in the united states district court for the … · case 1:12-cv-00053-msk-bnb document 140 filed...

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00053-MSK-BNB

MAJOR JON MICHAEL SCOTT;

Plaintiff,

v.

CITY & COUNTY OF DENVER,

Defendant.

PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS

Plaintiff, by and through counsel, hereby files his Motion for Attorneys’ Fees and Costs,

pursuant to Fed. R. Civ. P. 54(d)(2), D. Colo. L.Civ.R 54.3, 42 U.S.C. § 12205, and 29 U.S.C.

§ 794a(b). Plaintiff requests an award of attorneys’ fees in the amount of $427,372.50 and costs

and expenses in the amount of $21,996.49, representing amounts incurred through June 26, 2013.

Plaintiff reserves the right to submit a supplemental motion for any later fees or costs.

Plaintiff Major Jon Michael Scott is deaf. He was arrested and detained by Defendant City

and County of Denver (“the City”) five times within the statute of limitations. Despite the fact

that the City had arrested and detained him and provided him a sign language interpreter in 2007

and had other grounds to know he required one, it failed to provide a sign language interpreter

during three detentions in 2010 and 2011. It also did not interpret the Inmate Handbook for him

until August 2012, and did not provide interpreters for a disciplinary hearing and such programs

as religious services and substance abuse counseling.

Case 1:12-cv-00053-MSK-BNB Document 140 Filed 07/08/13 USDC Colorado of 26

Mr. Scott brought suit under identical legal theories pursuant to Title II of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and section 504 of the Rehabilitation

Act of 1973 (“Section 504”), 29 U.S.C. § 794. Plaintiff reached out to discuss settlement with

the City on four occasions before and during the litigation -- once each when Plaintiff’s fees were

(1) under $5,000; (2) under $7,000; (3) under $140,000; and (4) $240,000. See infra at 3-4,6. In

each case, the City ignored Plaintiff’s overture. This refusal to discuss settlement may have been

the result of the fact that the City “is putting more emphasis on the Litigation Section taking a

principled stand over settling.” City and County of Denver, “Invites Applications for the Position

of: Assistant City Attorney -- Associate (Litigation),” Robertson Decl. Ex. 26.1

Two weeks before the close of discovery, Plaintiff accepted the City’s offer of judgment in

the amount of $15,000, which reserved to the Court the determination of reasonable costs and

attorneys’ fees. ECF 130.

OVERVIEW

Plaintiff Scott was detained by the City four times in 2010 and 2011. Each time, he went

through an intake process that included booking, a medical evaluation, a psychological evaluation,

and a classification interview. He was provided a sign language interpreter only for one hour

during the first detention. This interpreter was a City employee who is available to interpret for

the jails on a regular basis. For the remainder of that detention and the entire intake process for

the other three detentions, the City did not provide a sign language interpreter, nor did it provide

interpreters for a disciplinary hearing in early 2011, or make them available so that Mr. Scott

1 http://agency.governmentjobs.com/denver/job_bulletin.cfm?JobID=626003 (lastvisited June 24, 2013).

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could attend programs such as substance abuse counseling and religious services. Indeed,

because the City did not -- until August 2012 -- translate the Inmate Handbook into ASL, Mr.

Scott was unaware of much of the available programming.2

To place this in context, the present case was filed in the fifth year of Ulibarri v. City and

County of Denver, 07-cv-1814-ODS-MJW (D. Colo.), a case that included identical claims to this

one: that the City failed to provide effective communications to deaf detainees in violation of the

ADA and section 504. In Ulibarri, the plaintiff’s decedent Shawn Vigil was detained by the City

in August 2005, and committed suicide in the Denver County Jail in September 2005. Plaintiffs

Sarah Burke and Roger Krebs were both briefly detained by the City in 2007. None of these three

deaf detainees was provided a sign language interpreter or other effective communication. The

Ulibarri case was filed in August 2007 and settled on what would have been the first day of trial,

September 4, 2012.

During that five-year period -- and long after Mr. Vigil had killed himself -- Plaintiff Scott,

who is also deaf, was arrested, detained, and denied effective communications by the City a

number of times.

The undersigned counsel represented the Ulibarri plaintiffs.3 On January 6, 2012 --

before filing the present case -- the undersigned sent a demand letter to the City Attorney with a

copy to the Assistant City Attorney on the Ulibarri case, offering to discuss Mr. Scott’s claims.

2 Mr. Scott was detained again in August 2012, eight months after this case wasfiled; the City provided an interpreter for his intake and to translate the Inmate Handbook.

3 Declaration of Amy F. Robertson in Support of Plaintiff’s Motion for Attorneys’Fees and Costs (“Robertson Decl.”) ¶ 24(a), 25; Declaration of Carrie Ann Lucas in Support ofPlaintiff’s Motion for Attorneys’ Fees and Costs (“Lucas Decl.”) ¶ 16(a).

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Because Mr. Scott faced the possible expiration of the statute of limitations on one of his claims

on January 10, 2012, the letter included a draft tolling agreement to give the parties time to talk.

Mr. Scott’s attorneys’ fees at that juncture totaled $4,985. The City did not respond to that

letter, Robertson Dec. ¶¶ 26-28 and Ex. 15, and Mr. Scott filed the instant case on January 10,

2012.

