You're viewing Docket Item 136 from the case Jackson v. Diversified Collection Services, Inc.. View the full docket and case details.

Download this document:

Case 1:09-cv-00680-WDM-BNB Document 136 Filed 08/01/11 USDC Colorado Page 1 of 4



Senior Judge Walker D. Miller

Civil Case No. 09-cv-00680-WDM-BNB








This matter is before me on Defendant’s Motion for Attorney Fees (ECF No. 124)

and further argument on Plaintiff’s Motion for Attorney Fees (ECF No. 112), both of

which were filed in response to my March 31, 2011 order (ECF No. 122) which granted

in part Plaintiff’s motion and granted in part Defendant’s previous Motion for an Order

Finding that Certain of Plaintiff’s Claims were Filed in Bad Faith and for the Purpose of

Harassment (ECF No. 113). This order finalizes my ruliings on the claim of each party

against the other for attorney fees and costs.

Plaintiff’s Claim for Attorney Fees

Plaintiff’s motion originally sought $41,610 in attorney fees, representing $33,275

charged by Mr. Larson and $8,325 charged by Mr. Wynkoop. Following my March 31,

2011 order, only Mr. Larson’s fees remain at issue. The claimed amount of $33,275


Case 1:09-cv-00680-WDM-BNB Document 136 Filed 08/01/11 USDC Colorado Page 2 of 4

reflects 133.1 hours charged at a $250 rate. Plaintiff’s independent expert, Michael

Kleinan, opined the rate and fees charged were reasonable in the Denver market. (ECF

No. 112-2). I note that Defendant claimed that the rate of $225 per hour is reasonable

and I do conclude that a rate of $225 to $250 per hour for attorneys experienced in this

type of litigation is a reasonable rate in the Denver community.

Defendant makes conclusory allegations about the number of hours but provides

no independent expert evidence to challenge Plaintiff’s expert as to the particular items.

Defendant also does not address with any particularity the time actually spent defending

the parties and claims dismissed. Apparently Defendant seeks to have me pour over

the numbers without any evidentiary assistance. I decline to do so. As the United

States Supreme Court recently noted, “trial courts need not, and indeed should not,

become green-eyeshade accountants.” Fox v. Vice, ___ S.Ct. ____ 2011 WL 2175211

at *8 (U.S. 2011). Rather than relying simply on the principle that a nominal damage

award can mean “no fee at all” Farrar v. Hobby, 506 U.S. 103, 115 (1992), I significantly

reduce the fee claim by approximately 80% to $6,500 to reflect that Plaintiff was only

successful on approximately one-fourth of his claims, but also to reflect the fact that

Plaintiff’s unnecessary multiplication of claims burdened the Defendant and this court to

justify the imposition of the sanction provided under § 1927.. See Mares v. Credit

Bureau of Raton, 801 F.2d 1197 (10th Cir. 1986).

Defendant’s Attorney Fee Claim

Defendant seeks to recover $29,647.12 in fees based upon a wholly fabricated

theory of relying on recovery of the fees charged by one of apparently several attorneys



Case 1:09-cv-00680-WDM-BNB Document 136 Filed 08/01/11 USDC Colorado Page 3 of 4

who worked on this case, albeit limited to time spent after the pretrial conference.

Defendant does provide affidavits of experienced litigators that the hours and rates are

reasonable without any effort to address whether those hours relate in any way to the

claims that were withdrawn and dismissed. See ECF Nos. 124-3 & 4. That and other

information or conclusory arguments wholly fail to respond to the specific guidelines I

provided in my March 31, 2011 order, namely that the motion would provide

“appropriate information for recovery of attorney’s fees and costs incurred after the entry

of the pretrial order to defend against the claims withdrawn and dismissed.” ECF No.

122 at p. 12. Apparently Defendant wants to deposit miscellaneous information upon

my desk and let me somehow root out a fair amount of compensation to which it’s

entitled. I will not do so. As noted by the then Seventh Circuit, “[j]udges are not like

pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 957

(7th Cir. 1991). Being entitled to fees does not mean there will be an award without


It is therefore ordered:

1. Plaintiff’s Motion for Attorney Fees (ECF No. 112) is granted in part to award

attorney fees of $6,500 and is otherwise denied.



Case 1:09-cv-00680-WDM-BNB Document 136 Filed 08/01/11 USDC Colorado Page 4 of 4

2. Defendant’s Motion for Attorney Fees (ECF No. 124) is denied.

DATED at Denver, Colorado, on August 1, 2011


s/ Walker D. Miller
United States Senior District Judge