Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01258-LTB-BNB

Document 153

Filed 10/24/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01258-LTB-BNB STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE TO PLAINTIFF'S SUPPLEMENT TO MOTION FOR APPROVAL AND AWARD OF FEES ______________________________________________________________________________ Defendant College Partnership, Inc. ("College Partnership"), by and through its counsel, Rosemary Orsini and Brian K. Matise of Burg Simpson Eldredge Hersh & Jardine, P.C., hereby submits its response to Plaintiff Student Marketing Group, Inc.'s ("SMG") Supplement to Motion for Approval and Award of Fees.

I.

College Partnership Agrees that the Requested Fees Must be Reduced by $5,169.32 Taxed as Costs by the Clerk. Plaintiff's original motion for attorney fees included costs that Plaintiff had submitted to the

Clerk in its Bill of Costs. As Plaintiff admitted, these costs taxed by the Clerk must be subtracted from the fee request; otherwise, Plaintiff will have a double recovery both for the same costs. Accordingly, College Partnership agrees that the fees sought by Plaintiff should be reduced by

Case 1:04-cv-01258-LTB-BNB

Document 153

Filed 10/24/2005

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$5,169.32. II. College Partnership Objects to the Remaining Amounts as Excessive for the Same Reasons as Set Forth in its Response Brief. As College Partnership noted in its Response Brief, the original Motion for Attorney Fees failed to set forth with any reasonable specificity the work performed for the attorney fees sought, and the number of hours devoted to each task. The Supplemental Motion suffers from the same lack of information. Without a reasonably specific itemization, neither College Partnership nor the Court can compute the "Lodestar" amount of a reasonable fee. On October 19, 2005, Plaintiff submitted an itemization in its Reply Brief. College Partnership has been granted leave to file a surreply addressing this itemization on or before October 26, 2005. College Partnership is in the process of reviewing this itemization, and will address the supplemental request for additional fees and costs in its surreply. College Partnership also objects to the rates for attorney services, particularly the hourly rates of Mr. McElhinny exceeding $400 per hour and Plaintiff's paralegal of $180 per hour, as being far in excess of the reasonable rates in the Denver, Colorado area. By comparison to Mr. McElhinny, Mr. Scheid (an experienced local counsel in the same area of law) is seeking only $250 per hour for his services, $185 per hour for the services of another partner, and $125 an hour for the services of an associate. As noted above, College Partnership will address the supplemental to the Motion for Approval and Award of Fees in more detail when it files its surreply.

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WHEREFORE, College Partnership respectfully requests that the Court reduce the fee award sought by Plaintiff by the $5,169.32 taxed as costs by the Clerk, and further reduce the fee award to a reasonable amount to be determined by multiplying a reasonable rate for attorney services for the Denver, Colorado area to a reasonable number of hours for the services claimed.

Respectfully submitted, BURG SIMPSON ELDREDGE HERSH & JARDINE, P.C.

s/ Rosemary Orsini Rosemary Orsini 40 Inverness Drive East Englewood, Colorado 80112 Telephone: (303) 792-5595 Facsimile: (303) 708-0527 ATTORNEYS FOR DEFENDANT COLLEGE PARTNERSHIP, INC.

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Case 1:04-cv-01258-LTB-BNB

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Filed 10/24/2005

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 24th day of October, 2005, I electronically filed the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S SUPPLEMENT TO MOTION FOR APPROVAL AND AWARD OF FEES with the Clerk of Court using the CM/ECF System which will send notification of such filing to the following at their email address on file with the Court:

Gary Parish, Esq. R. Daniel Scheid, Esq. Lewis Scheid LLC 2300 15th Street, #320 Denver, CO 80202 Patrick J. McElhinny, Esq. Dianna S. Karg, Esq. Kirkpatrick & Lockhart LLP 535 Smithfield St. Henry W. Oliver Building Pittsburgh, PA 15222

s/ Sharla Sheeks Sharla Sheeks

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