The Ulibarri parties met to mediate that case on February 15, 2012 with The Hon. Bill

Meyer of the Judicial Arbiter Group (“JAG”). During that mediation, the undersigned attempted

to discuss resolution of the present case -- given that it was at a far earlier and less expensive

stage than Ulibarri -- but the City was not interested. Id. ¶ 30. The undersigned followed up

with a letter, stating: “If the City has evidence that could assist in narrowing or even resolving the

Scott case, we would urge you to provide it to us so that we can avoid unnecessary litigation and

the concomitant attorneys’ fees and costs.” Id. Ex. 16. Mr. Scott’s attorneys’ fees as of February

15, 2012 were $6,603. The City did not respond to that letter. Id. ¶¶ 32-33.

On November 20, 2012, Mary Lou Mobley, a trial lawyer with the Department of Justice

(“DOJ”), wrote to the City, informing it that the DOJ was opening an investigation into Mr.

Scott’s claims. Id. Ex. 17. In her letter, Ms. Mobley proposed that the DOJ and the parties to the

present case participate in joint settlement discussions. Id. On November 26, 2012, the

undersigned wrote to counsel for the City, referencing Ms. Mobley’s letter, noting that the

litigation was about to enter a more expensive phase, and suggesting that the parties discuss

settlement. Id. Ex. 18. Mr. Scott’s attorneys’ fees as of November 26, 2012 were $135,471.50.

Id. ¶ 36. The City did not respond to that letter. Id. ¶ 37.

The dates of Mr. Scott’s detentions in 2010 and 2011 and the fact that the City only

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provided an interpreter for part of one detention were not in dispute. Rather, the lion’s share of

activity in the case was devoted to the City’s attempts to show that Mr. Scott did not need an

interpreter and Plaintiff’s attempts to identify and depose the individuals on whom the City would

rely for this defense.

The City’s initial theory was that Mr. Scott did not need an interpreter because he was a

“savvy player,” to quote Lorrie Kosinski, the Director of the City’s Office of Sign Language

Services, who was able to hear better than he let on. Kosinski Dep. at 62 (Robertson Decl. Ex.

30). The City thus retained Dr. Sandra Gabbard, an expert audiologist, to test Mr. Scott’s

hearing. Dr. Gabbard concluded, however, that Mr. Scott had a “severe to profound

sensorineural hearing loss and he is not able to understand speech clearly while using power

behind-the-ear hearing aids.” Gabbard Report at 3 (Robertson Decl. Ex. 31).

The City’s revised theory was that Mr. Scott did not appear to be deaf, and that the City

could provide effective communication without an interpreter if it provided what its expert, Dr.

Brenda Schick, called “interactive support.” Schick Report at 2 (Robertson Decl. Ex. 32). Dr.

Schick had to admit, however, that she did not speak with any officer who communicated with

Mr. Scott, Schick Dep. 38-39 (Robertson Decl. Ex. 33), that she did not know whether Mr. Scott

could understand the documents he was provided or expected to read, id. at 41-43, 45-47, and

that she had not observed an “interactive process” with an inmate, id. at 43. She admitted that

Mr. Scott “would [have been] challenged” by the Inmate Handbook, id. at 46, and would have

required a sign language interpreter to understand it, id. at 252. She admitted that speech would

not have been effective communication in a psychological evaluation, id. at 180, and that Mr.

Scott would need a sign language interpreter for complex situations, “abstract and legal terms,”

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id. at 188, and “multi-syllabic vocabulary that’s out of ordinary conversation,” id. at 216-17.

Ultimately, she admitted, “Do I think that Mr. Scott needs a qualified sign language interpreter

most of the time? Yes, I probably do, but I do think he does understand stuff.” Id. at 249-50.

Putting this in the context of Plaintiff’s attempts to spur settlement discussions: when the

City ignored Plaintiff’s November 26, 2012 letter proposing settlement negotiations, it already

had Dr. Gabbard’s opinion that Mr. Scott had a severe to profound sensorineural hearing loss.

Plaintiff made a fourth settlement overture on January 14, 2013, setting forth specific demands for

both damages ($60,000) and attorneys’ fees ($240,000). Robertson Decl. Ex. 19. The City again

ignored this letter despite the fact that Dr. Schick was conducting her IME of Mr. Scott and

presumably could have informed the City of the admissions she later made in her deposition.

Between February 14 and April 10, 2013, when the City finally agreed to mediation,4 Plaintiff’s

counsel prepared for, and took or defended 16 depositions including two experts, conducted

multiple client meetings (with required round-trips to Cañon City) to prepare Mr. Scott for his

deposition, reviewed thousands of pages of documents and began preparing a Joint Motion

pursuant to this Court’s Procedures for Rule 702 Motions. See Robertson Decl. Ex. 1.

Two attorneys worked on this case on behalf of Plaintiffs: Amy F. Robertson of Fox &

Robertson (“F&R”) and Carrie Ann Lucas of the Center for Rights of Parents with Disabilities

(“CRPD”). Both are well-respected and experienced attorneys in the field of disability rights. See

4 On April 10, 2013, the City expressed interest in mediating the case and the partiesmet with The Hon. Steve Briggs of JAG on April 22, 2013. The City’s only offer was $75,000for both damages and attorneys’ fees. Robertson Decl. ¶ 40. The case did not settle at themediation, but four days later, the City served an offer of judgment on Mr. Scott in the amount of$15,000 exclusive of attorneys’ fees and costs, which Mr. Scott accepted on May 9, 2013. ECF130.

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Declaration of Darold W. Killmer in Support of Plaintiff’s Motion for Attorneys’ Fees and Costs

(“Killmer Decl.”) ¶ 17. The two attorneys divided the work so there would be little if any

duplication. Both attended three major depositions: Ms. Kosinski; Dr. Schick; and Plaintiff’s

expert Jean Andrews. (In each case, the lead attorney attended the entire deposition, with the

other attorney there for part.) In addition, both counsel attended the 17-minute deposition of

Deputy Brian Govi. Robertson Decl. ¶ 53. Beyond those, only one counsel took or defended

each deposition on behalf of Plaintiff, despite the fact that the City Attorney’s Office had two

attorneys at many of the depositions. See Robertson Decl. Ex. 27.

