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Davis v. King

United States Court of Appeals, Tenth Circuit

March 26, 2014

HEATHER DAVIS, Plaintiff - Appellant,
DIANE S. KING, Interested Party - Appellee, and KUTAK ROCK, LLP, Defendant.

(D.C. No. 1:09-CV-02768-REB-MJW) (D. Colo.)

Before HARTZ, McKAY, and BACHARACH, Circuit Judges.


Heather Davis, a lawyer representing herself, appeals from district court orders granting her former counsel Diane S. King's motion to enforce an attorney's lien and granting an award of attorney's fees and costs. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


Ms. Davis was formerly employed by the law firm of Kutak Rock, LLP. Ms. King represented Ms. Davis when she filed charges of sex discrimination and retaliation by Kutak Rock with the Equal Employment Opportunity Commission (EEOC), which issued her a notice of right to sue. Subsequently, Ms. Davis hired different counsel and sued Kutak Rock under Title VII of the Civil Rights Act of 1964, asserting these same employment claims and several state-law claims. Ms. King filed in the lawsuit a notice of attorney's lien under Colo. Rev. Stat. § 12-5-119, contending that she had represented Ms. Davis concerning her Title VII claims that were the subject of the lawsuit, and that Ms. Davis owed her attorney's fees under their fee agreement. Ms. Davis and Kutak Rock settled the lawsuit and filed a stipulated motion to dismiss. The district court dismissed, ordering that the amount asserted in Ms. King's notice of lien be deposited in the court registry. Thereafter, Ms. King moved to enforce her attorney's lien.

The district court granted her motion, first finding that although Ms. King did not personally appear in the case, her attorney's lien was based on work she did for the lawsuit, because filing and exhausting an EEOC charge is jurisdictionally required before a Title VII lawsuit may be filed. Thus, the court determined that Ms. King either obtained or assisted in obtaining relief for Ms. Davis and therefore

Ms. King had a valid attorney's lien under § 12-5-119. Further, the court found that it had supplemental jurisdiction under 28 U.S.C. § 1367 to adjudicate the attorney's lien because Ms. King's representation of Ms. Davis before the EEOC amounted to work done in the lawsuit. Lastly, the court found that Ms. King's motion to enforce the attorney's lien was timely under the six-year limitations period of Colo. Rev. Stat. § 13-80-103.5(1)(a). Recognizing, however, that the record was not sufficient to determine a reasonable amount of attorney's fees, the court directed Ms. King to file a motion seeking a specific amount of reasonable attorney's fees and afforded Ms. Davis an opportunity to file a response.

Ms. King moved for attorney's fees and costs in the amount of $17, 998.95, and Ms. Davis responded. First, the district court decided that Ms. King's hourly rate of $300 was reasonable. Then the court considered whether the hours she billed were reasonable and tied to Ms. Davis' ability to obtain relief in the lawsuit. Given that some of the hours were tied to Kutak Rock's allegation that Ms. Davis engaged in unethical conduct and that the ethics issues were partially separate from the EEOC issues,

the court [was] left to find a way to award reasonable attorney fees reasonably tied to the investigation and filing of EEOC charges on behalf of Ms. Davis, and other work concatenated to the EEOC proceedings. Such an award per force must exclude work done by Ms. King related to Ms. Davis's attorney ethics proceedings or potential proceedings, but not related directly to proceedings before the EEOC. Given the record in this case – and is often the case – it is not possible to make that division with surgical precision.

Aplt. App. at 135. The court concluded that a minimum of 80% of Ms. King's hours were tied to the investigation and filing of the EEOC charges. Applying a 20% reduction, the court awarded Ms. King $14, 414.


Supplemental Jurisdiction

Ms. Davis argues that the district court lacked supplemental jurisdiction to rule on Ms. King's motion to enforce because she sought "fees . . . for nothing related to the underlying litigation, but for other matters unrelated to the litigation." Aplt. Br. at 11. Additionally, Ms. Davis asserts that Ms. King's work was not integral to the lawsuit.[1]

We review the district court's decision to exercise supplemental jurisdiction for an abuse of discretion. See Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990) (reviewing district court's decision to dismiss supplemental claims for abuse of discretion). "Under the abuse of discretion standard, a trial court's decision will not be disturbed unless the appellate court has a definite and firm conviction that the [district] court made a clear error of judgment or exceeded the bounds of permissible choice in ...

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