Andalib v. JBS USA, LLC

          OPINION AND ORDER GRANTING MOTIONS FOR ATTORNEY FEES, ADOPTING RECOMMENDATION, AND DISMISSING CLAIMS

          Marcia S. Krieger Senior District Judge

         THIS MATTER comes before the Court pursuant to the Defendants' Motion for Attorney Fees (# 44), Mr. Andalib's response (# 50), and the Defendants' reply (# 55); the Defendants' second Motion for Attorney Fees (# 49), to which Mr. Andalib filed no response; the Magistrate Judge's August 9, 2019 Recommendation (# 58) that Mr. Andalib's claims be dismissed with prejudice, to which no objections have been filed; and the Defendants' “Motion for Ruling” (# 61) on their pending motions, which the Court treats as a supplement to Docket # 49.

         FACTS

         Mr. Andalib commenced this action asserting a variety of claims, including claims sounding in race discrimination under Title VII and 42 U.S.C. § 1983, arising from his termination of employment with Defendant JBS USA. On June 20, 2019, this Court granted (#39) the Defendants' motions to dismiss, among other things, Mr. Andalib's Title VII discrimination claims as unexhausted and his § 1983 claim because he had not made any colorable allegations that the Defendants were state actors. The Court further found that Mr. Andalib's § 1983 claim was frivolous and allowed the Defendants to move for an award of attorney fees that it incurred responding to that claim. The Defendants filed a motion for fees (#44), seeking an award of $4, 129 in fees relating to the §1983 claim. Mr. Andalib responded that the number of hours claimed was unreasonable and not supported by the billing records produced by the Defendants.

         Several discovery disputes then ensued. First, a dispute arose over whether Mr. Andalib had produced all of his e-mails that the Defendants sought. In an Order (# 33) on April 3, 2019, the Magistrate Judge granted the Defendants the right to conduct a forensic review of Mr. Andalib's e-mail accounts. Although the Magistrate Judge directed that the Defendants would “bear the full cost of that examination initially, . . . if it turns our that there are [many] e-mails that [Mr. Andalib] forwarded to himself from his work e-mail and has not previously disclosed, the Court would entertain an argument that the cost of the forensic examination should be shifted to [Mr. Andalib] because of his deception.” The Defendants did conduct the forensic examination and found some 330 responsive e-mails that Mr. Andalib had not previously disclosed, well in excess of the four e-mail chains that Mr. Andalib had previously produced and which he represented constituted “every single e-mail, every single communication, or other document in his possession” that was responsive to the Defendants' requests.

         Second, the parties had continuing disputes over the completeness of Mr. Andalib's responses to the Defendants interrogatories and requests for production. On July 10, 2019, the Magistrate Judge issued an Order (# 45) that granted most aspects of the Defendants' motion to compel. In addition, pursuant to Fed.R.Civ.P. 37, the Magistrate Judge found (# 48 at 23-24) that the dispute was “solely the fault of [Mr. Andalib] and/or [his] counsel, ” and that the Defendants were therefore entitled to an award of their attorney fees incurred in conjunction with the dispute. The Defendants now move (# 49) for an award of: (i) $8, 180 in costs and attorney fees associated with the forensic examination of Mr. Andalib's e-mail accounts; and (ii) $24, 550 in attorney fees attributable to Mr. Andalib's failure to produce discovery, resulting in the order and award of costs by the Magistrate Judge's June 10, 2019 Order. Thereafter, the Defendants supplemented (# 61) that motion with a request for roughly $14, 000 in additional attorney fees, relating to time expended in filing the request at Docket # 49, as well as additional fees the Defendants had since incurred in continuing to obtain the discovery ordered by the Magistrate Judge.

         Mr. Andalib continued to resist production of certain materials ordered by the Magistrate Judge, and on August 8, 2019, the Magistrate Judge held another discovery hearing on the matter. Neither Mr. Andalib nor his counsel appeared. The Magistrate Judge made an oral recommendation (# 59) at that time, later reduced to writing (# 58), that Mr. Andalib's claims be dismissed due to Mr. Andalib's repeated failure to comply with orders of the Court. Since that recommendation was issued, neither Mr. Andalib nor his counsel have filed objections under Fed.R.Civ.P. 72(b), filed any other materials in this action, nor, apparently, have had any further communication with the Defendants' counsel.

         ANALYSIS

         A. Motions for Attorney Fees and Costs

         Once a party has been awarded attorney fees and costs against their opponent, the Court follows the familiar “lodestar” method to determine a reasonable fee to award. Farmer v. Banco Popular of North America, 791 F.3d 1246, 1259 (10^th Cir. 2015). The Court first calculates a “lodestar” figure by demonstrating the reasonable number of hours expended on the particular task, multiplied by a reasonable hourly rate. Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002). The lodestar figure is presumptively reasonable, but the Court may then adjust the lodestar figure upward or downward to account for rare or exceptional circumstances. See Perdue v. Kenny A ex rel. Winn, 559 U.S. 542, 552-53 (2010). The party seeking the fee award has the burden of demonstrating the reasonableness of the hours and rates it seeks and of producing specific evidence - frequently billing records - that support its request. Id. at 553, see also D. Colo. L. Civ. R. 54.3(b).

         1. Fees relating to motion to dismiss § 1983 claims

         Turning first to the Court's award of fees to the Defendants resulting from Mr. Andalib's assertion of two frivolous §1983 claims, the Defendants request an award of $4, 129 in fees, ^[1]reflecting an hourly rate of $300. Mr. Andalib does not challenge the reasonableness of that rate and the Court finds that rate to be in line with hourly rates approved by the Court in various cases in this district.

         In calculating the attorney hours actually spent on addressing the §1983 claim, the Defendants first seek to acknowledge that (with one possible exception) their billing records do not reflect any entries that focus solely on the §1983 claim itself. Rather, the Defendants proffer their general billing records for preparation of the motion to dismiss and contend that certain specific percentages of the recorded time should be understood to relate solely to the §1983 claim. Specifically, the Defendants have calculated that 20.67% of the time they expended preparing the initial motion to dismiss would relate to the §1983 claim specifically, that 6.88% of the time spent reviewing Mr. Andalib's response relates to the §1983 claim, and that 22.33% of the time drafting a reply brief relates to the §1983 claim. The Defendants derive these percentages in various ways: (i) by calculating the number of pages in each document that address the §1983 claim, as a fraction of the total number of pages in the document; (ii) the number of words, paragraphs, lines, or characters attributable to the discussion of the §1983 claim, as a fraction of the full number of such words, paragraphs, lines, or characters; and (iii) the total number of cases cited in the discussion of the §1983 claim, as a fraction of the total number of cases cited in each document.

         Although the Court awards the Defendants full marks for devising clever and creative ways for attempting to measure the unmeasurable, the Court finds that none of these methods produce reliable estimates of the amount of time reasonably spent on the §1983 claim, alone. Page counts, word counts, or numbers of cases cited are not necessarily indicative of the amount of time that an attorney may spend researching, considering and drafting an argument; if anything, brevity in an argument might be a sign that more time was spent in its crafting, not ...