Merrill v. Contract Freighters, Inc.

• Court: U.S. District Court — District of Colorado
• Writing for the Court: S. Kato Crews, U.S. Magistrate Judge
• Decision Date: 24 August 2021
• Docket Number: Civil Action 1:19-cv-02309-CMA-SKC
• Citation: Merrill v. Contract Freighters, Inc., Civil Action 1:19-cv-02309-CMA-SKC (D. Colo. Aug 24, 2021)
• Parties: FRANKLIN MERRILL, et al., Plaintiffs, v. CONTRACT FREIGHTERS, INC., a/k/a CFI, a Missouri corporation registered to conduct business in Colorado, Defendant.

FRANKLIN MERRILL, et al., Plaintiffs, v. CONTRACT FREIGHTERS, INC., a/k/a CFI, a Missouri corporation registered to conduct business in Colorado, Defendant.

Civil Action No. 1:19-cv-02309-CMA-SKC

United States District Court, D. Colorado

August 24, 2021

ORDER RE: MOTION FOR ATTORNEY FEES [#64]

S Kato Crews, U.S. Magistrate Judge

On October 28, 2019, Defendant filed its Motion to Dismiss which was referred to this Court by the District Judge [#24.]^[1] The next day, October 29, 2019, Defendant filed its Motion for Sanctions [#15], ^[2] which was also referred to this Court by the District Judge [#25.] Counsel for the parties made oral arguments bearing on these motions during the December 3, 2019 Scheduling Conference [#27 (minutes); #34 (transcript of the Scheduling Conference).] On June 2, 2020, this Court issued a Recommendation that the Motion to Dismiss be granted based on issue preclusion, and the case remain open for the limited purpose of ruling on the Motion for Sanctions. [#42.] District Judge Arguello adopted the Recommendation in an Order dated August 4, 2020, granting the Motion to Dismiss, dismissing the Complaint without prejudice, and ordering the Motion for Sanctions “shall remain pending.” [#50, pp.18-19.]

On September 14, 2020, this Court issued an Order granting the Motion for Sanctions and ordering John R. Crone (Plaintiffs' counsel) and his law firm pay Defendant's reasonable attorney's fees incurred in preparing and filing the Motion for Sanctions, the Motion to Dismiss, and the reply pleadings supporting these motions.^[3] [#62.] The Court further Ordered Defendant to file an affidavit of fees and costs in accord with D.C.COLO.LCivR 54.3.^[4] Defendant filed its Motion for Attorney Fees (including an affidavit in support of the attorney's fees award) seeking $26, 200.50 in fees, and $0 in costs. [#64.] Mr. Crone filed a Response in opposition [#67.] Having reviewed these pleadings, applicable case law, and entries from the docket, no hearing is necessary. For the reasons explained below, the Court orders a fee award of $24, 422.00.

A. LEGAL PRINCIPLES

1. The Lodestar Amount

Once a party has established their entitlement to fees, the district court must determine a reasonable fee. 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 a reasonable fee award, the court generally begins by calculating the “lodestar amount.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This amount includes the “number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433. The party seeking the fee award must demonstrate the award is reasonable. Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). “The 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).

When requesting a fee award, the attorney must exercise the same “billing judgment” as would be proper in setting fees for a paying client. 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 v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983), disapproved on other grounds by Penn. v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987)). Hours that are “excessive, redundant, or otherwise unnecessary” should be excluded from a fee request. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1204 (10th Cir. 1986) (citation omitted). “A court should also consider whether the amount of time spent on a particular task appears reasonable in light of the complexity of the case, the strategies pursued, and the responses necessitated by an opponent's maneuvering.” Villanueva v. Acct. Discovery Sys., LLC, 77 F.Supp.3d 1058, 1082 (D. Colo. 2015) (citing Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005)).

Additionally, tasks that are easily delegable to non-professionals or less experienced associates should not be billed at a higher hourly rate. N.M. Citizens for Clean Air & Water v. Espanola Mercantile Co., 72 F.3d 830, 835 (10th Cir. 1996); see also Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983) (“Nor do we approve the wasteful use of highly skilled and highly priced talent for matters easily delegable … Routine tasks, if performed by senior partners in large firms, should not be billed at their usual rates.”); Xtreme Coil Drilling Corp. v. Encana Oil & Gas (USA), Inc., 958 F.Supp.2d 1238, 1258-59 (D. Colo. 2013) (reducing partner fees by 10% after finding there was an “over-reliance on partners, rather than lower-cost associates, to prepare many aspects of the case” that was “not justified by the complexity of the case”).

