Edmonds-Radford v. Southwest Airlines

MOTION for Leave to TO RESPOND TO SOUTHWESTS NEW REQUEST FOR ATTORNEY FEES 135 Reply,

D. Colo.February 7, 2019

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Case No. 16-cv-2860-LTB-STV KRISTA EDMONDS-RADFORD, Plaintiff, v. SOUTHWEST AIRLINES CO., Defendant. KRISTA EDMONDS-RADFORD’S REQUEST TO SEEK LEAVE TO RESPOND TO SOUTHWEST’S NEW REQUEST FOR ATTORNEY FEES Plaintiff Krista Edmonds-Radford respectfully seeks the Court’s leave to respond to Southwest’s new request for attorney fees. Conferral under D.C.COLO.LCivR. 7.1 Ms. Edmonds-Radford has conferred with Southwest’s counsel. Southwest objects to Ms. Edmonds-Radford’s request to be given the opportunity to respond to Southwest’s new request for fees that was raised in Southwest’s reply. Discussion On December 17, 2018, Ms. Edmonds-Radford filed a motion requesting that the Court (1) allow her to respond to Southwest’s December 10, 2018 request for fees and (2) clarify the legal basis for the December 11, 2018 orders. In that motion, she explained why Southwest’s motions for attorney fees were frivolous and asked the Court to reconsider its orders of December 11, 2018. (See Doc. 115.) Case 1:16-cv-02860-LTB-STV Document 136 Filed 02/07/19 USDC Colorado Page 1 of 5 2 On December 18, 2018, the Court denied Ms. Edmonds-Radford’s motion but specifically stated: “In the December 11, 2018 Orders, the Court set out a briefing schedule for the calculation of attorney fees and expenses and Plaintiff will have an opportunity to respond as indicated in those orders.” Order Dated: December 18, 2018 (Doc. 116) (emphasis added). Southwest, aware of the arguments raised in Ms. Edmonds-Radford’s December 17, 2018 motion, briefed its calculation of fees but still did not provide any legal basis that would entitle it to such fees. See Southwest’s Submission of Attorneys’ Fees and Expenses According to December 11, 2018 Orders (Doc. 119, filed on January 2, 2019). Further, aware of the Court’s order authorizing Ms. Edmonds-Radford to address the legitimacy of its requests for fees, Southwest specifically limited its request for fees to fees allegedly incurred in responding to Ms. Edmonds-Radford’s objections. Id. (“Southwest respectfully requests that this Court award Southwest $9,897.65 in fees and expenses for responding to Plaintiff’s two objections.”) Complying with the Court’s December 18, 2018 order, Ms. Edmonds-Radford, in her January 17, 2019 response to Southwest’s brief, reiterated the reasons Southwest’s request for fees are frivolous and requested that the Court deny the motion. (See Doc. 127.) Now, Southwest has filed yet another request for fees (without seeking the Court’s permission or conferring with Ms. Edmonds-Radford), this time asking the Court to sanction Ms. Edmonds-Radford for complying with the Court’s specific order of December 18, 2018, which allowed her to brief the issues. (See Doc. 135.) This motion, by definition (in addition to all the reasons stated in Ms. Edmonds-Radford’s January 17, 2019 response), is frivolous. As such, Ms. Edmonds-Radford respectfully requests that the Court sanction Southwest for filing multiple groundless motions after having been provided detailed legal analysis putting it on notice of the Case 1:16-cv-02860-LTB-STV Document 136 Filed 02/07/19 USDC Colorado Page 2 of 5 3 frivolousness of its motions. See. e.g., Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 (11th Cir. 2002) (affirming sanctions against plaintiffs for filing a frivolous motion for sanctions). In addition, Southwest cannot, for the first time, in its reply brief request an award of attorneys’ fees for work performed in preparing and presenting the fee application. (See Doc. 135, p. 10). As mentioned above, Southwest specifically limited its request for fees to fees and expenses for responding to Plaintiff’s two objections. (See Doc. 119.) Finally, even if, arguendo, Southwest had any legal basis for requesting additional fees, its request for an additional $5,959.35 for filing a reply should raise a serious concern. This either means that Southwest has for the first time researched the issues it should have researched before filing the initial motions. In that case, it would not be entitled to any fees as it cannot raise new issues in reply and it should have done this research before filing its initial motions to ensure they had legal grounds – which they don’t.1 Or it means that Southwest is seeking fees for the third time for work it did before when responding to Ms. Edmonds-Radford’s motions and objection. Southwest is not entitled to such fees. It is telling, too, that Southwest objects to Plaintiff even being able to address the additional nearly $6,000 in fees Southwest requested for the first time in its reply brief—particularly since Southwest did not, in its motion, reserve the 1 Not surprisingly, the only legal authority cited in Southwest’s brief remains the one case it cited previously, Blair v. CBE Grp., Inc., No. 13cv134-MMA (WVG), 2014 WL 4658731, at *2 (S.D. Cal. Sept. 17, 2014). Southwest, however, does not provide any explanation as to the soundness of Blair’s analysis or on how Blair applies where, as here, the fees are sought against the prevailing party below. As importantly, even if there were any authority allowing award of fees under the circumstances of this case as it relates to the issues raised under Rule 37, Southwest does not tie its requests for fees to the issues allegedly related to the initial Rule 37 motion. Even if, arguendo, Southwest had a legal authority for its request, it still has the burden to prove that the fees in each line item in each invoice is related to a motion to compel that Ms. Edmonds- Radford made, did not prevail on, and was sanctioned for by the magistrate judge. Southwest has not and cannot carry its burden of proof. See, e.g., Kansas Judicial Watch v. Stout, 653 F.3d 1230, 1240–41 (10th Cir. 2011). Case 1:16-cv-02860-LTB-STV Document 136 Filed 02/07/19 USDC Colorado Page 3 of 5 4 right to supplement its fee request at a later date. Southwest thus wants this court to both award additional fees and deny plaintiff the due process ability to object to those fees. Based on the foregoing and the arguments in her January 17, 2019 brief, Ms. Edmonds- Radford respectfully requests that the Court deny Southwest’s motions for sanction, as Southwest has not provided any legal authority that would permit sanctions for preservation of appellate issues – especially where, as here, the underlying issues involve complex legal questions addressing attorney client and work product privilege, where Ms. Edmonds-Radford has been the prevailing party on the initial discovery issues (the controversy has been regarding its scope), and where the Court had raised no concern regarding the soundness of Ms. Edmonds- Radford’s requests (even if it had disagreed with them). Respectfully submitted this 7th day of February 2019. /s/ Katayoun A. Donnelly Katayoun A. Donnelly Azizpour Donnelly, LLC 2373 Central Park Blvd., Suite 100 Denver, CO 80238 Tel. (720) 675-8584 Fax (720) 880-3142 katy@kdonnellylaw.com Case 1:16-cv-02860-LTB-STV Document 136 Filed 02/07/19 USDC Colorado Page 4 of 5 5 CERTIFICATE OF SERVICE I hereby certify that on February 7, 2019 I served an electronic copy of the foregoing via CM/ECF to counsel of record. /s/ Katayoun A. Donnelly __________________________ Katayoun A. Donnelly Case 1:16-cv-02860-LTB-STV Document 136 Filed 02/07/19 USDC Colorado Page 5 of 5