Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-02350-LTB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-CV-02350-LTB-MJW PAULETTE GOMEZ, Plaintiff, v. KING SOOPERS, INC., Defendant.

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR ATTORNEYS' AND EXPERT'S FEES AND REQUEST FOR ORAL ARGUMENT

Plaintiff Paulette Gomez ("Plaintiff"), through her attorneys Smith & West, LLC, hereby submits the following Response to Defendant's Motion for Attorneys' and Expert's Fees. INTRODUCTORY STATEMENT Paulette Gomez finds herself before this Court after having had her case dismissed for failure to prosecute (Docket No. 46). As the Court well knows, Plaintiff's former attorneys1 failed to advance this matter at virtually every stage of its existence. As a result of her former attorneys' inaction, Ms. Gomez now faces a potential liability in excess of $38,000 should this Court grant Defendant's Motion. To do so would work a terrible injustice on Plaintiff.

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Plaintiff originally retained The Frickey Law Firm to represent her in this matter. The Frickey Law Firm first assigned Mark E. Rau to represent Plaintiff and then reassigned the matter to Cecilia Serna in February, 2003. Ms. Serna later left The Frickey Law Firm to establish her own practice where she continued her "representation" of Plaintiff (Pltf's Dec. at ¶¶ 4, 5, 7 and 10, attached hereto as Exh. A).

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To her credit, Plaintiff cannot in any way be described as an experienced litigant. Prior to instituting this action, Plaintiff had never been a party to, or participated in, a lawsuit of any kind, nor had she ever had cause to retain an attorney for any reason (Pltf's Dec. at ¶ 3, attached hereto as Exh. A). Accordingly, Plaintiff not unreasonably placed her trust in her attorneys to handle her case diligently and professionally. Plaintiff's trust was rewarded with the same lack of unresponsiveness that Defendant and this Court experienced at the hands of Mr. Rau and Ms. Serna. Plaintiff rarely received updates as to the status of her case and then usually only after repeated requests (Pltf's Dec. at ¶¶ 5-6). Plaintiff was never provided with documents to review with the single exception of discovery responses reviewed with Ms. Serna (Pltf's Dec. at ¶¶ 5 and 11). Indeed, Plaintiff was never advised of even the most rudimentary duties and obligations that she bore as a litigant (Pltf's Dec. at ¶ 5). Even at one of the most critical junctures in this matter, settlement discussions, Plaintiff was left to fend for herself (Pltf's Dec. at ¶ 9). The degree to which Plaintiff's counsel abandoned her is perhaps most evident in the details surrounding the dismissal of Plaintiff's claims and the filing of this motion.2 Plaintiff did not learn of the dismissal from Ms. Serna, but rather from The Frickey Law Firm, Ms. Serna's former employer (Pltf's Dec. at ¶ 17). After learning of the dismissal, Plaintiff was unable to
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When Ms. Serna left The Frickey Law Firm, Ms. Gomez received a letter from Janet Frickey informing her that The Frickey Law Firm no longer would represent her and suggesting, although stopping short of stating expressly, that Ms. Serna was taking this matter with her (Pltf's Dec. at ¶ 10). The Frickey Law Firm further attempted to distance itself from this case and its client by filing a Notice of Non-Representation with the Court on April 26, 2005 (Docket No. 21). Mr. Rau recently has "amended" this notice in an attempt also to further distance himself from his representation of Ms. Gomez (Docket No. 61). Although falling far short of the requirements to withdraw as Ms. Gomez' counsel in this matter, this "Notice" and Mr. Rau's amendment to it do serve to highlight the degree to which The Frickey Law Firm and Mr. Rau abandoned Ms. Gomez. 2

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contact Ms. Serna at any of the numbers she had been provided with, all of which had been disconnected (Pltf's Dec. at ¶ 13). Plaintiff had to track Ms. Serna down at her home where she learned not only the degree to which Ms. Serna had mishandled her case, but also that Ms. Serna was no longer engaged in the practice of law (Pltf's Dec. at ¶ 13). Adding insult to injury, neither Ms. Serna nor The Frickey Law Firm would provide Plaintiff with a copy of her case file (Pltf's Dec. at ¶¶ 14 and 15). The delays and lack of responsiveness experienced by the Court and Defendant were not by design of Plaintiff nor did they take place with her knowledge (Pltf's Dec. at ¶ 20). As undeniably shabby as former counsel's conduct has been, requiring Ms. Gomez to pay Defendant's attorneys' and expert witness fees would serve no purpose. Rather, it would signal to members of the bar that the repercussions for reprehensible conduct such as the Court has witnessed in this case will only rebound upon their clients. The first line of the Court's inquiry in ruling on Defendant's Motion should be whether or not imposing Defendant's fees on Ms. Gomez would be unjust. Beyond that threshold determination, the legal analysis is significantly more complex than Defendant's Motion suggests. Whether or not the Court relied upon Fed.R.Civ.P. 41(b), 16(f), the Court's inherent powers or some combination of any or all of these authorities in dismissing Plaintiff's action bears significantly upon whether fees may be awarded, the amount of fees that may be awarded as well as on who, Ms. Gomez or her former attorneys, should bear the weight of any sanction the Court decides to impose.

