Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEYS' FEES, COSTS, AND INTEREST (DKT. NO. 464), PLAINTIFF CLAWSON'S MOTION TO REVIEW TAXATION OF COSTS (DKT. NO. 477), AND PLAINTIFF CLAWSON'S MOTION TO SUPPLEMENT MOTION FOR ATTORNEYS' FEES (DKT. NO. 482) Defendants, Mountain Coal Company, L.L.C., Arch Western Resources, L.L.C., and Arch Coal, Inc., by their attorneys, Holland & Hart LLP, hereby submit their Response to Plaintiff's Motion for Attorneys' Fees, Costs, and Interest (Dkt. No. 464), filed April 10, 2007; Plaintiff Clawson's Motion to Review Taxation of Costs (Dkt. No. 477), filed May 4, 2007, and Plaintiff Clawson's Motion to Supplement Motion for Attorneys' Fees, Costs, and Interest for Expenses Not Awarded in the Bill of Costs and to Correct Minor Errors in Billing Fees (Dkt. No. 482), filed May 14, 2007. I. INTRODUCTION

Defendants do not dispute that Plaintiff Michael E. Clawson was the prevailing party in this case or that he is entitled to recover, under 42 U.S.C. § 12205, his reasonable attorneys' fees,

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expenses, and costs. However, considering the case that went to trial and upon which Plaintiff prevailed ­ a single plaintiff who prevailed on a single ADA claim ­ the award sought by Plaintiff is grossly excessive and should be substantially reduced. As will be shown, counsel for Plaintiff did not, as is required by Ramos and its progeny, keep "meticulous, contemporaneous" records of their time. Nor did counsel for Plaintiff exercise adequate "billing judgment" as required by the cases. Indeed, this is readily apparent even on the face of Plaintiff's fee application, as Plaintiff seeks 85% of the raw attorneys' fees incurred, after supposedly adjusting for billing judgment (inefficiency, duplication, unnecessary tasks, etc.) and the fact that three of the four original plaintiffs in this case (Bartlett, Richards, and Dillon) were unsuccessful. Plaintiff apparently takes the position that unless the billing entry specifically identifies or relates to Bartlett, Richards, and Dillon (and many entries are too vague to tell), it must have related to Clawson. As a corollary, Plaintiff argues that virtually all of the work as to the unsuccessful Plaintiffs (Bartlett, Richards, and Dillon) was intertwined with work as to the successful Plaintiff (Clawson). Plaintiff seems to have adopted a strategy of, "If I start out high, in the end, even if the Court throws out some of my fee application, I'll still end up with a large award." The Court should reject this approach, which is clearly contrary to both the letter and the spirit of Ramos and its progeny, and which makes review of Plaintiff's fee application unnecessarily difficult and time-consuming, both for Defendants and the Court. A careful review of Plaintiff's billing records and fee application reveals a number of serious problems:

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·

Plaintiff seeks billing rates for three attorneys (Davis, Jensen, and Threatt) which are excessive for their level of experience at the time the work was performed.

·

Plaintiff's counsel failed to keep careful, accurate, contemporaneous billing records, failed to exercise meaningful billing judgment, and seek an excessive amount in fees (over $23,000.00) for preparing and submitting the fee application.

· ·

Plaintiff improperly seeks fees for paralegals performing secretarial tasks. Plaintiff seeks fees for 19 different timekeepers ­ 9 attorneys, 1 law clerk, and 9 paralegals ­ without making an adjustment for the inefficiencies that necessarily result from such a large number of timekeepers working on the case.

·

Plaintiff fails to make an adjustment for time spent on items for which Plaintiff should not recover at all, for example, motions as to which Plaintiff not only lost, but for which Plaintiff's counsel were sanctioned by the Court.

·

Plaintiff has failed to make an adjustment for excessive time spent on tasks or for tasks which were unnecessary.

·

Plaintiff has failed to make an adjustment for fees which are properly allocable to unsuccessful claims by Plaintiff Clawson and to claims by the unsuccessful Plaintiffs (Bartlett, Richards, and Dillon).

Defendants address each of these items in detail below. Taking these things and more into account, Defendants submit that the Court should: · Make adjustments to the billing rates proposed by Plaintiff, for a reduction of $86,319.66. · Adjust for paralegals performing secretarial duties, for a reduction of $51,776.12.

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·

Adjust for items for which Plaintiff should not recover at all, and adjust for other specific items, for a reduction of $112,717.84.

·

Then, after taking these specific reductions into account, this amount should be further reduced by the Court by 50% to take into account the problems with timekeeping, too many attorneys working on the case and the inefficiencies associated therewith, the excessive time spent on certain tasks, and a fair allocation for the unsuccessful claims asserted by Clawson and the claims asserted by the three unsuccessful Plaintiffs (Bartlett, Richards, and Dillon).

Thus, Defendants submit that an attorneys' fees award of $253,324.20 to Plaintiff Clawson in this case is a fair and reasonable award, not the $757,462.01 sought by Plaintiff. Defendants' criticisms of Plaintiff's fee application are not just their own; in support of this Response, Defendants submit the report, dated May 31, 2007, of their attorneys' fees expert witness, Sander N. Karp of Leavenworth & Karp, P.C. ("Karp Report") See Ex.A. Karp is a well-respected plaintiff's employment lawyer, with over 30 years of experience, both in Denver and on the Western Slope. He is thoroughly familiar with cases such as this, and with what is reasonable in terms of attorneys' fees and costs in such a case. And, as he concludes: "I do not believe that [Plaintiff's] request is reasonable. In fact, I believe that the claimed fees are excessive." Id. at 3. Karp goes on to conclude: "The issues actually determined by the jury do not justify a fee award of $747,710.50, as claimed by the Plaintiff. Rather, I believe that a fee in the range of $200,000.00 to $250,000.00 is more than adequate to compensate the Plaintiff for attorneys' fees." Id. at 5 (citation omitted).

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A number of these same issues also arise with respect to Plaintiff's request for §1988 expenses and §1920 costs. These should be disallowed, in part, for many of the same reasons, as addressed in detail in Section III.C below (§1988 expenses) and Section III.D (§1920 costs disallowed by the Clerk), below. II. FACTUAL BACKGROUND

This action was originally brought by four Plaintiffs, Michael E. Clawson, John R. Bartlett, Thomas E. Richards, and Jared L. Dillon. The four were underground coal miners who worked at Mountain Coal's West Elk Mine, located near Paonia, Colorado. Each was injured on the job, and eventually, after 26 weeks of short-term disability and after reaching maximum medical improvement, could not return to their jobs consistent with their permanent doctors' restrictions, and therefore, their employment with Mountain Coal was terminated. Plaintiffs sued Defendants, alleging claims for failure to accommodate their alleged disabilities under the Americans with Disabilities Act ("ADA"), wrongful termination in violation of the ADA, retaliation in violation of the ADA, wrongful discharge in violation of public policy under Colorado law, breach of implied contracts, and promissory estoppel. In its March 3, 2005 Order (Dkt. No. 280), the Court granted Defendants' Motion to Dismiss Plaintiff Clawson's wrongful termination claim and all four initial Plaintiffs' retaliation claims based on lack of subject matter jurisdiction (Dkt. No. 269). Then, in its March 15, 2005 Order (Dkt. No. 287), the Court granted in part and denied in part Defendants' Revised Motion for Summary Judgment, dismissing all claims as to Plaintiffs Bartlett and Richards, and all claims as to Plaintiffs Clawson and Dillon, except for Plaintiff Clawson's claim for failure to accommodate and Plaintiff Dillon's claims for failure to accommodate and wrongful termination under the

