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

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

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Filed 01/24/2006

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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.

DEFENDANT'S MOTION FOR ATTORNEYS' AND EXPERT'S FEES ______________________________________________________________________________ Defendant King Soopers, Inc. ("Defendant"), through its attorneys, Sherman & Howard L.L.C., and pursuant to Fed.R.Civ.P. 16(f) and 37, and the Magistrate Judge's Recommendation dated October 13, 2005, hereby requests this Court award to Defendant its reasonable attorneys' fees in the total amount of $33,521.25, and its reasonable expert's fees in the total amount of $4,561.57, against Plaintiff. As grounds for this Motion, Defendant states as follows: INTRODUCTORY STATEMENT Plaintiff commenced this action against Defendant in November, 2000, alleging five claims for relief: 1) hostile work environment in violation of the American With Disabilities Act ("ADA), 42 U.S.C. § 12101, et seq.; 2) disability discrimination violation of the ADA; 3) retaliation in violation of 42 U.S.C. § 2000e-3; 4) retaliatory discharge in violation of public policy; and 5) intentional infliction of emotional distress. See Complaint, ¶¶ 31-65.

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In response to Plaintiff's Complaint, Defendant filed its Rule 12(b)(6) Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, on the basis that at the time of filing her Complaint, Plaintiff had not yet received a notice of right to sue on her discrimination charge from the Equal Employment Opportunity Commission ("EEOC"). Plaintiff responded to Defendant's Motion to Dismiss with an unopposed Motion for Administrative Closure, and this case was administratively closed on March 7, 2001, to be reopened for good cause shown. After the case was dormant for more than three years, Plaintiff filed her Motion to Reopen Administratively Closed Case in March, 2004, on the basis that Plaintiff's notice of right to sue relating to Plaintiff's federal claims had been issued by the EEOC within the last ninety days. On January 31, 2005, the Court issued an Order reopening the case and returning it to the active docket. Even though the case was placed on the active docket, Plaintiff and her counsel did nothing to prosecute this case after it was reopened. Plaintiff's counsel never served any disclosures pursuant to F.R.C.P. 26(a)(1), despite making a representation to the Magistrate Judge at the scheduling conference that she had done so. Plaintiff's counsel never amended the Complaint, even though she represented to the Magistrate Judge at the Scheduling Conference that she would do so. Plaintiff's counsel never propounded any written discovery requests, did not notice any depositions and designated no experts in the case. Despite the fact that Plaintiff's counsel did nothing to prosecute the case, Defendant's counsel was forced to defend the case and attempt to obtain discovery from Plaintiff. Accordingly, in April, 2005, Defendant's counsel served discovery requests on Plaintiff. These discovery requests were not answered until late June, 2005. However, even when Plaintiff's counsel finally answered these 2

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discovery requests, the answers were seriously deficient. Accordingly, the undersigned counsel then sent a letter to Plaintiff's counsel pursuant to F.R.C.P. 37, requesting that Plaintiff supplement to correct the deficiencies. Defendant's counsel also sent three additional letters to Plaintiff's counsel regarding the deficient discovery responses, advising that if no supplemental responses were forthcoming, Defendant would file a motion to compel and seek fees for preparing the motion. Plaintiff never supplemented her discovery responses. Plaintiff's counsel also did not produce with Plaintiff's discovery responses any of the documents identified in those responses. Defendant's counsel repeatedly requested that Plaintiff's counsel produce those documents, but they were never produced to Defendant. Furthermore, Plaintiff's counsel did not produce with Plaintiff's discovery responses signed releases which would allow Defendant to obtain records from Plaintiff's prospective employers and educational institutions. Again, the undersigned counsel made repeated verbal and written requests for the signed releases, and in late July, 2005, Plaintiff's counsel stated that she would be obtaining Plaintiff's signature on the requested releases and would produce them that week. Those releases were never produced by Plaintiff's counsel. Defendant's counsel also repeatedly requested an examination of Plaintiff pursuant to F.R.C.P. 35(a). Plaintiff's counsel never responded to these requests. Accordingly, Defendant's counsel was required to file a motion to compel responses to Defendant's discovery requests and a motion to compel Plaintiff to be examined pursuant to F.R.C.P. 35(a). Both motions were granted on September 30, 2005. Plaintiff and her counsel never complied with either order. 3

