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-00683-EWN-MJW BEVERLY COLEMAN, Plaintiff, v. AMERICAN FURNITURE WAREHOUSE CO., a Colorado corporation registered to do business in the State of Colorado, and JACOB JABS, Defendants.

DEFENDANTS' MOTION FOR ATTORNEYS' FEES

COME NOW Defendants American Furniture Warehouse ("AFW") and Jake Jabs ("Jabs"), through their undersigned counsel, pursuant to 42 U.S.C. § 2000e-5(k), C.R.S. §§ 1317-201 and 13-17-102, 28 U.S.C. § 1927, and the Court's Order dated May 26, 2005 ("Order"), and hereby move the Court to award AFW and Jabs reasonable attorneys' fees1. Those fees should be awarded against Plaintiff Beverly Coleman ("Coleman") and her counsel, jointly and severally.2 If the Court rules that such an award is appropriate, AFW and Jabs will attempt to reach stipulations with Coleman concerning either the amount, or any of the

Defendants have conferred in good faith with Plaintiff's counsel to resolve this matter without Court involvement but have been unable to do so. As set forth below, Coleman and her counsel not only asserted claims that they later jettisoned, but continued to pursue claims without any merit whatsoever. Coleman and her counsel also conducted their discovery and pretrial proceedings abusively, causing maximum inconvenience and expense.
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subsidiary issues involved in determining the amount of the award. In order to permit the parties an opportunity to reach such stipulations, AFW and Jabs request that the Court set a deadline of thirty (30) days following the date of any order finding that AFW and/or Jabs is entitled to an award of attorneys' fees, in which to submit the stipulated amount, or if necessary, evidentiary material and stipulated facts concerning the amount of such fees. As grounds for this Motion, AFW and Jabs state as follows:

I.

INTRODUCTION AND FACTUAL BACKGROUND Coleman commenced this action in April 2004, alleging six federal and three state law

claims against AFW and Jabs. Specifically, Coleman claimed that AFW subjected her to a hostile work environment and discriminated and retaliated against her on the basis of gender and age. (See generally Complaint.). She also alleged claims against AFW for wrongful termination, breach of contract, and breach of the covenant of good faith and fair dealing. (Id.). These claims were based on allegations that AFW was liable for Jabs' alleged conduct pursuant to the doctrine of respondeat superior. (Id. at pp. 9-10, ¶ 43.). Coleman sought damages for her alleged economic and non-economic injuries, punitive damages, injunctive relief, attorneys' fees, expert witness fees, and post- and pre-judgment interest. (Id. at p. 18.). If meritorious, the claims against AFW would have provided Coleman full relief. Nevertheless, Coleman chose to assert duplicative claims against Jabs individually, for intentional infliction of emotional distress, battery, and assault. (Id. at pp. 15 -18.) It was unnecessary to assert these claims against Jabs, and doing so multiplied the proceedings and substantially increased the expenses associated with the defense of the litigation.

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At the outset of the case (and thereafter) AFW requested that Coleman dismiss her federal law claims, maintaining that they wholly lacked factual support and/or were otherwise barred by her failure to exhaust her administrative remedies. (See Affidavit of Gary J. Benson, attached as Exhibit B.) ("Benson Aff.") At the time the critical events occurred, Coleman had never claimed during the extensive police investigation of her complaint that there was sexual harassment or discrimination involved. (See AFW's Summary Judgment Brief, pp. 19-20, Facts 132-134.) She also admitted engaging in the misconduct that resulted in her termination. (Id. at p.25, Fact 164.). Thus, at the outset, Coleman herself did not consider this to be a situation involving gender or age-based discrimination, harassment, or retaliation. The case was frivolous from the beginning. Moreover, the EEOC had sua sponte rejected the EEOC charges that Coleman had filed concerning the federal law discrimination and retaliation claims she asserted in the lawsuit, without even requiring AFW to submit a response. (Id. at p.31, Facts 202; 207.). (EEOC Regulations state "where a charge on its face . . . fails to state a claim . . . the Commission shall dismiss the charge." 29 C.F.R. § 1601.18). The determination that Coleman's charges lacked factual allegations that could justify relief under federal law provided Coleman with notice that the facts simply did not support claims of discrimination, or retaliation, on the basis of age or gender. In addition, Coleman even failed to file an EEOC charge concerning the federal law hostile work environment claims that she asserted in her lawsuit (id. at pp.30-31, Facts 200; 205), although doing so is a jurisdictional prerequisite to suit. In response to the concerns AFW's counsel expressed, Coleman's counsel said he would drop any unsupported claims following discovery if, as AFW maintained, they lacked support.

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(Benson Aff., ¶ 3.) In other words, Coleman's plan was to use the litigation as a "fishing expedition" to see if she could find support for the claims she had already asserted.3 Beginning with Coleman's deliberate exploitation of the discovery process, and then continuing, as more fully described below, to her stubbornly litigious pursuit of meritless claims that lacked any substantial justification, Coleman and her counsel unreasonably and vexatiously multiplied the proceedings in this case. INEXCUSABLE DILATORY TACTICS AND THE DISCOVERY PROCESS Coleman seemed to interpret AFW's concerns about her claims as a challenge to overlitigate the case. This was a course she had already chosen by asserting claims against Jabs individually, even though she could have obtained complete relief based on the claims asserted against AFW (if those had any merit). She continued to implement this plan by repeatedly causing delays and using the discovery process to unnecessarily increase the cost of litigation. Coleman used the assertion of claims against Jabs to enlarge the discovery expenses and multiply the proceedings. At the scheduling conference, she stressed that there were multiple defendants and witnesses and sought more than the equivalent of "double discovery," demanding the right to take 30 depositions and serve 50 interrogatories. (See proposed Scheduling Order, submitted 6/24/04, p. 10.). While not succumbing entirely to Coleman's demands, the Court permitted her to conduct more discovery than would otherwise have been presumptively available under the rules. (See Scheduling Order, filed 6/30/04, p. 10.).

