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Advanced Career Techs., Inc. v. Does

United States District Court, D. Colorado

April 24, 2015

ADVANCED CAREER TECHNOLOGIES, INC., a Delaware corporation, Plaintiff,
JOHN DOES 1-10, and DANIEL DRASIN, Defendants

For Advanced Career Technologies Inc, a Delaware corporation, Plaintiff: Thomas Drew Leland, LEAD ATTORNEY, Holland & Knight, LLP-Denver, Denver, CO; Leah E. Capritta, Lathrop & Gage, LLP-Denver, Denver, CO.


William J. Martínez, United States District Judge.

This matter is before the Court on Defendant Daniel Drasin's Motion for Attorneys' Fees (" Motion" ). (ECF No. 45.) Plaintiff initiated this action on February 5, 2013 alleging violations of the Lanham Act, common law trade libel, and violations of the Colorado Consumer Protection Act. (ECF No. 1.) On January 23, 2015, the Court granted Defendant's Motion to Dismiss due to lack of personal jurisdiction. (ECF No. 41.) However, the Court gave Plaintiff until February 13, 2015 to amend its Complaint should it be able to allege plausible, substantiated facts that would support personal jurisdiction over Defendant. ( Id.) Plaintiff chose not to do so and filed a motion to dismiss this action on February 23, 2015. (ECF No. 42.) Defendant's Motion seeks attorneys' fees incurred in connection with the litigation of this matter. For the reasons below, Defendant's Motion is granted in part and denied in part.


To determine a reasonable attorneys' fee, the court must calculate a " lodestar figure" by multiplying a reasonable hourly rate by the hours reasonably expended. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005) (citing Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998)). Counsel should exercise " billing judgment" prior to submitting a fee request to eliminate any needless, excessive, or redundant hours. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Billing judgment should also take into account the experience and relative skill of the billing attorneys. Id. Additional factors to determine a fee's reasonableness include " the complexity of the case, the number of reasonable strategies pursued, . . . the responses necessitated by the maneuvering of the other side," any potential duplicative services, and whether the hours would " normally be billed to a paying client." Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983). A court may use its discretion to fashion an award of attorneys' fees it deems appropriate where counsel requests payment for hours other than those reasonably expended. Id. at 554-55.


Defendant's Motion to Dismiss asserted a lack of personal jurisdiction and was filed pursuant to Federal Rule of Civil Procedure 12(b)(2). (ECF No. 31.) Colorado law allows defendants to a tort action who prevail on a Rule 12(b) motion to obtain attorneys' fees:

In all actions brought as a result of a death or an injury to person or property 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. § 13-17-201. A federal court sitting in diversity applies the substantive law of the forum state. Jones v. Denver Post Corp., 203 F.3d 748, 757 (10th Cir. 2000). In the Tenth Circuit, attorneys' fees statues are considered substantive. Id. While on its face § 13-17-201 only applies to motions brought under Rule 12(b) of the Colorado Rules of Civil Procedure, the statute has been interpreted to apply to the dismissal of state claims under Federal Rule of Civil Procedure 12(b). Shrader v. Beann, 503 Fed.Appx. 650, 655 (10th Cir. 2012). Section 13-17-201 therefore applies in this case.

Plaintiff makes three arguments as to why attorneys' fees should not be awarded pursuant to § 13-17-201: (1) an award of attorneys' fees would be unjust and contrary to the purpose of § 13-17-201; (2) § 13-17-201 does not apply to Lanham Act claims; and (3) Defendant failed to apportion his fee request. The Court addresses each argument in turn.

A. When Fees Should be Awarded

Plaintiff maintains that § 13-17-201 was enacted to discourage unnecessary litigation and has been narrowly construed, despite the statute's language that the prevailing defendant " shall" be awarded attorneys' fees. (ECF No. 49 at 3); see also Castro v. Lintz, 338 P.3d 1063, 1067, 2014 COA 91, 2014 COA 91 (Colo.App. 2014) (" An award of attorney fees under section 13-17-201 is mandatory when a trial court dismisses a tort action under C.R.C.P. 12(b)" ). However, Plaintiff is correct that Colorado courts have denied fee awards in cases where the plaintiff voluntarily consented to dismissal by conceding the defendant's 12(b) motion. For example, in Employers Insurance of Wausau v. RREEF USA Fund-II (Colorado), Inc., 805 P.2d 1186, 1188 (Colo.App. 1991), the court held:

[W]e conclude that the General Assembly did not intend § 13-17-201 to apply to a situation in which, as here, a plaintiff files a confession to a defendant's C.R.C.P. 12(b) motion to dismiss in such a manner that defendant is not required to expend additional efforts beyond the filing of its motion.

Plaintiff argues that this exception applies because it filed a voluntary motion to dismiss this action rather than choosing to amend its Complaint. (ECF No. 49 at 3-4.) However, when the Court reached Defendant's Motion to Dismiss it had been fully briefed by the parties. (ECF Nos. 31, 32, & 33.) In filing a reply to Plaintiff's opposition, Defendant was thus " required to expend additional efforts beyond the filing of [his] motion," and Plaintiff's conduct after the motion had been briefed and ruled on did not prevent the need for such efforts. Emp'rs Ins., 805 P.2d at 1188. This is not the type of voluntary dismissal that will defeat a § 13-17-201 fee award.

The Colorado Court of Appeals has also held that the entire tort action, rather than a single claim, must be dismissed in order to justify attorneys' fees under § 13-17-201. Jaffe v. City & Cnty. of Denver, 15 P.3d 806, 814 (Colo.App. 2000). Such was the case here. By granting Defendant's Motion to Dismiss the Court disposed of all of Plaintiff's claims against Defendant. (ECF No. 41.) The Court accordingly rejects Plaintiff's argument ...

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