Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1067-REB-CBS WILLIAM R CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant. DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS Defendant, City and County of Denver ("Denver"), submits this Response in Opposition to "Plaintiff's Motion for Award of Attorney's Fees and Costs" (hereafter "Motion") (ECF Doc. 232) filed on 09 March 2007. INTRODUCTION Plaintiff requests an award for attorney's fees and costs totaling $314,502.56. (Pl. Mot., p.2). This figure is comprised of four separate amounts: 1) $277,440.00 for attorney's fees at $300.00 per hour for 924.80 hours of work performed by Mr. Brennan; 2) $20,845.00 for the services of Gill, Lindquist & Assoc., LLC; 3) $14,030.63 in litigation expenses and costs; and 4) $2,186.93 for the services of attorney John Culver who Plaintiff retained as an expert witness to testify in support of the Motion for attorney's fees and costs. Id.

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Denver recognizes that Plaintiff, as the prevailing party in his ADEA claim, is entitled to an award of reasonable attorney's fees and costs under the statute1 and that the amount requested for the services of Mr. Culver are both recoverable and reasonable. However, many of the remaining fees and costs sought by Plaintiff are unreasonable and should not be awarded. First, Mr. Brennan's experience, performance, and the prevailing rate for plaintiff employment attorneys in the Denver area prove that Plaintiff's appropriate fee rate is $275 per hour. Second, Plaintiff's billing records include legal fees for work performed outside of this lawsuit. Plaintiff attempts to recover 221.7 hours of attorney's fees for work

performed in his Civil Service Commission ("CSC") administrative proceedings, subsequent appeal to the Denver District Court (hereafter "appeal"), and for his separate lawsuit against Safeway, Cadornas v. Safeway 04-RB-1434 (CBS). The fees associated with these separate legal matters were not reasonably expended on this litigation as well as excessive and therefore should not be allowed. Third, Plaintiff has failed to meet his burden of showing that all of his requested costs totaling $14,030.63 were necessary or taxable under 28 U.S.C. §1920, which ultimately should be reduced to the sum of $8,774.02.

Denver's recognition of Plaintiff's right to attorney's fees and costs under ADEA is not a waiver of the arguments made in its post-judgment motions still pending before the Court. (ECF Docs. 209, 210 and 211).

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In support of this response, Denver submits (among other things) the Affidavit of Thomas P. McMahon, a plaintiff's attorney, which affidavit expands on the arguments submitted herein and which Denver incorporates herein by reference. ARGUMENT I. Plaintiff's Inexperience, Performance, and the Prevailing Market Rate do not Support a Fee of $300.00 per hour.

The initial starting point for determining attorney's fees begins with using the "lodestar" method which requires a determination of the "number of hours reasonably expended on the litigation multiplied 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). A reasonable hourly rate is determined "according to the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984); Case v. Unified Sch. Dist., 157 F.3d 1243, 1250 (10th Cir. 1998). An attorney seeking his fees "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir. 1986) citing Hensley, 461 U.S. at 437. (emphasis added). Plaintiff asserts that the prevailing rate for "highly experienced employment attorneys at many firms in Denver," is anywhere from $350-$400 per hour and that his rate should be "at minimum, $300 per hour." (Pl. Mot., p.3). In advocating for this rate, Plaintiff relies on his number of years as an attorney (22.5), a 2000 survey from the

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Colorado Bar Association on law firm billing rates and practices, and several easily distinguishable cases from this district.2 In support of Plaintiff's proposed rate of $300 per hour, Mr. Culver states that "a survey conducted by the Colorado Bar Association in 2000 reflected that the top five percent of plaintiff employment lawyers charged $325 per hour seven years ago, in 2000." (Pl. Ex. 1, Aff. of John Culver, Esq., ¶18). This statistic is of little relevance as Mr. Brennan does not belong in this cited category of lawyers. In assessing Mr. Brennan's claim that he belongs in the "top five percent of plaintiff's employment attorneys" in the Denver area, it is necessary to look at his experience and his performance in prosecuting this lawsuit. Case v. Unified Sch. Dist., 157 F.3d at 1257. In his affidavit, Mr. Brennan admitted that "prior to filing this case, I had no significant experience in litigating §1983 claims." (Pl. Ex. 2, Aff. of Mark E. Brennan, ¶96). Mr. Brennan's attempt to minimize his inexperience in this area of law by claiming that he became an expert on this issue "through extensive study and research," is disingenuous and lacking in both evidentiary and legal support. Case v. Unified Sch. Dist., 157 F.3d at 1257. ("Lawyers working outside of their fields of