This tactic has long been expressly forbidden in this Circuit. "When a plaintiff has no evidence whatsoever [of a violation of federal law], but merely suspects that he could find such evidence if given a chance, he is not entitled to pursue such a fishing expedition in federal court." Jarvis v. Nobel/Sysco Food Services Co., 985 F.2d 1419,1423 n.4 (10th Cir.1993). 4

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Coleman complemented her aggressive discovery stance with an unreasonable unwillingness to respond to the Defendants discovery requests. She missed several agreed upon deadlines to provide agreed upon medical releases, and then provided incomplete materials that further delayed obtaining relevant records concerning her medical condition, which she had placed in issue. (See Affidavit of Jabs' counsel, Andrew W. Volin, ¶ 2, attached as Exhibit A) ("Volin Aff."). She also delayed responding to the first set of formal combined discovery requests from both Defendants, and then served incomplete responses, which required extensive correspondence, with resulting delays and expenses, and two supplemental sets of responses. (Id. at ¶ 3 ). Coleman never responded to the second set of combined discovery from Defendants, which was directed solely to her out-of-state "expert" on "workplace bullying." Instead, she dropped the "expert," but only after forcing Defendants to research her "expert," prepare discovery, and obtain a rebuttal expert. (See Volin Aff., ¶ 4.). The only deposition Defendants were able to take was of Coleman herself, and it was delayed and obstructed. It commenced in September, but did not conclude until the second half of November, requiring five notices of deposition for two actual partial days of deposition questioning. On the second day of her deposition, Coleman arrived after 11:00 a.m., over two (2) hours late, without explanation, despite the fact that the date and time had been specifically set to accommodate her demands. Jabs' deposition of Coleman was limited to 2½ hours, before Coleman's counsel unilaterally ended the deposition before 6:00 p.m.4 (See Volin Aff., ¶ 5; see Coleman Depo., pp. 415-16 and 513-15, attached as Exhibit C.).

Coleman's counsel indicated at the time that the deposition could be continued at a later date, but that never occurred, and Defendants were forced to move for summary judgment without a complete transcript. (See Volin Aff., ¶ 5.). 5

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In contrast to her parsimonious approach to her own obligations, Coleman was not shy with respect to serving discovery requests on AFW (separate from what she served on Jabs), including multi-part interrogatories, document requests, and requests for admissions. While Coleman's counsel claimed to have limited availability when efforts were made to set Coleman's deposition, Coleman still managed to take seven depositions, many of which were set (or re-set) at the last minute to accommodate her counsel's everchanging demands and availability. (See Volin Aff., ¶ 6.). Coleman's claims were premised on Jabs' alleged acts, and therefore Coleman naturally conducted Jabs' deposition, but that exercise was also an example of abusive, harassing, and vexatious litigation. Even the location was designed to harass Jabs. After the first deposition Coleman took, all her other depositions took place at the convenient, comfortable, modern, and accessible offices of Sherman & Howard (Jabs' counsel). However, when it came time to depose Jabs, despite repeated requests that the deposition take place (like the others) at a more suitable location, Coleman insisted on deposing Jabs (on his 75th birthday) in the cramped basement of her counsel's office (which is located in a very old and very narrow Denver home that has been converted to office space), next to the noisy furnace room and in an area that office personnel could freely access. (See Volin Aff., ¶ 7.). At Jabs' deposition, Coleman's counsel repeatedly inquired into irrelevant and harassing topics,5 and her counsel often insisted on going over the same material again and again, despite objections and requests that he proceed professionally. (See Volin Aff., ¶ 8.).

Coleman's counsel spent a great deal of time inquiring about Jabs' military service, musical career and business history, his children and how often he sees them, and his autobiography. (See 6

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Coleman's unreasonable and multiplicious litigation strategy continued in the area of experts. Although she agreed to a three expert limit, she then identified four experts in her rule 26(a)(2) disclosures, including one out of state "expert" concerning "workplace bullying" that focused on Jabs. (See Plaintiff's Rule 26(a)(2) Disclosures, filed September 23, 2004.). Coleman did not seek permission to add the additional expert. This forced Jabs and AFW to research the expert and prepare and serve additional discovery on that issue, as well as secure a rebuttal expert. (See Volin Aff., ¶ 9). Coleman later sought to add yet another expert to her already over loaded arsenal. (See Minute Order dated 11/17/04.). Witness identification and disclosure were yet another area in which Coleman and her counsel unreasonably behaved. In the Preliminary Pretrial Order, filed 10/8/04, page 5, only about a month before the discovery cut-off, Coleman made an inflammatory move, identifying a potentially significant new witness ­ with two different names and no contact information ­ who supposedly would testify about Jabs' "attitude toward women and his propensity for violence." Coleman's counsel then reported he was ill and would be unavailable for an extended period of time, which required the postponement of numerous depositions, including the continuation of Coleman's own deposition. (See Minute Order dated 11/3/04.). Indeed, throughout the entire litigation, Coleman and her counsel engaged in numerous delays and stalling, further protracting the case and increasing costs. These delays began at the outset, when Coleman failed to serve Defendants on a timely basis, which resulted in an Order to Show Cause, dated June 1, 2004. After serving Defendants, Coleman repeatedly requested extensions of time and otherwise caused delays by failing to comply with her obligations under Volin Aff., ¶ 8.). 7

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the federal rules.6 Due to this Court's firm deadlines for the discovery cutoff and dispositive motions, Coleman's delays created additional problems for Defendants, which Coleman attempted to use to her advantage. (See Volin Aff., ¶ 10.).

