Lall v. Corner Investment Co et al, No. 2:2020cv01287 - Document 155 (D. Nev. 2023)
Court Description: ORDER Granting in part 141 Motion for Attorney Fees and 142 Motion for Attorney Fees. See order for details. Signed by Judge Cristina D. Silva on 9/21/2023. (Copies have been distributed pursuant to the NEF - ALZ)
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Lall v. Corner Investment Co et al Doc. 155 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 1 of 16 1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 Case No. 2:20-cv-01287-CDS-NJK 4 Tracey Lall, Plaintiff 5 v. 6 Order Granting in Part Motions for Attorneys’ Fees [ECF Nos. 141, 142] 7 Corner Investment Company (d/b/a The Cromwell Hotel and Casino), et al., 8 Defendants 9 10 Sometimes in litigation, you’ve got to know when to hold ‘em, know when to fold ‘em, 11 know when to walk away, and know when to run. 1 Plaintiff’s counsel Michael Mcavoyamaya 2 12 would have done well to heed that credo here. Instead, he repeatedly dug in his heels, refusing to 13 admit that entire claims and aspects of his position were unsupported by the underlying facts or 14 well-settled law. In response, the defendants bring these post-judgment motions to sanction 15 Mcavoyamaya, seeking attorneys’ fees. Mcavoyamaya maintains that sanctions are inappropriate 16 and that he represented his client in good faith. Upon Mcavoyamaya’s request, I recently held a 17 hearing (the “Sanctions hearing”) to allow the parties to make further argument and to answer 18 my questions. ECF No. 153. After reviewing the briefing and hearing additional arguments at the 19 Sanctions hearing, I find that Mcavoyamaya acted recklessly by failing to voluntarily dismiss his 20 client’s duty-of-fair-representation claim against the union—Local 165—when it became clear 21 that such claim was meritless. I further find that he acted in bad faith by: (1) failing to inform 22 23 1 See Kenny Rogers, The Gambler, on The Gambler (United Artists 1978). 2 Throughout this case, there has been ongoing confusion about the proper spelling of Mcavoyamaya’s 24 last name. See Order, ECF No. 130 at n.2. Local 165 refers to him as “McAvoyamaya,” while the Cromwell defendants refer to him as “McAvoy Amaya,” and he refers to himself as both “McAvoy Amaya” and 25 sometimes “Mcavoyamaya.” Compare ECF No. 141-1 at 6 and ECF No. 142-1 at 6 with ECF No. 143 at 1. He has not yet availed himself of my invitation to clarify the correct spelling of his name. See ECF No. 130 at 26 n.2. For the sake of consistency with my previous orders, I refer to him as “Mcavoyamaya” throughout this order, and I construe the parties’ various spellings as references to the same person. Dockets.Justia.com Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 2 of 16 1 opposing counsel and the court that he was abandoning the Family and Medical Leave Act 2 (FMLA) claim until after the issue had been fully briefed at the summary-judgment stage, (2) by 3 making misrepresentations to the court about evidence (or a lack thereof) and case law, (3) by 4 raising novel arguments for the first time in reply briefs and at oral argument, and (4) by 5 violating various local rules. I thus grant in part both motions for attorneys’ fees, to be paid by 6 Mcavoyamaya personally, awarding $93,030 in fees and $2,892 in costs for Local 165 and 7 awarding $45,470 in fees for the Cromwell defendants. 3 I defer granting costs for the Cromwell 8 at this juncture. 9 I. Legal standards 10 a. 11 “Nevada follows the American rule that attorney fees may not be awarded absent a Sanctions under 28 U.S.C. § 1927 and the court’s inherent power. 12 statute, rule, or contract authorizing such award.” Thomas v. City of N. Las Vegas, 127 P.3d 1057, 1063 13 (Nev. 2006) (citations omitted). “District courts enjoy much discretion in determining whether 14 and how much sanctions are appropriate.” Trulis v. Barton, 107 F.3d 685, 694 (9th Cir. 1995) 15 (citing Frantz v. U.S. Powerlifting Federation, 836 F.2d 1063, 1066 (7th Cir. 1987)). Here, the two 16 bases for sanctions raised in the briefs are 28 U.S.C. § 1927 and the court’s inherent power. 