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Zinna v. Congrove

United States District Court, D. Colorado

March 18, 2019

MICHAEL L. ZINNA, Plaintiff,
JUDY CONGROVE, as personal representative of the estate of James Congrove, deceased, Defendant.



         This matter comes before the Court on Plaintiff's Motion for Award of Reasonable Attorney's Fees and Non-Taxable Costs [Docket No. 326], Defendant Estate of James Congrove's Request for Ruling on Plaintiff's Motion for Attorney Fees [Docket No. 424], and defendant's Motion to Substitute Jefferson County as Defendant [Docket No. 425].

         I. BACKGROUND

         Plaintiff filed this lawsuit in 2005. Docket No. 1. The Tenth Circuit has summarized the underlying facts of this case as follows:

[Plaintiff] was affiliated with BJC Development Corporation (“BJC”) in 2000 when a real estate transaction between BJC and Jefferson County, Colorado failed to materialize. The ensuing dispute was ongoing in 2003 when [plaintiff] launched the website, and later, These websites served as platforms through which [plaintiff] reported on public meetings and speculated about corruption in Jefferson County government. . . . After the websites caught the attention of several Jefferson County Commissioners, including [defendant, plaintiff] became the target of a variety of antagonistic conduct.

Zinna v. Congrove, 680 F.3d 1236, 1237-38 (10th Cir. 2012) (“Zinna I”). Plaintiff initially asserted a variety of claims against nineteen defendants. Id. at 1238. By the time of trial, however, the only claim remaining was a claim for First Amendment retaliation against defendant James Congrove. Id.; see also Docket No. 273; Docket No. 288 at 3-4. On December 9, 2009, a jury returned a verdict in plaintiff's favor, finding that defendant had “used his authority as a Jefferson County Commissioner to take adverse action against [plaintiff] in violation of the First Amendment to the United States Constitution.” Docket No. 316-1. The jury awarded plaintiff $1, 791 in damages. Id.

         On January 20, 2010, plaintiff filed a motion seeking $491, 417.50 in attorney's fees and costs. See Docket No. 326. The court[1] analyzed the factors set forth in Farrar v. Hobby, 506 U.S. 103, 116-22 (1992), [2] and concluded, based on those factors, that plaintiff should recover only the “reasonable cost of presenting this case to the jury which warrants a fee of $8, 000.” Docket No. 356 at 3. On appeal, the Tenth Circuit found that the court misapplied the Farrar factors and held that plaintiff's “victory was not merely technical” and that plaintiff “is entitled to the reasonable attorneys' fees related to his successful First Amendment claim.” Zinna I, 680 F.3d at 1242. The Tenth Circuit further found that the $8, 000 fee was not based on an appropriate lodestar calculation. Id. The Tenth Circuit remanded the case for further proceedings.

         On remand, the court again found that the jury's minimal award indicated “the jury's evident evaluation . . . that [defendant's First Amendment] violation was merely technical.” Docket No. 391 at 4. Based on the finding that plaintiff established only a technical First Amendment violation, the court awarded plaintiff $16, 240 in attorney's fees, “measured by the application of [plaintiff's counsel's] $290.00 rate to seven hours daily for the eight days” of trial. Id. at 7-8. In a separate order, the court awarded plaintiff attorney's fees and costs totaling $18, 687.50 for the time spent on plaintiff's appeal in Zinna I. Docket No. 398 at 7.

         On appeal, the Tenth Circuit concluded that the court, in limiting plaintiff's award of attorney's fees to $16, 240, “acted in contravention of the law of the case doctrine.” Zinna v. Congrove, 755 F.3d 1177, 1182 (10th Cir. 2014) (“Zinna II”). Because the Tenth Circuit held in Zinna I that plaintiff's victory was not merely technical, the court was not permitted to reach the contrary conclusion on remand. Id. The Tenth Circuit affirmed the court's award of appellate fees, but remanded the case for further proceedings and ordered that the case be reassigned to a different district judge. Id. at 1182-83.

         The case was subsequently reassigned to this Court. Docket No. 412. The Court ordered plaintiff's counsel to file a status report indicating whether the case could be resolved on the current record or whether plaintiff intended to submit further briefing on the issue of appellate fees. Docket No. 418 at 4. Plaintiff indicated that he did not intend to file a motion for attorney's fees with regard to his second appeal, and that the record was “complete for the adjudication of the plaintiff's initial motion for attorney's fees and costs.” Docket No. 419 at 1-2, ¶¶ 1, 3.


         A. Scope of Remand

         The Court begins by clarifying the issues that need not be addressed in this order.

         In his status report, plaintiff states that “it is incorrect to assume . . . that a proper Farrar analysis has previously been performed by the Court.” Docket No. 419 at 3. To the extent this argument implies that the Court is obligated to re-weigh the Farrar factors, the Court disagrees. The Tenth Circuit has already considered the Farrar factors and determined that plaintiff achieved more than a technical victory at trial. Accordingly, the Court may not re-weigh those factors for purposes of this remand. See Zinna II, 755 F.3d at 1180 n.1 (“Our prior opinion made clear that Zinna achieved more than a technical victory at trial. Thus, . . . the district court violated our mandate by reevaluating the Farrar factors and determining trial fees without first calculating a lodestar.”); Zinna I, 680 F.3d at 1242 (remanding “for the district court to determine - based on the facts and the timesheets submitted by Zinna - what work warrants reimbursement”).

