-CWH Conboy, D.O v. Wynn Las Vegas, LLC, No. 2:2011cv01649 - Document 117 (D. Nev. 2012)
Court Description: ORDER Granting 89 Application for Attorney Fees. Defendants shall pay Plaintiff the total sum of $2,457.30 by January 7, 2012. Signed by Magistrate Judge Carl W. Hoffman on 12/7/2012. (Copies have been distributed pursuant to the NEF - SLR)
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-CWH Conboy, D.O v. Wynn Las Vegas, LLC Doc. 117 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 CAROLYN JEAN CONBOY, D.O., ) ) Plaintiff, ) ) vs. ) ) WYNN LAS VEGAS, LLC, et al., ) ) Defendants. ) __________________________________________) Case No. 2:11-cv-01649-JCM-CWH ORDER 12 This matter is before the Court on Plaintiff’s Application for Attorney Fees (#89), filed on 13 June 22, 2012. The Court also considered Defendants’ Response (#91), filed on June 27, 2012, and 14 Plaintiff’s Reply (#92), filed on June 27, 2012. 15 BACKGROUND 16 On June 22, 2012, the Court held a hearing on Plaintiff’s Second Emergency Motion to 17 Compel Discovery (#84) and Motion for Sanctions (#85) in which it considered arguments from 18 counsel for all parties. The Court denied the Second Emergency Motion to Compel Discovery as 19 moot and granted the Motion for Sanctions. In doing so, the Court ordered Plaintiff to submit an 20 Application for Costs and Fees by June 29, 2012. Per the Court’s order, Plaintiff filed an 21 Application for Attorney Fees on June 22, 2012. Plaintiff’s counsel, Robert J. Kossack 22 (“Kossack”) requests $2,982.30 in costs and fees based on an hourly rate of $350 and 8.5 hours of 23 work. See #92, 5. In response, Defendants assert that the requested amount of costs and fees is 24 unreasonable because the hourly rate and time charged are excessive, the award would be unjust, 25 and a determination of fees should be made at the conclusion of this matter. 26 DISCUSSION 27 A. Sanctions Pursuant to Rule 37 28 Federal Rule of Civil Procedure 37(a)(5)(A) states, “[T]he court must, after giving an Dockets.Justia.com 1 opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or 2 attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making 3 the motion, including attorney’s fees.” An award of expenses is not appropriate if: (1) the movant 4 filed the motion before attempting in good faith to obtain the disclosure or discovery without court 5 action, (2) the opposing party’s non-disclosure, response, or objection was substantially justified, or 6 (3) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(i-iii). The 7 burden is on the losing party to affirmatively demonstrate that its discovery conduct was 8 substantially justified. See Adv. Comm. Notes to 1970 Amendment to former Fed. R. Civ. P. 9 37(a)(4). Discovery conduct is “substantially justified if it is a response to a ‘genuine dispute or if 10 reasonable people could differ as to the appropriateness of the contested action.’” Devaney v. 11 Continental American Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993) (quoting Pierce v. 12 Underwood, 487 U.S. 552, 565 (1988)). 13 Defendants contend that the good faith and unjust exceptions apply to this situation. They 14 allege that Kossack did not engage in a good faith attempt to resolve the discovery dispute prior to 15 filing the Motion to Compel. Indeed, Defendants highlight the fact that they produced the 16 unredacted security manual the day after Kossack notified them of the issue and his intent to file the 17 Motion to Compel. They also claim that they requested that Kossack wait to file the Motion to 18 Compel for a day so that they could have time to discuss the issue with the attorney assigned to the 19 case. In reply, Kossack contends that the Motion to Compel was necessary given that the Court has 20 previously ordered Defendants to produce the entire security manual. The Court recognizes the 21 speed with which Defendants produced the unredacted security manual, but the Court previously 22 ordered Defendants to produce the document by June 11, 2012 subject to the protective order. See 23 Order #76, 2-3. Additionally, the Court notes that discovery closed on June 15, 2012, which is 24 prior to the date that Plaintiff filed the Second Motion to Compel; as such, Defendants had 25 sufficient notice of their obligation to produce the unredacted security manual. Accordingly, 26 Defendants have not demonstrated that Plaintiff acted in bad faith or that an award of fees would be 27 unjust. Therefore, the Court finds that Plaintiff is entitled to attorney fees pursuant to Rule 28 37(a)(5)(A). 