United States District Court, D. New Mexico
ORDER GRANTING IN PART APPLICATION FOR ATTORNEY'S
FASHING, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on defendants/counterclaimants
Paul Hinks and Symbion Power, LLC's (collectively
“Symbion”) Application for Attorney's Fees
filed on July 6, 2017. Doc. 72. Plaintiff Joseph Wilson filed
objections to the application on July 20, 2017. Doc. 74.
Symbion filed a reply in support of its application on August
3, 2017. Doc. 76. Having reviewed the submissions of the
parties and the relevant law, I find that the application is
well taken in part and GRANT it in part and DENY it in part.
16, 2017, this Court issued its Order Imposing Sanctions
against Mr. Wilson based on an email Mr. Wilson sent
following a confidential settlement conference. Doc. 71. In
its order, the Court found that Mr. Wilson violated the
Court's orders and otherwise engaged in misconduct.
Id. Accordingly, the Court ordered Mr. Wilson to pay
the reasonable attorney's fees and costs Symbion incurred
in bringing their motion for a protective order, the motion
for sanctions, and in complying with the Court's order.
Doc. 71 at 9. The Court further ordered Symbion's
attorneys to file an application for fees including an
affidavit that described their reasonable attorney's fees
and costs. Id. The Court now addresses that
Court may award attorney's fees and costs based on its
inherent authority to punish a litigant for misconduct and
abuse of the judicial process. See Farmer v. Banco
Popular of N. Am., 791 F.3d 1246, 1255 (10th Cir. 2015).
“[W]here a monetary sanction rests in substantial
portion on a court's inherent authority to punish a party
for bad-faith conduct unreachable by statute or rule, as it
did here, a court need not attribute a portion of the
assessment to any particular statute or rule.”
Id. at 1257. Sanctions may include payment of the
other party's reasonable expenses incurred because of
having to file a motion for sanctions, including
attorney's fees. White v. GMC, 908 F.2d 675, 679
(10th Cir.1990). Nevertheless, “[w]here a court
sanctions a recalcitrant party for his abuse of process by an
award of fees and costs, ” the Court must use sound
principles to govern its award of fees and costs. See
Farmer, 791 F.3d at
First, the amount of fees and costs awarded must be
reasonable. Second, the award must be the minimum amount
reasonably necessary to deter the undesirable behavior. And
third, because the principal purpose of punitive sanctions is
deterrence, the offender's ability to pay must be
considered. Depending on the circumstances, the court may
consider other factors as well, including the extent to which
bad faith, if any, contributed to the abusive conduct.
Id. (citing White, 908 F.2d at 684-85).
are two elements to the reasonableness inquiry: first,
whether the attorney has exercised billing judgment and
deleted excessive, unnecessary, or redundant fees from his or
her fee application, and second, whether the fee award is
reasonable in light of the success obtained. See Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983). Generally, the
starting point for determining the reasonable amount of
attorney's fees is to calculate the number of hours
reasonably expended and to multiply that number by a
reasonable hourly rate (the “loadstar” amount).
See Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998). The Court has an obligation to exclude
hours not “reasonably expended” from the loadstar
calculation. Malloy v. Monahan, 73 F.3d 1012, 1018
(10th Cir. 1996).
support of its application for fees, Symbion submitted the
affidavit of Stephen Hamilton, the attorney of record in this
case, and a declaration of R. Scott Greathead. Mr. Greathead
is Symbion's outside counsel and is licensed to practice
law in New York. Doc. 72-2 at 1. Mr. Greathead is not
licensed in New Mexico, however, and has not entered an
appearance in this case. The Court will only allow fees from
the attorneys (and the associates in their firm) who have
entered an appearance in the case. Mr. Greathead has not
participated as counsel of record in this case, and Mr.
Wilson could not have anticipated that he would be
responsible for paying Mr. Greathead's fees as a
sanction. In the Court's view, Mr. Greathead's role
as corporate counsel to Symbion makes him more akin to the
client, rather than the attorney litigating this case.
Therefore, I will not include Mr. Greathead's fees as
part of the sanction against Mr. Wilson.
Hamilton, however, is counsel of record. He spent 32.3 hours,
and an associate from his firm spent 9 hours-for a total of
41.3 hours-working on the motion for sanctions and drafting
the protective order, and complying with the Court's
order. Doc. 72-1. Mr. Hamilton is billed at rate of $300.00
per hour, and his associate is billed at a rate of $200.00
per hour. Id. at 4. Mr. Hamilton also incurred
$264.58 in expenses. Id. Accordingly, Mr. Hamilton
seeks fees and costs in the amount of $12,
684.75. I find that the number of hours and the
rate billed per hour by Mr. Hamilton and his associate are
reasonable. I also find the expenses incurred are
the primary purpose of sanctions is to deter misconduct, as
opposed to compensating the opposing party, “the amount
of sanctions is appropriate only when it is the minimum that
will serve to adequately deter the undesirable
behavior.” White, 908 F.2d at 684 (internal
quotation and citation omitted). I find that the amount of
$12, 684.75 is the minimum that will serve to adequately
deter Mr. Wilson from future misconduct.
offender's ability to pay must also be considered, not
because it affects the egregiousness of the violation, but
because the purpose of monetary sanctions is to deter
attorney and litigant misconduct.” Id. In the
order imposing sanctions, the Court found:
Mr. Wilson bears full responsibility for his email. There is
no question that Mr. Wilson alone, without consulting his
attorneys, sent this threatening and profane email to Mr.
Hinks and his attorney, with copies to other potential
witnesses, to express his anger and frustration at them for
refusing to settle the case ...