Opinion
Civil Action No. 02-N-1950 (OES)
May 17, 2004
ORDER AWARDING FEES AND COSTS TO DEFENDANTS
I. BACKGROUND
On March 19, 2004, District Judge Edward W. Nottingham entered an Order in which he accepted and adopted the Recommendation submitted by me on October 14, 2003. I recommended that Judge Nottingham dismiss all of plaintiffs' claims, and that he award to defendants all of the attorney fees and costs that they had incurred from and after January 30, 2003. This date represents the date upon which I conducted a status conference, and personally advised plaintiff that her claims were groundless and frivolous. In his Order, Judge Nottingham dismissed plaintiffs' case, and ruled that "Plaintiff Kay Sieverding and Plaintiff David Sieverding shall pay all attorney fees and costs incurred by all defendants since January 30, 2003." The minor children of Kay and David, namely, Ed and Tom, who were included by their parents as plaintiffs in the lawsuit, were excluded from the order to pay fees and costs.
I issued an Order on March 22, 2004, providing defendants until April 5, 2004, to file their billing statements in support of their requests for attorney fees and costs. With the exception of the American Bar Association, all of the defendants have filed their various statements or requests.
Plaintiffs were allowed until April 20, 2004, within which to file any objections. In my Order, I informed plaintiffs that I would not consider any objections in regard to the reasonableness of any hourly rates or fee statements that were filed by the attorneys unless plaintiffs' objections were supported by the opinion of an attorney expert who was retained by plaintiffs for that purpose.
The only document that resembles an objection to any fees and costs was filed by plaintiffs on April 12, 2004. Plaintiffs filed a document that was entitled "Motion under Rule 12(e) for a more definite statement of `verified submission of attorney fees and costs for defendants City of Steamboat Springs and District Attorney Defendants.'" In this motion, plaintiffs refer only to the billing statement that was filed by David Brougham on behalf of his clients. They list a number of activities that are contained on Mr. Brougham's statement, and pose various challenges and questions about certain of the items. For example, plaintiffs write, "please explain the due process implications of Brougham's Bills [sic] for ex-parte [sic] contact with court," and plaintiffs then question various items that they apparently believe to be unethical conduct by the court and/or Mr. Brougham. Plaintiffs have filed no other objections to any of the billing statements that were submitted.
On April 19, 2004, Mr. Brougham filed a Motion to Strike Raintiffs' Motion for More Definite Statement re Attorney Fees Submission. On behalf of his clients, Mr. Brougham asserts that plaintiffs' motion is "little more than interrogatories." Brougham Mtn at 1. He also points out that plaintiffs' complaint in regard to alleged ethical shortcomings "is not an objection to the reasonableness of the billing in question, nor is it submitted in an affidavit by an attorney as required by this Court's order." Id. at 2.
I will not grant the Motion to Strike. However, I agree that plaintiffs' motion reflects a misunderstanding of the purpose of Rule 12(e), and agree that their "motion" is improper. Nevertheless, I will receive and construe plaintiffs' motion as their sole objection to the fee statements that have been filed. Construing the motion as such, I will place very little weight, if any, on its contents, because plaintiffs failed to support their motion with an affidavit or letter from an attorney expert who was retained by them for the purpose of providing an opinion as to the reasonableness of the fees and costs. Even viewing plaintiffs' "motion" as an objection, their document reflects nothing more than their unsupported belief that certain of Mr. Brougham's entries reflect that he acted in an unethical manner.
II. DISCUSSION 1. Introduction.
Attorney fees and costs are being awarded against the plaintiffs as a sanction and a deterrent for their actions and conduct throughout the history of this case. My Recommendation, which is now the Order of this Court, contains an extensive discussion by me of the reasons that sanctions against these plaintiffs are warranted, and the factors that I should consider in determining the amount of fees and costs that should be awarded. See Recommendation at 43-57. I need not reiterate that discussion here, except for one point that I have expressed before:
These plaintiffs — or, more appropriately, Ms. Sieverding — have harbored a ten-year obsession with the perceived wrongs of everyone who has had the misfortune of straying into the path of plaintiffs' pursuit of their misguided vision of justice. Ms. Sieverding is a plaintiff who refuses to listen to reason or orders from any person or court. Her ten-year crusade against the defendants in this case has been marked, as illustrated [in this Recommendation], by actions and allegations that are vindictive and malicious.
