United States District Court, D. Colorado
MARIAN G. KERNER; and ROMONA J. LOPEZ, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
CITY AND COUNTY OF DENVER, Defendant.
SUPPLEMENTAL OPINION AND ORDER AWARDING ATTORNEY FEES
AND COSTS
Marcia
S. Krieger, Senior United States District Judge.
THIS
MATTER comes before the Court pursuant to the
Plaintiffs' motion (# 262) seeking
reconsideration of the Court's October 22, 2018
Supplemental Opinion and Order (#261)
awarding attorney fees, Denver's response (#
264), and the Plaintiffs' reply (#
265).
The
Court assumes the reader's familiarity with the
proceedings to date. The Court has considered the question of
attorney fees on two prior occasions in this case. On May 26,
2017, the Court awarded (# 249) the
Plaintiffs attorney fees in the amount of $894, 044. On
appeal, the 10th Circuit vacated that award,
finding that this Court had not adequately considered the
reasonable number of hours expended by the Plaintiffs'
counsel, and remanded the matter for further findings. On
October 22, 2018, the Court found that a 40% reduction in all
hours claimed by all billing entities was appropriate,
yielding a fee award of $928, 825.
In the
instant motion, the Plaintiffs take issue with three
components of the Court's October 2018 Order: (i) the
Plaintiffs contend that no reduction should have been made to
the number of paralegal hours claimed because Denver had not
previously objected to that number of hours; (ii) the
Plaintiffs contend that, at most, a 30% reduction in the
hours claimed by counsel would be appropriate because Denver
previously agreed to such a reduction; and (iii) the Court
made a mathematical error in its final calculations.
The
Court rejects the first two contentions. In assessing the
reasonableness of a claim for fees, the number of hours
conceded by the opposing party is a relevant consideration
but not a dispositive one. In other words, “the
court's discretion is not absolutely constrained by the
amount of a fee request put in controversy by the
parties” and the court “may well decide to go
below” even the amount conceded by the non-movant.
Robinson v. City of Edmond, 160 F.3d 1275, 1285-86
(10th Cir. 1998). Indeed, the 10th
Circuit cited Robinson for this very proposition in
its prior order in this case. Kerner v. City and County
of Denver, 733 Fed.Appx. 934, 937 (10th Cir.
2018). And though it expresses particular concern where a
court applies a “blanket reduction ratio” when
dropping below a figure conceded by the non-movant - as this
Court did in the October 2018 Order - Robinson does
not indicate that such a conclusion is per se error;
rather, it is “a factor to consider in deciding whether
the court abused its discretion in the magnitude of the cuts
ordered.”
Nevertheless,
the Court deems it appropriate here to amplify the reasoning
underlying this Court's fee award(s). The Court begins by
repeating its finding that the number of hours claimed by the
Plaintiffs in this case has always been excessive. As
discussed in some detail in the Court's 2017 fee order,
the primary dispute in this case was not liability, but
damages. One of the primary aspects of the damage controversy
was a difference in methodology used by experts retained by
the parties. Despite years of dispute as to calculation of
damages, the Plaintiffs' damage expert, Dr. Bardwell,
abandoned his own damage model during the Plaintiffs'
rebuttal presentation. He adopted many features of
Denver's expert's model (reducing the damages
Plaintiffs claimed in their case in chief by more than half).
This last-minute change by Dr. Bardwell rendered a great deal
of what had come before - not just during the trial, but in
pretrial proceedings as well - irrelevant. Because Dr.
Bardwell's initial damage model and calculations were
abandoned by the end of the case, it follows that many of the
hours that the Plaintiff's counsel and staff expended in
preparing and presenting that abandoned model cannot be said
to have been reasonably incurred, and should therefore be
excluded from a fee award. For the same reasons that
attorneys do not generally bill for researching or developing
factual or legal theories that eventually prove fruitless and
are never presented to a court, it seems inappropriate for
the Plaintiffs' counsel to bill for time spent developing
and presenting a comprehensive damage model that they
abandoned by the end of trial. This is particularly true
because the opposing expert opinion and model had been
available to the Plaintiffs long before the trial began.
These
circumstances are indeed extraordinary and the Court has
attempted to grapple with them in various ways. In its 2017
Order, after initially assessing the record and concluding
that any fee award the Court would calculate was likely to be
below the amount of fees that Denver was concededly willing
to pay, the Court cut the process short and simply awarded
the amount proposed by Denver. When the 10th
Circuit took issue with that approach, this Court returned to
the question in its October 2018 Order. Because this Court
had rejected Denver's proposed hourly rates, the Court
elected not to consider Denver's arguments regarding the
number of hours that were tied to those rates. As this Court
has previously held on several occasions (including in its
2017 Order), a reasonable hourly rate and the reasonable
number of hours incurred on any given task are matters that
exert some influence upon each other. An experienced attorney
claiming a particularly high hourly rate will be expected to
work with a level of efficiency and economy that would not be
expected from a less-experienced attorney charging a lower
hourly rate. Thus, once the Court rejected Denver's
proposed hourly rates, Denver's position on the
reasonable number of hours incurred by the Plaintiffs became
less persuasive.[1]
Instead,
the Court considered its own experience as trier of fact when
evaluating the reasonableness of the Plaintiffs' claimed
hours. Robinson, 160 F.3d at 1285-86. It has long
been clear that a line-by-line examination of the
Plaintiffs' billing records would be a futile task, both
because of the length of this litigation and the inability to
surgically excise vast amounts of time that were devoted to
developing and presenting Dr. Bardwell's since-abandoned
methodology. Lacking precise tools to determine the number of
hours reasonably expended by the Plaintiffs, the Court was
left with the blunt instrument of blanket reductions.