Ms. Lucas was primarily responsible for counsel’s relationship with Mr. Scott, and

prepared him for his deposition, scheduled to occur the day after Mr. Scott accepted the offer of

judgment. Ms. Lucas also took the lead in drafting most discovery responses. The undersigned

was responsible for briefing and arguing most of the discovery motions, with the exception of the

motions practice around Mr. Scott’s deposition and the second IME, which Ms. Lucas handled

based on her superior knowledge of Mr. Scott and deafness issues. The undersigned also

prepared for and took all but one of the depositions, and drafted most of the discovery

propounded to the City. Robertson Decl. ¶¶ 54-56.

Mr. Scott’s two attorneys brought complementary skills to the case. The undersigned has

been in practice longer, and is more experienced in brief-writing and depositions; Ms. Lucas’s

practice is more oriented to trials and day-to-day work with clients. In addition, Ms. Lucas is,

herself, late deafened, and signs; because of this, she is very knowledgeable about technical issues

around deafness, deaf communications, and sign language. Both attorneys made good use of their

very skilled paralegals, relying on them for document review, coding, drafting basic motions, and

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working with third parties to obtain documents and other information. Robertson Decl. ¶¶ 52, 57;

Lucas Decl. ¶¶ 24-25. The following is a summary by timekeeper of Plaintiff’s counsel’s time and

fees.

Timekeeper Hours Rates Total

Amy Robertson 529.10 440 232,804.00

Carrie Ann Lucas 526.95 290 152,815.50

Subtotal: attorney time 1,057.05 385,619.50

Caitlin Anderson 97.80 130 12,714.00

Jennifer Elstran 34.60 100 3,460.00

Kim Crook 5.80 100 580.00

Lynn Marie Bell 26.70 130 3,471.00

Megan Streckewald 165.60 130 21,528.00

Subtotal: paralegal time 330.00 41,753.00

Total 1,386.05 427,372.50

As required by D.C.Colo.LCivR 7.1A, Plaintiff conferred with the City in an attempt to

resolve this motion informally. On May 9 -- the same day Mr. Scott accepted the offer of

judgment -- the undersigned provided the City with billing records and a request to resolve fees

and costs for $404,215.98, reflecting a roughly 10% discount off of his lodestar fees. Robertson

Decl. Ex. 20. The City responded on May 22 that its “expert believe[d] that reasonable fees and

costs in this case would be in the range of $100,000 to $150,000” -- that is, excluding costs, a

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reduction of approximately 70 to 80%5 off of the lodestar -- but did not provide any grounds for

this contention. Id. Ex. 21. Plaintiff requested more information about the City’s concerns. Id.

Ex. 22. Two weeks later -- and over a month after receiving Plaintiff’s counsel’s billing records --

the City sent a letter asserting that there had been some duplication and that Plaintiff’s counsel’s

rates were too high; it still did not point to specific entries or provide other support. Id. Ex. 24.

While this lack of detail gave Plaintiff nothing specific to which to respond, Plaintiff did offer to

reduce his fees by an additional 5% in the interest of informal resolution. Id. Ex. 25. The City did

not respond to this offer. Id. ¶ 48.

SPECIFIC CATEGORIES OF FEES

In Exhibit 3 to the Robertson Declaration, the undersigned has separated the time spent

into categories. These are explained in greater detail below.

1. Pre-suit investigation, drafting and filing the complaint

Mr. Scott and his mother sought the undersigned’s advice in the fall of 2011. As required

by Fed. R. Civ. P. 11, counsel conducted an investigation of his claims, including a request to the

City under the Colorado Open Records Act for relevant documents. Plaintiff’s counsel and

paralegals spent 13 hours in pre-suit investigation and three hours drafting the complaint and, as

noted above, sent a demand letter before filing the complaint. Robertson Decl. ¶ 58.

2. Scheduling order and conference

The 12.6 hours in this category were devoted to the Rule 26(f) meeting, discussing and

drafting the scheduling order, and attending the scheduling conference. Id.

5 These figures compare Plaintiff’s lodestar at the time with the City’s range($100,000 to $150,000) less approximately $30,000 in costs, that is, $70,000 to $120,000.

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3. Joint and administrative motions

This category includes 12.3 hours devoted to joint and routine administrative motions. In

many cases, Plaintiff’s paralegals drafted the motions, and attorneys only participated by

reviewing the draft and, where necessary, discussing it with opposing counsel. Id. ¶ 59.

4. Client and witness meetings, correspondence, and investigation

This category includes in-person meetings with Mr. Scott, and investigation of,

correspondence with, and meeting with potential witnesses. Throughout the case, Mr. Scott was

either detained in community corrections facilities or incarcerated. Beginning in late August

2012, Mr. Scott was incarcerated in Colorado Department of Corrections facilities. This category

also includes a good deal of travel time, as Mr. Scott was ultimately incarcerated in the Colorado

Territorial Correctional Facility in Cañon City from November 2012 to May 2013. Defendant did

not serve its first discovery requests until eight months into the case -- on August 19, 2012 -- the

day after Mr. Scott was incarcerated. While Plaintiff disclosed and produced voluminous records

in compliance with Fed. R. Civ. P. 26(a), Defendant requested records dating to Mr. Scott’s

toddler years. Mr. Scott’s incarceration complicated efforts to obtain documents and answers to

interrogatories. Multiple trips to visit Mr. Scott while incarcerated were required in order to

collect data to respond to the discovery requests, then to review the requests with Mr. Scott and

have him verify the responses. Lucas Decl. ¶¶ 19-20.

