Carton v. HDY LLC

Filing 26

MEMORANDUM OPINION AND ORDER OF DISMISSAL by District Judge M. Christina Armijo. (kg)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
ALYSSA CARTON,
Plaintiff,
v.

CIV 17-0038 KBM/JHR

COLE MT ALBUQUERQUE (SAN MATEO) NM LLC.,
Defendant.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on the motions for attorney fees filed in the
cases listed below.
Plaintiff filed 99 cases asserting that Defendants violated the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12181 et seq., and related regulations. The Court dismissed with
prejudice Plaintiff’s claims against Defendants as malicious pursuant to the statute governing
proceedings in forma pauperis, 28 U.S.C. § 1915(e)(2), and granted Defendants leave to file
counterclaims and motions for attorney fees. See Doc. 40, filed October 26, 2017 (“Dismissal
Order”). Defendants filed motions for attorney fees in the following cases:
1:17-cv-00038-KBM-JHR

Carton v. Cole MT Albuquerque (San Mateo) NM LLC

1:17-cv-00040-KK-SCY

Carton v. HDY LLC

1:17-cv-00063-JHR-SCY

Carton v. Cole AB Albuquerque NM, LLC

1:17-cv-00083-LF-JHR

Carton v. Southwest Capital Projects, LLC

1:17-cv-00085-GJF-KBM

Carton v. Zia Trust, Inc.

1:17-cv-00159-SMV-LF

Carton v. Kawips New Mexico, LLC

1:17-cv-00160-GJF-LF

Carton v. LNU, et al

1:17-cv-00228-LF-KK

Carton v. Up Your Alley, LLC

1:17-cv-00229-KK-KBM

Carton v. Wells Fargo Bank New Mexico N A

1:17-cv-00301-KK-JHR

Carton v. Eubank 3801, LLC

1:17-cv-00305-KK-SCY

Carton v. LNU

1:17-cv-00315-KK-KBM

Carton v. U.S. Bank National Association.

Defendants seek attorney fees from Plaintiff, Plaintiff’s attorney Sharon Pomeranz and the
litigation support firm assisting them, Litigation Management and Financial Services, LLC
(“LMFS”), pursuant to the ADA, and pursuant to Rule 11 and the Court’s inherent power for bad
faith filing of malicious claims. No responses opposing the motions have been filed. See
D.N.M.LR-Civ. 7.1(b) (“The failure of a party to file and serve a response in opposition to a
motion within the time prescribed for doing so constitutes consent to grant the motion”). The
Court notified LMFS of the motions seeking attorney fees from LMFS and ordered LMFS to
show cause why the Court should not impose sanctions against LMFS. See Doc. 34, filed
January 16, 2018. LMFS did not respond to the Court’s Order to show cause why the Court
should not impose sanctions against LMFS.
Imposing Attorney-Fee Sanction Pursuant to Rule 11
When it sanctions a party for abuse of process by an award of fees and cost, the Court is
governed by the following:
First, the amount of fees and costs awarded must be reasonable. Second, the
award must be the minimum amount reasonably necessary to deter the
undesirable behavior. And third, because the principal purpose of punitive
sanctions is deterrence, the offender’s ability to pay must be considered.
Depending on the circumstances, the court may consider other factors as well,
including the extent to which bad faith, if any, contributed to the abusive conduct.
Farmer v. Banco Popular of North America, 791 F.3d 1246, 1259 (10th Cir. 2015). The lodestar
method to determine the reasonableness of fee requests described in Robinson v. City of Edmond,
160 F.3d 1275, 1281 (10th Cir. 1988), is an acceptable approach under such circumstances.
Farmer v. Banco Popular of North America, 791 F.3d at 1259. “The lodestar calculation is the
product of the number of attorney hours ‘reasonably expended’ and a ‘reasonable hourly rate.’”