SUMMARY JUDGMENT PROCEEDINGS Because Coleman failed to drop any of her meritless claims, AFW was forced to incur unnecessary expenses to prepare and file its Motion for Summary Judgment on December 22, 2004. AFW argued that, without exception, all Coleman's claims against AFW failed, on multiple grounds that were beyond legal or factual dispute. (See generally AFW's Brief in Support of its Motion for Summary Judgment.). Only after AFW briefed all the arguments against all of Coleman's claims did Coleman drop her state law claims against AFW for breach of contract and breach of the covenant of good faith and fair dealing. (See Plaintiff's Response to American Furniture Warehouse's Motion for Summary Judgment, at p. 27.). However, with regard to Coleman's federal law claims, Coleman stubbornly resisted dismissal. Nevertheless, she offered less than one page of argument on those The Court file reflects the following series of delays and requests for extensions: Plaintiff's (undated) Motion to Vacate June 1, 2004 Scheduling/Planning Conference, Plaintiff's Unopposed Motion for Extension of Time for Plaintiff to Respond to Discovery Request, dated 9/7/04, Plaintiff's Amended and First Supplemental Response to Defendants' First Set of Discovery, dated 10/6/04, Plaintiff's Second Amended and Supplemental Response to Defendants' First Set of Discovery, dated 10/8/04, Plaintiff's Motion for Extension of Time to Respond to Defendants' Motions for Summary Judgment, dated 12/30/04, and Unopposed Motion for further Extension of Time to Respond to Defendant's Motion for Summary Judgment and to Reply, and Request for Forthwith Ruling, dated 2/8/05. Based on professional courtesy, and to minimize the need for judicial involvement, Defense counsel did not object to most of Coleman's requests for delay. However, that should not be a basis for overlooking the delays or their impact. The Court's file also does not reflect all of Coleman's numerous additional delays concerning events and submission of documents, such as the repeated rescheduling of Plaintiff's deposition ­ five notices of deposition were required. 8
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claims, with not a single citation to the record and only one legal citation, in her Response to AFW's Motion for Summary Judgment7. (Id.) This Response required AFW to prepare a reply brief and research and address the additional arguments created by the Response, which were yet additional expenses that should not have been necessary. In AFW's Reply, AFW argued that Coleman waived her federal law claims by failing to argue them. (See AFW's Reply Brief in Support of its Motion for Summary Judgment, at p. 6.). AFW further argued that, even if Coleman's inadequate Response did not constitute a waiver, Coleman's argument was wrong and her claims failed on the merits. (See generally id.). AFW also filed a motion to dismiss certain of the claims for lack of subject matter jurisdiction, to which Coleman did not respond. Jabs also filed his Motion for Summary Judgment on December 22, 2004, arguing that, without exception, all of Coleman's claims against Jabs failed. (See Jabs' Brief in Support of his Motion for Summary Judgment, at pp. 19-34.) The claims were subject to dismissal both on the merits, as well as because of lack of subject matter jurisdiction, because her exclusive remedy was through the worker's compensation system rather than in court. (Id.). The summary judgment motion was necessitated because Coleman and her counsel repeatedly rejected or ignored requests by Jabs' counsel that Coleman dismiss her claims against Jabs and focus on her claims against AFW. Jabs repeatedly requested throughout the litigation that Coleman drop the claims she asserted against him individually and focus instead on the claims she asserted against AFW. (See Volin Aff., ¶ 11.). Jabs even offered to waive his right to seek fees and costs from Coleman

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The Court's Order restated her complete response concerning her federal claims at p. 10, n.3. 9

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if she would do so. (See id.) Coleman consistently refused to drop her claims against Jabs. Likewise, when discovery ended, after Jabs had complied with Coleman's unwarranted and burdensome discovery requests, Jabs' counsel again urged Coleman to drop unsupportable claims to avoid Jabs' expenditure of significant resources in the preparation of a summary judgment motion and brief on claims that should have been voluntarily dismissed. Coleman's counsel ignored this request. (Id. at ¶ 11.). After AFW and Jabs filed their summary judgment motions, Coleman sought yet another extension of time (see Motion, dated December 30, 2004). Eventually, Coleman filed a response brief, in which she dropped her intentional infliction of emotional distress claim against Jabs.8 However, in her response brief, later properly found by the Court to be "both execrable and often unintentionally humorous" (Order, p.8, n.2), Coleman stubbornly persisted in arguing both the merits and the jurisdictional issue with respect to her other tort claims against Jabs. (See Plaintiff's Response to Jabs' Motion for Summary Judgment, last 2½ unnumbered pages.). Still, Coleman offered less than one page of argument on the merits. (Id.) She did not include a single citation to the record or to any legal authority, thus demonstrating both the wastefulness of her extensive discovery efforts and the frivolous nature of her claims. (Id.). On the jurisdictional issue, she made a slightly longer argument, but she still cited only one case ­ one that Jabs had already cited in his own brief. (Id.). Before preparing his Reply Brief, Jabs attempted one last time to persuade Coleman to drop the claims against him, offering again to waive any claims for attorneys' fees or costs if she would do so. Again, she stubbornly refused. (See Volin Aff.; attached letter from Andrew W. Coleman also withdrew her state claims against AFW for breach of contract and breach of the covenant of good faith and fair dealing. 10
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Volin to Lonn M. Heymann, dated March 18, 2004). This further multiplied the proceedings and expenses, as it required a reply brief (see Jabs' Reply Brief in Support of his Motion for Summary Judgment filed April 15, 2005 ("Reply")), and a subsequent Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed May 16, 2005. In his Reply, Jabs argued that Coleman had waived her claims by failing to argue them adequately. Jabs further argued that, even if Coleman's inadequate Response was not a waiver, Coleman's argument was wrong and her claims failed on the merits. In the May 16, 2005 Motion, Jabs requested the dismissal of the assault and battery claims for lack of subject matter jurisdiction, based upon the co-employee immunity rule of the Colorado Worker's Compensation Act. Coleman did not respond to this Motion. By Order dated May 26, 2005 (the "Order"), the Court accepted AFW's argument and dismissed the entire action. (See Order and Memorandum of Decision.) The Order granted summary judgment against Coleman on all six of her federal law claims against AFW and dismissed Coleman remaining state law claim against AFW for wrongful discharge without prejudice, for lack of independent subject matter jurisdiction, following dismissal of the federal claims. (Id.) With regard to Coleman's federal law claims, the Court explained that Coleman waived and abandoned these claims: "[A] litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in the face of contrary authority forfeits the point." Tran v. Trs. Of State Colls. in Colorado, 355 F.3d 1263, 1266 (10th Cir. 2004) (quoting Phillips v. Calhoun, 956 F.2d 949, 953-54 [10th Cir. 1992]). In Adler v. Wal-Mart Stores, Inc., the Tenth Circuit affirmed the district court's decision to grant summary judgment to the defendant employer, deeming the 11

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plaintiff's response "inadequate," where the plaintiff submitted three and one-half pages of argument in response to a summary judgment motion that only made seven references to attached materials. Adler v. Wal-Mart Stores, Inc., 144. F.3d 664, 671-72 (10th Cir. 1998). Here, Plaintiff's three paragraph response with regards to its federal claims, with nary a citation to the record, is wholly inadequate and cannot defeat Defendant AFW's motion for summary judgment. Accordingly, I find that Plaintiff has waived and abandoned her federal law claims, and thus Defendant AFW is entitled to summary judgment on Plaintiff's federal claims. (Order at p. 10-11.) However, the Court proceeded to address the merits of Coleman's claims, finding the factual basis for these claims as deficient as Coleman's legal argument. With regard to her claims for discrimination on the basis of gender and age, the Court explained, "Plaintiff cannot show that Defendant Jabs hit her due to her gender or age. Thus, Plaintiff's claims of discrimination under Title VII and the ADEA cannot survive summary judgment." (Id. at p. 12013.) Concerning her retaliation claims, the Court explained: "While Title VII and the ADEA protect a person who reports unlawful discrimination from retaliation, Title VII and the ADEA do not protect a person from retaliation who complains of actions unrelated to alleged violations of federal employment discrimination law. Accordingly, Plaintiff cannot prevail on her retaliation claims." (Id. at 13-14.). Finally, regarding Coleman's hostile work environment claims, the Court stated that "Plaintiff has not shown that the work environment was hostile . . . due to gender or age." (Id. at 14.). In its Order, the Court did not rule on the substance (or lack thereof) of Coleman's state law claims. Instead, the Court dismissed Coleman's state law claims, including the battery and assault claims against Jabs, without prejudice, for lack of independent subject matter jurisdiction, following dismissal of the federal claims. (Id.). 12

