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Hitchens v. Thompson National Properties, LLC

United States District Court, D. Colorado

May 29, 2014



LEWIS T. BABCOCK, District Judge.

This matter is before me on Plaintiffs Doug and Sheryl Hitchens' Statement of Damages [Doc. # 42], filed on April 8, 2014.


Plaintiffs' motion was filed after I granted in part and denied in part Plaintiffs' Motion for Summary Judgment on March 18, 2014. [ See Doc. # 39]. Plaintiffs' motion asserts that attorney's fees are appropriate pursuant to the Parties' Guaranty Agreement, which awards costs, expenses and reasonable attorney's fees to the prevailing party in any action to enforce or interpret the Guaranty Agreement. [ See Doc. # 28, ex. 1, 4]. Plaintiffs have requested a total $145, 482.36 in damages including $100, 000 for the principal of the Note, $24, 187.50 in accrued interest, and $21, 294.86 in attorney's fees and costs. [ Id. ] Plaintiffs do not dispute the $372.36 in costs and thus this amount will be added to the total calculation in this order. [ Id. ] Additionally, Defendant does not dispute the principal due or the accrued interest, as such those amounts will be awarded. Thus, my discussion is limited to Plaintiffs' alleged attorney's fees of $21, 294.86. [Doc. # 42].


The Guaranty Agreement provides that Defendant "agrees to the extent permitted by law, to pay any costs or expenses, including the reasonable fees of an attorney, incurred by the Noteholders [Plaintiffs] in enforcing this Guaranty." [Doc. # 3, ex. 2, ΒΆ 3]. Plaintiffs, as the undisputed prevailing party, seek $21, 294.86 in attorneys' fees incurred in presenting their claims against Defendant decreased from $26, 294.86 based on a bulk professional discount of $5, 000 Plaintiffs' attorneys had applied. Defendant contends that the Plaintiffs' fees are unreasonable.

The Guaranty Agreement's terms permit Plaintiffs to recover "reasonable fees of an attorney." [ Id. ] Because that phrase appears in various statutes and is the subject of a well-established body of case law, and in the absence of any evidence indicating that the Parties intended some different interpretation of the phrase to apply, I apply the familiar "lodestar" analysis to determine what constitutes a reasonable fee here. To calculate the lodestar figure I multiply a reasonable hourly rate by the number of hours reasonably incurred by Plaintiffs' counsel. See generally Gisbrecht v. Barnhart, 535 U.S. 789, 801-02, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) ("the lodestar' figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence"); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In doing so, I must address whether that lodestar figure should be adjusted upwards or downwards based on the particular circumstances of the case. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564-65, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997). The goal of the exercise is to produce "an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case." Perdue v. Kenny A ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010).

The party seeking an award of attorney's fees must establish the reasonableness of each dollar and each hour for which the party seeks an award. Hensley, 461 U.S. at 433; Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir.1995); Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir. 1986). The Tenth Circuit has noted that "[c]ounsel for the party claiming the fees has the burden of proving hours to the district court by submitting 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 v. Unified School Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998). "A district court is justified in reducing the reasonable number of hours if the attorney's time records are sloppy and imprecise' and fail to document adequately how he or she utilized large blocks of time." Id .; see also Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) ("a district court may discount requested attorney hours if the attorney fails to keep meticulous, contemporaneous time records' that reveal all hours for which compensation is requested and how those hours were allotted to specific tasks.") (citation omitted).

A. Hourly Rate

The first step in calculating a fee award is to determine the number of hours reasonably spent by counsel for the party seeking the fees. Hensley, 461 U.S. at 437. 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). A court may use its own knowledge of the prevailing market rate to determine whether the claimed rate is reasonable. Yarmouth Grp. Prop. Mgmt, 295 F.3d at 1079; see also Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1259 (10th Cir. 2005) (approving the district court's determination of the applicable hourly rate by "relying on its knowledge of rates of lawyers with comparable skill and experience practicing" in the relevant market). 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). In order to satisfy this burden, the party requesting fees must produce "satisfactory evidence-in addition to the attorney's own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

Four attorneys and three paralegals performed work on this case. James Dallner's hourly rate is $250. Mr. Dallner indicates that he graduated from law school in 2005, has been licensed to practice for eight years, and is licensed in several states and federal courts including Colorado, Montana, Nevada, and North Dakota. He also contends that he "has significant experience litigating insurance subrogation matters and contract disputes... and has handled a number of state and federal court appeals. [Doc. # 42, ex. 2 & Doc. # 47, ex. 1, 3-4]. Phillip Lorenzo's hourly rate is $430. Mr. Lorenzo graduated law school in 1980, has 30 years of experience litigating complex business and commercial disputes, and "regularly handles trial, arbitration, mediation and appeal of large construction, fire subrogation and business matters." [Doc. # 47, ex. 1, 4]. Michael Martin's hourly rate is $405. Mr. Martin has 25 years of experience and "regularly handles complex commercial litigation, including securities matters." [ Id. ] Michael Roche's hourly rate is $405. Mr. Roche graduated law school in 1990 and has 20 years of experience litigating complex business and commercial disputes. [ Id. ] As for the paralegals, their hourly rates range from $155 to $170. [ Id. at 3-4].

With regards to Mr. Dallner's hourly rate of $250, I find that it is a reasonable rate for an attorney of Mr. Dallner's experience in the Denver legal market. See Peterson-Hooks v. First Integral Recovery, LLC, No. 12-cv-01019-PAB-BNB, 2013 WL 2295449, at *7 n.10 (D. Colo. May 24, 2013) (collecting comparable cases). The higher billing rates of Mr. Lorenzo at $430 an hour, Mr. Martin at $405 an hour, and Mr. Roche at $405 an hour, are also reasonable rates for attorneys of their experience in the Denver legal market. See Xtreme Coil Drilling Corp. v. Encana Oil & Gas Corp., 958 F.Supp.2d 1238 (D. Colo. 2013) (holding that "the prevailing rates in Denver for experienced litigators approach $400 per hour in recent years, " with $450 per hour representing the maximum hourly rate that could be considered reasonable for lead trial counsel); Jankovic v. Exelis, Inc., Case No. 12-cv-01430-WJM-KMT, 2013 WL 1675936 (D. Colo. Apr. 17, 2013) (approving rate of $430 per hour); Watson v. Dillon Cos., Inc., Case No. 08-cv-00091-WYD-CBS, 2013 WL 4547521, *2 (D. Colo. Aug. 28, 2013) (approving rate of $550 per hour for lead attorney); Biax Corp. v. NVIDIA Corp., Case No. 09-cv-01257-PAB-MEH, 2013 WL 4051908 (D. Colo. Aug. 12, 2013) (relying on 2010 National Law Journal ("NLJ") billing survey showing Denver firms billed between $285 and $810 per hour for partners; approving rates of over $700 per hour for partners with comparable experience).

However, Plaintiffs fail to address whether the three paralegals' hourly rates of $155-170 are reasonable. Based on the statement of services (Doc. #. 47, ex. 1), three different paralegals billed compensable time in this case, but Plaintiffs have not provided any indication of each paralegals' qualifications and experience. Accounting for inflation, and because Plaintiffs have provided no support for exceeding the average, I find that an hourly rate of $110 is reasonable for work performed by paralegals. See e.g., Salinier v. Moore, 2010 WL 3515699 (D. ...

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