Free Motion to Supplement - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 1 of 11

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 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

Plaintiff, Michael E. Clawson, through his undersigned counsel, Killian, Guthro & Jensen, P.C., submits his Motion to Supplement Motion for Attorneys' Fees, Costs, and Interest for Expenses Not Awarded in Bill of Costs and to Correct Minor Errors in Billing Fees, and in support thereof, states as follows: CONFERRAL Plaintiffs' counsel has conferred with defense counsel concerning this motion and defense counsel has advised that defendants do not object procedurally to the filing of this motion, but do object to the merits of, and relief sought in the motion.

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 2 of 11

I. BACKGROUND Plaintiff filed his Motion for Attorneys Fees, Costs, and Interest on April 10, 2007. Also on April 10, 2007, plaintiff filed a Bill of Costs with the Clerk of the Court. Plaintiff and defendants had a hearing by telephone on April 17, 2007, with the Clerk of the Court, Steve Ehrlich. At that time, the Clerk provided the standards by which he had authority to award costs for the case. Plaintiff and defendants agreed to re-submit amended Bills of Costs which were aligned with standards set by the Clerk. Both parties agreed to confer on the matter and submit the amended Bills of Costs prior to the rescheduled hearing which was set for April 27, 2007. At the rescheduled hearing, the Clerk taxed $9,403.02 in costs for plaintiff to defendants. Plaintiff filed a motion with this Court on May 4, 2007, to review the taxation of costs and to award additional costs. II. REQUEST FOR COSTS NOT TAXED IN THE BILL OF COSTS BE AWARDED AS EXPENSES UNDER ATTORNEYS' FEES In plaintiff's Motion for Attorneys Fees, he expressly requested and reserved his right to seek any costs denied under 28 U.S.C. §1920 as costs which were appropriate pursuant to 42 U.S.C. §1988 since these were expenses necessary to the litigation and the positive result of his case. Costs not awarded under § 1920 can be awarded under § 1988 expenses if they fit the

definition of "expenses." Brown v. Gray, 227 F. 3d 1278, 1297 (10th Cir. 2000); Bee v. Graves, 910 F.2d 686, 690 (10th Cir. 1990). "Items that are normally itemized and billed in addition to the hourly rate should be included in fee allowances in civil rights cases if reasonable in amount." Ramos v. Lamm, 713 F.3d 546, 559(10th Cir. 1983). Reimbursement for these out-of-pocket expenses not normally absorbed by the firm are allowed under 42 U.S.C. § 1988. Id.

2

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 3 of 11

"Some expenses are included in the concept of attorney's fees, as `incidental and necessary expenses incurred in furnishing effective and competent representation,' and thus are authorized by section 1988.... The authority granted in section 1988 to award a `reasonable attorney's fee' included the authority to award those out of pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services." Id. (quoting Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 639 (6th. Cir. 1979). 1. Costs Requested in the Motion to Review Taxation of Costs Plaintiff requests that any costs not awarded in addition to the costs taxed by the Clerk of the Court in Plaintiff Clawson's Motion to Review Taxation of Costs be awarded as expenses necessary to the litigation. All of these expenses were out of pocket expenses that are normally itemized and billed to clients by plaintiff's law firm in addition to the contingency fee for time worked on the case. These expenses are not absorbed by plaintiff's law firm. Thus, these expenses should be allowed under § 1988 expenses in the award of attorneys fees. Plaintiff requested the following expenses in his Motion to Review Taxation of Costs, please refer to the Motion to Review Taxation of Costs for more specifics: 1. Depositions used in the litigation: $2,432.55. This includes the stenographic costs of the depositions of Drema Scanlon, Stan Hopper, Lavon Turpin, and Steve O'Connell, all are employees of the defendant. Exhibit 36. This amount also includes the stenographic costs of the depositions of defendants' expert witness, Pat Anctil and Jerome Darnell. Exhibit 37; 2. F.R.E. 702 Hearing Transcript Costs: $218.29. Exhibit 38; 3. Pretrial Hearing Transcript Costs: $170.08. Exhibit 39; 4. Deposition Witness Fees of Defendants' Experts: $80.00 ($40.00 for Pat Anctil and $40.00 for Jerome Darnell). Exhibit 40;

