Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants.

PLAINTIFF'S REPLY RE: MOTION FOR ATTORNEYS' FEES, COSTS, AND INTEREST

The plaintiff, Michael E. Clawson, through his undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit his Reply Re: Motion for Attorneys Fees, Costs, and Interest, and in support thereof, states as follows: I. BACKGROUND INFORMATION

Clawson did not include a background section in his motion in the belief that Judge Krieger would be deciding the motion, and she is already familiar with the case. However, because the motion has been referred to the magistrate, the fourth assigned to the case, it is appropriate to include a brief summary. The case was originally brought by four plaintiffs against Mountain Coal for violation of various provisions of the ADA, as well as claims under state law related to the same facts. All four plaintiffs had been injured on the job and pursued their workers' compensation benefits. All

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four received permanent partial disability awards under workers' compensation, and they all received what appeared to be permanent work restrictions. Pursuant to defendants "no

restrictions" policy, no one with work restrictions was allowed to return to work. All four plaintiffs were placed on short-term disability. At the completion of 26 weeks of STD benefits, all four were terminated pursuant to a company policy calling for automatic termination at the end of 26 weeks of STD benefits. Although there were variations amongst the plaintiffs as to dates, previous jobs, and limitations, these were the essential facts underlying the case. In addition to the above disputes, a claim that Mountain Coal, Arch Western Resources, and Arch Coal constituted one integrated enterprise was added. There were disputes over the nature of the work at the mine, with defendants claiming there were only two underground jobs, miner and mechanic, and plaintiff asserting there were several specific jobs. There was also a dispute to the existence of a transfer policy between mines. Two plaintiffs, Bartlett and

Richards, were dismissed on summary judgment. The court ruled there was an absence of evidence that they could return to their old jobs, even with accommodation, and an absence of evidence that any job they could do was available. Although the jury returned a verdict for Dillon, the court overturned this, ruling there was an absence of evidence he was regarded as disabled. Clawson prevailed at trial. Clawson presented one claim at trial, although he originally brought several. Clawson received the relief he desired, which was monetary compensation for the wrong defendants did him and recognition that they had violated his rights. Clawson asked for $235,431 in economic damages and the verdict was for $236,000. Clawson asked for $100,000 in non-economic damages, and received $250,000. The jury found that defendants

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willfully violated the ADA, but awarded no punitive damages. In light of the compensatory damages cap, the jury could only have added $50,000 to Clawson's total award of compensatory and punitive damages. The jury found that defendants were an integrated enterprise. The court rejected defendants' argument that economic damages should be reduced to an amount between $20,000 and $65,000, and offset Clawson's economic damages for amounts received in shortterm disability and long-term disability insurance benefits. II. D.C.COLO.L.CIVR 54.3(B) ­ QUALIFICATIONS The qualifications of the three primary attorneys on the case, Mr. Killian, Ms. Jensen, and Mr. Davis, is significant to the determination of a reasonable attorney fee for the firm of Killian, Guthro & Jensen, P.C. As lead counsel, Mr. Killian oversaw and reviewed virtually every aspect of this case. Mr. Killian delegated tasks to the associates and paralegals under his supervision to best utilize their experience and qualifications. Mr. Killian would review every assignment or task performed, be it a motion or a letter, before it would be filed or delivered. While some work was preformed independently by fellow shareholder Ms. Jensen, or was overseen by her, the vast majority was performed under the supervision of Mr. Killian. A. Attorneys and Law Clerk Challenged by Defendants

Plaintiff, in order to limit pages, generally described the qualifications of the other attorneys, all but Mr. Guthro were associate attorneys, who worked on the case under the general qualifications of the firm: "Plaintiff's firm has a good reputation in the community as employment and discrimination attorneys. Killian, Guthro & Jensen, P.C. is one of the few law firms in western Colorado that practices plaintiff's employment law." Plaintiff's Motion for Attorneys' Fees, p. 10. Plaintiff informed defendants and the Court of each timekeeper's position

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with the firm in Exhibits 1 and 23 of the original motion for attorneys' fees. Defendants specifically challenge the following timekeepers because a specific listing of qualifications for each was not provided: Mr. Guthro, Mr. Angel, Ms. Butler, Ms. Neff, Ms. Threat, and Mr. Richter. Defendants do not challenge that Mr. Richter is an attorney; in fact defendants provide information demonstrating Mr. Richter is an attorney in the state of Colorado. See Defendants' Exhibit E. While plaintiff did not expressly state Mr. Richter was a first year associate at the time of trial, plaintiff does allude to this when he stated: "Plaintiff further reduced the fees of Mr. Richter where appropriate for ... his lack of experience ...." Mr. Richter was supervised by Mr. Killian, his qualifications were known to defendants, and the court has this information. It would be inappropriate to eliminate Mr. Richter's attorney fees. Defendants do not challenge that Ms. Threat was an attorney in good standing with the state of Colorado at the time of her work on the case; in fact defendants provide information demonstrating Ms. Threat was licensed to practice law in the state of Colorado. See Defendants' Exhibit E. Ms. Threat is another member of the firm, Of Counsel, who would be included in the general description of the firm's experience in employment and discrimination law. Ms. Threat has been licensed to practice law in the state of Texas since 1979. Exhibit 54. Ms. Threat was an adjunct professor at the University of Texas School of Law from 1993 to 1996. Ms. Threat's role at the firm was to research, draft, edit and produce appellate and trial briefs, particularly in the area of civil rights and the ADA.1 While Ms. Threat did work independently on a multitude

1

Ms. Threat was a weighty contributor and author of the winning brief for the first ADA case heard by the Colorado Supreme Court, Community Hospital v. Fail, 969 P.2d 667 (Colo. 1998).

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of pleadings, her work was directed and reviewed by Mr. Killian.

As defendants do not

challenge Ms. Threats standing as an attorney, there is no legitimate reason to eliminate her fee. Besides Ms. Threat and Mr. Richter, the other attorney timekeepers in this case ­ Mr. Guthro, Mr. Angel, Ms. Butler, and Ms. Martin-Neff ­ contributed a minor portion of the total hours. As discussed previously, Mr. Angel, Ms. Butler, and Ms. Martin-Neff were under the supervision and direction of lead counsel, Mr. Killian. Mr. Guthro, as indicated in the firms name, was a shareholder who provided advice and work on a limited number of issues. Defendants know of or have obtained information regarding the experience of each of these attorneys and provided that information to the Court. See Defendants' Exhibit E. There is no justification for eliminating their attorney fees. Lastly, Mr. Yeretski was listed as a law clerk in Exhibits 1 and 23 of the original motion. Mr. Yertski's job title makes it apparent that he was a law student working under the supervision of lead counsel. Plaintiff has reduced the applicable fees of Mr. Yeretski where appropriate. Exhibit 12. There is no legitimate reason to eliminate his fee. B. Paralegals Challenged by Defendants

Plaintiff is not aware of any case law which requires the prevailing party to describe in depth the experience of paralegals billed on the case. There is no standard education or testing requirement for paralegals in the state of Colorado, such as for attorneys. Plaintiff has complied with D.C.COLO.LCivR. 54.3(B)(2) by providing a general description of the experience of Ms. Stahl and Ms. Southern, who together provided 1,807.35 hours of the total 1,935.36 hours of paralegal time billed on Clawson's Case. The other paralegal time in this case makes up less than 7% of the total paralegal time billed in this case.

