Kenno v. Colo. Governor's Office of Info. Tech.

• Court: U.S. District Court — District of Colorado
• Writing for the Court: Michael E. Hegarty, United States Magistrate Judge.
• Decision Date: 12 October 2021
• Docket Number: Civil Action 19-cv-00165-MEH
• Parties: YOSEPH YADESSA KENNO, Plaintiff, v. COLORADO'S GOVERNOR'S OFFICE OF INFORMATION TECHNOLOGY, LYUBOV LOGACHEVA, in her individual capacity, BOB MCINTYRE, in his individual capacity, and DON WISDOM, in his individual and official capacities, Defendants.

YOSEPH YADESSA KENNO, Plaintiff, v. COLORADO'S GOVERNOR'S OFFICE OF INFORMATION TECHNOLOGY, LYUBOV LOGACHEVA, in her individual capacity, BOB MCINTYRE, in his individual capacity, and DON WISDOM, in his individual and official capacities, Defendants.

Civil Action No. 19-cv-00165-MEH

United States District Court, D. Colorado

October 12, 2021

ORDER

Michael E. Hegarty, United States Magistrate Judge.

Before the Court are Defendants' “Application for Attorneys' and Experts' Fees” (ECF 138) and “First Supplemental Application for Attorneys' and Experts' Fees” (ECF 162) (together “Motions”). Defendants seek their reasonable fees pursuant to this Court's order granting their motion for sanctions. ECF 134. The Motions are fully briefed, and the Court finds that oral argument would not materially assist in their adjudication. ECF 172, 173. For the reasons described Defendants' Motions are granted.

BACKGROUND

Because the facts are well known to the parties, the Court incorporates its Findings of Fact from its June 30, 2021 order. Instead of providing a full recitation of those facts here, the Court will emphasize those procedural facts necessary for the adjudication of the Motions.

On May 5 and 6, 2021, this Court held an evidentiary hearing regarding Defendants' motion for sanctions in which Defendants alleged that Plaintiff had fabricated evidence during discovery. ECF 119, 120. Both sides were able to submit exhibits, call witnesses, and cross-examine the other side's witnesses. Id. Following the hearing, the Court asked for two things from the parties. First, each side was to submit a brief on the issue of the state court proceeding's preclusive effect on this Court's findings. The parties submitted briefs on May 26, 2021. ECF 122, 123. Second, the Court requested each side prepare proposed findings of fact and conclusions of law. The parties submitted those on June 9, 2021. ECF 130, 131.

On June 30, 2021, in consideration of the parties' briefing and submitted evidence, the Court granted Defendants' motion for sanctions, finding by clear and convincing evidence that Plaintiff had fabricated certain pieces of evidence. ECF 134. As the sanction, the Court entered judgment in favor of Defendants and awarded them their reasonable fees and costs. Id. at 40. Shortly thereafter, Defendants filed their initial application for attorneys' and experts' fees. ECF 138. They “request an award of $284, 303.33 in reasonable attorneys' and experts' fees spent defending this lawsuit and uncovering Plaintiff's fraud.” Id. at 1. The next day, Plaintiff's counsel filed a motion to withdraw, which the Court later granted. ECF 138, 141. Proceeding pro se, Plaintiff filed a motion for reconsideration on July 28, 2021. ECF 150. Contemporaneously, he also filed a motion to stay briefing on the application for fees until the Court resolved the motion for reconsideration. ECF 151. The Court granted the stay of briefing. ECF 152. Due to some delay, the motion for reconsideration did not get fully briefed until September 8, 2021. ECF 164. In the meantime, Defendants filed their first supplemental application for fees. ECF 162. There, they request an additional “$16, 558.00 for hours that were reasonably and necessarily incurred between the time-period of June 30 to August 12, 2021.” Id. at 2, ¶ 4.

On September 14, 2021, the Court denied Plaintiff's motion for reconsideration. ECF 168. In so doing, the Court set a consolidated deadline for Plaintiff to respond to the Motions on or before September 30, 2021. Id. at 9. On September 30, 2021, Plaintiff filed a motion for an extension of time. ECF 169. The Court granted that request and extended the deadline to file a response to October 4, 2021. ECF 171. Plaintiff timely filed his response on October 4, 2021. ECF 172. Defendants filed their reply in support of the Motions on October 6, 2021. ECF 173.

LEGAL STANDARDS

Once a party becomes entitled to fees, the court must determine what reasonable fees shall be awarded. Beard v. Teska, 31 F.3d 942, 955 (10th Cir. 1994), abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598 (2001). “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). The lodestar amount “is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services.” Id. The party seeking the fee award bears the burden of demonstrating the award's reasonableness. Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). Additionally, “[t]he district court has a corresponding obligation to exclude hours not reasonably expended from the calculation.” Id. (quoting Hensley, 461 U.S. at 434) (internal quotation marks omitted).

