Free Motion for Attorney Fees - 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. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant.

PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS ______________________________________________________________________ Plaintiff, William R. Cadorna ("Plaintiff" or "Mr. Cadorna") hereby moves pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §626(b) (incorporating by reference 29 U.S.C. §216(b), the attorney's fee provision of the Fair Labor Standards Act), 28 U.S.C. §1920, Fed.R.Civ.P. 54(d), and this Court's November 27, 2006 Order, for an award of all reasonable costs and attorney's fees incurred by Plaintiff in enforcing his rights under the ADEA. In compliance with Local Rule 7.1, the undersigned affirms that he consulted with opposing counsel concerning the subject of this Motion, and opposing counsel stated their opposition to it. As grounds for this Motion, Plaintiff states:

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I.

INTRODUCTION

Plaintiff requests an award of attorney's fees, expert witness fees and costs incurred by Plaintiff in enforcing his rights under the ADEA, as follows: (1) 924.80 hours of services performed by Mark E. Brennan, P.C., between August 13, 2003 and March 9, 2007, at the (below) prevailing market rate of $300 per hour, or $277,440.00, plus litigation expenses and costs of $14,030.63, for a total of $291,470.63 (Exh. 2; Exh. 2-A through F); (2) 101 hours of services performed by the Law Offices of Anne Gill, P.C., since January 16, 2007, at Ms. Gill's rates of $275 per hour for her services, $175 per hour for her associate, Sharlene Aitken, and $65 per hour for contract attorney Laurel Adams, or a total (after a highly professional voluntary discount by Ms. Gill for arguably duplicative work) of $20,845.00 (Exh. 3); (3) Services as an expert witness performed by John Culver, Esq. since December 8, 2006, at Mr. Culver's hourly rate of $300, or $2,167.50, plus $19.43 in costs, for a total of $2186.93 (Exh. 1); (4) In total, then, Plaintiff requests attorneys' fees and costs incurred to date of $314,502.56.

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II.

PLAINTIFF'S ATTORNEY IS ENTITLED TO A LODESTAR FEE OF, AT MINIMUM, $300 PER HOUR.

As is explained in detail by Plaintiff's expert, John Culver, Esq., and the undersigned in their attached affidavits (Exh. 1 and 2), the prevailing market rate in the Denver area for highly experienced employment attorneys such as the undersigned is, at minimum, $300 per hour. The undersigned would be well within his rights to request reimbursement at $350-400 per hour, the prevailing rate for highly experienced employment attorneys at many firms in Denver, but has settled upon $300 per hour as a fair compromise, in the hope that it will obviate serious dispute concerning the appropriate hourly rate at which his fees will be calculated. In 1979, the undersigned graduated magna cum laude, Phi Beta Kappa, from Rice University, one of the most selective and rigorous undergraduate universities in the U.S. In 1983, the undersigned received his Juris Doctor from Stanford University, also one of the most selective and rigorous law schools in the U.S. After 13 years of practice as a labor and employment attorney, including eight years in private practice, three years as in-house counsel for a 30,000-employee division of General Electric Company, and two years as Supervisory Trial Attorney and lead counsel for the EEOC in an age discrimination class action on behalf of 2,100 former employees of Martin-Marietta Corporation, the undersigned established Mark E. Brennan, P.C., as a sole practitioner, in April, 1997. Recent fee awards in the District of Colorado leave little doubt that the prevailing market rate for expert employment counsel with twenty or more years of experience is

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no less than $300, but appears to be closer to $350. The prevailing market rate for attorneys with the undersigned's credentials and experience may, quite reasonably and fairly, be "pegged" at anywhere from $300 to $350 per hour. In Lucas, et al. v. Kmart Corp., District of Colorado Civil Action 99-cv-01923-JLKCBS, an ADA public accommodation class action, Judge Kane found that the prevailing market, or "lodestar" rate for Tim Fox, a 1991 Stanford Law grad, is $330 per hour. (Exhibit 4, July 27, 2006 "Order Granting Class Counsel's Unopposed Petition for an Award of Attorney's Fees and Costs", pp. 9-10). Judge Kane made this finding before adding generous enhancements under the "common fund" theory applicable to class actions and under California law calling for class counsel to receive a generous "multiplier". The undersigned has the greatest possible personal and professional respect for Tim Fox. At the same time, the undersigned is unaware of any evidence that Mr. Fox is a better trial attorney. In Hull v. U.S. Dept. of Labor, District of Colorado Civil Action 04-cv-01264-LTBPAC, a FOIA case, Judge Babcock found that $300 per hour is the prevailing market rate for "lawyers with twenty plus years of experience in the Denver area". (Exhibit 5, May 30, 2006 "Order" granting FOIA plaintiff attorneys fees, pp. 9-10). In Bat v. A.G. Edwards & Sons, Inc., District of Colorado Civil Action No. 04-cv02225-REB-BNB, Magistrate Judge Boland found, in granting the defendant in an employment discrimination case its fees in defending against a motion to compel, that "[h]ourly rates of $350.00 for a senior lawyer with 24 years' experience and $190.00 for a lawyer with two years' experience are within the prevailing rates for the Denver area."

