Colony Insurance Company v. Kuehn et al
Filing
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ORDER that Defendant Kuehn is ordered to pay Plaintiff Colony Insurance Company the sum total of $4,058. Defendant is further ordered to make the payment to Plaintiff by November 4, 2011. Signed by Magistrate Judge George Foley, Jr on 10/5/2011. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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COLONY INSURANCE CO.,
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Plaintiff,
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vs.
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HAROLD KUEHN, et al.,
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Defendants. )
__________________________________________)
Case No. 2:10-cv-01943-KJD-GWF
ORDER
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This matter comes before the Court on Plaintiff’s Memorandum of Attorney’s Fees and
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Costs for Motion to Compel and for Motion Seeking Sanctions Against Defendant Harold Kuehn
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(#53), filed on September 14, 2011. To date, Defendant Kuehn has filed no response to Plaintiff’s
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Memorandum, and the time for objections has expired.
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BACKGROUND
This case involves a lawsuit for declaratory judgment regarding whether Plaintiff Colony
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Insurance Company (“Colony”) has a duty to defend or indemnify Defendants Harold Kuehn,
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Thomas Gibson and their law firm, Gibson & Kuehn, LLP, in regard to a legal malpractice action
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brought against them by Susan and Joe Fallini, who are also joined as defendants in this action. On
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March 29, 2011, Colony filed a motion to compel Mr. Kuehn to respond to interrogatories and
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requests for production of documents, and to also compel Mr. Gibson and Gibson & Kuehn, LLP,
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to respond to requests for production of documents. (See #18.) None of the Defendants filed a
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written response to Colony’s motion to compel. The Court therefore granted the motion on April
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20, 2011 and ordered Mr. Kuehn, Mr. Gibson and Gibson & Kuehn, LLP to serve their discovery
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responses and initial disclosures by May 9, 2011. (See #25.)
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Mr. Kuehn failed to provide any discovery responses or initial disclosures, and failed to
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respond to Colony’s letters seeking compliance with the Court’s Order. On June 5, 2011, Colony
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filed a Motion for Sanctions against Harold Kuehn. (See #40.) Defendant Kuehn failed to file a
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written response to Colony’s Motion for Sanctions, and he did not appear at the August 10, 2011
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hearing on the motion. Although Mr. Kuehn did not respond to Colony’s motion for sanctions, the
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Fallini Defendants did. (See #43.) On August 30, 2011, the Court entered a written decision
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granting in part and denying in part Colony’s Motion for Sanctions against Defendant Kuehn. (See
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# 50.) The Court granted several of Colony’s requested sanctions including awarding Colony “its
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reasonable attorney’s fees against Mr. Kuehn relating to the motion for sanctions.” (Id.) Plaintiff
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filed this Memorandum in response to the Court’s Order (#50), requesting reimbursement of fees
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and costs in the amount of $7,910.
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DISCUSSION
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The Supreme Court has held that reasonable attorney fees must “be calculated according to
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the prevailing market rates in the relevant community,” considering the fees charged by “lawyers of
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reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96
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n. 11, 104 S.Ct. 1541 (1984). Courts typically use a two-step process when determining fee
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awards. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court must
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calculate the lodestar amount “by taking the number of hours reasonably expended on the litigation
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and multiplying it by a reasonable hourly rate.” Id. Furthermore, other factors should be taken into
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consideration such as special skill, experience of counsel, and the results obtained. Morales v. City
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of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir. 1996). “The party seeking an award of fees should
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submit evidence supporting the hours worked and rates claimed . . . [w]here the documentation of
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hours is inadequate, the district court may reduce the award accordingly.” Hensley v. Eckerhart,
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461 U.S. 424, 433 (1983). Second, the Court “may adjust the lodestar, [only on rare and
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exceptional occasions], upward or downward using a multiplier based on factors not subsumed in
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the initial calculation of the lodestar.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041,
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1045 (9th Cir. 2000).
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Colony requests a total of $7,910 in fees and costs associated with its Motion to Compel
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and Motion for Sanctions. Colony itemized their requested fees and costs as follows: $588 in fees
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related to the initial Motion to Compel; $6,152 in fees and costs associated with the Motion for
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Sanctions; and $1,170 in fees associated with preparing for, traveling to, and participating in the
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August 10, 2011 hearing. Colony requests reimbursement of attorneys’ fees and costs at an hourly
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rate of $250.00 for the time of John Daly, Esq. based on Mr. Daly’s 15 years of litigation
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experience in federal and state court. After reviewing Plaintiff's Memorandum of Costs and Fees
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and the affidavit of John Daly, Esq., the Court finds that the Plaintiff has offered sufficient
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evidence that $250 an hour is a reasonable hourly rate.