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The Court's Order9 also correctly noted, p. 8 n.2, that Coleman's Response Brief was "both execrable and often unintentionally humorous." The fact is that Coleman's entire litigation of this matter has been10 unreasonable and inexcusable, not just her Response Brief, and as set forth below, an award of attorneys fees to AFW and Jabs is appropriate.

II.

THIS COURT SHOULD AWARD AFW'S AND JABS' ATTORNEYS' FEES INCURRED IN CONNECTION WITH COLEMAN'S CLAIMS AGAINST THEM. There are several grounds for awarding AFW and/or Jabs their attorneys' fees. First,

with respect to AFW, the Court could award fees based upon standards applicable to fee awards under Title VII and the ADEA. Second, with respect to Jabs, C.R.S. § 13-17-201 requires a fee award where tort claims such as those asserted by Coleman against Jabs are dismissed under conditions satisfied by this case. Additionally, with respect to both Defendants, C.R.S. § 13-17102 requires a fee award "against any attorney or party who has brought . . . a civil action, either in whole or in part, that the court determines lacked substantial justification" or where "an attorney or party unnecessarily expanded the proceeding by . . . improper conduct." Finally, 28 U.S.C. § 1927 authorizes fee awards against an attorney who unreasonably and vexatiously multiplies the proceedings in any case. Pursuant to § 13-17-102, the Court should impose these fees against both Coleman and her counsel, jointly and severally.

A.

Title VII Authorizes the Court to Award Attorneys Fees to AFW.

A Court may award attorney's fees to
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Coleman has not appealed this Court's Order. Coleman has not appealed this Court's Order. 13

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a prevailing defendant in a [T]itle VII action upon a finding that the action was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith". . . . To determine whether a prevailing defendant is entitled to attorney's fees under [T]itle VII, the district court must focus on the question of whether the case is seriously lacking in arguable merit . . . . Courts have identified three general factors which should guide th[is] inquiry: (1) whether plaintiff established a prima facie case of sex discrimination; (2) whether defendant offered to settle the dispute prior to trial; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits. In order to award attorney's fees against a plaintiff in a [T]itle VII action, the court must be persuaded that there is no evidence of sex discrimination in the record. Hughes v. Regents of the Univ. of Colo., 967 F. Supp. 431, 439-440 (D. Colo. 1996) (Nottingham, J.) (awarding fees to prevailing defendant). See also Christiansburg Garment v. EEOC, 434 U.S. 412, 422 (1978) (a litigant is under a continuing duty to avoid frivolous litigation). In Hughes, this Court awarded attorney's fees to a defendant where, like here, the plaintiff failed to present any evidence, in response to a motion for summary judgment, that the defendant had discriminated against her on the basis of sex. 967 F. Supp. at 440. Due to the absence of such evidence, the court found the claim "to be wholly without foundation on a motion for summary judgment," and on that basis, awarded the defendant attorney's fees. Id. This rule continues to be applied by federal district courts elsewhere in the United States awarding fees to prevailing defendants. See, e.g., Perry v. Orange County, 341 F. Supp.2d 1197, 1205 (M.D. Fla. 2004) ("Cases where findings of `frivolity' have been sustained typically have been decided in the defendant's favor on a motion for summary judgment or a Fed.R.Civ.P. 41(b) motion for involuntary dismissal [because i]n these cases, the plaintiffs did not introduce any evidence to support their claims.").

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Under these standards, an award of fees is appropriate here. As in Hughes, Coleman presented absolutely no evidence to support her Title VII claims. As the Court stated in its Memorandum and Order of Decision ("Order"): Plaintiff has set forth no evidence that demonstrates that Defendant Jabs hit her because she is a woman. Indeed, as Plaintiff herself testified, Defendant Jabs appeared to be `an equal opportunity batterer.'. . . Thus, there is no evidence that Defendant Jabs singled out women for this inappropriate treatment. (Order at p. 11-12.) Similarly, with regard to Coleman's retaliation claims, this Court stated: Plaintiff has produced no evidence that any of her complaints were based upon any . . . gender related discrimination. Nor has Plaintiff produced any evidence that Defendant AFW was apprized that her complaints were based upon such prohibited conduct. Therefore, these complaints do not constitute protected opposition. While Title VII . . . protects a person who reports unlawful discrimination from retaliation, Title VII . . . does not protect a person from retaliation who complains of actions unrelated to alleged violations of federal employment discrimination law. Accordingly, Plaintiff cannot prevail on her retaliation claims. (Id. at 13-14.) Likewise, this Court held that Coleman utterly failed to present any evidence to support her hostile work environment claims. (Id. at 14.). In summary, the Court found that all of Coleman's Title VII claims lacked foundation, just as it did in Hughes. With regard to the "settlement factors" this Court may consider as part of its attorney fee award decision, Hughes, 967 F. Supp. at 439, it is undisputed that, although counsel for AFW repeatedly explained to Coleman's counsel that there was no factual or legal support for her federal claims and repeatedly requested that Coleman drop these claims, AFW never offered to pay Coleman to settle Coleman's meritless claims against it. (Benson Aff., ¶ 4.) By contrast,

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Coleman demanded the outrageous sum of $250,000.00 to settle her claims. (Id.) Therefore, the second Hughes factor weighs in favor of a fee award to AFW. Coleman's gender discrimination and retaliation claims were disposed of far short of trial, because of their complete lack of merit. Hence, the third Hughes factor is also satisfied in this case. Because both Title VII and this Court's decisions interpreting Title VII support an award of attorneys' fees in this case, the Court should award AFW fees incurred in connection with Plaintiff's Title VII claims.

B.

AFW Should be Awarded Fees Under the ADEA.

