
Circuit.
II. MOTION TO STAY
“The law is well settled the district judge retains jurisdiction over the issue of
attorneys’ fees even though an appeal on the merits of the case is pending.” City of
Chanute v. Williams Nat. Gas Co., 955 F.2d 641, 658 (10th Cir. 1992), overruled on
other grounds, Systemcare, Inc. v. Wang Labs. Corp., 117 F.3d 1137 (10th Cir. 1997).
But the district court judge is not required to resolve a motion for attorney’s fees or costs
before the appeal is completed according to Federal Rule of Civil Procedure 54(d).
Where the losing party appeals the merits of a case, the district court has discretion to
deny the prevailing party’s motion for attorney’s fees or defer ruling on the motion. See
Fed. R. Civ. P. 54(d), adv. comm. note to 1993 amendments (“If an appeal on the merits
of the case is taken, the court may rule on the claim for fees, may defer its ruling on the
2

motion, or may deny the motion without prejudice, directing under subdivision (d)(2)(B)
a new period for filing after the appeal has been resolved.”).
In the Motion to Stay, Denver argues that the Court should stay further
proceedings on the Fee Motion while the parties’ appeals are pending. (ECF No. 369 at
2.) According to Denver, a stay is appropriate because: (1) the appeal and crossappeal will alter the amount of any fee award; and (2) if Denver’s appeal is successful,
Plaintiff will no longer be the prevailing party entitled to fees. (Id. at 3.)
After carefully considering Denver’s arguments, the Court denies the Motion to
Stay for lack of good cause shown. The mere possibility that Plaintiff may be entitled to
a further fee award in the future does not affect the Court’s conclusion that it is
appropriate to determine Plaintiff’s entitlement to fees thus far in the litigation. To the
extent that Plaintiff prevails on appeal and is entitled to a further fee award, the Court
will address such issues at that time.
Accordingly, the Court denies the Motion to Stay.
III. FEE MOTION
A.

Legal Standards
In a civil rights action under 42 U.S.C. § 1983, “the court, in its discretion, may

allow the prevailing party, other than the United States, a reasonable attorney’s fee as
part of the costs . . . .” 42 U.S.C. § 1988(b); see also Fed. R. Civ. P. 54(d). Because
the purpose of § 1988 is to ensure “effective access to the judicial process” for persons
with civil rights grievances, “a prevailing plaintiff should ordinarily recover an attorney’s
fee unless special circumstances would render such an award unjust.” Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983). The amount of the fee must be determined on the
3

facts of each case. Id. In his Fee Motion, Plaintiff seeks an attorney fee award of
$1,294,088.50.
B.

Attorney’s Fee Award
1.

General Standard

As noted above, any fee award must be reasonable under the circumstances.
Hensley, 461 U.S. at 433. “The most useful starting point for determining the amount of
a reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Id. This is commonly referred to as the
“lodestar method” for calculating fees. Id. Once the Court determines the lodestar, it
may “adjust the lodestar upward or downward to account for the particularities” of the
work performed. Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997). 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.
As for the hourly rate, the Tenth Circuit has indicated that “the court must look to
‘what the evidence shows the market commands.’” Burch v. La Petite Academy, Inc.,
10 F. App’x 753, 755 (10th Cir. 2001) (quoting Case v. Unified Sch. Dist. No. 233, 157
F.3d 1243, 1255 (10th Cir. 1998)). The burden is on the party seeking fees to provide
evidence of the prevailing market rate for similar services by “lawyers of reasonably
comparable skill, experience, and reputation” in the relevant community. Ellis v Univ. of
Kan., 163 F.3d 1186, 1203 (10th Cir. 1998). “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.”