Recommendation at 52. I emphasize again, as I have on previous occasions, that the person who is primarily, if not solely, responsible for this litigation has been Kay Sieverding, and that my references to "plaintiffs" in this case, in reality, is a reference to Ms. Sieverding.
This case is truly pitiful in one respect. Ms. Sieverding's obsessive quest in this matter began primarily over the fact that a County Court judge entered a restraining order against her, directing her to remain 30 feet away from a woman that she has no desire to be near anyway.
2. Amount of fees to be awarded.
Rule 11 sanctions are intended to serve several purposes:
(1) deterring future litigation abuse, (2) punishing present litigation abuse, (3) compensating victims of litigation abuse, and (4) streamlining court dockets and facilitating case management.White v. General Motors Corp., Inc., 908 F.2d 675, 683 (10th Cir. 1990). The Tenth Circuit has instructed district courts to consider several factors when considering the amount of attorney fees and costs to be awarded against a party as a sanction: (1) the reasonableness of any attorney fees that are sought by a party after measuring the fees by a lodestar calculation; (2) the minimum amount that is necessary in order to deter the offending party; (3) the offender's ability to pay; (4) and such other factors as may be appropriate in the circumstances, including such factors as "the offending party's history, experience, and ability, the severity of the violation, the degree to which malice or bad faith contributed to the violation, [and] the risk of chilling the type of litigation involved. . . ." White v. General Motors Corp., Inc., 908 F.2d at 684-85.
Assessment of attorney fees pursuant to the lodestar principles requires courts to determine the number of actual hours worked on any particular case, the number of hours that reasonably should have been expended, and the reasonableness of the hourly rate sought. Ramos v. Lamm, 713 F.2d 546, 552-55 (10th Cir. 1983). Thereafter, the court may exercise discretion to adjust the lodestar up or down based on certain factors. Id.
Hourly rates , Plaintiffs have filed no objections to the reasonableness of the hourly rates that are charged by any of the law firms that have presented billing statements, and no objections to the number of hours for which compensation is sought. Nevertheless, I have reviewed all of the billing statements. These statements reflect that the hourly rates for the defense lawyers who participated in this case range from a low of $125 per hour to a high of $290 per hour, varying with years and depth of experience. In my experience, all of these hourly rates fall within a range that is reasonable according to the going rates for attorneys who reside and practice within this district. Similarly, the billing rates for paralegals, which range from a low of $65 per hour to a high of $145 per hour, fall within a range of rates that is considered reasonable in this area.
Number of hours , "The first step in calculating fee awards is to determine the number of hours reasonably spent by counsel for the party seeking the fees." Ramos v. Lamm, 713 F.2d at 552 (citing Hensley v. Eckerhart, 461 U.S. at 424, 433 (1983)). The burden of proof lies with the prevailing party seeking fees. Hensley at 437.
I have evaluated the number of hours that were spent by the various individuals in the defense of this case. In evaluating the number of hours, I have taken into consideration the fact that this case presents an unusual set of circumstances. The manner in which the Sieverdings chose to prosecute this case necessarily caused some of the lawyers to spend an inordinate amount of time in the defense of this case, as compared with the number of hours that might be spent in the defense of an ordinary civil rights complaint filed by any other pro se plaintiff.
As I noted in my Recommendation, plaintiffs filed at least 10 different versions of their lengthy Complaint. The docketing records for this case reflect that 485 documents have been filed as of the date of this writing, the vast majority by plaintiffs. However, the number of documents filed continues to surge upward, because Ms. Sieverding simply will not stop. The lawyers in this case cannot ignore every motion that was filed or is presently being filed. To the extent that legal fees in this matter have become aggravated, they are aggravated because of the abusive manner in which plaintiffs have proceeded.
I submitted my Recommendation for Dismissal on October 14, 2003. After a flurry of motions from plaintiffs, I ordered them to cease filing any further motions until after Judge Nottingham had ruled upon the dispositive motions and my Recommendation. Plaintiffs deliberately violated my orders, and continued to file motions, all of which were baseless, frivolous and even absurd. Since the date of my Recommendation and instructions, plaintiffs have filed well over 200 motions, all of which required some degree of attention from the defense lawyers.