Attorneys' fees may be awarded to a defendant forced to defend against an ADEA claim litigated in "bad faith, vexatiously, wantonly, or for oppressive reasons." Hughes, 967 F. Supp. at 440. This standard focuses on both the lack of the merit of a party's legal claim or defense, as well as the party's unjustified litigation strategy. See Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 768 (10th Cir. 1997). The Tenth Circuit has explained: First, bad faith occurring during the course of litigation that is abusive of the judicial process undisputably, at the discretion of the court, warrants sanction through the charging of fees. The second category is "bad faith in bringing an action or in causing an action to be brought." Where a party institutes an unfounded action wantonly or for oppressive reasons, or necessitates an action be filed or defends an action through the assertion of a colorless defense, that constitutes bad faith which is grounds for an award of attorneys' fees. Towerridge, Inc., 111 F.3d 758, 768 (10th Cir. 1997). This case is a textbook example of both types of bad faith.

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As the Court explained, Coleman failed to present evidence or argument to support her federal claims, including her ADEA claim. (See generally Order.) A claim that lacks factual or legal merit is frivolous. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A party who brings frivolous claims abuses the judicial process. See Olson v. Coleman, 997 F.2d 726, 729 (10th Cir. 1993). By failing to present an argument to support her ADEA claims, and thus waiving and abandoning such claims, Coleman conceded they have no merit. Moreover, as this Court recognized in its Order, even if Coleman had not abandoned these claims, they had no merit. Coleman did not show any type of discrimination, retaliation, or hostile work environment based upon her age. In fact, as the Court observed, Coleman failed to even identify the ages of the employees with whom she compared herself! (Order at p. 12.). Further, Coleman's litigation strategy was abusive. She propounded duplicative, burdensome discovery requests on AFW. Coleman forced AFW to expend substantial time and resources preparing a defense to claims that lacked any factual basis, and that Coleman should have, but did not, voluntarily dismiss prior to summary judgment proceedings. By pursuing her frivolous claims in the face of bad facts and unhelpful law, Coleman abused the judicial process by initiating and prosecuting an unfounded action for oppressive reasons. For the foregoing reasons, the Court should award AFW its attorneys' fees.11 C. Jabs Should be Awarded Fees Pursuant to C.R.S. § 13-17-201 because Coleman's Tort Claims Against Jabs were Dismissed for Lack of Subject Matter Jurisdiction.

Section 13-17-201, C.R.S., requires the award of reasonable attorneys fees when tort claims are dismissed on grounds for Rule 12(b) dismissals: The development of the facts and discovery related to all claims, such that attorney fees cannot be clearly segregated among different claims. 17
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In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorneys fees in defending the action. This section shall not apply if a motion under rule 12(b) of the Colorado rules of civil procedure is treated as a motion for summary judgment and disposed of as provided in rule 56 of the Colorado rules of civil procedure. C.R.S. § 13-17-201. This statute was enacted "to discourage unnecessary litigation of tort claims." Houdek v. Mobil Oil Corp., 879 P.2d 417, 424 (Colo. App. 1994). The Colorado Court of Appeals has held "the statutory language is mandatory and leaves this court with no discretion." Lyon v. Amoco Prod. Co., 923 P.2d 350, 358 (Colo. App. 1996) (reversing a district court order that had denied an award of attorney's fees). This provision should specifically apply here, insofar as the Court has declined to exercise supplemental jurisdiction over state law tort claims and dismissed them for lack of independent subject matter jurisdiction. The Tenth Circuit has recognized "a refusal to exercise supplemental jurisdiction means the district court is without subject matter jurisdiction . . . ." Gold v. Local 7 United Food and Commercial Workers Union, 159 F.3d 1307, 1311 n.5 (10th Cir. 1998). The dismissal of Coleman's assault and battery claims ultimately was for lack of subject matter jurisdiction. Such a dismissal is pursuant to Fed.R.Civ.P. 12(b)(1), identical to C.R.C.P. 12 (b)(1), which makes C.R.S. §13-17-201 applicable. It is not dismissal pursuant to Fed.R.Civ.P. 56 or C.R.C.P. 56. Accordingly, this Court should award Jabs reasonable attorneys' fees incurred in defending against the tort claims asserted against him.

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D.

AFW and Jabs Should be Awarded Fees Pursuant to C.R.S. § 13-17-102 and 28 U.S.C. § 1927 Because Coleman's Claims Lacked "Substantial Justification" and Her Counsel Engaged in "Improper Conduct" and "Multiplied" the Proceedings Through "Unreasonable and Vexatious" Conduct. § 13-17-102 Provides a Basis For An Award Of Fees.

Section 13-17-102, C.R.S., which applies to state claims asserted in federal court, provides a "substantial justification" test. See O'Connor v. Check Rite, Ltd., 973 F. Supp. 1010, 1019 (D. Colo. 1997); see C.R.S. § 13-17-102. This statute provides "the court shall award reasonable attorneys fees [against] an attorney or party who has brought . . . a civil action, either in whole or in part, that the court determines lacked substantial justification." See C.R.S. § 13-17-102(2) (emphasis added). "As used in this article, lacked substantial justification means substantially frivolous, substantially groundless, or substantially vexatious." See C.R.S. § 13-17102(4). Thus, this statute authorizes fees where a party pursues claims that are frivolous, groundless, or vexatious. These statutory terms are well-defined in a large body of case law. Factors to determine whether a claim is "frivolous" include whether any rational argument based on the evidence or law was made in support of the claim, whether a party prosecuted a claim in bad faith or abused discovery procedures, and whether the evidence was conflicting. Board of Cty. Comm'rs v. Eason, 976 P.2d 271, 273 (Colo. App. 1998); see also, Harrison v. Luce, 760 F. Supp. 1394 (D. Colo. 1991), aff'd, 951 F.2d 1259 (10th Cir. 1992). A claim is "groundless" if it is "not supported by credible evidence." O'Connor v. Check Rite, Ltd., 973 F. Supp. 1010, 1018 (D. Colo. 1997). A "vexatious" claim is one brought or maintained in "bad faith," which may