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ADA. The remaining claims of Clawson and Dillon were tried to a jury in Grand Junction, on April 10-21, 2006. The jury found in favor of both Plaintiffs, awarding Clawson $236,000.00 in economic damages and $250,000.00 in non-economic damages, and Dillon $108,000.00 in economic damages and $250,000.00 in non-economic damages. Verdict Form (Dkt. No. 402). The jury found that Plaintiffs had proven the standard for punitive damages, but awarded $0 in punitive damages to each Plaintiff. Id.1 Post-trial, Defendants renewed the arguments made in their Rule 50(a) motion, upon which the Court had reserved ruling. The Court upheld the jury's verdict as to Clawson, but granted Defendants' motion as to Dillon, holding that Defendants were entitled to judgment as a matter of law on Dillon's claims. Order (Dkt. No. 447), dated January 24, 2007. The Court also reduced Clawson's economic damage award to $219,011.00. Id. On March 27, 2007, the Court entered its Judgment in favor of Plaintiff Clawson in the amount of $540,991.07, consisting of $219,011.00 in economic damages, $71,980.07 in interest on economic damages, and $250,000.00 in non-economic damages (Dkt. No. 457). Defendants thereafter filed a Motion for Remittitur of the non-economic damage award (Dkt. No. 459), seeking to have the $250,000.00 emotional distress award reduced to no more than $50,000.00, which motion is still pending. Considering, among other things, the lack of a punitive damage award, Plaintiff's characterization of the result obtained in this case as "excellent" reflects a large measure of hyperbole. Plaintiff's Motion at 5, fn. 1, 12. In closing argument, Plaintiff's counsel asked the jury to award $500,000.00 in punitive damages; the jury awarded $0. Further, as Karp indicates in his report, the result in this case was a favorable one for Plaintiff Clawson, but nothing out of the ordinary as compared with other similar discrimination cases. Ex. A, at 5, and Attachment 6.
1

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III.

ARGUMENT

Defendants do not dispute that parties who prevail on ADA claims are generally permitted to recover their reasonable attorneys' fees and costs. See Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005); 42 U.S.C. § 12205. Nor do Defendants quarrel with Plaintiff Clawson's assertion that he is entitled to recover his reasonable attorneys' fees and costs incurred in pursuing his successful claim for failure to accommodate. However, the fees and costs sought by Clawson should be significantly reduced because of the numerous problems set forth below. A. The Legal Standard for the Award of Attorneys' Fees "[W]hen applying for attorney's fees in federal civil rights actions, plaintiffs have the burden to `prove and establish the reasonableness of each dollar, each hour, above zero.'" Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1234 (10th Cir. 2000) (quoting Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995)). To arrive at a reasonable attorneys' fee, the court determines the lodestar figure by multiplying the number of hours the prevailing party's attorney reasonably spent on the case by a reasonable hourly rate. Praseuth, 406 F.3d at 1257. The applicant bears the burden of proving both the amount of hours reasonably spent on the case and the appropriate hourly rate. United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000); Case v. United Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998). To prove the number of hours reasonably spent, the applicant "must submit `meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.'" United Phosphorus, 205 F.3d at 1233 (quoting Case, 157 F.3d at 1249). In

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reviewing such records, the court must ensure that the applicant has exercised proper "billing judgment," i.e., that the award is reasonable and excludes services that an attorney would not properly bill to his own client. Id. However, because fee-shifting statutes are not voluntary and not intended to replicate the fees an attorney could receive through a fee agreement with his own client, "the trial judge is not obligated to accept the fee applicant's billing judgment uncritically." Praseuth, 406 F.3d at 1257. After the lodestar is calculated, the court may make adjustments up or down based on certain factors, such as partial success in the lawsuit, the undesirability of a case, and whether the fee is fixed or contingent. Ramos, 713 F.2d at 556. However, enhancements to the lodestar should be made only in exceptional circumstances. See Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711, 728 (1987) (concerning enhancement for risk of nonpayment); Milham v. Perez, 2005 WL 1925770, at *2 (D. Colo. 2005) (attached hereto as Ex. B). Plaintiff Clawson does not seek an enhancement to the lodestar in this case, nor is one appropriate. Similarly, Defendants do not seek a downward adjustment to the lodestar, on the assumption that the Court will take into account Plaintiff's limited success in calculating whether the hours claimed by Plaintiff are reasonable, rather than as a post-lodestar adjustment. Id. at *2, n.1. The determination of reasonable fees is within the trial court's discretion. Case, 157 F.3d at 1249. Nonetheless, the court must "`provide a concise but clear explanation of its reasons for the fee award.'" Id. (citations omitted).

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B.

Attorneys' Fees 1. Plaintiff's submission is inadequate and fails to comply with D.C.COLO.LCivR 54.3(B) a. Attorneys

D.C.COLO.LCivR 54.3(B)(2) provides, in relevant part: B. Content of Motion. A motion [for attorney fees] shall include the following for each person for whom fees are claimed: *** 2. experience. a summary of relevant qualifications and

Plaintiff's Motion for Attorneys' Fees, Costs, and Interest ("Plaintiff's Motion") (Dkt. No. 464), filed April 10, 2007, contains a brief description of the relevant qualifications and experience for three of the attorneys as to whom fees are claimed: J. Keith Killian, Joanna C. Jensen, and Damon J. Davis. However, Plaintiff's Motion fails to comply with Local Rule 54.3(B)(2) by wholly omitting any discussion of the qualifications and experience of the other six attorneys and the law clerk as to whom fees are sought ­ James P. Guthro, Christopher H. Richter, James Angel, Barbara Butler, Lauretta Martin Neff, Beecher Threatt, and Andrew Yeretski. Because Plaintiff has failed to comply with the clear and mandatory requirements of the Local Rule as to these attorneys, no fees should be awarded as to them, resulting in a reduction of $139,989.18: $134,508.18 from the $742,401.01 in fees sought in Plaintiff's Motion, as corrected, see Ex. C; compare Ex. 46 to Plaintiff's Motion to Supplement; and $5,481.00 from the $15,061.00 in fees sought in Plaintiffs' Motion to Supplement, Ex. 52 to Plaintiff's Motion to Supplement (Richter only). See also Breaux v. Am. Family Mut. Ins. Co.,

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2007 WL 915487, at *3 (D. Colo. 2007) (attached hereto as Ex. D) (denying motion for attorney's fees based in part on failure to comply with Local Rule 54.3). b. Paralegals

