Leonite Fund I, LP v. Hawaii Brewery Development Co., Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-01371-STV
LEONITE FUND I, LP,
Plaintiff,
v.
HAWAII BREWERY DEVELOPMENT CO. INC.;
WAIAKEA BOTTLING INC.;
WAIAKEA INC; and
MARCUS I BENDER,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Entered by Chief Magistrate Judge Scott T. Varholak
This matter comes before the Court on the Motion for Award of Attorneys’ Fees
(“the 	Motion”) 	[#60] 	filed 	by 	Defendants Waiakea 	Bottling Inc. and Waiakea 	Inc.
(collectively the “Waiakea Defendants”). The parties have consented to proceed before
a United States Magistrate Judge for all proceedings, including entry of a final judgment.
[#42] This Court has carefully considered the Motion and related briefing, the entire case
file and the applicable case law, and has determined that oral argument would not
materially assist in the disposition of the Motion. For the following reasons, the Motion is
GRANTED IN PART, as detailed herein.
I. 	BACKGROUND
The facts of this matter are discussed in detail in one of the Court’s previous
Orders. [See #57] The facts relevant to this Motion are as follows.
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On May 1, 2025, Plaintiff initiated this action. 	[#1] 	The operative Complaint
generally alleges that Defendants unlawfully interfered with Plaintiff’s ability to collect a
debt owed by Hawaiian Springs LLC and HSW Holding Corporation. [#57 at 2] Hawaiian
Springs LLC and HSW Holding Corporation had a water-bottling business which was
subject to a court-ordered receivership estate pursuant to an order entered in a related
action in this District. [Id.] Plaintiff alleges that Defendants engaged in conduct aimed at
disrupting the receivership and harming Plaintiff’s debt-collection rights. 	[Id.] 	The
operative Complaint asserted six causes of action: (1) intentional interference with
business or contractual relations against all Defendants [#1 at ¶¶ 109-20]; (2) civil
conspiracy against all Defendants [id. at ¶¶ 121-33]; (3) commercial disparagement
against all Defendants [id. at ¶¶ 134-41]; (4) tortious interference with prospective
economic advantage [id. at ¶¶ 142-49]; (5) violation of the Colorado Consumer Protection
Act against all Defendants [id. at ¶¶ 150-58]; and (6) violation of Hawaii’s Unfair
Competition law, Haw. Rev. Stat. § 480-2 [id. at ¶¶ 159-65].
On July 14, 2025, the Waiakea Defendants moved to dismiss the claims against
them, arguing that this Court lacked personal jurisdiction over them (the “Motion to
Dismiss”). 	[#14] 	On January 7, 2026, this Court granted the Motion to Dismiss. 	[#57]
Thereafter, on January 22, 2026, the Waiakea Defendants filed the instant Motion seeking
attorneys’ fees pursuant to Colo. Rev. Stat. § 13-17-201. [#60] Plaintiff responded [#61]
and the Waiakea Defendants replied [#63].
II. 	ENTITLEMENT TO FEES AND COSTS
“The American Rule generally requires that each party bear his or its own
attorney’s fees in civil litigation. However, there are certain exceptions to that rule.”
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Collins v. Diversified Consultants, Inc., No. 15-cv-02115-RBJ-NYW, 2018 WL 10878005,
at *4 (D. Colo. Feb. 7, 2018). 	The Waiakea Defendants contend they are entitled to
attorneys’ fees under Colorado Revised Statute §13-17-201. 	[#60 at 1-2] That Section
provides in relevant part:
In all actions brought as a result of a death or an injury to person or property
occasioned by the tort of any other persons, where any such action is
dismissed on motion of the defendant prior to trial under rule 12(b) of the
Colorado rules of civil procedure [“CRCP”], such defendant shall have
judgment for his reasonable attorney fees in defending the action.
The statute also provides fees in the case of dismissal in federal court under Federal Rule
of Civil Procedure 12(b), which is “substantively identical” to Colorado’s Rule 12(b). Zerr
v. Johnson, 905 F. Supp. 872, 875 (D. Colo. 1995), aff'd 120 F.3d 372 (10th Cir. 1997);
Brammer–Hoelter v. Twin Peak Charter Acad., 81 F. Supp. 2d 1090, 1102 (D. Colo.