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Plaintiff and her counsel also failed to appear at Court-ordered conferences and hearings, including a settlement conference and a show cause hearing. Accordingly, at the show cause hearing, counsel for Defendant requested Defendant's attorney's fees and expert witness fees from the time the case was reopened until its dismissal for Plaintiff's counsel's failure to prosecute this case, failure to comply with the court's orders on the motions to compel and as a sanction for not appearing at the conferences and the show cause hearing. On October 13, 2005, Magistrate Judge Watanabe issued his Recommendation That This Action be Dismissed Based Upon The Plaintiff's Failure to Appear, Failure to Comply with Court Orders, and Failure to Prosecute ("Magistrate's Recommendation"). See Exhibit A attached hereto. Magistrate Watanabe also recommended that Plaintiff and her counsel be directed to pay the reasonable expenses, including attorney's fees, incurred by Defendant's counsel for appearing at hearings held on September 7 and October 13, 2004. Finally, Magistrate Watanabe stated that if the recommendation of dismissal is accepted, he recommended that the plaintiff be ordered to show cause why she should not be directed to pay the reasonable expenses, including attorney's fees and expert fees, incurred by Defendant for defending this action from the time the plaintiff sought to have the case reopened in March, 2004. Exhibit A, p. 7. On January 10, 2006, the Court issued an Order dismissing this case. ARGUMENT Pursuant to F.R.C.P. 16(f) and 37(b), this Court has the authority to award as sanctions Defendant's attorneys' fees and expert witness fees incurred in this case. As set out in detail above, this case lay dormant for an extended period of time. When Plaintiff's counsel moved to reopen the 4

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case, Defendant's counsel objected to that motion due to the passage of time. Then, after the case was reopened, Plaintiff's counsel did nothing to prosecute this case. Indeed, as stated above, she represented at the Scheduling Conference that she had served her initial disclosures and that she would amend the complaint, neither of which was ever accomplished. In any event, Defendant was required to defend itself in the case because it was active and the discovery period was passing. Accordingly, Defendant's counsel took various steps to obtain discovery in the case, but was thwarted at every turn by Plaintiff's counsel's refusal to cooperate in discovery. Moreover, Plaintiff's counsel not only refused to comply with discovery, but also she repeatedly assured Defendant's counsel, both verbally and in writing, that she would provide the information requested and cooperate in discovery. Obviously, those assurances were completely false, but they required Defendant to continue to defend the case and incur costs and fees, and thus Defendant should be entitled to recover those fees. See Lucas v. Aetna Casualty and Surety Co., 552 F. Supp. 824, 826 (D. Colo. 1982) (awarding the defendant its attorneys' fees incurred in defending against an employment discrimination case where the plaintiff and her counsel engaged in a course of conduct that established that they failed to prosecute the case and vexatiously maintained the case). With regard to the expert witness fees, as stated above, Plaintiff brought two claims under the ADA, alleging she was a qualified individual with a disability under that law. In order for Defendant to defend against Plaintiff's ADA claims, it was necessary for Defendant to retain Judy Kaye Lockwood, a vocational rehabilitation expert. Ms. Lockwood performed various functions in her role as a expert witness, including reviewing documents, interviewing witnesses and conducting 5

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an on-site examination of the job in question. At the time of the dismissal of this case, Ms. Lockwood's expert fees totaled $4,561.57. See Exhibit B attached hereto. Finally, Magistrate Judge Watanabe recognized the necessity of awarding Defendant its attorney's fees and expert witness fees in this case by recommending in the October 15 Order that Plaintiff be required to show cause why Defendant should not receive its attorney's fees and expert witness fees from the time this case was reopened. Plaintiff and her counsel have completely failed to respond to Magistrate Judge Watanabe's recommendation and thus Defendant should be awarded its fees. The amount of the attorney's fees incurred from the reopening of this case is $33,521.25. See Exhibit C attached hereto. Pursuant to D.C.COLO.LCivR 7.1A, the undersigned has attempted to confer with Plaintiff's counsel regarding this Motion. However, counsel for Defendant has been unable to contact Plaintiff's counsel because her office address is inactive and her phone number has been disconnected. In the process of attempting to locate Plaintiff's counsel, counsel for Defendant learned that Plaintiff's counsel's license to practice law has been suspended by the Colorado Supreme Court. However, Plaintiff's counsel has not moved to withdraw from this case and she remains counsel of record. Accordingly, Defendant's counsel has served this motion upon Plaintiff's counsel's and Plaintiff's last known addresses. CONCLUSION For all of the foregoing reasons, Defendant requests this Court enter judgment in its favor, and against the Plaintiff, in the amount of $33,521.25 for attorneys' fees and $4,561.57 for expert fees, for a total of $38,082.82. 6

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Respectfully submitted this 24th day of January, 2006. SHERMAN & HOWARD L.L.C.

s/ Edward J. Butler Raymond M. Deeny Edward J. Butler 90 South Cascade Avenue, Suite 1500 Colorado Springs, CO 80903 (719) 475-2440/Telephone (719) 635-4576/Facsimile [email protected]; [email protected] Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on January 24, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of Court using the CM/ECF system, and I hereby certify that on January 24, 2006, I have mailed a true and correct copy of the document to the following non CM/ECF participants by depositing the foregoing in the U.S. Mail, postage prepaid, addressed to the following: Cecilia M. Serna, Esq. Law Offices of Cecilia M. Serna, Esq. 600 17th Street, Suite 2800 South Denver, CO 80202-5428 Ms. Paulette Gomez 11108 Eudora Circle Thornton, CO 80233 s/ Peggy J. Barber, Secretary to Edward J. Butler

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