Free Response to Motion - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-B-1258 (BNB) STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEY 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") Motion for Attorney Fees. I. INTRODUCTION The Court already has determined that SMG is entitled to attorney fees in this matter in its Order granting summary judgment in favor of SMG and against College Partnership. Accordingly, this Response Brief only addresses the amount of attorney fees, without waiving any argument regarding the merits of that award. The Court should deny SMG the attorney fees requested because SMG has failed to meet its burden of proof as to the reasonableness and necessity of those fees. In particular, SMG has failed

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

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to come forward with itemized statements that show the tasks performed and the amount of time spent on each. The Court also should deny or reduce the attorney fees sought because the hourly rates for attorney and paralegal services sought far exceeds the prevailing rates for those services in the Denver, Colorado area. II. ANALYSIS A. Standards for Decision As noted above, this Motion involves only the question of the amount of attorney fees to be awarded, as the Court already has ruled that attorney fees should be awarded. The Court has wide latitude to determine the amount of attorney fees that should be awarded. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986). However, the award of attorney fees must be based on evidence that allows the Court to determine the reasonableness of the request; it is "counsel's burden to prove and establish the reasonableness of each dollar, each hour above zero." Id. B. Plaintiff has Failed to Provide an Itemized Statement to Evaluate the Reasonableness and Necessity of the Attorney Fees. Plaintiff is seeking the so-called "lodestar" amount of attorney fees, without any adjustment upwards or downwards. The lodestar amount is determined by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983). Plaintiff has failed to provide an itemization of the number of hours devoted to any of the tasks indicated. These tasks do not indicate anything more than routine litigation, including only five depositions, one Motion to Dismiss, one set of written discovery for Plaintiff and Defendant, one

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motion for summary judgment, one motion to strike expert witnesses, and a few discovery disputes. Plaintiff did not retain any expert witnesses; accordingly, it had no costs or fees in that regard. Discovery was not particularly extensive - approximately 1,100 pages of discovery (2 large 3-ring binders) produced by each side. Without any itemization of the number of hours devoted to each task, and the staffing of each task, Plaintiff has failed to meet its burden of proving the reasonableness of "each hour, each dollar above zero." Mares, 801 F.2d at 1210. This Court requires for each person for whom fees are claimed, a detailed description of the services rendered, amount of time spent, hourly rate, and the total amount claimed. See

D.C.COLO.LCivR 54.3. Plaintiff's motion fails to identify, for each person, the services rendered by that person, the amount of time spent on each task, and the total amount claimed. Instead, there is a generic list of what was done in the litigation, a total number of hours for each attorney and paralegal, and a total dollar amount. The Tenth Circuit and this Court require that attorneys seeking attorney fees must keep meticulous records that reveal all hours and how those hours were assigned to specific tasks. Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995); Ramos, 713 F.2d at 553. The reason for this itemization is that the Court, in determining what constitutes "reasonable" attorney fees, must determine whether the hours are duplicative, excessive, unnecessary or for tasks that Plaintiff was not entitled to recover. See Case v. United Sch. Dist. No. 233, 157 F.3d 1243, 1253 (10th Cir. 1998). The Court should reduce the attorney fee award for those hours that are not necessary; however, without any itemization of hours for specific tasks, the Court cannot make such a decision and College Partnership has no ability to scrutinize the billing records and request such a reduction. -3-

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Plaintiff's application for attorney fees fails to meet the requirement of providing meticulous records that reveal all hours and how those hours were assigned to specific tasks. There is no indication of how hours were assigned to any specific task. Therefore, the Motion for Attorney Fees must be denied for Plaintiff's failure to meet its required burden of proof. C. Plaintiff has Failed to Provide Sufficient Evidence of the Reasonableness of the Hourly Rates Charged. Plaintiff must provide evidence of the prevailing rate for similar services in the Denver, Colorado area in order to establish the reasonableness of the hourly rates charged. Ramos, 713 F.2d at 555. This Court in the past has required that a Third Party Affidavit must be provided that the rates sought are reasonable. See, e.g., Rotating Prods. Sys., Inc. v. Land, D.Colo. No. CIV 95-WM-1707, 2001 U.S.Dist. LEXIS 25148 (D. Colo. March 19, 2001) (attached as Exhibit A). Neither the Affidavits attached to the Motion for Attorney Fees provides any indication of what were the reasonable hourly rates for attorney services and paralegal services in commercial account collection work in the Denver, Colorado area in 2004 and 2005. Without this information, the motion must be denied. College Partnership has obtained an attorney in the Denver, Colorado area, Bennett S. Aisenberg, who has reviewed the hourly rates charged by counsel for SMG. In his opinion, these rates of $405 and $440 per hour for Mr. McElhinny and $185 per hour for a paralegal are in excess of the prevailing rates. Exhibit B, attached. Plaintiff has provided the Court with no information to evaluate the reasonable hourly rate in the Denver, Colorado area for this type of work. Without such information, the Motion for -4-

