                                                             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.

 ---------------------

 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        This order and judgment is not binding precedent, except under the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.

                                         -2-
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


                                          -3-
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


                                         -4-
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


                                          -5-
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.


                                         -6-
AFFIRMED.

            Entered for the Court


            Paul J. Kelly, Jr.
            Circuit Judge




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