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ARGUMENT I. Fees may not be awarded pursuant to a dismissal made in exclusive reliance on Rule 41(b). Magistrate Judge Watanabe's recommendation that Plaintiff's case be dismissed was made in reliance upon "Fed.R.Civ.P. 16(f) and/or 41(b)" (Recommendation That This Action be Dismissed Upon the Plaintiff's Failure to Appear, Failure to Comply with Court Orders, and Failure to Prosecute at p. 7, Docket No. 44) (emphasis added). The Order issued by Chief Judge Babcock in light of the Recommendation does not specify if the dismissal is made exclusively pursuant to Rule 41(b) or 16(f) or both (Docket No. 46). The underlying rationale for the dismissal is important. Unlike a dismissal under Rule 16(f), Rule 41(b) provides no mechanism for the imposition of fees on Plaintiff. In Turnbull v. Wilcken, the 10th Circuit observed: We note that Rule 41(b), in relevant part, authorizes dismissal of an action for failure to prosecute upon the motion of a defendant. The rule provides no authority for the award of fees under the circumstances of this case. Turnbull v. Wilcken, 893 F.2d 256, 258-259 (10th Cir. 1990) (citations omitted). Although the record in this matter is rife with apparent misconduct on the part of Plaintiff's former attorneys, nothing in the record suggests bad faith on the part of Ms. Gomez herself. Absent a finding of bad faith by Ms. Gomez, no basis for an award of fees exists if the Court's dismissal rests exclusively upon Rule 41(b). The authority cited by Defendant in its Motion to support an award of fees is instructive. In Lucas v. Aetna Casualty and Surety Co., the Court awarded fees in reliance upon the specific authority under 42 U.S.C. 2000e-5(k), 47 U.S.C. 1988 to award fees to the prevailing party of a civil rights action, Fed.R.Civ.P. 41(a)(2) and 54(d) and upon the Court's "inherent equitable 4

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power." Lucas v. Aetna Casualty and Surety Co., 552 F. Supp. 824, 826 (D. Colo. 1982). Nowhere does the Lucas Court rely upon either Fed.R.Civ.P. 41(b) or 16(f). Moreover, the situation in Lucas was the very opposite of that found in this case. In Lucas, plaintiff's counsel was granted permission to withdraw based on plaintiff's refusal to cooperate with her attorney's efforts to prosecute the case. Lucas, 552 F. Supp. at 825. In taking the extraordinary step to award fees, the Lucas court first found that: This plaintiff repeatedly assured the Court and the defendant that she would diligently prosecute her action. Her assurances proved worthless. Her actions and omissions have repeatedly and vexatiously harassed and imposed expenses on her former employer, the defendant. I conclude that this was her purpose and that she has sought to use this Court to get even for some private grievance against her former employer. Lucas, 552 F. Supp. at 826. The record before this Court clearly illustrates that the blame for the failure to prosecute this case lies squarely with Plaintiff's former attorneys. Nothing in the record suggests that Ms. Gomez initiated or maintained this action for an improper purpose. II. Plaintiff's conduct does not warrant an award of fees pursuant to Rule 16(f). Even where a case is dismissed pursuant to Section 16(f), the imposition of fees upon a plaintiff under circumstances such as those before this Court would be unjust. A dismissal made pursuant to Rule 16(f) permits an award of fees "unless the judge finds . . . that other circumstances make an award of expenses unjust" (emphasis added). There can be no question that an award of fees against Ms. Gomez for the inaction of her counsel would be unjust. As set forth above and in Plaintiff's declaration attached hereto, Plaintiff was, for all practical purposes, abandoned by her attorneys. Ms. Gomez was operating in a void of information, provided with not even the most rudimentary status reports and afforded no 5

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meaningful opportunity to participate in the action let alone direct it. Indeed, so remiss was Ms. Serna that Plaintiff never received notice of Chief Judge Babcock' Order dismissing the case or Magistrate Judge Watanabe's recommendations until Ms. Serna's former employer forwarded, copies to herby regular mail, a copies of Chief Judge Babcock's Order and Defendant's Motion (Pltf's Dec. at ¶¶ 12, 17 and 18). Because the primary purpose of sanctions and compensating fee awards under Rule 16 is to provide the Court with a tool to solve its docket management problems, it is fundamental that the sanction be aimed at the appropriate party. As the 10th Circuit has succinctly observed: If the fault lies with the attorneys, that is where the impact of sanction should be lodged. If the fault lies with the clients, that is where the impact of the sanction should be lodged. In re Baker, 744 F.2d 1438, 1442 (10th Cir. 1984). Under the circumstances of this case, imposing sanctions on Plaintiff rather than her attorney would run directly counter to the reasoning set forth in Baker. Indeed, it would serve to send exactly the wrong message; that attorneys can effectively abandon their clients and the consequences emanating from that abandonment will fall squarely upon the hapless client. Such an outcome would be the very essence of the injustice contemplated by Rule 16(f). Moreover, the hardship already worked on Plaintiff by having her claims dismissed cannot be overlooked. III. Rule 16(f) does not support an award of all of Defendant's fees incurred since the reopening of the case in March, 2004. To the extent the Court relies upon Rule 16(f) in to support an award of fees, the fees must have been incurred for work closely related to a party's (or that party's attorney) failure to obey a scheduling order or failure to appear at a scheduling conference. While mathematical exactitude is not required when making this determination, the moving party must demonstrate a 6

