Fresquez v. BNSF Ry. Co.

BRANDON FRESQUEZ, Plaintiff, v. BNSF RAILWAY CO., Defendant.

Civil Action No. 17-cv-0844-WJM-SKC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 8, 2021

Judge William J. Martínez

ORDER GRANTING IN PART PLAINTIFF'S SUPPLEMENTAL MOTION FOR FEES AND COSTS AND DENYING DEFENDANT'S MOTION TO ALTER OR AMEND ORDER GRANTING IN PART PLAINTIFF'S FEE MOTION & SUPPLEMENT FEE MOTION

Plaintiff Brandon Fresquez sued his former employer, BNSF Railway Co. ("BNSF"), for retaliating against him for engaging in protected activity by terminating his employment, in violation of the Federal Railroad Safety Act, 49 U.S.C. § 20109 ("FRSA"). On February 11, 2019, the case proceeded to a 6-day trial before United States District Judge Wiley Y. Daniel of the District of Colorado. On February 19, 2019, the jury returned a verdict in favor of Fresquez. (ECF No. 152.)

On March 20, 2020, the Court issued an order (the "Prior Order") granting in part Plaintiff's Motion for Fees and Costs (ECF No. 165) and Plaintiff's Supplemental Motion for Fees and Costs (ECF No. 199). (ECF No. 230.) Specifically, the Court concluded that a reasonable hourly rate for Fresquez's counsel was $450 per hour (instead of the requested $625 per hour) and that Fresquez's counsel was entitled to $539,010 in attorneys' fees, $45,672.79 in costs, and $40,516.83 in expert witness fees, for a total award of $625,199.62. (Id. at 7, 16.)

Before the Court is Fresquez's Supplemental Motion for Fees and Costs ("Fee Motion"), filed on April 3, 2020. (ECF No. 232.) Also before the Court is BNSF's Motion to Alter or Amend Order Granting in Part Plaintiff's Fee Motion & Supplemental Fee Motion ("Motion for Reconsideration"), filed on April 17, 2020. (ECF No. 237.)

For the reasons set forth below, the Fee Motion is granted in part and the Motion for Reconsideration is denied.

I. MOTION FOR RECONSIDERATION

Rule 59(e) permits a Court to alter or amend a judgment on timely motion by a party. Fed. R. Civ. P. 59(e). "Rule [59(e)] was adopted to mak[e] clear that the district court possesses the power to rectify its own mistakes in the period immediately following the entry of judgment." White v. N.H. Dep't of Emp't Sec., 455 U.S. 445, 450 (1982) (internal quotation marks omitted). Accordingly, the Court may amend the judgment in its discretion where (1) there has been an intervening change in the controlling law; (2) new evidence that was previously unavailable has come to light; or (3) the Court sees a need to correct clear error or prevent manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). "Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Id. However, motions to alter or amend the judgment pursuant to Rule 59(e) "are regarded with disfavor. . . [and are] 'not appropriate to revisitissues already addressed or advance arguments that could have been raised in prior briefing.'" Kerber v. Qwest Grp. Life Ins. Plan, 727 F. Supp. 2d 1076, 1077 (D. Colo. 2010) (quoting Servants of the Paraclete, 204 F.3d at 1012).

In the Prior Order, the Court noted that "the Colorado Bar Association's 2017 Economics of Law Practice Survey shows that the median hourly billing rate for Colorado-based, plaintiff's-side, labor and employment private practitioners was $313, and the 75% percentile is $356" and determined that these rates "establish a baseline of reasonableness." (ECF No. 230 at 6.) After considering the prevailing market rates for Colorado employment lawyers, as well as the national rates for experienced FRSA lawyers, Fresquez's counsel's experience, and the level of competence required to successfully litigate this FRSA claim, the Court determined that $450 was a reasonable hourly rate for Fresquez's counsel, Nick Thompson and John Stone. (Id. at 6-7.)

In the Motion for Reconsideration, BNSF "asks the Court to revisit the analysis [of the attorneys' fee award in the Prior Order] and upon doing so to amend its order by changing the rate for the fee award to between $313 and $356 per hour." (ECF No. 237 at 5.) BNSF does not present new evidence or argue that there has been an intervening change in the controlling law. Instead, BNSF contends that the Court erred by determining that a reasonable hourly rate for both Mr. Thompson and Mr. Stone is $450 per hour, which is a higher rate than the "baseline of reasonableness" the Court identified for Colorado practitioners. (Id. at 3.)