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(Exhibit 6, February 21, 2006 "Order", p. 6). In so finding, Magistrate Judge Boland stated: "[m]y conclusion is bolstered by the fact that the plaintiff's lawyer, Mr. Feola, acknowledges that with 16 years' experience he charges $275.00 per hour." Ibid. Mr. Feola's adversary, Mary Hurley Stuart, is now seeking $385/hour for her time since a mistrial was declared in that case. There is no reason why Ms. Stuart should be entitled to a significantly greater hourly rate than the undersigned. Her credentials and experience are no better. In the consolidated securities class actions against Qwest Communications recently pending before this Court, In re: Qwest Communications International, Inc., 01cv-1451-REB-CBS, local employment attorney Curtis L. Kennedy filed his October 10, 2006 "Motion by Intervenors/Objectors Graham, Floyd, Hull and AUSWR for Award of Fees and Costs". (Exhibit 7). Mr. Kennedy's role in that case was limited to objecting on behalf of certain Qwest retirees to the massive attorney's fees sought by the lead plaintiffs' firm. Mr. Kennedy is a very able attorney who has built a very successful practice concentrating almost exclusively on ERISA litigation against Qwest and its predecessor companies. His credentials are no better than the undersigned's. The breadth and diversity of his experience are far less. For his limited role in the Qwest case, which apparently consisted largely 90 hours of motion practice, he requested compensation for his time at the rate of his customary rate of $300, or $27,000, multiplied by 1.5 to reflect the results he achieved, or a total of $40,500 in fees. The undersigned could, in view of the foregoing, quite reasonably claim Mary Hurley Stuart's $385 per hour, or, better yet, Mr. Kennedy's $450 per hour. Instead, the

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undersigned requests that his time in this case be compensated at the rate of only $300 per hour. In view of recent decisions in this jurisdiction, other information before this Court, and the billing rates of its own outside counsel, Defendant will be hard pressed to dispute, and this Court should feel quite comfortable finding, that this is indisputably the minimum, prevailing, current market rate, i.e., "lodestar" for an attorney of the undersigned's credentials and experience in the local community. Missouri v. Jenkins, 491 U.S. 274 (1989); Blanchard v. Bergeron, 489 U.S. 87 (1989); Blum v. Stenson, 465 U.S. 886 (1984); United Phosphorous, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000); Kelley v. City of Albuquerque, ___ F.Supp. 2d ___, 2005 U.S. Dist. LEXIS 39001 (D.N.M. 2005). III. TIME SPENT BY COUNSEL IN CIVIL SERVICE COMMISSION LITIGATION WAS "BOTH USEFUL AND OF A TYPE ORDINARILY NECESSARY TO ADVANCE" PLAINTIFF'S ADEA CLAIMS, WAS "REASONABLY EXPENDED", AND IS THEREFORE FULLY COMPENSABLE.

Since August 13, 2003, the undersigned has devoted 1,159.50 hours to advising and representing Mr. Cadorna in Civil Service Commission and federal litigation necessary to enforce his rights under the ADEA. Plaintiff is requesting compensation for 924.80 (79.7%) of those hours. Of those 924.80 hours, 114.10 have been expended since the jury's verdict on June 29, 2006. In short, Plaintiff seeks compensation under the statute for just 810.70 hours of the undersigned's time expended through trial. As Plaintiff's expert attests, these hours are well below what he would have expected Plaintiff's counsel to have devoted to litigation of this case had it only been litigated in federal court. (Exh. 1, Para. 22-23). As both Plaintiff's expert and Plaintiff's

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counsel attest (Exh. 1, supra, and Exh. 2, Para. 33) in their affidavits, virtually all of the time Plaintiff's counsel spent in Civil Service Commission litigation or in litigation against Safeway contributed directly, on an hour-for-hour basis, to advancement of Plaintiff's ADEA claims through trial, and 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. Where the undersigned determined that this was not the case, the undersigned exercised considerable billing discretion to exclude such time from the hours claimed in this motion. Therefore, Defendant cannot deny that the time expended by the undersigned in Plaintiff's Civil Service Commission litigation, or in litigation against Safeway, for which Plaintiff has requested compensation "was both useful and of a type ordinarily necessary to advance [Plaintiff's] civil rights litigation," and is therefore compensable. North Carolina Dept. of Transportation, et al. v. Crest Street Community Council, Inc., 479 U.S. 6, 15 (1986); Pennsylvania, et al. v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 559-561 (1986)(construing Clean Air Act in accordance with Civil Rights Act §1988 to permit recovery by "private attorneys general" of attorneys fees for administrative litigation that advanced Clean Air Act claims); Webb v. County Board of Education, 471 U.S. 234, 241-43 (1985)(unlike this case, the civil rights plaintiff in Webb failed to assert that any discrete portion of the work product from administrative proceedings was both useful and of a type ordinarily necessary to advance the civil rights litigation); Hensley v. Eckerhart, 461 U.S. 424 (1983); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980); Bobbitt v. Paramount Cap Mfg. Co., 942 F.2d 512,

