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Rule 54(d)(2)(D), Fed. R. Civ. P., provides that the court “may refer a motion for

attorney’s fees to a magistrate judge under Rule 72(b) as if it were a dispositive matter.”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Boyd N. Boland

Civil Action No. 11-cv-02438-PAB-BNB

ALVIN MOSCH,

PATRICIA C. MOSCH, and

DAVID K. MOSCH, each individually and d/b/a MOSCH MINING COMPANY,

Plaintiffs,

v.

JOHN HENRY, a/k/a JOHN T. HENRY a/k/a JOHN L. HENRY,

UNITED STATES REAL ESTATE CORPORATION, and any one claiming by or through any

of the named persons,

Defendants.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

AND ORDER 

______________________________________________________________________________

This matter arises on the plaintiffs’ Motion to Enter Judgment for Attorneys’ Fees

and Expenses Incurred [Doc. # 155, filed 2/7/2013] (the “Motion for Attorney Fees”). I

respectfully RECOMMEND that the Motion for Attorney Fees be granted in part as specified

and that the plaintiffs be awarded attorney fees in the amount of $49,550.00.1

This action is brought pursuant to section 38-35-204, C.R.S., seeking to have spurious

liens and documents clouding title to property declared invalid. The statute allows for the award

of attorney fees to a prevailing plaintiff as follows:

If, following the hearing on the order to show cause, the court

determines that the lien or document is a spurious lien or spurious

document, the court shall make findings of fact and enter an order

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and decree declaring the spurious lien or spurious document and

any related notice of lis pendens invalid, releasing the recorded or

filed spurious lien or spurious document, and entering a monetary

judgment in the amount of the petitioner’s costs, including

reasonable attorney fees, against any respondent and in favor of the

petitioner.

Section 38-35-204(2), C.R.S.

On September 9, 2013, I entered an Order to Show Cause [Doc. # 105] commanding the

defendants to demonstrate why the alleged spurious documents should not be declared invalid. 

On November 6, 2012, following a hearing, I found that the documents were spurious and

recommended that they be held invalid and be released. Recommendation [Doc. # 144]. The

district judge adopted my Recommendation on January 28, 2013, Order [Doc. # 152], and

judgment consistent with my Recommendation and the district judge’s Order entered on

February 6, 2013. Final Judgment [Doc. # 153]. Among other things, the Final Judgment

provides that the “Plaintiffs are AWARDED reasonable attorney fees upon motion pursuant to

D.C.COLO.LCivR 54.3” and “costs, to be taxed by the Clerk of the Court pursuant to Fed. R.

Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.” Id.

The plaintiffs filed the Motion for Attorney Fees [Doc. # 155] on February 7, 2013. The

defendants responded on February 27, 2013. Response [Doc. # 161]. The Response is signed by

John T. Henry, and is purportedly made on his behalf pro se and on behalf of U.S. Real Estate

Corporation. Id. As a preliminary matter, defendant John Henry is proceeding pro se, and I

must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). I cannot

act as an advocate for a pro se party, however, who must comply with the fundamental

requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). In addition, Mr. Henry is not a lawyer and not a member of the bar of this court,

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and he may not act on behalf of the corporate defendant, U.S. Real Estate Corporation. 28

U.S.C. § 1654; D.C.COLO.LCivR 11.1A; Wallic v. Owens-Corning Fibreglass Corp., 40 F.

Supp. 2d 1185, 1188 (D. Colo. 1999) (stating that “a corporate defendant . . . [may] only appear

by counsel admitted to the bar of this court”).

In any event, the Response generally does not address the merits of the Motion for

Attorney Fees. It states only:

Respondents, John T. Henry and United States Real Estate

Corporation hereby deny the allegations contained in petitioner’s

motion. Further, respondents seek authority to take deposition of

Mr. Richard L. Garnett as it relates to substance of his attorney’s

fee, petition, and his affidavit.

Response [Doc. # 161]. Mr. Henry has attached to the Response numerous documents that

appear to have no relevance to the attorneys fee issue.

Local rule of practice 7.1C, D.C.COLO.LCivR, provides, in relevant part, that “[a]

motion shall not be included in a response or reply to the original motion. A motion shall be

made in a separate paper.” Mr. Henry’s motion to depose Mr. Garnett violates the local rule

because it is included in his Response. Consequently, that request is denied.

The plaintiffs failed to seek their costs in the manner specified by Fed. R. Civ. P. 54(d)(1)

and D.C.COLO.LCivR 54.1, as required by the Final Judgment [Doc. # 153]. The request for

costs is therefore denied.

