Ross et al v. Balderas et al

Filing 268

ORDER by Circuit Judge Paul Kelly, Jr. granting in part and denying in part 253 Defendant Richards's Motion for Reconsideration of order denying attorney's fees. Defendant Richards awarded $5,415.63 plus interest, with half to be paid by Plaintiffs and half by their counsel, Arash Kashanian, personally. (Attachments: # 1 Attorney's Fees Schedule) (rt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ANDREW ROSS and SUSAN GERARD,
Plaintiffs,
No. 1:16-cv-01121 PJK/SMV

vs.
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, A. ARROYO,
E. MONTIJO, MICHELLE PORTILLO,
STEPHEN T. PACHECO, JANE
GAGNE, JOYCE BUSTOS, LYNN
PICKARD, PAMELA REYNOLDS,
ROBIN MARTINEZ, ROBERT
RICHARDS, BRENDA WALL,
AUDREY MONTOYA, and ALLSTATE
INSURANCE, INC.,
Defendants.
-------------------------PAMELA REYNOLDS and ROBERT
RICHARDS,
Counter-Claimants,

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vs.
ANDREW ROSS and SUSAN GERARD,
Counter-Defendants.

ORDER ON DEFENDANT ROBERT RICHARDS’S MOTION FOR
RECONSIDERATION OF ORDER DENYING ATTORNEY’S FEES

THIS MATTER comes on for consideration of Defendant Robert Richards’s
Motion for Reconsideration of Order Denying Attorney Fees filed August 26, 2017. Doc.
253. Upon consideration thereof, the Motion will be granted in part and denied in part.
In a prior order, the court held that Mr. Richards may be entitled to attorney’s fees
as a sanction based upon the conduct of Plaintiffs Andrew Ross and Susan Gerard and
their counsel, Arash Kashanian. Doc. 250 at 18–19. The court ultimately denied those
fees, however, because Mr. Richards was engaged in joint representation and did not
allocate the fees among the three parties he represented, nor did he provide the analysis
for a reasonable number of hours at a reasonable hourly rate, the starting point of the
analysis. Id.; Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Thus, the court was
unable to consider the next issue: the proper amount to award given the need for a
sanction vs. the competing policies against awarding fees to pro se lawyers in civil rights
litigation.
Mr. Richards now claims fees in the amount of $18,868.26 based upon a
“corrected bill” and one that excludes fees denied by the court in connection with
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opposing Plaintiffs’ application for a temporary restraining order. Doc. 253 at 4–5.
Unfortunately, several entries reappearing in the corrected bill predate the dismissal of
Defendant Brenda Wall (dismissed December 5, 2016 (Doc. 81)) and Defendant Pam
Reynolds (dismissed December 15, 2016 (Doc. 91)), and it is not apparent why these
entries would only benefit Mr. Richards. Given the court’s prior order, Mr. Richards was
surely on notice of the need to allocate or explain why the services solely benefitted him
and the court will not consider the amounts for those entries.
Another practice that bears mention is Mr. Richards’s billing .10 of an hour (6
minutes or $27.50) for “reviewing” practically every pleading filed in this case. While
Mr. Richards argues that a lawyer needs to stay apprised of a case and review pleadings,
any lawyer exercising billing judgment would hesitate before billing a client for
reviewing every pleading no matter its relevance, let alone ministerial nature (e.g., a
notice of completion of briefing or notice of erratum). In any event, Mr. Richards has not
adequately justified this practice. Entries of this nature will not be included in
considering an award, except where such review appears integral to another task such as
drafting a response or reply. See Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998) (courts should scrutinize the hours allotted to specific tasks in fee cases).
The court has reviewed the time records submitted with the motion for
reconsideration. 75 hours submitted by Mr. Richards and his paralegal appear directly
related to the claims asserted against Mr. Richards. Including an allowable PACER cost,

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the sum is $13,601.1 Balancing the competing policy considerations and taking into
account the conduct in the instant litigation, this court determines that $5,000 is an
appropriate and reasonable award as a sanction under its inherent power. The court
further finds that this amount satisfies the but-for test articulated in Goodyear Tire, which
requires that attorney’s fees awarded under the court’s inherent authority must be sums
that would not have been paid but for the misconduct found on the part of Plaintiffs
and/or their counsel. Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1187
(2017). Accordingly, the award is $5,000 plus New Mexico gross receipts tax or
$5,415.63. This amount also represents an effort to balance Mr. Richards’s opportunity
costs (as a lawyer) of defending himself against the counter argument that every pro se
litigant must invest time and resources in the endeavor. See Pickholtz v. Rainbow
Technologies, 284 F.3d 1365, 1377–78 (Fed. Cir. 2002). The amount will be borne by
the Plaintiffs and their lawyer, Mr. Kashanian.
The court has carefully considered Mr. Kashanian’s objections. He first argues
that Mr. Richards has waived his right to present new or modified billing statements by
submitting three deficient billing statements. According to Mr. Kashanian, had Mr.
Richards retained counsel, that counsel would have made a proper application for fees in
the first instance. Given that Mr. Richards successfully challenged a complete denial of
fees by the magistrate judge, in the interest of fairness, the court allowed him to resubmit,

1

Mr. Richards’s rate is $275 per hour and his paralegal’s rate is $60 per hour. Attached

are the entries on which the court based the total amount of fees.
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reducing fees where necessary. As for the argument that Mr. Richards should have
retained counsel, Mr. Richards incurred actual costs for a paralegal and opportunity costs
for his time and no doubt was cognizant of the inherent risk that he might not prevail in
obtaining fees.
Mr. Kashanian also contends that Mr. Richards has no valid fees and is mostly
billing his spectator status. The court cannot agree that Mr. Richards fees should be
reduced because he stayed in the lawsuit rather than accept a voluntary dismissal offered
by Plaintiffs. As the court noted previously, Mr. Richards answered and counterclaimed
and reasonably sought the comfort of a dismissal with prejudice (to prevent a recurrence
of this litigation). Doc. 98 at 3. As for spectator status, were that only true. Mr. Richards
was a party and at risk, and pursued in this and other fora by the Plaintiffs and their
lawyer. The court does agree with Mr. Kashanian that billing 6 minutes for review of
virtually every pleading is excessive and has reduced the bill in assessing what fees would
have been reasonable. Likewise, the fee applications could have been better, but the court
has reduced the fees substantially. As for the argument that Mr. Richards should not be
compensated for various substantive aspects of the case, the court generally disagrees.
Mr. Richards had arguable (if not correct) positions most of the time and defended
accordingly given the inherent uncertainties in litigation. In any event, the $5,000 amount
awarded using attorney’s fees as a proxy encompasses work that was necessary and
proper.

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Finally, Mr. Kashanian argues that Mr. Richards’s billing statements cannot be
trusted based upon his litigation conduct. The court has reviewed the billing statements
and has endeavored to arrive at a reasonable amount based upon the course of litigation as
reflected in the docket sheet as a starting point. Hensley, 461 U.S. at 433. The court will
not deny Mr. Richards an award on this basis.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that
Defendant Robert Richards’s Motion for Reconsideration of Order Denying Attorney
Fees filed August 26, 2017 (Doc. 253) is granted in part and denied in part. Defendant
Richards is awarded $5,415.63, plus interest, with half to be paid by Plaintiffs and half by
their counsel, Mr. Kashanian, personally.
DATED this 2nd day of September 2017, at Santa Fe, New Mexico.
_______________________
United States Circuit Judge
Sitting by Designation
Counsel:
Arash Kashanian, pro se.
Robert Richards, pro se.

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