Ross et al v. Balderas et al

Filing 194

ORDER FOR SUPPLEMENTAL BRIEFING by Magistrate Judge Stephan M. Vidmar. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREW ROSS and SUSAN GERARD,
Plaintiffs,
v.

No. 16-cv-1121 PJK/SMV

HECTOR BALDERAS, JR., ROBERT GARCIA,
SARAH MICHAEL SINGLETON,
FRANCIS J. MATHEW, RAYMOND Z. ORTIZ,
DAVID K. THOMPSON, JENNIFER ATTREP,
T. GLENN ELLINGTON, SYLVIA LAMAR,
DONITA OLYMPIA SENA,
DONNA BEVACQUA-YOUNG, PAT CASADOS,
FRANK SEDILLO, WILLIAM PACHECO,
ANTONIO GUTIERREZ, ANNA MONTOYA,
JUDAH BEN MONTANO, JOHN DOES 1–2,
MICHELLE PORTILLO, STEPHEN T. PACHECO,
JANE GAGNE, JOYCE BUSTOS, LYNN PICKARD,
PAMELA REYNOLDS, ROBIN MARTINEZ,
ROBERT RICHARDS, BRENDA WALL,
AUDREY MONTOYA, ALLSTATE INSURANCE, INC.,
A. ARROYO, and E. MONTIJO,
Defendants,
and
PAMELA REYNOLDS,
Counterclaimant,
v.
ANDREW ROSS and SUSAN GERARD,
Counter-defendants.1
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All the claims and counterclaims have been dismissed. See [Docs. 8, 69, 76, 81, 91, 112, 121, 137, 144, 168, 169,
174, 188]. All that remains are several motions for fees. See [Docs. 87, 126, 155, 158, 175, 177]. Plaintiff’s
counsel has moved to substitute Plaintiff/Counter-defendant Susan Gerard with her estate because she has passed
away, but the motion is opposed and remains pending. See [Docs. 187, 192].

ORDER FOR SUPPLEMENTAL BRIEFING
THIS MATTER is before me on several motions for attorney fees and sanctions,
[Docs. 87, 126, 155, 158, 175, 177], as referred by the Honorable Paul J. Kelly, Jr., United States
Circuit Judge, who is presiding in this case, [Doc. 191]. All the motions request monetary
awards pursuant to 43 U.S.C. § 1988, 28 U.S.C. § 1927, and the Court’s inherent authority.
Under § 1988, attorney fees can only be awarded to a defendant who prevails on civil
rights claims that are “frivolous, unreasonable, or without foundation.” Clajon Prod. Corp. v.
Petera, 70 F.3d 1566, 1581 (10th Cir. 1995) (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980)).
Whereas under § 1927, “[a]ny attorney or other person admitted to conduct cases in any court of
the United States or any Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys' fees reasonably incurred because of such conduct.”
Most of the movants had hoped the Court would resolve first whether fees were
warranted at all. Then, if the movants were successful, they had hoped to litigate the amount of
the fees at that time. Although such a two-step process may be permissible, the Court declines to
review the evidence piecemeal. The Court will require each movant to present evidence of the
amount and reasonableness of the fees requested, and to specify the amount of fees requested
under each individual source of authority, e.g., § 1988, § 1927.2
In general, “[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
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Defendant Garcia’s original Application for Award of Attorney’s Fees [Doc. 126] includes evidence of the amount
and reasonableness of the fees he requests, as well as a specific amount requested under each source of authority.
Accordingly, Defendant Garcia may elect to rely on his original Application, or he may file a supplemental brief.
The choice is his.

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that this lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d
1275, 1281 (10th Cir. 1998). The lodestar is “‘the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate,’ which produces a presumptively reasonable fee
that may in rare circumstances be adjusted to account for the presence of special circumstances.”
Anchondo v. Anderson, Crenshaw & Assoc., LLC, 616 F.3d 1098, 1102 (10th Cir. 2010)
(quoting Hensley v. Ekerhart, 461 U.S. 424, 433 (1983), and Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 543–44 (2010)). “The party requesting attorney fees bears the burden of proving”
the two components used to calculate the fee award: (i) “the amount of hours spent on the case;”
and (ii) “the appropriate hourly rates.” United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205
F.3d 1219, 1233 (10th Cir. 2000). Once the Court makes these two determinations, the fee
“claimant is entitled to the presumption that this lodestar amount reflects a ‘reasonable’ fee.”
Robinson, 160 F.3d at 1281; see Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). The
party entitled to fees must provide the district court with sufficient information to evaluate
prevailing market rates. See Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006)).
Moreover, the party must also demonstrate that the rates are similar to rates for similar
services by “lawyers of reasonably comparable skill, experience, and reputation” in the relevant
community and for similar work. Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); see Case v.
Unified Sch. Dist. No. 233, 157 F.3d 1243, 1255–56 (10th Cir. 1998). Only if the district court
does not have adequate evidence of prevailing market rates for attorney’s fees, may it, “in its
discretion, use other relevant factors, including its own knowledge, to establish the rate.” Case,
157 F.3d at 1257; see also United Phosphorus, 205 F.3d at 1234 (A court abuses its discretion
when its “decision makes no reference to the evidence presented by either party on prevailing

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market rate[,]” and its rate decision is based solely on the court’s “own familiarity with the
relevant rates in this community.”).
IT IS THEREFORE ORDERED that supplemental briefs be filed by the movants no
later than May 17, 2017. See [Docs. 87, 126, 155, 158, 175, 177]. If Plaintiffs wish to respond,
each such response is due within 14 days of the filing of each respective supplemental brief. The
scope of any such response is limited to the evidence and arguments presented in the respective
supplemental brief.
IT IS SO ORDERED.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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