2000).1
“Both the plain language of [section 201] and numerous court decisions make clear
that an award of attorney fees is mandatory when a trial court dismisses an action under
Rule 12(b).” 	Infant Swimming Rsch., Inc. v. Faegre & Benson, LLP, 335 F. App'x 707,
715-16 (10th Cir. 2009); Craters & Freighters Franchise Co. v. Benz, No. 16-cv-02951-
JLK, 2018 WL 10911746, at *1 (D. Colo. Nov. 30, 2018). 	However, “a defendant must
prevail on the entire action as to that defendant under Rule 12(b), and on no other
grounds, in order to recover fees.” Jones v. Haga, No. 05-cv-02268-PSF-CBS, 2007 WL
433126, at *2 (D. Colo. Feb. 2, 2007); see also Barton v. Law Offs. of John W.
1 Section 201 has been found to be substantive, rather than procedural. Jones v. Denver
Post Corp., 203 F.3d 748, 757 (10th Cir. 2000) (finding section 201 to be substantive law),
abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122
(2002); MacIntyre v. JP Morgan Chase Bank, N.A., No. 19-cv-00172-DDD-NYW, 2019
WL 5084091, at *3 (D. Colo. Oct. 10, 2019) (same). The Response does not challenge
that conclusion. [#61]
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McKendree, 126 P.3d 313, 314-15 (Colo. App. 2005) (denying fees where tort claim
dismissed for failure to file certificate of review). The requesting party bears the burden
of establishing entitlement to fees by a preponderance of the evidence. 	Haynes v. City
of Gunnison, 214 F.Supp.2d 1119, 1120 (D. Colo. 2002) (citing Am. Water Dev., Inc. v.
City of Alamosa, 874 P.2d 352, 383 (Colo. 1994)).
“[Section 13-17-201] applies where both tort and non-tort claims are pled.”
Sticky.io, Inc. v. Martingale Software, LLC, No. 21-cv-00664-RM-STV, 2022 WL 1061911,
at *1 (D. Colo. Apr. 8, 2022) (citing See Torres v. Am. Fam. Mut. Ins. Co., 606 F.Supp.2d
1286, 1292 (D. Colo. Feb. 9, 2009)). 	“When an action contains a mix of tort and other
claims, fees may be awarded under [Section] 13-17-201 if the action is primarily a tort
action.” Id. (citing U.S. Fax Law Ctr., 205 P.3d at 517-518).
Here, it appears to be undisputed that this action is primarily a tort action. Indeed,
Plaintiff asserts six causes of action, at least four of which arise in tort. 	See, e.g.,
Westfield Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112, 1120 (Colo. 1990) (“[I]ntentional
interference with contract is a tort.”); Falcon Broadband, Inc. v. Banning Lewis Ranch
Metro. Dist. No. 1, 474 P.3d 1231, 1238 (Colo. App. 2018) (finding that civil conspiracy is
“clearly [a] tort claim[]”); Orvis v. Seiber, Nos. 23CA0374 & 23CA0882, 2024 WL 4022064,
at *4 (Colo. App. May 23, 2024) (finding that “civil conspiracy [is a] tort claim[]”); Bankwest
v. Fidelity & Deposit Co. of Md., 63 F.3d 974, 980 (10th Cir. 1995) (finding that
“commercial disparagement” is a tort).2 Given that most of the claims in this case arise
2 The Court does not include any cases finding that “tortious interference with prospective
economic advantage” is a tort because it is clear by its name alone that this cause of
action arises in tort.
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in tort, and Plaintiff does not make any contrary argument, the Court thus finds that this
action is primarily a tort action.3
Rather than arguing that Plaintiffs’ claims did not sound in tort, Plaintiff argues that
Section 13-17-201 does not apply to this case because the action was not “brought as a
result of a death or an injury to person or property.” [#61 at 1 (quoting Colo. Rev. Stat. §
13-17-201(a))] 	Rather, Plaintiff describes its action as being “brought because [the
Waiakea Defendants’] misconduct interfered with the administration of a judicial remedy
intended to preserve [Plaintiff’s] ability to collect its debt.” 	[Id. at 2] 	The argument is
apparently thus that actions arising from interference with a judicial remedy, such as a
receivership, do not constitute actions brought as a result of a death or injury to person
or property. [Id. at 4] Plaintiff does not cite any state or federal cases which support this
interpretation.
Nor does the purpose of the statute support Plaintiff’s interpretation. “In enacting
§ 13-17-201, the General Assembly sought to discourage and deter the institution or
maintenance of unnecessary litigation concerning tort claims.” Emps. Ins. of Wausau v.
