MacIntyre v. JP Morgan Chase Bank, N.A.

Filing 58

ORDER Granting in Part Motion for Attorneys' Fees. ORDERED that Ms. MacIntyre's motion to file a surresponse 57 is GRANTED, and Chase's Motion for Attorney Fees 41 is GRANTED IN PART. Chase is awarded attorneys' fees in the reduced amount of $25,947.08. The Amended Judgment 36 shall be again amended to reflect the award of attorneys' fees, by Judge Daniel D. Domenico on 10/10/19.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Daniel D. Domenico
Civil Action No. 1:19-cv-00172-DDD-NYW
HOLLY MACINTYRE,
Plaintiff,
v.
JP MORGAN CHASE BANK, N.A.,
Defendant.
ORDER GRANTING IN PART
MOTION FOR ATTORNEYS’ FEES
This matter is before the Court on Defendant’s Motion for Attorney Fees (Doc. 41), filed August 8, 2019. On September 5, 2019, Plaintiff
filed a response in opposition to the motion, and on September 26, 2019,
Defendant filed its reply. (Docs. 50, 56.)1 For the reasons stated below,
the motion is GRANTED IN PART.

On October 8, 2019, Plaintiff filed a “Surreply” styled as a “Motion
to file a Surresponse to [Defendant’s] Reply.” (Doc. 57.) In it, she opposes
Defendant’s reply, which, because of the reply’s case citations and argument against the position she took in her response, she sees as “a veritable new motion” by Defendant. (Id. at 7.) The Court does not view
Chase’s reply as a new motion. True, parties should not raise “entirely
new but foreseeable points relevant to a motion [ ] in a reply,” Tetra
Techs., Inc. v. Harter, 823 F. Supp. 1116, 1120 (S.D.N.Y. 1993) (cited by
Plaintiff), but Defendant was obligated to address certain legal principles, including two entirely new theories, raised by Plaintiff. Insofar as
Document 57 is itself a motion, it is GRANTED to the extent that the
Court has considered the arguments therein. No further briefing on the
motion for attorneys’ fees is necessary.
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BACKGROUND
Plaintiff Holly MacIntyre was the owner of real residential property in Jefferson County, Colorado. Defendant JP Morgan Chase Bank,
N.A. (“Chase”)—claiming to be the holder of a promissory note secured
by the property—sought a judgment permitting it to conduct a foreclosure sale of the property. In this case, Ms. MacIntyre alleged that during
the trial in state court, Chase produced a forged note bearing signatures
not made by the parties to which they were attributed—so as to fraudulently cause the sale. Chase disputed the allegations, and, after weighing the evidence, the state court concluded that Chase was the holder of
the note and issued a judgment of judicial foreclosure against Ms. MacIntyre. The Colorado Court of Appeals affirmed. Eventually, the Colorado Supreme Court dismissed her appeal as moot on Ms. MacIntyre’s
own motion after the property was sold.
On January 18, 2019, proceeding pro se, Ms. MacIntyre filed this
case alleging that “Chase’s fraud in the foreclosure proceeding has
caused [her] extraordinary financial damage.” Chase filed a motion to
dismiss for lack of subject matter jurisdiction and for failure to state a
claim. Ms. MacIntyre filed a motion to vacate the state court judgment
in the Court of Appeals, which ordered: “Appellant’s motion to vacate
the judgment as moot is denied. Case was mandated on January 4, 2017.
No further motion to vacate will be considered.” (Doc. 22-1, at 2.) On
June 28, this Court granted Chase’s motion to dismiss this case for lack
of subject matter jurisdiction under the Rooker-Feldman doctrine, which
prevents federal court review of state court proceedings. (Docs. 30, 35.).
On August 8, Chase filed this motion for attorneys’ fees under Colo. Rev.
Stat. § 13-17-201 (“Section 201”).

