Under Colorado law, "the party requesting an award of attorney fees bears the burden of proving by a preponderance of the evidence its entitlement to such an award." Haynes v. City of Gunnison, 214 F.Supp.2d 1119, 1120 (D. Colo. 2002). I find that Defendant Treadway has not met his burden. Defendant Treadway has not demonstrated that Plaintiffs state law claim was within the scope of the statute.

This entitlement is limited to the state law claims and does not apply to the Section 1983 claim for the unreasonable search and seizure. See Haynes v. City of Gunnison, 214 F.Supp. 2nd 1119, 122 (D.C.Colo. 2002); Meier v. McCoy, 119 P.3d 519, 526-7 (Colo.App. 2005). Indeed, to serve the purpose of encouraging the pursuit of civil rights, prevailing defendants in § 1983 actions should recover only if plaintiff's claim is shown to be frivolous, unreasonable or without foundation.

Cases addressing motions for attorneys' fees under Colo. Rev. Stat. § 24-10-110(5)(c) have held that the statute does not apply in cases where the claim is primarily a section 1983 claim and the state law claim arises from the same alleged facts and conduct as the federal claim. Brooks v. Gaenzle, No. 06-cv-01436-CMA-MJA, 2009 WL 4949922, at *3 (D. Colo. Dec. 15, 2009) (citing Haynes v. City of Gunnison, 214 F.Supp.2d 1119, 1122-23 (D. Colo. 2002)). While Brooks and Haynes do not address Colo. Rev. Stat. § 13-17-201, the statute's language is similar to Colo. Rev. Stat. § 24-10-110(5)(c). Moreover, the Colorado Supreme Court has held that section 13-17-201 is in derogation of the long-established American Rule and must be construed narrowly. Crandall v. City of Denver, 238 P.3d 659, 662 (Colo. 2010)

The burden of proof lies with the defendant to show by a preponderance of the evidence that he is entitled to an award of his attorney fees under § 13-17-201. Haynes v. City of Gunnison, 214 F.Supp.2d 1119, 1120 (D. Colo. 2002) (citing Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 383 (Colo. 1994)).

"(A)ttorney fees must be carefully reviewed and allocated to avoid awarding fees for work performed on overlapping claims that are not covered by a fee shifting statute or rule." Haynes v. City of Gunnison, 214 F.Supp.2d 1119, 1122 (D. Colo. 2002). However, many lawsuits involve multiple claims based on a common nucleus of facts and related legal theories.

The burden of proof rests on the party requesting an award to show by a preponderance of the evidence that he or she is entitled to an award. Haynes v. City of Gunnison, 214 F.Supp.2d 1119, 1120 (D. Colo. 2002) ( citing Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 383 (Colo. 1994)).

Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006). Subjective bad faith on the part of the plaintiff is not a prerequisite to a defendant's award of fees under §§ 1983 and 1988. Price v. Hawaii, 789 F. Supp. 330, 334 (D. Haw. 1992). Plaintiff asserts that § 1988 precludes any additional damages under a state statute, citing Haynes v. City of Gunnison, 214 F. Supp. 2d 1119 (D. Colo. 2002). Haynes, however, does not support plaintiff's position. In Haynes, the defendants sought attorney's fees under a Colorado statute that applied only to claims made pursuant to state law.

Still further, we conclude that § 1988 may be applied to plaintiff's § 1983 claim and that § 24-10-110(5)(c) may be simultaneously applied to plaintiff's common law claims without disrupting the federal statute. See Haynes v. City of Gunnison, 214 F.Supp.2d 1119 (D.Colo. 2002); Goodwin v. Debekker, 807 F.Supp. 101 (D.Colo. 1992) (§ 24-10-110(5)(c) not applicable to federal claims litigated in federal court). Neither party asked for a hearing regarding attorney fees, and plaintiff did not object to the reasonableness of the fees, which totaled $140,207.70.