Free Motion for Attorney Fees - 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 MOTION FOR ATTORNEYS' FEES, COSTS, AND INTEREST

The plaintiff, Michael E. Clawson, through his undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit his Motion for Attorneys Fees, Costs, and Interest, and in support thereof, states as follows: I. PROCEDURAL HISTORY This Americans with Disabilities Act (ADA) case was tried before a jury from April 10, 2006 through April 21, 2006. The jury rendered a verdict in favor of Clawson awarding economic and compensatory damages totaling $486,000.00, before costs, interest and attorney fees were considered. The jury found Maintain Coal Company, LLC was an integrated

enterprise with Arch Western Resources, LLC and Arch Coal, Inc. The jury found Clawson was regarded as disabled by the defendants, was qualified for the position he held or desired, and the

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defendants failed to accommodate Clawson.

In so finding, the jury awarded Clawson

$236,000.00 in economic damages and $250,000.00 in non-economic damages. The jury found defendants did act with malice or reckless indifference toward plaintiff, Clawson. However, the jury declined to award punitive damages against the defendants. The Court adopted the jury's advisory verdict that plaintiff suffered $236,000.00 in economic damages. The Court reduced this by $11,180.00 for short-term disability benefits and $5,809.00 for long-term disability benefits received by plaintiff. At plaintiff's request, it was the court and not the jury that decided offsets for collateral sources. The Court awarded plaintiff economic damages of $219,011.00, after the short-term and long-term disability offsets, and noneconomic damages of $250,000.00, pursuant to 42 U.S.C. § 1981a(b)(3). The Court awarded a total judgment of $540, 991.07, and costs pursuant to Fed. R. Civ. P. 54(d)(1), based on the jury verdict of April 21, 2006; the Court's Opinion and Order of January 24, 2007; the parties' Stipulation of March 21, 2007 (Pre-judgment Interest of $71,980.07 through and including March 27, 2007); and the Court's oral findings of facts and conclusions of law of March 27, 2007. The findings by the jury and judgment in favor of the plaintiff demonstrate the plaintiff was the prevailing party as to all issues tried to the jury. In an action brought under the ADA, the Court has discretion to "allow the prevailing party...a reasonable attorney's fee, including litigation expenses and costs." See 42 U.S.C. § 12205. A successful plaintiff under the ADA will be accorded the same treatment as a plaintiff claiming a fee award under Title VII or 42 U.S.C. § 1988. Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1232 (10th

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Cir. 1997).

As the prevailing party, plaintiff is seeking compensation for attorneys' fees,

litigation expenses, costs, and interest.

II. PRESUMPTION OF AWARD OF ATTORNEYS' FEES There is a strong presumption, supported by the legislative history, that a prevailing party should be awarded attorneys' fees. Gudenkauf v. Stauffer Communications, Inc., 158 F.3d 1074, 1080-82 (10th Cir. 1998). particulary pertinent: It is important to remember the dual purpose of private enforcement of Title VII. On the one hand, the object is to make whole the individual victims of unlawful discrimination ... But this is only part of it. The individual Title VII litigant acts as a "private attorney general" to vindicate the precious rights secured by that statute. It is in the interest of American society as a whole to assure that equality of opportunity in the workplace is not polluted by unlawful discrimination. Even the smallest victory advances that interest. Gudenkauf, 158 F.3d at 1080-81 (quoting H.R. REP. NO. 102-40(I) at 46-47, 1991 U.S.C.C.A.N. at 584-85 [quoting Jane Lang, former General Counsel of the United States Department of Housing and Urban Development]) (emphasis added). The award of attorney fees encourages The Gundenkauf Court found the following legistlative history

enforcement and makes the victims of illegal discrimination whole. Id. The strong desire to encourage access to the courts for private enforcement of the ADA and Title VII discrimination has lead courts to state the prevailing party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Gudenkauf, 158 F.3d at 1081. While the Court does have discretion to deny and limit attorney's fees, "Congress intended this discretion to be narrow once the plaintiff meets the `prevailing party' inquiry." Phelps v. Hamilton, 120 F.3d

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1126, 1129 (10th Cir. 1997). Plaintiff, by attaining a judgment against defendants, has met the threshold of the "prevailing party" test, there is no evidence that the special circumstances required to deny attorneys' fees are present in this matter. Barber v. T.D. Williamson, Inc., 254 F3d 1223, 1234 (10th Cir. 2001). Therefore, plaintiff is entitled to reasonable attorneys' fees. III. ATTORNEYS' FEES A. LODESTAR FIGURE