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ATTORNEYS’ FEES
Plaintiff denies that Section 201 is applicable to this action. She
argues that 28 U.S.C. § 1919 (“Section 1919”), which permits courts to
order payment of just costs (but not attorneys’ fees) after a jurisdictional
dismissal, instead governs. She also argues that Colo. Rev. Stat. § 1317-102(6) (“Section 102”), limiting when fees can be collected from a pro
se party, prohibits Chase from collecting attorneys’ fees from her. She
has not contested the reasonableness of the fees Chase requests.
The Court is somewhat sympathetic to Ms. MacIntyre, though her
current predicament is of her own making. In a prior proceeding in state
court, Chase foreclosed upon her house. Since then, Ms. MacIntyre has
traversed through different cases and courts seeking to undo that outcome. Such was her purpose here. But despite Chase’s warnings to her,
through conferral and motion practice, of the inefficacy of her claims in
this Court, she continued. As Chase maintained, the Court had no authority, under these circumstances, to undo the state proceeding or its
outcome. And because, as explained below, Ms. MacIntyre’s legal contentions in response to the present motion are meritless, this case, rather than help her cause, will cause her additional financial hardship.
A. Inapplicability of Section 1919
Ms. MacIntyre calls Chase’s invocation of Section 201 a “distraction.” She believes Section 1919 controls and preempts Section 201. She
even cites Colorado ethical rules she finds implicated by Chase’s failure
to disclose Section 1919. See Colo. R. Prof. C. 3.3(a)(2) (“A lawyer shall
not knowingly . . . fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel.”). She notes
to the Court that there “is not a single reported case in the history of
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American jurisprudence in which attorney’s fees have been awarded under § 1919.” Castillo Grand, LLC v. Sheraton Operating Corp., 719 F.3d
120, 124 (2d Cir. 2013). She believes, therefore, that she cannot be liable
for attorneys’ fees here.
Ms. MacIntyre is mistaken. Section 1919 has nothing to do with
the instant motion and does not preempt Section 201. Section 1919
states: “Whenever any action or suit is dismissed in any district court
. . . for want of jurisdiction, such court may order the payment of just
costs.” A plain reading of the statute, as Chase notes, reveals it gives the
Court authority to order payment of costs. It does not prohibit the Court
from ordering payment of reasonable attorneys’ fees. Attorneys’ fees are
not mentioned in Section 1919, so the Court is not surprised that no
other court has used it to award them. Attorneys’ fees and costs are discrete forms of litigation expense, separately awardable under certain
circumstances. See U.S. ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038,
1056–57 (10th Cir. 2004) (discussing separate applicability of fee- and
cost-shifting statutes permitting awards of litigation expenses in suits
where, like here, federal courts are not authorized to decide the merits).
Section 1919 is about costs; the motion in question here is about attorneys’ fees.
B. Applicability of Section 201
In this case, Ms. MacIntyre brought a single tort claim under Colorado law. She alleged that “Chase’s fraud in the foreclosure proceeding
has caused [her] extraordinary financial damage by the irreversible loss
of her primary residence, combined with her subsequent displacement
due to eviction.” (Doc. 1 ¶ 36.) Chase moves for mandatory attorneys’
fees under Section 201, which states in relevant part:

