United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiffs' Unopposed
Motion and Memorandum for Attorneys' Fees [Doc. 77].
The motion is unopposed because Defendant David Chavez
(“Chavez”) has never appeared in this case and
Plaintiffs have obtained a default judgment against him.
After a bench trial on damages, this Court entered Findings
of Fact and Conclusions of Law [Doc. 73] concluding that
Plaintiffs were entitled to compensatory and punitive damages
against Chavez, as well as a Final Judgment [Doc. 74]. The
issue before the Court now is the reasonable fee to be
awarded to Plaintiffs' counsel.
determine the reasonableness of a fee request, a court must
begin by calculating the so-called “lodestar
amount” of a fee, and a claimant is entitled to the
presumption that this lodestar amount reflects a
“reasonable” fee. See Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 478
U.S. 546, 563-65 (1986); Cooper v. Utah, 894 F.2d
1169, 1171 (10th Cir. 1990). The lodestar calculation is the
product of the number of attorney hours “reasonably
expended” and a “reasonable hourly rate.”
See Hensley, 461 U.S. at 433; Phelps v.
Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997). The
setting of a reasonable hourly rate is within the district
court's discretion. Carter v. Sedgwick County,
36 F.3d 952, 956 (10th Cir. 1994). Hourly rates must reflect
the “prevailing market rates in the relevant
community.” Blum v. Stenson, 465 U.S. at 895,
104 S.Ct. at 1547. Unless the subject of the litigation is
“so unusual or requires such special skills” that
only an out-of-state lawyer possesses, “the fee rates
of the local area should be applied even when the lawyers
seeking fees are from another area.” Ramos v.
Lamm, 713 F.2d 546, 555 (10th Cir. 1983). See also
Lippoldt v. Cole, 468 F.3d 1204, 1224-25 (10th Cir.
2006). If the district court does not have adequate evidence
of prevailing market rates for attorney fees, then it may,
“in its discretion, use other relevant factors,
including its own knowledge, to establish the rate.”
Case v. Unified Sch. Dist. No. 233, Johnson Cnty.,
Kan., 157 F.3d 1243, 1257 (10th Cir. 1998). A district
judge may consider his or her “own knowledge of
prevailing market rates as well as other indicia of a
reasonable market rate.” Metz v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1493
(10th Cir. 1994) (internal quotation marks omitted).
the Court concludes that it has authority to grant
attorney's fees to Plaintiffs under 28 U.S.C. §
2412(b), which states: “a court may award reasonable
fees and expenses of attorneys . . . to the prevailing party
in any civil action brought by or against the United States
or any agency or any official of the United States acting in
his or her official capacity in any court having jurisdiction
of such action. The United States shall be liable for such
fees and expenses to the same extent that any other party
would be liable under the common law or under the terms of
any statute which specifically provides for such an
an officer of the United States Forest Service, was acting in
his official capacity at the time of the events set forth in
this Court's Findings of Fact and Conclusions of
Law [Doc. 73]. In addition, the Plaintiffs are the
prevailing parties in this lawsuit, having obtained a default
judgment on the merits as well as a money judgment against
Chavez. Thus, an award of reasonable fees and expenses is
appropriate under Section 2412(b).
the Court must determine whether the fees Plaintiffs are
requesting are reasonable under the circumstances of the
case. A review of the docket in this case shows that while
Defendant Chavez never answered or otherwise appeared, the
United States did file an answer and serve written discovery
on Plaintiffs, to which they responded. The Plaintiffs also
prepared expert witness disclosures. Conversely, the
Plaintiffs served written discovery requests upon the United
States. If Plaintiffs conducted any depositions, there is no
evidence of it before the Court. With regard to motion
practice, Plaintiffs filed a motion to voluntarily dismiss
two counts of their complaint, a motion for default judgment
against Chavez, two motions asking the Court to direct the
Department of Veterans Affairs to permit its employees to
testify, and motions to extend the discovery deadlines.
Counsel for Plaintiffs attended status conferences before
both the undersigned district judge as well as the magistrate
judge and prepared a proposed Pretrial Order.
January 22, 2018, the Court held a half-day bench trial on
the issues of Defendant Chavez's liability and
Plaintiffs' damages. Again, Chavez did not appear.
