Free Motion for Attorney Fees - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

Document 277

Filed 10/12/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. ______________________________________________________________________________ PLAINTIFF'S MOTION FOR ATTORNEYS' FEES ______________________________________________________________________________ COMES NOW, the Plaintiff, M.D. Mark, Inc., by and through its attorneys, Pelz, Bonifazi & Inderwish, P.C., and respectfully submits the following Motion for Award of Attorneys Fees. As grounds therefor, Plaintiff states as follows: SUMMARY OF THE CASE Plaintiff prevailed on its claims against Kerr-McGee Corporation and Oryx Energy Company on its claim for breach of contract and misappropriation of trade secrets. MOTION FOR ATTORNEYS' FEES A. Basis Upon which Fees are Sought. 1. C.R.S § 7-74-105

C.R.S. § 7-74-105 provides that if a claim of misappropriation is made in bad faith, a Motion to Terminate an Injunction is made or resisted in bad faith or willful and malicious misappropriation exists, the Court may award reasonable attorneys fees to the prevailing party.

Case 1:01-cv-00413-JLK-BNB

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Filed 10/12/2007

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In this case, the actions of the Defendant, Kerr-McGee Corporation were both willful and malicious. As was apparent from testimony during the trial, Kerr-McGee Corporation gained access to 3,178 miles of the PGI Data for which it could provide no evidence of its right to have possession of this seismic data. The only way Kerr-McGee Corporation could have misappropriated the PGI Data is to receive possession of it from some other company unknown to the Plaintiff. The PGI Data could not have just dropped into Kerr-McGee's possession by magic. The seismic sections were second or third generation copies of the films and the

possession had to have been known by Kerr-McGee. The word "willful" as defined in Webster's Ninth New Collegiate Dictionary means, "obstinately and often perversely self-willed, done deliberately or intentional." The Plaintiff submits that Kerr-McGee Corporation could not have gained access to those 3,178 miles of seismic data through other than a deliberate and intentional act. From the same dictionary, the word "malicious" means "intent to commit an unlawful act or cause harm without legal justification or excuse. In this case, Kerr-McGee Corporation clearly acted with malice. Not only did it gain access to 3,178 miles of Plaintiff's seismic data for which it can produce no evidence of rightful possession, Kerr-McGee Corporation refused to return that seismic data when demand was made for its return in April of 2004 (Exhibit 142). Furthermore, despite being told by M.D. Mark to return the PGI Data by letter dated March 31, 1999, (Exhibit 123), Kerr-McGee Corporation chose to not only keep the seismic data but to use it (Exhibit 164) and transfer the licenses to Kerr-McGee Oil and Gas Corporation or one of its subsidiaries. Kerr-McGee Corporation had no legal justification or excuse to keep the

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Case 1:01-cv-00413-JLK-BNB

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PGI Data and had no legal justification to transfer the licenses to the PGI Data to one of its subsidiaries. This conduct is both willful and malicious and constituted a misappropriation of trade secrets. 2. Non-Exclusive License Agreement to use data between M.D. Mark, Inc. and Kerr-McGee Corporation

By the License Agreements dated May 13, 1994 between M.D. Mark, Inc. and Kerr- McGee Corporation, "...licensee shall indemnify and hold M.D. Mark harmless from and against any loss to M.D. Mark which is resulting from or relating to any breach by licensee of its obligations provided for in this Section IV." The jury found that Kerr-McGee Corporation breached this License Agreement which replaced all prior License Agreements between Kerr-McGee Corporation and M.D. Mark, Inc. or any of M.D. Mark's predecessors, including but not limited to PGI Houtex, ICS, and X MARK. Payment of attorneys' fees incurred by M.D. Mark, Inc. is a loss to M.D. Mark, Inc. "resulting from or relating to any breach by licensee of its obligations provided for in this Section IV." 3. Colorado Revised Statutes, Section 13-17-103

C.R.S. § 13-17-103(1) provides, in pertinent part, "In determining the amount of any attorney fee award, the court shall exercise its sound discretion." Such statute goes on to state that the court, when granting an award of attorney fees shall consider the following factors, among others in determining whether to assess attorney fees and them amount of attorney fees to be assessed against any offending attorney or party: (a) The extent of any effort made after the commencement of an action to determine the validity of any action or claim before said action or claim was asserted; 3