Similarly, Plaintiff's Motion contains no information regarding the relevant qualifications and experience of the paralegals for whom fees are sought, except for a brief, conclusory statement that two of the paralegals, Tonette Southern and Kathi Stahl, "have extensive experience in litigation." Plaintiff's Motion at 11. No information at all is provided as to the other seven paralegals for whom Plaintiff seeks to recover fees. Id. Not only does the lack of any information regarding their qualifications and experience violate D.C.COLO.LCivR. 54.3(B)(2), but it also means that the Court has no information from which to determine whether Southern, Stahl, or the other paralegals were, on the one hand, qualified, by education or experience, to act as paralegals and were actually performing paralegal duties or, on the other hand, whether they were really secretaries, performing secretarial duties. Because Plaintiff has failed to comply with the Local Rule as to all of the paralegals, no fees should be awarded as to any of them, resulting in a reduction of $98,894.86: $98,384.86 from the $742,401.01 in fees sought in Plaintiff's Motion, as corrected, see Ex. C; compare Ex. 46 to Plaintiff's Motion to Supplement; and $510.00 from the $15,061.00 in fees sought in Plaintiffs' Motion to Supplement, Ex. 52 to Plaintiff's Motion to Supplement (Mitchell and DuKett-Cotts). Further, Plaintiff's Motion reflects a variety of hourly rates for the paralegals for whom fees are sought, ranging from $45-65. There is no explanation for this variation in rates, that is, whether it is based on experience, seniority, or otherwise. Defendants submit that, absent

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justification for the higher rate, all paralegals should be billed at the same rate, $50 per hour, that is, if such fees are to be awarded at all. Finally, Plaintiff seeks fees in the amount of $645.00 for one of the paralegals, Carol DuKett-Cotts. Plaintiff's Motion to Supplement (Dkt. No. 482), filed May 14, 2007, at 8, and Ex. 50. Despite Plaintiff's attempt to "correct" the fee request as to DuKett-Cotts, it obviously remains in error. DuKett-Cotts had 6.2 hours (7.7 "raw" hours less 1.5 hours deleted) at $50 per hour, which should lead to a total of $310.00, not $645.00.2 2. Rates

Plaintiff seeks a range of hourly rates, from $90 per hour for junior associates to $250 per hour for lead counsel, Keith Killian. Defendants do not object to the hourly rates proposed by Plaintiff, except as to three attorneys: Damon J. Davis, Joanna C. Jensen, and Beecher Threatt. a. Damon J. Davis - $150 per hour

Plaintiff proposes a rate of $150 per hour for Davis for all of his time spent working on the case. Davis was admitted to practice in Colorado on October 29, 2002. See printout from Colorado Supreme Court website re: Killian, Guthro & Jensen, P.C. attorneys, attached as Ex. E See also Plaintiff's Motion at 9. Davis began working on the case on October 1, 2002, when he was fresh out of law school (and four weeks before he was admitted to practice in Colorado). He has continued to work on the case up to the present time, and in fact, has been the highest biller, both in terms of hours billed (1,487.52 hours per Plaintiff's Motion, plus 43.35 hours per Plaintiff's Motion to Supplement) and dollars ($225,220.42, plus $6,502.50).

As set forth in Section III.B.3.b below, all of DuKett-Cotts' time should be deleted as secretarial, not paralegal, in any event.

2

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While Ramos, supra, allows a prevailing party to recover fees at the current hourly rates charged by a law firm, this means the current rate charged for a lawyer at a certain level of experience, e.g., the current rate charged for a first-year associate. From Plaintiff's Motion, it appears that the current rate charged for a first-year associate is $90 per hour. See Plaintiff's Motion, Ex. 6 (Christopher H. Richter), and Ex. 8 (James R. Angel). However, Ramos does not support charging a law firm's current fifth-year associate rate for hours billed at a time when the attorney was a first-year associate.3 Plaintiff seeks to charge $150 per hour for all hours billed by Davis, including at a time when he was a first-year associate, second-year associate, and so forth. This is improper. As is often the case, in his early years as an attorney, Davis was inefficient in performing tasks, needing to educate himself on basic areas of the law and taking a substantial number of hours to perform even basic tasks. This should be taken into account, to some extent, by a lower billing rate (such as $90 per hour for a first-year associate). However, if he is to be billed as a fifth-year associate as Plaintiff proposes (which he should not be), then he must be held to the standards of efficiency of a fifth-year associate, and substantial amounts of his time would need to be written off due to inefficiency. Put another way, Plaintiff does not get the benefit both of Davis' higher hours due to inefficiency and the higher fifth-year associate rate.

3

Plaintiff's proposed rate of $150 per hour is also unsupported, even for a fifth-year associate. For other associates with comparable levels of experience, Plaintiff proposes a rate of $125 per hour. See Barbara Butler (admitted to practice in Colorado on the same day as Davis, 10/29/02, Ex. E, when performing work as a third- to fifth-year associate, charged at $125 per hour, Plaintiff's Motion, Ex. 9; Lauretta Martin Neff (admitted 10/21/96, Ex. E, when performing work at the beginning of the case, in 1999-2001, as a third- to fifth-year associate, charged at $125 per hour, Plaintiff's Motion, Ex. 10. Thus, it would appear that a reasonable rate for a fifth-year associate at Killian, Guthro & Jensen, P.C., is $125, not $150.

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Clearly, Plaintiff should not be allowed to recover fees for Davis at a fifth-year associate rate dating back to 2002. The question then becomes what a reasonable rate should be for Davis. One option would be to start him at $90 per year as a first-year associate and increase his rate year-by-year to $125 per hour at the present time. However, breaking down Davis' hours yearby-year and performing such a calculation would be difficult and time-consuming. A second, and simpler, option would be to use a blended rate for all of Davis' hours in the case. Such a rate could be calculated using, for example, $90 per hour for his first two-plus years at the firm (2002-04), then $125 per hour to the remaining period up to the present time. Using a weighted average of Davis' hours (since he devoted more hours to the case in later years as compared with earlier years), Defendants submit that a blended rate of $115 per hour is a fair and reasonable rate for Davis. Thus, Davis' rate should be reduced to $115 per hour, resulting in a reduction of $55,672.87. See Ex. F attached hereto.4 b. Joanna C. Jensen - $200 per hour

A similar problem exists for Jensen, as to whom Plaintiff proposes a rate of $200 per hour. Jensen was admitted to practice in Colorado on May 23, 1996. See Ex. E When she began working on the case in early 2001, she was a fifth-year associate. It appears that she became a shareholder of the firm in late 2002 or early 2003. (The earliest letterhead received by
4

The $225,220.42 in fees sought for Davis in Plaintiff's "corrected" calculation, Ex. 46 to Plaintiff's Motion to Supplement, reflects an error in Plaintiff's calculations. The net (adjusted) hours claimed for Davis are 1,487.52. At Plaintiff's claimed hourly rate of $150/hour, this yields $223,128.00, not $225,220.42. This calculation error results from billing Davis' time at one rate, $150, but taking reductions at a lesser rate, $125, which is obviously incorrect. It also raises the question whether Davis' rate was adjusted upward by Plaintiff in connection with this fee application. See Section III.B.3.c(6), infra.