expertise may deserve an hourly fee lower than their normal billing rate because of their
The Kmart, Hull, and Bat decisions relied on by Plaintiff are easily distinguishable. The Kmart decision involved a nationwide class action lawsuit lasting seven years, requiring significant document review, and significant skill involving novel legal issues. The Hull decision relied upon by Plaintiff is of little utility because the government, unlike Denver, did not present any evidence to the Court on what the prevailing market rate is. The Bat decision is inapplicable because Mr. Brennan is not similarly situated in terms of experience to the attorney referred to in that decision. Lucas, et. al., v. Kmart Corp., No. 99-cv-01923-JLK-CBS (D.Colo. 27 July 2006) (Kane. J.); Hull v. U.S. Dept. of Labor, No. 04-cv-01264-LTB-PAC (D.Colo. 30 May 2006) (Babcock, J); and Bat v. A.G. Edwards & Sons, Inc., No. 04-cv-02225-REB-BNB (21 February 2006) (Boland, MJ).
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lack of expertise in the civil rights field.") The very notion that any attorney with no practical experience in a particular field could legitimately claim to be among the top five percent of attorneys in that field through study and research is absurd. Another indicia of an attorney's reasonable hourly rate lies in assessing "the quality of the lawyer's performance in the case." Ramos v. Lamm, 713 F.2d at 555. The record in this case contains numerous instances where Mr. Brennan's performance and behavior (which included numerous admonishments, bench conferences, arguments with the Court, and a contempt citation during trial) fell well below what is expected of attorneys in general and particularly those in the top-five percent echelon.3 The quality of Mr. Brennan's performance throughout this case, and particularly during the trial, falls well short of those attorneys who merit a rate of $325 an hour. The statistics for the hourly rate of solo practitioners in 2000 (of which Mr. Brennan is one) was $220 per hour. (See Def. Ex. A,). Also relevant is the fact that the hourly rate for plaintiff's employment attorneys drops appreciably to $175 per hour for those in the 75th percentile and $150 per hour for those in the 50th percentile. Id., p.4. In light of Mr. Brennan's experience, performance, and prevailing market rate, Mr. Brennan's rate should be $275 per hour. (McMahon Aff. p. 4, ¶11). II. Plaintiff's Claimed 221.70 Hours for Work Performed in Unrelated Legal Matters Should be Denied or Significantly Reduced.

Of the 924.80 hours of legal work that Plaintiff seeks to recover in attorney's fees, 221.70 of these hours are associated with legal work performed in the CSC

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proceedings, the subsequent district court appeal, and the litigation against Safeway. (Pl. Mot., Exs. 2A-2E). Because Plaintiff has not met his burden in showing that any of his legal work performed in these matters was necessary to the successful litigation of this case, his claim of 924.80 for hours worked should be greatly reduced. In assessing compensable hours for attorney's fees, "unnecessary" hours should not be compensated. See Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990) citing Hensley, 461 U.S. at 434. It is well established that hours spent in optional, non-mandatory administrative proceedings, such as Plaintiff's Civil Service appeal, are not necessarily compensable in a federal lawsuit. Webb v. Bd. of Educ., 471 U.S. 234, 241 (1985). In order to make a claim for such work, the time must have been spent for "work that was both useful and of a type ordinarily necessary to advance the ... litigation." Webb, 471 U.S. at 243 (emphasis added). The burden of substantiating such an award lies with the party seeking the award. Hensley, 461 U.S. at 433. A. Civil Service Commission Billing Records

Although there are parallel facts that run through the Civil Service Commission CSC appeal and this case, the CSC matter is a completely different legal proceeding. First, a CSC hearing officer only has jurisdiction to hear "all disciplinary actions initiated by the Chief of the Department and Manager of Safety." (Def. Ex. B, p. 1, §1). The hearing officer has authority only to "issue a written decision...affirming, reversing, or

A complete listing of Mr. Brennan's misbehavior and performance-related issues is documented with full citations to the record in Denver's Motion for a New Trial Based on Attorney Misconduct. (ECF Docs. 209).