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The plaintiff's firm has only listed as paralegals timekeepers who are qualified to be, and in fact are, paralegals at Killian, Guthro & Jensen, P.C. See Exhibit 55. Furthermore, the plaintiff's counsel does not track the time of secretarial or support staff, such as Mr. Killian's assistant or its accounting clerk. The appropriateness of the fee for the paralegals should be based on the tasks being performed and the time to perform those tasks, not where they went to school. Defendants and the Court have been provided this information for each paralegal.

Exhibits 13 - 22. The court should allow all paralegal time billed for tasks performed by paralegals. C. Breaux v. Am. Family Mut. Ins. Co.

Defendants cite to Breaux v. Am. Family Mut. Ins. Co., 2007 WL 915487, at *3 (D. Colo. 2007), for denying a motion for attorney's fees based in part on failure to comply with Local Rule 54.3. Defendants do not provide the background of this case, nor do they specify which part of Local Rule 54.3 was not complied with in that case. Defendants' broad statement that the court declined attorney fees in Breaux "in part on failure to comply with Local Rule 54.3" does not provide the whole story of the case or reasoning for the denial of attorney fees. On November 2, 2006, after a four day trial for breach of an insurance contract, the jury awarded Plaintiff Whitehead $250,000.00 in noneconomic damages and $1,000,000.00 in exemplary damages. Breaux v. Am. Family Mut. Ins. Co., 2007 U.S. Dist. LEXIS 20968, at *2 (D. Colo., March 23, 2007).2 Exhibit 56. After the verdict, Plaintiff Whitehead orally moved for an increase in exemplary damages. Breaux v. Am. Family Mut. Ins. Co., 2007 U.S. Dist. LEXIS 10202, at *6 (D. Colo., February 13, 2007). Exhibit 57. The court deferred entry of judgment

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Lexis cite for the case cited by Defendants Breaux v. Am. Family Mut. Ins. Co., 2007 WL 915487 (D. Colo. 2007).

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and set a briefing schedule on plaintiff's motion. Id.

On November 16, 2006, Plaintiff

Whitehead filed his motion to increase the exemplary damages award and enter judgment. Id. Also at that time, plaintiff argued for an award of attorney's fees and costs. Id. at *7. On

February 13, 2007, the court denied the motion for attorney's fees in its present form; apparently the motion only consisted of a singular sentence. Id. at *30. ("Plaintiff Whitehead's one-sentence motion simply cannot suffice."). The court then permitted Plaintiff Whitehead to submit a Plaintiff Whitehead's subsequent motion for

proper motion pursuant to Local Rule 54. Id.

attorney fees is the subject of Breaux v. Am. Family Mut. Ins. Co., 2007 WL 915487; 2007 U.S. Dist. LEXIS 20968 (D. Colo. March 23, 2007). On February 23, 2007, Plaintiff Whitehead filed a motion requesting he be allowed to file his motion for attorney fees out of time, "[up] to and including March 6, 2007." Breaux, 2007 U.S. Dist. LEXIS 20968, at *4. On February 26, 2007, the court granted Whitehead's motion. Id. On March 6, 2007, Whitehead filed a declaration, ostensibly in support of the motion for attorney fees, but did not file the actual motion for attorney fees until March 7, 2007, one day beyond plaintiff's self-imposed deadline. Id. at *4-5. Whitehead provided neither a reason why the motion was filed late nor an argument for excusable neglect leading to untimeliness of the motion. Id. at *7. Due to the motion being filed late the court declined the motion. Id. In what amounts to dicta, the court went on to evaluate the form of the motion, concluding the motion would also fail on form. Id. Whitehead's counsel did provide

qualifications of the attorneys in the form of biographical exhibits from counsel's website. Id. at *8-9. Counsel also provided a one-page typed document that had "at least as much personal information as it [did] professional information" leaving the court at a loss as to its relevance

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under Local Rule 54.3. Id. at *9. The court was concerned with the complete absence of an affidavit supporting the motion and the declaration was insufficient to satisfy Local Rule 54.3. Id. at *9 ­ 10. "Finally, the most damning problem with Plaintiff Whitehead's submissions is the motion's content, or rather, its lack thereof. The motion does not contain the `detailed

description of the services rendered, the amount of time spent, the hourly rate, and the total amount claimed' required under Local Rule 54.3." Id. at *11-12. The qualifications were the least of Whitehead's counsel's problems. Actually, it appears the qualifications, other than the one containing personal information, might have been the only thing counsel did competently. Counsel for Whitehead showed incompetence throughout the proceedings after judgment was entered by the court, failing in every aspect of his attorney fees request but one. When given the opportunity to cure the defect in his first motion he failed to do so, and failed to follow the court's instructions. The circumstances of Breaux are different from those of the present request for attorney fees by Clawson. Clawson's motion was filed on time and was complete with the qualifications of the three primary attorneys who litigated the case from its early stages through trial, along with a general description of qualifications of the firm as a whole. Clawson provided affidavits from lead counsel and the primary associate attorney on the case in support of the motion for attorney fees. The motion by Clawson consisted of twenty-two pages with case law and factual basis to support the award of attorney fees, along with hundreds of pages of exhibits detailing the hours worked by each timekeeper with a description of the tasks performed, time worked, hourly rate, and total amount billed. The efforts and work done by Whitehead's counsel and Clawson's counsel in support of their respective motions for attorney fees could not be more dissimilar. If