1. Prevailing Party and Results Obtained The plaintiff, Clawson, is the prevailing party in this case having "succeeded on [a] significant issue in the litigation which achieve[d] some of the benefit the part[y] sought in bringing the suit." Hensley, 461 U.S. at 433. As the prevailing party, plaintiff is entitled to recover reasonable attorneys' fees. The starting point for the court to determine a "reasonable" fee is the "lodestar" figure, the number of reasonable hours expended on the case multiplied by a reasonable rate. Hensley, 461 U.S. at 433. The court should consider the plaintiff's overall success in the matter when determining the amount of the reasonable attorney fee. "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensated fee. Normally this will encompass all hours reasonably expended on the litigation.... In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative 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. The result is what matters." Hensley, 461 at 435. Plaintiff submits the favorable jury verdict on the claim tried in Clawson's case and the jury awarding more than the actual economic and non-

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economic damages requested, in the total amount $486,000.00,1 and the favorable judgment and damages award of $540,991.07, demonstrates excellent results. Therefore, no reduction to his requested reasonable fee is proper. The Court should not be overly concerned with the

proportions of attorney fees to the amount of damages. Riverside v. Rivera, 477 US 561, 573-74, 581 (1986); Fegley v. Higgins, 19 F.3d 1126, 1134-35 (6th Cir 1994). The Court may award more in attorney fees than was recovered by the plaintiff. Riverside, 477 US at 564-66, 569-73 (affirming award of $245,00.00 in attorney fees on a judgment of $33,350.00). 2. Dismissed Claims Plaintiff acknowledges some claims initially brought by plaintiff did not make it to trial. However, it would be improper for the court to deny attorney fees to Clawson for work on the dismissed claims simply because these claims were dismissed at an earlier stage in the proceedings. Plaintiff submits these claims are related claims based on "a common core of facts" or involved related legal theories. The Tenth Circuit has refused to permit reductions to attorneys' fees requests if the successful and unsuccessful claims are based on this same "common core of facts." Jane L. v. Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995). "It is not legally relevant that plaintiffs' counsel expended a certain limited amount of time pursuing certain issues of fact and law that ultimately did not become litigated issues in the case or upon which plaintiffs ultimately did not prevail. Since plaintiffs prevailed 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 result achieved in the same manner that an attorney
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In Clawson's closing, he requested compensatory damages of $100,000.00. $250,000.00 in compensatory damages was awarded. Clawson sought $235,431.00 in economic damages. The jury rendered a verdict providing $236,000.00 in economic damages. Clawson sought punitive damages of $500,000.00. The jury found the requirements necessary to award punitive damages but declined to do so.

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traditionally is compensated by a fee-paying client for all time reasonably expended on the matter." Gurule v. Wilson, 635 F.2d 782, 793 (10th Cir. 1980). "Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised." Hensley, 461 U.S. at 440. Clawson's wrongful termination in violation of the ADA claim was dismissed before trial. However, this claim was based on a common core of facts and/or related legal theories to the failure to accommodate claim pursued at trial. Plaintiff is requesting compensation for certain work done based on the common core of facts and/or the related legal theories of both claims. By initially bringing the claim that was dismissed, plaintiff was not seeking damages in addition to the damages awarded at trial. The dismissed claim was brought as an alternative theory of liability. The dismissed claim was a different `means' to achieve the same `end,' namely the damages obtained at trial. No fees are being sought for work specifically applicable only to the cases of Bartlett and Richards, the dismissed plaintiffs, or Dillon, whose verdict was reversed post-trial.2 Plaintiff has made every effort to exclude fees relevant purely to the cases of Bartlett, Richards, and Dillon. However, much of the information and facts related to Bartlett, Richards, and Dillon are pertinent to Clawson's case. Certain circumstances surrounding Bartlett's, Richards', and

