Free Motion for Attorney Fees - District Court of Colorado - Colorado

Case 1:03-cv-02474-WYD-PAC

Document 151-2

Filed 02/28/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-02474-WYD-PAC CHARLOTTE SCHNEIDER and DEAN WYMER, Plaintiffs, v. LANDVEST CORPORATION, a Kansas corporation, And DAVID MASON, individually Defendants. _____________________________________________________________________ Affidavit of Donna Dell'Olio

I, Donna Dell'Olio, being duly sworn, state and depose as follows: 1. I am lead counsel in the above case. 2. My relevant qualifications and experience are as follows: I have practiced law in Colorado for more than 25 years. I have tried many civil lawsuits in state and federal court, including trial of cases under the federal Fair Labor Standards Act. 3. For the last fifteen years my practice has been primarily focused on the federal Fair Labor Standards Act. I represent employers and employees. My billed rate for employers is $250.00 an hour, paid at the time work is performed. My work for employers usually involves compliance and strategies for avoiding litigation. My work for employees is always performed on a contingent fee basis. Non exempt employees

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are never, in my experience, able to pay an attorney an hourly fee. They are usually unable to pay the actual costs of litigation. I usually represent individual employees. I have represented small groups of employees. These are collective actions under 29 U.S.C. §216 (b). The largest group I have represented was a group of about 85 employees. That case ended in a six week trial in federal court before a special master. Bayles v. American Medical Response, Inc., 94B2300. Fees awarded in collective actions are based on the hours worked by the lawyer and the reasonable hourly rate. There is no windfall or additional compensation awarded to the lawyer for representing a class of employees. 4. I filed the above action as a collective action because Landvest was

engaging in an illegal practice which affected a class of workers. The practice was requiring non exempt employees to create false time records which recorded only 4 hours of work a day and not paying for all hours worked. 5. Under the Fair Labor Standards Act there is a rolling statute of limitations

which doesn't stop until a class member opts in to the action. A notice to a class can't be sent until the Court has authorized notice to the class. It takes between 60 and 90 days after a motion to authorize notice to a class is granted to have the statute tolled for individual class members by having them file individual consents with the Court. 6. Well after filing this action, and while the motion to authorize notice to a

class was pending, I learned that Landvest had changed its record keeping practices in the fall of `03 to require that actual hours worked be recorded by resident managers on

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time sheets. I withdrew the Motion to Authorize Notice to the Class in the fall of `04 for two reasons. First, if the Court had granted the motion in the fall of `04, by the time consents were mailed and filed by individual class members, there would have only been 6 to 9 months of wages owed within the statute of limitations. Second, I found that it was very difficult to locate resident managers who no longer worked for Landvest. Even with disclosure of last known addresses of witnesses by Landvest the resident managers could not be located. The administration of the class as a private collective action was not practical. I have deducted from this fee affidavit all time spent on the Motion to Authorize Notice to the Class. I performed the following work in this case:
Date Task Hours Dollars

10/26/2003 12/9/2003 1/7/2004 1/8/2004 1/9/2004 1/15/2004

Complaint drafting. Call from client. Preparation of 26(f) and call to Kutak Rock. Telephone conversation with Charlotte. 26(f) telephone meeting and preparation. Scheduling order; Damage calculations; Telephone conference with client. Damage calculations. Work on 26(a)'s. Call to Stacia Boden re: scheduling order and spoke to secretary. Worked on scheduling order. Worked on scheduling order.

2.50 0.08 0.75 0.16 0.50

$ 625.00 $ 20.00

$ 187.50 $ 40.00

$ 125.00

2.16 0.25 0.33 0.16

$ 540.00 $ 62.50 $ $ 82.50 40.00

1/16/2004 1/20/2004

1/22/2004

0.75 0.50

$ 187.50 $ 125.00

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1/23/2004 1/29/2004

Finalize scheduling order; Fax and e-mail. 26(a)s; Telephone conference with Charlotte; Preparation of documents, damage calculations. Scheduling Conference. First Set of Requests for Production and Interrogatories. Conversation with Mark Willis re: interviews. Check file plan for investigation; e-mails to Stacia Boden.