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Mr. Daly spent 6.7 hours on Colony’s Motion to Compel, for a total amount of $1,675.
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Colony however only requests reimbursement for one-third of that amount from Mr. Kuehn, as the
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Motion to Compel was directed against three Defendants. Colony therefore requests
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reimbursement in the amount of $588. The Court finds Colony’s request for one-third of the fees
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associated with the Motion to Compel is reasonable. The Court will therefore award Colony a total
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of $558.00.1
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Colony requests reimbursement for a total of 24.4 hours spent drafting the Motion for
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Sanctions, not including the fees and costs associated with preparing for and attending the August
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10, 2011 hearing. (See #40.) The records submitted by Plaintiff confirm that significant time was
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spent researching and drafting the motion for sanctions. Based on the attorney hours billed and
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other costs, Colony is requesting fees and costs in the amount of $6,152. However, Colony has not
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demonstrated that this work justifies 24.4 hours of attorney labor in preparing the Motion for
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Sanctions. Mr. Kuehn filed no opposition to this motion, and therefore the 24.4 hours was billed
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exclusively for preparing and filing the initial motion.2 The Court recognizes that Plaintiff would
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Colony appears to have made a mathematical or typographical error in the requested reimbursement. One
third of $1675 equals approximately $558, not $588.
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Defendants Fallini did file a response to the Motion for Sanctions against Defendant Kuehn. (See #45.)
However, the total hours request for the motion for sanctions does not include the time spent preparing Colony’s Reply
(#45) to Defendant Fallini’s Response.
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have spent a reasonable amount of time on these matters, but based on its own review of the
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memorandum of costs and fees and the affidavit of Mr. Daly, the Court finds that Plaintiff’s
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calculation of 24.4 hours of attorney labor is excessive. The Court finds that the work involved in
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preparing the motion for sanctions should reasonably take around 14 hours of attorney labor. As a
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result, the Court will award reasonable attorney’s fees associated with preparing the Motion for
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Sanctions in the amount of $3,500.
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Colony further request $1,170 reimbursement for the time spent preparing for and attending
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the August 10, 2011 hearing. Mr. Daly spent a total of 10 hours preparing for and attending the
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hearing, and spent an additional $1,010 in travel expenses. Again, because the hearing was on
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matters concerning all three Defendants, Colony requests only one-third of the total costs of
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preparing for and traveling to the August 10, 2011 hearing. Upon review and consideration of
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Colony’s fees and costs associated with the August 10, 2011 hearing, the Court will not reimburse
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Colony for any of the requested fees or costs. At the August 10, 2011 hearing, the Court heard oral
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arguments on both Plaintiff’s Motion for Sanctions against Defendant Kuehn and Plaintiff’s
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Second Motion to Compel and for Sanctions against Defendants Thomas Gibson and Gibson &
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Kuehn. (See #49.) Because Defendant Kuehn failed to file a written response to Plaintiff’s motion
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for sanctions and further failed to appear at the hearing, the main purpose and focus of the hearing
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was to address Plaintiff’s Second Motion to Compel against Defendants Thomas Gibson and
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Gibson & Kuehn. If Plaintiff only filed their Motion for Sanctions against Defendant Kuehn and
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no written response was filed, the Court would not have held a hearing on the matter. Therefore,
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the Court will not grant Colony any fees and costs associated with preparing for, traveling to, and
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participating in the August 10, 2011 hearing.
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As a result, based on the reasonable hourly rates discussed above, the Court will award
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attorneys’ fees to the Plaintiff in the amount of $4,058. The relevant factors are subsumed in this
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calculation of the reasonable attorneys’ fees, and there are no other exceptional circumstances
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which warrant enhancement or reduction of the fees.
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IT IS HEREBY ORDERED that Defendant Kuehn is ordered to pay Plaintiff Colony
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Insurance Company the sum total of $4,058. Defendant is further ordered to make the payment to
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Plaintiff by November 4, 2011.
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DATED this 5th day of October, 2011.
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______________________________________
GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE
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