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In all actions brought as a result of a death or an injury to
person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the
defendant prior to trial under rule 12(b) of the Colorado
rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action.
The Court dismissed this action under Fed. R. Civ. P. 12(b), upon which
Colorado Rule 12(b) is modeled. See Warne v. Hall, 373 P.3d 588, 593
(Colo. 2016) (“It cannot seriously be disputed that the Colorado Rules of
Civil Procedure were modeled almost entirely after the corresponding
federal rules.”). Ms. MacIntyre argues that Section 201 doesn’t apply to
this case, calling significant Chase’s lack of citation to “a single (1) published case from the Tenth Circuit that treats that particular statute as
substantive law in a (2) diversity case that was dismissed for (3) lack of
subject matter jurisdiction.” (Doc. 50, at 7.)
But there are cases, published and unpublished, in the Tenth Circuit and this Court, satisfying each of those categories. See Jones v. Denver Post Corp., 203 F.3d 748, 757 (10th Cir. 2000) (“In the Tenth Circuit,
attorney fee statutes [including Section 201] are considered substantive
for purposes of a diversity action.”); Infant Swimming Research, Inc. v.
Faegre & Benson, LLP, 335 F. App’x 707, 715 (10th Cir. 2009) (holding
Section 201 applicable to a dismissal for lack of subject matter jurisdiction under federal rules); Checkley v. Allied Prop. & Cas. Ins. Co., 635 F.
App’x 553, 559 (10th Cir. 2016) (same); Shrader v. Beann, 503 F. App’x
650, 654–55 (10th Cir. 2012) (“Under Colorado law, a Colorado court
must award a defendant in a tort action who prevails on a Rule 12(b)
motion reasonable attorney fees in defending that action. The statute
also applies to a dismissal under Fed. R. Civ. P. 12(b) of a tort claim
brought under Colorado law.” (citations omitted)); Dorsey on behalf of
J.D. v. Pueblo Sch. Dist. 60, 215 F. Supp. 3d 1092, 1093 (D. Colo. 2016)
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(“This provision also applies to Colorado tort claims pending in federal
court that are dismissed pursuant to Federal Rule of Civil Procedure
12(b).”). It is beyond legitimate dispute that binding precedent holds
that Section 201 is substantive law in diversity cases and is applicable
to a dismissal for lack of subject matter jurisdiction under Fed. R. Civ.
P. 12(b)(1).
C. Inapplicability of Section 102
Ms. MacIntyre further suggests that, because she is pro se, attorneys’ fees may not be assessed against her unless the Court finds that
she knew or reasonably should have known that her action or defense,
or any part thereof, was substantially frivolous, substantially groundless, or substantially vexatious. See Colo. Rev. Stat. § 13-17-102(6). Unlike Section 201, which is substantive, this district uniformly considers
Section 102 to be “merely a procedural statute regarding sanctions based
on conduct in the litigation and not substantive law under Erie.”
Dowling v. Gen. Motors LLC, No. 15-CV-00445-KLM, 2019 WL 4415650,
at *3 (D. Colo. Sept. 16, 2019) (collecting cases); Hach Co. v. In-Situ, Inc.,
No. 13-CV-02201-CBS, 2016 WL 9725765, at *11 (D. Colo. Nov. 22, 2016)
(“Colorado courts provide clarity, characterizing § 13-17-102 as a sanction, rather than a substantive right[,]” and preempted by Fed. R. Civ.
P. 11) (citation omitted); see also Scottsdale Ins. Co. v. Tolliver, 636 F.3d
1273, 1279 (10th Cir. 2011) (“Substantive fees are those which are ‘tied
to the outcome of the litigation,’ whereas procedural fees are generally
based on a litigant’s ‘bad faith conduct in litigation.’” (quoting Chambers
v. NASCO, Inc., 501 U.S. 32, 52–53 (1991)).
Section 102 is therefore inapplicable in federal court, and there is
no suggestion that it limits Section 201’s operation against pro se parties. Indeed, even if Section 102 were applicable, Colorado courts have
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held that the more specific, later-enacted requirements of Section 201
supersede the earlier, more general provisions of Section 102. See, e.g.,
Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994), Hewitt v.
Rice, 119 P.3d 541, 546 (Colo. App. 2004), aff’d, 154 P.3d 408 (Colo.
2007) (both “that § 13–17–201 applies and controls over § 13–17–
102(7)”). See also Bath v. Am. Express Co., No. 19-CV-00606-RM-NYW,
2019 WL 2607020, at *9 (D. Colo. May 31, 2019) (discussing propriety of
attorneys’ fees under Section 201 against a pro se plaintiff but not yet
addressing issue because no affidavit supporting fee request had been
filed), report and recommendation adopted sub nom. Bath v. Am. Express Nat’l Bank, No. 1:19-CV-00606-RM-NYW, 2019 WL 2602505 (D.
Colo. June 25, 2019).
This reasoning comports with the purposes behind these statutes,
only one of which addresses circumstances raised by the present motion.
Section 201 “was enacted to discourage unnecessary litigation of tort
claims,” Smith v. Town of Snowmass Vill., 919 P.2d 868 (Colo. App.
1996), but Section 102 is in place to punish “conduct that is arbitrary,
abusive, stubbornly litigious, or disrespectful of the truth.” City of Black
Hawk v. Ficke, 215 P.3d 1129, 1132 (Colo. App. 2008). Chase does not
seek fees to punish such conduct; it seeks fees for obtaining dismissal of
an unnecessary tort claim, which is governed by Section 201.
D. Reasonable Attorneys’ Fees
The only remaining task is to determine the reasonable attorneys’
fees to which Chase is entitled. Chase submitted an affidavit by Jeffrey
M. Lippa who, together with Ronald J. Tomassi, Jr. and Lindsay Aherne,
billed fees on this case. (Doc. 41-3.) Attached to the affidavit is a billing
report containing detailed descriptions of the work these attorneys performed. Chase seeks $34,596.10, reflecting 130.2 hours at rates ranging
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from $174 to $341 per hour. Ms. MacIntyre, who only argued the issues
set forth above, does not rebut the amount requested. The Court would
normally interpret a litigant’s silence on this issue as a tacit admission
of the reasonableness of the fees sought. See, e.g., Torres v. Am. Family
Mut. Ins. Co., 606 F. Supp. 2d 1286, 1292 (D. Colo. 2009). But because
Ms. MacIntyre is unrepresented, a closer look is warranted.
“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.” Hensley v. Eckerhart,
461 U.S. 424, 433 (1983); see also Shrader, 503 F. App’x at 654 (approving of the district court’s use of this methodology in a Section 201 case).
In other words, “[t]o determine the reasonableness of a fee request, a
court must begin by calculating the so-called lodestar amount of a fee,
and 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) (internal quotations and citations omitted). “The
lodestar calculation is the product of the number of attorney hours reasonably expended and a reasonable hourly rate.” Id. (internal quotation
omitted).
1. Reasonable Hourly Rate
A court must look to what the evidence shows the market commands for analogous litigation. Case v. Unified School District No. 233,
157 F.3d 1243, 1255 (10th Cir. 1998). The local market rate is usually
the state or city in which counsel practices. Ellis v. Univ. of Kan. Med.
Ctr., 163 F.3d 1186, 1203 (10th Cir. 1999) (looking at “the prevailing
market rate in the relevant community”); Case, 157 F.3d at 1256 (looking at fees charged by lawyers in the area in which the litigation occurs).
A “district judge may turn to her own knowledge of prevailing market
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rates as well as other indicia of a reasonable market rate.”
Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1493
(10th Cir. 1994). The court is also entitled to consider the quality of counsel’s performance in setting the fee. Ellis, 163 F.3d at 1203.
Work was performed on this case by three attorneys at Greenberg
Traurig, LLP. Mr. Lippa has been licensed to practice law since 2005, is
a shareholder at the firm, and billed at $366 per hour. Mr. Tomassi, Jr.
has been licensed since 2006, is also a shareholder, and billed at $341
per hour. Ms. Aherne has been licensed since 2015, is an associate, and
billed from $174 to $260 per hour. Based on the Court’s experience in
private and public practice in the Denver area, these rates are reasonable, considering these lawyers’ experience, the subject matter of the
case, and quality of work they performed.
2. Reasonable Number of Hours
In determining the reasonableness of the hours expended, a court
considers several factors, including: (1) whether the amount of time
spent on a particular task appears reasonable in light of the complexity
of the case, the strategies pursued, and the responses necessitated by an
opponent’s maneuvering; (2) whether the amount of time spent is reasonable in relation to counsel’s experience; and (3) whether the billing
entries are sufficiently detailed, showing how much time was allotted to
specific tasks. See Ramos v. Lamm, 713 F.2d 546, 553–54 (10th Cir.
1983). If the court has adequate time records before it, “it must then
ensure that the winning attorneys have exercised ‘billing judgment.’”
Case, 157 F.3d at 1250. In other words, the district court should exclude
from this initial fee calculation hours that were not “reasonably expended.” Hensley, 461 U.S. at 434 (internal quotation omitted).