Dillon's employment demonstrate the practices of the defendants, particularly that defendants had many jobs with different requirements, had a "no restrictions" policy, and each of these
The jury rendered a verdict in favor of Dillon at trial. The jury found Dillon was regarded as disabled by the defendants, was qualified for the position he held or desired, and the defendants failed to accommodate and wrongfully terminated Dillon. In so finding, the jury awarded $108,000.00 in economic damages and $250,000.00 in compensatory damages. However, in regard to Dillon, the court granted defendants' Rule 50 motion, after the trial was concluded.
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individuals had their employment terminated under those policies and in similar circumstances. Bartlett, Richards, and Dillon were witnesses called at trial, further demonstrating the development of their testimony was pertinent to Clawson's success. Therefore, a good faith effort has been made to eliminate any billing solely associated with the three unsuccessful plaintiffs that had no relation to, or did not lead to, the successful results achieved by Clawson. In the event Bartlett's, Richards', and Dillon's cases are successfully appealed no fees sought and awarded in this case would be sought in their cases. Only the reasonable fees deleted or reduced from, and not awarded in Clawson's case would be sought, if those cases are successful on appeal. 3. Nature of the Case This case proceeded over the period of more than seven years from the initial interview with the clients to the eventual judgment in favor of the plaintiff. The pleadings in this case

entail over fifty-five motions filed by the defendant, many of which were dispositive motions to dismiss claims and parties. This required responses by the plaintiff to justify his claims. The pleadings index alone makes record of over 360 filing entries made in litigating the case. The extensive discovery accounted for over 700 exhibits and twenty depositions. This is reflective of tenacious defense lodged by "the largest law firm based in the Rocky Mountain West" and the work necessary to successfully litigate a "regarded as" disabled case under the ADA. Since a "regarded as" case involves law that is not well established, as the briefs repeatedly pointed out, the case also involved a significant financial risk for the plaintiff and his attorneys.

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4. Demand Plaintiffs request an award of attorneys' fees of $747,710.503 for the work performed by Killian, Guthro & Jensen, P.C., through trial and for after trial motions. Exhibit 1 This fee is based on the detailed billing information attached as Exhibits 2 - 22. The extended time period, extensive discovery and the complicated nature of a "regarded as" case lead Killian, Guthro & Jensen, P.C. to incur 5,593 hours working on this case. Exhibit 23. The total hours for the

firm consists of 3,615.5 hours of attorney time, 30.1 hours of law clerk time and 1,946.4 hours of paralegal time, after the exercise of billing judgment by the firm. The hours expended were

both reasonable and necessary to achieve the substantial results and success at trial. B. REASONABLE RATES

J. Keith Killian, Esq. was the senior attorney who litigated the majority of this trial. Exhibit 2. Mr. Killian has practiced law for more than twenty-eight years. Mr. Killian's hourly rate of $250.00 per hour is appropriate in Grand Junction and is significantly below the hourly rate billed by Denver attorneys in employment cases and is reasonable in light of his experience. See Bat v. A.G. Edwards & Sons, Inc., 2006 U.S. LEXIS 9542, 9 (D. Colo.) (Finding an hourly rate of $350.00 for a senior attorney with twenty-four years of experience to be within prevailing market rates for Denver). Joanna C. Jensen, Esq. is a shareholder who has been licensed to practice law in the state of Colorado since 1996. Exhibit 3. Mrs. Jensen assisted in a substantial part of the preliminary stages of this litigation, drafting many of the pleadings in this case and handling initial client relations. Ms. Jensen's hourly rate of $200.00 per hour is a reasonable fee

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.

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for an attorney with her level of experience in employment law within the state of Colorado. See Id. (Finding an hourly rate of $190.00 for a lawyer with two years of experience to be within the prevailing market rates for Denver). Damon J. Davis, Esq. is an associate who has been licensed to practice law in the state of Colorado since 2002. Exhibit 5. Mr. Davis assisted in a substantial part of the trial preparation, drafted many of the motions and responses in this case, and assisted in much of the litigation. Mr. Davis' hourly rate of $150.00 per hour is a reasonable fee for an attorney with his level of experience in employment law within the state of Colorado. See Id. Plaintiffs' counsels' hourly rates are commensurate with the hourly rates charged in Mesa County, Colorado and are lower than the hourly rate for services provided by Denver attorneys practicing in the area of employment law and discrimination cases. The "district court should base its hourly rate award on what the evidence shows the market commands for civil rights or analogous litigation." Case v. Unified School District No. 233, Johnson County, Kansas, 157 F.3d 1243, 1255 (10th Cir. 1998). ADA litigation is analogous to civil rights litigation. The majority of firms who practice such litigation are based out of Denver; few firms in western Colorado practice such litigation. Therefore, the relevant local community to compare rates should be Denver. Furthermore, plaintiff's is requesting compensation at his counsels' current billing rate in accordance with Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983). In Ramos, the Tenth Circuit stated "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." Id. at 555 (emphasis added). Awarding rates at the current rate adjusts for inflation