17 Notably, “[w]hile Rule 11 authorizes sanctions only for filings that were frivolous when they 18 were made . . . ‘Section 1927 imposes a continuing duty on counsel to dismiss claims that are no 19 longer viable.’” Frost v. LG Electronics Inc., 2017 WL 2775041, at *2 (N.D. Cal. June 27, 2017) 20 (quoting Burda v. M. Ecker Co., 2 F.3d 769, 778 (7th Cir. 1993)); accord Trulis, 107 F.3d at 692). “A 21 filing is frivolous if it ‘is both baseless and made without a reasonable and competent inquiry.’” 22 Pratt v. California, 11 F. App’x 833, 835 (9th Cir. 2001) (quoting In re Keegan Mgmt. Co., Secs. Litig., 78 23 F.3d 431, 434 (9th Cir. 1995) (internal citation omitted)). 24 25 3 As in previous orders, I refer to the three non-union defendants—Corner Investment Co. (doing business as The Cromwell Hotel and Casino); Caesars Entertainment, Inc.; and Caesars Growth 26 Cromwell—collectively as “the Cromwell defendants.” I refer to defendant Unite Here Bartenders Union, Local 165 herein as “Local 165” or “the Union.” 2 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 3 of 16 1 Under § 1927, attorneys “who so multipl[y] the proceedings in any case unreasonably and 2 vexatiously may be required by the court to satisfy the excess costs, expenses, and attorneys’ 3 fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927; see also Lozano v. Cabrera, 678 4 F. App’x 511, 513 (9th Cir. 2017). “Recklessness is all that is necessary to justify an award of fees 5 and costs under § 1927, and the award must be satisfied by the offending attorney personally— 6 not the client.” Mayorga v. Ronaldo, 2023 WL 2020075, at *1 (D. Nev. Feb. 14, 2023) (citing 28 7 U.S.C. § 1927). While “reckless suffices for § 1927 . . . bad faith is required for sanctions under the 8 court’s inherent power.” Fink v. Gomez, 239 F.3d 989, 993 (9th Cir. 2001). “Bad faith is present 9 when an attorney knowingly or recklessly raises a frivolous argument or argues a meritorious 10 claim for the purpose of harassing an opponent.” Trulis, 67 F.3d at 788 (quoting New Alaska Dev. 11 Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989)). Although district courts have the 12 discretion to issue sanctions under both § 1927 and their inherent powers, such discretion must 13 be exercised with restraint. Lahiri v. Universal Music & Video Distribution Corp., 606 F.3d 1216, 1223 14 (9th Cir. 2010). 15 b. 16 Local Rule 54-14 and Federal Rule of Civil Procedure 54(d)(2) govern fees motions. In Requirements for fees motions under this district’s local rules. 17 part, a motion for attorneys’ fees must include a brief summary of: (A) [t]he results obtained and the amount involved; (B) [t]he time and labor required; (C) [t]he novelty and difficulty of the questions involved; (D) [t]he skill requisite to perform the legal service properly; (E) [t]he preclusion of other employment by the attorney due to acceptance of the case; (F) [t]he customary fee; (G) [w]hether the fee is fixed or contingent; (H) [t]he time limitations imposed by the client or the circumstances; (I) [t]he experience, reputation, and ability of the attorney(s); (J) [t]he undesirability of the case, if any; (K) [t]he nature and length of the professional relationship with the client; (L) [a]wards in similar cases; and (M) [a]ny other information the court may request. 18 19 20 21 22 23 LR 54-14(a)(3). Counsel must also provide an itemized list and description of the work 24 performed and associated costs and an affidavit authenticating the information in the motion. 25 LR 54-14(a)(1)–(2); LR 54-14(b). 4 If a party opposes a fees motion, the opposition “must set 26 The Cromwell defendants argue that Mcavoyamaya tried to circumvent the page limits by attaching an 18-page affidavit to his response briefs. ECF No. 145 at 11–12 (citing ECF No. 143-1). He attached the same 4 3 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 4 of 16 1 forth the specific charges that are disputed and state with reasonable particularity the basis for 2 the opposition.” LR 54-14(d). And “[t]he opposition must include affidavits to support any 3 contested fact.” Id. Further, “[i]f either party wishes to examine [an] affiant, the party must 4 specifically make that request in writing. Absent such a request, the court may decide the 5 motion on the papers or set the matter for evidentiary hearing.” Id. at (e). 