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Deatley v. Allard

United States District Court, D. Colorado

April 13, 2015

ALAN E. DEATLEY, an individual, 15 CORPORATIONS, INC., a Washington state corporation, and SOLUTIONS INTERNATIONAL LLC, an Oregon Limited Liability Company, Plaintiffs,
v.
KERMIT ALLARD, individual, ROBERT KLICK, individual, DAVE ZAMZOW, individual, ALLARD & KLICK, LLC, a Colorado Limited Liability Company, and EHRHARDT KEEFE STEINER & HOTTMAN, a Colorado Limited Liability Limited Partnership, Defendants.

ORDER

RAYMOND P. MOORE, District Judge.

This matter concerns Plaintiffs' allegations that Defendants engaged in specific tortious acts in regards to accounting and valuation services provided to Plaintiffs with respect to conservation easements in Colorado, inter alia, negligent misrepresentation, professional negligence, fraud, and defamation. (ECF No. 3 at 2.) On January 9, 2015, the Court dismissed Plaintiffs' claims against all Defendants. (ECF No. 45.)

This matter is before the Court on Defendants Allard, Klick, Allard Klick & Company LLC's[1] (hereinafter "Allard Defendants") motion for attorneys' fees and costs (ECF No. 47), Defendant EKS&H, LLLP's[2] (hereinafter "EKS&H") motion for attorneys' fees and costs (ECF No. 48), and Defendant Zamzow's motion for attorneys' fees (ECF No. 49). Plaintiffs filed a consolidated response to each of the previously-referenced motions. (ECF No. 53.)

For the reasons stated below, the Court: (1) GRANTS Allard Defendants' motion for attorneys' fees and costs (ECF No. 47); (2) GRANTS Defendant EKS&H's motion for attorneys' fees and costs (ECF No. 48); and (3) GRANTS, in part, Defendant Zamzow's motion for attorneys' fees (ECF No. 49).

I. BACKGROUND

The Court set forth the pertinent factual and procedural background in its prior order (ECF No. 45 at 2-4).

II. LEGAL STANDARDS

Motions for attorney's fees are governed by Federal Rule of Civil Procedure 54(d)(2). Motions for costs are governed by Federal Rule of Civil Procedure 54(d)(1). Generally, the "American Rule" provides that "the prevailing litigant is ordinarily not entitled to reasonable attorney's fees." Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247 (1975). "A defendant is not entitled to attorney fees as an automatic consequence of success on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6)." Robinson v. C.R. Laurence Co., Inc., 105 F.R.D. 567, 568 (D. Colo. 1985). Section 13-17-201 of the Colorado Revised Statutes provides, in pertinent part, that

In all actions brought as a result of... an injury to person... occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action.

Colo. Rev. Stat. ยง 13-17-201 (1987). Section 13-17-201 applies when a federal court dismisses a complaint based upon Colorado tort law pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Jones v. Denver Post Corp., 203 F.3d 748, 757 n.6 (10th Cir. 2000); see Bazarewski v. The Vail Corp., Case No. 12-CV-03218-RM-MJW, 2014 WL 4243741, at *1 (D. Colo. Aug. 27, 2014).

If fees are to be awarded, the Court's Local Civil Rules require that a motion for attorney's fees contain both "a detailed description of the services rendered [and] the amount of time spent" and "a summary of relevant qualifications and experience." D.C. Colo. L. Civ. R. 54.3(b). To determine a reasonable fee request, a court must begin by calculating the "lodestar amount." 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). A 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. Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995).

Factors considered in the reasonableness of the number of hours spent by counsel for the prevailing party include: (1) the hours that would be properly billed to one's client in accordance with good "billing judgment"; (2) time spent on specific tasks; and (3) duplication of efforts. Malloy v. Monahan, 73 F.3d 1012, 1017-18 (10th Cir. 1996). In exercising good billing judgment, "counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. The district court is obligated to exclude "hours not reasonably expended' from the calculation." Malloy, 73 F.3d at 1018.

The Supreme Court has found non-compensable "purely clerical or secretarial tasks [which] should not be billed at a paralegal rate regardless of who performs them." Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989) (citation omitted). A party must demonstrate that its counsel used "billing judgment" in winnowing down the hours actually spent to those reasonably expended. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005) (citation omitted). Where this showing is not made, a court should take extra care to ensure that an attorney has not included unjustified charges in his billing statement. Id.

A "reasonable rate" is defined as the prevailing market rate in the relevant community for an attorney of similar experience. Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002) (citation omitted). In order to satisfy its burden, a party should 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). Where, "a district court does not have before it ...


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