Free Objections - District Court of Colorado - Colorado

Case 1:04-cv-00860-WDM-PAC

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Filed 07/19/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00860-WDM-PAC ROBERT ALWARD Plaintiff, v. VAIL RESORTS, INC., a Colorado corporation; VAIL CORPORATION, INC. D/B/A/ VAIL ASSOCIATES INC., a Colorado corporation; VR HOLDINGS, INC., a Colorado corporation; and WILLIAM JENSEN, individually and in his official capacity as Senior Vice President and Chief Operating Officer of Vail Resorts, Inc. Defendants. ______________________________________________________________________________ RESPONSE TO AFFIDAVIT OF SHERRI HECKEL KUHLMANN FOR ATTORNEYS' FEES ______________________________________________________________________________ Pursuant to the Court's Orders dated April 27, and July 15, 2005, Plaintiff's counsel submits this Response to the Affidavit of Sherri Heckel Kuhlmann for Attorneys' Fees ("Affidavit") (filed May 23, 2005). SANCTIONS SHOULD NOT BE IMPOSED AGAINST PLAINTIFF'S COUNSEL Plaintiff's counsel objects to the imposition of sanctions for the reasons set forth in the Response to Order to Show Cause (filed July 19, 2005), which is incorporated in these Objections by reference. In addition, the court has set a hearing on this matter for July 28, 2005, DEFENDANTS' AFFIDAVIT FAILS TO ESTABLISH THAT THE FEES REQUESTED ARE REASONABLE. On May 23, 2005, Defendants served by mail their Affidavit, which claims $30,043.75 in attorneys' fees in conjunction with various proceedings in this case from December 23, 2004 through April 15. 2005. These fees and costs are excessive because both the hourly billing rates, and the total number of hours expended on professional services, are unreasonably high. The

Case 1:04-cv-00860-WDM-PAC

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time records are also not sufficiently detailed, since they do not indicate how much time was spent on particular tasks, but are combined into one entry. Moreover, there is no indication that the fees and costs set forth in the Affidavit were actually billed to, or paid by, the Defendants. The Court has a responsibility to ensure that hours the Defendants' counsel would not properly bill to Defendants are not passed on to the plaintiff's counsel in this fee application. Wirtz v. Kansas Farm Bureau Services, Inc., __ F.Supp. 2d ___, 2005 WL 292554, at *3 (D.Kan. 2005) (copy attached to Docket #130 and incorporated herein by reference). The Hourly Billing Rates Defendants Seek Are Excessive In this District, a claimant who files and application for attorneys' fees has the burden to prove that the fee is reasonable. Guides, Ltd. v. Yarmouth Group Property Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). A reasonable rate is the prevailing market rate in the relevant community. Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). To meet this burden, the claimant 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. A rate determined in this way is normally deemed to be reasonable and is referred to--for convenience--as the prevailing market rate. Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Defendants' Affidavit fails to meet this burden. In the Affidavit, defendants ask the court to award them $325 per hour for Ms. Kuhlmann's time1, $250 per hour for Mr. Ottele's time2, and $150 per hour for time spent by their paralegal, Ms. Torok-Glover. However, the Affidavit fails to state sufficient information concerning the skills and experience of the individual lawyers for whom fees are sought, and how these rates compare with the prevailing rates in the

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The Affidavit states that Ms. Kuhlmann's hourly rate was $295 before January 1, 2005, but the Affidavit only includes fees incurred after that date, at the rate of $325 per hour. 2 Mr. Ottele's rate was $225 per hour in 2004. The Affidavit claims one hour at this rate.