5. Discovery

As noted above, the City’s primary defense was -- despite its experts’ testimony to the

contrary -- that Mr. Scott could communicate without a sign language interpreter. Much of the

work on the case was devoted to discovery concerning this defense, including the City’s attempts

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to support the defense by requiring production of Plaintiff’s education, probation, and community

corrections records; and social media such as Facebook pages and dating sites. The last required

Plaintiff’s paralegal to find and download a large number of web pages and then counsel to review

and redact these pages to ensure that confidential information was not produced. The City’s

request for educational records from preschool forward required paralegals to obtain and counsel

to review records from various Oklahoma public school districts and the Oklahoma School for the

Deaf. A similar process was required by the City’s request for Mr. Scott’s Denver and Jefferson

County probation files, the files from a halfway house where he resided, and the files from a

community corrections facility that supervised him. Robertson Decl. ¶¶ 61-62.

Plaintiff’s counsel uses CaseMap to organize discovery documents. Plaintiff’s counsel’s

paralegals review and code the documents, including information such as date, title, and names

mentioned. This permits the attorneys to quickly sort and search the documents and focus on

only those documents necessary to given task (discovery responses; deposition preparation).

Paralegal review and coding of documents was complicated by the fact that the City would not

agree simply to authenticate documents it had produced pre-suit under CORA, but insisted on

producing many of the same documents, and then -- throughout the litigation -- continuing to

produce sets of documents that included many duplicates of previously produced documents.

F&R paralegals had to review each set as they came in -- the City ultimately produced over 6,200

pages of documents -- code them, sort by date, and then code and cull the duplicates. In addition,

these documents were produced by the City in enormous pdf documents -- that is, not separated

into individual documents as they would have been kept in the original files -- requiring F&R’s

paralegals to analyze and split the files into separate documents. Robertson Decl. ¶¶ 63-64.

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Plaintiff’s counsel took 14 lay depositions and two expert depositions, defended the

depositions of Plaintiff’s mother and his expert, and participated in two depositions of third

parties noticed by the City. Plaintiff’s depositions were very efficient. Setting aside the City’s

experts, Rule 30(b)(6) designees, and witnesses to be called at trial, see infra section 6(a),

Plaintiff’s counsel deposed eight witnesses for a total of under five hours. Most of the other

depositions were two to three hours, with only the City’s Director of Sign Language Services and

its communications expert taking the full seven hours. Robertson Decl. Ex. 27. Additional

discovery included two independent medical examinations (“IMEs”) of Mr. Scott and a Rule 34

inspection of the Denver Detention Facility.

6. Discovery motions

a. Motions Practice Necessary to Identify Witnesses The City Intended to Callto Testify Concerning Effective Communication

As explained above, the City’s key defense was that Mr. Scott did not appear to be deaf.

Since the City made clear that it was going to call witnesses to testify that they communicated

with Mr. Scott without an interpreter, Plaintiff began trying to discover who those individuals

were in order to depose them. This process required an interrogatory, several letters, two rounds

of discovery motions, and several rounds of incorrect and then corrected supplemental disclosures

for Plaintiff to get an accurate account of which City representatives the City claimed had

interacted with Mr. Scott. See ECF 47, 58, 72, 73, 74, 78, 79, 90.6 Defendant objected to Judge

6 Judge Boland initially instructed the City to identify which of 20 individualsidentified as having communicated with Mr. Scott it planned to call as witnesses at trial. ECF 58. In response, the City identified a total of 52 witnesses, 32 more than its original disclosures. ECF74, Ex. 1. Plaintiff moved for additional depositions and a forthwith hearing. At the forthwithhearing, Judge Boland ordered the City to pare down the list and stated, “Though my intentionwas to allow the plaintiff his necessary discovery on this issue without unreasonably burdening

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Boland’s ruling, which objection was briefed by the parties but not yet resolved by the Court at

the time the Offer of Judgment was accepted. See ECF 83, 98.

The City ultimately identified, on January 18, 2013, a list of individuals who it claimed had

had contact with Mr. Scott, six of whom it intended to call as witnesses. Plaintiff had already

deposed one of the witnesses and began scheduling depositions of the other five. Plaintiff’s

counsel also set about scheduling depositions of as many of the other individuals who the City

disclosed as having had contact with Mr. Scott (“contact witnesses”) as they could within the

remaining permissible depositions. Because of the limitation on the total number of depositions,

this list was the result of a laborious process of comparing the City’s list of contact witnesses with

documents disclosed by the City -- including a number in which Sheriff’s deputies were identified

only by badge number -- to try to depose the most informative witnesses.

The first of these depositions took place on February 19. Despite the fact that the

deponent had been identified as a contact witness, he testified that he had never met Mr. Scott.

Plaintiff’s counsel took a half-hour deposition -- learning about the jail intake and documentation

process -- and then immediately wrote to counsel for the City to inquire concerning the apparent

inaccuracy of the City’s disclosures. Robertson Decl. ¶ 72. Counsel for the City acknowledged

the mistake, agreed both that the deposition would not count against the total and that the City

would pay for it, and promised revised discovery in three weeks. Robertson Decl. Ex. 28.