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Chase seeks attorneys’ fees for 130.2 hours of work from January
18 to June 30, 2019. During this time, the events of this case were limited. On January 18, Ms. MacIntyre filed the Complaint. On February
28, Chase moved to dismiss and, subsequently, replied. (Docs. 12, 24.)
On March 19, the parties had a ten-minute status conference with Magistrate Judge Wang. (Doc. 18.) On April 30, Chase filed a response to Ms.
MacIntyre’s motion to strike its motion to dismiss. (Doc. 25.) Chase was
thus responsible for three substantive filings and one short conference.
By the Court’s rough calculation, upon review of the billing records,
Chase’s attorneys’ time was generally divided between research and
drafting substantive filings (over ninety-five hours), internal strategy
and preparation sessions (about fifteen hours), conferring with Ms. MacIntyre and Chase (under ten hours), and other tasks.
The Court finds some of this time unreasonably spent. The
ninety-five hours of substantive work is somewhat excessive, given the
general lack of complexity and brevity of the case. The attorneys also
spent at least one hour unnecessarily checking the docket for the absence of entries, two-and-a-half hours on three simple notices of appearance, and two hours on post-judgment review unneeded to secure the
same. They also spent nearly five hours on an unconsummated settlement. All things considered, instead of serving as a “green-eyeshade accountant,” Fox v. Vice, 563 U.S. 826, 838 (2011), further scouring the
individual billing entries for evidence of waste or fat, the Court finds
that a general reduction of 25% of the requested hours is appropriate.
Because Chase has not supplied separate totals reflecting the number
of hours worked by each attorney, the Court applies this reduction to the
final dollar amount requested.

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CONCLUSION
Based on the foregoing, it is ORDERED that Ms. MacIntyre’s
motion to file a surresponse (Doc. 57) is GRANTED, and Chase’s Motion
for Attorney Fees (Doc. 41) is GRANTED IN PART. Chase is awarded
attorneys’ fees in the reduced amount of $25,947.08. It is further
ORDERED that the Amended Judgment (Doc. 36) shall be again
amended to reflect the award of attorneys’ fees.

DATED: October 10, 2019.

BY THE COURT:

_______________________
Daniel D. Domenico
United States District Judge

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