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community. Moreover, the Affidavit fails to establish that the hourly rates requested in the Affidavit are consistent with the prevailing rates at the law firm of Holme Roberts & Owen. Guides, 295 F.3d at 1079. The Affidavit also fails to establish that the hourly rates set forth in the affidavit are consistent with rates charged by comparably skilled lawyers in the community. Because defendants' counsel has failed to establish that the fees requested are reasonable, the amount of fees defendants' requested in the Affidavit should be denied. In fact, the hourly rates defendants' counsel charges are excessive. By comparison, Plaintiff's counsel has been practicing employment law and ERISA before this District and the Southern District of New York with large national, and small local, firms for more than twelve years. The prevailing rate in this community for this level of experience is approximately $225 to $250 per hour. For an associate of Mr. Ottele's level, the prevailing rate in this community is no more than $175 per hour. Similarly, paralegal rates in this community are between $50 and $95 per hour. Thus, the total amount of fees should be reduced accordingly. The Total Number Of Hours Of Attorney Time Is Excessive In accordance with the lodestar analysis, compensable attorney's fees are determined by multiplying a reasonable billing rate by a reasonable estimation of hours expended on professional services. Hughes v. Regents of the University of Colorado, 967 F.Supp. 431, 441 (D.Colo. 1996) (citing Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 945, 103 L.Ed.2d 67 (1989) (awarding attorney's fees in a civil-rights action); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Defendants have the burden to establish that the total number of hours claimed is reasonable. The Affidavit, however, fails to meet this burden because it makes only conclusory statements about the reasonableness of the number of hours. Specifically, the Affidavit is 3

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deficient because it does not set forth: (1) the total number of hours claimed; (2) a subtotal of the number of hours expended by each of the timekeepers; (3) a subtotal of the number of hours expended in each of the seven categories which defendants assert the court assessed fees; (4) the billing records do not provide detail for each task performed, thus the amount of time actually spent on the tasks contained in the Affidavit cannot be determined; and (5) fails to show in detail that the hours expended in each category and by timekeeper were reasonable. In addition, the time entries themselves are not reliable. On February 4, 2005, Ms. Kuhlmann submitted an Affidavit of fees and Costs purportedly incurred by defendants in conjunction with their motion to compel, which was the subject of the January 25, 2005 hearing. [Docket #110]. In that affidavit, Ms. Kuhlmann attested that on January 11, 2005, Mr. Ottele spent one-half hour (.50) on that motion. However, in the Affidavit submitted on May 23, 2005, she now attests that Mr. Ottele spent twice that amount of time--one full hour--on this same task and description. Apparently, defendants' counsel has subsequently modified their time entries--and over billed their client--for these tasks. Similarly, the time entry for PAT on 1/24/05 falsely suggests that defendants prepared additional medical releases for plaintiff's signature. Defendants did not transmit any such releases to plaintiff. In fact, this is the date that defendants drafted a letter to the Vail Valley Medical Center and resubmitted plaintiff's medical release to obtain all of Plaintiff's medical records--in violation of the release and this court's order on January 25, 2005. See Exhibit 5 to Plaintiff's Response to Defendants' Second Motion to Compel [Docket #134], incorporated herein by reference. Apparently this task was redacted on the copies of the bills attached to the Affidavit. This evidence calls into question the accuracy of the time entries and bills such that the court should disregard them entirely.

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Defendants cannot meet their burden. Defendants' counsels' failure to confer, and scorched earth litigation tactics have resulted in the excessive multiplication of the costs, and extreme delay, of this litigation. The fees incurred as a result of these actions should therefore not be taxed against plaintiff's counsel. The majority of the expenses incurred on both sides of this case stem from defendants' counsel's refusal to discuss issues. Plaintiff's counsel maintains that defendants did not confer before filing their motions to compel. Had they done so, the parties and the court would likely have been able to avoid the numerous discovery motions and lengthy hearings for which they now seek fees. Accordingly, none of the hours reflected in the Affidavit can be reasonably assessed against plaintiff's counsel. In fact, plaintiff's counsel maintains that defendants should be taxed the fees and costs incurred by plaintiff as a result of their failure to confer and participate in a dialogue about any issue during discovery. For example, the Affidavit claims several hours for "correspondence with counsel." See, e.g. time entries on 1/26/05, 2/1/05, 2/4/05, 2/2/10/05, 2/11/05, 2/17/05, and 2/28/05. The "correspondence" actually was by email, not letter, because Defendants' counsel refused to communicate with plaintiff's counsel by telephone. Throughout this action, plaintiff's counsel has called defendant's counsel to discuss various matters. Plaintiff's counsel has pointed out to defendants' counsel that email is a time consuming and inefficient way to have a conversation. Defendants' counsel insisted on using email as the primary, and usually only, means of communication. Thus, opposing counsel should not be compensated for these hours. Similarly, defendants' counsel overstaffed this single employee discrimination case, and the court should not award duplicative fees incurred as a result.