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there is any deficiency in Clawson's request for attorney fees, in terms of qualifications or Local Rule 54.3, they are minor and are not prejudicial to defendants, who were able to readily confirm the qualifications of each attorney. Even if Clawson's motion contains deficiencies, he should be given an opportunity to cure them, like the plaintiff in Breaux. III. HOURLY RATES Defendants challenge three hourly rates billed by plaintiff's counsel: 1) Damon J. Davis at $150.00, Joanna C. Jensen at $200.00, and Beecher Threat at $200.00. Defendants do not

challenge the rates billed by the other attorneys who worked on this case. Those rates should be deemed reasonable by this Court. Defendants challenge the rates billed by paralegals in excess of $50.00 per hour, a rate deemed reasonable by defendants. Plaintiff will first address the case law, and then address the defendants' specific rate challenges. Defendants interpret the current rate discussed in Ramos to be the present rate charged by a firm for a lawyer based upon the level of experience. The defendants assert each attorney should be billed at the current rate for the level the attorney was when he did the work on the case, which is not the plain meaning of current rate. For example, defendants argue that Damon Davis should be billed at $90.00 for work done in his first two years, $125.00 per hour for work done in his third and fourth years, and then his current rate as a fifth year associate. Defendants' assertion is not supported by the plain meaning of Ramos or even a logical interpretation. The 10th Circuit states in Ramos: The hourly rate at which compensation is awarded should reflect rates in effect at the time the fee is being established by the court, rather than those in effect at the time the services were performed. The lawyers seeking fees usually will not have been paid for their services until the court makes its allowance. We think that awarding compensation at current rates will roughly approximate periodic compensation adjusted for inflation and interest and will obviate the necessity of

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guessing when periodic billings would have been made and paid in analogous private practice situations. 713 F.2d 546, 555 (10th Cir. 1983) (emphasis added). Ramos mentions nothing about rates at a certain level of experience. This notion would be contrary to the reasoning of the court stated in the last sentence of the above paragraph. The court wants to simplify the process and eliminate computation of changing fees. Since the beginning of this case plaintiff's firm has not adjusted their billing rates for each level of experience, e.g., a first year associate is billed at the same rate today as when Clawson's case began in 1999. If defendants' notion of current rate at a certain level of experience were followed there would be no adjustment for interest, as referenced in Ramos. It is uncommon for a firm to change its billing rates per level of experience during the course of the average case from fee agreement to judgment. Therefore, defendants' interpretation of Ramos would leave

the phrase "current rate" meaning nothing more than historical rate. Defendants provide no case law to support their interpretation. Thus, this Court should give plain meaning to the phrase "current rate" and award fees based on the rate plaintiff's firm bills for each attorney at this time, the point in time of the fee being established by this Court. A. Damon J. Davis - $150.00 per hour

Damon J. Davis is a fifth-year associate at Killian, Guthro & Jensen, P.C. who is billed at the current hourly rate of all fifth-year associates of the firm, $150.00 per hour.3 Mr. Davis has worked on Clawson's case since he began with the firm in 2002, as a first year associate. In accordance with the Ramos, Mr. Davis is to be billed at his current rate.

Defendants argue in a footnote 3 on page 12 of their response that the rate of $150.00 per hour is unsupported for a fifth-year associate by referencing to the rates of Barbara Butler and Lauretta Martin-Neff. However, neither Ms. Butler nor Ms. Martin-Neff achieved the level of a fifth-year associate with Killian, Guthro & Jensen, P.C. Plaintiff did not find it proper to bill these two associates at a level of experience they did not achieve at plaintiff's law firm.

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Defendants' notion in footnote 4 on page 13 of their response that Mr. Davis' billing rate was adjusted upward because of this fee application is unfounded. Mr. Davis's billing rate was increased only because he attained his fifth year with the firm. Defendants point out certain reductions were made a lower rate. Plaintiff has revised those reductions at the current billing rate of $150.00 per hour which amounts to a total reduction of $11,987.41 from Mr. Davis' raw billing total, instead of the previously stated reduction of $10,465.58. This amounts to an additional reduction of $1,521.83 from the total fee request B. Joanna C. Jensen - $200.00 per hour

Joanna C. Jensen is a shareholder at Killian, Guthro & Jensen, P.C. who is billed at the current hourly rate of another shareholder of the firm, $200.00 per hour.4 Ramos, Ms. Jensen is to be billed at her current rate. hourly rate billed by Ms. Jensen. C. Beecher Threat - $200.00 per hour In accordance with

There should not be a reduction in the

Beecher Threat was Of Counsel to Killian, Guthro & Jensen, P.C., not a fifth year associate alleged by defendants. Ms. Threat's qualifications were described in section II.A above and are contained in Exhibit 54. Defendants' concerns about Ms. Threat's billing are unfounded and not supported by any case law. Plaintiff has already taken a voluntary reduction of fifteen percent (15%) on many of the tasks performed by Ms. Threat due to block billing. See Carr v. The Fort Morgan School District, 4 F.Supp.2d 998, 1003 (D.Colo. 1998). There is no need to further reduce the amount billed by Ms. Threat or to reduce her rate billed.

Defendants note on page 14 of their response that Ms. Jensen is a shareholder of the firm and is billed at the same rate of $200.00 per hour as another shareholder of the firm, Mr. Guthro.

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D.

Paralegal Rate

Defendants challenge paralegals being billed at a rate greater than $50.00 per hour, a rate conceded by defendants. The two most experienced and qualified paralegals to work on Clawson's case, Ms. Stahl and Ms. Southern, were billed at $50.00 per hour. Plaintiff agrees that $50.00 per hour is a reasonable rate, and will adjust downward the rate of any paralegal billed above $50.00 per hour. The only paralegals billed over $50.00 per hour were Ms. Mitchell and By reducing the rates of these two paralegals to

Ms. Pearson, both billed at $65.00 per hour.

$50.00 per hour, Ms. Mitchell's billing will be reduced from $861.11 (Original, $711.10, and Supplement, $150.005) to $697.00 and Ms. Pearson's billing will be reduced from $1,605.00 to $1,250.00. This leads to a total fee request reduction of $519.10 for paralegal time. IV. HOURS A. 1. Time Keeping Vague

Defendants allege the billing entries are vague making it difficult to tell what work was done and as to which plaintiff it related. The standard for billing entries is not high, requiring only that "counsel ... identify the general subject matter of his time expenditure." Hensley, 461 U.S. at 437, FN 12. Defendants were able to isolate billing entries related to various motions which defendants assert plaintiff should not recover fees, e.g., Plaintiff's Motion to Compel (Dkt. No. 137), Plaintiffs' Motion to Strike Defendant's Response to Plaintiff's Objections to Magistrate Order (Dkt. No 67), Defendants' Motion to Dismiss pursuant to Rule 12(h)(3), etc. See Defendants' Response pp. 27-35. Defendants were given enough description by the entry,
Plaintiff billed Ms. Mitchell at $50.00 per hour in his Supplement to the Motion for Attorney Fees, in anticipation that he could not justify the higher rate of $65.00 per hour, in light of the billing of Ms. Stahl and Ms. Southern.
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the date of the entry, and the context of other entries around that time frame to determine specific work done on particular pleadings. supported. 2. Contemporaneous Billing Defendants' general allegations of vagueness are not