2 1 Additionally, the Court is not convinced by Defendants’ argument that the award should be 2 stayed pending the conclusion of the case. This award is based on a discovery dispute that occurred 3 in June 2012. Defendants’ rationale that it is likely to prevail at trial and any monetary sanction 4 would be offset at that time is not a persuasive reason to stay the Court’s decision on this sanction. 5 B. 6 The Ninth Circuit affords trial courts broad discretion in determining the reasonableness of Reasonableness of the Fee Request 7 fees. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). Courts typically follow a two-step 8 process. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court must 9 calculate the lodestar amount “by taking the number of hours reasonably expended on the litigation 10 and multiplying it by a reasonable hourly rate.” Id. Second, the Court “may adjust the lodestar 11 upward or downward using a ‘multiplier’ based on factors not subsumed in the initial calculation.” 12 Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). Some of the relevant 13 factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, 14 (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment 15 by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or 16 contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved 17 and results obtained, (9) the experience, reputation, and ability of the attorney, (10) the 18 undesirability of the case,1 (11) the nature and length of the professional relationship with the 19 client, and (12) awards in similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th 20 Cir. 1975), cert. denied, 425 U.S. 951 (1976); see also Hensley v. Eckerhart, 461 U.S. 424, 434 21 (1983). In most cases, the lodestar figure is a presumptively reasonable fee award. Camacho v. 22 Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008). 23 1. 24 Reasonable Hourly Rate The Supreme Court has held that reasonable attorney fees must “be calculated according to 25 26 27 28 1 This factor has been called into question by the Supreme Court’s ruling in City of Burlington v. Dague, 505 U.S. 557, 561-564 (1992). See also Davis v. City & Cty. of San Francisco, 976 F.2d 1536, 1546 n.4 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993) (suggesting Dague casts doubt on the relevance of “undesirability” to the fee calculation). 3 1 the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895-96 n.11 2 (1984). The relevant community consists of the forum in which the case is pending. Camacho, 3 523 F.3d at 978. The court may consider rates outside the forum if local counsel was unavailable 4 because they lacked the degree of experience, expertise, or specialization required to properly 5 handle the case. Id. (citing Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)). Additionally, the 6 court must consider the market rate in effect within two years of the work performed. Bell v. 7 Clackamas County, 341 F.3d 858, 869 (9th Cir. 2003). The fee applicant has the burden of 8 producing satisfactory evidence that “the requested rates are in line with those prevailing in the 9 community for similar services by lawyers of reasonably comparable skill, experience, and 10 reputation.” Id. Such evidence may include affidavits of the fee applicant’s attorneys, affidavits of 11 other attorneys regarding prevailing fees in the community, and rate determinations in other cases. 12 Camacho, 523 F.3d at 980 (citing United Steel Workers of Am. v. Phelps Dodge Corp., 896 F.2d 13 403, 407 (9th Cir. 1990)). 14 Kossack seeks fees based on an hourly rate of $350. Kossack’s Affidavit states that he has 15 been practicing law in Nevada for nearly 26 years and $350 has been his hourly rate for the last 16 seven years. See Affidavit #89, 2. Defendants contend that this case is not a complex case and 17 does not warrant such a high hourly billing rate. They allege that the rate charged by their seasoned 18 trial attorney is $250 per hour. In reply, Kossack asserts that $350 is reasonable given his 19 reputation and fee agreement structure. Additionally, Kossack contends that this has been his rate 20 for the last seven years for domestic, criminal, and contractual matters. After careful consideration, 21 the Court finds the hourly rate of $350 reasonable for this forum given Kossack’s experience. See 22 Incorp. Services, Inc. v. Nevada Corporate Services, No. 2:09-cv-01300-RCJ-CWH (#60) (finding 23 $400 reasonable for an attorney with eleven years of experience and $350 reasonable for an 24 attorney with eight years of experience). 