4

Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006).
The party requesting fees has the burden to “prove and establish the
reasonableness of each dollar, each hour, above zero,” and bears the burden of
providing the required documentation and demonstrating that the fees requested are
reasonable. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir. 1986).
The best evidence of reasonable fees is “meticulous time records that ‘reveal . . .
all hours for which compensation is requested and how those hours were allotted to
specific tasks.’” Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) (quoting
Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983)). To determine the number of
hours expended, the Court reviews counsel’s billing entries to ensure that counsel
exercised proper billing judgment. Case, 157 F.3d at 1250. The party seeking fees
must make a “good-faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. Where such an effort
appears “inadequate, the district court may reduce the award accordingly.” Id. at 433;
Jane L., 61 F.3d at 1510.
Moreover, when a plaintiff “is deemed ‘prevailing’ even though he succeeded on
only some of his claims for relief,” a court may exclude a portion of the fee if claims on
which plaintiff lost were “unrelated to the claims on which he succeeded.” Hensley, 461
U.S. at 434. A court may also reduce the overall award if a party “has achieved only
partial or limited success.” Id. at 436.
2.

Counsel’s Hourly Rates

Plaintiff requests hourly rates ranging from $575 to $595 per hour for work
performed by shareholders and special counsel, $375 per hour for work performed by

5

associates, $100 per hour for work performed by law clerks, $100 to $200 per hour for
work performed by paralegals, and $75 per hour for work performed by an investigator.
(ECF No. 358 at 4–5.) Plaintiff argues that the “hourly rates charged by each of the
lawyers in this case are reasonable, based on each lawyer’s skill, experience,
reputation in the community, and accomplishments.” (Id. at 12; ECF No. 358-1 ¶¶ 49–
50.) For support, he cites a number of cases in which attorneys with similar hourly rates
and civil rights experience were awarded attorney’s fees. (ECF No. 358 at 12–13.)
In response, Defendants argue that Plaintiff’s requested billing rates are
unreasonable as they “are on the high end of the relevant market for civil rights lawyers
in the Denver area.” (ECF No. 380 at 13–14.) Defendants request that the Court
instead award an attorney’s fee award based on hourly billing rates of $500 per hour for
work performed by partners, $250 per hour for work performed by associates, and $100
for work performed by paralegals. (Id. at 14.)
After carefully considering the parties’ arguments, supporting documentation, and
applicable case law, the Court concludes that Plaintiff’s requested hourly billing rates
are reasonable for civil rights attorneys of comparable skill and experience in the
Denver area. As such, the Court will apply the hourly billable rates requested by
Plaintiff in determining the appropriate fee award.
3.

Billed Hours

Plaintiff requests payment for over 3,100 hours of billable work. (ECF No. 358 at
5.) According to Plaintiff, his counsel exercised reasonable billing judgment in compiling
this request by removing duplicative time entries and/or work performed inefficiently and
unnecessarily. (Id. at 6.) Moreover, Plaintiff contends that the matter was litigated as

6

cost-effectively as possible and that “[t]he billing does not include all the time [ ] counsel
and staff spent on intra-office conferences about the litigation, nor the bulk of the time [ ]
counsel spent writing and reviewing emails among staff and with opposing counsel.”
(Id. at 7.) Moreover, Plaintiff emphasizes that this billable time represents work on a
lawsuit that has lasted over six years and included over a dozen depositions, two
motions to dismiss, three motions for summary judgment, three appeals to the court of
appeals, various other motions, and a nine-day jury trial. (Id. at 9.)
Defendants respond that Plaintiff is not entitled to recover attorney’s fees to
“pursue unsuccessful claims unrelated to the claims on which he prevailed.” (ECF No.
380 at 2.) They contend that Plaintiff’s claims for malicious prosecution, manufacture of
evidence, seizure, false imprisonment, and conspiracy “were distinct claims based on
allegations of unlawful acts taking place after the initial use of force” and therefore are
unsuccessful claims for which Plaintiff is not entitled to an attorney’s fee award. (Id. at
3–4.) According to Defendants, the Court should reduce the requested hours by 25% to
account for work done on non-compensable claims. (Id. at 10.)
Defendants further argue that the Court should reduce Plaintiff’s fee request
because counsel’s time records contain impermissible block billing (id. at 5–10);
duplicative time in which multiple attorneys billed for meetings, emails, or telephone
calls (id. at 10–11); fees relating to a mediation that was not successful (id. at 12); and
fees for attorneys’ full travel time (id.). Finally, Defendants argue that Plaintiff failed to
include a summary of the relevant qualifications and experience for all the timekeepers
for which he is seeking fees and that the Court should remove the hours from any fee
award. (Id. at 13 (arguing Plaintiff failed to provide the requisite summary pursuant to
7

