Sedillo v. Long View Sys. Co. (USA)

• Decision Date: 20 February 2020
• Docket Number: Civil Action No. 17-cv-03070-KLM
• Parties: DIEGO SEDILLO, Plaintiff, v. LONG VIEW SYSTEMS CO. (USA), Defendant.
• Court: U.S. District Court — District of Colorado

DIEGO SEDILLO, Plaintiff, v. LONG VIEW SYSTEMS CO. (USA), Defendant.

Civil Action No. 17-cv-03070-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 20, 2020

ORDER

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Plaintiff's Motion for Attorney Fees and Non-Taxable Expenses [#88] (the "Motion").¹ Defendant filed a Response [#90] in opposition to the Motion [#88], Plaintiff filed a Reply [#97], and Defendant filed a Surreply [#111]. See Minute Order [#109]. The Court has reviewed the briefs, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#88] is GRANTED in part and DENIED in part.

I. Background

There have been extensive filings by the parties, but the dispute is summarized as follows: Plaintiff initially brought seven claims against Defendant, his former employer, and sought $3.5 million in damages. The claims asserted discrimination, hostile workenvironment, and retaliatory termination. The Court dismissed one of Plaintiff's claims on summary judgment, and a jury found for Defendant on four more. Ultimately, Plaintiff succeeded on two hostile work environment claims and was awarded a total of $50,000 in emotional distress damages. In the present Motion [#88] and Reply [#97], Plaintiff requests $431,172.50.00 in attorneys' fees² and $14,251.64 in non-taxable expenses. Reply [#97] at 20.

II. Analysis

A. Non-Taxable Expenses

Plaintiff requests $14,251.64 for his expert economic witness's fee. Reply [#97] at 10. Under 42 U.S.C. § 1988, courts may award reasonable fees for expert witness testimony when the testimony was "reasonably necessary." Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir. 1983) (overruled on other grounds by Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711, 725 (1987)) (holding that "incidental and necessary expenses incurred in furnishing effective and competent representation" are part of a "reasonable attorney's fee"). To determine whether an expert witness's fee is recoverable as part of an award of attorneys's fees, the "reasonably necessary" standard is applied flexibly. Bruno v. W. Elec. Co., 618 F. Supp. 398, 406 (D. Colo. 1985). "An expert witness is 'reasonably necessary' to the case if, at the time he or she is retained, the testimony constitutes a vital and integral part of the preparation of the case." Id.

Defendant argues that Plaintiff should not be able to recover fees for his economicexpert, because the expert's testimony did not advance Plaintiff's successful harassment claims, and because the jury did not award Plaintiff any economic damages. Response [#90] at 8. In reply, Plaintiff argues that the expert's fee should be included in the fee award because the expert provided Plaintiff's "unemployment and salary information," evidence Plaintiff argues is "inseparable from the matter as a whole." Reply [#97] at 10-11.

By making arguments about whether the expert witness's testimony was reasonably necessary in light of the trial outcome, the parties miss the mark. The time at which it must be determined whether it was reasonable to employ the expert is "the time [at which] he or she is retained." Bruno, 618 F. Supp. at 406. Plaintiff retained his economic expert witness to assist with presenting his discrimination and hostile work environment claims at trial. Plaintiff brought these claims under Title VII and 42 U.S.C. § 1981, which authorize economic damages awards for prevailing plaintiffs. See Reply [#97] at 10. In her testimony, Plaintiff's expert witness opined that Plaintiff's economic damages approached $3.5 million and described a theory of economic recovery, Response [#90] at 8, evidence that Title VII plaintiffs routinely present through expert witness testimony. See, e.g., Gansert v. Colorado, 348 F. Supp. 2d 1215, 1228 (D. Colo. 2004); Thornton v. Kaplan, 961 F. Supp. 1433, 1436-37 (D. Colo. 1996); Deghand v. Wal-Mart Stores, Inc., 980 F. Supp. 1176, 1181 (D. Kan. 1997). Because Plaintiff's employment of his expert witness was reasonable prior to and during trial, the fate of Plaintiff's discrimination claims should not foreclose his recovery of those expenses. See Thomas v. Cummins Engine Co., Inc., No. 13-cv-2587-WJM-KMT, 2015 WL 7294573, at *4 (D. Colo. Nov. 19, 2015) (finding that discovery depositions that were never used at trial were "reasonably necessary" because at the time they were conducted, the plaintiff expected that the witnesses would testify attrial); Burt v. Manville Sales Corp., 706 F. Supp. 755, 758 (D. Colo. 1988) ("it is incongruous to expect counsel to reasonably prepare for litigation and then punish [him] if depositions are not actually admitted into evidence at trial").

Accordingly, the Court grants the Motion [#88] to the extent Plaintiff seeks non-taxable expenses.