Specifically, BNSF argues that the Court erred by increasing the hourly rate based on "attorney specialization and the type of matter." (ECF No. 237 at 4.) BNSFcites Perdue v. Kenny A. ex rel. Winn, 599 U.S. 542 (2010), for the proposition that the "novelty and complexity of a case generally may not be used as a ground for enhancement because these factors 'presumably [are] fully reflected in the number of billable hours recorded by counsel.'" (ECF No. 237 at 4.) However, Perdue dealt with additional fee enhancements applied to a lodestar figure after the district court determined the proposed hourly rate was "fair and reasonable" and determining the appropriate number of billable hours. Perdue, 559 U.S. at 548. As the Supreme Court recognized, "the quality of an attorney's performance generally should not be used to adjust the lodestar '[b]ecause considerations concerning the quality of a prevailing party's counsel's representation normally are reflected in the reasonable hourly rate.'" Id. at 553 (quoting Pennsylvania v. Del. Valley Citizens' Counsel for Clean Air, 478 U.S. 546, 566 (1986)) (emphasis added); see also Blum v. Stenson, 465 U.S. 886, 898 (1984) (recognizing that an upward adjustment to fees calculated based on the reasonable rate times reasonable hours was inappropriate because "the special skill and experience of counsel should be reflected in the reasonable of the hourly rates"). Thus, these cases do not stand for the proposition that a district court may not consider the type of matter and an attorney's skill and experience in determining what hourly rate to apply to a fee award.

BNSF next argues that "even considering the rates awarded in other communities as pertinent, . . . the differing experience levels of the attorneys involved in those cases shows that the cases do not support an upward adjustment" to the baseline rates that the Court identified for the Colorado market. (ECF No. 237 at 3.) However,by focusing on the precise number of years that the attorneys in each of the underlying cases had practiced, BNSF misses the forest for the trees. The Court cited these cases not to argue that those attorneys had practiced for an identical number of years as Mr. Thompson and Mr. Stone, but instead in recognition of "the level of knowledge required to successfully litigate a FRSA claim, and the level of competency and diligence required to successfully litigate this particularly contentious FRSA claim." Wooten v. BNSF Ry. Co., 387 F. Supp. 3d 1078, 1109 (D. Mont. 2019); see also Barati v. Metro-North R.R. Co., 939 F. Supp. 2d 153, 156 (D. Conn. 2013) (recognizing that FRSA attorney has a "longstanding an developed practice [that] makes him more efficient, creative, and effective for his railroad employee clients than an attorney of similar trial experience in federal litigation but without the benefits of his specialization"). It is these factors that led the Court to determine that a reasonable hourly rate for both Mr. Thompson and Mr. Stone was $450 per hour.¹ BNSF's disagreement with the Court's analysis and conclusions does not warrant changing the hourly rate for the fee award.

Thus, because BSNF has not demonstrated new evidence exists, a change in intervening law, or that the Court's analysis is clearly erroneous or would create manifest injustice, the Motion for Reconsideration is denied.

II. FEE MOTION

In the Fee Motion, Fresquez's counsel seeks recovery for $89,820.00 in fees and $1,812.91 in costs incurred since the dates included in counsel's earlier motions for fees and costs. (ECF No. 232 at 1.)

A. Attorneys' Fees

Implicit in any award of attorneys' fees is the requirement that any such fees must be reasonable. See Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir. 1986); Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (prevailing party must make good faith effort to exclude from a fee request any excessive, redundant, or otherwise unnecessary hours). The party requesting attorneys' fees has the "burden to prove and establish the reasonableness of each dollar, each hour, above zero." Mares, 801 F.2d at 1210.

"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckhardt, 461 U.S. 424, 433 (1983). This is commonly referred to as the "lodestar method" for calculating fees. Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995). The best evidence of reasonable fees is "meticulous time records that 'reveal . . . all hours for which compensation is requested and how those hours were allotted to specific tasks.'" Id. at 1510 (quoting Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983)). The prevailing party must make a "good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwiseunnecessary." Hensley, 461 U.S. at 434. Where such an effort appears "inadequate, the district court may reduce the award accordingly." Id. at 433.

B. Analysis

1. Attorneys' Fees

For the reasons set forth in the Prior Order, the Court again concludes that a reasonably hourly rate for Mr. Thompson and Mr. Stone is $450. (See ECF No. 230 at 7.) The Court will apply the same rate for Adam Hansen, an attorney who specializes in appeals.²

Fresquez's counsel billed 199.6 hours on this case since the dates included in Fresquez's initial and supplemental motions for fees and costs. (ECF...