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Robinson v. City of Edmond, 160 F.3d at 1281 (“a claimant is entitled to the presumption that
this lodestar amount reflects a ‘reasonable’ fee”).
Reasonable Fees and Costs
The Court has reviewed the claimed attorney fees, the hours expended and the hourly
rates charged.1 Defendants claim a total of approximately $79,000.00 in fees and costs based on

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1:17-cv-00038-KBM-JHR Carton v. Cole MT Albuquerque (San Mateo) NM LLC
Defendant seeks $15,955.20 in fees and $2,397.00 costs based on the following rates: (i)
partner: $725/hour; (ii) associates: $445/hour and $425/hour; (iii) paralegal: $310/hour. 26.3
attorney hours charged. See Doc’s 30-32 (partially redacted narrative/work description).
1:17-cv-00040-KK-SCY
Carton v. HDY LLC
Defendant seeks a total of $2,015.63 in fees and taxes based on the following rates: (i)
attorney: $150.00/hour; and (ii) attorney: $175.00/hour. 11.4 attorney hours charged. See Doc.
23.
1:17-cv-00063-JHR-SCY Carton v. Cole AB Albuquerque NM, LLC
Defendant seeks $6,373.70 in fees based on the following rates: (i) partner: $725/hour;
(ii) associates: $445/hour and $425/hour; (iii) paralegal: $310/hour. 12.4 attorney hours charged.
See Doc. 21-22 (partially redacted narrative/work description).
1:17-cv-00083-LF-JHR
Carton v. Southwest Capital Projects, LLC
Defendant seeks $1,613.58 in fees and costs based on an attorney rate estimated to be
$190.00/hour. 7.9 attorney hours charged. See Doc. 22 (no narrative/work description, but
included attorney affidavit).
1:17-cv-00085-GJF-KBM Carton v. Zia Trust, Inc.
Defendant seeks $7,572.87 in fees and costs based on attorney rates of $295/hour to
$350/hour. 36.3 attorney hours charged. See Doc. 28.
1:17-cv-00159-SMV-LF
Carton v. Kawips New Mexico, LLC
Defendant seeks $4,269.37 in fees and costs based on the following rates: (i) attorney:
$300.00/hour; and (ii) associate attorney: $200.00/hour. Less than 19.0 attorney hours charged.
See Doc. 24 (no narrative/work description, but included attorney affidavit with summary of
work).
1:17-cv-00160-GJF-LF
Carton v. LNU, et al
Defendant seeks $3,509.88 in fees and costs based on the following rates: (i) attorney:
$275.00/hour; (ii) senior associate attorney: $200.00/hour; (iii) associate attorney: $175.00/hour;
and (iv) paralegal: $115.00/hour. Less than 12.4 attorney hours charged. See Doc. 22 (no
narrative/work description, but included attorney affidavit with summary of work).
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attorney rates of $150.00/hour to $725.00/hour.

The Court finds that hourly rates up to

$350.00/hour are reasonable. See Doc. 441, filed March 27, 2014, in Jaramillo v. Hickson, No.
09cv634 JCH/WDS (D.N.M.) (finding rates up to $350.00/hour depending on experience
reasonable in the Albuquerque market). The Court will reduce by 50 percent the fees claimed in
the three cases where the hourly rates charged for attorneys, associate attorneys and paralegals
were $624.00-$725.00, $310.00-$445.00 and $279.00-$310.00, respectively. See n.1, 17cv38,
17cv63 and 17cv229.
The number of hours charged by attorneys for each Defendant ranged from 7.9 hours to
36.3 hours, with the average being about 18.0 hours. The attorneys charged for time to review
complaints, the Proposed Findings and Recommended Disposition and Court Orders, to discuss
strategy and status of the case with their clients, to visit Defendants’ businesses, to do legal