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include conduct which is abusive or stubbornly litigious, and may also include conduct aimed at delay or disrespectful of truth and accuracy. Eason, supra. A court may award fees incurred in connection with a substantially unjustifiable claim even where the party ultimately drops that claim; indeed, the fact that the claim was abandoned is often confirmation of its frivolous, groundless, and/or vexatious nature. In Harrison v. Luce, this Court awarded attorneys' fees and imposed joint and several liability on a party and her attorney for pursuing a claim that failed even though the plaintiff ultimately dropped the claim. 760 F.Supp. 1394, 1401 (D. Colo. 1991), aff'd, 951 F.2d 1259 (10th Cir. 1992). This Court imposed liability for fees from the time the parties became aware that the claim would fail through the date that the plaintiff ultimately dropped the claim. Id. Section 13-17-102(4), C.R.S., provides an additional basis for recovering fees. The statute provides that "[t]he court shall assess attorney fees if . . . the action, or any part thereof, was interposed for delay or harassment or if it finds that an attorney or party . . . unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under the Colorado rules of civil procedure. . . ." (Emphasis added.). Section 13-17-103(1), C.R.S., requires the Court to consider the following factors in making an award pursuant to C.R.S. § 13-17-102:: (1) In determining the amount of an attorney fee award, the court shall exercise its sound discretion. When granting an award of attorney fees, the court shall specifically set forth the reasons for said award and shall consider the following factors, among others, in determining whether to assess attorney fees and the amount of attorney fees to be assessed against any offending attorney or party:

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(a) The extent of any effort made to determine the validity of any action or claim before said action or claim was asserted; (b) The extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses found not to be valid within an action; (c) The availability of facts to assist a party in determining the validity of a claim or defense; (d) involved; The relative financial positions of the parties

(e) Whether or not the action was prosecuted or defended, in whole or in part, in bad faith; (f) Whether or not issues of fact determinative of the validity of a party's claim or defense were reasonably in conflict; (g) The extent to which the party prevailed with respect to the amount of and number of claims in controversy; (h) The amount and conditions of any offer of judgment or settlement as related to the amount and conditions of the ultimate relief granted by the court. In this case, the presence of a significant number of the above factors supports an award of fees. In addition, these factors, although specifically relevant to an award of fees under C.R.S. § 13-17-101 et seq., inform an analysis of a request for an award of fees under 28 U.S.C. § 1927, as discussed below. With respect to AFW and factor (a), there is no evidence that Coleman's counsel sufficiently investigated the merits of the claims against AFW before filing them. There is no evidence that, prior to filing suit, Coleman's counsel had factual support for her claims that AFW discriminated or retaliated against her or subjected her to a hostile work environment on the basis

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of gender or age. In fact, when the EEOC dismissed Coleman's charge, pursuant to the Regulation that requires dismissal of a claim that, on its face, fails to state a claim, it provided her with notice that her claims lacked merit. 29 C.F.R. § 1601. Further, as demonstrated by this Court's Order, there was no basis for these claims. Nor is there any reason to conclude her counsel investigated whether she had exhausted her administrative remedies ­ a jurisdictional prerequisite to suit ­ on all the federal claims she chose to assert. Fees are warranted because "as an attorney, he reasonably should have known his action was substantially frivolous and groundless." O'Connor v. Check Rite, Ltd., 973 F.Supp. 1010, 1019 (D. Colo. 1997). With respect to Jabs and factor (a), information that was available to Coleman's counsel would have put a reasonable attorney on notice of the frivolousness and groundlessness of the claims. Prior to filing suit, Coleman's counsel could not have had factual or legal support to claim, for example, that Jabs had engaged in outrageous conduct, or that Jabs had been involved in the decision to terminate Coleman's employment. Likewise, Coleman's attorney had sufficient information to put him on notice that any assault or battery claim would be barred by the co-employee immunity rule of the Colorado workers compensation laws ­ he pled the very facts that justified application of this defense. (See Jabs' Brief in Support of Motion for Summary Judgment, at p. 36.). With respect to AFW and factor (b), AFW's counsel repeatedly requested that Coleman drop these meritless claims. Thus, pursuit of these claims was vexatious and unnecessarily multiplied the proceedings. Moreover, Coleman's stubborn litigiousness required full briefing on summary judgment, additional briefing on Reply, and the motion to dismiss for lack of subject matter jurisdiction.

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With respect to Jabs and factor (b), Jabs' counsel repeatedly urged that Coleman drop her unnecessary and baseless claims against Jabs, emphasizing the Coleman could receive complete relief by exclusively pursuing her claims against AFW. (See Volin Aff., ¶ 11.). As explained above, Coleman was precluded from obtaining double recovery on claims arising from the same operative facts and seeking identical relief. See Mason, 115 F.3d at 1459. Thus, pursuit of these claims was vexatious and unnecessarily multiplied the proceedings. Moreover, Coleman's stubborn litigiousness all the way through the summary judgment briefing shows that Coleman was determined to force Jabs to incur attorneys' fees, even after she was confronted with the factual and legal defects in her claims. With respect to AFW and factor (c), Coleman never identified, at any time during the course of litigation, facts in the record to support her allegations that she was subjected to improper treatment on the basis of gender or age. Further, she has never denied engaging in the misconduct that led to her termination. With respect to Jabs and factor (c), Coleman had access to facts suggesting that her claims against Jabs would fail, even before the lawsuit was filed. First, as noted above, she has never denied engaging in the misconduct that led to the termination of her employment. Second, she specifically pled the very facts that support application of the co-employee immunity rule. (See Complaint, ¶ 43; Jabs' Brief in Support of his Motion for Summary Judgment, p. 36.). With respect to both AFW and Jabs and factor (d), both AFW and Jabs likely are in a financially stronger position than Coleman. However, the parties stand equal before the law, and their business success should not provide Coleman with the right to assert claims against them in hopes of winning a "litigation lottery," without bearing financial responsibility for her actions.

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With regard to factor (e), as described in the Introduction and Factual Background above and highlighted here, Coleman and her counsel pursued this action in bad faith. This bad faith behavior involved not only inappropriate fact-finding techniques, but also inadequate factual support and legal argument (or lack thereof). Had Coleman's counsel sufficiently inquired into the basis for Coleman's claims, he would have discovered no foundation upon which to pursue such claims. Coleman's counsel persistently pursued these claims notwithstanding the total absence of factual support for any purported legal theory, only to ultimately abandon and waive the federal claims in Coleman's Response to Defendant's Motion for Summary Judgment, and drop several of her state law claims. Coleman's "argument" is both stubbornly litigious and frivolous. Coleman also unnecessarily multiplied proceedings by pursuing her claims, notwithstanding her failure to identify any factual support or provide any substantially justified argument, and by forcing AFW and Jabs to expend numerous resources responding to Coleman's discovery requests and defending against these substantially unjustified claims. (See Introduction and Factual Background, above.). This Court has ruled that fees are warranted where an attorney "reasonably should have known his action was substantially frivolous and groundless. O'Connor v. Check Rite Ltd., 973 F. Supp 1010, 1019 (D. Colo. 1997). Because Coleman persistently refused to drop her claims against AFW and Jabs, each of them was forced to incur the costs of conducting unnecessary depositions and responding to Coleman's extensive and purposeless discovery requests. After propounding extensive discovery, presumably to support her claims against them, she failed to provide one citation to the record or sufficient legal support for her claims. Failing to offer any factual support or a