0.50 4.00

$ 125.00 $1,000.00

1/29/2004 2/2/2004

0.25 2.16

$

62.50

$ 540.00

2/6/2004 2/16/2004

0.25 0.50

$

62.50

$ 125.00

2/17/2004

Read and responded to e-mail. 0.08 Telephone conference with Court and Stacia Boden; Attempt to arrange telephone interviews for 15th . 0.50 Respond to e-mail from client. 0.25 0.25 0.25 0.25 2.00 0.50

$

20.00

$ 125.00 $ $ $ $ 62.50 62.50 62.50 62.50

2/27/2004 3/1/2004

Letter to Rupe; E-mail to Schneider. Call to client; E-mail to Cari re: depositions. Read Cari's e-mail and sent e-mails to Charlotte. Confidential Settlement Statement. Opposition to Motion to continue Settlement Conference. Respond to e-mails from Boden. Call from client re: depositions. Attended settlement conference. 2.5 travel @ $125.00, 1.5 attend conference Meeting with Clients for deposition preparation. Additional research on inclusion of lodging in regular rate. Read Motion for Protective Order and Motion Pursuant to 12(c); Research rules. Prepare 26(e) disclosures. 2nd Set of Requests for Production and

3/8/2004

$ 500.00 $ 125.00

3/9/2004 3/9/2004 3/11/2004

0.25 0.16

$ $

62.50 40.00

4.00 2.00 0.75

$ 687.50 $ 500.00 $ 187.50

3/12/2004

3/13/2004

0.75 1.16 1.25

$ 187.50 $ 290.00 $ 312.50

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3/14/2004

Research and write opposition to Motion for Protective Order.

4.00

$1,000.00

3/15/2004

Deposition of Charlotte in Denver (worked with 11.66 clients during lunch and before depos). 2.5 hours travel @ $125.00/hr 9.16 @ depo and working with clients Deposition of Dean in Denver. (2.5 hours travel 10.00 @ $125.00, 8 hours at depo. (worked with clients over lunch and before depo.) Letter re: deposition schedule. Second set of Interrogatories and Requests for Production. Motion to Amend and letter to Stacia. Call to client, answer questions re: depositions. Fax from Boden - Reviewed cases; telephone call with Boden. 0.50 2.00

$2,602.50

3/16/2004

$2,312.50

3/17/2004 3/18/2004

$ 125.00 $ 500.00

3/22/2004 4/1/2004

0.33 0.16 0.50

$ $

82.50 40.00

$ 125.00

4/3/2004

Deposition preparation; Questions for Mason, Cramer and Murray. Questions for Mason. Mason deposition. Cramer deposition preparation. Cramer Deposition. Murray deposition preparation.

3.00

$ 750.00

4/5/2004 4/6/2004

1.00 3.00 1.00 2.50 1.50

$ 250.00 $ $ $ $ 750.00 250.00 625.00 375.00

4/7/2004

Murray deposition. 1.25 Preparation for and deposition of Louise Adolphson.1.50 .75: Review of documents produced at deposition; 1.16 .33: Letters to Rupe and Boden x 2. 3rd request for production of documents. 0.75 0.50

$ 312.50 $ 375.00 $ 290.00

4/8/2004

$ 187.50 $ 125.00

4/9/2004

.25: Review discovery requests; .25: E-mail to client and call from client re: discovery requests.