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and interest and is particularly pertinent in a case such as the present where plaintiff's counsels have been working on the case for over seven years without compensation. In this case, plaintiff's attorneys would have received no fee if the matter were unsuccessful. His attorneys have considerable experience in litigating employment cases. Mr. Killian litigated the first ADA case to reach the Colorado Supreme Court, Community Hospital v. Fail, 969 P.2d 667 (Colo. 1998), and has litigated other ADA cases; including one which was successfully prosecuted at trial and defended on appeal to the Tenth Circuit Court of Appeals, Hall v. Claussen, 6 Fed. App. 655; 2001 U.S. App. LEXIS 3404 (10th Cir. 2001). Mr. Killian, the lead attorney on this case, is a long time board member, has served as an officer for five years and is the current president of the Colorado Trial Lawyers Association (CTLA). He has been recognized as a Colorado Law Fellow by Colorado Bar Foundation Fellows and by the Denver magazine "5280" (Colorado Super Lawyers). Both entities recognize attorneys who they consider to be practicing in the top 5% of the profession. In 1999, Mr. Killian presented a seminar on ADA lawsuits before the CTLA membership. He also spoke on the ADA in a Grand Junction seminar in 2001. In late 2006, Mr. Killian made a presentation in the Denver area to the Plaintiff Employment Lawyers Association. The topic pertained to ADA cases. 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. Finally, the law firm has incurred extensive costs involved in bringing this suit. These factors are traditionally considered in determining a fee award. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

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In addition to Mr. Killian, Mrs. Jensen, and Mr. Davis, several associates were instrumental in the successful outcome of Clawson's cases. Their time is billed at a reasonable rate of $90.00 to $125.00 per hour and is detailed in Exhibits 6 - 10. Tonette Southern, Exhibit 22, and Kathi Stahl, Exhibit 13, were the paralegals primarily assigned to assist in this case. Both have extensive experience in litigation. Their hourly billing rate is $50.00. The firm's paralegals were instrumental in keeping the number of attorney hours minimized by performing necessary tasks which did not require a licensed attorney. As shown in the billing statement, several other paralegals assisted in this matter but their overall time was relatively small. Exhibits 13 - 22. In addition, extensive time was expended by Killian, Guthro & Jensen, P.C.'s secretarial, accounting, and other support staff in managing this case over six years. Although it fulfilled an important function in this matter, bookkeeping, management, and secretarial-type tasks are not being requested. C. REASONABLE HOURS

Attorneys for the plaintiff have utilized their best billing judgment to reduce the "raw" time spent on the case to the "hard" or "billable" time worked on the prevailing client's case to determine the number of hours reasonably expended. Attorneys for the plaintiff have reviewed each and every billed hour to delete any time spent only on Bartlett's, Richards' or Dillon's claims, which had no bearing on Clawson's claims. The tasks sought to be charged to the

adverse parties are charges that would normally be billed to clients, the expenditure of time on each task is reasonable, and any potential duplication of services has been accounted for and deleted accordingly. See Ramos, 713 F.2d at 554. Furthermore, a good faith effort has been

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made to exclude all requests for fees that are "excessive, redundant, or otherwise unnecessary, just as a lawyer in the private practice ethically is obligated to exclude such hours from his fee submissions." Hensley, 461 U.S. at 433. Plaintiff achieved an excellent result in light of the overall relief awarded in this case compared to relief sought. Clawson requested an award of $235,431.00 in economic damages and $100,000.00 in non-economic damages for a total of $335,431.00. The jury awarded

Clawson $236,000.00 in economic damages and $250,000.00 in non-economic damages for a total of $486,000.00. Plaintiff was awarded more in compensatory damages than he requested at the close of trial. Plaintiff concedes he did not recover for punitive damages sought, but the jury did find for plaintiff in determining defendants acted with malice or reckless indifference towards the plaintiffs. The Court awarded a total judgment of $540, 991.07, with costs pursuant to Fed. R. Civ. P. 54(d)(1) and post-judgment interest. Clawson's results, when compared to what he sought, can only be viewed as excellent. "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensated fee." Hensley, 461 U.S. at 435. "Much of counsel's time will be devoted generally to the

litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. Thus, a "fully compensated fee" includes work on related, though unsuccessful claims by Clawson. In using billing judgment, plaintiff eliminated all fees that could be viewed as secretarial or non-professional in nature; this includes descriptions involving "filing", "organizing", or

