United States District Court, D. Colorado
MICHAEL L. ZINNA, Plaintiff,
JUDY CONGROVE, as personal representative of the estate of James Congrove, deceased, Defendant.
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE.
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].
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 JeffcoExposed.com, and
later, ColoradoExposed.com. 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
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.
January 20, 2010, plaintiff filed a motion seeking $491,
417.50 in attorney's fees and costs. See Docket
No. 326. The court analyzed the factors set forth in
Farrar v. Hobby, 506 U.S. 103, 116-22 (1992),
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
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.
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.
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.
MOTION FOR ATTORNEY'S FEES
Scope of Remand
Court begins by clarifying the issues that need not be
addressed in this order.
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”).
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
Court's task, for purposes of this remand, is therefore
limited to determining a reasonable award of trial
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
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).
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.
“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).
proposes an hourly rate of $225 per hour for Mr. Paulsen.
Docket No. 348 at 11. 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.
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. 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
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. 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 ...