The firm's billing is done contemporaneously, despite defendants implying otherwise. The standard practice of the firm is for every attorney and personal injury paralegal to contemporaneously write down the time expended on each task for a client. Every timekeeper has a procedure and form sheet to keep track of time and provide a description of the tasks performed. For associates and paralegals, the timekeepers input their time spent on matters into the firms billing software, Tabs, where the time is logged electronically under the client number and given a reference number. For shareholders, the timekeepers provide their daily time sheet to the receptionist and billing clerk, Ms. Katherine Anderson, who then inputs the shareholders' time into the firms billing software, where the time is logged electronically and given a reference number. The billing entries amount to over 9,000 individual entries, including both the original and supplemental attorney fees requests. The defendants, without substantiation, suggest that plaintiff's counsel has added entries. To do this would not only be unethical but also impractical, and was not done here. 3. Non-Standard Billing Increments

Plaintiff admits there are non-standard billing increments in the billing record. This occurs for two reasons: 1) The billing system dividing the time spent on each entry by the amount of clients in the case, and 2) Some paralegals and associates did participate in non-

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standard billing increments. Defendants have cited no authority requiring a specific type of billing, so long as the billing is accurate. The billing system for this case was set up for four clients originally. When time was entered into the billing system it would be divided equally among the four clients. However, this dividing would lead to rounding problems; resulting in non-standard increments when the time was converted back to the total time worked on a particular entry. The rounding could be either up or down. Plaintiff did not adjust the rounding in fear of creating inaccuracies. Paralegals and some associates were billing in non-standard increments, such as fourths, thirds, or even sixths of an hour, along with the standard tenths of an hour. This was not done to increase time billed, but was done by the legal staff to most accurately reflect the time spent on a particular matter. No authority cited by defendants prohibits non-standard billing increments. 4. Plaintiff Did Not Significantly Modify Billing

Plaintiff did not significantly modify the billing records. Defendants are attempting to read alternative meanings into time entry descriptions of Mr. Richter. References to "synching up meetings" was Mr. Richter's attempt to see which meetings involved which legal staff to fully understand what happened in the meeting. This is needed to check for duplication of effort. Mr. Richter did not modify the recorded times of an individual timekeeper in a meeting. Mr. Richter did make sure that all time entries for witness' testimony time coincided with the court record and Mr. Killian's timesheet. During trial Mr. Killian kept track of the time for each individual who testified in the case. The only modification that occurred was the elimination of time recorded above the time indicated in the court record or the specific amount of time for each witness was added in parenthesis in the billing entry description where the entry

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was generally described as "trial."

Mr. Richter did not add entries to the billing record.

References to adding missing entries refers to notifying a timekeeper that they had not entered their timesheet information into the electronic system. References by Mr. Richter to "rounding corrections" involved his attempt to see what could be done to address the rounding done by the computer system. In the end nothing could be done and plaintiff decided it was better to not modify any entries. 5. Billing Judgment was Utilized by Plaintiff's Counsel

Mr. Killian, lead counsel, set out the parameters, categories, and rules for which billing entries should be kept and which billing entries should be reduced or deleted. Mr. Killian and Mr. Richter had discussions on the type of entries that should be deleted or reduced based on the relevant case law in the 10th Circuit and other jurisdictions. Mr. Richter's task was to follow the direction of Mr. Killian while going through each timekeeper's billing. Mr. Richter was not utilizing his own billing judgment, but was following the billing judgment of Mr. Killian. Defendants' expert, Sander Karp, opined that Mr. Killian exercised the billing judgment as to the time records. See Defendants' Exhibit A, p. 8. ("However, my impression from the Motion was that Mr. Killian [exercised billing judgment].").6 Defendants, and Mr. Karp, throughout their response criticize plaintiff for not maximizing associate time, utilizing an attorney at a lower billing rate. When plaintiff does delegate the humdrum task of going through over 9,000 billing entries7 to the most junior attorney on the case, with the parameters for billing judgment set forth by the senior attorney,
6

Therefore, the rest of Mr. Karp's opinion, that first or second year associate should not exercise billing judgment, would appear to be simply hypothetical and not actually applied to the facts of this case. 7 Includes both the original request for attorney fees, nearly 8,350 entries, and supplement request for attorney fees, over 950 entries.

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defendants admonish plaintiff. The assignment to Mr. Richter of the task of individually going through each billing entry was proper by Mr. Killian and the most cost-effective manner to review the billing.8 B. Secretarial Duties

Defendants attempt to mention a few tasks that may or may not be classified as "secretarial tasks" and state there are numerous other entries containing the same. Plaintiff has gone back and reviewed all of the paralegals' billing and descriptions finding an additional 112 entries (including those listed by defendant) out of 3,495 entries. These "missed" entries are about 3.2% of all paralegal entries and 1.2% of all billing entries. The 112 entries amount to $1,673.65, out of $98,384.87 requested for paralegal time. This amounts to less than two percent (2%) of the total amount requested for paralegals, nowhere near the fifty percent defendants insist paralegal billing should be reduced for secretarial tasks. Plaintiff has attached the

additional entries to be deleted from his request in Exhibit 58 and will reduce the $1,673.65 from his final demand of attorney fees. Defendants want to take broad-brush reductions for the mere mentioning of faxing, mailing, copying, or distributing in the description of an entry. "[P]urely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them." Missori v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989) (emphasis added). Defendants fail to account for the other tasks performed in relation to the task that may be perceived as secretarial in nature, making these tasks not "purely clerical or secretarial tasks." If information comes into the firm

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Defendants complain of inconsistent reductions. However, this is the result of some entries having multiple reasons for being reduced, such as block billing and some work on an unsuccessful plaintiff. The basis for, and general percentage reduction, were explained in the initial motion.