I turn finally to the Motion for Attorney Fees [Doc. # 155]. It is supported by an affidavit

[Doc. # 155-1] (the “Garnett Aff.”) that includes a detailed description of the services rendered,

the amount of time spent, the hourly rate, the total amount claimed, and plaintiffs’ counsel’s

qualifications and experience, all as required by D.C.COLO.LCivR 54.3.

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As the Supreme Court instructed in Fox v. Vice, 131 S. Ct. 2205, 2216 (2011), “trial

courts need not, and indeed should not become green-eyeshade accountants” when determining a

fee application. “The essential goal in shifting fees (to either party) is to do rough justice, not to

achieve auditing perfection.” Id.

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In calculating a reasonable attorney’s fee, I apply the lodestar principles stated in

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 reasonably hourly rate.” 

Id.(internal quotations and citation omitted).

1. Reasonable Time Expended

The first step in calculating a fee award is to determine the number of hours reasonably

spent by counsel for the party seeking the fees. The burden of proof lies with the prevailing

party seeking fees. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).2

The plaintiffs’ attorney, Richard Garnett, has itemized the tasks performed and the time

required for those tasks. The itemization reflects a total of 205.4 hours of time expended in

connection with this case. I have reviewed the time itemization and find that the following time

was necessarily and reasonably expended in the prosecution of the case and is properly presented

in the supporting affidavit:

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• Client meetings and communications 29.3 hours

• Factual investigation 20.7

• Legal research 6.4

• Drafting pleadings 54.2

• Communications with defendants 25.3

• Preparation for show cause hearing 33.1

• Court appearances and communications with

court staff 19.4

• Preparation of Motion for Attorney Fees 7.0 

TOTAL 195.4 hours

 I have disallowed 10 hours claimed by the plaintiffs for “all of the other tasks attendant to

representing a plaintiff in a civil action that starts out in a Colorado District Court and is

subsequently removed to the United States District Court,” Garnett Aff. [Doc. # 155-1] at ¶4(8),

because it is not sufficiently detailed as required by D.C.COLO.LCivR 54.3B(1).

2. Reasonable Hourly Rate

The plaintiff claims attorney fees at a rate ranging from $250 to $300 per hour. 

Specifically, the Garnett Aff. [Doc. # 155-1] specifies that “Affiant charged $250.00 per hour for

his time until January 1, 2013, at which time Affiant increased his rate to $300.00 per hour.” Id.

at ¶3. Unfortunately, the affidavit does not specify what time was expended prior to January 1,

2013, and what was expended thereafter. Consequently, I will assume that all time claimed was

billed prior to January 1, 2013, except that expended on the Motion for Attorney Fees which

clearly occurred after the entry of the Final Judgment on February 6, 2013.

The plaintiff bears the burden of establishing that the rate is reasonable. Guides, Ltd. v.

Yarmouth Group Property Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). “A reasonable

rate is the prevailing market rate in the relevant community.” Id. A trial court may use its own

knowledge in determining a reasonable rate. Id. at 1079. See Praseuth v. Rubbermaid, Inc., 406

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Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have 14 days

after service of this recommendation to serve and file specific, written objections. A party’s

failure to serve and file specific, written objections waives de novo review of the

recommendation by the district judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-

48 (1985), and also waives appellate review of both factual and legal questions. Makin v.

Colorado Dept. of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d

1411, 1412-13 (10th Cir. 1996). A party’s objections to this recommendation must be both

timely and specific to preserve an issue for de novo review by the district court or for appellate

review. United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996).

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F.3d 1245, 1259 (10th Cir. 2005)(approving the district court’s determination of the applicable

hourly rate by “relying on its knowledge of rates of lawyers with comparable skill and

experience” practicing in the relevant market). I find that a rate ranging from $250 to $300 per

hour is reasonable for a lawyer of Mr. Garnett’s training and experience and in connection with a

case of this nature.

Multiplying the number of hours reasonably incurred by the reasonable hourly rate

charged by plaintiffs’ counsel results in the following: 

(188.4 hours x $250.00 per hour) + (7 hours x $350.00 per hour) = $49,550.00.

I find that a fee of $49,550.00 is reasonable and appropriate in this case.

I respectfully RECOMMEND that the Motion for Attorney Fees [Doc. # 155] be

GRANTED in part as specified and that the plaintiff s be awarded their reasonable and necessary

attorney fees in the amount of $49,550.00.3

FURTHER, IT IS ORDERED:

(1) The defendants’ request to depose Mr. Garnett is DENIED; and

(2) The plaintiffs’ request for costs is DENIED.

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Dated March 7, 2013.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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