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Defendants' First Motion to Compel In their Affidavit, defendants seek compensation for two attorneys' time billed in connection with the Motion and the hearing, totaling 13.25 hours. Of this total, nearly four hours was allegedly spent drafting the Motion. The Motion, however, consists of three pages in total plus exhibits. The actual argument in the Motion is only one page long, covers two simple topics, and cites no legal authority. Such a motion should not have taken an experienced attorney more than an hour to prepare, with exhibits. Wirtz, 2005 WL 292554 at *4 (reducing number of hours spent on subject motion, which was 13 pages long, to 6 hours). Thus, the total number of hours spent preparing the motion is excessive. Similarly, defendants seek an excessive number of hours for preparation and attendance at the hearing. Defendants seek 6 hours of Ms. Kuhlmann's time, and 3.5 hours of Mr. Ottele's time in conjunction with the hearing, although Mr. Ottele did not participate in the hearing or the pre-hearing "meet and confer." Defendants cannot reasonably recoup time spent for two attorneys to sit at a hearing when one of them does nothing. Either Mr. Ottele should have handled the hearing, since he apparently wrote the Motion, or he should not have attended the hearing at all. The duplicative time should not be recovered. In addition, the six hours of Ms. Kuhlmann's time include time billed for a "post-hearing telephone conference with opposing counsel"--which never occurred. Moreover, the amount of time apparently billed for Ms. Kuhlmann to prepare for the hearing is excessive in light of the issues presented. The inefficiencies created by counsel's decision to overstaff the case so that the attorney drafting the Motion was not the same attorney who argued it resulted in an unreasonably high number of hours spent on this Motion. Defendants cannot pass on these

unreasonable fees to the plaintiff's counsel. Accordingly, the total number of hours requested should be reduced to no more than 4.5 hours in total. 6

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Defendants' Second Motion to Compel Had defendants' counsel conferred with plaintiff's counsel before filing this motion, it would not have been necessary. Thus, none of these hours were reasonably expended. Moreover, for the reasons set forth in plaintiff's response, the Motion was without merit, and was also brought without conferring with the plaintiff in advance. In the interest of avoiding duplicative pleadings, plaintiff incorporates his Response to Defendants' Second Motion to Compel as if fully set forth herein. [Docket #134], and the Court's Minute Order dated March 25, 2005, and Order dated June 1, 2005 [Docket 194]. Plaintiff's Fourth Motion to Compel Defendants have also double billed for time spent in response to plaintiff's Fourth Motion to compel. See time entries for 3/29/05, 4/04/05, and 4/15/05. This motion did not call for two attorneys to spend a total of 9.75 hours drafting a response, and two attorneys to spend a total of 7.0 hours preparing for, (and both attending) the hearing. Mr. Ottele again did not participate in any way at that hearing, and his attendance should not have been billed to the client--or assessed to plaintiff's counsel. In addition, in light of the fact that Ms. Kuhlmann apparently spent 6.5 hours drafting the response to that motion, her entry for an additional 3 hours of preparation time for the hearing is excessive. Such preparation for the hearing would normally be included in the exercise of preparing the response to the Motion. Moreover, this task could have been assigned to Mr. Ottele, since he has drafted virtually every motion and response the defendants filed in this case. Thus, these hours should be reduced to no more than 6 hours in total, at the reduced hourly rate applicable for a 6th year associate. Plaintiff's Motion for Reconsideration of the January 25, 2005 Order [126] Defendants' response consisted of three pages of text, with no exhibits, and cites to only one case. Yet defendants' counsel recorded 7.75 hours to prepare this response. See Affidavit, 7