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the paralegal must assess which attorney it should go to and whether it creates any deadlines that must be calendared. This may require consultation of the court rules. When a paralegal prepares documents, or drafts documents not involving legal advice, she must also send them. It is most efficient for the paralegal to send the items herself, and this work is added to the time entry. Where faxing, delivering and/or mailing are the only task being described, the time should be deleted as secretarial tasks. Billing where the primary or only task description relates to accounting for depositions, experts, or other costs should also be deleted as secretarial tasks. Plaintiff deleted the 112 entries describe above for these reasons. Defendants list ten entries by Ms. Southern and quote nine by Ms. Stahl9 to establish these few entries represent nearly 50% of the entries. This is a disingenuous attempt by defendants to increase the reductions of legitimate entries. Plaintiff has attached an exhibit addressing each of those entries specifically listed by defendants, some of which were not secretarial. Exhibit 59. All of these secretarial deletions were for entries of $30.00 or less, many were for $10.00 or less. Defendants contest the time of Ms. Dukett-Cotts as being secretarial. Plaintiff has

deleted some additional billing of Ms. Dukett-Cotts that would be considered secretarial. These reductions are included in the additional reductions for all paralegals. Exhibit 58. Defendants point to an error in the billing fee request of DuKett-Cotts. The error is not in the total amount billed, but the stated total hours billed. The total hours were incorrectly stated as 6.2 hours, it should have been stated as 12.9 hours. This error is apparent if one adds up her hours on her individual exhibit.

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Defendants also list an additional fifteen entries by Ms. Stahl only by reference number, without quoting the entry.

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C.

Reason For Multiple Timekeepers

Defendants blindly state that there were nineteen different timekeepers ­ nine attorneys, one law clerk, and nine paralegals ­ without any reference to the time frames these timekeepers worked on the case or whether a timekeeper was doing a limited task or support work on the case. During the course of a seven year litigation it can be expected there would be personnel turnover. It can also be expected there would be a need for extra attorneys working on the case during times of high volume pleadings.10 At any one time on the case there has been no more than three attorneys primarily assigned to the case. Exhibit 60. The times when there have been more than three attorneys on the litigation are when there has been a need to assign particular tasks, such as a response to a motion, because the primary attorneys on the case needed support. In an effort to limit attorney billing and conserve the firm's limited attorney resources, Ms. Jensen withdrew from the case when it became apparent the case did not call for two shareholders. Four attorneys, Ms. Threat, Mr. Angel, Ms. Martin-Neff, and Ms. Butler, left the firm during the course of the litigation. Ms. King, Clawson's rebuttal expert, refutes Karp's assertions that too many attorneys were assigned to the case. Exhibit 61, p. 9-11. Ms. King also refutes the assertion that the case was simple, not justifying the use of Of Counsel Ms. Threatt. Exhibit 61, p.4-6.

10

At page 24, defendants suggest a 5% general reduction due to the inclusion of three timekeepers with minimal time. This is overreaching, even if a reduction were appropriate, because it would amount to a reduction over three times their actual billing.

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The case law does not support the notion that multiple attorneys working on a case is inappropriate.11 This case is distinct from United Phosphorus v. Midland Fumigant, Inc., 205 F.3d 1219, 1234 (10th Cir. 2000). United Phoshorus involved "seven partners, thirty-two associates, one summer clerk, ten paralegals, and one document clerk." Defendants had two partners working on this case for a substantial part of the case, including at trial. Plaintiff does not know, nor does defendant indicate, the numerous associates delegated to certain tasks throughout the litigation by defendants' law firm. See Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998) ("The court can look to how many lawyers the other side utilized in similar situations as the effort required."). A reduction would only be appropriate where duplicative work was performed by attorneys; defendants have not established any of the work by plaintiff's attorneys was duplicative. Ramos, 713 F.2d at 554 ("Because utilizing more than one lawyer may be reasonable in some situations ... we decline to require an automatic reduction of reported hours to adjust for multiple representation or potential duplication."). Defendants insist that collaboration is not necessary between attorneys and that meetings are not needed to assign tasks. Attorneys attending the same meeting or collaborating on a particular task is not per se duplicative work. Proper preparation often requires collaboration among attorneys, particularly a junior attorney with a senior attorney. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1077 (10th Cir. 1998). In order to effectively delegate tasks to associates and paralegals, and thereby reduce overall billing, conferences among attorneys and paralegals

11

Clawson addresses the issue of too many timekeepers because it was raised by defendants and Karp. However it appears defendants have waived this argument by stating in the response to the motion for discovery that they are not challenging the number of timekeepers generally, but only specific instances of too many attorneys at hearings, deposition, or meetings. Docket No. 511, p.3.

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are reasonable and necessary. Without meetings, the shareholder would have to do all the work, increasing overall billing. V. DEFENDANTS CANNOT PIECEMEAL THE LITIGATION A. Clawson's Overall Success

Defendants attempt to piecemeal the litigation despite the Tenth Circuit's repeated recognition that "[m]uch of counsel's time will be devoted generally to the litigation as a whole." Jane L. v. Bangerter, 61 F.3d 1505, 1511 (10th Cir. 1995). "Litigants in good faith may raise alternate legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee." Id. at 1512 (emphasis added). "The critical issue, then, is whether the unsuccessful claims were `related claims' or `distinct in all respects' from the successful claims." Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1103 (10th Cir. 2005)(emphasis in original). Related claims are those based on "a common core of fact" or based on "related legal theories." Jane L., 61 F.3d at 1512. As described above, all of the claims in this case were interrelated. Defendants have not challenged this conclusion. It is not relevant to the attorney fees determination whether plaintiff succeeded on all claims or on every motion. Since plaintiffs succeeded on the merits and achieved excellent results . . . plaintiffs' counsel are entitled to an award of fees for all time reasonably expended in pursuit of the ultimate results achieved in the same manner that an attorney is traditionally compensated by a fee-paying client for all time reasonably expended on a matter. Hensley v. Eckerhart, 461 U.S. 424, 430 (1983)(emphasis added). What is relevant is the plaintiff is the prevailing party and ultimately achieved excellent results. Defendants are attempting to make `a second major litigation' out of the attorney fees, despite the warnings of

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Hensley. Id. at 437. The description of Clawson's success in Section "I." above demonstrates he achieved excellent results. King refutes Karp's opinion that Clawson did not achieve excellent results. Exhibit 61, pp. 8-9. She points out that Karp used the wrong standard for "excellent results" and that even under his standard Clawson achieved excellent results. Exhibit 61, pp. 8-9. B. Specific Motions Addressed By Defendants

Defendants attempt to reduce or eliminate plaintiff counsels' fees on virtually every motion on which defendants prevailed. This is the wrong standard and is "an unwarranted extrapolation of the rule that adjustments may be necessary if a plaintiff fails to prevail on all claims for relief." LaSelle v. Public Servs. Co., 988 F.Supp. 1348, 1353 (D. Colo. 1997). The Sixth Circuit explained: The question is not whether a party prevailed on a particular motion or whether in hindsight the time expenditure was strictly necessary to obtain the relief achieved. Rather, the standard is whether a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed. Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1990). Success or failure on a motion is not relevant to whether Clawson is entitled to attorney fees for time spent on that motion. Santiago v. Mercado, 175 F.Supp. 2d 164, 170 (D. P.R. 2001) ("a prevailing party will often be entitled to the fees spent even on unsuccessful motions"). Parties paying their attorneys by the hour are expected to pay even when the attorney loses a motion. Defense counsel has not indicated that they waived payment from defendant on each motion defendants lost. As Judge Possner explained, the goal of attorney fees

determinations is to emulate what the market would pay the attorney for the success achieved. In re Continental Illinois Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992). The Supreme Court in

