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Digital Satellite Connections, LLC v. Dish Network Corp

United States District Court, D. Colorado

September 26, 2018

DIGITAL SATELLITE CONNECTIONS, LLC, and, KATHY KING, Plaintiffs,
v.
DISH NETWORK CORPORATION, DISH NETWORK, LLC, and DISHNET SATELLITE BROADBAND, LLC, Defendants.

          ORDER CONCERNING MOTION FOR ATTORNEY FEES AND MOTION FOR REVIEW OF COSTS TAXATION

          Robert E. Blackburn United States District Judge

         This matter is before me on the following: (1');">1) the Defendants' Second Renewed Request Under Federal Rules 54(d)(2) for an Award of Attorney Fees Against Plaintiff Kathy King Pursuant to the Terms of the 201');">10 Retailer Agreement [#303');">303][1');">1" name="FN1');">1" id= "FN1');">1">1');">1] filed October 27, 201');">17; and (2) the Plaintiffs' Motion for Review of Clerk's Taxation of Costs [Dkt. 31');">10] [#31');">13] filed November 21');">1, 201');">17. The parties filed concomitant responses [#306 & #31');">14] and replies [#31');">12 & #31');">15]. I grant the motion for attorney fees in part and deny it in part. I deny the motion for review of taxation of costs.

         I. BACKGROUND

         The defendants, Dish Network Corporation, Dish Network, LLC, and Dishnet Satellite Broadband, LLC (collectively Dish) seek an award of attorney fees and costs against plaintiff Kathy King. In orders [#1');">196, #220, #246] addressing the motions for summary judgment of Dish and a motion for reconsideration, I granted summary judgment in favor of Dish Network, LLC and against the plaintiffs / counterclaim defendants, Ms. King and Digital Satellite Connections LLC (DSC), on the breach of contract counterclaim of Dish. In addition, I entered orders requiring DSC and Ms. King to specifically perform certain obligations they have under a 201');">10 retailer agreement and trademark license agreement between Ms King and DSC, as retailers, and Dish Network LLC.

         All the claims asserted by Ms. King against Dish were resolved in favor of Dish when I granted the motion for summary judgment of Dish as to each of the claims of the plaintiffs. Order [#1');">196]. In addition, I granted summary judgment in favor of Dish as to each of the defenses and affirmative defenses asserted by Ms. King in response to the breach of contract counterclaim of Dish. Finally, Dish voluntarily dismissed all of its other counterclaims, leaving viable only its counterclaim for breach of contract. Order [#270]. Again, Dish obtained judgment against Ms. King on its breach of contract counterclaim.

         Ms. King and DSC filed an appeal of the judgment against them. Amended Notice of Appeal [#276]. The United States Court of Appeals for the Tenth Circuit affirmed the judgment against Ms. King and DSC in all respects. Order and Judgment [#31');">17].

         The 201');">10 Retailer Agreement provides that in any suit between Dish and Ms. King, a “Retailer” under the terms of the agreement, to enforce the terms of the agreement, the prevailing party shall be entitled to recover its “costs, expenses and reasonable attorney fees”:

1');">17.1');">11');">1 Attorneys' Fees. In the event of any suit, action or arbitration between Retailer and/or any of its Affiliates, on the one hand, and DISH and/or any of its Affiliates, on the other hand, including without limitation any and all suits, actions or arbitrations to enforce this Agreement, any Business Rules, any Promotional Program or any provisions hereof or thereof, subject to Section 1');">15.3.3, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorneys' fees, at arbitration, at trial and on appeal, in addition to (and without limitation of) all other sums allowed by law. The provisions of this Section 1');">17.1');">11');">1 shall survive expiration or termination of this Agreement (for any reason or no reason) indefinitely.

Werner Declaration [#1');">100 - filed under restriction], Exhibit 7 [#1');">100-3 filed under restriction] (Retailer Agreement), ¶ 1');">17.1');">11');">1. Under this provision, Dish now seeks to recover its reasonable attorney fees and costs.

