Free Brief - District Court of Colorado - Colorado

Case 1:02-cv-02220-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 02-cv-2220-PSF-PAC

KAREN LEVELLE, personal representative for the Estate of RAY LEVELLE, Plaintiff, v. PENSKE LOGISTICS, Defendant. _____________________________________________________________________________ PLAINTIFF'S BRIEF CONCERNING ATTORNEYS' FEES AND COSTS ______________________________________________________________________________

BACKGROUND This case ­ which has been on-going for four-years ­ is hopefully winding down. The litigation began when Mr. LeVelle came into Ms. Bangert's office, told her about his case, told that he had seen numerous attorneys ­ all of whom turned down representation ­ and said, in desperation, that he would file the case himself if she would not help. The litigation proceeded with the filing of the complaint, discovery, the inevitable summary judgment motion, and finally trial. Mr. LeVelle prevailed on the only issue going to trial ­ whether Penske unlawfully regarded him as disabled and terminated him therefore. The Jury awarded compensatory and punitive damages. Penske filed numerous post-judgment motions, which this Court denied. This Court awarded fees and costs to plaintiff, which is the subject of this brief. Penske appealed the Court's denial of its post-trial motions and its award of fees and

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costs. Penske refused to even answer an offer to settle the case at that point from Mr. LeVelle.1 On appeal, a panel of the Tenth Circuit upheld this Court's denial of post-judgment motions, except for that involving punitive damages. Doc. #130. The Panel remanded the case back to this Court for "more detailed findings" on the issue of attorney's fees. Id. There was no question in the Circuit's opinion that the Estate was entitled to attorney's fees; the only question was the amount, and specifically, the reasons why the Court determined attorney's fees in the amount it awarded. Penske filed a motion for rehearing, and a motion for rehearing en banc, both of which were summarily denied by the Circuit. Between the time of the oral argument in this case and the publication of the Circuit's opinion, Mr. LeVelle died suddenly, leaving a wife and a small child. Because the Court of Appeals did find for Penske on one issue, the Estate determined that it would not engage in a lengthy and time-consuming battle over the attorney's fees and costs incurred in fighting the appeal of this case. Penske, not showing the same restraint, filed a motion for costs. The Circuit denied the costs that were properly asserted in that court, and remanded the costs that should have been requested in the District Court. Doc.# 127. PRIOR MOTIONS AND BRIEFS Numerous motions and briefs have already been filed in this Court by plaintiff to support his motion for attorney's fees. The Estate incorporates and relies upon those briefs in this pleading.
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Penske made a settlement offer after trial had begun, at the urging of the Judge, but it was insufficient to cover the costs of the litigation to that point, not to mention the damage to plaintiff. Gudenkauf v. Stauffer Communications, Inc.,158 F.3d 1074, 1083-84 (10th Cir. 1998). 2

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ARGUMENT A. THE ESTATE DESERVES AT LEAST THE PRESUMPTIVE AMOUNT OF FEES

Under the Americans with Disabilities Act (ADA), the prevailing party is entitled to an award of their "reasonable attorney's fee, including litigation expense, and costs." 42 U.S.C. §12205. Roe v. Cheyenne Mountain Conference, 124 F.3d 1221, 1232 (10th Cir. 1997). The presumptively correct amount of fees is the "lodestar," i.e. the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Ramos v. Lamm, 713 F.2d 546, 551 (10th Cir. 1983). 1. Hours Expended

"In determining what is a reasonable time in which to perform a given task or to prosecute the litigation as a whole, the court should consider that what is reasonable in a particular case can depend upon factors such as the complexity of the case, the number of reasonable strategies pursued, and the responses necessitated by the maneuvering of the other side." Ramos, 713 F.2d at 554. The Estate has prepared numerous briefs regarding the reasonableness of the hours expended here and will not repeated what was said in those pleadings. It should be noted, however, that the hours expended by Plaintiff's counsel on this case were low by any standard. Specifically, counsel took the case from initial meeting, through complaint, discovery and trial, expending only 360 hours of attorney time. Further, defendant Penske has itself caused a great deal of work on the part of both sides to this litigation by fighting absolutely every point. For example, in the appeal of this case, Penske filed: · · · An opening brief A corrected opening brief A reply brief 3

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· · · ·

At least two statements of supplemental authority A motion for rehearing and rehearing en banc A corrected motion for rehearing and rehearing en banc A motion for costs

All of its briefs and motions accomplished only one thing ­ the elimination of punitive damages. Note that the Estate, as explained above, did not file a motion for attorney's fees and costs incurred in fighting the appeal of this case out of deference to the Court and the parties' resources. In the case before this Court, Penske filed: · · · · · A motion for summary judgment A reply regarding summary judgment At least one supplemental authority letter A motion for judgment as a matter of law, or, in the alternative for a new trial A motion to review taxation of costs