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Defendants' counsel reflecting the name change of the firm from Killian & Guthro, P.C. to Killian, Guthro & Jensen, P.C., appears on a letter dated February 12, 2003.) The rate sought for Jensen, $200 per hour, is a shareholder rate, the same as another named shareholder, James P. Guthro. See Plaintiff's Motion, Ex. 4. Plaintiff should not be able to recover for Jensen at the $200 shareholder rate dating back years before, to a time when she was an associate of the firm. Jensen's rate should be at the fifth-year associate rate for 2001-02, and then the shareholder rate of $200 per hour thereafter. As discussed above, a rate of $125 per hour would have been appropriate for a fifth-year associate. See n. 3, supra (compare Lauretta Martin Neff, who was also admitted to practice the same year (1996) as Jensen; Plaintiff seeks $125 per hour for Neff). Again, for ease of calculation, Defendants submit that it is appropriate to use a blended rate for Jensen, and that a blended rate of $180 per hour is appropriate. Thus, Jensen's rate should be reduced to $180 per hour, resulting in a reduction of $6,230.30. See Ex. F. c. Beecher Threatt - $200 per hour

The same problem occurs with Threatt, an Of Counsel lawyer, for whom Plaintiff proposes a rate of $200 per hour. Threatt was admitted to practice in Colorado on March 12, 1998. See Ex. E She is now on inactive status, and resides in Longview, Texas. Id.5

5

Apparently, from the billing records, Threatt resided in Texas during 2003-04 and performed the work in this case remotely. As reflected in the billing records, this caused a number of inefficiencies, for which Plaintiff should not be allowed to recover. Nor should Plaintiff be allowed to recover the cost of overnight mailing materials back and forth to her via Federal Express, as discussed in Section III.C.1.j(4), infra.

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Most of Threatt's work was performed in 2003, when she was a fifth-year associate. Plaintiff should not be allowed to charge for her time at the $200 per hour shareholder rate for work performed at a time when she was a fifth-year associate. See n. 3, supra (compare billing rate of $125 per hour for Neff, who was admitted to practice in Colorado in 1996, two years before Threatt). Defendants submit that $125 per hour is a reasonable rate for work performed by Threatt as a fifth-year associate. Threatt was used to do research and drafting on responding to Defendants' Motions for Summary Judgment. She spent a substantial number of hours doing so; hers are the third-highest billings in the case in terms of dollars billed ($65,110.24). See Plaintiff's Motion to Supplement, Ex. 46. As with Davis, if Plaintiff seeks to recover fees for Threatt at the shareholder rate of $200 per hour, she should have been much more efficient with her time, and a substantial write-off of her hours would be necessary. Alternatively, the summary judgment work should have been performed by someone at a more junior level, with a lower billing rate. See also Karp Report, Ex. A, at 6 (use of Threatt unnecessary). Thus, Threatt's billing rate should be reduced to $125 per hour, resulting in a reduction of $24,416.49. See Ex. F. d. Conclusion ­ Rates

In sum, as a result of those adjustments to the billing rates of Davis, Jensen, and Threatt, the fees sought by Plaintiff should be reduced by a total of $86,319.66. Id. 3. Hours a. Timekeeping issues

In order to recover fees, "attorneys must keep and produce `meticulous time records' which `reveal all hours for which compensation is requested and how those hours were allotted

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to specific tasks.'" Mallinson-Montague, 224 F.3d at 1235 (quoting Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983)) (upholding reduction because, inter alia, counsel "fail[ed] to maintain the time records contemporaneously with the work performed"). Where time records have been reconstructed, some reduction is usually appropriate because "such records are likely to represent only an approximation of time actually expended." Id. Accord Anderson v. Sec'y of Health & Human Servs., 80 F.3d 1500, 1506 (10th Cir. 1996) ("[r]econstructed records generally do not accurately reflect the actual time spent; and we have directed district courts to scrutinize such records and adjust the hours if appropriate"); Ramos, 713 F.2d at 553 n.2 ("[t]he district court should give special scrutiny to any reconstructions or estimates of time expended and make reductions when appropriate"). See also Hensley v. Eckerhart, 461 U.S. 424, 438 n.13 (1983) (noting that district court properly reduced hours for one attorney by 30% due to, inter alia, "failure to keep contemporaneous time records"); Roe v. Cheyenne Mtn. Conference Resort, Inc., 1999 U.S. App. LEXIS 2611, at *6-7 (10th Cir. 1999) (attached as Ex. G (affirming reduction based on, inter alia, "failure to keep adequate and contemporaneous records"); Masterson v. Yellow Freight Sys., Inc., 1998 U.S. App. LEXIS 31152, at *15-16 (10th Cir. 1998) (attached as Ex. H (affirming reduction because counsel "reconstruct[ed] her billing records by going through the file and guesstimating the amount of time she spent on this case" and "some entries did not appear to be supported by meticulous, contemporaneous records"); Anderson, 80 F.3d at 1505-06 (affirming reduction based on, inter alia, "failure to keep contemporaneous records"). The billing entries for Killian, Guthro & Jensen, P.C. are often vague, making it difficult, if not impossible, to tell what work was done, or as to which Plaintiff it related. See, for example, 2/16/01 JKK entry (ref. #96), "Attorney notes regarding meeting; staff instruction;"

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10/31/02 JKK entry (ref. #1408); "Case prep. Discovery issues;" 1/29/04 JKK entry (ref. #3444), "Conference with D. Davis regarding case;" 5/22/05 JKK entry (ref. #5101), "review letter; staff instructions;" 1/20/04 JCJ entry (ref. #3079), "office conference with paralegal regarding status;" 2/21/03 JCJ entry (ref. #2003), "office conf. with paralegal; staff instructions; review and revise order;" 3/27/03 JCJ entry (ref. #2114), "office conference with paralegal;" 10/25/02 JCJ entries (ref. #'s 1385 and 1386), "review correspondence to opposing counsel" and "review and sign letter to opposing counsel;" 11/25/02 DJD entry (ref. #1534), "discussion with Keith on Clawson matters." See Ex. I attached hereto.6 See also Karp Report, Ex. A, at 2-3 (discussing same issue). Counsel also recorded time in an inconsistent fashion, often in non-standard increments. It is standard practice for attorneys to bill their clients in one-tenth of an hour increments. Some of counsel's time entries reflect this standard convention. Other entries are in one-quarter or one-third hour increments. However, yet other entries are in odd increments ­ such as 0.17, 0.36, 0.84, or 0.92 ­ which cannot be translated into a 60-minute hour. See Charts of NonStandard Billing Increments (Killian, Jensen, Davis, Richter, Southern, and Stahl), attached hereto as Ex. J. See also Karp Report, Ex. A, at 2-3, 8-9 (discussing same issue). Further, the frequency of such non-standard billing entries increases dramatically in counsel's time records after the April 2006 trial as compared with the period before trial. For example, during Both in support of Plaintiff's Motion and Plaintiff's Motion to Supplement, Plaintiff has submitted billing records on a timekeeper-by-timekeeper basis. Such an approach makes it difficult, if not impossible, to correlate the activities of multiple attorneys and paralegals on any given date, or as to any given task. Thus, Defendants requested, and Plaintiff provided, a consolidated set of billing records, sorted chronologically, through 4/03/07. Such records are attached as Exhibit I hereto. As may be expected, they are voluminous, making up an Excel spreadsheet of 8,347 line items.
6

