Roth v. Coleman , 438 F. App'x 725 ( 2011 )


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  •                                                              FILED
    United States Court of Appeals
    Tenth Circuit
    September 21, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    STEPHEN C. ROTH; JEAN
    GUMESON,
    Plaintiffs,
    No. 10-1538
    v.                                     (D.C. No. 02-CV-01116-LTB-CBS)
    (D. Colo.)
    JEFF COLEMAN; AL BELL, as
    individuals and in their official
    capacities; CITY OF DURANGO, a
    public corporation,
    Defendants - Appellees,
    MICHAEL F. GREEN; DENNIS
    SPRUELL; MATT BUFFINGTON;
    BROOKS BENNETT; HUGH
    RICHARDS; DANNY DUFUR; TIM
    ROWELL; TOM HALPER; MIKE
    MEUER, a/k/a MIKE MEUEER; KEN
    BRACKETT; SAM HAGER; ROY C.
    LANE; JERRY MARTIN; JOEY M.
    CHAVEZ; SYDNEY “DUKE”
    SCHIRARD; DALE WOOD, as
    individuals and in their official
    capacities; CITY OF CORTEZ, a
    public corporation; DOLORES
    COUNTY BOARD OF COUNTY
    COMMISSIONERS, a public
    corporation; LA PLATA COUNTY
    BOARD OF COUNTY
    COMMISSIONERS, a public
    corporation; MONTEZUMA
    COUNTY BOARD OF COUNTY
    COMMISSIONERS, a public
    corporation; and JOHN DOES 1-50,
    Defendants.
    ---------------------
    ROBERT J. MULHERN,
    Attorney - Appellant.
    ORDER AND JUDGMENT *
    Before KELLY, SILER **, and MATHESON, Circuit Judges. ***
    Attorney Robert J. Mulhern appeals from the remand judgment awarding
    sanctions against him arising from a civil rights suit filed on behalf of his clients,
    Plaintiffs Stephen Roth and Jean Gumeson. Roth v. Green, No.
    02-cv-01116-LTB-CBS, 
    2010 WL 4364321
     (D. Colo. Oct. 27, 2010). The
    underlying suit alleged that various Defendants engaged in a ruse checkpoint
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    **
    The Honorable Eugene E. Siler, Jr., Senior U.S. Circuit Judge, Sixth
    Circuit, sitting by designation.
    ***
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    -2-
    resulting in an unlawful stop, detention, search, and arrest. Various Defendants
    moved for sanctions pursuant to Fed. R. Civ. P. 11 and 
    28 U.S.C. § 1927
    following dismissal and appeal of the suit, and the district court granted the
    motion. The only issues remaining for our consideration are whether the district
    court erred in awarding attorney’s fees to the Durango Defendants (represented by
    Earl G. Rhodes) and in basing that award on the records provided. Because we
    conclude that the Durango Defendants did not waive their request for attorney’s
    fees and costs and that the district court did not abuse its discretion in basing the
    award on the records subsequently provided, we affirm.
    Background
    This is the fourth appeal concerning these sanctions. In the first appeal, we
    held that we lacked jurisdiction to review the sanctions order because the district
    court had not yet determined the amount to be awarded to one set of Defendants.
    Roth v. Green, 123 Fed. App’x. 871, 874, 
    2005 WL 256580
     (10th Cir. 2005)
    (Roth I). In the second appeal, we held that the district court did not abuse its
    discretion in finding violations of Fed. R. Civ. P. 11 and 
    28 U.S.C. § 1927
    , but
    that the court did err by awarding sanctions in the absence of adherence to the
    procedures outlined in Fed. R. Civ. P. 11. We remanded for a determination of
    the proper amount of fees to be assessed pursuant to 
    28 U.S.C. § 1927
    . Roth v.
    Green, 
    466 F.3d 1179
    , 1193 (10th Cir. 2006) (Roth II). The district court then
    -3-
    awarded the Durango Defendants attorney’s fees and costs in the amount of
    $8,152.99. Aplt. App. 66, 72, 74. On appeal, we reversed the award and
    remanded. Roth v. Spruell, 388 Fed. App’x. 830, 
    2010 WL 2881532
     (10th Cir.
    2010) (Roth III).
    In our last order and judgment, we concluded that the district court was
    required to review the actual billing records supporting the fees and costs incurred
    by the Durango Defendants. Id. at *7. The Durango Defendants did not submit
    time records for the pertinent time period (2003), instead relying on an affidavit
    that stated the amount of fees incurred. Id.; Roth, 
    2010 WL 4364321
    , at *2.
    Although “the district court did not abuse its discretion in determining that
    Mr. Mulhern should be responsible for attorney’s fees and costs incurred after
    February 3, 2003,” Roth III, 
    2010 WL 2881532
    , at *5, we ordered the following
    remand:
    As for the Durango Defendants, the district court will first need to
    reconsider and expressly rule on Mr. Mulhern’s argument made in his
    objections to the magistrate judge’s report and recommendation that
    the Durango Defendants waived their right to attorneys’ fees and
    costs by failing to submit detailed time sheets in support of their
    motion for sanctions. See Aplt. Supp. App., Vol. II at 849. If that
    issue is resolved in favor of the Durango Defendants, then they will
    need to submit detailed time sheets in order for the district court to
    recalculate the amount of fees and costs incurred from February 4,
    2003, through December 5, 2003, with costs being limited to the
    items listed in § 1920.
    Id. at *8.
    On remand, the district court considered and rejected Mr. Mulhern’s
    -4-
    waiver argument and then proceeded to assess fees. Roth, 
    2010 WL 4364321
    , at
    *4-5. On appeal, Mr. Mulhern reasserts that the Durango Defendants waived their
    right to attorney’s fees and costs based on their failure to provide detailed records
    in the first instance, and the district court abused its discretion in basing an award
    on non-contemporaneous records. The district court based its calculations on
    time records provided by Mr. Rhodes on September 3, 2010, and accompanying
    affidavits. See Aplt. App. 89-91, 94-115. In addition to an affidavit
    accompanying the time records, Mr. Rhodes submitted an affidavit on October 4,
    2010, stating that “time entries attached to the defense attorney affidavit of
    September 3, 2010 were made contemporaneously at the time indicated on the
    time entries.” Aplee. Supp. App. 422-23. The district court found no evidence to
    support Mr. Mulhern’s suggestion that the billing records were inaccurate or
    untrustworthy and awarded fees and costs based on these records, discounting a
    portion of the total amount by 10% to account for insufficiently informative
    entries. Roth, 
    2010 WL 4364321
    , at *5-6.
    Discussion
    We review the district court’s award for an abuse of discretion, reversing
    factual findings only if clearly erroneous. Browder v. City of Moab, 
    427 F.3d 717
    , 719 (10th Cir. 2005). We have no quarrel with Mr. Mulhern’s argument that
    a party seeking attorney’s fees and costs has the burden of proof as to entitlement
    -5-
    and amount, and that as a general matter a party who does not satisfy the latter
    runs the risk of the denial of attorney’s fees and costs. See Mares v. Credit
    Bureau of Raton, 
    801 F.2d 1197
    , 1208 (10th Cir. 1986); Hensley v. Eckerhart,
    
