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.
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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This order and judgment is not binding precedent, except under the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.
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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
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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
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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
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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.
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AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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