3

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 4 of 11

5. Fees for exemplification and copies: $953.54. This includes $182.81 for copies of plaintiff's medical records from the medical providers, $27.03 for employment and labor records, $58.00 charged by the Gunnison County and District Courts for copying the file to be sent to the federal district court, and $685.70, in addition to the $327.52 already taxed, for copies made of the exhibits for the exhibit notebooks prepared for trial. Exhibit 41; 6. Subpoena fees for defendant's expert witness for their depositions: $69.00 ($44.00 Pat Anctil and $25.00 Jerome Darnell). Exhibit 42. These amounts total $3,923.46. Plaintiff only requests the award of an individual expense if that individual expense is not awarded in Plaintiff Clawson's Motion to Review Taxation of Costs. 2. Costs Requested in the Original Bill of Costs Not Awarded by the Clerk of the Court and Not Requested in the Plaintiff Clawson's Motion to Review Taxation of Costs A. Checkmate, Inc. Fees for Copies to the Court Plaintiff requests $107.00 for Checkmate, Inc. filing fees for rush service to provide copies to Judge Krieger. Exhibit 43. The Checkmate fee of April 5, 2005, for $56.00 relates to the April 5, 2005, F.R.E. 702 Hearing regarding Ron Brennan's fitness as an expert witness. Rush service was necessary because plaintiff's counsel is in Grand Junction and the court is in Denver. Plaintiff needed to ensure a copy of plaintiff's Response to Motion In Limine to Exclude Brennan's Testimony was before the Judge Kreiger on the morning of the hearing. Mr. Brennan's testimony was critical on matters of economic damages. The jury adopted many of the findings of Mr. Brennan in awarding damages for plaintiff. The expense of the rush delivery was reasonable and necessary to advocate for Mr. Brennan as an expert witness for the plaintiff.

4

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 5 of 11

The Checkmate fee of April 12, 2005, for $51.00 relates to a rush service for providing a copy of Plaintiff's Motion to Add Witnesses and Allow for Testimony to be filed in the United States District Court in Denver. One of the witnesses added was Andy Tweddell, who was an important witness for plaintiff regarding conditions of the mine and interrelatedness of the corporate defendants. Mr. Tweddell's deposition was read into testimony during the April 2006 trial. Both of these fees are reasonable expenses that plaintiff's law firm expects plaintiff to reimburse. The rush service expenses were necessary in the days before e-filing of documents with the courts. As such, plaintiff is entitled to $107.00 for these expenses that were necessary to the litigation. B. Outside Copy Costs Plaintiff is requesting $316.89 for outside copy costs that were not awarded in the Bill of Costs because these copies were not made for exhibits used at trial. Exhibit 44. "Reasonable expenses incurred in representing a client in a civil rights case should be included in the attorney's fee award if such expenses are usually billed in addition to the attorney's hourly rate." Case v. Unified School District No. 233, Johnson County, Kansas, 157 F.3d 1243, 1257 (10th Cir. 1998). Outside copy costs are a reasonable expense that plaintiff's firm itemizes and bills separately to its clients. Plaintiff has reduced all outside copies made before March 15, 2005, the date Bartlett and Richards were dismissed, by three-fourths (¾) to account for Plaintiff Clawson's share of the copies. ($484.05 x 1/4 = $121.01). Plaintiff has reduced all outside copies made after March 15, 2005, and before trial by one-half (1/2) to account for plaintiff's share of the copies. ($391.76 x 1/2 = $195.88). "We do not require that a civil rights attorney

5

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 6 of 11

[explain] each copy he or she makes, and we do not think that the burden to justify copies is a high one." Id. at 1259. The plaintiff respectfully requests an additional $316.89 be awarded in copy costs under attorney fees, after these reasonable reductions have been made in light of the unsuccessful plaintiffs. III. CORRECTION TO TOTALS FOR ATTORNEYS' FEES In reviewing the total hours billed and the total billing fee for the firm, while providing to defendant a spreadsheet of the billing records of the entire firm sorted by date, plaintiff became aware of some minor clerical errors in summing individual legal staff billing records. These errors were a result of the formulas in the spread sheets. Correcting these errors result in a decreased request by the plaintiff, and do not disadvantage the defendants. Plaintiff has made defendants aware of theses errors and has provided the corrected totals for hours billed and fees billed to the defendant, along with supporting exhibits. Exhibits 45. Plaintiff requests an award of attorneys' fees of $742,401.021 for the work performed by Killian, Guthro & Jensen, P.C., through trial and for after trial motions, up to April 7, 2007, the last day of updated billing in the original Motion for Attorneys' Fees. Exhibit 46. 1. Attorney Billing Exhibit Errors The only error found in an attorney billing exhibit is the billing record for Barbara Butler. Ms. Butler's hours were correct but there was a slight discrepancy in the summing of her deleted billing fees. Her total fees deleted should be $3,392.50, not $3,387.50 in Exhibit 9. Her billing total is $9,032.50, not $9,037.50. Exhibit 47.
1