    461 U.S. 424
    , 437 (1983). But it is quite another matter to hold that a district
    court, having been reversed for relying solely upon a summary figure, lacks
    discretion to consider later time records that comply with the requirements of
    Ramos v. Lamm, 
    713 F.2d 546
    , 553 (10th Cir. 1983), overruled on other grounds
    by Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 
    483 U.S. 711
    ,
    717 n.4, 725 (1987). No evidence suggests that the Durango Defendants
    intentionally relinquished a right to attorney’s fees and costs, and we agree with
    the district court that our remand gave it the authority to reject this argument and
    recalculate. We decline to circumscribe a district court’s discretion by holding
    that it may never allow a party to remedy a deficient submission.
    We next consider whether the district court erred in recalculating the
    amount of fees and costs incurred from February 4, 2003, through December 5,
    2003. Mr. Mulhern asserts that the district court’s award was based on non-
    contemporaneous records; however, the October 4, 2010, affidavit provided by
    Mr. Rhodes states otherwise. In light of what was presented, the district court
    could credit the affidavit, find that the time records adequately showed the work
    performed subject to a 10% reduction for non-informative entries, the amount
    charged, and the allowable costs.
    -6-
    AFFIRMED.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    -7-
    

Document Info

Docket Number: 10-1538

Citation Numbers: 438 F. App'x 725

Judges: Kelly, Siler, Matheson

Filed Date: 9/21/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024