The absurdity of plaintiffs' motions is illustrated by the titles of some of the motions that were filed during a two-day period just one week after my Recommendation. On October 20 and 21, 2003, plaintiffs filed 20 so-called "motions for partial summary judgment," including such motions as "re Magistrate Judge Schlatter's abuse of discretion;" "re defendant attorney Oliphant;" "re defendant attorney Brougham;" "re Jane Bennett engaged in scienter fraud;" "re buildings constructed by Kevin and Jane Bennett in 2000 and 2001;" "re judicial determination that the following information, if true, is relevant to plaintiff's civil claims;" and so forth. Following those 20 motions, plaintiffs have filed approximately 150 more motions for summary judgment or default judgment, all of which are frivolous on their face.
Judge Nottingham issued his Order of Dismissal on March 19, 2004. Even that Order has not stopped Ms. Sieverding. Even though the case is dismissed, plaintiffs continue to this date to file frivolous motions for summary judgment, and motions for inane purposes, such as plaintiffs' motion of April 29, 2004, which asks "for input from the various judges and defense counsel about action discussed in the following affidavits and letter to attorney regulation counsel."
In addition to the burdens presented from the sheer volume of materials that were filed in court by plaintiffs, defense counsel were burdened as well with e-mails and telephone calls from Ms. Sieverding. Ms. Sieverding herself confirms her numerous efforts to contact counsel because she complained in a number of her pleadings that her efforts to meet and confer with all of the attorneys about a motion she intended to file were frustrated by the fact that on some occasions opposing counsel ignored — or attempted to ignore — her calls or inquiries. Given the number of motions that Ms. Sieverding was filing, her efforts to contact counsel no doubt consisted of a commensurate number.
Obviously, every contact, or attempted contact, from Ms. Sieverding translated into attorney or paralegal time, for which the client would be charged. In view of this problem, I entered an order on June 4, 2003, that suspended the application of our local rule that requires attorneys or pro se parties to meet and confer before the filing of any motion. I ruled that all of plaintiffs' motions would be "deemed opposed." When Ms. Sieverding persisted in her efforts to contact the defense lawyers, I entered an Order on July 3, 2003, that prohibited any contact of any kind. Had I required the lawyers to cooperate with every effort by Ms. Sieverding to meet and confer, the lawyers and their offices would have been subjected to unending abuse, and the legal fees in this case would be ten times the amount that have been presented.
In summary, defendants in this case have been the victims of extraordinary litigation abuse. They are entitled to be reimbursed for the fees and charges that they have suffered as a result of that abuse.White v. General Motors Corp., Inc., 908 F.2d at 683.
Burden upon the court . The lawyers were not the only victims of this abusive litigation by plaintiffs. The vast number of motions that plaintiffs filed has acted as an enormous burden upon the judges and staff of this Court. As I noted in my Recommendation, the numerous filings by plaintiffs must be processed by the clerical staff for the court. Because of the bizarre titles plaintiffs appended to their motions the clerks were confronted with the sometimes impossible task of deciphering exactly what it was they were logging in for plaintiffs. And sometimes the title of the motion was longer than any text that was supplied. Just one example of an absurd motion with a foolish title was on May 3, 2004, after this case had been dismissed. It reads, "Motion by the plaintiffs for summary judgment that the Steamboat Pilot Newspaper, with the advice of defense lawyers in this proceeding, and other defendants [names omitted] have made it impossible, very difficult, financially and socially hazardous, intimidating, or fearsome for witnesses living in or around Steamboat Springs to testify in any way that may help plaintiffs."
I have been advised informally by several staff that the volume of motions filed by plaintiffs exceeds any volume filed by any single individual in any case in this district in recent memory. During some periods, plaintiffs were filing between ten to twenty motions per day on a daily basis. Before my Recommendation was issued, virtually all of plaintiffs' motions, with rare exceptions, were groundless and frivolous. After my Recommendation was issued, all of the over 200 motions that they filed were clearly frivolous, because I had instructed plaintiffs not to file any until after a ruling from Judge Nottingham in regard to my Recommendation and the motions to dismiss. Obviously, after this case was dismissed by Judge Nottingham, the continued flood of motions for summary judgment, default judgment and motions such as the one quoted in the preceding paragraph are not only frivolous, they are needlessly burdensome for court and counsel.