After Plaintiff’s counsel received the revised discovery, they repeated the process of

comparing the City’s list against relevant documents, and sent the City a new list of requested

any party, the City and County’s response was unanticipated and constitutes abusive litigationtactics in the . . . worst possible form of hiding the ball.” 12/19/12 Hearing Transcript at 3:17-21.

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depositions. Robertson Decl. ¶ 73. The City responded that the list still was not fully accurate,

as several of the individuals listed in the revised discovery and who Plaintiff requested to depose

did not in fact recall Mr. Scott. Robertson Decl. Ex. 29 (Mar. 14, 2013 email from Wendy Shea).

b. Motion to Compel Responses to RFAs

Despite the opinions of the City’s experts that Mr. Scott had a “severe to profound

sensorineural hearing loss and [was] not able to understand speech clearly while using power

behind-the-ear hearing aids,” Gabbard Report at 3, and that, “[b]y 2010, Mr. Scott was

profoundly deaf,” Schick Report at 3, the City refused to stipulate that Mr. Scott was a person

with a disability under the ADA and Section 504. See 42 U.S.C. § 12102(1)(A); 29 U.S.C. §

705(9)(B). Plaintiff initially proposed a stipulation as part of the parties’ scheduling order, but the

City declined to stipulate. Robertson Decl. ¶ 74. After receiving Dr. Gabbard’s report, Plaintiff

served a request for admission (“RFA”) asking the City to admit that he was substantially limited

in the major life activity of hearing. Id. ¶ 80.

Defendant initially refused to respond, objecting that the request was “vague as to time.”

ECF 60-1, Ex. 1. Plaintiff inquired by email whether the City would admit that Mr. Scott was

substantially limited in the major life activity of hearing “at all times relevant to this litigation.” Id.

Ex. 4 at 2. Plaintiff did not receive a response. Id. ¶¶ 3-6. Plaintiff moved to compel a response

to the RFA, which motion Judge Boland granted in part and ordered “defendant to respond to

Admission Request 1. The admission shall be based on the defendant’s information and

knowledge as of the date of the response.” ECF 109 at 2. Despite the fact that, on January 28,

2013, Defendant’s expert had opined that “by 2010, Mr. Scott was profoundly deaf” --

presumably constituting “defendant’s knowledge and information” about Mr. Scott’s hearing loss

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-- on February 11, 2013, Defendant served an amended response, admitting only that “Major Jon

Michael Scott is substantially limited in the major life activity of hearing as of February 11, 2013.”

The entire process -- resulting in this rather sophistic response -- was a product of the

Defendant’s refusal to stipulate to the obvious legal implication of its own experts’ opinions.

c. Defendant’s Motion to Depose Plaintiff

Because Plaintiff was incarcerated at the time Defendant originally sought to depose him,

a motion was required pursuant to Fed. R. Civ. P. 30(a)(2)(B). Plaintiff was perfectly willing to

be deposed, but requested that the City provide both a sign language interpreter and a certified

deaf interpreter (“CDI”). A CDI is an individual who is deaf or hard of hearing and has

specialized training and experience in use of gesture, mime, props, drawings and other tools to

enhance communication with people who are deaf and have limited communications skills.

Andrews Dec. ¶¶ 11 (ECF 106-2). The City argued that it would be an undue burden to provide

a CDI, ECF 99 at 6-7, forcing Plaintiff to brief the question, ECF 106. Judge Boland ordered the

City to provide a CDI. ECF 109 at 3.

d. Other Discovery Motions

Plaintiff moved to compel discovery of the names of other deaf detainees, which motion

was granted with conditions on the extent of the search required. ECF 32, 33.

Defendant moved to compel responses to interrogatories that Plaintiff believed to exceed

the permissible number. ECF 59, 84. Judge Boland granted the motion in part, agreeing with

Plaintiff that some of the interrogatories exceeded the permissible number, while ordering

responses to others. ECF 109.

Finally, the City moved for leave to take a second IME of Plaintiff. While Plaintiff did not

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object to the IME, he asked that his counsel be permitted to observe it; the City refused. In

response to the ensuing motions practice, ECF 49, 55, Judge Boland ordered that Plaintiff’s

counsel be permitted to observe the exam, ECF 57, 58. Because the City did not provide the

correct information to Judge Boland, however, it took several additional motions -- in the course

of which Mr. Scott was transported to Denver, not examined, and transported back to Cañon City

-- before the IME was ultimately conducted in Cañon City. Lucas Decl. ¶¶ 30-32.

A significant amount of time was devoted to obtaining the materials that the City’s expert

relied upon in developing her opinions. Ultimately many of those materials were not produced

until the morning of Dr. Schick’s deposition. Lucas Decl. ¶ 23.

A question arose during Dr. Schick’s deposition concerning her arrest record. Defendant

moved for and obtained a protective order. ECF 129. Plaintiff’s counsel have excluded from

their request for fees (1) all time associated with the protective order; (2) time spent during that

expert’s deposition to more than account for any time devoted to questions about her record; and

(3) all time spent obtaining the records in question. Robertson Decl. ¶ 86; Lucas Decl. ¶ 33.

7. Experts

As explained above, the City retained two experts, each of whom conducted an IME. One

of Plaintiff’s counsel observed each of the experts’ IMEs, and Plaintiff’s counsel took the

deposition of each expert. Plaintiff retained a single expert7 -- Jean Andrews, Professor of Deaf

Education at Lamar University -- who prepared a report and several supplemental reports in

response to the City’s rebuttal expert and to late-disclosed information from the City.

7 In his initial Rule 26(a)(2) disclosures, Plaintiff identified his treating audiologist asan expert. Because the City’s audiologist agreed with her conclusion, Plaintiff’s counsel did nothave further contact with her or spend time working with her. Robertson Decl. ¶ 87.