D.C.COLO.LCivR 54.3(b) for Nancy Hickham, an unnamed “Law Clerk,” Brenda
Rodriguez, Kelsey Ray, Alex Wood, and Jenny Braun).)
After carefully reviewing the parties’ briefs and exhibits and relevant case law,
the Court concludes that a moderate discount to Plaintiff’s requested attorneys’ fee
award is appropriate. Critically, although Plaintiff prevailed on every claim against
Defendants Motyka and Denver at trial, he was unsuccessful on a number of
substantive claims and against other defendants. See Martinez v. Valdez, 125 F. Supp.
3d 1190, 1215 (D. Colo. 2015) (recognizing that the measure of success for the purpose
of awarding attorney fees is not only obtaining generous jury verdicts on the claims on
which they succeeded and that “[t]he purpose of reducing a fee claim to reflect partial
success is to eliminate compensation for hours spent solely in the pursuit of substantive
claims on which” plaintiffs were unsuccessful).
The Court further agrees with Defendants that Plaintiff failed to substantiate his
fee request for all attorneys, law clerks, and paralegals for whom he claims fees with a
summary of relevant qualifications and experience, as is required by D.C.COLO.LCivR
54.3(b). Moreover, the Court notes that certain of Plaintiff’s billing entries appear to be
impermissibly block billed and/or appear to be duplicative of tasks performed by other
attorneys. 1 See Hensley, 461 U.S. at 434 (recognizing that the party seeking fees must
make a “good-faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary”); Cadena v. Pacesetter Corp., 224 F.3d 1203,
The Court categorically rejects Defendants’ arguments that the undersigned should
exclude fees relating to a mediation that was not successful. As a matter of public policy, the
Court strongly believes it is important for prevailing parties to recover fees for time spent in good
faith towards mediation, in order to incentivize future civil rights litigants to meaningfully
participate in settlement discussions.
1

8

1215 (10th Cir. 2000) (recognizing that although block billing is not forbidden, courts
may discount attorney’s fees on the basis that entries were block billed). As a
percentage of all the hours expended by Plaintiff’s counsel in this case, the Court finds
that these two categories of requested fees are relatively modest.
So while the Court believes some reduction in the fee award is appropriate, it is
also of the view that Defendants’ requested reduction of Plaintiff’s total fee request is
excessive. A reduction of this magnitude would ignore the fact that the overwhelming
proportion of hours billed were spent on claims on which Plaintiff ultimately prevailed at
trial. (See ECF No. 383 at 3.) Balancing the competing factors on this question, the
Court elects to exercise its discretion to reduce Plaintiff’s fee award request by a more
modest 12.5%.
For the foregoing reasons, the Court will award Plaintiff $1,132,327.40 in
attorney’s fees, which represents 87.5% of his total fee request. In the Court’s view,
this amount adequately captures Plaintiff’s outstanding trial results, 2 while also taking
into account the claims on which Plaintiff was unsuccessful, the referenced defects in
Plaintiff’s substantiation of the qualifications for certain timekeepers, and the presence
of some duplicative and block billed entries.
C.

Costs
Plaintiff requests an award of $36,399.19 in costs. (ECF No. 358 at 14.)