Although the vast majority, if not all, of plaintiffs' motions were groundless and frivolous, many of the motions nevertheless have required the attention of either Judge Nottingham or me. Even absurd motions sometimes must be addressed, and I have been compelled in this litigation to issue something in the neighborhood of 35 or 40 orders in response to plaintiffs' activities. After issuing his Order of Dismissal, Judge Nottingham has been compelled to issue several orders that have denied the motions filed by plaintiffs subsequent to his ruling. Ms. Sieverding has continued to file motions as recently as May 4, 2004.
Ms. Sieverding and her family have imposed extraordinary burdens upon the court. Even if attorney fees were not being assessed against them as the sanction to be imposed in this case, a monetary punitive sanction of some sort would be appropriate and justified.
Bar Associations , The Colorado Bar Association ("CBA") submitted a Verified Statement of Costs and Attorneys' Fees. The Association did not provide an itemized statement that reflected the daily billing statements for each of the lawyers who worked on this case, but merely summarized that it had incurred fees and costs in the total amount of $11,996.21. Comparing this amount with the sums that are claimed by the other defendants, the CBA's claim falls into the lower range of requests. For this reason, and because fees and costs are being awarded against plaintiffs as a sanction for abusive litigation conduct, I will allow the CBA request without further documentation.
The American Bar Association ("ABA") did not file a request for fees. Nevertheless, as a part of this lawsuit, it was required to file a motion to dismiss, together with a brief in support of its motion, and its brief was at least as detailed and comprehensive as the CBA's brief in addressing plaintiffs' claims. It was also required to file a response to plaintiffs' frivolous motion for default judgment. I recommended to Judge Nottingham that plaintiffs be required to pay all fees and costs, whether fees and costs had been requested or not, and Judge Nottingham in his Order has directed that "Plaintiff Kay Sieverding and Plaintiff David Sieverding shall pay all attorney fees and costs incurred by all defendants. . . ." Therefore, and again because fees are being awarded as a sanction and a deterrence, I will award attorney fees and costs to the ABA in the total amount of $10,000, an amount that I find is reasonable, and is in the lower range of the amounts sought by the CBA and the other law firms.
Summary of lodestar , In summary, I conclude that no adjustment in the lodestar calculations of any of the attorneys is necessary. To the extent that any questions exist with regard to any particular billing, I would exercise my judicial discretion to adjust the lodestar to reflect an entitlement to the total amount contained in any particular statement.Ramos v. Lamm, 713 F.2d at 552-55. Therefore, I will award all defendants the amounts that are claimed in their billing statements for activities from and after January 30, 2003, and I will award the ABA the reasonable amount of $10,000.
3. Other factors.
In considering the efficacy and amount of any sanctions to be awarded, I may consider factors other than those referenced above, including such factors as "the offending party's history, experience and ability, the severity of the violation, the degree to which malice or bad faith contributed to the violation, [and] the risk of chilling the type of litigation involved. . . ." White v. General Motors Corp., Inc., 908 F.2d at 684-85. Given the circumstances of this case, I see no risk at all that an award of fees and costs against plaintiffs will chill the filing of civil rights complaints by others. Of course, the imposition of fees and costs against these plaintiffs is intended to chill their intentions with regard to further litigation over the events that occurred in Steamboat Springs commencing in the early 1990's.In weighing the amount of sanctions to be imposed, I have considered "the degree to which malice or bad faith contributed" to plaintiffs' violations. Plaintiffs' malice and bad faith is apparent throughout this litigation. It is illustrated, for example, in the pleading of June 16, 2003, that they filed in response to the motions to dismiss that were filed by the City of Steamboat Springs and the Office of the District Attorney (collectively, "the City defendants"). In their response, plaintiffs accused virtually every named official in the City and County with "bribery," "corruption," accepting "kickbacks" "sale and consumption of cocaine and marijuana," "sale of narcotics evidence in custody of the Steamboat Springs Police Department," "money laundering," "snorting cocaine," blackmailing of judges in Routt County, and many other defamatory, scandalous and politically unethical innuendos about citizens and City officials. See my 10-14-03 Order at 1, striking plaintiffs' response in part. The hundreds of motions filed by plaintiffs are filled with numerous, similar examples of such abusive and malicious accusations.
Plaintiffs' bad faith and malice is evidenced by the fact that their accusations were generally preceded by language such as "it is suspected," "it is believed," "it was reported that," "apparently," "it is therefore believed," "Plaintiffs suspect," and other such phrases. See Pltf s' Response, 6-16-03. These types of phrases act as admissions on the part of plaintiffs that they lacked any factual basis for the malicious accusations they were presenting.
