Opinion
Civil Action No. 15-cv-01665-PAB-KLM
02-21-2018
AUTO-OWNERS INSURANCE COMPANY, Plaintiff, v. BRIDGEWATER INTERNATIONAL, INC. and DANIEL R. GIBBS, individually, Defendants.
ORDER
This matter is before the Court on the Verified Motion for Attorney's Fees and Costs [Docket No. 26] filed by plaintiff Auto-Owners Insurance Company on July 13, 2017. The Court has jurisdiction pursuant to 28 U.S.C. § 1332.
On June 29, 2017, the Court granted plaintiff's motion for default judgment and entered a default judgment of $141,920.60 against defendant Bridgewater International, Inc. on plaintiff's breach of indemnity claim. Docket Nos. 24, 25. The Court denied without prejudice plaintiff's request for attorneys' fees and costs contained in plaintiff's motion for default judgment because it was supported only by a conclusory statement. Docket No. 24 at 6. Additionally, the Court ordered "that, within 14 days of the entry of judgment, plaintiff Auto-Owners Insurance Company may have its costs by filing a bill of costs with the Clerk of the Court." Docket No. 24 at 7. Plaintiff did not file a bill of costs with the Clerk of the Court. Plaintiff, however, did file the instant motion seeking $20,335.80 in attorney's fees, $6,026.88 in costs, and $3,270.61 in interest. Docket No. 26 at 2, 10; Docket No. 26-2.
These costs include a payment of $5,250.00 to "Vertex." Docket No. 26-1 at 3. No receipt is provided for this payment and plaintiff does not provide any explanation of what Vertex is, why such a payment was made, or how the payment relates to defendant's breach of the indemnity agreement.
As an initial matter, the Court will deny plaintiff's request for costs and associated interest. Plaintiff failed to file a bill of costs with the Clerk of the Court as ordered and as required by D.C.COLO.LCivR 54.1. See Docket No. 24 at 7; Docket No. 25 at 2. Therefore, plaintiff's request for costs and associated interest is denied with prejudice.
To fix a reasonable fee award, a court must begin by calculating the "lodestar amount." Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The lodestar amount is the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A party seeking an award of attorney's fees must establish the reasonableness of each dollar and each hour for which the party seeks an award. Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995).
The party claiming fees "has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks," Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d 1243, 1250 (10th Cir. 1998), as well as demonstrating that counsel used "billing judgment" in winnowing down the hours actually spent to those reasonably expended. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005). If a request does not demonstrate billing judgment, a court should take extra care to ensure that an attorney has not included unjustified charges in his billing statement. Id. A court should also consider whether the amount of time spent on a particular task appears reasonable in light of the complexity of the case, the strategies pursued, and the responses necessitated by an opponent's maneuvering. Id.
A "reasonable rate" is defined as the prevailing market rate in the relevant community for an attorney of similar experience. Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). The party requesting fees bears "the burden of showing that the requested rates are in line with those prevailing in the community." Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998). In order to satisfy his burden, plaintiff must produce "satisfactory evidence - in addition to the attorney's own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
Plaintiff seeks $20,335.80 in attorney's fees for 103.1 hours of work. Docket No. 26-2. Patrick Q. Husted, an attorney with approximately thirty years of experience, billed 16.5 hours at a rate of $230 per hour. Docket No. 26 at 6, ¶ 2, at 8, ¶ 13, and at 9, ¶ 17. Connor Cantrell, an attorney with approximately ten years of experience, billed 55.0 hours at $220 per hour. Docket No. 26 at 8-10, ¶¶ 13, 17; Docket No. 26-2 at 3. Keenan Jones, an attorney with approximately eight years of experience, billed 3.5 hours at $190 per hour. Docket No. 26 at 8, ¶ 13 and at 10. Lauren Reinhart, an attorney with approximately five years of experience, billed 6.4 hours at $190 per hour. Id. Additionally, plaintiff was billed for 21.7 hours of paralegal work at $110 per hour. Docket No. 26-2.