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On February 25, 2013 -- a year into the case and three days before Dr. Andrews’s

deposition -- the City disclosed a video recording of Mr. Scott being interviewed by Denver

Police detectives with the assistance of a sign language interpreter in 2007. The video recording,

however, was in a format that could not be played on any computer outside the City Attorney’s

office, despite extensive efforts by Plaintiff’s counsel, their paralegals, and IT consultants.

Plaintiff’s counsel was able to view the recording at the City Attorney’s office on February 26, but

was not able to show it to Dr. Andrews -- who resides in Beaumont, Texas -- as the City would

not permit Plaintiff to record it using screen capture software or a video camera. Plaintiff

requested that the City agree to postpone Dr. Andrews’s deposition to permit her to review the

recording. The City initially refused, causing Plaintiff’s counsel quickly to research and draft a

motion to quash the subpoena for the expert’s deposition two days hence. When shown a draft of

the motion to quash, however, the City agreed to continue the deposition until Dr. Andrews could

view the recording.

Finally, Plaintiff’s counsel had begun to prepare for this Court’s Procedures for Rule 702

Motions by drafting Plaintiff’s portion of the required joint motion and exchanging a number of

emails with counsel for the City to plan the joint motion.

8. Legal Research

Because Plaintiff’s counsel had represented the plaintiffs in the Ulibarri case -- and are

generally very experienced in ADA and Section 504 litigation -- very little general legal research

was necessary. Most of the legal research in the case related to specific motions, see section 6

above; in addition, Plaintiff’s counsel spent 6.3 hours performing legal research specific to the

case but not to a specific motion.

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9. Work with the Department of Justice

As noted above, the DOJ was also investigating Mr. Scott’s claim, and Plaintiff’s counsel

spent 19.2 hours presenting the case to and discussing it with the DOJ trial attorney.

10. Settlement Attempts and Mediation; Offer of Judgment; Fee Petition.

These categories are self-explanatory. Plaintiff’s counsel’s attempts to resolve this matter

from the very beginning of the case are documented above. They also spent time on the offer of

judgment and preparing the instant motion for fees.

11. Billing judgment

Plaintiff’s counsel both reviewed their hours and, in an exercise of billing judgment,

determined to deduct $28,320 worth of time, or approximately six percent of the total, from their

fees. This includes a small amount of time spent speaking with the press ($609), time spent by

paralegals on clerical tasks ($13,320), and approximately $14,481 in additional miscellaneous

deductions. Robertson Decl. ¶ 5 and Ex. 3; Lucas Decl. ¶ 12.

ARGUMENT

Having obtained an enforceable judgment on his claims under the ADA and Section 504,

Plaintiff is the prevailing party8 and is thus entitled to “a reasonable attorney’s fee, including

litigation expenses, and costs.” 42 U.S.C. § 12205; see also 29 U.S.C. § 794a(b) (party that

prevails under Section 504 is entitled to “a reasonable attorney’s fee as part of the costs”).

8 See, e.g., Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Healthand Human Res., 532 U.S. 598, 603 (2001) (“‘prevailing party’” [is] “‘[a] party in whose favor ajudgment is rendered, regardless of the amount of damages awarded.’” (Quoting Black’s LawDictionary 1145 (7th ed. 1999))); Grissom v. The Mills Corp., 549 F.3d 313, 319 (4th Cir. 2008)(holding that plaintiff who accepts offer of judgment is “prevailing party,” has it has “created amaterial alteration of the legal relationship between Plaintiff and Defendant by imposing uponDefendant a legally enforceable obligation to pay Plaintiff.”)

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The information provided in the declarations of attorneys Amy F. Robertson and Carrie

Ann Lucas and expert Darold W. Killmer are more than sufficient to satisfy plaintiff’s burden to

establish both “the appropriateness of the hours expended and the hourly rate sought.” See

Morris v. Potter, 2008 WL 5381475, at *5 (D. Colo. Dec. 22, 2008) (citing Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983)). These numbers are used to generate the lodestar. Here,

after the exercise of billing judgment, Plaintiff’s counsel’s lodestar is $427,372.50.

“[T]here is a ‘strong presumption’ that the lodestar figure is reasonable, but that

presumption may be overcome in those rare circumstances in which the lodestar does not

adequately take into account a factor that may properly be considered in determining a reasonable

fee.” Perdue v. Kenny A., 559 U.S. 542, 130 S.Ct. 1662, 1673 (2010); see also Clawson v.

Mountain Coal Co., 2007 WL 4225578, at *6 (D. Colo. Nov. 28, 2007) (“adjustments to the

lodestar should only be made in rare and exceptional cases.”) (citing Pennsylvania v. Delaware

Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564-65 (1986)). Because no such rare and

exceptional circumstances obtain here, no further adjustments are necessary, and Plaintiff is

entitled to recover his lodestar.

An award of fees is especially important in a civil rights case such as this, as “Congress

expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit ‘“does so not for

himself alone but also as a ‘private attorney general,’ vindicating a policy that Congress

considered of the highest importance.”’ City of Riverside v. Rivera, 477 U.S. 561, 575 (1986)

(plurality opinion) (internal citations omitted). Indeed, “[p]otential liability for full value fee

awards can deter violations of the civil rights laws, especially in situations where the fee award

represents a significant portion of a defendant’s financial exposure.” Ramos v. Lamm, 713 F.2d

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546, 552 (10th Cir. 1983).