This billing total is reflective of hours billed up to April 7, 2006. Plaintiff reserves the right to supplement billing totals for hours worked after April 7, 2006, for time spent working on post-judgment motions and any possible hearings. In the original Motion for Attorney Fees filed on April 10, 2007, plaintiff requested billing fees of $747,710.50, this amount was a typographical error and should have been $743,710.50, as stated in Exhibit 1.

6

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 7 of 11

2. Paralegal Billing Exhibit Errors Errors were found in four of the paralegal billing exhibits: Tonette Southern, Kathi Stahl, Carol DuKett-Cotts, and Diane Jenkins. These errors were the result of formula errors in their billing spread sheets. In Tonette Southern's billing exhibit, Exhibit 22a and 22c, there was a slight discrepancy in the hours reduced and fees reduced. Her total hours reduced should be 202.11 hours, not 201.21 hours in Exhibit 22c. Exhibit 48. Her total fee reduced should be $10,105.72, not $10,060.72 in Exhibit 22c. Exhibit 48. The major discrepancy is between the hours and fees reduced and total hours billed and fees billed in Exhibits 1 and 23. A clerical oversight lead to these totals for Tonette Southern not being updated in these exhibits. Her total hours reduced should be 202.11 hours, not 177 hours in Exhibit 23. Her total fee reduced should be $10,105.72, not $8,849.95 in Exhibit 1. Her total hours billed should be 912.55 hours, not 953.14 hours in Exhibit 23. Her total billed fee should be $46,780.93, not $47,657.05 in Exhibit 1. Exhibit 46. In Kathi Stahl's billing exhibit, Exhibit 13, there was a slight discrepancy in summing the hours and fee deleted and the hours and fee reduced. Naturally this lead to her total hours and fee billed being incorrect. Her total hours deleted should be 122.50, not 121.38 hours in Exhibit 13. Exhibit 49. Her total hours reduced should be 29.19 hours, not 14.79 hours in Exhibit 13. Exhibit 49. This would bring her total hours billed to 894.8 hour, not 910.32 hours in Exhibit 23. Her total fee deleted should be $6,124.00, not $6,069.00 in Exhibit 13. Her total fee reduced should be $1,459.27, not $739.66 in Exhibit 13. This would bring her total fee billed to $44,737.24, not $45,511.85 in Exhibit 1. Exhibit 46.

7

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 8 of 11

In Carol DuKett-Cotts billing exhibit, Exhibit 21, there was an error in the formula in the spreadsheet. Her total billing hours were correct but her billing fee was incorrectly stated as $310.00 in Exhibit 1, her correct fee is $645.00. Exhibit 50. In Diane Jenkins billing exhibit, Exhibit 18, there was an error in summing the spreadsheet totals. Her total billing hours were incorrectly stated as 43.97 in Exhibit 23 and her total billing was incorrectly stated as $1,979.10 in Exhibit 1, her correct hours billed should be 44.22 and her billing fee should be $1,990.35. Exhibit 51. In summary: Tonnette Southern's billing is reduced from $47,657.05 to $46,780.93; Kathi Stahl's billing is reduced from $45,511.85 to $44,737.24; Carol DuKett-Cotts billing is increased from $310.00 to $645.00; Diane Jenkins billing is increased from $1,979.10 to $1,990.35. The total correction in attorney time for Barbara Butler's billing is a decrease of $5.00. The total correction in paralegal billing is a decrease of $1,304.48. IV. SUPPLEMENTAL BILLING FOR TIME BILLED AFTER APRIL 7, 2007 Plaintiff respectfully requests the court allow him to supplement for the time his counsel have worked on his case after April 7, 2007.2 This supplementation is for time worked on Plaintiff Clawson's case related to the Bill of Costs, Response to Defendants' Motion for Remittitur and New Trial, and for supplementing the Motion for Attorneys' Fees, Costs, and Interest, along with providing defendants consolidated billing per defendants' request. It also includes a small amount of time for reading and preparing to address defendants' Rule 50 Motion prior to receiving the Court's order denying the motion. Plaintiff requests an additional