Contrary to the Plaintiffs' argument here, such an
approach has repeatedly been permitted by the 10th
Circuit. See generally Case v. Unified School Dist.,
157 F.3d 1243, 1250 (10th Cir. 1998), citing
Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203
(10th Cir. 1986).
Needless
to say, there can be no precise means to fix a specific
percentage for a reduction. The Court is mindful that it may
not simply “eyeball the fee request and cut it down by
an arbitrary percentage.” Robinson, 160 F.3d
at 1281. At the same time, the nature of an across-the-board
reduction is that it is not susceptible to specific
quantification. Here, as discussed above, the Court was
particularly troubled by the fact that the Plaintiffs'
damages case was fundamentally reshaped mid-trial, and both
the importance of the damages methodology and differences in
the methodology used by the expert witnesses was known to the
parties long before the trial occurred.
Issues
related to damages substantially predominated over all other
issues in this case. By means of example, of the 59-page
transcript of the Court's oral ruling
(#223) at the conclusion of trial, 22 pages
were devoted to analyzing the question of liability and 37
pages were devoted to findings and conclusions relating to
damages. Even then, owing to the parties' shifting damage
models, the precise quantification of damages required
further briefing by both sides and, ultimately, a
supplemental 16-page written opinion (# 249)
by detailing additional findings by the Court regarding
damages.[2]
The
decision by the Plaintiffs to abandon one damage model and
adopt a different one so late in a case that reflects a
troubling lack of focus in pre-trial and trial proceedings.
No. explanation is offered as to why Dr. Bardwell changed his
analytical approach and adopted Denver's at trial rather
than at an earlier point in the pre-trial process. Few
attorneys would bill their clients for extensive fees where
much of what counsel prepared as to the central issue in the
case was abandoned at trial and reframed on-the-fly.
Certainly, the Plaintiffs are entitled to recover some degree
of fees incurred in preparing their original damage model, as
it appears that Dr. Bardwell was able to salvage and port
over to his revised model various data sets, assumptions, and
calculations that were prepared as part of his initial model.
But because damages were the central focus of much of this
case and the Plaintiffs so dramatically changed damage
approaches mid-trial, the Court finds that a substantial
reduction in claimed hours is warranted. Based on the
Court's familiarity with the proceedings in this case, an
across-the-board reduction in hours that approaches 40%
suffices to reflect these circumstances.
On top
of this, the Court has previously remarked upon other factors
contributing to a necessary reduction in claimed hours,
including inefficiencies in the presentation of evidence and
the Plaintiffs' limited degree of success relative to the
huge damage figures they initially proffered. Although these
factors suggest that relatively modest adjustments to the
number of hours claimed (or, in the case of degree of
success, subsequent adjustment to the lodestar figure) are
appropriate, those modest adjustments nevertheless
contributed to nudge the Court towards the 40% figure that it
ultimately selected. All tolled, the Court is confident that
the 40% across the board reduction reflects a careful
consideration of the circumstances of this case as they bear
upon the reasonable number of hours expended. For these
reasons, the Court sees no basis to modify its October 2018
Order.
The
Court also rejects the Plaintiffs' argument that the
October 2018 Order contained a mathematical error. The
Court's calculations are set forth in detail at page 2 of
that order, and it is not clear which particular term in the
equation the Plaintiffs suggest is erroneous. From the
Court's review of the Plaintiffs' calculations in the
instant motion, it appears that the alleged error arises from
the Plaintiffs using Denver's brief as the
source of the actual number of hours the Plaintiffs claim.
But the Court derived its calculations from the chart in the
Plaintiffs' own initial fee motion: Docket # 245
at page 20.[3] That motion indicates that the number of
hours claimed for Kenneth Padilla is 2, 336 (not 2, 359 as
claimed in the current motion); 733 hours for Joaquin Padilla
(rather than 737 as claimed in the current motion), and 698
for Mr. Moya. Because the Court based its calculations on the
hours recited in the Plaintiffs' motion, not Denver's
response, the Court finds no calculation error requiring
correction.
Accordingly,
although the Court has reconsidered its October 2018 ruling
in light of the Plaintiffs' arguments herein, the Court
finds no reason to modify that order. The ...