Not all of this work is directly related to this case. Rather, much of the billed time relates to claims made in the bankruptcy of dismissed defendant Daniel R. Gibbs, the underlying claim by Shaw Construction LLC, and recording liens associated with this dispute. See, e.g., Docket No. 26-2 at 8, 18, 25-27. However, the Court finds that such fees are recoverable under the indemnity agreement, which provides for recovery of attorney's fees incurred by plaintiff "by reason of executing of said bond or bonds, or any of them, in making any investigation on account thereof, in prosecuting or defending any action brought in connection therewith, in obtaining a release therefrom, and in enforcing any of the agreements herein contained." Docket No. 1-2 at 2. --------
The Court finds that plaintiff has met its burden of establishing that the attorney's fees sought reflect a reasonable number of hours expended and that the rate charged is reasonable in light of defense counsel's experience and the results achieved. See Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) ("[T]he district court need not identify and justify every hour allowed or disallowed, as doing so would run counter to the Supreme Court's warning that a 'request for attorney's fees should not result in a second major litigation.'" (quoting Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203 (10th Cir. 1986))). In addition to this litigation, plaintiff's attempt to recover under the indemnification agreement necessitated filing various liens and pursuing relief in bankruptcy court. Plaintiff's counsel secured recovery in the bankruptcy court and a default judgment in this court. See Docket No. 25; Docket No. 26 at 9, ¶ 15. The attorneys' rates are reasonable in light of the prevailing rates in Denver for attorneys of their experience. See Hitchens v. Thompson Nat'l Properties, LLC, No. 12-cv-02367-LTB-BNB, 2014 WL 2218094, at *2 (D. Colo. May 29, 2014) (finding it reasonable for Denver attorney with eight years of experience to charge $250 per hour); Scott v. City and County of Denver, No. 12-cv-00053-MSK-BNB, 2014 WL 287558, at *2 (D. Colo. Jan. 27, 2014) (finding that "the prevailing rates in Denver for experienced litigators approach $400 per hour in recent years" and associates with eight years of experience in the Denver metro area charge between $150 and $260 per hour). Further, the detailed billing records submitted by plaintiff reflect the application of billing judgment in declining to bill for certain tasks and reducing the hours charged for other tasks. See, e.g., Docket No. 26-2 at 12, 22.
Plaintiff seeks prejudgment interest on the award of attorney's fees pursuant to Colo. Rev. Stat § 5-12-102(1). Docket No. 26 at 2 n.2. This statute applies when "money or property has been wrongfully withheld." Colo. Rev. Stat § 5-12-102(1)(a). Plaintiff's request does not comport with how the statute has been applied by other courts, and plaintiff points to no authority and makes no argument for why prejudgment interest should be awarded on his attorney's fees. In cases where courts have awarded both prejudgment interest under Colo. Rev. Stat § 5-12-102(1) and attorney's fees, the Court is not aware of any instance where a court has awarded prejudgment interest on the award of attorney's fees. Rather, courts have awarded prejudgment interest on the amount of the judgment and separately awarded attorney's fees. See, e.g., Complete Entm't Res., LLC v. Bianchi, No. 14-cv-03388-MSK-MJW, 2016 WL 8578094, at *5 (D. Colo. Feb. 2, 2016); Auto-Owners Ins. Co. v. Summit Park Townhome Ass'n, 198 F. Supp. 3d 1239, 1248 (D. Colo. 2016); Campbell v. Ball Corp. Consol. Welfare Benefit Plan, No. 13-cv-00132-MSK-KMT, 2015 WL 5352569, at *3 (D. Colo. Sept. 15, 2015). Courts have awarded prejudgment interest where an attorney's fee from a previous litigation is the subject of a subsequent judgment. See, e.g., Scott R. Larson, P.C. v. Grinnan, 2017 WL 2590525 (Colo. App. June 15, 2017) (awarding prejudgment interest on wrongfully withheld attorney's fees from a separate case where the defendant improperly caused the fees to be placed in escrow during a fee dispute between attorneys); Niman v. GPS USA, Inc, No. 13-cv-2725-RBJ, 2015 WL 1898244, at *1 (D. Colo. Apr. 27, 2015) (awarding prejudgment interest where the unpaid judgment from an earlier litigation included attorney's fees). That is not the case here. Therefore, the Court will grant plaintiff's motion for attorney's fees insofar as it requests plaintiff's billed fees and will deny the motion insofar as plaintiff requests prejudgment interest.
For the foregoing reasons, it is
ORDERED that plaintiff's Verified Motion for Attorney's Fees and Costs [Docket No. 26] is GRANTED in part and DENIED in part as set forth in this order. It is further
ORDERED that plaintiff is awarded $20,335.80 in attorney's fees.
DATED February 21, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge