MEMORANDUM OPINION & ORDER RE: ATTORNEY'S FEES AND COSTS ON APPEAL

BRUCE S. JENKINS, Senior District Judge.

On November 13, 2012, the Clerk of the Court docketed the mandate of the court of appeals in the above-captioned proceeding, affirming this court's grant of summary judgment in favor of the defendants and granting CitiMortgage's motion for sanctions.1 The court of appeals remanded the matter "to the district court to determine the amount of costs, expenses, and reasonable attorneys' fees incurred by CitiMortgage in defending this appeal and to be paid by the trustee's lawyer," E. Craig Smay.2

The court of appeals has long recognized that "excess costs, expenses, or attorney's fees are imposable against an attorney personally for conduct that, viewed objectively, manifests either intentional or reckless disregard of the attorney's duties to the court" in pursuing a frivolous appeal. Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir.1987).3

On November 27, 2012, CitiMortgage filed a Motion for Determination of Attorneys Fees and Costs (CM/ECF No. 92), accompanied by a memorandum in support (CM/ECF No. 93) and the Declaration of J. Derek Kearl (CM/ECF No. 94), with exhibits. CitiMortgage submits that its reasonable attorneys fees and costs incurred in defending the appeal in this case amount to $62,411.59. "This figure includes fees reasonably expended on this fee application."4 CitiMortgage also requests "an award of fees it anticipates will be reasonably incurred in preparing a reply to the Trustee's response to the Motion and, if necessary, preparation for and attendance at a hearing on the Motion, in the amount of $4,277.50."5

Mr. Smay objected to CitiMortgage's fee application on several grounds: (1) Marcy Glenn, an attorney who performed work for which CitiMortgage now seeks reimbursement, was not made available for a deposition in Salt Lake City; (2) there is no evidence that CitiMortgage actually paid the requested fees; (3) key portions of the attorneys' descriptions of the work for which fees are requested have been redacted; (4) CitiMortgage's brief on appeal lacked "significant analysis," is "plainly mechanical, associate work," parts of which "do not rise much above the level of boiler plate," and thus "the costs asserted by Defendant for production of the brief are grossly inflated."6

CitiMortgage replies that "[h]aving satisfied all elements of the lodestar standard, CitiMortgage's fees and costs are presumptively reasonableness [sic],"7 and argues that Mr. Smay "ignores the detailed description of fees incurred throughout the appeal process" which "carefully describe the tasks performed and the time reasonably expended in defending CitiMortgage against the Trustee's appeal before the Tenth Circuit and to address the Trustee's attorney's sanctionable conduct."8 CitiMortgage submits that "[s]uch `verified time statements of [CitiMortgage's] attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.'"9

The "Lodestar" Method

In following the "lodestar" method, "`[t]o determine a reasonable attorneys fee, the district court must arrive at a `lodestar' figure by multiplying the hours... counsel reasonably spent on the litigation by a reasonable hourly rate.'" Case v. Unified School Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1249 (10th Cir.1998) (quoting Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir.1995)). "[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir.1986) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Indeed,

Case, 157 F.3d at 1250 (quoting Jane L., 61 F.3d at 1510) (citation omitted). "Once the district court has adequate time records before it,"

Id. (quoting Ramos v. Lamm, 713 F.2d 546, 553-54 (10th Cir.1983)).10 In determining what is a reasonable time in which to perform a given task,

Ramos, 713 F.2d at 554 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir. 1980) (en banc)). "The district court may also reduce the reasonable hours awarded if `the number [of compensable hours] claimed by counsel include[s] hours that were unnecessary, irrelevant and duplicative.'" Case, 157 F.3d at 1250 (quoting Carter v. Sedgwick County, Kan., 36 F.3d 952, 956 (10th Cir.1994)).11

"The district court is not bound by the opinions of the parties regarding the reasonableness of the time they spent on the litigation." Id. at 1251. While the parties may submit affidavits regarding the reasonableness of the hours billed, "[m]ore important is the discretionary determination by the district court of how many hours, in its experience, should have been expended on the specific case, given the maneuverings of each side and the complexity of the facts, law, and litigation." Id. at 1250 (citing Ramos, 713 F.2d at 554).

The party seeking attorney's fees bears not only the burden of proving that the time expended was reasonable, but what rate is reasonable for that particular litigation. Id. "`The first step in setting a rate of compensation for the hours reasonably expended is to determine what lawyers of comparable skill and experience practicing in the area in which the litigation occurs would charge for their time.'" Id. at 1256 (quoting Ramos, 713 F.2d at 555). A reasonable rate is generally the going rate for an attorney of the same experience level, in the same community, for the same type of work. See Jane L., 61 F.3d at 1510 ("The setting of a reasonable hourly rate is within the district court's discretion," but should "reflect the `prevailing market rates in the relevant community.'" (quoting Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984))); see also Missouri v. Jenkins by Agyei, 491 U.S. 274, 286, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (stating that the proper rate should be determined "`according to the prevailing market rates in the relevant community'" (quoting Blum v. Stenson)).12

The court's determination of the "lodestar," that is, the "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate," Hensley, 461 U.S. at 433, 103 S.Ct. 1933, "produces a presumptively reasonable fee that may in rare circumstances be adjusted to account for the presence of special circumstances." Anchondo v. Anderson, Crenshaw & Associates, L.L.C., 616 F.3d 1098, 1102 (10th Cir.2010) (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) (noting that "the lodestar method yields a fee that is presumptively sufficient to achieve" the goal of paying a reasonable attorney's fee)13). Plainly it is the court's lodestar fee determination that is "presumptively valid," id. at 1103, not counsel's averments as to what an appropriate lodestar amount may be.

The CitiMortgage Fee Request

The total amount of attorney's fees claimed by CitiMortgage through November 2012 is $62,066.00, together with costs in the amount of $345.59, for total fees and costs of $62,411.59, representing a combined 200 hours of attorney time billed at the individual attorneys' respective hourly rates, ranging from $295 to $425 per hour. CitiMortgage counsel averred that "I have personally reviewed the several months of Holland & Hart invoices submitted with this Declaration, line by line and entry by entry," and opined "that the total amount of time spent on this matter is reasonable, and that the services performed were necessary to adequately and successfully represent CitiMortgage in this matter,"14 with one exception: counsel recounted that

CitiMortgage counsel further opined that:

Counsel testified to essentially the same effect at the February 28, 2013 evidentiary hearing, noting in passing other cases in which similar fees — particularly his own law firm's fees — had been found to be reasonable.17

Hours Reasonably Expended

The court has examined the law firm invoices annexed as Exhibits "B" and "C" to the Kearl Declaration to determine whether counsel has exercised the requisite "billing judgment" in identifying the hours reasonably expended in defense of the plaintiff's appeal. In large part, the descriptions of the work performed and the time expended in performing that work, when compared with the court of appeals' docket and the content of particular briefs and other papers filed by CitiMortgage counsel, tend to corroborate counsel's assertion that the time for which compensation is sought was reasonably expended.18

Several time entries set forth in Exhibits "B" and "C" depart from the "reasonably expended" standard, namely:

Exhibit B:

Prepare necessary applications to become admitted in the 10th    07/06/11     JDK   0.30
Circuit for purposes of appeal;

Review offer provided by opposing counsel to settle matter and   07/14/11     JDK   0.30
review sample notice of appearance and certificate of
interested parties;

Prepare e-mail correspondence to client regarding potential      09/08/11     JDK   0.30
settlement of this case with the bankruptcy trustee;

Prepare e-mail correspondence to bankruptcy trustee in           09/12/11     JDK   0.40
Chandler matter;

Telephone conference with bankruptcy trustee regarding           10/20/11     JDK   0.30
potential settlement;

Telephone conference with bankruptcy trustee regarding           10/20/11     JDK   0.50
potential settlement and purchase of appeal claim;

Prepare email correspondence responding to question              01/23/12     JDK   0.20
regarding settlement from opposing counsel;

Conference with secretary regarding preparation of               02/29/12     JDK   0.20
Supplemental Appendix;

Advise regarding potential timing of decision;                   08/01/12     MGG   0.60

Respond to JDKearl question regarding timing of argument or      09/06/12     MGG   0.20
decision;

Exhibit C:

Communications with paralegal regarding redacting invoices of    11/26/2012   JDK   0.1
privileged information;

The reasons vary. While admission to the bar of the court of appeals is certainly a prerequisite to defending an appeal in that forum, an attorney's professional licensing and bar admissions are matters of personal qualification for the attorney himself to pursue, apart from the time expended in defense of a particular appeal. Apart from direct participation in a court-mandated settlement conference, counsel's review of an opponent's settlement offer and direct settlement communications among parties and counsel stand apart from the appeal process as well. Discussions with law firm support staff concerning tasks to be performed are part of an attorney's supervisory responsibilities as part of a law firm, in contrast to a professional legal service rendered to a client. An attorney's prognostication as to the timing of future action by the court of appeals — however prescient that may prove to be — remains inherently conjectural, and the time involved cannot fairly be said to have been expended in defense of the appeal itself.19

Exclusion of the few entries listed above reduces the compensable time expended by Mr. Kearl and Ms. Glenn by only 2.6 and 0.8 hours, respectively.

This court concludes that some additional attorney time, albeit reasonably expended, should be excluded from that which is compensable under the court of appeals' mandate for another reason: the fees in question were not incurred "in defending this appeal."

After filing his notice of appeal in this case in July of 2011, plaintiff Chandler filed a petition in bankruptcy in the Eastern District of California, and on September 2, 2011, filed a notice of that event with the court of appeals in Denver. On September 6, 2011, the court of appeals sua sponte entered an Order stating that "[i]t appears that the bankruptcy automatic stay is inapplicable to this appeal," and requiring that "within 10 days of the date of this order, the parties to this appeal (appellant Chandler and the appellees) shall advise this court in writing as to their respective positions regarding the applicability of the automatic bankruptcy stay to this appeal."20 CitiMortgage counsel expended some time addressing the court of appeals' question, and filed CitiMortgage's response to the question on September 15, 2011. Thereafter, the court of appeals sua sponte entered a further Order on September 22, 2011:

The court of appeals abated proceedings in the appeal "pending responses to this order and pending further order of this court."22 CitiMortgage counsel filed a response to the court of appeals' second question on October 21st, and on October 24th, the court of appeals entered an Order requiring an additional response from appellant's counsel:

Appellant's counsel responded three days later, and on November 8th, the court of appeals entered a further Order reciting that "it appears that the Trustee has elected to prosecute this appeal and that the bankruptcy court has authorized the Trustee to employ attorney E. Craig Smay as counsel for this appeal," and directing counsel to "file a motion for substitution of parties ... requesting that the Trustee be substituted as the appellant in this matter" and "an entry of appearance as counsel for the Trustee,"24 which he did on November 14th.25

Once the substitution of parties and appearance of counsel were accomplished, the appeal proceeded to briefing on the merits, and to the outcome with which court and counsel are now very familiar. The court of appeals imposed sanctions under 28 U.S.C. § 1927 upon Mr. Smay for pursuing Chandler's appeal because the panel "cannot find a single, cogent argument to justify his pursuit of this appeal in the face of our previous decisions, particularly in light of the fact that he represented the appellants in those cases."26

Time reasonably expended by CitiMortgage counsel in reviewing and responding to Mr. Smay's ill-fated arguments proves to be clearly compensable under the terms of the court of appeals' mandate, including time reasonably expended in establishing that those arguments were indeed frivolous.

Time expended by CitiMortgage counsel in responding to the court of appeals' sua sponte queries concerning procedural matters not touching upon the substantive merits of the appeal must be distinguished from the time expended "in defending this appeal" grounded upon the frivolous arguments pressed by Mr. Smay on the merits.

Federal courts are courts of limited and carefully defined jurisdiction — a fact to which our court of appeals remains exquisitely sensitive.27 In every case, the court of appeals must — and does — satisfy itself that it has the requisite jurisdiction and lawful authority under our Constitution, statutes and rules to proceed to hear and decide the appeal brought before it.28 In doing so, often the court of appeals propounds sua sponte queries to counsel concerning jurisdiction, ripeness, and similar concerns. When queried, counsel has a duty to respond,29 entirely apart from the substantive merits of an appeal.

Counsel who has been sanctioned under § 1927 for "multipl[ying] the proceedings in any case unreasonably and vexatiously," and "required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct" should not be further burdened by paying the attorney's fees incurred by opposing counsel in responding to the court of appeals' sua sponte procedural queries. Those fees are incurred at the court of appeals' instance, in aid of satisfying itself that it may proceed at all, regardless of the ultimate merits of the appeal.

Therefore, the time expended by CitiMortgage counsel in responding to the court of appeals' sua sponte procedural queries — namely 12.9 hours of Mr. Kearl's billed time — will be excluded from the attorney time compensable under the court of appeals' mandate. On the other hand, attorney time reasonably expended in responding to Mr. Smay's motions filed during that same period will be included in calculating the fee award pursuant to § 1927.

CitiMortgage's Claimed Hourly Rates

As outlined above, a party seeking an award of attorney's fees bears the burden to prove that the claimed hourly rate is reasonable. Generally, "A reasonable rate is the prevailing market rate in the relevant community." Guides, Ltd. v. Yarmouth Group Property Management, Inc., 295 F.3d 1065, 1078 (10th Cir.2002) (citing Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir.1996)).

To meet this burden, the claimant must:

Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)); see also Lippoldt v. Cole 468 F.3d 1204, 1224-25 (10th Cir.2006) (a fee claimant "must provide evidence of the prevailing market rate for similar services by `lawyers of reasonably comparable skill, experience, and reputation' in the relevant community" (quoting Blum v. Stenson)).

Apart from the fairly conclusory averment by CitiMortgage counsel that the claimed hourly rates equate are consistent with those charged "by other legal professionals practicing in the Salt Lake City area with similar education, background, and experience and with law firms of comparable size on matters of similar complexity during the relevant time periods,"30 CitiMortgage offered very little direct evidence as to the prevailing market rate for attorneys' services in this District outside of counsel's own law firm.

Courts have explained that "[e]xamples of the type of specific evidence that we have held is sufficient to verify the prevailing market rates are affidavits of other local lawyers who are familiar both with the skills of the fee applicants and more generally with the type of work in the relevant community," Robinson v. Equifax Information Services, LLC, 560 F.3d 235, 245 (4th Cir.2009), which is consistent with the practice in this District.31 Yet CitiMortgage counsel proffered no such affidavits. Nor did counsel offer any other satisfactory evidence of the prevailing market rate, e.g., bar association or law journal surveys.

The evidence in this record presented by CitiMortgage counsel "does not establish the rates charged were consistent with rates charged by comparably skilled lawyers in the community," Guides, 295 F.3d at 1079, and thus CitiMortgage counsel has failed to meet his initial burden to establish the reasonableness of the claimed hourly rates.

"Where a district court does not have before it adequate evidence of prevailing market rates, the court may use other relevant factors, including its own knowledge, to establish the rate." Id. (citing Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243 (10th Cir.1998)).32 Taking into account Mr. Kearl's six to seven years of experience in similar civil litigation, and his acknowledgment in his deposition that this was his first appeal before the Tenth Circuit,33 as well as the court's recent experience in evaluating a range of attorney's fees requests made in other cases, this court concludes that an hourly rate of $240 will reasonably compensate Mr. Kearl for the value of his professional services in this case, consistent with what appear to be prevailing market rates in the community.34 Given the far greater experience of both Ms. Glenn and Ms. Burton in their respective practice specialties (appellate practice and bankruptcy), this court is satisfied that their claimed rates of $425 and $395 are consistent with the prevailing market rates in the relevant community at the time this appeal was briefed.

Fees Incurred in Presenting the Attorney's Fees Request

"An award of reasonable attorneys' fees may include compensation for work performed in preparing and presenting the fee application," Mares, 801 F.2d at 1205 (citing Gurule v. Wilson, 635 F.2d 782, 792 (10th Cir.1980); Love v. Mayor of Cheyenne, 620 F.2d 235, 237 (10th Cir.1980)), but "not every hour expended on a fee request is necessarily reasonable or compensable." Id. CitiMortgage may thus recover attorney's fees reasonably incurred in preparing and presenting its attorney's fees request and in arguing its position at the February 28th pursuant to the court of appeals' mandate.35

CitiMortgage counsel extends its request to include fees incurred in replying to Mr. Smay's written response to the fee request. As part of CitiMortgage's attorney's fee request, counsel avers that "CitiMortgage also reasonably expects to incur time and expense in December 2012/January 2013 of approximately ten (10) hours and $2,950.00 in fees preparing a reply brief to the Trustee's response to the Motion," and "[i]f a court hearing or oral argument is required on the Motion, CitiMortgage can reasonably expect to incur additional time for preparation (3 hours) and attendance at the hearing (1.5 hours) for an additional $1,327.50."36

This court will not award "expected," estimated or anticipated attorney's fees as sanctions under § 1927, or otherwise. Section 1927 authorizes an award of sanctions representing "attorneys' fees reasonably incurred because of" sanctionable conduct — referring to fees actually incurred. CitiMortgage counsel having both filed a reply memorandum and appeared at the February 28th evidentiary hearing, we may infer that CitiMortgage actually incurred attorney's fees in the process. Yet absent from the existing record is any supplemental declaration or other evidence specifically documenting those fees.

Moreover, Mr. Smay has a due process right to file a response to CitiMortgage's fee request,37 and so long as his response satisfies the requirements of Fed.R.Civ.P. 11, this court cannot fairly increase his § 1927 sanctions burden to include the attorney's fees incurred by CitiMortgage in replying to his satisfactory, rules-compliant response.

The Lodestar Calculation

"`A court will generally determine what fee is reasonable by first calculating the lodestar — the total number of hours reasonably expended multiplied by a reasonable hourly rate — and then adjust the lodestar upward or downward to account for the particularities of the suit and its outcome.'" Zinna v. Congrove, 680 F.3d 1236, 1242 (10th Cir.2012) (quoting Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir.1997)).

Taking into account the adjustment to hours expended and the hourly rate as explained above, CitiMortgage's lodestar calculation looks like this:

Marcy G. Glenn    22.4 hours × $425/hour =  $9,520.00
Mona L. Burton     0.5 hours × $395/hour =     197.50
J. Derek Kearl   160.8 hours × $240/hour =  38,592.00

TOTAL                                      $48,309.50

The court therefore finds that CitiMortgage's calculated lodestar amount is $48,309.50 in attorney's fees.

Downward Adjustment of the Lodestar Amount

Next the court must consider whether a downward adjustment of the calculated lodestar amount would be appropriate in this case.

The court of appeals has stated that it is not enough "for a court to simply `eyeball a fee request and cut it down by an arbitrary percentage.'" Zinna v. Congrove, 680 F.3d at 1242 (quoting Browder v. City of Moab, 427 F.3d 717, 723 (10th Cir. 2005)). Rather, a court should "determine what fee is reasonable by first calculating the lodestar — the total number of hours reasonably expended multiplied by a reasonable hourly rate — and then adjust the lodestar upward or downward to account for the particularities of the suit and its outcome." Id. (quoting Phelps v. Hamilton, 120 F.3d at 1131).

Despite the fact that CitiMortgage prevailed on the merits of the appeal, Mr. Smay finds CitiMortgage's brief on appeal to be wanting in some respects:

Mr. Smay thus appears to suggest that some downward adjustment of the lodestar amount is appropriate in this case to reflect a lack of novelty and complexity.39

There is a "`strong presumption' that the lodestar figure is reasonable," Perdue v. Kenny A. ex rel. Winn, 559 U.S. at 554, 130 S.Ct. 1662, "but that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee." Id. Perdue instructs that "`the lodestar figure includes most, if not all, of the relevant factors constituting a "reasonable" attorney's fee,'" id. at 553, 130 S.Ct. 1662 (quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 566, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)), and that "the novelty and complexity of a case" generally may not warrant an adjustment

Id. (quoting Delaware Valley Citizens' Council, 478 U.S. at 566, 106 S.Ct. 3088).

It is true that CitiMortgage counsel's argument on appeal largely made reference to prior Tenth Circuit rulings without adding anything new into the mix, but did so because the two issues raised by Mr. Smay on his appeal in this case had been decided squarely against him in those prior rulings:

Other Tenth Circuit panels have reached the same conclusion, even absent Mr. Smay's participation. See, e.g., Burnett v. Mortgage Electronic Registration Systems, Inc., 706 F.3d 1231, 1237-38 (10th Cir.2013); Tadehara v. Ace Securities Corp. Home Equity Loan Trust Series 2007-HE4, 492 Fed.Appx. 834, 838-39 (10th Cir.2012); see also Commonwealth Prop. Advocates, LLC v. U.S. Bank Nat'l Ass'n, 2011 WL 6091684 (Utah Ct.App., Dec. 8, 2011).

The court of appeals imposed sanctions on Mr. Smay precisely because his appeal lacked novelty and complexity. Indeed, the panel could not "find a single, cogent argument to justify his pursuit of this appeal in the face of our previous decisions, particularly in light of the fact that he represented the appellants in those cases," warranting its finding that his appeal was indeed frivolous.41 That same lack of novelty or complexity cannot now serve as a justification for a downward adjustment in the calculated lodestar amount.

Costs Incurred on Appeal

As part of the § 1927 sanctions award, CitiMortgage counsel also seeks reimbursement for copying charges in the amount of $335.49 for copies of the brief and appendix, and $10.10 in PACER search charges, these costs having been advanced by counsel.42 Mr. Smay does not dispute these expenses, and this court does not discern any reason why they should not be allowed.

In light of the foregoing,

IT IS HEREBY ORDERED that pursuant to the mandate of the court of appeals in this case, defendant CitiMortgage Inc. is hereby awarded sanctions pursuant to 28 U.S.C. § 1927 against the trustee's counsel, Mr. E. Craig Smay, individually, in the amount of $48,309.50 in attorney's fees and $345.59 in costs.