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good faith legal argument in support of her claims certainly constitutes unreasonable, vexatious conduct justifying an award of attorneys' fees. Only after forcing Jabs to brief fully his argument that the Court should grant summary judgment on Coleman's claim for intentional infliction of emotional distress did Coleman drop this claim. Further, in her response to Jabs' Motion for Summary Judgment, Coleman did not include any citation to the record, nor did she include any citation to law on the merits of her claims. Not only does Coleman's argument reveal its lack of merit, but it reveals Coleman's awareness of its lack of merit. The Court need only note Coleman's half-hearted pursuit of claims unsupported by the record or legal authority to determine that these claims lacked reasonably substantial justification. Coleman's "argument" is both stubbornly litigious and frivolous. Although the Court did not rule on the merits of Coleman's state law claims against Jabs, the analysis in the Court's Order concerning Coleman's waiver and abandonment of her federal claims against AFW is instructive. When Coleman employed a similar approach with regard to her federal claims, the Court held that she "waived and abandoned her federal law claims." (Order at p. 11.). An "argument" so utterly unsupported as to constitute waiver and abandonment certainly lacks substantial justification. As Coleman waived and abandoned her federal claims by failing to include any citation to the record and by providing only one legal citation, Coleman likewise waived and abandoned her state law claims by providing even less support for those claims, notwithstanding the extensive discovery to which Coleman forced Jabs to respond.

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Even if the Court concludes that the meager argument Coleman offered was not a waiver, it lacked "substantial justification" on the merits. Not a single case cited, and not a single citation to the record, hardly is substantial justification. On the jurisdictional issue, there was only one case cited, but Jabs cited it in his brief, and so it added nothing. Coleman's bad faith pursuit of her claims lacked substantial justification. With respect to AFW and factor (f), there were simply no facts to support Coleman's claims, let alone any conflicting issues of fact. With respect to Jabs and factor (f), as set forth above, none of the critical facts relating to the claims against Jabs were reasonably in conflict. As set forth above in the discussion of factors (a) and (c), key facts favorable to Jabs (and fatal to Coleman) were admitted or pled by Coleman. With respect to AFW and factor (g), the Court granted summary judgment on all Plaintiff's federal law claims, holding that Plaintiff waived these claims. The court further held that, even if Plaintiff's wholly inadequate response did not constitute a waiver, the claims failed on the merits. This factor is satisfied here as well. With respect to Jabs and factor (g), Jabs has completely prevailed and Coleman has achieved nothing on her multiple tort claims against him. Factor (h) heavily weighs in favor of an attorneys' fees award. Coleman demanded $250,000.00 to settle her claims. (See Benson Aff., ¶4.). AFW and Jabs never offered her a dime, but Jabs did offer to forego pursuit of costs and attorneys' fees in exchange for Coleman's dismissal of her claims against him. AFW offered nothing. That the Defendants never offered to

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settle these frivolous claims, and that the Court dismissed this action in its entirety, highlights the impropriety of Coleman's stubbornly litigious tactics and the frivolity of her claims.

28 U.S.C. § 1927 Provides A Basis For An Award of Fees. These Colorado statutes are similar in many respects to 28 U.S.C. § 1927, which provides for the assessment of attorneys' fees when attorneys unreasonably and vexatiously act to multiply the proceedings: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct. 28 U.S.C. § 1927. Pursuant to this rule, "the court must find, first, that the attorney engaged in `unreasonable and vexatious' conduct, and second, that the `unreasonable and vexatious' conduct `multiplied the proceedings.'" Sangui Biotech Intern., Inc. v. Kappas, 179 F.Supp.2d 1240, 1243 (D. Colo. 2002). This provision, "as contrasted with the courts' more general disciplinary powers, focus[es] upon conduct in specific litigation that imposes unreasonable and unwarranted burdens on the court and opposing parties." Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987). In Braley, the Tenth Circuit set forth a full explanation of the rationale justifying an award of fees pursuant to Section 1927: An attorney becomes subject to § 1927 sanctions by acting recklessly or with indifference to the law, as well as by acting in the teeth of what he knows to be the law.... A lawyer's reckless indifference to the law may impose substantial costs on the adverse party. Section 1927 permits a court to insist that the attorney bear the costs of his own lack of care.

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We recognize the importance of ensuring that § 1927 "in no way will dampen the legitimate zeal of an attorney in representing his client." We have stated that the "power to assess costs against an attorney under § 1927 ... is a power that must be strictly construed and utilized only in instances evidencing a `serious and standard [sic] disregard for the orderly process of justice.'" Our caution against imposing § 1927 sanctions in inappropriate cases, however, should not prevent us from awarding sanctions for conduct which manifests intentional or reckless disregard of the attorney's duties to the court. Alexander argues that sanctions under either Rule 38 or § 1927 should be imposable against an attorney personally only for subjective bad faith. We disagree. That standard is virtually impossible to apply. Even under the courts' inherent powers, the Supreme Court has only required conduct that "constituted or was tantamount to bad faith." Subjective good faith ought not to be an infinitely expansive safe harbor to protect an attorney who brings an action that a competent attorney could not under any conceivable justification reasonably believe not frivolous. Although subjective good faith on the part of a non-attorney party appellant may in some instances excuse otherwise unreasonable conduct, we are entitled to demand that an attorney exhibit some judgment. To excuse objectively unreasonable conduct by an attorney would be to state that one who acts "with `an empty head and a pure heart' is not responsible for the consequences." We have repeatedly expressed our concern with the unnecessary burdens, both on the courts and on those who petition them for justice, that result from unreasonable, irresponsible and vexatious conduct of attorneys as well as parties. The power to assess costs, expenses, and attorney's fees against an attorney personally in the appropriate case is an essential tool to protect both litigants and the ability of the federal courts to decide cases expeditiously and fairly. The assessment of excess costs, expenses, or attorney's fees is a relatively mild sanction, especially when compared to dismissal. Such assessments are flexible enough to serve our paramount objective of administering and tailoring a broad range of available sanctions "in a manner designed to effectuate the purpose of [each] sanction and in order of their seriousness as sound discretion dictates." We believe the proper standard under either Rule 38 or § 1927 is that excess costs, expenses, or attorney's fees are imposable against an attorney personally for conduct that, viewed objectively, manifests either intentional or reckless disregard of the attorney's 28

