United States District Court, D. New Mexico
Kashanian, pro se.
Richards, pro se.
ON DEFENDANT ROBERT RICHARDS'S MOTION FOR
RECONSIDERATION OF ORDER DENYING ATTORNEY'S FEES
MATTER comes on for consideration of Defendant Robert
Richards's Motion for Reconsideration of Order Denying
Attorney Fees filed August 26, 2017. Doc. 253. Upon
consideration thereof, the Motion will be granted in part and
denied in part.
prior order, the court held that Mr. Richards may be entitled
to attorney's fees as a sanction based upon the conduct
of Plaintiffs Andrew Ross and Susan Gerard and their counsel,
Arash Kashanian. Doc. 250 at 18-19. The court ultimately
denied those fees, however, because Mr. Richards was engaged
in joint representation and did not allocate the fees among
the three parties he represented, nor did he provide the
analysis for a reasonable number of hours at a reasonable
hourly rate, the starting point of the analysis.
Id.; Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). Thus, the court was unable to consider the next
issue: the proper amount to award given the need for a
sanction vs. the competing policies against awarding fees to
pro se lawyers in civil rights litigation.
Richards now claims fees in the amount of $18, 868.26 based
upon a “corrected bill” and one that excludes
fees denied by the court in connection with opposing
Plaintiffs' application for a temporary restraining
order. Doc. 253 at 4-5. Unfortunately, several entries
reappearing in the corrected bill predate the dismissal of
Defendant Brenda Wall (dismissed December 5, 2016 (Doc. 81))
and Defendant Pam Reynolds (dismissed December 15, 2016 (Doc.
91)), and it is not apparent why these entries would only
benefit Mr. Richards. Given the court's prior order, Mr.
Richards was surely on notice of the need to allocate or
explain why the services solely benefitted him and the court
will not consider the amounts for those entries.
practice that bears mention is Mr. Richards's billing .10
of an hour (6 minutes or $27.50) for “reviewing”
practically every pleading filed in this case. While Mr.
Richards argues that a lawyer needs to stay apprised of a
case and review pleadings, any lawyer exercising billing
judgment would hesitate before billing a client for reviewing
every pleading no matter its relevance, let alone ministerial
nature (e.g., a notice of completion of briefing or notice of
erratum). In any event, Mr. Richards has not adequately
justified this practice. Entries of this nature will not be
included in considering an award, except where such review
appears integral to another task such as drafting a response
or reply. See Robinson v. City of Edmond, 160 F.3d
1275, 1281 (10th Cir. 1998) (courts should scrutinize the
hours allotted to specific tasks in fee cases).
court has reviewed the time records submitted with the motion
for reconsideration. 75 hours submitted by Mr. Richards and
his paralegal appear directly related to the claims asserted
against Mr. Richards. Including an allowable PACER cost, the
sum is $13, 601. Balancing the competing policy
considerations and taking into account the conduct in the
instant litigation, this court determines that $5, 000 is an
appropriate and reasonable award as a sanction under its
inherent power. The court further finds that this amount
satisfies the but-for test articulated in Goodyear
Tire, which requires that attorney's fees awarded
under the court's inherent authority must be sums that
would not have been paid but for the misconduct found on the
part of Plaintiffs and/or their counsel. Goodyear Tire
& Rubber Co. v. Haeger, 137 S.Ct. 1178, 1187 (2017).
Accordingly, the award is $5, 000 plus New Mexico gross
receipts tax or $5, 415.63. This amount also represents an
effort to balance Mr. Richards's opportunity costs (as a
lawyer) of defending himself against the counter argument
that every pro se litigant must invest time and resources in
the endeavor. See Pickholtz v. Rainbow Technologies,
284 F.3d 1365, 1377-78 (Fed. Cir. 2002). The amount will be
borne by the Plaintiffs and their lawyer, Mr. Kashanian.
court has carefully considered Mr. Kashanian's
objections. He first argues that Mr. Richards has waived his
right to present new or modified billing statements by
submitting three deficient billing statements. According to
Mr. Kashanian, had Mr. Richards retained counsel, that
counsel would have made a proper application for fees in the
first instance. Given that Mr. Richards successfully
challenged a complete denial of fees by the magistrate judge,
in the interest of fairness, the court allowed him to
resubmit, reducing fees where necessary. As for the argument
that Mr. Richards should have retained counsel, Mr. Richards
incurred actual costs for a paralegal and opportunity costs
for his time and no doubt was cognizant of the inherent risk
that he might not prevail in obtaining fees.
Kashanian also contends that Mr. Richards has no valid fees
and is mostly billing his spectator status. The court cannot
agree that Mr. Richards fees should be reduced because he
stayed in the lawsuit rather than accept a voluntary
dismissal offered by Plaintiffs. As the court noted
previously, Mr. Richards answered and counterclaimed and
reasonably sought the comfort of a dismissal with prejudice
(to prevent a recurrence of this litigation). Doc. 98 at 3.
As for spectator status, were that only true. Mr. Richards
was a party and at risk, and pursued in this and other fora
by the Plaintiffs and their lawyer. The court does agree with
Mr. Kashanian that billing 6 minutes for review of virtually
every pleading is excessive and has reduced the bill in
assessing what fees would have been reasonable. Likewise, the
fee applications could have been better, but the court has
reduced the fees substantially. As for the argument that Mr.
Richards should not be compensated for various substantive
aspects of the case, the court generally disagrees. Mr.
Richards had arguable (if not correct) positions most of the
time and defended accordingly given the inherent
uncertainties in litigation. In any event, the $5, 000 amount
awarded using attorney's fees as a proxy encompasses work
that was necessary and proper.
Mr. Kashanian argues that Mr. Richards's billing
statements cannot be trusted based upon his litigation
conduct. The court has reviewed the billing statements and
has endeavored to arrive at a reasonable amount based upon
the course of litigation as reflected in the docket sheet as
a starting point. Hensley, 461 U.S. at 433. The
court will not deny Mr. Richards an award on this basis.
THEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that
Defendant Robert Richards's Motion for Reconsideration of
Order Denying Attorney Fees filed August 26, 2017 (Doc. 253)
is granted in part and denied in part. Defendant Richards is
awarded $5, 415.63, plus interest, with half to be paid by
Plaintiffs and half by their counsel, Mr. Kashanian,
 Mr. Richards's rate is $275 per
hour and his paralegal's rate is $60 per hour. Attached
are the entries on which the court based the ...