1:17-cv-00228-LF-KK
Carton v. Up Your Alley, LLC
Defendant seeks $3,496.25 in fees and taxes based on a rate of $250.00/hour. 11.6
attorney hours charged. See Doc. 23.
1:17-cv-00229-KK-KBM Carton v. Wells Fargo Bank New Mexico N A
Defendant seeks $12,177.80 in fees based on the following rates: (i) attorney: $624/hour;
(ii) associates: $331/hour and $310/hour; and (iii) paralegal: $279/hour. 25.4 attorney hours
charged. See Doc’s 23-25 (partially redacted narrative/work description).
1:17-cv-00301-KK-JHR
Carton v. Eubank 3801, LLC
Defendant seeks $3,165.35 in fees and costs based on the following rates: (i) attorney:
$275.00/hour; (ii) senior associate attorney: $200.00/hour; (iii) associate attorney: $175.00/hour;
and (iv) paralegal: $115.00/hour. Less than 13.8 attorney hours charged. See Doc. 24 (no
narrative/work description, but included attorney affidavit with summary of work).
1:17-cv-00305-KK-SCY
Carton v. LNU
Defendant seeks $5,115.21 in fees and taxes based on rates of $325.00/hour and
$275.00/hour. 15.6 attorney hours charged. See Doc. 23 (no narrative/work description, but
included attorney affidavit).
1:17-cv-00315-KK-KBM Carton v. U.S. Bank National Association
Defendant seeks $11,152.10 in fees and expenses based on attorney rates of $275/hour to
$290/hour. 23.7 attorney hours charged. See Doc. 21.
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research, to prepare for and attend hearings, to draft answers and motions to dismiss, and for
correspondence and discussions with Plaintiff’s counsel regarding settlement. The Court has
reviewed the narratives/descriptions of the work they performed and finds the number of
attorney hours were reasonably expended.2
Minimum Amount Reasonably Necessary to Deter Undesirable Behavior
On October 17, 2017, the New Mexico Supreme Court issued an Order accepting Ms.
Pomeranz’ resignation and withdrawing her membership to practice law in lieu of discipline for
knowingly filing the frivolous lawsuits. See State Bar of New Mexico, 57 Bar Bulletin No. 5, at
9 (January 31, 2018). Ms. Pomeranz cannot apply for readmission or reinstatement to the State
Bar of New Mexico for three years and, prior to reinstatement; must reimburse the Client
Protection Fund, make restitution to any clients owed money, successfully complete all
continuing legal credit requirements applicable to active New Mexico attorneys during her
absence from the practice of law, and successfully pass the MPRE.

See id.

Given Ms.

Pomeranz’ resignation from the State Bar of New Mexico and the conditions imposed by the
New Mexico Supreme Court, this Court finds that a sanction in the form of an award of attorney
fees is not necessary to deter Ms. Pomeranz from such behavior in the future.
Ability to Pay

2

The narratives/work descriptions for three of the cases were redacted in parts. See 17cv38,
17cv63 and 17cv229. In three cases the attorneys provided an affidavit with a summary of the
work they performed. See 17cv159 (19.0 hours), 17cv160 (less than 12.4 hours) and 17cv301
(less than 13.8 hours). In two of the cases the attorneys provided an affidavit stating the work
they performed was necessary to defend their clients. See 17cv83 (7.9 hours) and 17cv305 (15.6
hours). The Court finds that the redacted narratives/work descriptions and the affidavits are
sufficient to show that the hours charged in these cases are reasonable, given that: (i) no
responses opposing the claimed hours have been filed; and (ii) the hours charged are similar to or
less than those charged in identical cases with narratives/work descriptions.
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Plaintiff’s Application to proceed in forma pauperis indicates that her monthly income is
$2,500.00 in disability payments and SSDI Veterans Funds, that her monthly expenses total
$2,295.00, and that she is confined to a wheelchair and is unable to work. See Doc. 2, filed
January 13, 2017. The Court finds that Plaintiff is unable to pay the reasonable attorney fees and
costs claimed by Defendants.
Litigation Management and Financial Services, LLC (“LMFS”)
United States Magistrate Judge Karen B. Molzen noted that “LMFS played such an
extensive role in these cases that it virtually ran the litigation from start to finish.” Proposed
Findings and Recommended Disposition at 22-26, n.3, Doc. 26, filed July 10, 2017 (“PFRD”).
The Court adopted the PFRD, dismissed the pending cases with prejudice and granted
Defendants leave to file motions for attorney fees. See Doc. 28, filed October 26, 2017. The
Court notified LMFS that some Defendants had filed motions seeking attorney fees from LMFS
and ordered LMFS to show cause why the Court should not impose sanctions against LMFS.
See Doc. 34, filed January 16, 2018. LMFS did not respond to the Court’s Order to show cause
why the Court should not impose sanctions against LMFS. Because LMFS was responsible for
the misconduct in these cases, the Court will sanction LMFS by awarding the reasonable
attorney fees to Defendants.
Motion to Appoint Guardian Ad Litem
Plaintiff has filed four motions to appoint a guardian ad litem for Plaintiff alleging
“Plaintiff has cognitive difficulty in understanding complex legal issues due to her lifetime
diagnosis of spina bifida and related hydrocephaly.” Doc. 33, filed February 8, 2018, in 17cv85;
Doc. 27, filed February 8, 2018 in 17cv159, Doc. 26, filed February 12, 2018, in 17cv228; Doc.
27, filed February 12, 2018 in 17cv305. Fed. R. Civ. P. 17(c)(2) provides: “The court must