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modifying the disciplinary action in whole or in part." Id. at §5 (E) (5). Neither the CSC hearing officer nor the Commission on appeal have the jurisdiction to rule on federal claims; they may only rule on the propriety of discipline imposed for violation of a departmental rule and not on violations of federal discrimination laws. Thus, Plaintiff was not required to prove a violation of the ADEA, ADA, or due process violations to be successful in his CSC appeal. Despite the vast differences in the CSC and federal matters, Plaintiff argues that all of his work in the CSC administrative hearing and subsequent appeal were necessary to his federal claim because the work done in the administrative context "supplanted, on an hour-for-hour basis, time Plaintiff's counsel would otherwise have had to devote to discovery, depositions, research and briefing in this litigation." (Pl. Mot., p.7). In separating Mr. Brennan's hours out among the various legal matters, his records claim that he worked 198.20 hours on the CSC matter as follows: 1) hours devoted to research (20.5); 2) hours devoted to discovery (16.8); 3) hours devoted to drafting pleadings (99.7); 4) hours spent at hearing and during oral argument to the CSC (48.0); and 5) hours spent performing miscellaneous tasks, such as talking to the client, other attorneys and preparing for depositions (13.2). (Def. Ex. C). The 16.8 hours that Plaintiff's counsel spent conducting discovery in the CSC proceeding consisted of reviewing documents, preparing written discovery requests, and reviewing Denver's discovery responses. Id. Plaintiff's counsel spent another

52.20 hours conducting discovery in the federal case against Denver. (Def. Ex. D). Although Plaintiff claims that the time spent conducting discovery in the CSC appeal

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"supplanted" the time he would have spent doing discovery in the federal claim on an "hour-for-hour" basis, this assertion is dubious given that Plaintiff's counsel still spent three times as many hours conducting discovery in the federal case than he did in his administrative appeal. If the CSC matter was necessary because it provided the

discovery required to prosecute his federal ADEA claim against Denver, then the time spent in discovery in the federal case should have been nearly commensurate to the amount of discovery claimed in federal court. Plaintiff offers no evidence to support how his work conducting discovery in the CSC matter was necessary to the prosecution of his ADEA claim here and these hours should be excluded as redundant and unnecessary. Malloy, 73 F.3d at 1018, citing Hensley, 461 U.S. at 434. The time that Plaintiff's counsel spent conducting research as part of the CSC proceeding is likewise "excessive, redundant, or otherwise unnecessary." (Def. Ex. C). Plaintiff spent 20.5 hours conducting research in his CSC proceeding regarding CSC procedures, affirmative defenses in criminal law, state retirement statutes and laws on involuntary retirement, very little of which has application in this matter. Id. Plaintiff's counsel then spent another 208.20 hours conducting research in his federal case against Denver ­ nearly ten times more hours. (Def. Ex. D). Plaintiff has presented no evidence to prove how the research conducted in the CSC matter reduced the need to conduct further research in his federal case. Denver submits that Plaintiff should be denied recovery for any attorney's fees in connection with the research conducted in the CSC appeal, which was clearly redundant and unnecessary.

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Plaintiff's counsel's 99.70 hours of work drafting CSC pleadings did little to further the prosecution of his ADEA claim. (Def. Ex. C). Plaintiff's counsel asserts that he spent approximately 6.7 hours drafting a pre-hearing statement, 23.50 hours drafting a post-hearing brief, 21.0 hours drafting a post-hearing reply brief and 49.50 hours working on an appeal brief and edits to his reply brief. Id. This work did nothing to reduce the 122 hours he later spent drafting his federal complaint (32.45), scheduling order, final pretrial order, and motion for summary judgment (total 86.5) (Def. Ex. D). Because Plaintiff provides no evidence to this Court to prove how spending 98.90 hours in briefing his administrative appeal lessened ­ or supplanted ­ the need to spend time on drafting briefs in his federal court matter, or were otherwise necessary to the federal litigation. Denver respectfully requests that 99.70 hours be deemed noncompensable. (McMahon Aff., ¶19 a). Plaintiff also seeks to recover attorney's fees for 48 hours of time spent by counsel litigating his CSC proceedings, including participation in the oral argument before the Commission. (Def. Ex. C). Again, however, he has produced no evidence to show how his attorney's work during those hearings and in oral argument was necessary to the successful prosecution of his ADEA claim. Although Plaintiff will undoubtedly argue that his counsel's examinations of witnesses during the five days of hearing eliminated the need to conduct some depositions in the federal matter, such speculation cannot be substituted for proof of necessity. For instance, there were at least eight (8) witnesses who testified in the CSC

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hearing but not the federal trial, and another witness who testified in the CSC hearing but was nevertheless deposed by Plaintiff in this matter. [McMahon Aff. ¶ 15] Moreover, the standards for eliciting testimonial evidence at an administrative hearing (non-hearsay, relevance, non-prejudicial) are quite different than the standards applicable in discovery depositions (reasonably calculated to lead to the discovery of admissible evidence) so one is hardly the substitute for another. The absence of any evidence from Plaintiff showing how the testimony in the CSC hearing negated the need for depositions in the federal matter or was otherwise necessary to prosecuting his federal claim (McMahon Aff. ¶¶ 14-15), requires that Plaintiff be denied recovery for the 48 hours his counsel spent in hearings and arguments in the CSC matter as unnecessary and/or redundant. B. Billing Records for Denver District Court Appeal, Safeway Litigation, and Fees for Attorney Anne Gill's Firm