RREEF USA Fund-II (Colo.), Inc., 805 P.2d 1186, 1188 (Colo. App. 1991) (citing Tape
Recording of Testimony before House Judiciary Committee on House Bill 1304 (March 3,
1987)). 	With this broad purpose in mind, it would not make sense to limit the statute to
apply only to torts that result in death or injury to person or property in a physical sense.
And courts have not done so. 	This District, for example, has explicitly held that
3 Colorado courts have additionally found that attorney’s fees are appropriate under
Section 13-17-201 in dismissed actions that include two tort claims and a third claim for
violation of the Colorado Consumer Protection Act. See City of Aspen v. Kinder Morgan,
Inc., 143 P.3d 1076, 1078, 1083 (Colo. App. 2006).
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“[a]pplication of [Section 13-17-201] is not limited to tort actions alleging physical injury; it
applies equally to tort action in which the only injury alleged is economic.” 	Zerr, 905 F.
Supp. at 874 (citing Houdek v. Mobil Oil Corp., 879 P.2d 417, 423 (Colo. App. 1994)); see
also Est. of Jon L. Bogue v. Adams, No. 1:18-cv-01425-DDD-MEH, 2020 WL 13076908,
at *4 (D. Colo. Feb. 10, 2020) (“[S]ection 13-17-201 applies equally ‘to a tort claim which
alleges only economic injury.’” (quoting Castro v. Lintz, 338 P.3d 1063, 1067 (Colo. App.
2014)). Accordingly, Section 13-17-201 has been found to apply, for example, in cases
where the only injuries alleged were an individual’s loss of money due to poor investment
decisions prompted by misrepresentation and manipulation. Est. of Jon L. Bogue, 2020
WL 13076908, at *1, *4.
The Court thus finds that Section 13-17-201 is applicable here. In the Complaint,
Plaintiff repeatedly alleges that it has suffered “financial harm” such as “loss of expected
recovery from the receivership.” [See #1 at ¶¶ 139, 149, 158, 165] Plaintiff seeks “[a]n
award 	of 	compensatory 	damages 	proximately 	caused 	by 	the 	tortious 	conduct 	of
Defendants.” 	[Id. at 30] 	Accordingly, this case fits squarely into the category of cases
that, like Est. of Jon L. Bogue, allege only economic injury resulting from tortious conduct.
Courts have consistently found that Section 13-17-201 applies in such cases and such
application is consistent with the statute’s purpose. 	Therefore, the Court finds that
Section 13-17-201 applies here.
III. 	AWARD CALCULATION
Having found that the Waiakea Defendants are entitled to a fee award, the Court
now turns to calculating that award. Plaintiff requests an evidentiary hearing on the issue
of the reasonableness and necessity of the requested attorney’s fees but provides no
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explanation as to why it believes any of the fees are unreasonable or unnecessary. [#61
at 5-6] Plaintiff points to no authority entitling it to an evidentiary hearing on the issue of
attorney’s fees. And the Court is not inclined to grant one where Plaintiff fails to identify
any specific dispute it has with the fees sought.4
Determining the amount of a fees award is within the sound discretion of the district
court. Wright v. U-let-Us Skycap Servs., Inc., 648 F. Supp. 1216, 1218 (D. Colo. 1986).
Calculation of attorney’s fees awards is based on the “lodestar” amount, which represents
the number of hours reasonably expended multiplied by a reasonable hourly rate. Case
v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998).
“[T]he fee applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.” Id. (quotations omitted);
see also Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986) (same).
From there, the reasonableness of hourly rates and hours expended is a question of fact
for the trial court. Hartman v. Freedman, 591 P.2d 1318, 1322 (Colo. 1979); Walker Grp.,
Inc. v. First Layer Commc’ns, Inc., No. 03-cv-01973-PSF-MJW, 2006 WL 8454026, at *1
4 “[A]n evidentiary hearing is generally preferred, if not required, when factual disputes
exist in connection with a request for attorney fees and costs and those disputes cannot
be resolved without a hearing.” Michael A. Cramer, MAI, SRPA, Inc. v. U.S., 47 F.3d 379,
383 (10th Cir. 1995) (citations omitted). But here, there is no indication that any specific
factual disputes exist or that any dispute could not be resolved without a hearing.
