Vialpando v. Chevron Mining, Inc.

Filing 37

ORDER Adopting as modified Initial 33 , Supplemental 35 , and Amended Supplemental Magistrate Judge's Proposed Findings & Recommendation as to Attorney's Fees and Costs to be Awarded 36 by Circuit Judge Bobby R Baldock. (jh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
________________________________________
FILBERT C. VIALPANDO,
Plaintiff,
v.
CHEVRON MINING INC.,

No. 1:18-cv-00251-BRB-JHR

Defendant.
________________________________________
ORDER ADOPTING AS MODIFIED INITIAL, SUPPLEMENTAL, AND
AMENDED SUPPLEMENTAL MAGISTRATE JUDGE’S PROPOSED
FINDINGS & RECOMMENDATION AS TO ATTORNEY’S FEES AND COSTS
TO BE AWARDED
_________________________________________
Plaintiff Filbert Vialpando filed suit against Defendant Chevron Mining Inc. in the
District of New Mexico, alleging Plaintiff was entitled to twenty percent additional
compensation and interest on Chevron’s untimely payments of the lump sum and monthly
benefits awarded under the Black Lung Benefits Act. After this Court entered final
judgment in favor of Plaintiff (Doc. 20) and denied Plaintiff’s Rule 59 motion (Doc. 25),
Plaintiff filed a motion for attorney’s fees and costs (Doc. 26). Defendant filed a response
in opposition to the fee petition (Doc. 27). Then, Plaintiff filed a reply, wherein he
requested additional fees incurred while defending the fee petition (Doc. 29). This Court
granted Plaintiff’s motion for attorney’s fees and costs and referred the matter to the United
States Magistrate to determine the amount of fees and costs to be awarded (Doc. 32).

The magistrate judge entered Magistrate Judge’s Proposed Findings and
Recommendation as to Amount of Attorney’s Fees and Costs to be Awarded (PRFD) (Doc.
33) in which the magistrate judge recommended that Plaintiff be awarded a total of
$13,620.88 in attorney’s fees and costs for the work performed on this matter. The
magistrate judge also recommended the fee be paid separately, allocating $9,958.38 to the
Appalachian Citizens’ Law Center and $3,762.50 to Friedman Boyd Hollander Goldberg
Urias & Ward, P.A. Thereafter, Plaintiff filed a response to the PRFD, requesting an
additional $962.50 in attorney’s fees for the time expended preparing a reply to
Defendant’s response (Doc. 34). The magistrate judge entered a Supplemental Proposed
Findings and Recommendation as to the Amount of Attorney’s Fees and Costs to be
Awarded (Supplemental PRFD), which recommended this Court award $962.50 for “fees
on fees,” bringing the total attorney’s fees recommended to be award to the Appalachian
Citizens’ Law Center to $10,820.88. The magistrate judge also entered an Amended
Supplemental Proposed Findings and Recommendation as to the Amount of Attorney’s
Fees and Costs to be Awarded (Amended Supplemental PRFD), to clarify the previous
$9,958.38 fees award was a scrivener’s error meant to be $9,858.38. 1

The magistrate judge recommended the total fee award to Plaintiff is $13,620.88, but this
Court construes this figure as a scrivener’s error because the total recommended awards
add up to $14,583.38. Specifically, the magistrate judge recommended this Court award
$9,858.38 to the Appalachian Citizens’ Law Center for fees requested in Doc. 26, plus
$962.50 to Appalachian Citizens’ Law Center for “fees on fees” requested in Doc. 29, plus
$3,762.50 to Friedman Boyd Hollander Goldberg Urias & Ward, P.A. for fees requested
in Doc. 26.
1

2

Now before this Court are three recommendations from the magistrate judge: the
PRFD, the Supplemental PRFD, and the Amended Supplemental PRFD. Having reviewed
the relevant materials, the Court finds the reasoning set forth in the PRFDs to be correct.
It is hereby ORDERED that the Court adopts the PRFD, the Supplemental PRFD, and the
Amended Supplemental PRFD, as modified herein at footnote 1. Accordingly, Plaintiff is
awarded a total of $14,583.38 in attorney’s fees and costs for the work performed on this
matter by his attorneys to be paid separately—$10,820.88 to the Appalachian Citizens’
Law Center and $3,762.50 to Friedman Boyd Hollander Goldberg Urias & Ward, P.A.
This order disposes of all outstanding motions.

Entered for the Court
this 10th day of July 2019

____________________________
Bobby R. Baldock
United States Circuit Judge
Sitting by Designation

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