         The Court also does not need to address the issue of costs or appellate fees. As the Tenth Circuit noted in Zinna II, Zinna I did not disturb Judge Matsch's September 24, 2010 award of costs. Zinna II, 755 F.3d at 1183. Moreover, plaintiff waived any challenge to Judge Matsch's March 15, 2013 award of appellate fees by inadequately briefing the issue on appeal. Id. at 1182-83.

         The Court's task, for purposes of this remand, is therefore limited to determining a reasonable award of trial attorney's fees.

         B. Lodestar

         Plaintiff moves for an award of $503, 562 in attorney's fees under 42 U.S.C. § 1988(b) and D.C.COLO.LCivR 54.3. See Docket No. 326 at 1; Docket No. 348 at 1, 19 (increasing fee request to $503, 562). Section 1988(b) provides that, “[i]n any action or proceeding to enforce a provision of section[] 1983 . . . of this title . . ., the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b). Because “[t]he purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances[, ] . . . . a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal quotation marks omitted).[3]

         The reasonableness of a fee request is determined by calculating the “lodestar amount, ” which represents the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley, 461 U.S. at 433. While there is a strong presumption that this method yields a reasonable fee, see Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010), the party seeking an award of attorney's fees has the initial burden of establishing 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).

         1. Hourly Rate

         Plaintiff requests compensation for work performed by attorneys Christopher Beall, Chris Paulsen, and Adam Platt, as well as paralegal work performed by Marla Kelly and Steven Zansberg. Docket No. 326 at 5. Defendant argues that the hourly rates for Mr. Paulsen and Mr. Platt are unreasonable. Docket No. 339 at 11, 13.

         A “reasonable rate” is defined as the prevailing market rate in the relevant community for an attorney of similar experience. Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). 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).

         Plaintiff proposes an hourly rate of $225 per hour for Mr. Paulsen. Docket No. 348 at 11.[4] During the period in which Mr. Paulsen served as plaintiff's attorney - June 3, 2005 to November 16, 2006, see Docket Nos. 1, 123 - he was a solo practitioner with between four and five years of legal experience. Docket No. 326-11 at 2. Given Mr. Paulsen's experience, plaintiff's proposed billing rate is well within the range of attorney billing rates reported in the Colorado Bar Association's 2008 Economic Survey, see Docket No. 326-9 at 2 (reporting billing rates ranging from $150 to $286 per hour for an attorney with less than five years in practice), and commensurate with rates approved in other cases in this district. See, e.g., Colo. Right to Life Committee, Inc. v. Kaufman, No. 03-cv-01454-WDM, 2008 WL 4197790, at *3 (D. Colo. Sept. 10, 2008) (finding $200 to be a reasonable hourly rate for “inexperienced attorneys”); Lucas v. Kmart Corp., No. 99-cv-01923-JLK-CBS, 2006 WL 2729260, at *5 (D. Colo. July 27, 2006) (finding $275 to be a reasonable hourly rate for associate attorneys); Bat v. A.G. Edwards & Sons, Inc., No. 04-cv-02225-REB-BNB, 2006 WL 446078, at *3 (D. Colo. Feb. 21, 2006) (approving of $190 hourly rate for attorney with two years' experience). Although defendant argues that $150 per hour would be more appropriate, defendant has not rebutted plaintiff's evidence that $225 per hour is a reasonable hourly rate for an attorney with Mr. Paulsen's experience.[5]

         With regard to Mr. Platt, the Court finds that plaintiff's proposed billing rate - $245 per hour - is high, given that Mr. Platt was an associate attorney with only two to three years of legal experience when he worked on this case. Docket No. 326-1 at 6, ¶ 16; Docket No. 326-8.[6] The Court finds $225 per hour to be a more reasonable hourly rate. Defendant advocates for a lower hourly rate of $175, Docket No. 339 at 13, but makes no showing that such a rate is reasonable for an attorney with Mr. Platt's education and experience. Moreover, the Court has already determined that $225 is a reasonable hourly rate for Mr. Paulsen. Although Mr. Platt had fewer years in practice than Mr. Paulsen, he also had specific experience representing the news media. Docket No. 326-1 at 6, ¶ 16. A rate of $225 is therefore appropriate.

         Defendant does not challenge the hourly rates for the work performed by Christopher Beall, Marla Kelley, and Steven Zansberg. Nonetheless, the Court finds that plaintiff's proposed billing rate of $160 per hour for paralegal work is unsupported. Such a rate is at the high end of the paralegal billing rates reported in the Colorado Bar Association's 2008 Economic Survey, see Docket No. 326-9 at 35 (reporting rates ranging from $74 per hour to $173 per hour, depending on experience), and would only be appropriate for a paralegal with significant experience. Because plaintiff has not provided any information regarding the experience and qualifications of Ms. Kelley and Mr. Zansberg, the Court finds $100 per hour to be a reasonable rate for the work they performed on this case.[7] This rate is consistent with the rates generally approved for paralegal work in this district. See, e.g., Morris v. Potter, No. 06-cv-00432-MSK-CBS, 2008 WL 5381475, at *6 (D. Colo. Dec. 22, 2008) (finding rate of $100 per hour for paralegal time to be reasonable); Infant Swimming ...

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