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Hertz v. Luzenac America

February 8, 2006


The opinion of the court was delivered by: Judge Edward W. Nottingham


This is an employment discrimination case. Plaintiff Sanford Lee Hertz obtained a jury verdict against Defendant Luzenac America, Inc., his former employer, for retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A. § 2000e et seq. (2005), as amended by the Civil Rights Act of 1991, 42 U.S.C.A. § 1981a (2005). This matter is before the court on "Plaintiff's Motion to Amend Order and Memorandum of Decision Regarding Attorneys' Fees and Expenses," filed April 6, 2005. Jurisdiction is based on 28 U.S.C.A. §§ 1331, 1343, 1367 (2005), and 42 U.S.C.A. §§ 2000e--5(f)(3) (2005).


Plaintiff, a Jewish male, alleged that Defendant discriminated and retaliated against him based on his religion in violation of Title VII. On March 3, 1999, Plaintiff filed a complaint in this court, setting forth six claims for relief: (1) wrongful discharge based upon religious discrimination, (2) hostile work environment based upon religion, (3) retaliation, (4) defamation per se, (5) intentional interference with prospective business advantage, and (6) intentional infliction of emotional distress. (Compl. ¶¶ 32--67 [filed March 3, 1999].) Plaintiff requested punitive damages on each of his claims. (Id. ¶¶ 47--61.) On November 19, 1999, Defendant moved for summary judgment. (Def.'s Mot. for Summ. J. and Supp. Mem. [filed Nov. 19, 1999].) On June 12, 2000, I granted Defendant's motion for summary judgment as to Plaintiff's second, fourth, fifth, and sixth claims for relief. (Order and Mem. of Decision [filed June 12, 2000].) In accordance with my order, only Plaintiff's claims for religious discrimination and retaliation survived. (Id.)

In January 2002, after a six-day trial, the jury found for Plaintiff on his retaliation claim, found for Defendant on Plaintiff's discrimination claim, and awarded Plaintiff $300,000 in damages. (Special Verdict [filed January 15, 2002].) Thereafter, I reduced compensatory damages to the statutory maximum of $200,000. (Courtroom Mins. [dated Jan. 17, 2002].)

On January 31, 2002, Plaintiff filed an application for attorneys' fees and expenses. ("Pl.'s Application for Att'ys' Fees and Expenses" [filed Jan. 31, 2002].) I denied Plaintiff's application without prejudice in light of the likely appeal by Defendant. (Order and Mem. of Decision [filed Sept. 30, 2002].) Defendant appealed, and the Tenth Circuit affirmed my rulings on June 23, 2004. Hertz v. Luzenac Am., Inc., 370 F.3d 1014 (10th Cir. 2004). On June 25, 2004, Plaintiff filed a renewed application for attorneys' fees, requesting fees and expenses in the amount of $310,098.19. (Pl.'s Renewed Application for Att'ys' Fees and Expenses [filed June 25, 2004] [hereinafter "Pl.'s June 25, 2004 Mot."].) Plaintiff failed to comply with Local Rule 54.3, and on November 17, 2004, I ordered Plaintiff to submit a summary of the relevant qualifications and experience of Plaintiff's attorneys, paralegals, and law clerks other than John A. Chanin, Theresa L. Corrada, and Blain D. Myhre. (Minute Order [filed Nov. 17, 2004].) On November 29, 2004, Plaintiff complied with my order. (Supplement to Pl.'s Renewed Application for Att'ys' Fees and Expenses [filed Nov. 29, 2004] [herinafter "Supplement"].) On March 24, 2005, I granted in part and denied in part Plaintiff's June 25, 2004 motion. (Order and Mem. of Decision [filed Mar. 24, 2005] [hereinafter "Order"].) I found that Plaintiff was entitled to attorneys' fees under the lodestar method, but was not entitled to expenses. (Id.)

On April 6, 2005, Plaintiff filed a motion to amend my March 24, 2005 order regarding attorneys' fees and expenses. (Pl.'s Mot. to Amend Order and Mem. of Decision Regarding Att'ys' Fees and Expenses [filed April 6, 2005] [hereinafter "Pl.'s Mot."].) Despite its styling, Plaintiff's motion relates exclusively to my denial of expenses, and does not concern attorneys' fees.*fn1 (Id.) Plaintiff argues that he is entitled to the attorneys' expenses he sought in his June 25, 2004 motion, because said expenses are of the sort usually billed to the client. (Id.) On April 26, 2005, Defendant filed a response to Plaintiff's motion. (Luzenac's Opp. to Pl.'s Mot. to Amend Order and Mem. of Decision Regarding Att'ys' Fees and Expenses [filed Apr. 26, 2005] [hereinafter "Def.'s Resp."].) Defendant argues that Plaintiff's motion should fail because it neither presents newly discovered evidence nor demonstrates that this court committed a manifest error of law. (Id.) On May 11, 2005, Plaintiff filed a reply in support of its motion. (Pl.'s Reply in Supp. of His Mot. to Amend Order and Mem. of Decision Regarding Att'ys' Fees and Expenses [filed May 11, 2005] [hereinafter "Pl.'s Reply"].) This matter is fully briefed.


1. Standard of Review

At the outset, I note that Plaintiff has not set forth a proper ground for this court to consider his motion, which he calls "a pre-judgment request for consideration." (Pl.'s Reply at 2.) Plaintiff contends that "this [c]court may reconsider its [o]rder at any time before judgment enters (and within the limitations of Rule 59 after judgment enters)," but fails to cite any Federal Rule of Civil Procedure in support or guidance for his motion. (Pl.'s Mot. ¶ 12.)

The Federal Rules of Civil Procedure do not explicitly provide for motions for reconsideration. See Hannah v. Roadway Express, Inc., 200 F.R.D. 651, 653 (D. Colo. 2001). Nevertheless, such motions are generally accepted and construed under Rule 59(e), which provides that "[a]ny motion to alter or amend a judgment shall be filed no later than [ten] days after entry of judgment." Fed. R. Civ. P. 59(e) (2005). Rule 59(e) is clearly not applicable in the instant case, because Plaintiff filed his motion before entry of judgment.

An alternative basis for a court to reconsider its order is Rule 60, which allows for motions for relief from judgment or order. Specifically, Rule 60 states that:

[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial . . .; (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . .; (6) any other reason justifying relief from the operation of the judgment.

Fed. R. Civ. P. 60(b) (2005). Plaintiff's motion essentially amounts to a motion for relief from my March 24, 2005 order. Plaintiff does not allege discovery of new evidence or fraud, and does not contemplate voidness or satisfaction of judgment. Thus, I evaluate Plaintiff's motion under Rules 60(b)(1) and 60(b)(6). See Hannah, 200 F.R.D. at 653 (evaluating motion involving attorney's oversight under Rule 60[b][1]); Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098, ...

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