Under both the ADA and Section 504, a prevailing plaintiff is entitled to recover costs;

under the ADA, this explicitly includes “litigation expenses.” 42 U.S.C. § 12205. The expenses

documented in Exhibit 4 to the Robertson Declaration, totaling $21,996.49, were all properly

incurred in connection with this litigation and should be awarded.

I. The Hours Expended by Plaintiff’s Attorneys Were Reasonable.

As explained above and supported by the declaration of expert Darold W. Killmer, the

hours for which Plaintiff seeks attorneys’ fees were reasonably incurred in tasks necessary to

obtaining judgment against the City. As instructed by the Tenth Circuit in Ramos, 713 F.2d at

553, Plaintiff’s counsel kept “meticulous, contemporaneous time records.” In addition, as

described in section 11 above, Plaintiff’s counsel reviewed their time records and deducted

approximately 6% of the total in the exercise of billing judgment. See Robinson v. City of

Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (the “prevailing party must make a ‘good-faith

effort to exclude from a fee request hours that are excessive, redundant, or otherwise

unnecessary.’” (internal citation omitted)).

It is essential to evaluate Plaintiff’s counsel’s fees in light of the City’s conduct during the

litigation. “The Tenth Circuit has long accepted the proposition that one of the factors useful in

evaluating the reasonableness of the number of attorney hours in a fee request is ‘the responses

necessitated by the maneuvering of the other side.’” Robinson, 160 F.3d at 1284 (quoting

Ramos, 713 F.2d at 554); see also City of Riverside, 477 U.S. at 580 n.11 (“The government

cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the

plaintiff in response.” (Citation omitted)); Sussman v. Patterson, 108 F.3d 1206, 1209 (10th Cir.

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1997) (“[T]he hours expended were, in large part, necessarily incurred due to defendants’

intransigence in refusing to negotiate or discuss settlement before and after suit was filed.”);

Clawson, 2007 WL 4225578, at *7 (one factor in assessing reasonableness of fees is

“aggressiveness of the other side”). The City “could have avoided liability for the bulk of the

attorney’s fees for which they now find themselves liable by making a reasonable settlement offer

in a timely manner.” City of Riverside, 477 U.S. at 580 n. 11.

Here, not only did the City ignore early and repeated settlement overtures by Plaintiff, its

conduct -- documented in detail above -- justifies the fees requested by Plaintiff’s counsel. For

example, the City maintained that its deputies were able to communicate with Mr. Scott, but it

took two trips before Judge Boland and repeated inaccurate and corrected disclosures to ascertain

which of its deputies had relevant information. It refused to stipulate to Mr. Scott’s disability

despite the fact that both of its experts concluded that he was deaf and had been since at least the

beginning of the statute of limitations period. Extensive paralegal time had to be devoted to

obtaining records back to Mr. Scott’s preschool school days, from various probation departments

and community corrections facilities, and from social media sites, as well as to processing,

reviewing and coding multiple copies of the same documents that the City repeatedly and

inexplicably produced.

Plaintiff is also entitled to recover his fees and costs in connection with the preparation of

this motion for fees. Case v. Unified Sch. Dist. No. 233, Johnson County, Kan., 157 F.3d 1243,

1254 (10th Cir. 1998). This is especially so here, where Plaintiff attempted to resolve his fees

informally -- “[i]deally, of course, litigants will settle the amount of a fee,” Hensley, 461 U.S. at

437 -- and made several reasonable below-lodestar offers, but the City offered only a 70% to 80%

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reduction of lodestar, and refused to identify any specific entries to which it objected.

II. Plaintiff’s Attorneys’ Rates Are Reasonable.

Plaintiff’s counsel’s rates are in line with the market for lawyers of “comparable skill and

experience practicing in the area in which the litigation occurs.” Ramos, 713 F.2d at 555; see also

Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (reasonable hourly rate is one that is

“in line with those prevailing in the community for similar services by lawyers of reasonably

comparable skill, experience, and reputation.”). As this Court has held on several previous

occasions, it is appropriate to use current rather than historical rates. See, e.g., Morris, 2008 WL

5381475, at *5 (citing Missouri v. Jenkins, 491 U.S. 274, 282-84 (1989)).

The undersigned charges $440 for work performed in Colorado.9 F&R currently has two

matters in which its bills its time by the hour rather than on a contingent basis: one in which fees

are paid by a client; the other, the monitoring phase of a consent decree in which fees are paid by

the defendant. In both, F&R charges $440 per hour for my time. Robertson Decl. ¶ 20.

This Court has previously approved F&R’s fees against the City in the class action

settlement in Colorado Cross-Disability Coalition v. City and County of Denver, 06-cv-00865-

MSK-BNB, in which the undersigned’s rate was -- five years ago -- $360. Id. ECF 168, 173 (fee

petition and order approving same);10 the current rate of $440 reflects reasonable increases over

the ensuing five years. It is also supported by the Colorado Bar Association’s 2008 Economic

9 F&R received approval of its attorneys’ fees in two related class action settlementsin California in which the undersigned’s rates were $725 (in 2012) and $570 (in 2010). Robertson Decl. ¶ 23.

10 While this approval was pursuant to a class action settlement, this Court wasreviewing our fees pursuant to its authority under Fed. R. Civ. P. 23(e) and (h) to ensure that thesettlement was fair and the fees, reasonable.

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Survey11 which showed -- again, five years ago -- rates for attorneys 16 to 25 years out school of

$420 and in zip codes 80202 and 80203 of $451; the undersigned graduated 25 years ago and

practices in zip code 80203. See also, generally, Lucas v. Kmart Corp., 2006 WL 2729260 (D.