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"transcription". Plaintiff has taken a voluntary fifteen percent reduction to fees where the descriptions are either too vague for the amount of time spent on the task (only described as "research", "reviewing documents", or "drafting") without any reference to the subject of the task; most notable in billing records of Of Counsel Beecher Threat. Plaintiff voluntarily reduced by fifteen percent all time where multiple tasks were grouped into a lump total of time without any discernable allotment to specific time on each task; most notable in billing records of paralegal Tonette Southern. See Carr v. The Fort Morgan School District, 4 F.Supp. 2d 998, 1003 (D. Colo. 1998). Plaintiff eliminated any duplicative time spent on a matter, such as the time for Christopher H. Richter, Esq. spent at trial as the third attorney. Plaintiff further reduced the fees of Mr. Richter where appropriate for either his lack of experience, time spent getting caught up on the case, or his time spent on tasks that could have been delegated to a paralegal at a lesser rate. These and further reductions are briefly explained in the reason column in the reduction portion of the billing spread sheet for each timekeeper at the firm. IV. EXPENSES NECESSARY TO LITIGATION A. REASONABLE EXPENSES Plaintiff requests the award of his counsels' reasonable out-of pocket expenses that were necessary to the outcome of his case. "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, 713 F.3d at 559. Reimbursement for these out-of-pocket expenses not

normally absorbed by the firm are allowed under 42 U.S.C. § 1988. Id. "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

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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). Plaintiff requests reimbursement for his counsels' reasonable expenses related to travel for court proceedings, settlement conferences, mediation, and depositions. Furthermore, plaintiff requests reimbursement for his expert witness fees and vocational assessment tests. "The ADA authorizes a court to award attorney's fees, litigation expenses and costs to a prevailing party.... [L]itigation expenses include items such as expert witness fees, travel expenses, etc." Lovell v. State of Hawaii, 303 F.3d 1039, 1058 (9th Cir. 2002). See 42 U.S.C. § 12205; see also 28 C.F.R. § 35.175. Plaintiff seeks reasonable expenses under 42 U.S.C. § 1988 in the amount of $46,824.98. Exhibit 24. 1. Travel Expenses Throughout this case plaintiff's counsel had to make numerous trips to Denver from Grand Junction to take part in depositions, court proceedings, settlement conferences, and mediation. These trips were essential to the outcome of the case because the Court and defense counsel were both based in Denver. Plaintiff's counsels had no choice in the matter, these trips were "incidental and necessary expenses incurred in furnishing effective and competent representation." Brown v. Denver Manager of Public Safety, 227 F.3d 1278, 1297 (10th Cir. 2000). These travel costs are normally billed by the plaintiff's counsel to their clients and as such are properly made part of the judgment agianst defendants in this case. Plaintiffs are requesting $3,430.15 for expenses incurred as a result of travel in this case. Exhibit 24, Exhibit 25.

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2. Expert Witness Fees and Vocational Assessments A court may award expert witness fees to a prevailing party under section 1988 if the court finds the expert testimony was reasonably necessary. Ramos, 713 F.2d at 559. "The fees and costs of expert witnesses hired in a case are not normally absorbed as overhead in private litigation. Even if a firm advances such costs in a contingent fee case, reimbursement from the client's recovery in addition to the attorney's contingent fee is usually expected." Id. Plaintiffs have taken care to exclude any expert witness fees related purely to the unsuccessful cases of Richards, Bartlett, and Dillon. Plaintiff, Clawson, is only requesting expert witness fees that related to the reasonably necessary expert testimony at trial. Exhibit 24, Exhibit 26. This includes the expert witness fees for the testimony of Dr. Ellen Price, Dr. Huene, and Ron Brennan, along with the fee the plaintiffs' paid to compensate defense expert witnesses Pat Anctil and Jerome Darnell for their time spent being deposed. Included in the fee of Mr. Brennan are the vocational assessment fees which were critical to his testimony in this case. Exhibit 24, Exhibit 27. Furthermore, plaintiff requests the expert witness fee of Donald R. Vogenthaler whose testimony was important in supporting the methodology and opinions of Ron Brennan during the Rule 702 hearing in which defendants challenged Mr. Brennan's fitness to give expert opinion in this matter. Exhibit 24, Exhibit 28. Plaintiff requests the award of $25,141.48 for expenses incurred as a result of expert witness fees in this case, including vocational assessments and fees related to Mr. Vogenthaler's testimony at the Rule 702 hearing. 3. Litigation Consultant The nature of this case made it necessary for plaintiffs to hire an outside litigation consultant, The Portia Group, LTD, to assist in the preparation for trial. When attorneys have

