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Powers v. Emcon Associates, Inc.

United States District Court, D. Colorado

September 27, 2017

WILLIAM POWERS, MAP MANAGEMENT LLC, and BLACK WIDOW LLC, Plaintiffs,
v.
EMCON ASSOCIATES, INC., MICHAEL COCUZZA, and MICHAEL MICHOWSKI, Defendants.

          ORDER

          Kathleen M. Tafoya United States Magistrate Judge.

         This matter is before the court on Emcon Associates, Inc.’s “Itemization of Fees and Costs” filed July 10, 2017. [Doc. No. 125.] Plaintiffs’ Objection to Defendants’ Itemization of Fees and Costs” [Doc. No. 131] was filed on July 17, 2017.

         On June 29, 2017, this court granted Defendant’s “Motion to Strike Exhibits 36-39 to Reply in Support of Motion for Partial Summary Judgment” [Doc. No. 105]. As part of the ruling, the court granted Defendants’ request for reimbursement of reasonable costs associated with bringing the motion and filing the reply. Defendants were directed to file an itemization of their claimed attorney’s fees. Plaintiffs’ objection to the amount of the fees goes only to the number of hours expended and does not challenge the Defendants’ submission with respect to the reasonableness of Defendants counsels’ hourly rates.

         LEGAL STANDARD

         “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended . . . multiplied by a reasonable hourly rate” which will result in what is commonly called the loadstar calculation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services.” Id. “[A] claimant is entitled to the presumption that this lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The court’s calculation of the lodestar carries with it a strong presumption of reasonableness. Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 78 F.Supp.3d 1307, 1315 (D. Colo. 2014), amended, No. 12-CV-02308-CMA-CBS, 2014 WL 7187153 (D. Colo. Dec. 17, 2014), aff’d, 827 F.3d 1256 (10th Cir. 2016); Payan v. Nash Finch Co., 310 P.3d 212 (citing Hensley, supra). The court may then adjust this amount.

         The party seeking an award of fees should submit specific evidence supporting the hours worked and rates claimed. Hensley, 461 U.S. at 433. 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 Sch. 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, 160 F.3d at 1281.

         Once the court has adequate time records, it must then ensure the attorneys requesting fees have exercised reasonable billing judgment under the circumstances of the case. Id. “Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended.” Id; see also Hensley, 461 U.S. at 434, 437 (counsel are expected to exercise their billing judgment, “mak[ing] a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary”).

         When a court examines the specific tasks listed by an attorney claiming fee reimbursement, the court must first determine if the fees are properly chargeable under the circumstances of the case and then whether the number of hours expended on each task is reasonable. Id. Among the factors to be considered are: (1) whether the tasks being billed would normally be billed to a paying client, (2) the number of hours spent on each task, (3) the complexity of the case, (4) the number of reasonable strategies pursued, (5) the responses necessitated by the maneuvering of the other side, and (6) potential duplication of services by multiple lawyers. Robinson, 160 F.3d at 1281. “In this analysis, [the court should] ask what hours a reasonable attorney would have incurred and billed in the marketplace under similar circumstances.” Id.

         Ultimately, in all cases where the court considers awarding attorneys’ fees to a party, the Court must consider the factors articulated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92 (1989)). Those factors are: (1) time and labor required; (2) novelty and difficulty of question presented by the case; (3) skill requisite to perform the legal service properly; (4) preclusion of other employment by the attorneys due to acceptance of the case; (5) customary fee, (6) whether the fee is fixed or contingent; (7) any time limitations imposed by the client or circumstances; (8) amount involved and results obtained; (9) experience, reputation and ability of the attorneys; (10) “undesirability” of the case; (11) nature and length of the professional relationship with the client; and (12) awards in similar cases. Gottlieb v. Barry, 43 F.3d 474, 482 n.4 (10th Cir. 1994) (citing Johnson, 488 F.2d at 717-19).

         The Tenth Circuit has also opined that “[a] general reduction of hours claimed in order to achieve what the court determines to be a reasonable number is not an erroneous method, so long as there is sufficient reason for its use.” Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203 (10th Cir. 1986) (reduction in fees appropriate due to inexperience of an attorney that led to over-billing).

         ANALYSIS

         1. Attorney Billing Rates

         A reasonable hourly billing 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. Id. 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 for 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 for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998) (internal citations omitted). 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, 896 n.11 (1984).

         John Keen, one of the partners with Gordon & Rees, submitted an affidavit which stated that partners John Keen and Lance Ream billed their client at the rate of $250.00 per hour and associate Ann Reinert billed the client at $215.00 per hour. Defendants submitted actual redacted invoices to support their claim for both rate and hours. (See Itemization, Ex. B, Invoices No. 20433460 and 20438953.) ...


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