IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Boyd N. Boland

Civil Action No. 11-cv-01757-LTB

COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT,

Plaintiff,

v.

EARL H. BRAUCH, and

BRAUCH ENTERPRISES II,

Defendants.

ORDER

This matter arises on the Plaintiff’s Motion for Attorneys’ Fees [Doc. #21, filed

3/29/12] (the “Motion”). On March 12, 2012, I granted Plaintiff’s Motion to Compel Discovery

[Doc. # 12](the “Motion to Compel”) and awarded the plaintiff its reasonable expenses in

making the Motion to Compel. The plaintiff was directed to make a fee application that

complies with the requirements of D.C.COLO.LCivR 54.3 on or before March 30, 2012.

The Motion for Attorneys’ Fees [Doc. # 21] is supported by the affidavits of plaintiff’s

counsel, Richard E. Lotz, and a legal assistant with the Office of the Colorado Attorney General,

Suzanne Burdick, as well as the Colorado Bar Association’s 2008 Economic Survey regarding

attorney hourly billing rates. The Motion also includes a detailed description of the services

rendered, the amount of time spent, the hourly rates, the total amount claimed, and Mr. Lotz’s

qualifications and experience, all as required by D.C.COLO.LCivR 54.3. No response to the

Motion for Attorneys’ Fees has been received.

In calculating reasonable attorneys’ fees, I apply the lodestar principles stated in

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Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). “The lodestar calculation is

the product of the number of attorney hours reasonably expended and a reasonable hourly rate.” 

Id. (internal quotations and citation omitted). The burden of proof as to the amount and

reasonableness of the fees claimed lies with the party seeking an award. Hensley v. Eckerhart,

461 U.S. 424, 437 (1983).

Mr. Lotz and Ms. Burdick have submitted timekeeping reports to substantiate their fee

claim. The timekeeping reports reflect that Mr. Lotz expended 33.3 hours at a rate of $250.00

per hour, for a total of $8,325.00. The timekeeping records indicate that Ms. Burdick claims 1.5

hours at $100.00 per hour, for a total of $150.00. The award of fees and costs sought by the

plaintiff is $8,475.00.

I have no quarrel with the rates charged by Mr. Lotz and Ms. Burdick, and I find that

they are reasonable. The total amount of fees and costs sought, however, is excessive in view of

the nature of the task at issue. I have awarded fees based on a straight-forward discovery

dispute. The initial Motion to Compel was two pages long and contained a basic legal analysis. 

Thereafter, defendant Earl H. Brauch filed a response to the motion to compel [Doc. # 14]

which, in the words of the plaintiff, “appears to be a belated response to Plaintiff’s discovery

requests. . . .” Reply [Doc. # 15] at ¶2. The plaintiff then engaged in obvious overkill, filing a

Reply of 19 pages accompanied by 41 pages of exhibits. Id.

I do not intend to review the fee request line by line. To the contrary:

[T]rial courts need not, and indeed should not, become greeneyeshade accountants. The essential function in shifting fees (to

either party) is to do rough justice, not to achieve auditing

perfection. So trial courts may take into account their overall

sense of a suit, and may use estimates in calculating and allocating

an attorney’s time.

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Fox v. Vice, 131 S. Ct. 2205, 2216 (2011).

According to the plaintiff’s time records, the motion to compel required 2.2 hours to

prepare. Plaintiff’s counsel required one hour to review Mr. Brauch’s response to the motion to

compel. A reasonable reply should have taken no more than eight hours to draft. Consequently,

I find that the plaintiff is entitled to an award of fees for not more than 13.2 hours time at the rate

of $250.00 per hour.

IT IS ORDERED:

(1) The Motion for Attorneys’ Fees [Doc. #21] is GRANTED; and

(2) The plaintiff is awarded its reasonable and necessary attorneys’ fees and costs in

the amount of $3,300.00, against defendant Earl H. Brauch.

Dated June 5, 2012.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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