To a certain extent, then, the maneuvering of Penske has caused a significant amount of work on the part of plaintiff, work for which plaintiff should be compensated. In any event, as noted in plaintiff's initial motion and response on the issue of attorney's fees, counsel eliminated any billed time that was excessive, redundant, or otherwise unnecessary from her initial calculations of hours spent on the case. 2. Hourly Rate

Under the relevant case law, the hourly rate used to determine the lodestar amount is determined at the time that the fees are awarded. "The hourly rate at which compensation is awarded should reflect rates in effect at the time the fee is being established by the court, rather than those in effect at the time the services were performed." The Estate has revised its requests for fees to set the hourly rate utilized in the lodestar at $350 per hour, as set forth below. 4

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While special counsel to Lohf, Shaiman, Jacobs, Hyman & Feiger, Ms. Bangert billed at a rate of at least $350 per hour. See Exhibit 2 [Lohf, Shaiman, Jacobs, Hyman & Feiger P.C. Billing Rates February 1, 2006]. A month or so ago, the firm requested and a federal administrative law judge awarded Ms. Bangert fees at the rate of $350 per hour. The fee award reflected the efforts Ms. Bangert expended as co-counsel on the largest sexual harassment class action ever brought against the Government, a case in which over a hundred woman brought an EEOC complaint against the U.S. Mint. That hourly rate is less than the rate charged by the other employment attorney with whom she worked, Lynn Feiger. Thus the Estate revises the hourly rate applicable to the lodestar in this matter to reflect the current rate at which Ms. Bangert charges, i.e. $350 an hour. 3. Plaintiff Enforced the Goals of Discrimination Statutes and, Thus, Deserves Full Compensation

Congress allows the award of attorney's fees in discrimination cases to encourage private enforcement of public goals. H.R.Rep. No. 102-40(I) at 82, 1991 U.S.C.C.A.N. at 620. In this case, Mr. LeVelle did just that. He litigated and succeeded with a very difficult theory, i.e. that the Company regarded him as disabled when he injured his back on the job and had to return to work with medical restrictions. Mr. LeVelle furthered public goals by enforcing the "regarded as" clause in the ADA and clarifying issues related to that clause. Penske itself recognized that the case "is significant to both employees and employers, because of the frequency of injuries in the course of employment, and the need for clear standards for returning employees to work or placing them in alternative positions as a reasonable accommodation." See Exhibit 1 [Defendant-Appellant's Petition for Rehearing and Rehearing En Banc] at pages 9-10. This Circuit has recognized that, even when damages are small compared to attorneys 5

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fees expended, a full award of those fees is appropriate: "Some courts have reduced fees when the thrust of the suit was for monetary recovery and the recovery was small compared to the fees counsel would have received if compensated at a normal rate for hours reasonably expended. We reject this practice. The amount of the monetary recovery is not as significant as the policy being vindicated. Section 1988 was designed to encourage private enforcement of the civil rights laws. Parties acting as private attorneys general should be reasonably compensated for their vindication of the public policy even if they themselves do not receive a large financial benefit." Ramos, 713 F.2d at 557. 4. The Award of Fees Should Not Be Reduced for Unsuccessful Claims

In earlier briefs, the parties argued the issue of reduction of fees because of unsuccessful claims. Those arguments are incorporated here. At this point of the litigation, the central claim ­ that Penske discriminated against LeVelle ­ remains successfully prosecuted. The only thing that has changed is that one element of damages is gone, i.e. punitive damages. The earlier analysis of fee awards is the same. The definitive Supreme Court test for determining whether work on unsuccessful claims should be excluded from the lodestar is not a mathematical calculation based upon the claims that succeeded and those that did not. Rather, the test is the result and the hours spent achieving that result. To exclude work on unsuccessful claims, those claims must be "distinctly different claims for relief that are based upon different facts and legal theories." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Thus, plaintiff should be awarded costs for any work "expended in pursuit of the ultimate result achieved," even if some claims are unsuccessful Id. at 435 (citation omitted). See also, Chavez v. Thomas & Betts Corp, 396 F.2d 1098, 1102-1103 (10th Cir. 2005); Smith v. Northwest Financial Acceptance, Inc., 129 F.3d 1408, 1418-19 (10th Cir.1997). 6