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514 (8th Cir. 1991); Currier v. United Technologies Corp., ___ F.Supp.2d ___, 2005 U.S.Dist. LEXIS 10028 (D.Me. 2005). IV. NO REDUCTION FOR "PARTIAL SUCCESS" IS WARRANTED, AS PLAINTIFF'S SUCCESSFUL ADEA CLAIMS INVOLVED A COMMON CORE OF FACTS, HIS UNSUCCESSFUL CLAIMS WERE SUFFICIENTLY INTERTWINED WITH HIS SUCCESSFUL CLAIMS, AND HE ACHIEVED A REMARKABLE LEVEL OF SUCCESS WARRANTING FULL COMPENSATION FOR ALL TIME REASONABLY EXPENDED.

Defendant will undoubtedly cite Hensley v. Eckerhart, 461 U.S. 424 (1983), and seek reduction of Plaintiff's fee award on the basis that the Court dismissed Plaintiff's ADA claims on summary judgment, and dismissed Plaintiff's substantive due process claims mid-trial, and that Plaintiff therefore only achieved "partial success" on his claims. Such reliance on Hensley would be seriously misplaced. In Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), the Tenth Circuit squarely rejected just such an argument in a housing discrimination case. The Tenth Circuit emphasized that, as the Supreme Court stated in Hensley, if the plaintiff has obtained "excellent results" on what were clearly nonfrivolous, interrelated theories based upon a common core of facts, the attorney's fee award "should encompass all hours reasonably expended; no reduction should be made because the plaintiff failed to prevail on every contention: `[t]he result is what matters.' " 713 F.2d 556-58. Defendant can hardly deny the great significance of the relief Plaintiff has obtained in this case, since it has devoted enormous resources to attempting to persuade this court that the jury's verdict was grossly excessive, and has asserted that the verdict was several times what the evidence would have supported.

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All of the claims Plaintiff pursued through summary judgment or trial arose from a common core of facts. They simply represented different facets of the same stone. Plaintiff has made some reductions for work related exclusively to his ADA or due process claims. Therefore, under well-established Tenth Circuit precedent, this Court may not entertain reduction of Plaintiff's fee award for "partial success". Barnett v. Infant Swimming Research, Inc., ___ F.3d ___, 2006 U.S.App. LEXIS 21078, 33-36 (10th Cir. 8/15/06); Browder v. City of Moab, 427 F.3d 717, 722-23 (10th Cir. 2005); Burch v. La Petite Academy, Inc., ___ F.3d ___, 2001 U.S.App. LEXIS 11323 (10th Cir. 2001); Joseph A. and Josephine A., et al., v. New Mexico Dept. of Human Services, 28 F.3d 1056, 1060 (10th Cir. 1994); Zuchel v. City and County of Denver, 997 F.2d 730, 744-45 (10th Cir. 1993)("[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.") WHEREFORE, adequate grounds having been established, Plaintiff respectfully requests that this Honorable Court award him attorney's fees and costs of $314,502.56, as follows: (1) 924.80 hours of services performed by Mark E. Brennan, P.C., between August 13, 2003 and March 9, 2007, at the rate of $300 per hour, or $277,440.00, plus litigation expenses and costs of $14,030.63, for a total of $291,470.63;

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(2)

101 hours of services performed by the Law Offices of Anne Gill, P.C., since January 16, 2007, at Ms. Gill's rates of $275 per hour for her services, $175 per hour for her associate, Sharlene Aitken, and $65 per hour for contract attorney Laurel Adams, or a total of $20,845.00;

(3)

Services as an expert witness performed by John Culver, Esq. since December 8, 2006, at Mr. Culver's hourly rate of $300, or $2,167.50, plus $19.43 in costs, for a total of $2,186.93;

Respectfully submitted this 9th day of March, 2007. MARK E. BRENNAN, P.C. /s/ Mark

E. Brennan

P.O. Box 2556 Centennial, CO 80161 (303) 552-9394 or (303) 797-7687 ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 9th day of March, 2007, a true and correct copy of the foregoing PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS was served via the CM/ECF system on the following persons: Richard P. Barkley Brownstein Hyatt & Farber, P.C. 410 17th Street, 22nd Floor Denver, Colorado 80202 Christopher M.A. Lujan Assistant City Attorney, Litigation Section City and County of Denver 201 West Colfax, Department 1108 Denver, Colorado 80202 /s/

Mark E. Brennan

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