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May 2006 (post-trial), there were 202 such non-standard entries (Killian, Davis, Richter, and Stahl) as compared with 43 such entries (Killian, Richter, and Stahl) in March 2006 (pre-trial). Ex. J. Since it is unlikely that the billing practices of Plaintiff's counsel changed dramatically post-trial, this suggests that the earlier time entries have been adjusted in some manner, rendering them suspect. This, then, raises a larger issue. According to the billing records themselves, it appears that in connection with the preparation and submission of Plaintiff's Motion, Christopher H. Richter, a first-year associate, went back and made significant modifications to counsel's billing records. According to the billing records themselves, Richter "synch'd up meetings," modified entries during trial to correspond with witness testimony times, added missing entries, and made "rounding corrections." See Entries re: Adjustments Made by Plaintiff to Billing Entries, Ex. K attached hereto. This raises serious questions as to whether the billing records as submitted to the Court are accurate or contemporaneous. Further, it is clear that Plaintiff's counsel has not made a good faith effort to exercise billing judgment with respect to the billing records in this case. From the billing records themselves, it can be seen that the task was largely delegated to a first-year associate, Richter, with very little supervision. A total of 200.84 hours was spent reviewing the billing records and submitting Plaintiff's Motion. See Plaintiff's Time Entries ­ Motion for Attorneys' Fees, Ex. L attached hereto. Of these hours, 172.82 hours (86%) were spent by Richter, and only 6.02 hours (3%) by lead counsel, Keith Killian, with the remainder (11%) by Davis. It is doubtful that a first-year associate has the experience and judgment necessary to make reasoned and informed decisions regarding "billing judgment," especially as to a case which largely took place before he

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joined the law firm (and, indeed, before he was even admitted to practice law). See also Karp Report, Ex. A, at 8-9 (explaining that the use of first- and second-year associates to exercise "billing judgment" is not a standard of practice of Colorado attorneys). It is also readily apparent that any billing judgment was applied very sparingly, and then in a sloppy and inconsistent manner. It is difficult to believe that only a total of 15% of the raw attorney billings in this case was deleted or reduced due to either inefficiency or the unsuccessful claims brought by Clawson or the claims brought by the three unsuccessful Plaintiffs (Richards, Bartlett, and Dillon). A close review of Plaintiff's billing records reflects many entries that relate to the unsuccessful Plaintiffs which were not deleted or reduced. For example, for Bartlett, see 3/27/02 JCJ entries (ref. #'s 527 and 528), "revise correspondence to Bartlett regarding depo" and "revise correspondence to Bartlett; conference with TS;" 5/19/05 DJD entry (ref. #5088), "getting due date and appointments for review of letter to Bartlett;" 6/2/05 DJD entry (ref. #5158), "reviewing letter to client regarding appeal timing with K. Killian and passing changes on to KStahl with instructions" (compare 6/2/05 KS entry (ref. #5163) (deleted by Plaintiff as related to Bartlett), "Miscellaneous revisions to Bartlett's letter regarding appeal; investigating/gathering attachments."). Ex. I. Similarly, for Richards, see 4/29/02 JKK entry (ref. # 634), "Prep for deposition with . . . Tom Richards;" 5/1/02 JKK entry (ref. #668), "Depo of Mike Clawson & Tom Richards;" 5/2/02 JCJ entry (ref. #680), "conference with TS about Richards Depo;" 4/6/06 DJD entry (ref. #7302), "making changes to Richards medical summary." Ex. I. And, for Dillon, see 3/13/01 TS entry (ref. #113), "Coordinate filing and distribution of Entry of Appearance (JDillon);" 6/21/01, TS entry (ref. #160), "Telephone conference with Stacy (CCRD) regarding Notice of Right to Sue for J Dillion (has not been

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received from Denver);" 4/2/03, TS entry (ref. #2130), "Telephone conference with TDillon regarding job status of JDillon (still not working);" 11/10/04, DJD entry (ref. #3270), "KKillian phone conference with wife of JDillon on information to supplement disclosures;" 12/29/05 TS entry (ref. #6006), "Phone consultation with Jared regarding unemployment and divorce; preparing memo for file." Ex. I. Many more examples such as these could be cited. In many other instances, reductions were taken, but applied inconsistently from task to task or even from one attorney to another, where they were attending the same meeting or performing the same task. For example, see entries for 1/7/05, Ex. I ­ Killian, Jensen, Davis, and Stahl on a conference call with Plaintiffs Bartlett, Richards, and Clawson; Killian and Stahl take 50% reductions (ref. #'s 3482 & 3469), Jensen takes a 75% reduction (ref. # 3461), and Davis takes no reduction (ref. #3486). Many, many such examples could be cited. As can be seen throughout this Response, Plaintiff's fee application is replete with errors, some of which continued even after Plaintiff's efforts to "correct" his fee application. Given the numerous problems and errors associated with Plaintiff's fee application, the Court cannot, and should not, have any degree of confidence in the accuracy of Plaintiff's submittals, and the fee award to Plaintiff should , therefore, be substantially reduced. b. Paralegals performing secretarial duties

"[P]urely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them." Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989). Thus, courts will reduce fee awards where paralegals have billed for tasks that should have been performed by secretaries or otherwise attributed to the firm's overhead. See, e.g., Erickson v. City of Topeka, 239 F. Supp.2d 1202, 1208 (D. Kan. 2002) (disallowing paralegal time spent reviewing and

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organizing correspondence and pleadings); LaSelle v. Public Service Co. of Colorado, 988 F. Supp. 1348, 1353 (D. Colo. 1997) (noting that plaintiffs conceded in their reply that various hours were not recoverable where paralegals were performing secretarial duties). See generally Ramos, 713 F.2d at 559 (noting that a court should "scrutinize" paralegal hours and rates "in the same manner it scrutinizes lawyer time and rates"). As set forth above, because Plaintiff failed to comply with D.C.COLO.LCivR 54.3(B)(2), the Court cannot determine the relevant qualifications or experience for paralegals as to whom Plaintiff seeks fees, and therefore, the Court should not allow any fees at all for such paralegals. However, if the Court is inclined to grant some fees with respect to the paralegals, the fees as sought by Plaintiff should be substantially reduced as to some and eliminated entirely for others because, on the face of the billing records themselves, they were clearly performing secretarial, not paralegal, duties. The most significant problem is with the two largest paralegal billers, Tonette Southern and Kathi Stahl. From the billing records, it is apparent that much of their time was devoted to secretarial tasks, not proper paralegal duties. For example, Southern's entries frequently contained entries for performing such tasks as "telephone conference with FedEx representative regarding drop-off locations; . . . preparation of FedEx package; coordinate filing of Complaint and delivery to FedEx (airport drop-off)," 3/7/01 (ref. #108); "Transmittal of correspondence and voluminous enclosures to PRento via FedEx," 2/26/02 (ref. #402); "Fax transmittal of correspondence to opposing counsel setting forth deposition dates," 2/28/02 (ref. #420); "Submit to accounting invoices (four) received from various providers for medical records," 3/5/02 (ref. #457); "hand delivery of disclosures to the Post Office," 6/5/02 (ref. #793); "Tickle and calendar