Furthermore, “many courts have long accepted the proposition that there is no need for
an evidentiary hearing in a[n] attorney’s fees case when a record has been fully developed
through briefs, affidavits, and depositions.” Robinson v. City of Edmond, 160 F.3d 1275,
1286 (10th Cir. 1998) (citation omitted). 	Plaintiff was given an opportunity to brief any
specific disputes it had with the Waiakea Defendants’ attorney’s fees, and it chose not to
do so. Given that the Court has already been provided with documentation outlining all
the relevant information to the attorney’s fees sought [see ##60-1; 60-2; 60-3; 60-4; 63-
1; 63-2; 65], the Court does not find it necessary to hold an evidentiary hearing here.
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(D. Colo. Sept. 29, 2006). 	In determining the reasonableness of hours expended, the
Court considers the following factors:
(1) 	whether 	the 	amount 	of 	time 	spent 	on 	a 	particular 	task 	appears
reasonable in light of the complexity of the case, the strategies pursued,
and 	the 	responses 	necessitated 	by 	an 	opponent’s 	maneuvering; 	(2)
whether the amount of time spent is reasonable in relation to counsel’s
experience; and (3) whether the billing entries are sufficiently detailed,
showing how much time was allotted to a specific task.
Garcia v. Ensign United States Drilling Inc., No. 15-cv-02372-CMA-KMT, 2017 WL
11545513, at *1 (D. Colo. July 24, 2017) (citing Rocky Mountain Christian Church v. Bd.
of Cnty. Comm’rs of Boulder Cnty., No. 06-CV-00554-REB-BNB, 2010 WL 3703224, at
*2-3 (D. Colo. Sept. 13, 2010)). 	“Counsel for the prevailing party should make a good
faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary.” 	Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). 	And the Court should
likewise “exclude . . . hours that were not reasonably expended.” Id. (quotations omitted).
The Court, however, “need not identify and justify every hour allowed or disallowed.”
Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996).
This Court has reviewed the affidavits and detailed hourly accounting submitted by
the Waiakea Defendants. 	[##60-1; 60-2; 60-3; 60-4; 63-1; 63-2; 65] 	Counsel did not
engage in any block billing. [#60-3; 60-4; 63-2] Where appropriate, defense counsel did
not charge for its work. [#60-4 at 7-9] The Court finds that the amount of time spent on
each task prior to the filing of the Motion appears reasonable in light of the complexity of
the case and in relation to the attorneys’ and paralegals’ levels of experience. 	The
Waiakea Defendants initially sought fees for 68.6 hours total of work related to assessing
the case; generating a motion to dismiss, motion to stay, and motion for attorney’s fees;
preparing for and attending court hearings; and corresponding with counsel. [##60-1; 60-
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2] Billing entries do not appear to be inflated or redundant. The billing entries describe in
detail the activity engaged in and identify the amount of time allotted to each task to the
tenth of the hour. 	Accordingly, the Court finds that the hours of work for which the
Waiakea Defendants initially sought compensation are reasonable.
Since the filing of the instant Motion, defense counsel has billed an additional 11.6
hours of work involving revising the instant Motion and replying to Plaintiff’s response to
the Motion. [#63-2] Ten of these hours were dedicated to reviewing, revising, and drafting
the reply to the instant Motion. [Id.] This work was done by Ms. Seelman, a partner, and
Mr. Porter, senior counsel. [Id.; see also #63-1] In the Court’s opinion, ten hours to draft
a six-page reply,5 which in large part reiterates the Motion with similar or the same case
law [compare #63 at 2-4 with #60 at 3-4], is excessive. 	The Court instead finds that, in
this instance, given the similarities between the response and reply brief, an hour of work
per the total six pages (1.2 hours of work per written products sans caption and signature
block) of the reply is reasonable. 	See generally Disability Rts. N.M. v. Lucero, No. 22-
CV-954-WJ-JFR, 2025 WL 623493, at *6 n.12 (D.N.M. Feb. 25, 2025) (collecting cases
on the reasonableness of hours spent on briefs; 1 hour to 1.2 hours per page generally
approved whereas 2 or more hours per page generally not approved). Accordingly, the
Court finds that only six hours of work are reasonable for drafting and revising the reply
to the Motion. 	Of the original ten hours of written work, the Court calculates that Ms.
Seelman engaged in 43% of the work and Mr. Porter engaged in 57% of the work. [#63-
2] Thus, in reducing the hours, the Court finds it reasonable to bill at Ms. Seelman’s rate
5 In reality, the reply consists of approximately five pages of written product, once the
caption and signature block are removed.