6 II. Discussion 7 a. Mcavoyamaya’s failure to voluntarily dismiss the duty-of-fair-representation claim against 8 Local 165 amounts to an unreasonable, reckless multiplication of the proceedings, so sanctions 9 are appropriate. 10 Local 165 moves under 28 U.S.C. § 1927 and the court’s inherent power for an award of 11 $93,030 in attorneys’ fees and $2,892 in costs, to be payable by Mcavoyamaya himself. ECF No. 12 141-1 at 19–20. It contends that Mcavoyamaya acted in bad faith by continuing to pursue Lall’s 13 duty-of-fair-representation claim against the Union even after he knew it was meritless. Local 14 165 points out that Mcavoyamaya was given documents in March 2021 showing that the Union 15 had processed both of Lall’s grievances, fulfilling its responsibility under the collective 16 bargaining agreement and all but foreclosing the duty-of-fair-representation claim. Id. at 18. He 17 was then given copies of text messages that Lall sent to the Union indicating that she did not 18 want the termination grievance to be arbitrated. ECF No. 72-3 at 34–37, 110. At this point, Local 19 165 argues that Mcavoyamaya was obligated to voluntarily dismiss this claim against the Union. 20 But instead, “the case continued for more than two years,” during which Mcavoyamaya filed an 21 amended complaint—still pursuing the claim against the Union—and the case proceeded all the 22 way to summary judgment, which I granted in the defendants’ favor on all claims. ECF No. 141-1 23 affidavit to his response to the Union’s motion. ECF No. 144-1. Although the local rules require that 24 attorneys submit a declaration in support of their opposition to a fees motion (LR 54-14(d)), 18 pages is excessive and, in this case, used in part to incorporate an argument that is not discussed elsewhere in the 25 underlying brief. See, e.g., ECF No. 143-1 at ¶¶ 7, 11, 12. I do not disagree with the Cromwell defendants’ argument, but based on Mcavoyamaya’s representations at the Sanctions hearing, he included additional 26 argument to respond to my show cause order so I decline to strike his affidavit so I can resolve these motions. 4 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 5 of 16 1 at 6; ECF No. 117; ECF No. 118. At the Sanctions hearing, Mcavoyamaya contended that he 2 pursued the claim in good faith, arguing that he was not provided with a “binding case” that 3 squarely addressed the issues in his client’s case. Specifically, he reiterated his opposition to the 4 summary judgment motions, asserting that he relied (in good faith) on an “exception” in the 5 Jackson 5 case that the Union’s failure to grieve her termination violated their duty of fair 6 representation. In response to Mcavoyamaya’s oral argument, Local 165 argued that the Jackson 7 case does not address the “exception” upon which Mcavoyamaya claims that he relied “in good 8 faith” in bringing this action, and again cited to cases 6 that explicitly hold that an employee 9 must afford a union the opportunity to act before bringing suit and that an employee may obtain 10 judicial review despite the failure to exhaust if the employee can show that the union breached 11 its duty of fair representation, noting that Lall did neither. The Union argues that here, at the 12 very latest, Mcavoyamaya knew that Lall did not want the Union to act by March of 2021. 13 Local 165’s counsel provides an itemization of the work performed and all costs incurred 14 after March 26, 2021, the date on which Mcavoyamaya became aware that Lall’s duty-of-fair15 representation claim could not succeed. ECF Nos. 141-9; 141-10. The Union also provides a 16 declaration from its lead counsel, Luke Dowling, verifying that the information provided is 17 accurate. ECF No. 141-2. In response to the Union’s motion, Mcavoyamaya argues that the 18 motion does not comply with the local rules and should be stricken 7; Local 165 has not provided 19 him with the required particularized notice of his sanctionable conduct under Federal Rule of 20 21 Jackson v. S. California Gas, Co., 881 F.2d 638 (9th Cir. 1989). Referencing Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965) and Vaca v. Sipes, 386 U.S. 171 (1967). 