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

Case 1:02-cv-01950-EWN-OES

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Filed 12/30/2005

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Civil Action No. 02-cv-01950-EWN-OES KAY SIEVERDING, et al. Plaintiffs, v. COLORADO BAR ASSOCIATION, et al. Defendants. __________________________________________________________________________ NEWSPAPER DEFENDANTS' MOTION FOR AWARD OF POST-JUDGMENT ATTORNEY'S FEES AND COSTS __________________________________________________________________________
Defendants WorldWest Limited Liability Company, d/b/a The Steamboat Pilot & Today, and Suzanne Schlicht (herein, "the Newspaper Defendants"), through their attorneys with Faegre & Benson, LLP, pursuant Colo. Rev. Stat. §§ 13-17-102 and 13-17-201, 42 U.S.C. § 1988, and the Court's inherent power to compensate an injured party for conduct in contempt of the Court's orders, respectfully moves for entry of an award of the Newspaper Defendants' post-judgment attorney's fees and costs arising from the Plaintiff's frivolous appellate litigation and the multiple contempts of court committed by Plaintiffs in filing numerous frivolous pro se civil actions around the country, in violation of this Court's March 19, 2004 filing restrictions that limit these Plaintiffs' pro se litigation. In support of this Motion, the Newspaper Defendants state as follows: 1. On May 14, 2004, this Court entered an award of attorney's fees and costs in

favor of all defendants based on the frivolous claims and conduct of Plaintiffs then to date in the

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trial court proceedings, with the total amount set at $111,864.82, of which $12,368.00 constituted an award for the Newspaper Defendants' fees and costs. See "Order Awarding Fees And Costs To Defendants," at 17, entered May 14, 2004. 2. The Plaintiffs' right to appeal that attorney's fees award has long since expired,

and the defendants are jointly in the process of seeking execution in Wisconsin on that award. 3. In the meantime, the Newspaper Defendants have incurred substantial additional

attorney's fees as a result of the Plaintiffs' frivolous appeal in the Tenth Circuit Court of Appeals, arising from the underlying March 19, 2004 judgment of this Court, as well as also from the Plaintiffs' continued frivolous pro se litigation in the District of Minnesota, the Eighth Circuit Court of Appeals, the District of Northern Illinois, the District of Columbia, and most recently, the District of Kansas. 4. On September 2, 2005, this Court found both Plaintiffs to be in contempt of court

for their multiple violations of that portion of the Court's March 19, 2004 order that constituted a filing restriction on the Plaintiffs' right to engage in pro se litigation. 5. Following the show cause hearing on September 2, 2005, Plaintiff David

Sieverding purged his contempt by withdrawing from the contumacious pro se litigation. Plaintiff Kay Sieverding, however, has not purged her contempt. She remains incarcerated under the Court's remedial power to enforce its orders. 6. Notwithstanding Kay Sieverding's continuing incarceration, she subsequently

filed a pro se civil action in the District of Kansas that once again improperly seeks to raise claims that involve the same transactions that were described in this case. This Court has set a

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show cause hearing for January 4, 2006 to determine, in part, whether further remedial restrictions should be put in place in light of this new contumacious lawsuit in Kansas. 7. In this Motion, the Newspaper Defendants seek an award for their post-judgment

attorney's fees and costs since the Court's previous attorney's fees order of May 14, 2004.1 8. With respect to the post-judgment fees and costs incurred as a result of the

Plaintiffs' frivolous appeal to the Tenth Circuit, the Newspaper Defendants are entitled to an award of their reasonable attorney's fees and costs under both Colo. Rev. Stat. §§ 13-17-102 and 13-17-201. See Wilson v. Meyer, __ P.3d __, Case No. 03-CA-2117, 2005 WL 2046224, at *8 (Colo. App. Aug. 25, 2005) (holding that appellate fees and costs are recoverable under Colo. Rev. Stat. § 13-17-201 when the party who prevailed on a Rule 12(b) motion to dismiss in the trial court also prevails in defending the dismissal on appeal) (citing Wark v. Board of County Comm'rs, 47 P.3d 711, 717 (Colo. App. 2002)); Barnett v. Denver Publ'g Co., 36 P.3d 145, 1489 (Colo. App. 2001) ("[B]ecause we have concluded that the trial court properly dismissed Barnett's claim under C.R.C.P. 12(b)(5), it was required to award attorney fees to the Rocky Mountain News. . . . Furthermore, the Rocky Mountain News is entitled to reasonable attorneys fees for defending this appeal.") (emphasis added); Mission Denver Co. v. Pierson, 674 P.2d 363, 366 (Colo. 1984) (holding that fees on appeal should be awarded where the appeal is found to be frivolous); Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17, 19 (Colo. Ct. App. 1986) (same). Thus, in light of the Tenth Circuit's finding that Plaintiffs' filings were frivolous in their

The Court's May 14, 2004 award covered the fees and costs incurred by the Newspaper Defendants up to May 1, 2004. This current Motion covers the fees and costs incurred by the Newspaper Defendants from May 1, 2004 through December 1, 2005.