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Attorney Fees does not meet the requirements of Ramos and other cases from this Circuit. Therefore, the motion should be denied. D. Plaintiff has failed to itemize the costs that it seeks

Plaintiff seeks to collect the total of its "disbursements" without any itemization whatsoever of those disbursements. Itemization of costs is required for the Court to evaluate the reasonableness of these expenses, and to enable College Partnership to scrutinize these costs to determine whether or not they should be properly included in the attorney fees as overhead, see Dewey v. Allstate Ins. Co., 739 F.2d 1494, 1496 (10th Cir. 1984), or excluded altogether as unnecessary. E. Plaintiff's Disbursements Include Items Already Taxed as Costs.

Plaintiff's Motion for Attorney Fees is supported by a record of "disbursements" without any indication that amounts already taxed by the Clerk as costs have been properly subtracted. If Plaintiff is allowed to recover for all disbursements, including those already taxed by the Clerk as costs, Plaintiff will obtain a double recovery for those. Once again, the Court has no way to determine whether or not the previously taxed costs have been subtracted. F. The Court Cannot Issue an Order Impairing Mr. Hiller' Ability to Collect his Fees from SMG. Plaintiff seeks an order of the Court that College Partnership, and not SMG, is responsible for paying Mr. Hiller's fees associated with his deposition. Mr. Hiller appeared for his deposition at the request of SMG, which has not yet paid his fees. To the extent that Mr. Hiller may have a claim in quantum meruit or breach of contract, or otherwise, against SMG for its failure to pay, this Court cannot affect his rights against SMG because he is not properly before this Court as a party.

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Similarly, the Court does not have sufficient evidence before it to determine the reasonableness of Mr. Hiller's fees. Therefore, it would be inappropriate to order College Partnership to pay these expenses to a non-party. G. College Partnership Should Be Entitled to File a Sur-reply if SMG Submits Additional Evidence and the Court Accepts the Evidence. As noted above, SMG's motion for award of attorney fees falls far short of the requirements of this Court and the Tenth Circuit for a prima facie submission for award of attorney fees. If SMG submits additional evidence in its Reply Brief, the Court either should exclude the evidence submitted with the Reply Brief as untimely and improper "sandbagging," or the Court should grant College Partnership leave to file a sur-reply to address the new evidence. Any new evidence in support of the Motion submitted with the reply brief should have been submitted with the initial Motion. College Partnership has not had the opportunity to dispute any of the evidence that would be included in such a reply; accordingly, if the Court does not exclude the evidence as untimely, College Partnership should be afforded leave to file a sur-reply. IV. CONCLUSION The Court should deny SMG's Motion for Approval and Award of Fees. SMG has failed to provide the Court with an itemized list of tasks and hours spent on each task so that the Court can determine the reasonableness and necessity of the fees requested. SMG has failed to provide any evidence of the prevailing attorney fees in the Denver, Colorado area for commercial collection/contract litigation. SMG also has failed to provide any itemization of the costs that it seeks. Based on SMG's failure to present a prima facie basis for the Court to determine attorney

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fees, the Court should deny the motion. Alternatively, if the Court allows SMG to present any itemization in its Reply Brief, College Partnership should be allowed the opportunity to file a surreply challenging the reasonableness and necessity of those fees because College Partnership had no opportunity to do so. If the Court determines that SMG has met its burden to show reasonableness and necessity of the number of hours of services, the Court should reduce the requested amount of fees because the prevailing rates for attorney services in the Denver, Colorado area is substantially less than the $405/$440 an hour for a partner, $210/$235 an hour for a 5th year associate, $175 an hour for a 1st year associate, and $185 and hour for a paralegal. WHEREFORE, College Partnership respectfully requests that the Court deny the Motion for Attorney Fees. 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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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 11th day of October, 2005, I electronically filed the foregoing DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEY 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. Sander, Scheid, Ingebretsen, Miller & Parish P.C. 700 17th St., Suite 2200 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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