25 26 2. Reasonable Hours Expended In addition to evidence supporting the rates claimed, “[t]he party seeking an award of fees 27 should submit evidence supporting the hours worked.” Hensley, 461 U.S. at 433; see also Jordan, 28 815 F.2d at 1263. “Where the documentation of hours is inadequate, the district court may reduce 4 1 the award accordingly.” Hensley, 461 U.S. at 433. “The district court also should exclude from 2 this initial fee calculation hours that were ‘not reasonably expended’.” Hensley, 461 U.S. at 433-34 3 (citation omitted). “In other words, the court has discretion to ‘trim fat’ from, or otherwise reduce, 4 the number of hours claimed to have been spent on the case.” Edwards v. Nat’l Business Factors, 5 Inc., 897 F. Supp. 458, 460 (D. Nev. 1995) (quotation omitted); see also Gates v. Deukmejian, 987 6 F.2d 1392, 1399 (9th Cir. 1992). In cases where the motion is granted in part and denied in part, the 7 Court may apportion the reasonable expenses for the motion. Fed. R. Civ. P. 37(a)(5)(c). 8 9 Kossack requests $2,982.30 in costs and fees based on an hourly rate of $350 and 8.5 hours of work. Defendants contend that the hours claimed are excessive for several reasons and should 10 be reduced to 3.1 hours. First, Defendants allege that 1.1 hours spent reviewing the redacted 11 security manual should be discounted to 0.5 because the redacted portions were set forth in the 12 privilege log. Plaintiff contends that no privilege log was received and Defendants’ Amended 13 Fourteenth Supplemental Disclosure of Witnesses and Documents omits the privilege log. See 14 Response #91-2, 16. The Court agrees that 1.1 hours spent reviewing the redacted security manual 15 was excessive especially given that Kossack only spent 0.2 hours in a telephone conference with 16 Defense counsel and staff. Kossack should have devoted more time to resolving the dispute with 17 Defense counsel prior to bringing the Motion to Compel. Also, the Court finds that documentation 18 of how much time was spent on reviewing the redacted manual as opposed to composing the letter 19 to Defense counsel was inadequate. Therefore, it will reduce the award by 0.6 hours and $210. 20 Second, Defendants assert that 2.1 hours spent drafting the motion should be discounted to 21 1.1 because “it was largely a cut and past[e] job from Plaintiff’s prior motion to compel.” 22 Response #91, 3. Plaintiff contends that only one page was take from a previously written letter. 23 The Court finds that 2.1 hours is excessive given the simple nature of this dispute and will reduce 24 the award by 1.1 hours and $385. Third, Defendants request that the 1.0 hours for reviewing 25 opposition and preparing for oral argument should be discounted to 0.4 hours because Plaintiff’s 26 Counsel’s argument was unnecessary and unproductive. Plaintiff argues that his preparatory effort 27 for the hearing was necessary. The Court agrees that 1.0 hours spent in preparation and attendance 28 of the June 22, 2012 hearing was reasonable. Finally, Defendants contend that the 1.0 hours 5 1 requested in anticipation of arguing this fee application should be eliminated. The Court agrees 2 that the requested award should be reduced by $350 as no oral argument was required. Also, 3 Plaintiff spent 1.3 hours on the reply. The Court finds that this amount of time was excessive given 4 the simple nature of the dispute and will reduce the award by 0.3 and $105. Accordingly, the Court 5 grants Plaintiff an award of $2,457.30 for seven hours of work and $7.30 in costs. 6 Based on the foregoing and good cause appearing therefore, 7 IT IS HEREBY ORDERED that Plaintiff’s Application for Attorney Fees (#89) is 8 9 granted. Defendants shall pay Plaintiff the total sum of $2,457.30 by January 7, 2012. DATED this 7th day of December, 2012. 10 11 12 13 ______________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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