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Hensley indicated that attorney fees should be awarded for all time reasonably spent in pursuit of success, the same way that an attorney is normally compensated by a fees-paying client. Clawson certainly achieved excellent results. This is explained above and in the report of King. Once the damage caps are figured in, Clawson's results were better than all but two of those reported in the jury verdict reporter cases cited by defense expert Karp, and one of those two was a civil rights case with no damage caps. Exhibit 62. While there are exceptions to the rule that plaintiff's counsel is entitled to a complete fee, they are for items that are clearly baseless or a waste of time. One example is attempting to bill for time spent on background research, which is not billable time. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257-58 (10th Cir. 2005). Another example from Praseuth was spending over 100 hours on mediation preparation only to make one offer, which was $4.6 million in excess of the appropriate demand based on plaintiff's own calculations. Praseuth, 406 F.3d at 1258. In Case, cited by defendants, fees were not reduced because of failure on a motion, but because the deficiencies addressed in the motion were "obvious." Case v. United Sch. Dist. No. 233, 157 F.3d 1243, 1252 (10th Cir. 2000). In Santiago the court subtracted fees for plaintiffs' motion for summary judgment when the court granted summary judgment to defendants on the same issue. Santiago,175 F.Supp. 2d at 170. However, it does not appear that the court subtracted time spent by plaintiffs to oppose summary judgment. The Tenth Circuit noted that if a plaintiff's excesses are in response to defendants "noticeably aggressive defense" the plaintiff should not be penalized for this, and the weight of competing excesses should not fall solely on the plaintiff. Praseuth, 406 F.3d at 1260. If a defendant engages in an aggressive litigation strategy, it bears the risk that it will be "required to

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bear a portion of the attorneys' fees incurred by the other party in responding to that aggressiveness." Praseuth, 406 F.3d at 1260 (emphasis in original). Clawson is entitled to the fees spent on the unsuccessful motions mentioned by defendant. Defendants attempt to rehash the reasonableness of each motion Clawson lost ignores Hensley and is an example of the aggressive defense Clawson has had to counter throughout the case. Clawson had to address every issue raised by the defendants throughout the litigation, and below continues that pattern. 1. Plaintiffs' Motion to Compel (Dkt. 137), filed April 16, 2003 Defendants seek to exclude all time spent on the motion to compel discovery. The motion to compel was largely a conferral tool, which resulted in Clawson obtaining most of the information he desired in the first place. The motion that was ultimately filed was denied, but on procedural grounds. Defendants' statement that plaintiff was sanctioned is simply false. While the magistrate did order a sanction, it was overturned by Judge Krieger, and thus was invalid. Plaintiff's counsel began conferral on discovery issues on August 27, 2002, with a letter. Exhibit 63. This letter set forth the perceived problems with defendants' discovery responses. Defendants responded on September 26, 2002. Exhibit 64. For the most part defendants' response provided no additional information, and rather than retract objections, it added objections. The letter also stated that conferral was inadequate because defendants' specific objections were not addressed. As shown in defendants' Exhibit O, plaintiff's counsel began work on a motion to compel in November of 2002. On December 10, 2002, plaintiff's counsel sent a letter

confirming that a copy of the motion to compel would be sent to defense counsel for review

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before filing. Exhibit 65. On December 11, 2002, defense counsel confirmed a desire to review the motion to compel. Exhibit 66. Plaintiff sent defense counsel a copy of the draft motion, and both the letter and that draft are attached here. Exhibit 67. After the draft motion was sent, a telephone conference was set to discuss discovery issues. A letter of January 7, 2003, by plaintiff's counsel confirmed the contents of the conversation and that most issues had been resolved or narrowed. Exhibit 68. A letter by defense counsel dated January 13, 2003, confirms that most issues were resolved. Exhibit 69. The draft motion was helpful in resolving much of the discovery conflict. By January 22, 2003, the motion to compel had been revised to address only the remaining issues in dispute, and one additional disclosure issue that had arisen since the December 30, 2002, conversation. A copy of the revised motion to compel was sent on January 22, 2003, as part of further conferral. Exhibit 70. Defendants responded with a letter on January 24, 2003, that largely resolved the issues. Exhibit 71. Again, the draft motion to compel helped define the issues and lead to resolution. No further action was taken until March of 2003. On March 10, 2003, plaintiff sent a letter and another draft motion to compel. Exhibit 72. This was based on the belief that there was information on transfer policies that was not being provided. As explained in the letter, this belief was based on statements that there were no such policies, and then receipt of documents which seemed to contain or refer to such policies. This issue was not resolved and the motion was filed on April 16, 2003. A review of the order of Magistrate Schlatter shows he denied it on the procedural ground of failure to include the question, response, and objection, even though they were attached to the motion. See

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D.C.COLO.LCivR 37.1.

Magistrate Schlatter also sanctioned plaintiff's counsel $500.

Plaintiff's counsel appealed both decisions to Judge Krieger. Judge Krieger affirmed denial of the motion, but overturned the decision on sanctions. Plaintiff did succeed in admitting evidence of transfers at trial. This lengthy review shows the work on the motion to compel was important in resolving discovery disputes and in Clawson obtaining much of the information he sought from the beginning. Thus, work on the motion was successful. Likewise, the work on appealing the magistrates order was successful, at least in part, because it overturned the sanctions. Because the order was denied on procedural grounds, plaintiff believes no attorney fees from the motion should be deducted. If the court were to deduct such fees, the deduction would only be

appropriate from March 10, 2003 through April 30, 2003. It was during this period that the unsuccessful manifestation of the motion to compel was worked on. Before this, the draft motion was used for successful conferral. Afterward, the work was on the partially successful appeal to Judge Krieger. Without conceding the point, a complete deduction from March 10, 2003 through April 30, 2003, would amount to $1,869.50. 2. Defendant's Motion for Costs (Dkt. No. 57), filed October 31, 2002 Defendants received an award of costs as compensation for a meeting Bartlett missed with defendants' expert; it was not a sanction. However, further dispute over this issue is irrelevant because it relates solely to Bartlett, an unsuccessful party, and Clawson agrees to deduct the 1.5 hour amounting to $307.50. 3. Plaintiff's Motions to Strike a. Plaintiffs' Objections to Magistrate's Order (Dkt. No. 59), November 4, 2002

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This motion to strike was in regard to defendants' entitlement to a response to an objection to a magistrate's order on a non-dispositive issue. The rule does not specifically address the issue, there was no binding authority, and little persuasive authority. In short, the issue was open to debate. It is also important to note that the brief doubled as both a motion to strike and a reply. The court did grant the underlying motion, overruling the magistrate.