B. Attorneys' Fees

Plaintiff requests $431,172.50 in attorneys' fees. Pl.'s Ex. 3 [#97-3] ¶ 7. Pursuant to D.C.COLO.LCivR 54.3(b), a party seeking attorney's fees must provide "a detailed description of the services rendered, the amount of time spent, the hourly rate, and the total amount claimed," and "a summary of the relevant qualifications and experience" for "each person for whom fees are claimed." To determine a reasonable fee, the Court begins by calculating the "lodestar amount." Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998); see also Homeward Bound, Inc. v. Hissom Mem'l Ctr., 963 F.2d 1352, 1355 (10th Cir. 1992) (recognizing that the lodestar amount is presumptively reasonable). 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). Nevertheless, a party seeking an award of attorneys' fees must establish the reasonableness of each dollar and each hour for which the party seeks an award. Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995). The Court is not required to reach a lodestar determination in every instance and may accept or reduce a fee request within its discretion. Hensley, 461 U.S. at 436-37.

1. Lodestar

Here, Plaintiff requests a lodestar amount of $418,720.00 based on 1,405.2 hours of work prior to May 23, 2019. Reply [#97] at 4. In addition, Plaintiff requests $12,452.50 in fees for 38.2 hours of work from May 23, 2019, to July 3, 2019, for time spent "researching and drafting the Reply, briefing the Defendant's objection to the Clerk's award of costs to Plaintiff, and addressing matters related to the Judgment." Pl.'s Ex. 3 [#97-3] ¶¶ 7-8. Defendant contends that some of Plaintiff's counsel's billing rates are too high, that the number of hours claimed by Plaintiff's counsel are excessive, and finally that Plaintiff is not entitled to the additional fees he requests in his Reply for time spent in connection with work performed after the present Motion [#88] was filed. Response [#90] at 11; Surreply [#111] at 2.

a. Rates

A party seeking an award of attorneys' fees must establish the reasonableness of each dollar for which the party seeks an award. Bangerter, 61 F.3d at 1510. A "reasonable rate" is defined as the prevailing market rate in the relevant community for an attorney of similar experience. Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002); Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). The party requesting fees bears "the burden of showing that the requested rates are in line with those prevailing in the community." Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998). "If the district court does not have adequate evidence of prevailing market rates for attorney fees, . . . [a] district judge may consider his or her 'own knowledge of prevailing market rates as well as other indicia of a reasonable market rate.'" Martinez v. Red's Towing, No. 14-cv-00458-KLM, 2015 WL 4504775, at *3 (D. Colo. July 23, 2015) (quotingReichers v. Del. Asset Mgmt., No. 13-cv-02171-CMA-CBS, 2013 WL 6096136, at *3 (D. Colo. Nov. 20, 2013)).

Plaintiff's counsel's billing rates ranged from $95 for a law clerk to $475 for lead counsel, which Plaintiff argues are reasonable and correspond with the rates of similar attorneys in the Denver area. Reply [#97] at 4-5.

Defendant asserts that some of Plaintiff's counsel's billing rates are excessive. See Response [#90] at 4, 5. Defendant argues that the hourly rate for Plaintiff's lead counsel, Ms. Meghan Martinez, should be decreased from her progressive rates of $425 in 2017, $450 in 2018, and $475 in 2019 to a rate of $380 for all three years. Id. at 4. Ms. Martinez is the founding partner of the Martinez Law Group (MLG), a specialty employment law firm in Denver. Pl.'s Ex. 4 [#97-5] ¶ 8. Plaintiff does not provide Ms. Martinez's years of experience, see Pl.'s Ex. 3 [#97-3]; Pl.'s Ex. 4 [#97-5], but Ms. Martinez was a partner at a different law firm in Denver prior to founding MLG and has previously been recognized as Best Lawyers' Denver Employment Lawyer - Management "Lawyer of the Year." Pl.'s Ex. 3 [#97-3] ¶ 4; Pl.'s Ex. 4 [#97-5] ¶ 8.

Defendant also argues that the hourly rates of certain associate attorneys should be decreased. Response [#90] at 5-6. Specifically, Defendant argues that Ms. Christina Bahr's ("Bahr") rate should be decreased from $285 to $250, that Ms. Dayna Dowdy's ("Dowdy") rate should be decreased from $285 to $250, that Mr. Glen Matthews's ("Matthews") rate should be decreased from $285 to $200, that Ms. Arielle Berens's ("Berens") rate should be decreased from $240 to $193, and finally that Ms. Sarah Nolan's ("Nolan") rate should be decreased from $240 to $193. Id.; Reply [#97] at 4; Surreply [#111] at 3-4. In 2019, the year this case was litigated, Ms. Bahr had fourteen years ofexperience, Ms. Dowdy had twelve years of experience, Mr. Matthews had three-to-four years of experience, and Ms. Berens had one-to-two years of experience. Pl.'s Ex. 4 [#97-5]....