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

Case 1:03-cv-01973-PSF-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-1973-PSF-MJW (Consolidated with 04-cv-02112-PSF-MJW) THE WALKER GROUP, INC. Plaintiff, v. FIRST LAYER COMMUNICATIONS, INC. and J.E.H. KNUTSON Defendants.

PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES AND COSTS

Plaintiff The Walker Group, Inc. ("Walker Group") submits this application for attorneys' fees pursuant to Fed. R. Civ. P. 37 and the direction of the Court in the Order Regarding Plaintiff Walker Group's Motion to Compel and for Sanctions ("Order") entered on August 11, 2006. (Docket No. 226.) I. Introduction On June 27, 2006, Defendant J.E.H. Knutson ("Defendant") served supplemental discovery responses that failed to comply with the Court's June 12, 2006 Order (as amended June 20, 2006) compelling discovery. (Docket Nos. 215 and 219.) On July 18, 2006, after reviewing the deficient responses and conferring with counsel for Defendant to request that 1
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the responses be supplemented, Walker Group filed a Motion to Compel and for Sanctions ("Motion"), along with an accompanying eleven (11) page brief ("Brief"). After considering Walker Group's Motion and Brief and reviewing Defendant's Response Brief, the Court issued an Order granting the Motion. In addition to compelling compliance with the Court's June 12, 2006 Order, the Order awarded Walker Group "reasonable expenses which shall include reasonable and necessary attorney fees and costs for having to bring this motion pursuant to Fed. R. Civ. P. 37(b)(2)." (Order at p. 4.) Per the Order, the parties conferred but were not able to reach an agreement on the amount of reasonable expenses. (Affidavit of Richard S. Gottlieb ¶ 6 (filed contemporaneously herewith); (Affidavit of Joshua Maximon ¶ 6 (filed contemporaneously herewith).) This Fee Application sets forth the amount of attorneys' fees Walker Group incurred in connection with bringing the Motion. Walker Group's attorneys' fees are reasonable and necessary in light of the value and significance of the legal services to Walker Group, the experience of Walker Group's attorneys, the customary fees for such work, and the nature and length of counsel's relationship with Walker Group. The Application is supported by the affidavits of Walker Group's counsel and the billing statements attached thereto reflecting charges previously submitted in the July billing statement to Walker Group. 1 (Gottlieb Aff. ¶ 5; Maximon Aff. ¶ 5.) For these reasons, as fully set forth below, Walker Group respectfully requests that Defendants be ordered to pay it reasonable attorneys' fees of $4,730.00.
Submission of the billing statements attached to the Affidavits of Richard Gottlieb and Josh Maximon is not a waiver of the attorney client privilege as to items described therein.
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II.

Walker Group's Attorneys' Fees Are Reasonable The Tenth Circuit has noted that the "right to recover attorneys' fees is substantive,

and therefore determined by state law in diversity cases." Public Serv. Co. of Colo. v. Cont'l Cas. Co., 26 F.3d 1508, 1520 (10th Cir. 1994). The Tenth Circuit has further instructed: the award should make the injured party whole and the court may consider the amount in controversy, the length of time required to represent the client effectively, the complexity of the case, the value of the legal services to the client, and the usage in the legal community concerning fees in similar cases. Id. at 1520 (citing Heller v. First Nat'l Bank of Denver, N.A., 657 P.2d 992, 999-1000 (Colo. Ct. App. 1982) (emphasis added)); see also Hartman v. Cmty. Responsibility Ctr., Inc., 87 P.3d 254, 257 (Colo. Ct. App. 2004). In determining the reasonableness of a fee, courts are encouraged also to consider the factors listed in Rule 1.5(a) of the Colorado Rules of Professional Conduct, including: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. Colo. Rules of Prof'l Conduct Rule 1.5; Mau v. E.P.H. Corp., 638 P.2d 777, 779 (Colo. 1981); Newport Pac. Capital Co., Inc. v. Waste, 878 P.2d 136, 141 (Colo. Ct. App. 1994). Guided by these standards, Walker Group respectfully submits that the attorneys' fees for which it now seeks reimbursement are reasonable. 3
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1.