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appoint a guardian ad litem—or issue another appropriate order—to protect a minor or
incompetent person who is unrepresented in an action.” “Rule 17(c)(2) does not require a
district court to make a sua sponte determination of competency whenever a question exists
regarding a plaintiff’s mental capacity; instead, the duty to appoint a guardian ad litem or ‘make
such order as it deems proper,’ Fed. R. Civ. P. 17(c)(2), is triggered by ‘actual documentation or
testimony’ of mental incompetency [by a mental health professional, a court of record, or a
relevant public agency].” Perri v. City of New York, 350 Fed.Appx. 489, 491 (2d Cir. 2009);
Powell v. Symons, 680 F.3d 301, 307 (3d Cir. 2012) (“A court is not required to conduct a sua
sponte determination whether an unrepresented litigant is incompetent unless there is some
verifiable evidence of incompetence”). The Court will deny the motions to appoint a guardian
ad litem because the motions do not present any verifiable evidence of incompetence, and
because Plaintiff is currently represented by counsel. See Doc. 33, filed December 11, 2017
(entry of appearance of Valdez and White Law Firm, LLC, as counsel for Plaintiff).
Dismissal of Cases
In its Memorandum Opinion and Order adopting Judge Molzen’s Proposed Findings of
Fact and Recommended Disposition, the Court dismissed with prejudice Plaintiff’s claims
against Defendants as malicious pursuant to the statute governing proceedings in forma
pauperis. See Doc. 28 at 6-7, filed October 26, 2017. Having dismissed all of Plaintiff’s claims
and having ruled on the remaining pending motions, the Court will dismiss the cases listed
below with prejudice.
IT IS ORDERED that:
(i)

the following motions for attorney fees are GRANTED in part:
(a)

Doc. 30, filed November 16, 2017, in 1:17-cv-00038-KBM-JHR Carton v. Cole
MT Albuquerque (San Mateo) NM LLC;

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(b)

(c)

Doc. 21, filed November 16, 2017, in 1:17-cv-00063-JHR-SCY Carton v. Cole
AB Albuquerque NM,
LLC;

(d)

Doc. 22, filed November 3, 2017, in 1:17-cv-00083-LF-JHR Carton v. Southwest
Capital Projects, LLC;

(e)

Doc. 28, filed November 16, 2017, in 1:17-cv-00085-GJF-KBM Carton v. Zia
Trust, Inc.;

(f)

Doc. 24, filed November 8, 2017, in 1:17-cv-00159-SMV-LF Carton v. Kawips
New Mexico, LLC;

(g)

Doc. 22, filed November 16, 2017, in 1:17-cv-00160-GJF-LF Carton v. LNU, et
al;

(h)

Doc. 23, filed November 15, 2017, in 1:17-cv-00228-LF-KK Carton v. Up Your
Alley, LLC;

(i)

Doc. 23, filed November 16, 2017, in 1:17-cv-00229-KK-KBM Carton v. Wells
Fargo Bank New Mexico
N A;

(j)

Doc. 24, filed November 16, 2017, in 1:17-cv-00301-KK-JHR Carton v. Eubank
3801, LLC;

(k)

Doc. 23, filed November 16, 2017, in 1:17-cv-00305-KK-SCY Carton v. LNU;

(l)

(ii)

Doc. 23, filed November 16, 2017, in 1:17-cv-00040-KK-SCY Carton v. HDY
LLC;

Doc. 21, filed November 16, 2017, in 1:17-cv-00315-KK-KBM Carton v. U.S.
Bank National Association.

the Court SANCTIONS Litigation Management and Financial Services, LLC and
AWARDS Defendants attorney fees and costs in the following amounts for the
following cases:
(a)

$10,394.60 for 1:17-cv-00038-KBM-JHR Carton v. Cole MT Albuquerque (San
Mateo) NM LLC;

(b)

$2,015.63 for 1:17-cv-00040-KK-SCY Carton v. HDY LLC;

(c)

$3,186.85 for 1:17-cv-00063-JHR-SCY Carton v. Cole AB Albuquerque NM,
LLC;

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(d)
(e)

$11,595.04 for 1:17-cv-00085-GJF-KBM Carton v. Zia Trust, Inc.;

(f)

$4,269.37 for 1:17-cv-00159-SMV-LF Carton v. Kawips New Mexico, LLC;

(g)

$3,186.35 for 1:17-cv-00160-GJF-LF Carton v. LNU, et al;