7 Because each of these arguments lacks merit, I need not address them in depth. But I briefly discuss the motion to strike. Mcavoyamaya argues that Local 165 violated the local rules by using the incorrect margins and spacing in its motion, and the Union concedes that it inadvertently did so. ECF No. 146 at 16 n.4. Local 165 explains that once those errors are corrected, the motion “is still only 22 pages,” and it was thus not attempting to circumvent the page limit. Id. While it is true that Local 165’s motion violates the local rules, because the error was harmless and the brief was still within the page limit regardless, I decline Mcavoyamaya’s invitation to strike the motion. I already struck both parties’ briefs for failing to comply with the local rules (ECF No. 140), and it would not be in the interest of justice for me to do so again. 5 22 23 24 25 26 6 5 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 6 of 16 1 Procedure 11 8; there was only one proceeding in this case, so he cannot have multiplied the 2 proceedings 9; Local 165 has not sufficiently demonstrated that he acted in bad faith; and the 3 sought fees are unreasonable. 10 ECF No. 144 at 3–22. He also urges that he cannot be subject to 4 sanctions because “[t]he [c]ourt already stated when granting summary judgment that sanctions 5 were not going to be considered in this case[] but may be considered ‘in the future[.]’” 11 Id. at 5. 6 1. 7 Mcavoyamaya knew in March 2021 that the duty-of-fair-representation claim was doomed and should have abandoned it. 8 Mcavoyamaya initially filed this case in July 2020. ECF No. 1. Discovery commenced, and 9 in March 2021, Local 165 provided Lall’s counsel with its first set of documents, including the 10 grievance that the Union filed on Lall’s behalf and evidence of the Union’s other efforts to 11 Inexplicably, Mcavoyamaya argues that Local 165 failed to comply with Rule 11’s safe-harbor provision by not providing written notice and service of the fees motion to Mcavoyamaya in order to give him an 13 opportunity to cure the alleged violation. ECF No. 144 at 3–6. This entire argument is inapplicable, as neither Local 165 nor the Cromwell defendants seek sanctions under Rule 11. The safe-harbor provision is 14 thus not implicated here. 12 15 16 17 18 19 20 8 In a stunning display of literalism, Mcavoyamaya spends pages of his response brief arguing that “only one proceeding was held in this matter” (the summary-judgment hearing), so the defendants cannot recover attorneys’ fees under § 1927 because “there were no proceedings multiplied.” ECF No. 144 at 13– 15. A proceeding is “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.” Proceeding, Black’s Law Dictionary (11th ed. 2019). It is a catch-all term encompassing the collection of activities in a case, not a reference to the number of hearings or oral arguments held. Mcavoyamaya seems to misapprehend Local 165’s argument that his conduct unnecessarily multiplied the filings, arguments, and fees in this case because Local 165 had to spend resources—as did the court—litigating a frivolous claim. The result would be the same had there been no hearings in this case whatsoever. But regardless, Mcavoyamaya’s unnecessary multiplication of the proceedings is beyond debate (as discussed infra). 9 Again, Mcavoyamaya misses Local 165’s point. He contends that the “[d]efendants seek ordinary case costs in this matter for having to produce discovery and having to respond to routine motions that occur 22 in every case that proceeds past the pleading stage[.]” ECF No. 144 at 23. But the defendants seek to be made whole as to their fees in this case because they would not have incurred them but for Mcavoyamaya’s 23 relentless pursuit of a frivolous claim. 