B. ANALYSIS

1. Reasonable Time Expended

The Court first determines the number of hours reasonably expended by counsel. The burden of proof lies with the movant. Hensley, 461 U.S. at 433. The movant should submit “meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.” Case, 157 F.3d at 1250 (citing Ramos, 713 F.2d at 553). The Court looks to those hours necessary under the circumstances and approaches this reasonableness inquiry “‘much as a senior partner in a private law firm would review the reports of subordinate attorneys when billing clients . . . .'” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (quoting Ramos, 713 F.2d at 555).

Regarding the Motion for Sanctions, Ms. Muhleisen's supporting affidavit indicates a total of 26.1 hours, consisting of 16.7 hours on the motion, and 9.4 hours on the reply in support of the motion.^[5] Regarding the Motion to Dismiss, the hours total 41.5, with 31.7 hours spent on the motion, and 9.8 hours spent on Defendant's response to Plaintiffs' objections to the magistrate judge's Recommendation to grant the Motion to Dismiss.

After reviewing each specific billing entry for the work done by the attorneys, the Court finds the time expended to be reasonable.^[6] Wyles v. Aluminaid Int'l, A.G., No. 15-cv-00393-CMA-KMT, 2016 WL 300845, at *4 (D. Colo. Jan. 25, 2016) (“The Court reviewed the billing records and finds that the time devoted to discrete tasks does not appear unreasonable, nor are the hours disproportionate to the experience of the attorneys . . . that billed hours in this case[;]” “The hours billed by the attorneys were for tasks that could not be delegated to a non-professional, including legal research, communications with the client and with opposing counsel, and drafting and editing briefings.”) (footnote omitted). And, under the circumstances of this case, the Court does not find the fact that Ms. Muhleisen billed the most hours on each motion to indicate a lack of billing judgment. Hayes v. SkyWest Airlines, Inc., No. 15-CV-02015-REB-NYW, 2018 WL 10884337, at *3 (D. Colo. July 2, 2018) (“While Mr. Maxon billed significantly more hours than the other two attorneys combined, this circumstance does not demonstrate a lack of billing judgment in this particular instance.”) (footnote omitted).

With the exception of the billing entry for Ms. Muhleisen dated 09/30/2019, the billing records do not reflect hours that were “excessive, redundant, or otherwise unnecessary” to preparation of these pleadings. Mares, 801 F.2d at 1204. The Court finds the amount of time spent on the discreet tasks detailed in the billing records to be reasonable in light of the relative complexity presented by Plaintiffs' having filed dual lawsuits; Mr. Crone's ongoing insistence that the two lawsuits were different, or he had complied with Judge Mix's order, or that the present lawsuit was properly filed;^[7] and Defendant's strategies for addressing those circumstances, and the responses necessitated by Plaintiffs' maneuvering in their unsuccessful and ongoing efforts to distinguish their two legal actions. See Villanueva, 77 F.Supp.3d at 1082 (citing Praseuth, 406 F.3d at 1257).

2. Reasonable Rate

“[T]he second half of calculating an appropriate fee award is multiplying the hours by a reasonable rate.” Malloy, 73 F.3d at 1018. A reasonable rate is defined as “the prevailing market rate in the relevant community for an attorney of similar experience.” BIAX Corp. v. NVIDIA Corp., No. 09-cv-01257-PAB-MEH, 2013 WL 4051908, at *6 (D. Colo. Aug. 12, 2013). The movant bears the burden of establishing the rates are reasonable. Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). A reasonable rate generally depends on “what lawyers of comparable skill and experience practicing in the area [and community] in which the litigation occurs would charge for their time.” Ramos, 713 F.2d at 555.

In this case, three attorneys from the Denver office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., performed work on the Motion for Sanctions and Motion to Dismiss: (1) Ms. Muhleisen-the attorney primarily responsible for defending this case; has practiced law for about 10 years; focuses entirely on employment litigation; hourly rates of $420 (Of Counsel rate prior to 01/01/2020) and $435 (rate once promoted to Shareholder on 01/01/2020); (2) Mr. Smith-senior and former managing Shareholder; licensed in Colorado and Alabama;^[8] hourly rate of $460; and (3) Ms. Wallach-associate attorney practicing for five years and specializing in employment law; hourly rate of $335 later increased to $380.

In support of the reasonableness of these hourly rates Defendant...