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duties to the court . . . . This appeal appears to have been frivolously and vexatiously undertaken ab initio. Braley v. Campbell, 832 F.2d 1504, 1510-1512 (10th Cir. 1987) (internal citations omitted). Sanctionable conduct under this statute can arise in a number of forms. One form of multiplying the proceedings is when additional unnecessary defendants are named as parties. "It is well established that `double recovery is precluded when alternative theories seeking the same relief are pled and tried together . . . . If a federal claim and a state claim arise from the same operative facts, and seek identical relief, an award of damages under both theories will constitute double recovery." Mason v. Okla. Turnpike Auth., 115 F.3d 1442, 1459 (10th Cir. 1997) (citations and internal quotations omitted). By naming an unnecessary defendant, and then propounding duplicative and unreasonable discovery requests, only to seek relief already available by virtue of federal law claims asserted against another related party, an attorney engages in vexatious and unreasonably conduct that multiplies the proceedings and is properly subject to an award of attorneys fees.12 This occurred here, as set forth above. Discovery abuse is another common form of multiplying the proceedings resulting in a fee assessment under Section 1927. In Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266-68 (10th Cir. 1995), the Tenth Circuit affirmed an award of attorneys' fees based on tactics that were "interposed for the improper purposes of harassment, unnecessary delay, and to increase the cost of litigation by multiplying the proceedings unreasonably and vexatiously in violation of . . . 28 U.S.C. § 1927." Id. at 265. This also occurred here.

Pursuit of tort claims against an individual defendant when claims against the employer could have provided full relief is a factor that justifies an award of fees under Colorado law, according to Colorado state courts. ( See Order in Kennedy v. Lubar , Arapahoe County District Court, Case No. 00-CV-3465, dated April 14, 2005, attached as Exhibit C.). 29

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Third, "the continued prosecution of an action after it has become apparent that it is meritless will warrant sanctions under § 1927. Indeed, an inference of bad faith can be drawn from the fact that an attorney prosecutes a meritless claim or continues to prosecute a claim after its lack of merit becomes apparent." Shackelford v. Courtesy Ford, Inc., 96 F. Supp. 2d 1140, 1144-45 (D. Colo. 2000). In Shackelford, it became clear after the plaintiff's deposition that her claim lacked merit. Id. at 1146. Further, in that case, defendant's counsel wrote plaintiff's counsel a letter further emphasizing that there was no basis for plaintiff's claim. Id. at 1145-46. Nonetheless, the plaintiff pursued her claim forcing defendant to defend against a frivolous claim from the date of receipt of counsel's letter until the claim was ultimately dismissed. Id. at 1146. This Court held that, "by pursuing a frivolous claim after being warned by defense counsel after it was clear that the claim had no basis, continued litigation of the case could no longer be described as zealous representation of the client. Rather, it is appropriately described as a serious and studied disregard for the orderly processes of the court." Id. at 1147. Again, the same type of conduct occurred here. Thus, where an attorney asserts unnecessary claims against unnecessary parties, or abuses discovery procedures, or pursues meritless claims, that attorney engages in unreasonable and vexatious conduct. Such conduct inevitably increases the cost of litigation by multiplying the proceedings and justifies an award of fees. As set forth above, Coleman's counsel engaged in all these types of such conduct here.

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In summary, because her claims lacked substantial justification, and because of the improper, unreasonable, and vexatious tactics of both Coleman and her counsel, the Court should award AFW and Jabs their reasonable attorneys' fees.

III.

THE COURT SHOULD AWARD AFW AND JABS REASONABLE ATTORNEYS' FEES AGAINST COLEMAN AND HER COUNSEL, JOINTLY AND SEVERALLY. "When a court determines that reasonable attorney fees should be assessed, it shall

allocate the payment thereof among the offending attorneys and parties, jointly or severally, as it deems just, and may charge such amount, or portion thereof, to any offending attorney or party." C.R.S. § 13-17-102 (emphasis added). By naming Jabs as a defendant, asserting frivolous claims, engaging in abusive discovery, repeatedly and deliberately engaging in tactics that increased Defendants' attorneys fees, refusing to accept Jabs' offer to forego pursuit of fees in exchange for dismissal of Coleman's claims against Jabs, and by pursuing meritless claims only to abandon them, Coleman13 and her counsel engaged in the type of stubbornly litigious, unreasonable, and vexatious behavior that justifies an award of fees under every applicable standard, and the award should be made jointly and severally.

Coleman's attorney has informed Jabs' counsel that Coleman has moved to Virginia and permanently left Colorado. Coleman's new domicile means that collection of any award of attorneys' fees from her would be further complicated, and provides additional support for imposition of joint and several liability against both Coleman and her counsel. 31

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IV.

CONCLUSION For the foregoing reasons, AFW and Jabs respectfully request that the Court award them

their reasonable attorneys' fees incurred in defending against Coleman's claims, in an amount to be determined at a later time, if necessary. Respectfully submitted this 18th day of July 2005.

s/ Gary J. Benson Gary J. Benson, Esq. Sharlene Aitken, Esq. DWORKIN, CHAMBERS & WILLIAMS, P.C. 3900 East Mexico Avenue, Suite 1300 Denver, CO 80210 Telephone: 303-584-0990 Facsimile: 303-584-0995 E-Mail: [email protected]
ATTORNEYS FOR DEFENDANT AMERICAN FURNITURE WAREHOUSE

s/ Andrew W. Volin Andrew W. Volin, Esq. SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Telephone: 303-297-2900 Facsimile: 303-298-0940 E-Mail: [email protected]
ATTORNEYS FOR DEFENDANT JACOB JABS

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CERTIFICATE OF SERVICE I hereby certify that on this 18th day of July, 2005, I electronically filed the foregoing DEFENDANTS' MOTION FOR ATTORNEYS' FEES with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Lonn M. Heymann, Esq. (via e-mail: [email protected]) WALTER L. GERASH LAW FIRM, P.C. 1439 Court Place Denver, CO 80202

s/Marilyn Badolato, Legal Assistant to Andrew W. Volin SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Ofc: 303-297-2900 Fax: 303-298-0940 E-Mail:[email protected]

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