21 10 This misstates my prior ruling. In my order granting summary judgment in the defendants’ favor, I reprimanded Mcavoyamaya for his various misrepresentations to the court and general conduct in this 25 litigation. ECF No. 118 at 1–2. I indicated that his failure to comply with the Nevada Rules of Professional Conduct, the local rules, or other authority could result in my taking of “appropriate action.” Id. at 2. But 26 nowhere did I say that he would not be sanctioned in this case. Regardless, in granting the defendants’ fees motions, I am not sua sponte sanctioning Mcavoyamaya, contrary to his representation and belief. I am merely resolving sanctions motions that the defendants brought against him. 24 11 6 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 7 of 16 1 process the grievance for Lall. 12 ECF No. 141-4. A few days later, Local 165 made a supplemental 2 production, including copies of text messages between Lall and the Union indicating that after 3 she was terminated, she unequivocally told the Union that she did not want to proceed with 4 arbitrating her grievance. ECF No. 141-5. At that point, Mcavoyamaya was presented with 5 evidence that the Union had filed grievances on Lall’s behalf—despite Mcavoyamaya’s insistence 6 that it “never” did. He had also been presented with evidence that Lall herself had opted out of 7 pursuing the grievance further when she explained to the union representative that she did not 8 want to proceed with either mediation or arbitration, unless her lawyer could be present. 9 Mcavoyamaya insists that Lall was not opting out of the arbitration altogether but was 10 withdrawing only to the extent that she could not have her own counsel (Mcavoyamaya) 11 present with her. ECF No. 144 at 16, 21–22. 12 From the evidence before me, it is evident that Mcavoyamaya knew as early as March 13 2021 that the duty-of-fair-representation claim against the Union was doomed because 1) he was 14 presented with evidence showing that the Union had filed grievances on Lall’s behalf and 2) was 15 presented with valid, binding legal authority holding that unions are allowed to restrict their 16 members from having attorneys present during grievance meetings. ECF No. 141-2 at 2. 17 Mcavoyamaya could have—and a reasonable attorney would have—put the pieces together that 18 his client’s claim against the Union could not succeed. Nonetheless, those pieces were put 19 together for him in April 2021, when Dowling called Mcavoyamaya to explain why the claim was 20 unavailing and exchanged emails discussing the same. ECF No. 141-6 at 2 (in an email from 21 Dowling to Mcavoyamaya, Dowling stated “[t]he Ninth Circuit has stated clearly and concisely 22 that ‘no court has adopted the rule that employees are entitled to independently retained 23 counsel in arbitration proceedings, or that the exclusion of such attorneys from arbitration 24 12 Throughout the pleadings and briefs, Mcavoyamaya repeatedly pled that the Union never processed a 25 single grievance for Lall. See, e.g., ECF No. 1 at ¶ 91; ECF No. 51 at ¶¶ 45, 55, 63; ECF No. 77 at 40. The evidence shows that this was not true. Indeed, Lall ultimately conceded that Local 165 filed two 26 grievances on her behalf, one in November 2018 and one for Lall’s termination in January 2020. ECF No. 72-3 at 141; ECF No. 93 at 18–19. 7 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 8 of 16 1 violates the duty of fair representation.” (citing Castelli v. Douglas Aircraft Co., 752, F.2d 1480, 1483 2 (9th Cir. 1985)); ECF No. 141-7. 3 Dowling also sent Mcavoyamaya a letter specifically requesting that the duty-of-fair- 4 representation claim be dropped, citing the evidence showing that Lall followed Mcavoyamaya’s 5 advice and asked the Union not to pursue her grievances any further. ECF No. 141-7 at 2–3. The 6 letter stated that “it is now clear beyond dispute that Local 165 processed Ms. Lall’s grievance 7 properly from the documents produced in discovery.” Id. at 3. It discussed the procedural history 8 of Lall’s grievances and the steps that Local 165 had undertaken to assist her in pursuing them. 9 Id. And it concluded that “[i]t is not arbitrary, discriminatory, or in bad faith to withdraw a 10 grievance when the grievant says she does not want to pursue it any further. Nor is it a violation 11 of the duty of fair representation to prohibit employees from bringing their own counsel