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Finalize two letters and third discovery request. 4/12/2004 4/22/2004 Letter to Boden and Rupe re: Motion to Compel. Read e-mail from Charlotte; Respond to e-mail. E-mail from Boden re: confidentiality order. Read order, made changes and e-mailed back. 4/26/2004 4/27/2004 Worked on protective order. Worked on letter to Stacia; Revised protective

0.50 0.66 0.33 0.33

$ 125.00 $ 165.00 $ $ 82.50 82.50

0.25 1.50

$

62.50

$ 375.00

order.
5/3/2004 Motion to Modify the Protective Order. Finalize Reply in Opposition to Motion To Authorize Notice. 5/4/2004 5/7/2004 5/27/2004 Motion to Compel Research and Writing. Worked on discovery responses. Preparation for hearing and Motion to Continue discovery deadline. Conversation with Stacia Boden re: Motion to Compel. Conversation with client re: documents. Telephone call with Alan Rupe and Stacia Boden re: discovery. Trip to Denver to review records. 6/14/2004 Message for Alan Rupe. .25: Review Opposition to Motion to Compel; .16: Call to Court re: hearing; .16: Read e-mail. 6/23/2004 Reviewed documents produced and two letters re: failure to produce documents. 6.25 0.50 $1,562.50 $ 125.00

6.00 3.50 0.75

$1,500.00 $ 875.00 $ 187.50

6/1/2004

0.16

$

40.00

6/10/2004

0.33 0.33

$ $

82.50 82.50

5.00 0.16 0.57

$1,250.00 $ $ 40.00 142.50

5.50

$1,375.00

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6/24/2004

E-mails from Stacia Boden - read and respond; Review documents and document requests with client. Prepare Reply to Response to Motion to Compel and attachments. Work with Charlotte in reviewing documents.

1.00

$ 250.00

6/25/2004

3.25

$ 812.50

1.00 0.75

$ 250.00 $ 187.50

6/28/2004

Letter to Alan Rupe re 2nd and 3rd set of interrogatories. Call from Alan Rupe; Call to Clerk. Review responses to Requests for Production of Documents; Documents produced. Work with documents produced; Analyze pay records. Document review and analysis. Document review and analysis. Review of documents of Vol. 5 and summarize.

6/29/2004 7/12/2004

0.32 1.33

$

80.00

$ 332.50

7/26/2004

5.00

$1,250.00

7/27/2004 7/28/2004 8/5/2004 8/6/2004

4.00 0.75 1.00

$1,000.00 $ 187.50 $ 250.00 $ 500.00

Review of documents produced pursuant to 26(e); 2.00 Letter re: 1999 DOL Audit to Rupe. Worked on final Pre-trial Order. Motion for Extension of Time and file Exhibit Register. Worked on final Pre-Trial Order; Telephone call with Charlotte and numerous e-mails. Telephone call with Charlotte; Worked on final Pre-Trial Order; Identify witnesses; review order. Preparation of Exhibit List; Review all documents. (Sunday - 5 hrs.; Monday - 2.5 hrs.) Attend final Pre-Trial Conference. (2 hrs. driving time @ $125.00; .5 hrs at hearing) Two telephone calls to Rupe. 1.33 1.00 1.30 1.00

9/7/2004 9/9/2004

$ 332.50 $ 250.00 $ 325.00 $ 250.00

9/9/2004

9/13/2004

7.50

$1,875.00

9/14/2004

2.50

$ 375.00

9/21/2004

0.16

$

40.00

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11/8/2004

Objections to exhibits. Review all of defendant's exhibits for objections.

0.25 0.33

$ $ $

62.50 82.50 250.00

11/30/2004

Prepare questionnaire for interviews with resident 1.00 managers; Instructions to paralegal; Review with Ian. Review previous correspondence and e-mails re: availability of resident managers; Instructions to paralegal. Review of all discovery to respond to e-mail from Boden re: SS records; E-mail to Boden re: same. Legal research on procedure and case law for obtaining social security records. Finish research on social security records and letter to Stacia re: mail to Schneider. Trial Preparation; Review final Pre-Trial Order and 26(a) for witnesses. Meeting with Charlotte. Find duplicates - eliminate duplicate exhibits; Review all Plaintiffs' exhibits; review to rule outs; Orders for preparation for trial preparation conference; Exhibits to Stacia re: depositions and subpoenas. Work on findings of fact and telephone conversation with Charlotte. 0.58

12/1/2004

$

145.00

7/13/2005

1.41

$

352.50

8/10/2005

2.16

$

540.00

8/11/2005

0.75

$ 187.50

8/16/2005 8/16/2005 8/30/2005

0.75 0.75 6.50

$ 187.50 $ 187.50 $1,625.00

1.33

$ 332.50

8/31/2005

Work on review of defendant's exhibits and cross of Mason. Work on review of exhibits; Cross of Mason. Prepare Findings of Fact; Review client's deposition. Finish review of Charlotte's deposition; Work on Findings of Fact and Conclusions of Law.