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for 2.6 hours and at Mr. Porter’s rate for 3.4 hours. The Court additionally finds that Mr.
Porter’s 1.6 hours spent revising the instant Motion, seeking fee declarations, reviewing
Plaintiff’s response to the instant Motion, and drafting the affidavit for fees are reasonable.
[Id.]
The Court next turns to the reasonableness of the rates charged by Defendants’
counsel. 	A “reasonable rate” is defined as the prevailing market rate in the relevant
community for an attorney of similar experience. 	Guides, Ltd. v. Yarmouth Grp. Prop.
Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). 	The Waiakea Defendants are
presently represented by Gordon Rees Scully Mansukhani (“GRSM”). 	[#60-1 at ¶ 1]
Accordingly, the Court starts by first assessing the rates charged by personnel at GRSM.
Ms. Seelman, a partner at GRSM who has been practicing law for 27 years, billed at a
rate of $400 per hour. [Id. at ¶ 1, 4] Mr. Porter, senior counsel at GRSM who has been
practicing law for six years, billed at a rate of $320 per hour. [Id. at ¶ 2, 4] Ms. Colwin, a
partner at GRSM who has been practicing law for over 30 years, billed at a rate of $400
per hour. [Id.]
The rates charged are in-line with or even less than the rates that have been
approved by judges in this District. See, e.g., United States for use & benefit of RME Ltd.,
LLC v. Intact Ins. Grp. USA, LLC, No. 21-CV-03285-CMA-SKC, 2023 WL 2837340, at *4-
5 (D. Colo. Apr. 7, 2023) (approving rates between $585 and $650 per hour for partners
and $380 through $435 per hour for associate attorneys); Snyder v. ACORD Corp., No.
14-cv-01736-JLK, 2019 WL 319407, at *8-9 (D. Colo. Jan. 24, 2019) (approving rates of
$625 per hour for partners, $425 per hour for associates, and $200 per hour for
paralegals); Biax Corp. v. NVIDIA Corp., No. 09-cv-01257-PAB-MEH, 2013 WL 4051908,
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at *6-7 (D. Colo. Aug. 12, 2013) (finding as reasonable rates of approximately $585 to
$740 per hour for partners and $425 to $530 per hour for associates).
Next, the Court turns to the rates charged by the Waiakea Defendants’ former
counsel. 	Prior to November 12, 2025, the Waiakea Defendants were represented by
Springer & Steinberg, P.C. 	[#60-2 at ¶ 2] 	Mr. Markham, lead counsel and a senior
attorney at Springer and Steinberg, P.C., billed at a rate of $450 per hour. [Id. at ¶ 4] Mr.
Markham has been practicing law for over six years. 	[#65 at ¶ 1] 	Mr. Richardson, an
attorney, billed at a rate of $375 per hour. 	[#60-2 at ¶ 4] 	Mr. Richardson has been
practicing law for over 20 years. [#65 at ¶ 2] Mr. Ericksen, a paralegal, billed at a rate of
$195 per hour. [#60-2 at ¶ 4] Mr. Ericksen has been a paralegal for over 20 years. [#65
at ¶ 3] Ms. Ameri, a paralegal, billed at a rate of $210 per hour. [#60-2 at ¶ 4] Ms. Ameri
has been a paralegal for over 15 years. [#65 at ¶ 4] These rates are likewise in-line with
or less than the rates that have been approved by judges in this District. Accordingly, the
Court finds that the rates of all individuals who worked on this case are reasonable as
compared to the prevailing market rate in the relevant community.
In sum, the Court finds that the Waiakea Defendants have adequately established
the reasonableness of $26,480.50 in attorneys’ fees.6 And the Court does not find that
any further adjustment of this number is necessary, particularly where the Waiakea
Defendants obtained all the relief that they sought, and in a reasonably expeditious
manner. Stroup v. United Airlines, Inc., No. 15-cv-01389-WYD-STV, 2018 WL 10613861,
6 This amount reflects the initial amount sought in the Motion ($23,840.50) plus the
amount 	sought 	in 	the 	Waiakea 	Defendants’ 	reply 	reduced 	by 	the 	Court 	in 	the
aforementioned manner ($2,640).
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at *2 (D. Colo. Dec. 5, 2018) (“[The] most critical factor in determining the reasonableness
of a fee award is the degree of success obtained.” (quotation omitted)).
IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS the Motion and awards $26,480.50
to the Waiakea Defendants in attorneys’ fees.
DATED: June 2, 2026 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
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