to 12 grievance meetings. There is no reason to waste our clients’ time litigating this matter 13 further.” Id. (emphasis added). Dowling further noted that Lall’s deposition was coming up, and 14 that it would “incur additional costs that will complicate any potential agreement to dismiss 15 [Local 165] from this case.” Id. 16 As Dowling stated in the letter, it is well established that it is not a breach of the duty of 17 fair representation for a union to restrict a member’s access to an attorney, nor is it a breach to 18 listen to the member’s wishes and not continue pursuing the grievance. Castelli, 752 F.2d at 1483; 19 Jackson v. S. Cal. Gas Co., 881 F.2d 638, 646 (9th Cir. 1989) (discussing exhaustion requirement 20 before filing duty-of-fair-representation claim); Debeikes v. Hawaiian Airlines, Inc., 141 F.Supp.3d 21 1075, 1092 (D. Haw. 2015), aff’d 725 F. App’x 499 (9th Cir. 2018); see also Jav v. SEIU-UHW West, 22 2017 WL 697110, at *2–4 (N.D. Cal. Feb. 22, 2017). Lall acknowledged that he was “fully aware of 23 the case law on the subject of this dispute[.]” ECF No. 141-8 at 2. He even considered voluntarily 24 dismissing the claim against the Union but “concluded that dismissal of the claim at this time is 25 not warranted.” Id. Despite the ample evidence and case law presented to him indicating that 26 Lall had not properly exhausted her grievances (because she told the Union not to pursue them 8 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 9 of 16 1 further), that Lall was not entitled to counsel at the mediation, and that Local 165 had satisfied 2 its obligations to Lall, Mcavoyamaya nonetheless decided to pursue the claim all the way 3 through summary judgment. 13 But even before the summary-judgment stage, Mcavoyamaya 4 doubled down on his position. Within a month of the letter from Dowling and Mcavoyamaya’s 5 acknowledgement that he had considered dropping the claim, he filed an amended complaint on 6 Lall’s behalf, which still included the duty-of-fair-representation claim against Local 165. ECF No. 141-1 at 7 10–11. 8 Local 165 relies on Schutts v. Bentley Nevada Corp. as an example of a judge in this district 9 sanctioning an attorney under § 1927 for continuing to pursue a frivolous claim to summary 10 judgment even after being confronted with valid legal authority indicating that the claim could 11 not succeed. ECF No. 141-1 at 17–18 (citing 966 F.Supp. 1549, 1559–60 (D. Nev. 1997)). The 12 Schutts court held the offending attorney liable for fees incurred from the date after which he 13 became aware of the legal authority that foreclosed his client’s claims. Further, the court stated 14 that “[t]he responsibility for discovering relevant legal authority rested with [p]laintiff’s counsel 15 himself.” Schutts, 966 F. Supp. at 1563. It continued that “[a] lawyer admitted to practice before 16 this court must apprise himself . . . of the relevant law.” Id. This is just as true today as it was 17 when Schutts was decided. Trulis is also instructive. There, the Ninth Circuit held that the district 18 court abused its discretion when it failed to sanction counsel under § 1927 for pursuing claims to 19 summary judgment instead of dismissing them once it became clear that they could not succeed. 20 107 F.3d at 692. Under these cases, I conclude that Local 165 is entitled to attorneys’ fees after 21 March 26, 2021, because Mcavoyamaya acted—at a minimum, recklessly—in maintaining this 22 clearly meritless claim. 14 What pushed his conduct over the line from reckless to bad faith was 23 13 It is likely that Mcavoyamaya knew that pursuing the claim was futile even before March 2021, 24 assuming that he asked his client the appropriate questions about her case. But I extend him the benefit of the doubt, as Local 165 does, and find that, at the latest, he knew of the claim’s futility in March 2021 25 after receiving the Union’s first document production. 