Case 1:01-cv-00413-JLK-BNB

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Filed 10/12/2007

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The testimony of Marilyn Davis was clear that she made several attempts to recover the seismic data from Kerr-McGee Corporation. However, Kerr-McGee Corporation chose to refuse to return the seismic data and the Plaintiff was required to file suit to attempt to recover damages. In addition, when part of the PGI Data was returned thousands of miles of the PGI Data was unaccounted, a reckless act against M.D. Mark, Inc.'s trade secrets. As set forth above, the outcome at trial supports a finding by this Court that the Plaintiff is entitled to an award of attorney fees. B. Amount of Fees Sought and Method by Which Fees Were Calculated Plaintiff seeks an award for all attorneys fees incurred in prosecuting the case against Defendants. 1. Amount of Fees Sought Plaintiffs incurred a total of $825,014.55 in attorneys' fees, paralegal fees and law clerk fees. Invoices evidencing these fees are attached hereto as Exhibit 1. 2. Method By Which Fees Were Calculated Attorneys' fees accrued by Pelz, Bonifazi and Inderwish, P.C. were submitted by invoice to Plaintiff on a monthly basis. Each invoice contains a description of the tasks performed, the date the tasks were performed, the billing rate, and a summary of the total fees incurred. Total attorneys fees of Pelz, Bonifazi and Inderwish, P.C. for its

prosecution of this action were calculated by totaling the fees charged on each invoice. C. Reasonableness of Attorneys Fees

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Case 1:01-cv-00413-JLK-BNB

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Filed 10/12/2007

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Attached hereto as Exhibit 2 is the Affidavit of Harlan P. Pelz in Support of Attorneys Fees. Mr. Pelz's affidavit addresses the reasonableness of attorneys fees incurred with regard to the law firm of Pelz, Bonifazi and Inderwish, P.C. WHEREFORE, Plaintiff respectfully moves this Court, pursuant to C.R.S. § 7-74-105, Contract and C.R.S. § 13-17-103 to grant its their reasonable attorneys fees payable by Defendants, in the total amount of $825,014.55. CONCLUSION Plaintiff's actions during the course of this litigation and at trial, and the final outcome of trial in favor of Plaintiff, warrants the award of attorney fees pursuant to the Contract and C.R.S. § 13-17-104. There being sufficient documentation herein as to the attorneys fees incurred by Plaintiff in the prosecution of this action, and there being detailed verification of the reasonableness of the attorneys fees incurred, and the method of calculation thereof, Plaintiff respectfully requests, pursuant to the authority cited herein, that the Court grant its reasonable attorneys fees in the amount of $825,014.55 to be paid by Defendants, Kerr-McGee Corporation and Oryx Energy Company. Plaintiff's counsel will redact Exhibit A to Affidavit of Attorneys' Fees and file same during the week of October 15, 2007, due to the considerable amount of time that will be required to redact the billing entries from 2001 to 2007, which are Exhibit A of the Affidavit of Attorneys' Fees.

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Case 1:01-cv-00413-JLK-BNB

Document 277

Filed 10/12/2007

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CERTIFICATION PURSUANT TO LOCAL RULE 7.1A Counsel for Plaintiff has conferred with counsel for Defendants, Marie Yates, regarding the filing of this motion. Counsel for Defendants objects to the relief requested herein. DATED: October 12, 2007. Respectfully submitted, PELZ & ASSOCIATES, P.C. s/ Harlan P. Pelz Harlan P. Pelz Daniele W. Bonifazi 1873 South Bellaire Street, Suite 1401 Denver, CO 80222 Telephone: 303-691-5600 Facsimile: 303-691-5606 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on the 12th day of October, 2007, a true and correct copy of the foregoing PLAINTIFF'S MOTION FOR ATTORNEYS' FEES was faxed and placed in the United States Mail, postage prepaid, addressed as follows: M. Antonio Gallegos, Esq. Scott S. Barker, Esq. Gregory E. Goldberg, Esq. HOLLAND & HART, LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 303-295-8261 Fax s/ Allison E. Goldstein Allison E. Goldstein

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