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time entries on 2/17/05, 3/6/05, 3/7/05, and 3/8/05. Defendants' counsel cannot show that such excessive time billings were reasonable. At most, defendants' response should not have required more than 2.0 hours, including the time spent for legal research and to review plaintiff's motion. However, since the court granted this motion for reconsideration in part [Docket 155], it was not wholly without merit, and does not warrant an award of attorneys' fees. Thus, none of these fees can be properly and reasonably assessed against plaintiff's counsel. Plaintiff's Motion for Reconsideration of the February 17, 2005 Order [Docket # 137] Defendants billed 27.0 hours, including duplicative entries for Ms. Kuhlmann and Mr. Ottele for drafting a response to this motion and appearing at the hearing on March 25, 2005. Such time was excessive, especially since opposing counsel asserts that the issues presented were nothing more than a rehash. If so, counsel would have simply copied and pasted their previously drafted responses into this response, so that very little new work was actually necessary. Defendants' response did not require two attorneys to draft and attend the hearing. Since Mr. Ottele drafted the response, he could have handled the hearing. Thus, all of Ms. Kuhlmann's time was unnecessary and the result of overstaffing this task. Accordingly, none of it should be recovered. Similarly, the time Mr. Ottele spent conferring with Ms. Kuhlmann was duplicative and inefficient. Accordingly, defendants should not have been billed more than 4.0 hours of Mr. Ottele's time, for all research and drafting of the response, and attending the hearing. However, since the court granted this motion for reconsideration in part [Docket 155, and Courtroom Minutes/Minute Order dated March 25, 2005], it was not wholly without merit, and does not warrant an award of attorneys' fees. Thus, none of these fees can be properly and reasonably assessed against plaintiff's counsel.

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Case 1:04-cv-00860-WDM-PAC

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Medical and Employment Releases As set forth above, defendants misappropriated plaintiff's medical records release and resubmitted it to the Vail Valley Medical Center in January 2005. This conduct was improper, and should have been sanctioned. Now, defendants ask the court to award them their fees incurred as a result of this unauthorized conduct. See time entries for 1/24/05. The court must refrain from doing so. Moreover, this time entry is inaccurate, because defendants did not submit additional medical releases for plaintiff's signature, until February 2, 2005. Similarly, as set forth in the Response to Order to Show Cause, defendants' request for medical and employment records releases should not have been granted, because such information is either not relevant to any of plaintiff's claims in this action, or was already provided to the defendants in August 2004. Plus, the delays in providing medical and employment releases were not due solely to plaintiff's counsel's actions. Thus, the court should not award any fees for time spent on this issue. Visa applications, Rule 30(b)(6), Vail files, depositions Defendants have failed to show that any of the time and fees incurred with respect to these issues were reasonable, and not due to their own inappropriate conduct, overstaffing, and over billing. As set forth in plaintiff's counsel's Response to the Order to Show Cause, and the above-referenced pleadings, plaintiff's counsel should not be sanctioned for the time expended by defendants on these issues. CONCLUSION For the foregoing reasons, plaintiff objects to the fees and costs requested by defendants in the Affidavit. Plaintiff's counsel asserts that the court improperly awarded defendants their fees and costs, and that no such award is appropriate. In addition, the total number of hours and the hourly rates and costs sought are excessive. Even if the award were appropriate, the amount 9

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of fees and costs Defendants reasonably incurred through no fault of their own and solely attributable to plaintiff's counsel's conduct does not exceed $1,000.00. Dated this 19th day of July 2005. McCLAIN DREXLER, LLC By: /s/ Nina H. Kazazian Nina H. Kazazian Of Counsel 1700 Lincoln Street Suite 3850 Denver, Colorado 80203-4538 Telephone: (303) 860-8400 Email: [email protected] ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on this 19th day of July 2005, I electronically filed the foregoing OBJECTIONS TO AFFIDAVIT OF SHERRI HECKEL KUHLMANN FOR ATTORNEYS' FEES with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the defendants addressed to the following email address: Sherri Heckel Kuhlmann Christopher Ottele Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203

/s/ Nina H. Kazazian

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