26 Nor am I the first to make this conclusion. Several other judges have experienced from Mcavoyamaya similarly reckless litigation tactics that have warranted sanctions—or warnings—in the past. This appears to be one tile of many in the troubling mosaic of Mcavoyamaya’s disregard for the rules in both 14 9 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 10 of 16 1 his decision to file an amended complaint after receiving information upon which a reasonable 2 attorney would have dismissed the duty-of-fair-representation claim against Local 165. 3 2. 4 The method used to calculate the requested fees is reasonable, and the attorneys’ rates are commensurate with others in the community. 5 Nowhere in his response does Mcavoyamaya object to the rates that Dowling and the 6 other union attorneys are charging or to the reasonableness of the number of hours for which 7 they seek fees. Instead, he merely attempts to relitigate the underlying issues and merits of the 8 case, on which I already ruled when granting summary judgment in Local 165’s favor. He can do 9 so on appeal, but I will not rehash the issues here. 15 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 federal and state court. See, e.g., Brown v. Tromba, 2021 WL 1063793 (D. Nev. March 18, 2021) (characterizing as “utterly divorced from reality” and “contrary to the Local Rules” Mcavoyamaya’s position that the court should investigate whether a case “involves the same claims between the same parties as a prior closed case that is on appeal”); Cabrera v. Serv. Emps. Int’l Union, 2020 WL 2771186 (D. Nev. May 28, 2020) (finding that Mcavoyamaya “defied this [c]ourt’s order,” concluding that his “conduct amounts to outright forum-shopping,” and imposing sanctions in the form of attorneys’ fees); Garcia v. Serv. Emps. Int’l Union, 2019 WL 8750276 (D. Nev. Jan. 17, 2019) (imposing discovery sanctions “against counsel himself” because of a motion to compel that “was necessitated by counsel’s unfounded legal positions”), aff’d, 856 F. App’x 105 (9th Cir. 2021); Garcia v. Serv. Emps. Int’l Union, 2019 WL 8750275, at *2 (D. Nev. May 23, 2019) (noting that the court “would be well within its discretion to impose sanctions[,]” but instead “provid[ing] a final warning to [Mcavoyamaya] that he must comply with his Rule 11 obligations moving forward” and his “[f]ailure to do so may result in the imposition of sanctions.”); Mueller v. Hinds, 519 P.3d 501 (Nev. 2022) (unpublished) (finding that Mcavoyamaya failed to provide a required index but declining to impose sanctions); Brown v. Tromba, 2023 WL 5457049 (D. Nev. Aug. 23, 2023) (sanctioning Mcavoyamaya and another attorney $500 jointly and severally under Rule 11 for making an objectively false allegation and refusing to respond to a Rule 11 safe-harbor notice). Mcavoyamaya urges that my decision to grant summary judgment in Local 165’s favor was “on an incredibly narrow issue, pursuant to persuasive precedent,” rather than binding case law. ECF No. 144 at 22. As Local 165 points out, my decision cited to an unpublished case (Jay, 2017 WL 697110) as analogous to this one, and that case “simply applies binding precedent.” ECF No. 146 at 10 (discussing that Jay relied on Carr v. Pac. Mar. Ass’n, 904 F.2d 1313, 1319 (9th Cir. 1990), and Vaca v. Sipes, 386 U.S. 171 (1967)). If Mcavoyamaya disagrees with my decision—which it appears he does—then this is not the appropriate juncture at which to voice that discord: appeal is. Nor is a response to a post-judgment motion for attorneys’ fees the point at which counsel should seek to relitigate the merits of the underlying case, assert that there remain disputes of fact, or raise new theories. Mcavoyamaya attempts to do each of those here, even making the brazen—and new—assertion that an employee is not required to exhaust remedies with a union before filing a duty-of-fair-representation claim. See ECF No. 146 at 5–7 (citing ECF No. 144 at 20–22). He raised this novel argument again during the Sanctions hearing. It seems that it is Mcavoyamaya’s habit to raise new arguments at inappropriate times, just as he did in his replies to the defendants’ motions for summary judgment and at the summary-judgment hearing. See ECF Nos. 100; 101; 131. 