Plaintiff submitted billing records for 6.7 hours worth of work performed in the state appeal and 16.8 hours of work performed in a separate lawsuit he filed against Safeway. (Def. Exs. E & F). Plaintiff also seeks $20,845 for 101 hours of legal services performed by the Law Offices of Gill, Lindquist & Assoc., LLC (Pl. Mot., p.2). Denver submits that these amounts should be reduced significantly to reflect unnecessary or duplicative work. Plaintiff offers no evidence to prove that the number of hours spent prosecuting his appeal in state district court and pursuing the Safeway litigation were necessary to his ADEA federal claim. The breakdown of the 6.7 hours claimed for work on the appeal shows that Plaintiff spent his time researching administrative decisions, the 10

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standards for appellate review, and finalizing his motion for an extension of time to file his opening appeal brief ­ none of which were necessary to his federal claim. (Def. Ex. E). With regard to the 16.8 hours in attorney's fees claimed for work performed in the Safeway litigation, a review of the itemized entries shows that the discovery conducted in that matter was wholly unrelated to the evidence presented at trial in this case. Those entries include hours spent drafting the lawsuit against Safeway, researching the law on consolidation, and securing a Fed.R.Civ.P 30(b)(6) deposition of a witness who was not called as witness during this trial. (Def. Ex. F). Indeed, Plaintiff's own pleadings in the Safeway litigation illustrate that the issues in that case were substantially different than the issues presented here. In his objection to consolidating the Safeway and Denver cases in federal district court, Plaintiff wrote, "the factual and legal bases of Plaintiffs' claims against Safeway differ markedly from the factual and legal basis of Mr. Cadorna's claims against the Defendants in William Cadorna v. City and County of Denver" (case cite omitted). (Def. Ex. G, p. 1). Because the Safeway matter is based on unrelated matters to the federal case against Denver, all claimed hours associated with that case should be eliminated from the attorney's fee award. Plaintiff's request for attorney's fees based on the work performed by Anne Gill and her associates should likewise be significantly reduced to reflect that some of the work performed by her firm is not adequately documented and has essentially been conceded to be duplicative. (Pl. Mot., p.2 and Mr. Brennan's affidavit, ¶36) (Work

performed by Ms. Gill is "arguably duplicative"). For instance, although Plaintiff claims

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that Ms. Gill's fees were discounted already for repetitive work, the billing records submitted do not specify how much time was spent or how much was charged in her firm's review of trial transcripts. (McMahon Aff., , ¶23). Given Mr. Brennan's admission that Ms. Gill's work is "arguably duplicative," it is appropriate to reduce the overall award of attorney's fees to reflect this fact. Ramos, 713 F.2d at 554 ("Similarly, if the same task is performed by more than one lawyer, multiple compensation should be denied"). III. The Costs Submitted by Plaintiff Should Be Significantly Reduced Because He Has Not Shown How They Are Necessary or Taxable Under 28 U.S.C. §1920

Plaintiff seeks costs against Denver in the amount of $14,030.63. (Pl. Mot. p.2). A district court may properly deny costs when the costs are "unnecessary." Aerotech v. Estes, 110 F.3d 1523, 1526 (10th Cir. 1997). "Generally, costs allowable under 28 U.S.C. §1920 may be awarded for materials necessarily obtained for use in this case." Campfield v. State Farm Mutual Automotive Ins. Co., 2006 U.S. Dist. LEXIS 64751 (D.Colo. 11 September 2006) (Blackburn, J.) citing Mikel v. Kerr, 499 F.2d 1178, 11821183 (10th Cir. 1974).

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Costs which are necessary or taxable under §1920 ­ Denver requests

that this Court award Plaintiff $8,774.02 in costs as those that are necessary and taxable under 28 U.S.C. §1920. This amount is derived primarily from: 1) the federal court filing fee listed in Plaintiff's exhibit 2-B ($150.00); 2) the transcription fees, copy charges, and trial subpoena fees and mileage listed in Plaintiff's exhibit 2-C ($3,793.47) and; 3) the costs of trial transcripts and witness subpoena fees of ($4,830.55) in Plaintiff's exhibit 2-D. (Def. Ex.H).

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B.