(h)

$3,496.25 for 1:17-cv-00228-LF-KK Carton v. Up Your Alley, LLC;

(i)

$6,088.90 for 1:17-cv-00229-KK-KBM Carton v. Wells Fargo Bank New Mexico
N A;

(j)

$3,509.88 for 1:17-cv-00301-KK-JHR Carton v. Eubank 3801, LLC;

(k)

$5,180.213 for 1:17-cv-00305-KK-SCY Carton v. LNU;

(l)

(iii)

$1,616.28 for 1:17-cv-00083-LF-JHR Carton v. Southwest Capital Projects, LLC;

$11,152.10 for 1:17-cv-00315-KK-KBM Carton v. U.S. Bank National
Association.

the following motions to appoint a guardian ad litem are DENIED:
(a)

Doc. 33, filed February 8, 2018, in 1:17-cv-00085-GJF-KBM Carton v. Zia Trust,
Inc.;

(b)

Doc. 27, filed February 8, 2018, in 1:17-cv-00159-SMV-LF Carton v. Kawips
New Mexico, LLC;

(c)

Doc. 26, filed February 12, 2018, in 1:17-cv-00228-LF-KK Carton v. Up Your
Alley, LLC;

(d)

Doc. 27, filed February 12, 2018, in 1:17-cv-00305-KK-SCY Carton v. LNU.

(iv) the following cases are DISMISSED with prejudice:
1:17-cv-00038-KBM-JHR

Carton v. Cole MT Albuquerque (San Mateo) NM LLC

1:17-cv-00040-KK-SCY

Carton v. HDY LLC

1:17-cv-00063-JHR-SCY

Carton v. Cole AB Albuquerque NM, LLC

1:17-cv-00083-LF-JHR

Carton v. Southwest Capital Projects, LLC

3

The motion for attorney fees requests an award of $5,419.61. The amount awarded, $5,180.21,
is the sum of the billed and unbilled fees listed in the affidavit attached to the motion. See Doc.
23-1 at 2 in 17cv305.
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1:17-cv-00085-GJF-KBM

Carton v. Zia Trust, Inc.

1:17-cv-00159-SMV-LF

Carton v. Kawips New Mexico, LLC

1:17-cv-00160-GJF-LF

Carton v. LNU, et al

1:17-cv-00228-LF-KK

Carton v. Up Your Alley, LLC

1:17-cv-00229-KK-KBM

Carton v. Wells Fargo Bank New Mexico N A

1:17-cv-00301-KK-JHR

Carton v. Eubank 3801, LLC

1:17-cv-00305-KK-SCY

Carton v. LNU

1:17-cv-00315-KK-KBM

Carton v. U.S. Bank National Association.

(v) the Clerk of the Court file this Order in each of the following cases:
1:17-cv-00038-KBM-JHR

Carton v. Cole MT Albuquerque (San Mateo) NM LLC

1:17-cv-00040-KK-SCY

Carton v. HDY LLC

1:17-cv-00063-JHR-SCY

Carton v. Cole AB Albuquerque NM, LLC

1:17-cv-00083-LF-JHR

Carton v. Southwest Capital Projects, LLC

1:17-cv-00085-GJF-KBM

Carton v. Zia Trust, Inc.

1:17-cv-00159-SMV-LF

Carton v. Kawips New Mexico, LLC

1:17-cv-00160-GJF-LF

Carton v. LNU, et al

1:17-cv-00228-LF-KK

Carton v. Up Your Alley, LLC

1:17-cv-00229-KK-KBM

Carton v. Wells Fargo Bank New Mexico N A

1:17-cv-00301-KK-JHR

Carton v. Eubank 3801, LLC

1:17-cv-00305-KK-SCY

Carton v. LNU

1:17-cv-00315-KK-KBM

Carton v. U.S. Bank National Association.

(vi) the Clerk of the Court shall mail a copy of this Order to:
Litigation Management and Financial Services
4110 Lewis Avenue
Phoenix, AZ 85008
Litigation Management and Financial Services
4710 E. Falcon Drive Suite 121
Mesa, AZ 85215

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Litigation Management and Financial Services
4840 E. Jasmine St. #105
Mesa, AZ 85205
and email a copy of this Order to:
[e-mail]
[e-mail].

__________________________________
M. CHRISTINA ARMIJO
UNITED STATES DISTRICT JUDGE

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