         II. STANDARD OF REVIEW

         The breach of contract claim of Dish is a claim under the laws of the state of Colorado. Therefore, Colorado law controls. In the absence of an express statute, court rule, or private contract to the contrary, attorney fees generally are not recoverable by the prevailing party in a contract or tort action. Allstate Ins. Co. v. Huizar, 1');">16');">52 P.3d 81');">16, 81');">18 (Colo. 2002) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 1');">1 U.S. 240');">421');">1 U.S. 240, 247, 95 (1');">1975); Bernhard v. Farmers Ins. Exch., 1');">15 P.2d 1');">1285');">91');">15 P.2d 1');">1285, 1');">1287 (Colo.1');">1996); Bunnett v. Smallwood, 1');">157');">793 P.2d 1');">157, 1');">160 (Colo.1');">1990)). The Colorado and federal standards for calculating reasonable attorney fees are essentially identical.

         The starting point for any calculation is the “lodestar, ” that is, the number of hours reasonably expended multiplied by a reasonable hourly rate. Payan v. Nash Finch Co., 1');">10 P.3d 21');">12');">31');">10 P.3d 21');">12, 21');">17 (Colo.App. 201');">12); Hensley v. Eckerhart, 1');">1 U.S. 424');">461');">1 U.S. 424, 433 (1');">1983); Malloy v. Monahan, 1');">101');">12');">73 F.3d 1');">101');">12, 1');">101');">17-1');">18 (1');">10th Cir. 1');">1996). In determining the reasonable number of hours spent on the litigation, the applicant must exercise the same “billing judgment” as would be proper in setting fees for a paying client. Hensley, 461');">1 U.S. at 437; Malloy, 73 F.3d at 1');">101');">18. A “reasonable rate” is defined as the prevailing market rate in the community in question for an attorney of similar experience. Blum v. Stenson, 465 U.S. 886, 895 (1');">1984); Balkind v. Telluride Mountain Title Co., 1');">1');">8 P.3d 581');">1, 588 (Colo.App. 2000). The “local market rate” is usually defined by the state or city in which the case is litigated. Ellis v. Univ. of Kan. Med. Ctr., 1');">163 F.3d 1');">11');">186');">1');">163 F.3d 1');">11');">186, 1');">1203 (1');">10th Cir. 1');">1998) (looking at “the prevailing market rates in the relevant community”).

         “In awarding attorney fees, the trial court may consider, among other factors, the amount in controversy, the duration of representation, the complexity of the case, the value of the legal services to the client, and the usage in the legal community concerning fees in similar cases. No. one of these factors is conclusive.” Melssen v. Auto-Owners Ins. Co., 285 P.3d 328, 339 (Colo. App., 201');">12) (citation omitted).[2] “The party requesting an award of attorney fees bears the burden of proving by a preponderance of the evidence its entitlement to such an award.” American Water Development, Inc. v. City of Alamosa, 874 P.2d 352, 383 (Colo. 1');">1994).

         III. ATTORNEY FEES

         Ms. King never has filed a response addressing the substance of the request for an award of attorney fees of Dish. Dish filed its first motion for attorney fees [#285] on April 7, 201');">17. Ms. King filed a motion for discovery [#290] concerning attorney fees and to stay all discovery and response deadlines concerning the motion for attorney fees. No. stay was granted, and Ms. King never filed a response to the first motion for attorney fees [#285]. The appeal of the plaintiffs was pending when the first motion for attorney fees was filed.

         Dish filed its second motion for attorney fees [#303');">303] “out of an abundance of caution.” Motion [#303');">303], p. 2 n. 1');">1. The second motion requests relief identical to the relief sought in the first motion [#285]. The caution of Dish was born of some confusion about when final judgment entered in this case. In her response [#306] to the present motion for attorney fees, Ms. King does not address the substance of the motion. Rather, she claims the current motion for attorney fees is not timely and should be denied on that ...


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