United States District Court, D. New Mexico
JACKIE MARTINEZ, as Personal Representative on behalf of the Estate of Russell Martinez, Plaintiff,
JOSEPH SALAZAR, in his individual Capacity, and GREG ESPARZA, in his individual capacity, Defendants.
AMENDED ORDER AWARDING FEES AND COSTS
matter comes before the Court upon the Declaration of Todd A.
Coberly Requesting Expenses (“Declaration”),
(Doc. 227), filed on February 3, 2017, and Defendants'
Response (“Response”), (Doc. 256), filed on
February 20, 2017. The Declaration was filed pursuant to this
Court's order that Defendants pay all reasonable
expenses, including attorney's fees, Plaintiff incurred
in her attempts to locate Defendant Joseph Salazar's
Taser data, and in bringing her related Motion for Sanctions
for Defendants' Failure to Preserve Taser Data
(“Motion for Sanctions”). (Doc. 225) at 14; (Doc.
declaration, Mr. Coberly summarized the work related to the
issue of Defendant Salazar's Taser data as follows: (1)
reviewing and attempting to decipher the data from 29 Tasers;
(2) conducting research for and drafting an opposed motion
for leave to take a Rule 30(b)(6) deposition, see
(Doc. 172), and a reply to Defendants' response to the
motion, see (Docs. 177 & 178); (3) preparing
for, traveling to and from, and participating in a hearing on
the motion for leave to take a Rule 30(b)(6) deposition in
Albuquerque on May 5, 2016, see (Doc. 192); (4)
preparing for and taking the deposition of Defendants'
Rule 30(b)(6) designee, Francisco Galvan; (5) conducting
research for and drafting an opposed Motion for Sanctions,
see (Doc. 196), and a reply to Defendants'
response to the Motion for Sanctions, see (Docs. 198
& 199); and (6) preparing for, traveling to and from, and
participating in a hearing on the motion for sanctions in Las
Cruces on January 19, 2017, see (Doc. 225). In
performing these tasks, Plaintiff requests compensation for
42.5 hours of Mr. Coberly's time, 61.7 hours of Nat
Chakeres' time, and 1.8 hours of time expended by
paralegals. (Doc. 227) at 5 ¶ 21. Plaintiff requests
compensation for these hours at the rate of $275.00 per hour
for work performed by Mr. Coberly, $225.00 per hour for work
performed by Mr. Chakeres, and $125.00 per hour for the work
performed by their law firm's paralegals. Id. at
6-7 ¶¶ 24-25.
response, Defendants argue that Plaintiff's requested
amount of fees is excessive, and therefore unreasonable.
(Doc. 256) at 1. First, Defendants argue that Mr. Coberly and
Mr. Chakeres should be compensated at a rate of $225.00 and
$200.00 per hour, respectively, as ordered by the Honorable
William P. Lynch on May 13, 2016. Id. at 1-2.
Defendants maintain that the rate ordered by Judge Lynch
remains appropriate, as it was determined less than a year
ago and Plaintiff has provided no evidence which would
suggest otherwise. Second, Defendants contend that Plaintiff
should not be compensated for underlying discovery motions
other than the Motion for Sanctions, as Plaintiff has not
demonstrated how those motions are related to the Motion for
Sanctions or the issue of Defendant Salazar's Taser data.
Id. at 2-3. Third, Defendants submit that both Mr.
Coberly's and Mr. Chakeres' presence at the hearing
in Las Cruces on the Motion for Sanctions was unnecessary,
and therefore duplicative. Id. at 3. As a result,
Defendants request that any award of fees reflect a total of
40 hours of combined time between Mr. Coberly and Mr.
Standard of Review
determining the reasonableness of Plaintiff's fee
request, the Court “must begin by calculating the
so-called ‘lodestar amount' of a fee, ” which
is presumed to reflect a “reasonable” fee.
Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998) (internal citations omitted). “The
lodestar calculation is the product of the number of attorney
hours ‘reasonably expended' and a ‘reasonable
hourly rate.'” Id. An attorney's hours
are reasonable if they were necessary under the
circumstances. Id. “A reasonable rate is the
prevailing market rate in the relevant community.”
Guides, Ltd. v. Yarmouth Group Property Management,
Inc., 295 F.3d 1065, 1078 (10th Cir. 2002) (citing
Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir.