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been entrenched in a case for a number of years, it is difficult to see the case from the perspective of an outsider, such as a juror. The Portia Group, LTD was critical to the successful verdict plaintiff obtained in this case. The Portia Group, LTD assisted with trial strategy, particularly jury instructions, opening and closing arguments, witness order, exhibits to be presented, and demonstrative exhibits. This type of expense is normally itemized and charged to the client by plaintiff's law firm. The Tenth Circuit has not ruled specifically for or against the award of a "litigation consultant." persuasive. However, there is case law from the Southern District of New York that is In BD v. DeBuono, 177 F. Supp. 2d. 201, 204 (S.D.N.Y. 2001), a district court

awarded the reimbursement of litigation consultant fees. "Litigation consultants ... are trained in various aspects of courtroom practice and procedure. They are consulted by litigators to hone their trial skills in the context of a particular case. It seems to this Court that litigation

consultants ... are the equivalent of additional attorneys or legal paraprofessionals." Id. Plaintiff chose to use outside assistance to provide a different perspective on the case. The consultant possessed supplementary experience with trial work and ADA litigation. "The fact that counsel chose to engage the services of an independent contractor to perform those same services, rather than assign the same work to employees, does not alter the nature of the services rendered." Id. The fees of the consultant group should be considered a necessary expense to this litigation and the court should award the amount of $4,850.00 as part of attorneys' fees under section 1988. Exhibit 24, Exhibit 29.

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4. Other Litigation Expenses Other litigation expenses such as long distance phone charges, postage, Federal Express deliveries, Lexis charges, and fees paid to investigation services should be awarded as part of attorneys' fees. These incidental and necessary expenses are normally billed in addition to

attorneys' hourly rates by the plaintiff's counsels. These expenses are reasonable and should be included in the award of attorneys' fees. See Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1259 (10th Cir. 2005). While defendants may argue these expenses are merely overhead and should not be reimbursed as attorneys' fees, plaintiff's law firm does keep itemized billing records for each of these expenses and bills its clients for these expenses separate from any contingency fee. Reasonable expenses incurred in representing a client in a civil rights case should be included in the attorneys' fees award if such expenses are usually billed in addition to the attorney's hourly rate. Ramos, 713 F.2d 559. Plaintiff's request the award of $1,392.94 in long distance telephone charges. Exhibit 24, Exhibit 30. The primary reason for these long distance chargers were telephone calls made to opposing counsel who are located in Denver. Plaintiff has attached an affidavit of Linda Meyer explaining the procedures plaintiff's firm uses to assure accurate billing records and how the firm bills clients for this expense. Exhibit 31. Plaintiff requests the award of $721.37 in postage charges. Exhibit 24, Exhibit 32. Plaintiff is entitled to his postage costs as expenses included in the attorney fee. See Praseuth, 406 F.3d at 1259. Plaintiff voluntarily reduced the regular postage amount by 50% to account for mailing to Bartlett, Richards and Clawson. Numerous letters were sent to defendants and

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experts for the benefit of Clawson, along with letters sent to Clawson himself. Plaintiff has attached an affidavit of Linda Meyer explaining the procedures plaintiff's firm uses to assure accurate billing records and how the firm bills clients for this expense. Exhibit 31. Plaintiff requests the award of $736.42 in Federal Express charges. Exhibit 24, Exhibit 30, Exhibit 32. Plaintiff has attached an affidavit of Linda Meyer explaining the procedures

plaintiff's firm uses to assure accurate billing records and how the firm bills clients for this expense. Exhibit 31. Plaintiff requests the award of $3,226.03 in Lexis, electronic research, charges. Exhibit 24, Exhibit 30. The Tenth Circuit has held electronic legal research expenses may be recovered if they are normally billed in addition to attorney's hourly rates and are reasonable. See Case, 157 F.3d 1258. Electronic research is a necessary and efficient manner to do research for a small firm, especially one in the western Colorado where there is not an adequate law library.4 Electronic research allows the small firm to access a multitude of cases from other jurisdictions along with the most recent cases through a quick search. This allows efficient and cost effective research for clients, actually saving the amount billed in attorney fees in comparison to the classic version of a book law library. Due to the interrelated nature of all the legal theories in this case, all of the legal research done in this case was relevant to Clawson's claims. Plaintiff has attached an affidavit of Linda Meyer explaining the procedures plaintiffs' firm uses to assure accurate billing records and how the firm bills clients for this expense. Exhibit 31. Plaintiff requests the award of $6,540.00 for in-house photocopy charges. Exhibit 32. The raw total for in-house copies was $13,080.07 before a 50% voluntary reduction by plaintiff.
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The law library in Grand Junction stopped updating most materials in 1998, and the remainder in approximately 2001.