Plaintiffs' counsel prepared their witnesses and exhibits
for the trial. They also prepared two versions of their
proposed findings of fact and conclusions of law. After the
Court entered its final judgment, Plaintiffs filed the motion
for attorney's fees that is the subject of this
Memorandum Opinion and Order, as well as a motion for bill of
costs and an application for writ of execution.
are requesting $74, 946.50 in attorney fees, $2, 452.50 in
paralegal fees, and $5, 417.92 in gross receipts tax (at the
rate of 7%) for a total of $82, 816.92 in fees and tax. The
lion's share of this total comes from attorney Louren
Oliveros, who requests reimbursement for 133.6 hours of work
at the rate of $425 per hour. Attorney Timothy Padilla
requests reimbursement for 27.9 hours at $350 per hour,
attorney Bill Tinker for 6.7 hours at $250 per hour, and
attorney Amye Green for 29.9 hours at $225 per hour.
Paralegals Terence Apache and Melody Tilson request 26 and
6.7 hours respectively, both at the rate of $75 per hour.
support of their request for attorney's fees, Plaintiffs
have provided the Court with the affidavits of attorneys
Louren Oliveros, Timothy Padilla, and Amye Green [Docs. 77-1,
77-2, and 77-3], in which they set forth their education and
experience. Plaintiffs also included an affidavit by
Albuquerque attorney Paul J. Kennedy [Doc. 77-4] in which he
opines that Ms. Oliveros is entitled to recover an hourly
rate of “at least $375 to $425 per hour, ”
id. at ¶ 11, that the rate of $350 per hour
requested by Mr. Padilla “is fair and reasonable,
” id. at ¶ 14, and that Ms. Green is
“entitled to recover . . . at least $225 to $235 per
hour.” Id. at ¶ 15. Similarly, Plaintiffs
provided an affidavit from Albuquerque attorney Joseph P.
Kennedy, who also opines that Ms. Oliveros is entitled to
recover attorney's fees “in the amount of at least
$375 to $425 per hour.” [Doc. 77-5 at ¶ 7].
Finally, Plaintiffs have attached time sheets for Ms. Green,
Ms. Oliveros, Mr. Apache, and Ms. Tilson [Doc. 77-6], as well
as for Mr. Tinker and Mr. Padilla. [Doc. 77-7].
reviewing these documents, the Court concludes that the
requests for fees submitted by Mr. Padilla, Ms. Green, Mr.
Apache, and Ms. Tilson are fair and reasonable. However, the
Court concludes that it must make adjustments to the fees
requested on behalf of Ms. Oliveros and Mr. Tinker.
with regard to Mr. Tinker, the Court is without sufficient
information to award Plaintiffs fees for his work. Plaintiffs
have provided the Court with no information about Mr.
Tinker's education, experience, or work history from
which it could concluded that $250 is a reasonable hourly
rate. It is unclear from the record what Mr. Tinker's
professional relationship was with Mr. Padilla. However, in
his affidavit Mr. Padilla states that he
“estimated” both the hours spent by Mr. Tinker
(who passed away in 2014) as well as Mr. Tinker's hourly
rate. Doc. 77-2 at ¶ 6. Mr. Padilla provides no factual
basis for his estimates. Due to the dearth of information
provided, the Court will not award fees for Mr. Tinker.
regard to Ms. Oliveros, the Court concludes that the total
number of hours expended (133.6) is reasonable, as she
performed the majority of the work in the case. However, the
Court concludes that the hourly rate of $425 per hour for Ms.
Oliveros is excessive. First, in her affidavit, Ms. Oliveros
lists attorney fee awards she has received in other cases;
none of these exceed $350 per hour. Second, while Ms.
Oliveros is an experienced lawyer in both civil and criminal
matters, she has been in practice since 2001. In contrast,
according to the affidavit of her co-counsel, Mr. Padilla, he
has practiced law since 1975. He too has experience as lead
counsel in a large number of civil rights and criminal
defense matters; however, his hourly rate is $350 per hour,
which the Court finds to be reasonable for a New Mexico
lawyer of his experience. Plaintiffs have presented no
information that would justify ...