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appeal of this Court's Rule 12(b) dismissal of the underlying lawsuit, the Newspaper Defendants should be awarded their post-judgment appellate fees and costs under either or both Colo. Rev. Stat. §§ 13-17-102 and 13-17-201. 9. In addition, to the extent that any portion of the Plaintiff's claims against the

Newspaper Defendants in the underlying action were premised on 42 U.S.C. § 1983,2 the Newspaper Defendants also are entitled to their appellate fees and costs on the basis of 42 U.S.C. § 1988 because their appellate litigation was frivolous. See Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983); Meyers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir. 2000). 10. With respect to the post-judgment fees and costs incurred as a result of the

Plaintiff's continuing contempts of court, the Newspaper Defendants are entitled to an award of all damages ­ which in this context are comprised by their attorney's fees and costs ­ suffered as a result of the Plaintiffs' contumacious conduct. See Reliance Ins. Co. v. Mast Construction Co., 159 F.3d 1311, 1318 (10th Cir. 1998) ("Civil contempt may be used `to compensate the contemnor's adversary for injuries resulting from the contemnor's noncompliance' with a court order.") (quoting O'Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1211 (10th Cir. 1992); John Zink Co. v. Zink, 241 F.3d 1256, 1261-62 (10th Cir. 2001) (affirming an award of

The Plaintiffs' March 30, 2003 Amended Complaint appears not to allege any claims against the Newspaper Defendants under 42 U.S.C. § 1983. Nevertheless, to the extent that the Plaintiffs' pro se pleading is liberally construed to include a Section 1983 claim against these particular defendants, then the Plaintiffs are equally subject to the case law allowing a defense award of attorney's fees under 42 U.S.C. § 1988.

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attorney's fees on behalf of the party prosecuting a motion for contempt, without requiring a showing of willfulness in the contemnor's conduct). 11. As of the filing of this motion, for the period running from May 1, 2004 to

December 1, 2005, the Newspaper Defendants have expended attorney's fees and costs in the amount of $70,963.56. See Declaration of Jeffrey S. Steen, ¶ 7, attached hereto, with accompanying copies of invoices for legal services to the Newspaper Defendants. 12. This amount for the Newspaper Defendants' fees and costs is presumptively

reasonable for purposes of the Court's calculation of a lodestar amount of a fees award because it constitutes the actual amount billed under a market-based hourly fee arrangement, and as a result, the Newspaper Defendants are entitled to full compensation. See Gusman v. Unysis Corp., 986 F.2d 1146, 1150 (7th Cir. 1993) (holding that a market rate actually charged a client constitutes a "reasonable" rate); Balkind v. Telluride Mountain Title Co., 8, P.3d 581, 588 (Colo. App. 2000) (holding that the prevailing market rate for an attorney's services constitutes a "reasonable" rate under § 13-17-201, C.R.S.). 13. In addition, this Court already has concluded that the hourly rates charged by the

Newspaper Defendants' counsel are reasonable under the circumstances. See "Order Awarding Fees And Costs To Defendants," at 6, entered May 14, 2004. 14. This Court also already has concluded that Plaintiffs have an ability to pay

attorney's fees in light of their continued pattern of inundating the courts of this country with voluminous papers and their failure at any time to plead poverty as a basis for their inability to obtain legal counsel. See id. at 14-16.

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Certificate of Exemption from Local Rule 7.1(A)
Undersigned counsel for the Newspaper Defendants certifies, pursuant to D.C. Colo. L. Civ. R. 7.1(A), that no conference between the parties has been held concerning this Motion based on the Court's prior order of June 4, 2003 suspending the meet-and-confer requirements of Local Rule 7.1.A. See "Order Suspending Application to this Case of the Requirements of D.C.Colo.LcivR. 7.1A.," at 3, entered June 4, 2004.

WHEREFORE, the Newspaper Defendants respectfully request that the Court enter an award of the Newspaper Defendants' post-judgment attorney's fees and costs in the amount of $70,963.56.

Respectfully submitted this 30th day of December, 2005,

By s/ Christopher P. Beall Thomas B. Kelley Christopher P. Beall FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203-4532 (303) 607-3500 ATTORNEYS FOR DEFENDANTS WorldWest Limited Liability Company, d/b/a The Steamboat Pilot & Today, and Suzanne Schlicht

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CERTIFICATE OF SERVICE I hereby certify that on this 30th day of December, 2005, I electronically filed the foregoing NEWSPAPER DEFENDANTS' MOTION FOR AWARD OF POSTJUDGMENT ATTORNEY'S FEES AND COSTS with the Clerk of the Court using the ECF/CM electronic filing system, which will send an electronic copy of this filing to the following counsel of record: David R. Brougham, Esq. ­ [email protected] HALL & EVANS 1125 17th Street, Suite 600 Denver, Colorado 80206 Brett Norman Huff, Esq. ­ [email protected] WHITE AND STEELE, P.C. 950 Seventeenth Street, 21st Floor Denver, Colorado 80202-2804 Michael T. McConnell, Esq. ­ [email protected] Traci L. Van Pelt, Esq. ­ [email protected] Meghan Elizabeth Pound, Esq. ­ [email protected] McCONNELL, SIDERIUS, FLEISCHNER, HOUGHTALING & CRAIGMILE, LLC 4700 South Syracuse Street, Suite 200 Denver, Colorado 80237
I also certify that the same foregoing document will be placed in the U.S. Mail, postage prepaid, correctly addressed to the following additional persons who are not registered with the Court's ECF/CM system:

Plaintiffs: (With courtesy copy e-mailed to [email protected]) Kay Sieverding David Sieverding Ed Sieverding Tom Sieverding 641 Basswood Avenue Verona, Wisconsin 53593 Kay Sieverding Clear Creek County Jail Post Office Box 518 Georgetown, Colorado 80444

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Defendants: James B.F. Oliphant, Esq. FELDMANN, NAGEL & OLIPHANT LLC 919 Oak Street Post Office Box 775628 Steamboat Springs, Colorado 80477

Patricia J. Larson, Esq. Office of the General Counsel American Bar Association 321 North Clark Street Chicago, Illinois 60610-4714

s/ Tracy Reed
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