2.25

$ 562.50

9/1/2005 9/4/2005

2.16 2.50

$

540.00

$ 625.00

9/6/2005

4.25

$1,062.50

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9/7/2005

Work on Findings of Fact; Review Mason and Schneider depositions; Cross of Mason and direct of Charlotte. Work on Findings of Fact; Met with client; Cross of Mason; Direct clients; Reviewed defendant's exhibits. Telephone calls attempting to locate witnesses.

7.00

$1,750.00

9/8/2005

6.50

$1,625.00

0.75 1.08

$ 187.50 $ 270.00

9/9/2005

Review Murray deposition; Review site inspection reports. Spoke to Charlotte; Research on Contract Law; Review contracts; Work on Findings of Fact.

5.00

$1,250.00 $1,312.50

9/11/2005

Read Cramer's deposition; Worked on Findings 5.25 of Fact; Prepared documents for trial preparation conference; Spoke to Boden; Read and highlighted Louise Adolphson's deposition. Work on findings of fact; Telephone conversation. 2.50 8.00

$ 625.00 $2,000.00

9/12/2005

Work on findings of fact, conclusions of law; Locate witnesses; Lexis research for conclusions; Coordinate with Boden. Drive to Denver 3 hrs @ $125.00; prepare for and attend Final Trial preparation conference 1.5 hrs. Work on findings of fact and underlining defendant's etc. all filings requested by court.

9/13/2005

4.50

$ 750.00

4.16

$1,040.00

9/14/2005

Work on damages comparing 26(e)s to deposition 1.00 testimony; Telephone call to Charlotte. Review final pre-trial order and defendants' witness list; prepare to meet with Charlotte; Meeting with client; Review payroll records. Conversation with Brad, Investigator and fax to him re: investigations; Conversation with Boden re: designations. Counter designations on Murray. 4.00

$ 250.00

9/15/2005

$1,000.00

9/16/2005

1.16

$ 290.00

0.25

$

62.50

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9/17/2005 9/19/2005 9/20/2005

Work on Charlotte's direct. Work on direct of Charlotte; Review deposition designations for Cramer and Adolphson. Review all discovery responses and defendant's exhibits; Work on Charlotte's Direct. Direct of Murray and Dean. Prepare Charlotte. Meeting with Dean; Preparing direct for Dean. Finalized direct of Dean and Charlotte. Formulate questions for Charlotte and Mason; Review all discovery. Formulate questions for Mason and Etter; Review deposition. Formulate questions for Marc; Review all pleadings.

4.00 2.00 6.75

$1,000.00 $ 500.00 $1,687.50

9/21/2005 9/22/2005

8.50 3.50 3.00 2.75 2.00

$2,125.00 $ 875.00 $ 750.00 $ 687.50 $ 500.00

9/23/2005

2.42

$ 605.00

3.25

$ 812.50

9/24/2005 9/25/2005

Work on cross. Order for Judgment; Organization; Work on direct questions. Trial preparation at Courthouse; Trial; Evening trial preparation. Trial; Work evening - trial preparation Trial Preparation; Trial. Work on records; Calls to Louise and Earl Adolphson; Review all of 2002. Calls to Witnesses; Work with records; Prepare for Etter. Prepare for cross of Etter; Work on revised Findings of Fact. Work in library on cross of Etter; Preparation.