Defendants' response, dated November 18, 2002, at footnote 1 suggested that the motion to strike was in violation of rule 11, yet the court made no such finding. The November 4, 2002, motion to strike was not baseless and was on an issue open to dispute, therefore, Clawson should recover all attorney fees related to said motion in accord with Hensley. b. Plaintiffs' Motion to Strike Defendant's Reply Brief in Support of its Motion for Partial Summary Adjudication (Dkt. No. 77), January 7, 2003

The motion to strike was premised on defendants' failure to follow D.C.COLO.LCivR 7.1(D) requiring that any cited unpublished opinions be attached to the brief. Defendants' response of January 14, 2003, sought costs associated with the necessity of filing a response. The court's order of February 20, 2003, does not grant the motion to strike, or award costs. Instead it admonishes both sides for multiplying proceedings. Both sides were required to send copies of the order to their clients. While not a proud moment for plaintiff's counsel, the court's order places the blame for this issue on both sets of attorneys. According to Praseuth,

defendants should not be rewarded for their own counsel's participation in misconduct by a reduction in plaintiff's attorney fees.

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c.

Plaintiffs' Motion to Strike Defendants' Motion for Summary Judgment (Dkt. No. 142), April 22, 2003

Plaintiff filed a motion to strike defendants' multiple motions for summary judgment, based upon a misunderstanding of the page limitations established by Judge Krieger.12 Upon learning of this misunderstanding, plaintiff sought to withdraw the motion to strike. The court granted the motion to withdraw the motion to strike on May 12, 2003. Defendants chastise plaintiff for filing a reply in regard to the motion to withdraw after the court allowed withdrawal. Defendants conveniently fail to mention that they filed a response to the motion to withdraw on May 14, 2003, two days after the motion was ordered withdrawn. Defendants also fail to mention their response of May 14, 2003, sought an award of attorney fees. The only reason a late reply was filed was to dispute the assertions made in the late response, and to oppose the award of attorney fees. The court did not award defendants attorney fees in relation to their May 14, 2003, response. If proceedings were needlessly multiplied, defendants were as much a participant and cause as plaintiff. Pursuant to Praseuth defendants should not be rewarded for their counsel's conduct by allowing a reduction of the plaintiff's attorney fees. 4. Plaintiff's Motion for Pre-Judgment Interest Defendants seek to subtract fees associated with plaintiff's correction of errors made in submitting the motion for pre-judgment interest. Defendants fail to mention that the calculation was based upon a complicated formula published for the first time in 2006, the year plaintiff was seeking pre-judgment interest. See Reed v. Mineta, 438 F.3d 1063, fn 4 (10th Cir. 2006). The formula was complex enough that defendants did not bother to produce a calculation based on

12

Ironically, Judge Krieger ended up denying all of defendants' initial motions for summary judgments, without prejudice, for a failure to comply with a different provision of her practice standards.

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the formula, but proposed utilizing the simpler method of calculating interest annually, despite the Tenth Circuit guidance. Defendants' Response Dated June 12, 2006 (Docket No. 436). Plaintiff's counsel could have waited for the reply, and fixed the problem then. Instead, plaintiff's counsel fixed the problem when discovered, giving defense counsel the opportunity to review the correct computations and comment thereon in the response. Counsel should be commended for fixing the problem. Parties should not be deterred from correcting errors as

soon as possible, which is what defendants' proposed reduction of fees would accomplish. Finally, the issue was not rendered moot by the court's ruling on January 24, 2007. Defendants' footnote 10 is incorrect in this regard. The court did use defendants' proposed interest rate, but decided that the appropriate formula was the one contained in Reed. With the correct formula entered into a computerized spreadsheet, it was not particularly difficult to input the new numbers and comply with the court's order. In fact, the parties stipulated to prejudgment interest after the court's order. Stipulation Re: Prejudgment Interest Calculation, Dated March 21, 2007. Correction of the error was not a significant event, amounting to fees of a little more than one-tenth of one percent of the total fee requested. The correction was appropriate and useful to resolving an issue before the court, and no reduction in fees is appropriate. 5. Plaintiff's Motion for Clarification of Briefing Issues No deduction is appropriate for this motion. At trial, the court reserved ruling on

defendants' Fed. R. Civ. P. 50(a) motion, stating the issue would be resolved after the court returned to Denver, and could review the whole record. At trial, plaintiff's counsel asked if briefing would be allowed after trial. The court stated that the decision on briefing could wait until after the verdict. After the verdict, no mention was made regarding briefing the rule 50(a)

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motion. Taking into consideration the court's comment that a decision on briefing could await the verdict, a decision on briefing was requested. Defendants, rather than asking, simply briefed the issue, and erring on the side of caution, plaintiff responded in kind. There was nothing inappropriate or wasteful in plaintiff's actions. 6. Plaintiff's Motion for Entry of Judgment Motions for entry of judgment are not uncommon. See Breaux v. American Family Mut. Ins. Co.. 2007 WL 915487 at p. *1 ¶ 4 (D. Colo. 2007) (Def. Exh. D) (granting motion for entry of judgment). Defendants cite no authority that such a motion is inappropriate. Defendants' sole basis for a reduction in attorney fees is that the motion was denied as premature. Pursuant to Hensley this is not an adequate basis for reducing attorney fees. 7. Plaintiff's Notice of Completed Briefing Defendants assert that plaintiff's notice of completed briefing and motions ripe for determination was "wholly unnecessary and improper . . . ." Defendants fail to cite any case, rule, or persuasive authority in support of their proposition. Plaintiff's notice was little different than a status report, which were filed by both sides in this case. As stated in the notice, there were a number of motions filed, and the notice was for the assistance of the court, the attorneys, and the parties in keeping track of what was filed and ripe for decision. It seems as though defendants' real complaint is that the notice may have assisted the court, or prompted the court to act, thus ending the delay which benefited the defendants.13 It is interesting to note that the briefing on the outstanding motions was completed in June of 2006, the notice was filed on

13

Delay generally benefits defendants, who can obtain a better return on investing their money than what they pay in prejudgment interest.