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nexus between the fees incurred and the specific Rule 16(f) violation in question. Turnbull, 893 F.2d at 259. See also, Comcoa, Inc. v. NEC Telephones, Inc., 931 F.2d 655, 667 (10th Cir. 1991) (amount of sanctions was reasonable because district court created sufficient nexus between noncompliance with the rules and amount of fees and expenses awarded as sanction). The fees requested by Defendant do not, in their entirety, have a sufficient nexus to the Rule 16(f) violations at issue to support an award by this Court on the basis of Rule 16(f) alone. As detailed in Defendant's Motion, Defendant seeks reimbursement for fees incurred in preparing and serving discovery requests, obtaining releases and compelling discovery (Defendant's Motion at 2-3). Fees for failure to participate in the discovery process are, if assessed pursuant to the Federal Rules of Civil Procedure, properly assessed pursuant to the concluding paragraph of Rule 37(b)(2), a portion of Rule 37, to which no reference is made in Magistrate Judge Watanabe's recommendations (Docket No. 44). Finally, it is worth noting the 10th Circuit's observation that "violations of Rules 16(f) and 37(b)(2), even if repeated, will not necessarily support the award of the entire litigation costs of the adverse party." Turnbull, 893 F.2d at 259. IV. The award of all reasonable fees incurred since this matter was reopened in March 2004 may only be premised upon the Court's inherent powers and only where an explicit finding of bad faith is made. As discussed above, Magistrate Judge Watanabe's recommendation that Plaintiff be ordered to show cause why she should not be required to pay the reasonable fees incurred by Defendant since the case was reopened in March, 2004 contemplates relief broader than that which may be provided pursuant to the Rules (Fed.R.Civ.P. 16(f) and/or 41(b)) explicitly referenced therein (Docket No. 44). Accordingly, Plaintiff presumes this broad recommendation

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to be based on "the inherent power of the courts to manage their affairs as an independent constitutional branch of government." In re Baker, 744 F.2d at 1441. See also Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67 (1980). Although the inherent power of the Court to assess fees as a penalty is unquestioned, a specific finding of bad faith on the part of the party to be assessed is a prerequisite to such an award. Roadway Express, 447 U.S. at 767 (trial court did not make specific finding as to whether counsel's conduct constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court's inherent powers). See also, Autorama Corporation v. Stewart, 802 F.2d 1284, 1287 (10th Cir. 1986) (Tenth Circuit insists that trial judge make a specific finding of bad intent or improper motive before there can be an award of attorneys' fees). In elaborating upon what bad faith would constitute in circumstances such as these, the Tenth Circuit stated: [B]ad faith requires more than a mere showing of a weak or legally inadequate case, and the exception [to the `American Rule'] is not invoked by findings of negligence, frivolity, or improvidence. Hence, it is not surprising that attorneys' fees are awarded only when there is "clear evidence" that challenged actions are taken entirely without color and are pursued for reasons of harassment or delay. Autorama, 802 F.2d at 1288 (citations omitted). Of equal significance, the Supreme Court in Roadway Express takes pains to highlight the importance that an award of fees assessed as a sanction be directed at the culpable party. Roadway Express, 447 U.S. at 766. Specifically, the Supreme Court stated: The power of a court over members of its bar is at least as great as its authority over litigants. If a court may tax counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial processes.

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Roadway Express, 447 U.S. at 766 (emphasis added). As the record in this case amply demonstrates, the fault for the failure to prosecute this action rests squarely with Plaintiff's former counsel and not with Ms. Gomez herself. REQUEST FOR ORAL ARGUMENT Plaintiff hereby requests oral argument on Defendant's Motion. CONCLUSION For all of the foregoing reasons, Plaintiff requests this Court deny Defendant's Motion in its entirety. In the event the Court concludes that an award of fees is appropriate, Plaintiff requests this Court consider levying such fines against her former counsel. Dated: February 20, 2006 Respectfully submitted, SMITH & WEST, LLC ______s/Jessica L. West___________ Jessica L. West, Esq. Blake Street Terrace 1860 Blake Street, Suite 420 Denver, Colorado 80202 (303) 391-0100/Telephone (303) 391-0102/Facsimile [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of February, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected]

______s/Jessica L. West___________ Jessica L. West, Esq. Smith & West LLC Blake Street Terrace 1860 Blake Street, Suite 420 Denver, Colorado 80202 (303) 391-0100/Telephone (303) 391-0102/Facsimile [email protected]

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