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settlement conference," 7/1/02 (ref. #902); "Travel to FedEx drop-off location and main post office for hand delivery of Motion to Amend Complaint," 8/15/02 (ref. #1013); "Coordinate hand delivery of Motion to Amend Complaint and its attachments to Magistrate Robb per Joe (USDC in Denver)," 8/16/02 (ref. #1015); "fax transmittal of remaining documents (40 pages)," 6/5/03 (ref. #2423); "Hand deliver Appendix to copy center for copying," 4/23/04 (ref. #3176). For Southern's billing entries, see Ex. 22 to Plaintiff's Motion. Similarly, Stahl's entries frequently list tasks such as "Faxing memo regarding collateral source and West Elk Mine letter to Brennan," 2/8/05 (ref. #3670); "faxing letter to opposing counsel regarding trial location; mailing to clients," 2/14/05 (ref. #3761); "Authorizing payment of Checkmate's bill for delivering papers to judges," 4/9/05 (ref. #4525); "Reviewing/filing/ distributing letter from opposing counsel," 4/11/05 (ref. #4528); "Formatting proofing trial brief regarding ADA damages," 4/11/05 (ref. #4529); "Final formatting of trial brief regarding ADA compensatory damage cap," 4/11/05 (ref. #4530) (see also other 4/11/05 entries (ref. #'s 453543); "Transcribing letter to opposing counsel," 5/13/05 (ref. #5049); "Typing JKKillian's opening outline," 4/5/06 (ref. #6991); "Reviewing/filing Return of Service for Fender; authorizing payment for service of process," 4/5/06 (ref. #6997) (see also other 4/5/06 entries (ref. #'s 6992-98)). For Stahl's billing entries, see Ex. 13 to Plaintiff's Motion. Rather than engage in a line-by-line analysis of the paralegals' billing records, Defendants suggest that the fees sought for both Southern and Stahl be reduced by 50% to account for this problem. See Ex. M attached hereto. Such reduction would also take into account the fact that, in many instances, they sat in on meetings with multiple attorneys. See, e.g., 12/12/02 entries (Killian, Davis, Angel, and paralegal Southern in meeting and on telephone

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call with opposing counsel; 3/23/06 entries (Killian, Davis, Richter, and paralegal Stahl in meeting with client, witness, and expert witness Ron Brennan), Ex. I. Such reduction would also account for the fact that their time was not properly allocated to unsuccessful claims by Plaintiff Clawson or the three unsuccessful Plaintiffs.7 The same issues exist, on a smaller scale, with respect to the other paralegals. From the billing records, it appears that two of the paralegals, Hollie Van Roosendaal and Andrea Pearson, may have performed some paralegal duties, however, they also performed secretarial tasks. See Exs. 14 & 15, respectively, to Plaintiff's Motion. Therefore, their time should be reduced by 50%. As for the other so-called paralegals ­ Jamie Dumler, Diane Jenkins, Mischa McCabe, Paula Mitchell, and Carol DuKett-Cotts ­ the billing records clearly reflect that they were performing secretarial duties or are too vague to determine the nature of the task performed, and therefore, no fees at all should be recovered with respect to them. See Exs. 17-21 to Plaintiff's Motion. Finally, in addition to DuKett-Cotts, as discussed above, there are calculation errors with respect to Southern, Jenkins, and Pearson, as well. See Ex. M attached hereto. Taking these matters into account, Defendants submit that the fees sought by Plaintiff for paralegal time should be reduced by $51,776.12, from $98,384.87 to $46,608.75. Id.

In suggesting the reductions set forth in Section III.B.3.d(2) below, Defendants did not include paralegal time.

7

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c.

Attorneys (1) Too many timekeepers

In this case, Plaintiff seeks fees for 19 different timekeepers ­ nine attorneys, one law clerk, and nine paralegals.8 This is far too many timekeepers considering the case which went to trial and as to which Plaintiff Clawson prevailed, i.e., a single plaintiff who prevailed on a single ADA claim. Inevitably, involving so many lawyers on a case leads to substantial inefficiencies, time spent getting up to speed and learning the basic facts of the case, meetings to coordinate work, and time spent supervising other lawyers. See also Karp Report, Ex. A, at 7 (discussing problems caused by having too many attorneys in this case). Some minor adjustments have been made by Plaintiff in the billing records, but they do not begin to account for the inefficiencies caused by having so many lawyers work on the case. The cases recognize that it is not appropriate to recover fees for a multiplicity of attorneys. To remedy this problem, one option would be to delete altogether the time of lawyers who billed only a minimal amount of time to the case, such as James P. Guthro (11.8 hours, $2,360), Lauretta Martin Neff (39.63 net hours, $4,985.38), and law clerk Andrew Yeretski (30.74 net hours, $2,150.45). See Ex. 46 to Plaintiff's Motion to Supplement. Another ­ and probably more appropriate ­ approach would be to reduce Plaintiff's fees overall, for example, by 5%, either by itself or as part of a larger adjustment for inefficiency and unsuccessful claims and plaintiffs. See Section III.B.3.d(2), infra. In any event, Defendants submit that a substantial adjustment must be made to address the serious issue of too many timekeepers in this case.

8

In addition to these 19 timekeepers, one additional attorney (Amy Eaton-Fitzpatrick) and one additional paralegal (Jen McCall) billed time in the case, but Plaintiff does not seek fees as to them.

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Courts often reduce the number of hours where the assignment of too many timekeepers to a matter leads to inefficiencies and duplication of effort. Indeed, the Tenth Circuit has instructed that where there are multiple timekeepers on a case, a court "should assess the possibility that reported hours include duplication by reviewing with particular care the number of lawyers present at hearings, depositions, and other discovery proceedings, and by evaluating the roles played by the lawyers in the litigation generally." Ramos, 713 F.2d at 554. And, as one judge of this Court has put it, "If the attorneys possess the skill required to charge the rates they are charging for their legal services, . . . constant collaboration, review, preparation and consultation is not necessary." Carr v. Fort Morgan Sch. Dist., 4 F. Supp.2d 998, 1003 (D. Colo. 1998) (reducing fee request based on, inter alia, numerous charges for collaboration, discussion, and review of others' work). Because of these concerns, and the difficulty of calculating them, the Tenth Circuit has affirmed a district court's decision to eliminate all hours expended by any timekeeper who had spent less than forty hours on the case because "work on this case by seven partners, thirty-two associates, one summer clerk, ten paralegals, and one document clerk showed . . . counsel overstaff the case." United Phosphorus, 205 F.3d at 1234. The court has also approved more general reductions based on duplication of effort and time spent getting new timekeepers up to speed. See, e.g., Praseuth, 406 F.3d at 1258 (noting that reductions may be made for "time spent bringing attorneys up to date about the case as attorneys began work on the file for the first time" and upholding reductions for, inter alia, time spent "to discuss case and update" and "to discuss status"); Mallinson-Montague, 224 F.3d at 1235 (affirming reductions because of, inter alia, "possibility of overlap" in work performed by different attorneys); Case, 157 F.3d at 1252-53

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(affirming reductions based on billing for time spent in "conference," with little explanation of "how much time was spent in or what happened at conference"). The billing records of Plaintiff's counsel are replete with examples of inefficiencies arising from the number of attorneys involved in this case. Perhaps the most glaring are the many instances of meetings or calls during which multiple attorneys, and often a paralegal, are present. See Ex. I, 1/17/03 (4 attorneys and paralegal on telephone hearing with Magistrate Judge Robb); 3/31/05 (3 attorneys and paralegal in meeting and on telephone call with opposing counsel); 3/13/06 (three attorneys and paralegal on call with trial consultant). Similarly, the billing records reflect numerous staff meetings involving multiple attorneys and paralegals in order to assign or coordinate tasks. See, e.g., Ex. I, 11/20/02 (3 attorneys and paralegal in meeting to discuss pending motions); 3/24/05 (meeting with 3 attorneys and paralegal). Many of the billing entries for lead counsel, Killian, reflect the description, "Staff instructions," which is not only vague, but also reflects the inefficiencies necessarily involved with the use of multiple attorneys in the case. See, e.g., Ex. I, 3/15/05 JKK entries (ref. #'s 4088 & 4089), "staff instructions," and "staff instructions regarding Exhibits;" 4/1/05 JKK entry (ref. #4356), "staff instructions regarding pre-trial leadlines;" 4/9/05 JKK entry (ref. #4479), "Staff instructions regarding exhibits;" 5/24/05 JKK entry (ref. #5104), "Staff instructions;" 7/15/05 JKK entry (ref. #5451), "staff instructions," 8/17/05 JKK entry (ref. #5720), "staff instructions," 10/28/05 JKK entry (ref. #5870), "staff instructions for hearing;" 11/7/05 JKK entry (ref. #5880); "staff instructions result of hearing;" 11/8/05 JKK entry (ref. #5885), "Staff instructions regarding discovery."