7.42 3.66

$1,855.00 $ 915.00

9/26/2005

10.75

$2,687.50

9/27/2005 9/28/2005 9/30/2005

11.00 8.66 1.50

$2,750.00 $2,165.00 $ 375.00

10/2/2005

2.25

$ 562.50

10/3/2005

5.50

$1,375.00

10/4/2005

4.25

$1,062.50

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10/5/2005

At courthouse - preparation with Ian; Trial ; Work 14.00 on closing. Finish trial. Telephone call with Rupe re: Settlement. Rewrite Findings of Fact. Work with transcript in Denver. 3 hrs travel @ $125.00 and 6.5 hrs working with transcript. Worked on Findings of Fact. Worked on Findings of Fact. Worked on Findings of Fact. Worked on Findings of Fact. Reviewed pleadings; Review rules on affirmative defenses; Read defendants proposed findings of fact; Conference with Craig and Ian on judicial estoppel. 4.00 0.16 4.00 9.50

$3,500.00

10/6/2005 10/7/2005 10/17/2005 10/19/2005

$1,000.00 $ 40.00

$1,000.00 $2,000.00

10/20/2005 10/22/2005 10/23/2005 10/24/2005 10/25/2005

1.00 6.50 8.75 12.00 1.00

$ 250.00 $1,625.00 $2,187.50 $3,000.00 $ 250.00

10/26/2005

Telephone conference with client; Review findings 2.16 proposed by defendants; Research on judicial estoppel. E-mails and Telephone calls with Client; Finalize Motion to Supplement record; Motion to Submit Supplemental Findings of Fact re: estoppel. 3.33

$

540.00

10/28/2005

$ 832.50

11/1/2005

Letter to Stacia Boden; E-mails and telephone call 2.33 with clients re: SSA records. Research and writing brief for District Court on damages. Finalize brief and proposed order Letter to Rupe and Boden re misleading citations Read letter from Rupe, additional research, read all cases cited letter to Rupe. 4.25

$ 582.50

12/28/2005

$1,062.50

12/29/2005 1/10/06 1/12/06

2.00 0.75 2.33

$ 500.00 $ 187.50 $ 582.50

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2/13/06 2/17/06 2/18/06 2/19/06

Letter to Rupe and Boden encouraging settlement 1.33 Call to Boden re settlement Research on Motion for Attorneys fees Review and check all paralegal's calendaring for post judgment Reviewed all time sheets, checked against files for accuracy Worked on brief, affidavit and exhibits for Motion for Attorney's. Finalize brief, instructions to paralegal, call to Schlabs, check affidavit. Total Compensable $100,285.00 0.16 2.75 0.50

$ 332.50 $ 40.00

$ 687.50 $ 125.00

2/20/06

4.00

$1,000.00

2/21/06

3.33

$ 832.50

2/22/06

2.66

$ 665.00

Excluded as Non Compensable: Prepare notice to class and consent form. Update research on notice under 216(b). Call to Boden re: depositions and position on notice to class. Motion to Authorize Notice and Affidavit; Research and Write. Finalize Motion to Authorize Notice. Worked on Reply to Response to Motion to Authorize Notice. E-Mail to Rupe; Dictate motion to withdraw re: authorization notice Total Non compensable $3,372.50 1.33 1.50 0.08 5.75 0.50 4.00 0.33 $ 332.50 $ 375.00 $ 20.00

$1,437.50 $ 125.00 $1,000.00 $ 82.50

7.

I have not included in this affidavit time spent on prefiling investigation,

research or correspondence with Landvest.

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Date this 28th day of February, 2006 s/ Donna Dell'Olio Donna Dell'Olio, #10887 Cornish & Dell'Olio 431 N. Cascade Avenue, Suite 1 Colorado Springs, CO 80903 Telephone: (719) 475-1204 FAX: (719) 475-1264 E-mail: [email protected] Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on this 28th day of February, 2006, I electronically filed the foregoing Affidavit of Donna Dell'Olio with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: Alan Rupe Stacia G. Boden Heather Davis [email protected] [email protected] [email protected]

s/Esther Kumma Abramson Esther Kumma Abramson

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