This is the date that plaintiff used as the cut off date for attorney fees in the Motion for Attorneys' Fees, Costs and Interest filed on April 10, 2007.

2

8

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 9 of 11

$15,061.00 for the time billed by Keith Killian, Damon Davis, Christopher Richter, Paula Mitchell and Carol DuKett-Cotts related to protecting plaintiff's judgment.3 Exhibit 52. V. SUPPLEMENTAL FOR EXPENSES INCURRED POST-TRIAL Plaintiff respectfully requests the Court allow him to supplement for the expenses incurred in the litigation post-trial.4 This supplementation is for post-trial motions and hearings, including: photocopies, postage charges, travel expenses and telephone charges made after the trial relevant to plaintiff's case and protecting the judgment in favor of plaintiff. Plaintiff requests an additional $373.30 for costs incurred for post-trial motions and hearings.5 Exhibit 53. The billing system used by plaintiff's counsel splits the costs/expenses associated with the Clawson matter (ie. in-house photocopies, postage, etc.) among the plaintiffs that went to trial, Clawson and Dillon. However, plaintiff's counsel has corrected their billing going forward to delegate costs for photocopies, Lexis Nexus, postage, and telephone calls as of February 1, 2007, to each individual plaintiff for the work done by Killian, Guthro & Jensen, P.C. on only that plaintiff's case. Therefore, the costs attributed to Clawson's case will be credited to his account only and costs for Dillon, or any other related plaintiff, will be credited to a new and separate client account. Plaintiff is requesting reimbursement for those expenses for the work done and expenses incurred in furtherance of protecting Clawson's judgment. VI. DEMAND Plaintiff requests an award of attorneys' fees of $742,401.02 for the work performed by Killian, Guthro & Jensen, P.C., through trial and for post-trial motions, up to and including April
Plaintiff reserves the right to supplement for time billed for continued work to protect plaintiff's judgment and any appeal by defendants after this current billing through May 7, 2007. 4 Plaintiff is requesting expenses be award for costs incurred after July 1, 2006. 5 These expenses are updated through April 30, 2007. Plaintiff reserves the right to supplement expenses incurred for work to protect plaintiff's judgment and any appeal by defendants after April 30, 2007.
3

9

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 10 of 11

7, 2007. Exhibit 46. Plaintiff requests an award of attorneys' fees of $15,061.00 for work performed by Killian, Guthro & Jensen, P.C. after April 7, 2007, through May 7, 2007. Exhibit 52. Plaintiff requests an award of attorneys' expenses in an amount totaling $51,545.60. This amount includes costs that may not be awarded in the Motion to Review Taxation of Costs ($3,923.46), costs requested from the Clerk but not requested in the Motion to Review Taxation of Costs ($423.89), and updated attorneys' expenses ($373.30). Exhibit 53. Plaintiff requests a total award of attorney fees under § 1988 in the amount of $809,007.62 (including the additional billing time & expenses requested in this motion) for work performed and expenses incurred by Killian, Guthro & Jensen, P.C. in the course of litigating this ADA case. WHEREFORE, plaintiff requests this Court permit plaintiff to supplement his Motion for Attorneys Fees, Costs and Interest for expenses not awarded in the Bill of Costs and allow plaintiff's supplemented demand of attorneys' fees and expenses.

RESPECTFULLY SUBMITTED this 14th day of May, 2007. s/ J. Keith Killian J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiff Michael E. Clawson

10

Case 1:01-cv-02199-MSK-MEH

Document 482

Filed 05/14/2007

Page 11 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 14th day of May, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mail

s/J. Keith Killian ___ J. Keith Killian, Esq. No. 9042 Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 North 5th Street Grand Junction, Colorado 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

11