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The inefficiencies involved with the numerous attorneys and paralegals involved here is difficult to quantify, but is very real. Such inefficiencies should be taken into account as part of the overall reduction discussed in Section III.B.3.d(2), infra. (2) Plaintiff seeks fees for a number of items for which he should not recover at all

Reductions may be made for "tasks that were unnecessary, irrelevant and duplicative." Praseuth, 406 F.3d at 1258 (affirming reductions for these and other reasons). Accord Case, 157 F.3d at 1250; Carter v. Sedgwick County, 36 F.3d 952, 956 (10th Cir. 1994). Such reductions are particularly appropriate where a party increased the cost of the litigation by filing unnecessary motions and taking indefensible positions. Case, 157 F.3d at 1252 (holding that trial court was "well within bounds" to reduce award for some plaintiffs' unsuccessful opposition to argument on lack of standing, as standing deficiencies were "obvious"); Mason v. Okla. Turnpike Auth., 1997 WL 311880, at *2, 6 (10th Cir. 1997) (attached hereto as Ex. N (affirming reductions for "unwarranted and unsuccessful motions"); Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1205 (10th Cir. 1986) (affirming reductions based on excessive time spent on theories on which plaintiff "failed entirely" or "uselessly expended time"); Milham, 2005 WL 1925770, at *5 (making reductions for unnecessary time entries, such as time spent on claims that were never filed and for discovery requests that were never served). See generally Ramos, 713 F.2d at 554 ("the court should consider that what is reasonable in a particular case can depend upon factors such as the complexity of the case, the number of reasonable strategies pursued, and the responses necessitated by the maneuvering of the other side") (emphasis added). No doubt, Plaintiff will attempt to argue, in reply, that it was Defendants' tenacious defense in this case which increased fees. See, e.g., Praseuth, supra. And, it is true that

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Defendants aggressively defended against Plaintiffs' claims, ultimately obtaining dismissal as to three of the four Plaintiffs. However, in seeking a reduction in Plaintiff's attorneys' fees, Defendants do not seek to deny Plaintiff his fees for responding to motions filed by Defendants, except where Plaintiff's position was clearly indefensible or obviously without merit. The items for which Plaintiff should not be allowed to recover attorneys' fees at all are set forth below. (a) Motions which Plaintiffs not only lost, but for which counsel was sanctioned

In the most egregious example, Plaintiff seeks fees with respect to motions which Plaintiffs in this case not only filed and lost, but as to which counsel was sanctioned. Obviously, Plaintiff should not be allowed to recover such fees. For example, Plaintiff seeks fees in connection with the filing of Plaintiffs' Motion to Compel (Dkt. No. 137), filed April 16, 2003. Not only did Magistrate Judge Schlatter deny Plaintiffs' Motion, but he awarded sanctions as against Plaintiffs' counsel (but not Plaintiff Clawson) for failure to comply with the Local Rules. See Order (Dkt. No. 149), filed April 30, 2003. Plaintiff then incurred additional fees filing objections to the Magistrate Judge's Order. Ultimately, Judge Krieger upheld the Magistrate Judge's Order, but reversed the award of sanctions, a ruling which benefited Plaintiffs' counsel, but not their client. See Order (Dkt. No. 245), filed February 10, 2004.

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Plaintiff seeks 64.395 hours and fees (with billing rates adjusted as set forth in Section III.B.2 above) of $8,222.13 with respect to this issue. For detail as to these fees, see Ex. O attached hereto.9 Clearly, Plaintiff should not be entitled to recover such fees. Similarly, Plaintiff seeks fees with respect to opposing Defendants' Motion for Costs (based upon Plaintiff Bartlett's failure to appear for a scheduled examination by Defendants' expert witness) (Dkt. No. 57), filed October 31, 2002. Ultimately, not only was Defendants' motion granted, but Plaintiff's counsel was sanctioned. See Order (Dkt. No. 110), filed March 28, 2003. Most of the fees as to this issue have (properly) been deleted, but Plaintiff failed to delete 1.5 hours and $307.50 in fees attributable to this issue. For detail as to these fees, see Ex. P attached hereto. Clearly, and as Plaintiff himself concedes, he should not recover these fees. (b) Motions to strike, which Plaintiffs lost

Plaintiff seeks fees with respect to several Motions to Strike filed by Plaintiffs, which were not necessary or well-founded, and which were denied by the Court. For one example, Plaintiff seeks fees with respect to Plaintiffs' Motion to Strike Defendant's Response to Plaintiffs' Objections to the Magistrate's Order (Dkt. No. 59), filed November 4, 2002. The Motion was denied by Order (Dkt. No. 67), filed December 2, 2002. Plaintiff seeks 28.4 hours and fees of $2,780.25 with respect to this issue. For detail as to these fees, see Ex. Q attached hereto. Plaintiff should not recover these fees.
9

Ex. O reflects the hours and amount of fees, both using Plaintiff's proposed billing rates and the adjusted rates as proposed by Defendants; the figures set forth the text use Defendants' adjusted billing rates. (If Plaintiff's billing rates were to be used, the reduction would be larger, $10,103.75.) The figures in Ex. O are net of the reductions already taken by Plaintiff. These same conventions hold true with each of the items discussed in this Section, unless otherwise noted.

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By way of a second example, Plaintiff seeks fees in connection with the filing of Plaintiffs' Motion to Strike Defendant's Reply Brief in Support of its Motion for Partial Summary Adjudication (Dkt. No. 77), filed January 7, 2003. The Court not only denied Plaintiffs' Motion, but admonished counsel over the petty nature of the dispute. See Order (Dkt. No. 92), filed February 20, 2003. In connection with this issue, Plaintiff seeks 6.6 hours and fees of $985.50. For detail as to these fees, see Ex. R attached hereto. Clearly, Plaintiff should not be allowed to recover such fees. A third such instance is Plaintiffs' Motion to Strike Defendants' Motions for Summary Judgment (Dkt. No. 142), filed April 22, 2003. Plaintiffs later filed a Motion to Withdraw their Motion to Strike (Dkt. No. 155), filed May 9, 2003, which was granted by the Court. See Order (Dkt. 157), filed May 13, 2003. However, notwithstanding that the Court had already approved the withdrawal of the Motion, Plaintiffs still filed a Reply in Support of their Motion to Withdraw, (Dkt. No. 162), filed June 2, 2003. Plaintiff seeks 10.56 hours and fees of $1,305.80 with respect to this issue. For detail as to these fees, see Ex. S attached hereto. Plaintiff should not recover these fees, either. (c) Motions which were caused by counsel's own mistakes or were simply unnecessary