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This reduction is to account for copies made for Bartlett, Richards and Dillon. This reduction also includes any copies that were made for the convenience of the attorneys working on the case. However, the length of Clawson's litigation and the amount of documents produced, both by defendants and by Clawson, required numerous copies to be made to send to the defendants, the expert witnesses in the case, and the Court. In-house photocopy charges have been awarded in other discrimination cases. See Moss v. Colorado Springs, 1986 U.S. Dist. LEXIS 17856 (D. Colo); see Praseuth, 406 F.3d at 1259; see Wheeler v. Durham City Bd. of Education, 585 F.2d 618 (4th Cir. 1978); see Thomas v. Cooper Industries, Inc., 640 F. Supp. 1374 (W.D. N.C. 1986). "We do not require that a civil rights attorney [explain] each copy he or she makes, and we do not think that the burden to justify copies is a high one." Case, 157 F.3d at 1259. Plaintiff requests the award of $410.70 in investigation service charges. Exhibit 24, Exhibit 33. A key witness Andy Tweddell, who testified through his deposition, could only be found though the use of an investigation service. Mr. Tweddell's testimony was crucial to the plaintiffs' case in regard to mine conditions, job requirements, everyday knowledge of positions in the mine, and general practices of the defendants. This was an incidental and necessary expense of the litigation and was the only way to locate Mr. Tweddell. As such, this

investigation charge should be included in an award of attorney's fees. See Praseuth, 406 F.3d at 1259. B. DEMAND Plaintiff requests an award of attorneys' expenses as part of attorneys' fees in the amount of $46,824.98 for Killian, Guthro & Jensen, P.C. for the expense incurred in the litigation of this ADA case. These expenses are detailed in the information attached as Exhibit 24. The travel

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expenses, expert witness fees, litigation consultant fees, and other litigation expenses were reasonable and necessary for plaintiff's counsels to competently and successfully represent plaintiffs in this ADA litigation. V. 28 U.S.C. § 1920 COSTS Plaintiff has requested costs totaling $17,805.08 under 28 U.S.C. § 1920 in a separate Bill of Costs. Exhibit 34, Exhibit 35. Detailed documentation of these costs are not being provided in this pleading, but have been provided to the Court and the defendants in plaintiff's separate Bill of Costs. Plaintiff requests and reserves his right to seek any costs denied under §1920 as costs which were appropriate pursuant to §1988 since these were expenses necessary to the outcome of his case. VI. POST-JUDGMENT INTEREST Plaintiff requests an award of post-judgment interest on any award of attorneys' fees, or litigation expenses. Plaintiff requests interest at the statutory rate provided in 28 U.S.C. §1961. Attorneys' fees which include litigation expenses are included as part of a money judgment and therefore should be taxed with interest accordingly. See Transpower Constructors, 905 F.2d 1413, 1423-24 (10th Cir. 1990). VI. CONCLUSION Plaintiff requests an award of attorneys' fees of $794,535.48, plus post-judgment interest, in regard to this ADA case. This total award includes $747,710.50 for attorneys' fees (including paralegal and clerk fees), and $46,824.98 for litigation expenses.

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VII. REQUEST TO ACCEPT OVERSIZE BRIEF Plaintiff requests that the court accept this motion although it exceeds fifteen pages. It was necessary to address several issues including: the availability of attorney fees and costs; the dismissed claims and plaintiffs; the proper measure of attorney fees; costs that may be included as expenses; and the proper measure of costs. The necessity of addressing all of these issues in one motion necessitated the use of more than fifteen pages. CONFERRAL Plaintiffs' counsel has conferred with defense counsel concerning this motion and defense counsel has advised that defendants object to the relief sought.

RESPECTFULLY SUBMITTED this 10th day of April, 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

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 10th day of April, 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] 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]

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