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January 8, 2007, and the court ruled on January 24, 2007. No deduction in attorney fees is appropriate in regard to this filing. 8. Plaintiff's Response to Defendants' Rule 12(h)(3) Motion to Dismiss Plaintiff is entitled to all time spent on the response to defendants' January 4, 2005, Rule 12(h)(3) motion, although defendant ultimately prevailed on said motion. In essence, defendants argue that because Clawson did not prevail on the claims addressed in the motion, he should not receive his attorney fees for the motion. This is contrary to Hensley and Jane L., both binding and cited above. Clawson's claims were not only interrelated, but were related to the claims of the other plaintiffs in the case. All of the claims arose out of defendants "no restrictions" policy, and from the mines policy of automatically terminating people after 26 weeks of short-term disability. The legal issues addressed in the rule 12(h)(3) motion and response were essentially the same for all plaintiffs, with Clawson having some additional issues. Attorney fees for work that is performed for an unsuccessful plaintiff is fully compensable if it also served to benefit the successful plaintiff. Wooldridge, 898 F.2d at 1174-75 & fn 11. The work performed on the rule 12(h)(3) motion would have been performed regardless of the other plaintiffs, and the work performed on their arguments contributed to Clawson's arguments. Therefore, attorney fees may be recovered for all of the work performed. The work on the response was work that "a reasonable attorney would have believed . . . to be reasonably expended in pursuit of success at the point in time when the work was performed." Wooldrige, 898 F.2d at 1177. Plaintiff had a reasonable argument that only the complete absence of an EEOC charge was jurisdictional, and defects in a charge amounted to an

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affirmative defense. See Zipes v. Transworld Airlines, Inc., 455 U.S. 385 (1982) and Jones v. Runyon, 91 F.3d 1398 (10th Cir. 1996). Additionally, it was appropriate for Clawson to preserve this issue for Tenth Circuit en banc review, as the vast majority of jurisdictions hold an EEOC charge is not jurisdictional at all. Also, Clawson had a legitimate argument that his termination was part of an ongoing policy and thus an additional EEOC charge was not a jurisdictional requirement. See Croy v. Cobe Labs., Inc., 345 F.3d 1199, 12020 (10th Cir. 2003). 9. Plaintiff's Motion for Punitive Damages and Additur Defendants' sole reason for reducing damages on this motion is that plaintiff did not prevail. As stated above, this is not the standard. The United States Supreme Court has determined that the amount of punitive damages is not a finding of fact within the purview of the Seventh Amendment. Cooper Indus. v. Leatherman Tool, 532 U.S. 424, 432, 437 & FN 11 (2001). It is the Seventh Amendment that prohibits additur. Dimick v. Schiedt, 293 U.S. 474 (1935). There is a legitimate argument that Cooper undoes the prohibition on additur for purposes of punitive damages. There should be no 50% reduction due to Dillon's presence in the case at that time. As explained elsewhere, courts have routinely rejected proportional reductions. Almost all the work performed on the motion involved legal research, which would have been performed regardless of Dillon. There is nothing baseless or inappropriate about this motion, and all attorney fees for it should be awarded. 10. Plaintiff's Motion to Exclude Defendant's Photographs and Videos Again, the only basis cited for disallowing fees associated with this motion is that plaintiff was unsuccessful. That is not the standard. Additionally, plaintiff was not wholly unsuccessful in this motion. The transcript of the May 3, 2005, hearing will reflect that the court

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vacated the June 2005 trial date. This meant that there was extra time to conduct discovery on the late disclosed photos and video. Extra discovery would alleviate any prejudice to the plaintiff. Therefore, instead of excluding the photos and video, the court allowed additional discovery. Even under defendants' incorrect standard, this motion was not a loss for plaintiff. 11. Plaintiff's Motion to Accept the Vogenthaler and Freudland Affidavits The only reason cited for disallowing fees on these motions is that Clawson was unsuccessful. That is not the correct standard. There is no suggestion that these motions were frivolous or otherwise inappropriate. The motions were reasonable advocacy at the time, thus all attorney fees for them should be awarded. 12. Plaintiff's Motion for Rule 37 Sanctions Once again, the only reason cited for disallowing fees is Clawson's lack of success on this motion. Plaintiff's motion was reasonable advocacy at the time. Defendants sought an award of attorney fees in relation to this motion, but the court denied such an award. Clawson ultimately prevailed on the issue at hearing, obtaining a determination that the defendants employed more than 500 employees. 13. Plaintiff's Opposition to Trial In Grand Junction Defendants', on their own ipse dixit, assert that the opposition to the trial occurring in Grand Junction was meritless. Defendants also distort the record on this issue. The court determined that the issue of where the trial would be held was sufficiently contested to warrant a hearing. The October 31, 2005, transcript shows the court found the case was only filed in Gunnison County in order to have the case heard in state court, and Gunnison County was the only venue permitted by the state court rules. The court found that plaintiff's choice of forum

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was Denver. The plaintiff's choice of forum is typically the strongest factor in determining the place of trial. Mohamed v. Mazda Motor Corp, 90 F.Supp 2d. 757, 774 (E.D. Tex. 2000); Walter v. Walter, 235 F.Supp. 146, 147 (W.D. Penn 1964). The transcript shows the court recognized that defendants had to show the relevant factors weighed strongly in favor of moving the trial from Denver to Grand Junction. The fact that defendants ultimately made the necessary showing does not mean it was inevitable that defendants would make the showing. The court did not find plaintiff's opposition to be baseless or meritless. 14. Plaintiff's Opposition to Defendants' Motion in Limine Regarding the Offer of Reemployment

Although defendants entitled this a motion in limine, Clawson successfully pointed out to the court that it was really a motion for summary judgment. Defendants were seeking a ruling that their defense of mitigation would succeed as a matter of law, and thus all evidence contrary to the defense would be irrelevant. This included Clawson post-offer of employment earnings. Clawson pointed out that defendants' motion was mislabeled, was not in proper form, and contained no supporting evidence that would justify the court deciding their defense as a matter of law. The court, at the May 3, 2005, proceedings, found that the determination in regard to Clawson's damages depended on presentation of evidence, and denied the motion without prejudice. At trial, Clawson believed sufficient evidence could be presented to raise a jury question on defendants' mitigation defense, but it would probably not be persuasive to the jury. Therefore, a tactical decision was made not to distract the jury with an additional issue. This tactical decision does not make the earlier opposition to defendants' motion inappropriate. There should be no reduction in attorney fees for this issue.

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15.

Defendants' Motion to Reopen Discovery on Dillon's Damages In Regard to Dillon's Termination From Oxbow