Unnecessary Costs ­ Plaintiff's costs in Ex 2-A cover the period from 13 August

2003 through 14 January 2004 for the amount of $833.02. These costs include witness fees ($74.78), a "Safeway Deposition Transcript" ($490.55), a filing fee in federal district court ($150.00), and hearing supplies ($109.31). (McMahon Aff., pp 8-9). Because the Plaintiff has offered no evidence that these costs were necessary to the litigation of his ADEA claim, Denver requests that this Court deny Plaintiff's costs of $833.02. Id. Plaintiff's costs in Ex. 2-B cover the period from 30 January 2004 to 15 March 2005 for the amount of $878.98. With the exception of the $150.00 filing fee paid by Plaintiff in this matter, the remaining costs should be excluded because the Plaintiff has failed to prove how these costs were necessary for his ADEA claim. (McMahon Aff., pp.9, 10). (Def. Ex. H). Plaintiff's submission of costs in Ex. 2-C cover the period from 14 March 2005 to 31 May 2006 for the amount of $6,158.31. Denver respectfully requests that this

amount be reduced to $3,793.47 as Plaintiff's expense of $150.00 for damage calculations performed by Paller Financial were not used; at trial the primary evidence on damages came solely from DFD employee Ida Roberts. (Def. Ex. H). Similarly, Plaintiff's costs of $43.74 for witness Karen McNeil's trial subpoena fees and mileage should be excluded as she was not called to testify as trial. Id. Finally, Plaintiff has offered no evidence to prove that the $957.80 in depositions incurred in the Safeway matter and the $271.75 for transcript of the CSC oral argument were necessary in this case. (McMahon Aff., pp.9, 11). Plaintiff presents no evidence as to how any of these items were necessary in his ADEA claim and they should be excluded. Campfield v.

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State Farm Mutual Automotive Ins. Co., 2006 U.S. Dist. LEXIS 64751 at *4 ­ *7 (This Court excluded costs for videotaped depositions, exemplification of costs, and use of courier services when the moving party could not show that these costs were either necessary or reasonable). C. Expenses not taxable as costs under 28 U.S.C. §1920 ­ Plaintiff's expenses

for postage and delivery charges ($13.73), computer research fee ($369.25) and service of process fees ($225.00) totaling $607.38 listed in Exhibit 2-B do not constitute a taxable costs under 28 U.S.C. §1920 and should be excluded. (McMahon Aff., p.9). (Def. Ex.H). Plaintiff's expenses in Ex. 2-C of $20.00 for parking fees at depositions, $244.80 for Lexis and PACER research fees, $150.00 for "private investigator skip trace", "private investigator service fees" of $260.46, supplies for $150.01 and $244.29 for travel totaling $1,069.56 should be excluded as these are not taxable costs under 28 U.S.C. §1920. (McMahon Aff., p.11). (Def. Ex. H). Plaintiff's expense in Ex. 2-D for the expert witness advance of $1,425.00, while properly recoverable as an attorney's fee, is not recoverable as a cost under 28 U.S.C. §1920. Plaintiff's expenses of $398.79 in supplies (trial notebooks, dividers, storage, etc.) and $339.00 in computer research fees are not within the categories of compensable costs under 28 U.S.C. §1920, Denver requests that these amounts be excluded from Plaintiff's motion for costs. (McMahon Aff., p.12). (Def. Ex. H).

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Conclusion Plaintiff's proposed hourly rate of $300 per hour should be reduced to at least $275 per hour in light of his inexperience, performance at trial during this matter, and the prevailing rate of attorneys in the Denver area which precludes him from belonging to the top five percent echelon of plaintiff employment law attorneys is belied by his admitted inexperience in federal law and his performance during trial. This Court has discretion in reducing Plaintiff's claim for 924.80 hours because it is excessive, redundant, or unnecessary to the prosecution of a federal claim. Plaintiff's claim for 924.80 hours of attorney time should be reduced by 221.70 hours which should result in an award of attorney's fees in the amount of $193,352.50 Plaintiff's demand for costs totaling $14,030.63 should be reduced to $8,774.02 to reflect the expenses that were necessary for use in his ADEA claim and those costs that are taxable under 28 U.S.C. §1920. Respectfully submitted this 29th day of March, 2007. CHRISTOPHER M.A. LUJAN Assistant City Attorney s/ Christopher M.A. Lujan Christopher M.A. Lujan Denver City Attorney's Office Litigation Section 201 West Colfax Ave., Dept. No. 1108 Denver, Colorado 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3190 ATTORNEY FOR DEFENDANT

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 29, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Mark E. Brennan, Esq. [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin J. LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee Street Denver, Colorado 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Ave. Denver, Colorado 80204 s/ Raquel R. Trujillo Raquel R. Trujillo, Legal Secretary Denver City Attorney's Office

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