ANALYSIS

Defendants request both attorneys' and experts' fees. Because the awarding of these fees requires distinct analyses, the Court addresses each separately

I. Attorneys' Fees As mentioned above, there are two aspects to calculating the lodestar figure: (1) a reasonable hourly rate, and (2) the number of hours reasonably expended.

A. Rate

The first consideration is for the Court to determine the reasonableness of the hourly rate. As an initial matter, when Plaintiff was represented, he stipulated to the requested fee rates. Mot. at 1. His response to the Motions does not alter that fact. Given the parties' agreement, the Court will only briefly inquire into the reasonableness of the rates. A reasonable hourly rate “is the prevailing market rate in the relevant community.” Malloy, 73 F.3d at 1018. “When determining the rate of a salaried-government attorney, the court should use ‘a billing rate equal to their counterparts in expertise in private practice.'” Rasmusssen v. Thorne, 2015 WL 4652781, at *7 (D. Colo. Aug. 6, 2015) (quoting Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983), overruled on other grounds by Pennsylvania v. Del Valley Citizens' Council for Clean Air, 483 U.S. 711, 725 (1987)).

Here, Defendants submit an hourly rate of $325.00 for Jack Patten, III, $300.00 for Leslie Schulze, and $225.00 for Lauren Davison. Each lawyer has provided a declaration regarding his or her experience, skill, and qualifications. ECF 138-3 (Decl. of Mr. Patten); ECF 138-4 (Decl. of Ms. Schulze); ECF 138-5 (Decl. of Ms. Davison). Based on these declarations and noting no opposition from Plaintiff, the Court finds the proposed hourly rates reasonable. E.g., Rasmussen, 2015 WL 4652781, at *7 (finding an hourly rate of $350.00 reasonable for an experienced government attorney); Albu v. Delta Mech. Inc., No. 13-cv-03087-PAB-KMT, 2015 WL 4483992, at *6 (D. Colo. June 30, 2015) (finding hourly rates for Denver-based attorneys reasonable at $250.00 or $300.00, depending on experience); Phillips v. LuckyGunner, LLC, NO. 14-cv-02822-RPM, 2015 WL 3799574, at *4 (D. Colo. June 17, 2015) (finding an hourly rate of $325.00 reasonable for experienced, Denver attorneys).

In addition to counsels' rates, Defendants have submitted hourly rates for Jennifer Reynard and Zoe Johnson, their litigation paralegals. For them, the hourly rates are $165.00 and $125.00, respectively. Mot. at 6-7. Like counsel, both Ms. Reynard and Ms. Johnson have submitted declarations concerning their experience, skill, and qualifications. ECF 138-6 (Decl. of Ms. Reynard); ECF 138-7 (Decl. of Ms. Johnson). Again, based on the information provided in the declarations and noting no opposition from Plaintiff, the Court finds the hourly rates reasonable. E.g., Stockmar v. Colo. Sch. of Traditional Chinese Med., Inc., No. 13-cv-02906-CMA-MJW, 2015 WL 4710840, at *5 (D. Colo. Aug. 7, 2015) (finding hourly rate of $100.00 reasonable); O Centro Espirita Beneficente Uniao Do Vegetal in U.S. v. Duke, 343 F.Supp.3d 1050, 1088 (D.N.M. 2018) (finding paralegal hourly rates of $150.00 and $125.00 reasonable); Beach v. Berryhill, No. 14-CV-857-BBC, 2017 WL 3275546, at *2 (W.D. Wis. Aug. 1, 2017) (finding $200.00 per hour reasonable for experienced paralegal).

B. Amount

With the reasonable hourly rates established, the Court now turns to the number of hours billed. “When requesting a fee award, the attorney must exercise the same ‘billing judgment' as would be proper in setting fees for a paying client.” Merrill v. Contract Freighters, Inc. 2021 WL 3742242, at *2 (D. Colo. Aug. 24, 2021) (citing Hensley, 461 U.S. at 434). “Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended.” Case v. Unified Sch. Dist. No. 223, 157 F.3d 1243, 1250 (10th Cir. 1998) (citing Ramos, 713 F.2d at 553). In addition to billing judgment, when considering the reasonableness of the hours billed, the Court may consider the following non-exhaustive factors: (1) the number of hours spent on each task; (2) the complexity of the case; (3) the number of reasonable strategies pursued; (4) the responses necessitated by the opposing side's maneuvering; and (5) potential duplication of services by multiple lawyers. Ramos, 713 F.2d at 554; Cross v. Qwest Disability Plan, No. 08-cv-00516-PAB-KMT, 2010 WL 5476790, at *4 (D. Colo. Dec. 30, 2010). “Hours that are ‘excessive, redundant, or otherwise unnecessary' should be excluded from a fee request.” Merrill, 2021 WL 3742242, at *2 (quoting Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1204 (10th Cir. 1986)). In their initial application for fees, Defendants contend that ...