United States District Court, D. Colorado
LESLIE WILLIAM WELCH, EVA WELCH, a minor child, by and through her next friend, LESLIE WILLIAM WELCH, and HAYDEN WELCH, a minor child, by and through her next friend, LESLIE WILLIAM WELCH, Plaintiffs,
JANE SAUNDERS, JOHN SPAW, TED MINK, and KATHLEEN MUELLER, Defendants.
ORDER ON DEFENDANT'S REVISED MOTION FOR ATTORNEY
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
the Court is Defendant Kathleen Mueller's
(“Mueller”) Revised Attorney Fees Submission.
(ECF No. 77 (“Motion”).) For the reasons
explained below, the Court grants her requested attorney fees
in the amount of $1, 237.50.
previously sought an award of attorney fees pursuant to
Colorado Revised Statute § 13-17-201 (“Section
201") and 42 U.S.C. 1988 (ECF No. 67 at 3, 4.) The Court
found that Mueller was entitled to an award of attorney fees
under Section 201, but not under § 1988. (ECF No. 76 at
2-3.) Specifically, it stated that because the
Court is a federal court sitting in diversity, it is
required under Section 201 to award attorney fees
for the claims for civil theft brought pursuant to Colorado
Revised Statute 18-4-405. Jones, 203 F.3d at 757;
Advanced Career Techs., Inc. v. John Does 1-10, 100
F.Supp.3d 1105, 1107 (D. Colo. 2015) (“An award of
attorney fees is mandatory when a trial court
dismisses a tort action under C.R.C.P. 12(b)”) (quoting
Castro v. Lintz, 338 P.3d 1063, 1067 (Colo.App.
it is within the Court's discretion under § 1988(b)
to refuse to grant fees for work done in defending against
the § 1983 claim. 42 U.S.C. §1988(b). Here, the
Court, in its discretion, awards no attorney fees for work
done defending against the § 1983 claim. See e.g.
Dorsey v. Pueblo Sch. Dist. 60, 215 F.Supp.3d 1092, 1094
(Section 1988 provides “limited awards” for
prevailing defendants (internal quotation marks omitted)).
Moreover, the Court noted, Section 201 authorizes only the
award of reasonable attorney fees. In evaluating
such requests, parties must exercise billing judgment.
See generally Case v. Unified Sch. Dist. No. 233,
157 F.3d 1243, 1250 (10th Cir. 1998). Accordingly, the Court
directed Mueller to “seek an award of fees only for
work that can be specifically tied to reasonable efforts
expended defending against the state law civil theft claim
under § 18-4-405.” (ECF No. 76 at 3.)
present Motion, Mueller included “interlineated
invoices showing her exercise of billing judgment to limit
the fees sought only to those reasonably attributable to
defending Plaintiff's state law claim for civil
theft” and claims she is entitled to attorney fees in
the amount of $1, 237.50 (ECF No. 77 at 1, 2.) Mueller's
attorney's affidavit shows that he charged Mueller an
hourly rate of $275. (ECF No. 77-1 at 2.) And while
“[he] did not specifically segregate [his] time on a
claim-by-claim basis, ” he estimates that his
“time was split evenly addressing the two claims in the
Motion to Dismiss and that 2/3 of [his] time on the Reply in
Support of the Motion Dismiss was spent on the § 1983
claim. The total distribution of time for those briefs was
10.0 hours on the § 1983 claim and [4.5] hours on the
civil theft claim.” Plaintiff does not dispute that the
amount claimed is reasonable. The Court finds that Mueller
has exercised reasonable billing judgment and that both the
number of hours and hourly rate are reasonable.
Mueller will be awarded her full amount of claimed attorney
reasons set forth above, the Court ORDERS as follows:
1. Mueller's Revised Attorney Fees Submission (ECF No.
77) is GRANTED;
2. Mueller is AWARDED $1, 237.50 in attorney fees; and
3. The Clerk shall enter judgment accordingly.
 In its earlier Order (ECF No. 76), the
Court noted that Section 201 provides for an award of
attorneys' fees in certain tort suits if the
“action is dismissed . . . under rule 12(b) of the
Colorado rules of civil procedure.” This provision also
applies to Colorado tort claims pending in federal court that
are dismissed pursuant to Federal Rule of Civil Procedure
12(b). Jones v. Denver Post Corp., 203 F.3d 748, 757
(10th Cir. 2000). The Tenth Circuit has held that “when
§ 13-17-201 applies, a district court must award
attorneys' fees thereunder.” Gen. Steel
Domestic Sales, LLC v. Denver/Boulder Better Bus.
Bureau, 2009 WL 1292780, at *2 (D. Colo. May 8, 2009)
(“General Steel”) citing Wark v. Bd.
of Cnty Comm'rs of the County of Dolores, 47 P.3d
711, 717 (Colo.App. 2002)).
Both the Tenth Circuit and the Colorado Supreme Court
have held that “[a]n award of fees under section
13-17-201 does not apply, however, to federal § 1983
claims, because it is preempted by federal law.”
General Steel, 2009 WL 1292780, at *2 (quoting
State v. Golden's Concrete Co., 962 P.2d 919,
926 (Colo. 1998)). In Golden's Concrete, the
Colorado Supreme Court held that “42 U.S.C. § 1988
preempts Colorado's attorney fees statute, section
13-17-201, regarding the award of attorney fees to a
prevailing defendant on a section 1983 claim.” 962 P.2d
at 926. Attorney fees attributed to the federal claims are
governed by federal law. Gen ...