Number of Attorney Hours Expended
regard to the number of hours expended in an effort to obtain
Defendant Salazar's Taser data, the Court finds
Plaintiff's request to be reasonable. Indeed, this Court
found Defendants grossly negligent in their failure to
preserve any data connecting Defendant Salazar to the Taser
he was issued while employed at the Espanola Police
Department, and awarded fees related to Plaintiff's
attempts to locate that data. (Doc. 225) at 12-14. Thus, a
reasonable award of expenses would include the hours of work
spent reviewing and deciphering the data from 29 Tasers used
by the Espanola Police Department in an effort to determine
whether any of those Tasers could be linked to events
underlying this lawsuit. If Defendants had preserved the data
linking Defendant Salazar to the Taser he used while on the
force, the production and interpretation of this data would
not have been necessary.
addition, a reasonable award would include work expended in
an effort to investigate any failure to preserve the Taser
data. To that end, Defendants argue that Mr. Coberly and Mr.
Chakeres' work on a “motion for additional
discovery” and a “motion for 30(b)(6)
deposition” is not sufficiently related to
Plaintiff's Motion for Sanctions to be reasonably
compensated. This argument is not persuasive.
based on the Court's review of the summary of costs and
the docket in this case, it appears that the “motion
for additional discovery” and the “motion for
30(b)(6) deposition” refer to the same motion which was
filed on March 15, 2016. (Doc. 172). Indeed, the motion filed
on that date requests leave to engage in additional, limited
discovery in the form of a Rule 30(b)(6) deposition, and its
briefing corresponds with the hours and timing of the work
performed on both the “motion for additional
discovery” and the “motion for 30(b)(6)
deposition.” Id. In any event, in construing
the described motions as one single motion for additional
discovery to conduct a Rule 30(b)(6) deposition, the number
of hours expended totals approximately 38 hours. Considering
the procedural posture, the quantity and complexity of the
factual record, and the arguments in the motion, the Court
finds this amount of time to be reasonable.
Plaintiff's motion for additional discovery to conduct a
Rule 30(b)(6) deposition is clearly related to locating
Defendant Salazar's Taser data and Defendants'
preservation of, or failure to preserve, certain evidence.
The motion is plainly titled, Plaintiff's Motion to Allow
Plaintiff to Take a 30(b)(6) Deposition on the Issue of
Defendants' Failure to Preserve Electronic Taser Data. In
addition, the contents of that deposition form the basis for
Plaintiff's subsequent Motion for Sanctions. (Docs. 172
& 196). Therefore, the motion, preparation, and costs
associated with the Rule 30(b)(6) deposition are sufficiently
linked to the Court's ruling on Plaintiff's Motion
for Sanctions, and are reasonable hours and costs to be
included in Plaintiff's award of fees.
a reasonable award of fees would include Plaintiff's work
on the Motion for Sanctions itself, as it is indisputably
related to Plaintiff's efforts to obtain Defendant
Salazar's Taser data. Defendants argue that both Mr.
Coberly's and Mr. Chakeres' attendance at the hearing
on the Motion for Sanctions in Las Cruces was unnecessary and
duplicative. However, the summary of hours and expenses makes
clear that both Mr. Coberly and Mr. Chakeres worked on the
Motion for Sanctions. See (Doc. 227-3) at 4-5.
Moreover, the mere presence of two attorneys at a motion
hearing does not necessarily suggest to the Court that both
attorneys' attendance is duplicative. Additionally,
neither Mr. Coberly nor Mr. Chakeres request compensation for
the full travel time from Santa Fe to Las Cruces and back.
See id. at 5. As a result, the Court does not find
the hours expended in relation to the Motion for Sanctions to
be duplicative or unnecessary.
Reasonable Hourly Rate
regard to Plaintiff's requested hourly rate, the Court
does not find the rates of $275.00 for Mr. Coberly, and
$225.00 for Mr. Chakeres to be reasonable. Less than a year
ago in May 2016, Judge Lynch found that the prevailing market
rate for an attorney such as Mr. Coberly, as a practitioner
with approximately nine-and-a-half years of experience, who
provided competent and zealous representation, is $225.00 per
hour. Judge Lynch further found that the prevailing market
rate for an attorney such as Mr. Chakeres, as a practitioner
with six year of civil litigation experience, one year of
circuit clerkship experience, and no experience in this area
of law, who provided competent and zealous representation, is
$200.00 per hour. While the Court acknowledges that Mr.
Coberly and Mr. Chakeres have accumulated some additional
experience since Judge Lynch's order, nearly all of the
work forming the basis for Plaintiffs fee request was
completed by August 11, 2016, only three ...