Colo. July 27, 2006) (reviewing and approving F&R’s rates, hours, and costs and relying on Mr.

Killmer’s expert opinion).

The Center for Rights of Parents with Disabilities charges $290 per hour for Ms. Lucas’s

time on complex contingent civil rights cases.12 This amount is a reasonable market rate for an

eighth-year attorney in comparable cases. It is, for example, midway between the rate of $345 foa

14-year attorney and $160 for a first year that Judge Morris Hoffman endorsed in 2011 in the

attached decision in Colorado Cross-Disability Coalition v. Colorado Dep’t of Health Care

Policy and Financing, 09CV11761. Robertson Decl. Ex. 35. It is also below the rate shown in

the 2008 CBA study ($347) for attorneys with six to ten years of experience. Id. at 27.

CRPD’s paralegal’s time is billed at $100 per hour. Time for F&R’s more experienced

paralegals is billed at $130 per hour.

Darold Killmer, a Denver attorney who has extensive experience with civil rights litigation

and the Denver attorney market, submits a declaration in support of this motion, opining that

Plaintiff’s counsel’s rates are reasonable -- or even conservative -- as was the amount of time

devoted to the case. See generally Killmer Decl.

11 http://www.cobar.org/repository/LPM%20Dept/2008EconSurvey.pdf at 27.

12 Ms. Lucas works by court appointment on juvenile law cases at a lower rate. Insuch cases, there is, of course, no risk of nonpayment.

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III. There are No Grounds to Reduce the Lodestar.

While reductions in lodestar may be permissible where a plaintiff prevailed on fewer than

all claims, that does not apply here: Mr. Scott brought two essentially identical claims13 and

obtained an enforceable judgment against the City for $15,000. Where, as here, “a plaintiff has

obtained excellent results, his attorney should recover a fully compensatory fee. Normally this

will encompass all hours reasonably expended on the litigation.” Hensley, 461 U.S. at 435. In

Grievson v. Rochester Psychiatric Center, 746 F. Supp. 2d 454 (W.D. N.Y. 2010), a deaf

plaintiff obtained a settlement of $14,000 -- $1,000 less than Mr. Scott -- for a 21-day stay in a

psychiatric center with no interpreter. In reviewing the plaintiff’s request for attorneys’ fees, the

court stated, “I easily conclude that counsel achieved an excellent result for plaintiff.” Id. at 470.

Plaintiff here achieved a similar excellent result and should recover a fully compensatory

fee including all hours reasonably expended on the litigation.

IV. Plaintiff’s Costs Are Reasonable.

As noted above, under the ADA, Plaintiff is entitled to recover his litigation expenses and

costs. 42 U.S.C. § 12205; Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002). Plaintiff’s

counsel’s costs are set forth in Exhibit 4 to the Robertson Declaration. As an initial matter, both

of Plaintiff’s counsel treats as overhead three significant costs that are often billed to private

clients: online legal research (e.g., Westlaw), postage, and in-house copying. See, e.g., Clawson,

2007 WL 4225578 at *22 (approving charges for Lexis research). Thus, Plaintiff’s counsel do

not seek reimbursement for these costs.

13 “Because the language of [Title II of the ADA and the Rehabilitation Act] issubstantially the same, we apply the same analysis to both.” Cohon ex rel. Bass v. N.M. Dep’t ofHealth, 646 F.3d 717, 726 (10th Cir. 2011).

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All of the expenses for which Plaintiff’s counsel seek reimbursement are those that would

normally be billed to a private client. See Ramos, 713 F.2d at 559. Specifically, litigation

expenses chargeable under the ADA include expert witness fees, Lovell, 303 F.3d at 1058, and

the Tenth Circuit has specifically approved reimbursement of travel costs to Cañon City where a

client is incarcerated there, Ramos, 713 F.2d at 559 (“The district court properly allowed

reimbursement for the expense of travel between Denver and the Cañon City prison, given its

finding that such costs would normally be billed to a private client.”)

Mr. Killmer has also reviewed Plaintiff’s counsel’s costs and found them reasonable.

Killmer Decl. ¶ 27.

CONCLUSION

For the reasons set forth above, Plaintiff respectfully request that this Court award his

attorneys their fees in the amount of $427,372.50 and costs and expenses in the amount of

$21,996.49, representing amounts incurred through June 26, 2013.

Respectfully submitted,

/s/ Amy F. Robertson Amy F. RobertsonFox & Robertson, P.C.104 Broadway, Suite 400Denver, CO 80203303.595.9700 (voice)303.595.9705 (fax)[email protected]

Attorneys for Plaintiff

Carrie Ann LucasThe Center for Rights of Parents withDisabilitiesP.O. Box 756Windsor, CO 80550720.363.1131 (voice)970.460.9197 (fax)[email protected]

July 8, 2013

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CERTIFICATE OF SERVICE

I hereby certify that on July 8, 2013 I served the foregoing Plaintiff’s Motion forAttorneys’ Fees and Costs, the Declaration of Amy F. Robertson in Support of Plaintiff’s Motionfor Attorneys’ Fees and Costs; the Declaration of Carrie Ann Lucas in Support of Plaintiff’sMotion for Attorneys’ Fees and Costs; and the Declaration of Darold W. Killmer in Support ofPlaintiff’s Motion for Attorneys’ Fees and Costs via the CM/ECF system on:

Wendy [email protected]

Joseph M. [email protected]

Carol [email protected]@ci.denver.co.us

By: /s/ Caitlin R. AndersonCaitlin R. Anderson

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in the united states district court for the … · case 1:12-cv-00053-msk-bnb document 140 filed...

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