The Value and Significance of the Legal Services to the Client

The time spent bringing this Motion was reasonable in light of the significance of the hotly-contested issue at stake and its impact on Walker Group's ability to recover the Judgment obtained against Defendant. On its face, seventeen hours (the equivalent of two days of work) of time spent by Walker Group's attorneys in (1) reviewing Defendant's inadequate discovery responses, (2) communicating with Defendants' counsel to request supplementation, and (3) researching, drafting, and revising a motion with an accompanying eleven page brief is reasonable. Considering the importance of the Motion to the client, the time spent on it is even more reasonable. Walker Group endured years of litigation before obtaining a nearly seven-figure judgment against Defendant, and is still litigating to collect on the judgment. All the while, Defendant has gone to great lengths to make himself judgment-proof and to delay and obstruct Walker Group's efforts to collect its judgment. Now that Walker Group is engaged in discovery to obtain critical information about Defendant's (and his wife's) assets that may allow it to finally execute its judgment, Defendant has re-doubled his efforts to obstruct and delay. Defendant adamantly opposed Walker Group's efforts to obtain the information and documents underlying its Motion. If the Motion had failed, Walker Group would have been denied access to critical information and documents about important assets. Walker Group has no other way of obtaining this information, and a failed Motion would have severely impaired Walker Group's ability to collect on a judgment that took years to obtain. Moreover, a failed Motion would have, in essence, condoned Defendant's dilatory discovery 4
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tactics.

For these reasons, the equivalent of two days of work on a Motion of this

significance is entirely reasonable. 2. The Experience, Reputation and Ability of Walker Group's Counsel

Walker Group engaged skilled and experienced lawyers at firms with special expertise in commercial litigation matters. Walker Group is represented in this matter by two law firms: Kilpatrick Stockton LLP ("Kilpatrick Stockton"), through lawyers in its Winston-Salem, North Carolina office, and the Maximon Law Firm, LLC (the "Maximon Firm"), in Broomfield, Colorado. As noted in the Affidavit of Richard S. Gottlieb

(of Kilpatrick Stockton), his international law firm has extensive experience in all forms of litigation in state and federal courts throughout the United States. (Gottlieb Aff. ¶ 2.) Mr. Gottlieb is a partner admitted to practice in numerous state and federal courts across the country, including the United States Supreme Court. (Id. ¶¶ 1, 3.) He focuses his practice on business litigation, with a special emphasis in complex commercial litigation. (Id. ¶ 3.) After graduating cum laude from New York University Law School, Mr. Maximon worked at several large international law firms before starting his own firm focusing on litigation. (Maximon Aff. ¶¶ 1, 2 .) These counsel called upon their extensive litigation experience to work effectively and efficiently to review Defendant's inadequate discovery responses, communicate with Defendants' counsel to request supplementation of the responses, and to research, prepare, and revise Walker Group's Motion and Brief.

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3.

Customary Fees for Similar Work

Walker Group submits that the hourly rates charged by the Kilpatrick Stockton attorneys in this case, which ranged from $265 for Mr. Wenker (a mid-level associate) to $325 for Mr. Gottlieb (a partner), were reasonable and appropriate for the circumstances. As noted in the billing statement attached to the Gottlieb affidavit, efforts spent to review defendant's inadequate responses, to request supplementation and to draft the Motion and Brief were divided between Mr. Gottlieb and Mr. Wenker so that each task what handled by an attorney with the appropriate level of experience (and commensurate billing rate). Similarly, Mr. Maximon's rate of $175 and the short time spent on the matter to make sure the Motion and Brief conformed to local rules and practice was also appropriate. 4. The Nature and Length of the Relationship with the Client

Kilpatrick Stockton has represented Walker Group and its subsidiary company, Walker & Associates, Inc., for at least the past 15 years and is, for all practical purposes, its outside general counsel. (Gottlieb Aff. ¶ 4.) Kilpatrick Stockton represented Walker Group in the drafting and negotiating of the Promissory Note and personal guaranties that eventually came to underlie the disputes in this case and has participated as counsel in this matter from the filing of the complaint, through discovery motions, and in the trial of this case. Id. Thus, because of the nature and length of counsel's relationship with the client, the fees charged are reasonable.

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III.

Conclusion Walker Group respectfully submits that the fees of its counsel are reasonable in light

of the foregoing factors, particularly in light of the value and significance of the legal services to the client. Walker Group is entitled to be reimbursed for all of its attorneys' fees ($4730.00) in connection with its Motion to Compel and for Sanctions.

Respectfully submitted, this the 24th day of August, 2006.

s/ Richard S. Gottlieb Richard S. Gottlieb Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 Attorneys for Plaintiff Walker Group, Inc. Joshua Maximon, Esq. The Maximon Law Firm, LLC 12202 Airport Way, Suite 170 Broomfield, Colorado 80021 Telephone: (303) 991-3344

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 24, 2006, I electronically filed the foregoing PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES AND COSTS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected], and I hereby certify that I have mailed or served the document or paper to the following by first class mail addressed as follows: Michael R. McCurdy, Esq. Colin A. Walker, Esq. Fairfield and Woods, P.C. Wells Fargo Center, Suite 2400 1700 Lincoln Street Denver, Colorado 80203-4524

s/ Richard S. Gottlieb Richard S. Gottlieb Attorney for Plaintiff Walker Group, Inc. Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 [email protected]

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