Plaintiff seeks fees in connection with the multiple filings concerning the issue of prejudgment interest on the awards in favor of Plaintiffs Clawson and Dillon. Because of errors in calculation, Plaintiff was required to refile the calculations multiple times. See Dkt. No. 425, May 24, 2006; Dkt. No. 426, May 26, 2006; Dkt. No. 428, May 31, 2006; and Dkt. No. 429,

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June 1, 2006.10 Plaintiff seeks 5.88 hours and $778.80 in fees with respect to these multiple filings. For detail as to these fees, see Ex. T attached hereto. Plaintiff should not be allowed to recover these fees. Plaintiff also seeks fees with respect to several other post-trial filings which were unnecessary. For example, Plaintiff seeks fees with respect to the unnecessary filing of Plaintiffs' Motion for Clarification of Briefing Schedule (Dkt. No. 416), filed May 9, 2006. This Motion was ultimately denied as moot by the Court. See Order (Dkt. No. 447), filed January 24, 2007. Plaintiff seeks 6.66 hours and $984.60 in fees with respect to the filing of this Motion. For detail as to these fees, see Ex. U attached hereto. Plaintiff is not entitled to recover these fees. Plaintiff also seeks fees with respect to the unnecessary filing of Plaintiffs' Motion for Entry of Judgment (Dkt. No. 419), filed May 11, 2006. The Court denied this Motion as premature. See Order (Dkt. No. 447), filed January 24, 2007. Plaintiff seeks 3.435 hours and $487.50 in fees with respect to the filing of this Motion. For detail as to these fees, see Ex. V attached hereto. Plaintiff should not recover these fees. Plaintiff also seeks fees with respect to the filing of Plaintiffs' Notice of Completed Briefing (Dkt. No. 446), filed January 8, 2007, which was wholly unnecessary and improper under the Federal Rules and the Local Rules of this Court. Plaintiff seeks 3.8 hours and $472.10 in fees with respect to the filing of such Notice. For detail as to these fees, see Ex. W attached hereto. Plaintiff should not be allowed to recover these fees.
10

The Court was unable to make sense of Plaintiffs' multiple filings, see Order (Dkt. No. 447), filed January 24, 2007, p. 1, fn.2, but the matter was rendered moot as the Court adopted Defendants' proposed rate of interest rather than Plaintiffs'.

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(d)

Defendants' Motion to Dismiss under Rule 12(h)(3)

On January 4, 2005, Defendants filed their Motion to Dismiss pursuant to Rule 12(h)(3), seeking dismissal of Plaintiff Clawson's ADA termination claim and the ADA retaliation claims of all four Plaintiffs due to lack of jurisdiction for failure to file timely charges of discrimination (Dkt. No. 269). By Order dated March 3, 2005, (Dkt. No. 280), the Court granted Defendants' Motion and dismissed these claims. Notwithstanding the Court's dismissal of these claims, Plaintiff seeks 46.78 hours and $6,369.15 in fees in opposing this Motion. Just as courts should limit fee awards where a plaintiff "uselessly expended time" on unsuccessful theories, Mares, 801 F.2d at 1205, so should courts limit awards where a plaintiff "achieved only limited success" in the litigation. Hensley, 461 U.S. at 440. See also discussion at Section III.B.3.c(4), infra. For detail as to these fees, see Ex. X attached hereto. Plaintiff should not be allowed to recover these fees. See also Karp Report, Ex. A, at 6 (discussing appropriate reduction of at least 75% for unsuccessful plaintiffs and claims in this case). (e) Unsuccessful motions filed by Plaintiffs

Plaintiffs filed a number of motions, both before and after trial, as to which they were unsuccessful; however, Plaintiffs still seek fees with respect to the filing of such motions. For example, Plaintiffs seek fees in connection with the filing of Plaintiffs' Motion for Punitive Damages or Additur (Dkt. No. 418), filed May 11, 2006, which was denied by the Court. See Order (Dkt. No. 447), filed January 24, 2007.11 Plaintiff seeks 23.72 hours and $2,815.55 in fees

11

Of course, even apart from the fact that Plaintiffs were unsuccessful as to this motion, in fairness, 50% of the fees should be attributed to Dillon.

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with respect to this issue. For detail as to these fees, see Ex. Y attached hereto. Plaintiff should not be allowed to recover these fees. A second example is Plaintiffs' Motion to Exclude Defendants' Photos and Video (Dkt. No. 294), filed March 21, 2005, which the Court denied by oral ruling from the bench. See Courtroom Minutes of May 3, 2005 hearing (Dkt. No. 335); Transcript (Dkt. No. 336). Plaintiff seeks 67.885 hours and $8,817.28 in fees with respect to filing this Motion. For detail as to these fees, see Ex. Z attached hereto. Plaintiff should not be allowed to recover these fees. Third, Plaintiff seeks fees with respect to the filing of two unsuccessful motions to allow their witnesses, Dr. Vogenthaler and Dr. Fredlund, to appear at the re-scheduled Daubert/Rule 702 hearing on August 25, 2005 by affidavit.12 See Plaintiffs' Motion to Accept Affidavit of Dr. Vogenthaler (Dkt. No. 362), filed August 11, 2005; Plaintiff's Amended Motion to Accept Affidavit of Dr. Vogenthaler (Dkt. No. 363), filed August 12, 2005; Plaintiff's Motion to Accept Affidavit of Dr. Fredlund (Dkt. No. 365), filed August 18, 2005. These Motions were denied by the Court. See Order (Dkt. No. 366), filed August 19, 2005; and Order (Dkt. No. 373), filed August 26, 2005. Plaintiff seeks 19.950 hours and $2,409.00 in fees as to the filing of these motions. For detail as to these fees, see Ex. AA attached hereto. Plaintiff should not be allowed to recover fees with respect to these motions. Fourth, Plaintiff seeks fees with respect to filing his unsuccessful Motion for Fed.R.Civ.P. 37(c) Sanctions for Failure to Supplement Discovery Requests Regarding the Number of Defendants' Employees (Dkt. No. 449), filed March 7, 2007. The Court denied

12

A more extensive discussion regarding Plaintiffs' expert witness Ron Brennan, including Defendants' Motion to Exclude his testimony, appears in Section III.B.3.c(5)(a), infra.

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Plaintiff's motion by oral ruling from the bench on March 27, 2007. See Courtroom Minutes (Dkt. No. 456), filed March 27, 2007. Plaintiff seeks 22.32 hours and $2,704.50 in fees with respect to this motion. For detail as to these fees, see Ex. BB attached hereto. Plaintiff should not be entitled to recover these fees. (f) Motions filed by Defendants which Plaintiffs opposed, but lost

Plaintiffs also opposed certain motions filed by Defendants, as to which they were not only unsuccessful, but insisted upon arguments that were clearly without merit. For example, Plaintiffs opposed Defendants' Motion for Trial in Grand Junction (Dkt. No. 277), filed February 28, 2005 and renewed (Dkt. No. 351) July 15, 2005.13 Subsequent to conducting an evidentiary hearing on April 6, 2005, the Court eventually granted Defendants' Motion. See Courtroom Minutes of October 31, 2005 hearing (Dkt. No. 378); Transcript (Dkt. No. 384). Plaintiff seeks 26.86 hours and $3,847.05 in fees in unsuccessfully opposing Defendants' motion. For detail as to these fees, see Ex. CC attached hereto. Plaintiff should not be entitled to recover these fees. Plaintiffs also opposed Defendants' Motion In Limine re: Unconditional Offer of Reemployment to Claw