United States District Court, D. Colorado
KACEM M. ANDALIB, Plaintiff,
v.
JBS USA, LLC, RIGO MENDIOLA, and ANTHONY RICKOFF, Defendants.
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 (10th 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
...