Unhelpfully, Plaintiff fails to break down the categories of costs which he seeks to

Plaintiff points out that this is the first jury verdict in favor of a plaintiff on a Monell claim
against Denver in nearly three decades and is one of the largest failure-to-train plaintiff verdicts
awarded in the District of Colorado. (ECF No. 383 at 2.) Indeed, in the Court’s view, Plaintiff’s
counsel achieved a remarkable result in this difficult, hard-fought, and years-long case.
2

9

recover in the Fee Motion and instead merely attaches an itemized list of all of his costs
as an exhibit to the Fee Motion. (ECF No. 358 at 14; ECF No. 358-6.) For support,
Plaintiff’s counsel represents in an affidavit that
[Plaintiff] is responsible for reasonable costs expended by
[Haddon, Morgan and Foreman, P.C. (“HMF”)] in this matter.
As the designated financial partner at HMF I review all costs
incurred in all cases monthly. I have considerable
professional experience evaluating what costs are necessary
for a particular case. The costs expended in this matter are
very reasonable for a litigation that was this hard fought and
went on this long. Other comparable matters reflect two or
three times the amount of costs for experts, depositions, and
travel.
(ECF No. 358-1 ¶ 69.)
Defendants argue that the Court should deny Plaintiff’s request for costs because
“[Plaintiff] offers no argument or authority in support of his request and makes no
showing that the costs were both reasonable and necessary.” (ECF No. 380 at 14.)
Defendants point out that although Plaintiff seeks reimbursement of $8,917.48 in
Westlaw charges, he failed to make any showing that the research was chargeable to
him (as opposed to firm overhead) or was related to the claims upon which he
prevailed. (Id. at 15.) Defendants further contend that Plaintiff has similarly failed to
demonstrate that he is entitled to recover his costs relating to parking fees, courier
delivery costs and docketing services, consulting fees, or fees for “Crime Scene
Forensics.” (Id.)
Notwithstanding Plaintiff’s counsel’s conclusory statement that the requested
costs are reasonable and are of the sort that Plaintiff is responsible, the Court finds that

10

Plaintiff has failed to adequately substantiate his costs. 3 For example, Plaintiff has not
shown that his Westlaw legal research charges are of the sort that are normally billed to
the client, how the legal research was necessary to the case, or was related to the
claims upon which he prevailed at trial. See Vialpando v. Johanns, 2008 WL 410369, at
*20 (D. Colo. 2008) (online legal research expenses were not reimbursable, as the
affidavits supporting the fee requests did not indicate that the bills reflect work
performed specifically for this case and did not describe the manner in which plaintiff’s
counsel accounted for such costs or that such charges are normally billed to the client);
Hayes v. Chaparral Energy, LLC, 2018 WL 10780611, at *14 (N.D. Okla. Mar. 21, 2018)
(reducing request for online research expenses where court was unable to ascertain
what portion of research was spent on non-compensable matters).
Similarly, although Plaintiff’s counsel contends that “[Plaintiff] is responsible for
reasonable costs expended by HMF in this matter,” it is not clear from the face of the
Fee Motion or counsel’s affidavit that certain costs are not simply part of the HMF’s
overhead costs, and thus are a normal charge for local attorneys of private clients in the
area. See Avalanche Equip., LLC v. Williams-Southern Co., LLC, 2015 WL 3635861, at
*3 (D. Colo. June 11, 2015) (finding costs of online PACER research and postage and
courier services are part of firm’s overhead costs and therefore are not reimbursable).
Accordingly, the Court will award Plaintiff 50%, or $18,199.60, of his requested
costs. In the Court’s view, this amount adequately incorporates Plaintiff’s deficiencies in
To the extent that Plaintiff contends that he is entitled to his costs “[i]n the absence of
any rebuttal opinion or evidence” (ECF No. 383 at 10), the Court disagrees. As the prevailing
party, it is Plaintiff’s burden—and not Defendants’— to “establish the amount of compensable
costs and expenses to which they are entitled” and “[p]revailing parties necessarily assume the
risks inherent in a failure to meet that burden.” Mares, 801 F.2d at 1208.
3

11

adequately supporting his entitlement to the full amount of costs sought.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Motion to Stay Attorney Fee Proceedings (ECF No. 369) is DENIED;

2.

Plaintiff’s Motion for Attorney’s Fees and Costs (ECF No. 358) is GRANTED IN
PART and DENIED IN PART; and

3.

Plaintiff is AWARDED $1,132,327.40 in attorney’s fees and $18,199.60 in costs.
Dated this 12th day of April, 2022.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

12