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Crapnell v. Dillon Companies, Inc.

United States District Court, D. Colorado

July 22, 2015

JAMES CRAPNELL, Plaintiff,
v.
DILLON COMPANIES, INC., doing business as King Soopers, Inc., U.S. REIF GOLDEN COLORADO, LLC, and CBRE, Inc., Defendants.

ORDER

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Plaintiff's Motion for Attorney's Fees and Costs [#38][1] (the "Motion"). Defendant U.S. REIF Golden Colorado, LLC ("REIF") filed a Response [#47]. Further briefing was not allowed. Order [#33] at 17. As a result, the Motion is ripe for resolution. The Court has reviewed the pleadings, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#38] is GRANTED in part and DENIED in part.

I. Background

On January 23, 2015, the Court granted Defendant REIF's Motion to Set Aside Default Judgment [#18], setting aside the entry of default entered in the state court before this action was removed, and ordered that "Defendant REIF shall pay the reasonable attorney's fees and costs incurred by Plaintiff in moving for the entry of default, opposing the Motion to Set Aside, and filing the Motion to Strike." Order [#33] at 17.

Because the parties were unable to reach a stipulation regarding a reasonable amount of fees and costs, Plaintiff filed the instant Motion. Plaintiff seeks attorneys' fees totaling $12, 457.25 and costs totaling $97.80 relating to the entry of default in state court and the motions discussed in the January 23, 2015 Order. Motion [#38] at 3. Plaintiff attaches the following documents in support of the Motion: (1) the Sworn Affidavit of Gabriel Schwartz [#38-1], regarding his work on behalf of Plaintiff; (2) the Sworn Affidavit of Alexandrea Everson [#38-2]; (3) the Sworn Affidavit of Thomas Merz [#38-3]; and (4) the Sworn Affidavit of Gabriel Schwartz [#38-4] (the "Costs Affidavit"), regarding costs incurred on behalf of Plaintiff.

Defendant REIF argues that Plaintiff does not provide sufficient information to support the amount he requests. Response [#47] at 7. Specifically, Defendant REIF avers that the records are not "meticulous, " and "do not appear" to have been "made contemporaneous [sic] with the work preformed." Id. In addition, Defendant REIF argues that the reasonable market rate for the services provided by Plaintiff's attorneys "is no more than $200 per hour." Id. at 8. Defendant REIF then reviews the description of the work performed by Plaintiff's attorneys and argues that specific time entries are unreasonable. Id. at 8-13. Finally, Defendant REIF argues that the time billed for Mr. Merz's work, a paralegal, should not be included because it is not "attorney" time. Id. at 13-14. With regard to the costs sought, Defendant REIF argues that the documents submitted do not support the amounts sought. Id. at 14. Defendant REIF also notes that Plaintiff appears to be seeking costs for accessing CM/ECF after the completion of the briefing on the motions discussed in the Court's January 23, 2015 Order [#33]. Id. at 14-15.

II. Standard

To determine a reasonable fee request, the 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). The Tenth Circuit Court of Appeals has recognized the lodestar amount as presumptively reasonable. Homeward Bound, Inc. v. Hissom Mem'l Ctr., 963 F.2d 1352, 1355 (10th Cir. 1992). 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).

III. Analysis

A. Hourly Rate

Both implicit in any award of attorneys' fees, and explicit in the award in the instant case, is the requirement that any such fees must be reasonable. Order [#33] at 17 ("Defendant REIF shall pay the reasonable attorney's fees and costs incurred by Plaintiff in moving for the entry of default, opposing the Motion to Set Aside, and filing the Motion to Strike."); see Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir. 1986) (party requesting attorneys' fees has burden to "prove and establish the reasonableness of each dollar, each hour, above zero"); Robinson, 160 F.3d at 1281 (prevailing party must make good faith effort to exclude from a fee request any excessive, redundant or otherwise unnecessary hours). 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). In order to satisfy his burden, Plaintiff 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). "Unless the subject of the litigation is so unusual or requires such special skills that only an out-of-state lawyer possesses, the fee rates of the local area should be applied even when the lawyers seeking fees are from another area." Bangerter, 61 F.3d at 1510.

Plaintiff requests attorneys' fees calculated at the rate of $350 per hour for Mr. Schwartz, Motion [#38] at 2; $275 per hour for Ms. Everson, id.; and paralegal fees at the rate of $120 per hour for Mr. Merz. Id. at 3. In support of his attorneys' and paralegal's hourly rates, Plaintiff states that Mr. Schwartz graduated from law school in 2004, he is a founding partner of the Law Offices of Sandomire and Schwartz, and he has over ten years of experience representing personal injury plaintiffs. Id. at 2. With respect to Ms. Everson, Plaintiff states that she "is an Associate Litigation Attorney and has had experience litigating dozens of cases." Id. Plaintiff does not provide any information regarding Ms. Everson's date of admission to any bar or her date of graduation from law school. With regard to Mr. Merz, Plaintiff states that he has a degree in "Paralegal studies with Honors" and "has assisted attorney's [sic] in litigating dozens of cases." Id. at 3.

The Court notes that there has been no showing that the services provided in this case were so "unusual" or "special" to require out-of-state counsel. Bangerter, 61 F.3d at 1510. Thus, the Court will calculate fees based on prevailing rates in the Denver metropolitan area. See Scadden v. Weinberg, Stein & Assoc., LLC, No. 12-cv-02454-PAB-MEH, 2013 WL 1751294, at *5 (D. Colo. Apr. 23, 2013). Plaintiff offers no argument regarding the prevailing rates for attorneys representing plaintiffs in slip-and-fall cases in the Denver area. See Sched. Order [#45] ยง 3(a) (explaining that Plaintiff's claims stem from an incident when "he tripped on the curb or some other object and fell to the ground" while "discard[ing] items into the trash can" at a King Soopers grocery store). "If the district court does not have adequate evidence of prevailing market rates for attorney fees, then it may, in its discretion, use other relevant factors, including its own knowledge, to establish the rate.' A district judge may consider his or her own knowledge of prevailing market rates as well as other indicia of a reasonable market rate.'" Reichers, 2013 WL 6096136, at *3 (quoting Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006)). In a similar context, representation of plaintiffs bringing claims under the Fair Debt Collection Practices Act ("FDCPA"), this Court recently found that "[t]he weight of authority establishes that the prevailing rate in Colorado is $200-$250 per hour for attorneys representing clients in FDCPA cases, depending on the attorneys' experience." Villanueva v. Account Discovery Sys., LLC, ___ F.Supp.3d ___, No. 14-cv-00395-WYD-KLM, 2015 WL 148965, at *16 (D. Colo. Jan. 12, 2015). Based on the Court's experience and in the absence of any information from Plaintiff regarding the prevailing market rate in the Denver area for attorneys representing plaintiffs in this type of case, the Court finds that $200-$250 per hour is a reasonable rate for Plaintiff's attorneys. See Home Loan Investment Co. v. St. Paul Ins. Co., ___ F.Supp.3d ___, 2014 WL 6723965, at *6-7 (D. Colo. Nov. 25, 2014) (discussing the prevailing rates for attorneys in Colorado).

Because Mr. Schwartz "has had over ten years of experience, " Motion [#38] at 2, the Court finds that a reasonable hourly rate for his work is $250. See Scadden, 2013 WL 1751294, at *6 (concluding that $250 per hour is a reasonable hourly rate in this district for an attorney with ten years of experience). The Court has not been provided with any information regarding Ms. Everson's experience other than that she "has had experience litigating dozens of cases." Motion [#38] ...


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