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The Court in Ramos made this point most succinctly: If the plaintiff has obtained "excellent results," the attorney's fees should encompass all hours reasonably expended; no reduction should be made because the plaintiff failed to prevail on every contention: "The result is what matters." Ramos, 713 F.2d at 556, citing to Hensley (internal citations omitted). The Smith case is analogous to this case. The Court there reaffirmed the Hensley holding that the primary focus in a decision on attorney's fees should be the overall success of the prevailing party, specifically: In this case, the record reflects that Plaintiff not only prevailed on the central portion of her claim, but she succeeded on the only claim that proceeded to trial. Moreover, the Title VII sexual harassment claim was Plaintiff's principal claim from the outset. Hensley held that "the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees." Hensley, 461 U.S. at 440, 103 S.Ct. at 1942. Hensley further stated that "[w]here a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised." Id. Smith, 129 F.3d at 1418-9 (emphasis added). Undoubtedly, the plaintiff achieved his major goal ­ to prove that Penske had discriminated against him when it regarded him as disabled and fired him because of that belief. B. THE FEE SHOULD BE ENHANCED The Court in Hensley v. Eckerhart acknowledged that an enhanced fee award could be made in cases in which the success achieved was exceptional. We think the Court does not foreclose enhancement above that given for an "excellent result" in cases in which plaintiff did not win on all issues. "Exceptional success" justifying an enhanced fee may be based upon the performance of counsel--for example, victory under unusually difficult circumstances or with an extraordinary economy of time ­ or upon the result achieved ­ total victory or establishment of significant new law."

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Ramos, 713 F.2d at 557. While the Estate and the undersigned are certainly not arguing that Ms. Bangert was brilliant in her prosecution of this case, they are arguing that Ms. Bangert performed well as a private solo practitioner in a very difficult case. The total time spent by Ms. Bangert in litigating this case from complaint to verdict was 360 hours. As noted above, Penske agrees that the result was "significant to both employees and employers, because of the frequency of injuries in the course of employment, and the need for clear standards for returning employees to work or placing them in alternative positions as a reasonable accommodation." See Exhibit 1. While Ms. Bangert was fortunate to have the able assistance of Ms. Zoltanski during trial, she had prosecuted Mr. LeVelle's case ­ a case even other plaintiff's attorney's would not take ­ on her own until that point, and after trail. Further, she prosecuted the case against an opponent who fought every issue possible. Under these circumstances, her success in achieving and keeping a positive result on the central issue in the case ­ the discrimination claim ­ and expending only 360 hours of attorney time, was exceptional and deserves an enhancement. In addition, an enhancement furthers the goals of attorney's fees statutes, that is, it encourages attorneys to take cases that would otherwise be orphans in the legal system. As stated in Mr. LeVelle's affidavit, attached to the original motion for attorney's fees, he could not find an attorney to take his case, despite repeated efforts, until he met Ms. Bangert. RECALCULATION OF ATTORNEYS FEES Under the applicable law, the hourly rate applicable to the award of attorneys fees is the prevailing rate at the time fees are awarded. Utilizing the rate at the time of the award compensates the private attorney for the inevitable delays in getting paid.

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The hourly rate at which compensation is awarded should reflect rates in effect at the time the fee is being established by the court, rather than those in effect at the time the services were performed. The lawyers seeking fees usually will not have been paid for their services until the court makes its allowance. We think that awarding compensation at current rates will roughly approximate periodic compensation adjusted for inflation and interest and will obviate the necessity of guessing when periodic billings would have been made and paid in an analogous private practice situation. Generally, no prejudgment interest should be paid for the period before the fees are awarded." Ramos, 713 F.2d at 555. As discussed above, Ms. Bangert's current rate is $350 an hour, a rate recognized and approved by an administrative law judge just few months ago. As such, Ms. Bangert recalculates the lodestar amount applicable here as follows: (359.47 attorney hours x $350 = $125,814.50) plus (27 attorney hours for trial x $350 = $9,450) plus (legal assistant hours x$75=$692) = $135,956.50 Adding this amount to Ms. Zoltanski's lodestar of $13,965 (66.5 hours x $210), the total amount in attorney and paralegal fees requested is $149,921.50. The Estate continues to seek an enhancement by one-third, or $49,923.86, and costs in the amount of $2,553.74. In addition, the Estate seeks post-judgment interest on those amounts at the current rate.2 REQUEST AS TO POST-TRIAL FEES The Estate is not requesting attorneys fees or costs incurred after the trial in this matter. In part, that position is the result of the Court's direction, in its order on post-trial motions,

Plaintiff assumes that there is currently no issue with regard to the Clerk's taxation of costs (Doc. 386). If there is an issue, the Estate continues to assert the validity of that taxation of costs. 9

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that no supplemental requests for attorney's fees or costs would be considered. If the Court reopens the issue of attorney's fees, the Estate asks that it be allowed to submit a request, with supporting materials, for fees incurred in responding to Penske's numerous post-trial motions and Penske's appeal. DATED this 3rd day of November, 2006.

Respectfully submitted,

s/Patricia S. Bangert ____________________________________ Patricia S. Bangert Attorney at Law, LLC 3773 Cherry Creek Drive North Suite 575 Denver, CO 80209 Phone: 303-228-2175 Fax: 303-399-6480

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CERTIFICATE OF SERVICE I hereby certify that on November 3, 2006, I electronically filed the foregoing using the CM/ECF system, which sent notification to the following e-mail addressees:

Frank Nachman, Esq.

s/ Patricia S. Bangert ____________________________________ Patricia S. Bangert