Romero v. AJF Enterprises, Inc. et al

Filing 109

ORDER by District Judge Kenneth J. Gonzales denying without prejudice Defendants' request for reasonable attorney's fees and costs; an amended brief on reasonable attorney's fees and costs consistent with the rulings in this Memorandum Opinion and Order must be filed within fourteen days of the entry of this Memorandum Opinion and Order; and Plaintiff may file a response brief fourteen days after the filing of Defendants' brief. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IRENE ROMERO,
Plaintiff,
vs.

Civ. No. 16-38 KG/WPL

AJF ENTERPRISES, INC., and
ARTHUR FAMIGLIETTA,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon its February 3, 2017, Order awarding
Defendants reasonable attorney’s fees and costs incurred in bringing Defendants’ Motion to
Dismiss with Prejudice Pursuant to Fed. R. Civ. P. 26 and 37, due to the Plaintiff’s Discovery
Abuse, and Violations of Orders from the Court Regarding Discovery and Request for Sanctions
(Motion to Dismiss) (Doc. 62). Order (Doc. 96) at 2. The Court further ordered briefing on the
issue of reasonable attorney’s fees and costs, which the parties have now completed. Id. See also
(Docs. 100, 102, and 103). The Court notes that the Order required Defendants’ counsel, Roger
Moore, to include with his brief “appropriate affidavits, and time sheets in support of the award
of reasonable attorney’s fees and costs.” (Doc. 96) at 2.
“To 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). Courts make the lodestar calculation by multiplying the attorney’s reasonable
hourly rate by the number of hours the attorney reasonably expended. Id.

The party requesting attorney’s fees bears the burden of showing that the requested rate is
consistent with the prevailing rate in the community. United Phosphorus, Ltd. v. Midland
Fumigant, Inc., 205 F.3d 1219, 1234 (10th Cir. 2000) (“party requesting the 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.’”
(citation omitted)). To carry that burden, the movant must show by “satisfactory evidence — in
addition to the attorney’s own affidavits — that the requested” hourly rates are the prevailing
market rates. Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984). For example, an affidavit from
an independent attorney who is familiar with local attorney rates and attests to the prevailing
market rate in the community for attorneys with similar qualifications as the movant can provide
that “satisfactory evidence.” Here, Mr. Moore provided only his affidavit to show the prevailing
market rate. That affidavit alone is not satisfactory evidence of the prevailing market rate.
The movant also has the burden of proving reasonable hours by submitting “meticulous,
contemporaneous time records” which “must 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….” Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983), overruled on other grounds by
Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 725 (1987). In
keeping with this requirement, D.N.M. LR-Cv 54.5(a) states that a movant for an award of
attorney’s fees “must submit a supporting brief and evidence (affidavits and time records).”
Emphasis added. Local Rule 54.5(b) also states that “[a]n attorney must keep concurrent time
records … where there is a potential for an award of attorney fees.” In this case, Mr. Moore
submitted an affidavit listing time entries and descriptions of billed activities, but did not submit
“contemporaneous time records.”

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For the foregoing reasons, the Court does not have sufficient evidence from which to
determine either the reasonableness of the requested hourly rate or the reasonableness of the
hours expended in bringing the Motion to Dismiss. Rather than simply denying Mr. Moore’s
request for reasonable attorney’s fees, the Court will deny Mr. Moore’s request without prejudice
to Mr. Moore filing an amended brief with sufficient affidavits and time records to support his
request for an award of reasonable attorney’s fees.
IT IS ORDERED that
1. Defendants’ request for reasonable attorney’s fees and costs is denied without
prejudice to Defendants filing an amended brief on reasonable attorney’s fees and costs
consistent with the rulings in this Memorandum Opinion and Order;
2. the above brief must be filed within fourteen days of the entry of this Memorandum
Opinion and Order; and
3. Plaintiff may file a response brief fourteen days after the filing of Defendants’ brief.

_______________________________
UNITED STATES DISTRICT JUDGE

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