United States District Court, D. New Mexico
matter comes before the Court upon Oldcastle Precast,
Inc.'s Motion for Attorneys' Fees and Costs (Motion
for Attorneys' Fees and Costs), filed December 18,
2017. (Doc. 208). Rune Kraft filed a response on
January 2, 2018, and Oldcastle Precast, Inc. (Oldcastle)
filed a reply on January 16, 2018. (Docs. 218 and 229).
Considering the Motion for Attorneys' Fees and Costs
(Doc. 208), and the accompanying briefing, the Court grants
the Motion for Attorneys' Fees and Costs (Doc. 208), in
part, in that the Court awards Oldcastle a total of $670.71
in attorneys' fees.
December 4, 2017, the Court ordered that (1) Oldcastle
“will be awarded reasonable attorneys' fees and
costs it incurred in responding to Rune Kraft's Motion to
Dismiss (Doc. 154) and in bringing the Motion for
Attorneys' Fees and Costs (Doc. 158), which Rune Kraft
must personally pay, ” and (2) Oldcastle file a brief
establishing those reasonable attorneys' fees and costs.
(Doc. 189) at 8. On December 13, 2017, Rune Kraft filed a
motion to reconsider that order awarding attorneys' fees
and costs. (Doc. 201). On December 18, 2017, Oldcastle filed
this Motion for Attorneys' Fees and Costs (Doc. 208) in
response to the Court's December 4, 2017, order requiring
the filing of a brief establishing reasonable attorneys'
fees and costs. The parties fully briefed that motion by
January 16, 2018. On June 18, 2018, the Court granted Rune
Kraft's motion to reconsider, in part, ordering that Rune
“Kraft, personally, must only pay the reasonable
attorneys' fees and costs incurred by Oldcastle in filing
the motion for attorneys' fees and costs (Doc.
158).” (Doc. 238) at 6.
The Motion for Attorneys' Fees and Costs (Doc. 208)
attorney, Jesse C. Hatch, attests in an affidavit that his
hourly rate is $225 per hour and that the hourly rate for
Brook Gotberg, another attorney for Oldcastle, is $195 per
hour, both “customary rates charged by attorneys of
similar experience for this type of work in New
Mexico.” (Doc. 208-2) at ¶¶ 6 and 9. The
billing invoice submitted by Oldcastle shows that Mr. Hatch
spent 0.9 hours preparing a “Rule 11 Motion for
Sanctions, ” i.e., the Motion for Attorneys' Fees
and Costs (Doc. 158). (Doc. 208-1) at 1. The billing invoice
also shows that Ms. Gotberg spent 3.5 hours drafting a
“Response to Motion to Dismiss and Motion for
Sanctions, ” i.e., the Motion for Attorneys' Fees
and Costs (Doc. 158). Id. at 2. Ms. Gotberg also
spent 0.8 hours preparing a “strategy for responding to
Rune filings.” Id. Oldcastle does not seek any
Kraft's response does not dispute the reasonableness of
the billing rates or the billed time expenditures. Rune Kraft
basically reiterates the arguments which he raised in the
motion to reconsider, which the Court has ruled on.
determine the reasonableness of a fee request, the Court
calculates the so-called “lodestar amount, ”
which presumptively 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 v.
Eckerhart, 461 U.S. 424, 433 (1983); Phelps v.
Hamilton, 120 F.3d 1126, 1131 (10th Cir.1997).
Court exercises its discretion in setting a reasonable hourly
rate. 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. 886, 895
(1984). A court abuses its discretion to set market rates
when it ignores market rate evidence such as affidavits
submitted by the parties. Case v. Unified Sch. Dist. No.
233, Johnson Cnty., Kan., 157 F.3d 1243, 1256 (10th
Cir.1998). Moreover, some circuit courts have held that if
the evidence of the market rate is uncontested, the lower
court abuses its discretion if it adjusts the requested
market rate downward. Washington v. Philadelphia Cty.
Court of Common Pleas, 89 F.3d 1031, 1036 (3d Cir. 1996)
(quoting Griffiths v. Cigna Corp., 77 F.3d 462 (3d
Cir. 1995)); Baulch v. Johns, 70 F.3d 813, 818 n.8
(5th Cir. 1995); Bankston v. State of Ill., 60 F.3d
1249, 1256 (7th Cir. 1995).
Court finds that Mr. Hatch's expenditure of 0.9 hours for
preparing the Motion for Attorney's Fees and Costs (Doc.
158) is reasonable. Since Ms. Gotberg's time expenditures
reflect time spent on both a motion to dismiss and the Motion
for Attorneys' Fees and Costs (Doc. 158), the Court
halves those times to determine that Ms. Gotberg reasonably
spent 2.15 hours on the Motion for Attorneys' Fees and
Costs (Doc. 158). Moreover, because Oldcastle submitted a
sworn affidavit to establish reasonable billing rates and
Rune Kraft does not oppose those rates, the Court finds the
billing rates for Mr. Hatch and Ms. Gotberg are reasonable.
the lodestar method (Mr. Hatch: 0.9 hours x $225 = $202.50;
Ms. Gotberg: 2.15 hours x $195 = $419.25), the Court
calculates that reasonable attorneys' fees are $621.75.
The Court further calculates that a gross receipts tax of
7.8750% on $621.75 amounts to $48.96. See Gross
Receipts Tax Schedule for Albuquerque, effective July 1,
2019, through December 31, 2019
The Court, therefore, awards Oldcastle a total of $670.71
($621.75 $48.96) for reasonable attorneys' fees
incurred in bringing the Motion for Attorneys' Fees and
Costs (Doc. 158).
ORDERED that Oldcastle Precast, Inc.'s Motion for
Attorneys' Fees and Costs (Doc. 208) is granted, in part,
in that Rune Kraft must personally pay Oldcastle $670.71 in
attorneys' fees no later than August 15, 2019.
FURTHER ORDERED that Rune Kraft's failure to comply with
this Order may ...