Malice and bad faith practically ooze from every page of every motion that plaintiffs have filed. For this reason, plaintiffs are deserving of a sanction that acts to have a punitive effect upon them, and an assessment against them of the totality of fees and costs that were incurred by defendants will serve to have that effect.
4. Plaintiffs' ability to pay.
One factor that I must consider in my determination of the amount of fees to be assessed against plaintiffs is the plaintiffs' ability to pay. White v. General Motors Corp., Inc., 908 F.2d at 684-85. I conclude from the hundreds of documents that have been filed by plaintiffs, as well as from the remarks made by Ms. Sieverding at the status conference of January 30, 2003, that plaintiffs are able to pay the full amounts of the attorney fees and costs that will be awarded.
As I have pointed out in other contexts, plaintiffs have informed the court in previous filings that they own and operate their own business. Kay Sieverding has stated in some of her documents that she possesses both undergraduate and graduate degrees from reputable universities, and that she has been employed in technical positions that required a high degree of intelligence and learning. Some evidence of the success or profitability of plaintiffs' business is evidenced from remarks made by Ms. Sieverding during the status conference of January 30, 2003, when she boasted that one of the products that was manufactured by the Sieverding's company — apparently, a sort of slime — was purchased and used in the production of Hollywood movies.
Plaintiffs themselves have informed the court that they have always had the financial capacity to pay any lawyer who they could have found who would represent them in this case. Plaintiffs have informed the court in this regard, both during the status conference of January 30, 2003, and in various motions, that they contacted 20 lawyers in an effort to find one who would take their case. None would. However, plaintiffs did not attribute this failing to a want of money on their part. Rather, they placed the blame for this occurrence upon the Bar Associations. In plaintiffs' minds, the Bar Associations have pressured lawyers to not sue other lawyers, and that is the sole reason that plaintiffs could not find one to take their case. Because no lawyer would take their case, plaintiffs asked the court to appoint one, but with the proviso that plaintiffs themselves would pay any legal fees that would be incurred.
Plaintiffs have certainly demonstrated in this lawsuit their abilities to fund the costs of this highly expensive litigation. They have filed almost a dozen 100-page Complaints, in other courts as well as this one, and they have filed hundreds of motions. The copies of plaintiffs' documents that were received by my chambers alone stand two feet in height. Multiply those pages by the numbers of copies that plaintiffs were required to serve upon court and counsel, and the conclusion is inescapable that plaintiffs have not blinked at the expenditure of thousands of dollars in funding this lawsuit.
In light of the above, I find and conclude that plaintiffs have the ability to pay the fees that have been incurred by all of the defendants that they sued. I am not finding that payment of these fees will be easy or without hardship. However, that is the point of assessing fees for punitive and deterrent purposes, to impose some measure of hardship upon plaintiffs toward the end that they will be discouraged from taking their Complaint to another federal or state court, and begin the process anew. In my view, the amount that they will be required to pay is the minimum amount necessary to achieve any deterrent purpose.
CONCLUSION
It is therefore ORDERED that, pursuant to the statements submitted by counsel and as otherwise noted, all defendants are awarded their attorney fees and costs for all services from and after January 30, 2003, in the follow ing total amounts:
1. Hall Evans (City of Steamboat Springs and District Attorney defendants) $21,547.61 2. Lettunich Vanderblemen (The City of Steamboat Springs, Kevin Bennett, Ken Brenner, Kathy Connell, James Engleken, Art Fiebing, Sandy Fiebing, Daniel Foote, J.D. Hays, Paul Hughes, Anthony Lettunich, Wendie Schulenburg a/k/a Rooney, Melinda Sherman, Arian the Stettner, Paul Strong, and James Weber) $11,196.00 3. McConnell Siderius (Randall W. Klauzer, Klauzer Tremaine, LLC, James "Sandy" Horner, and Jane Bennett) $35,857.00 4. Feldmann, Nagel Oliphant, LLC (James B.F. Oliphant) $8,900.00 5. Faegre Benson (WorldWest, L.L.C., d/b/a The Steamboat Pilot and Steamboat Today, and Suzanne Schlicht) $12,368.00 6. White Steele (Colorado Bar Association) $11,996.21 7. American Bar Association (per order of court) $10,000.00