15 10 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 11 of 16 1 It is clear Mcavoyamaya was aware that the Union had fulfilled its duty to Lall in April 2 2021. In fact, he had actively considered dropping the claim at that time—but did not. To pursue 3 the doomed claim for two years after that amounted to frivolity. “Despite a district court’s 4 discretion in determining the amount of a fee award, it ‘must calculate awards for attorneys’ fees 5 using the ‘lodestar’ method.’’” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008) 6 (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001) (per curiam)). 7 “[T]he amount of that fee must be determined on the facts of each case[.]” Id. at 978 (citing 8 Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). And “[t]he ‘lodestar’ is calculated by multiplying 9 the number of hours the prevailing party reasonably expended on litigation by a reasonable 10 hourly rate.” Id. (quoting Ferland, 244 F.3d at 1149 n.4). 11 Mcavoyamaya is also silent as to the reasonableness of Local 165’s hourly rates. Local 165 12 seeks fees incurred from March 26, 2021, to the present (plus fees accrued in filing its reply brief 13 and preparation for oral argument at the Sanctions hearing). The fees requested account for 14 273.8 hours of Dowling’s time, 9.4 hours of Kristin Martin’s time, and 1.2 hours of Richard 15 McCracken’s time. ECF No. 141-1 at 20 (citing ECF No. 141-2 at ¶¶ 8–9). The corresponding 16 hourly rates sought are $300 for Dowling’s work, $450 for Martin’s work, and $550 for 17 McCracken’s work. Id. at 22. Local 165 indicates that outside of the District of Nevada, its 18 counsel charges a considerably higher rate. ECF No. 141-1 at 23. It also notes that these are not 19 the rates it actually charges its clients. Id. 20 I find that Local 165 provides sufficient information on which I can base a fees award. It 21 discusses the qualifications of the attorneys and addresses all the relevant factors under the local 22 rules. I have considered this information, along with cases discussing reasonable hourly rates in 23 this community, and I find that the proposed hourly rates are reasonable and commensurate 24 with the rates charged in the Las Vegas market for this kind of work. See Mayorga, 2023 WL 25 2020075, at *7 (finding fees of $850, $500, and $350 reasonable) (collecting cases); Scott v. Smith’s 26 Food & Drug Centers, Inc., 2020 WL 343642, at *2 (D. Nev. Jan. 21, 2020) (collecting cases); see also 11 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 12 of 16 1 PharMerica Mountain, LLC v. RCSRP Corp., 2022 WL 594554, at *2 (D. Nev. Feb. 28, 2022); Newmark 2 Grp., Inc. v. Avison Young (Canada) Inc., 2022 WL 990640, at *1 (D. Nev. Apr. 1, 2022). 3 Accordingly, the court awards Local 165 $93,030 in attorneys’ fees, and $2,892 in costs 4 incurred for defending this case after March of 2021. 5 b. 6 The Cromwell defendants likewise seek an award of attorneys’ fees and costs under The Cromwell defendants’ motion. 7 § 1927 and the court’s inherent power. ECF No. 142-1. They contend that Mcavoyamaya’s 8 “misguided conduct began with his decision to assert seven different causes of action against 9 The Cromwell with no persuasive facts or law to support the claims.” Id. at 6. The nature of his 10 sanctionable conduct as to the Cromwell defendants is more pervasive and ongoing than his 11 pursuit of the duty-of-fair-representation claim against Local 165. The Cromwell defendants 12 urge that because of Mcavoyamaya’s unsupported allegations in his briefs and his 13 misrepresentations and “outright dishonesty” at the summary-judgment hearing, “if ever there 14 was a case in which a defendant should recover their fees, this is it.” Id. at 7. They seek an award 15 of $172,538.33 in fees and $13,940.10 in costs. Id. at 20–21. Alternatively, they seek $45,470 in 16 accrued fees related to the summary-judgment motions. Id. at 21. They provide the required 17 itemized list of fees and costs accrued in this case. ECF No. 142-4; ECF No. 142-5. Mcavoyamaya 18 reiterates many of the same arguments that he raises in opposition to Local 165’s motion, 19 contending that he did not multiply the proceedings; there is no particularized showing of bad 20 faith; the request for fees is itself made in bad faith and is not connected to the offending 21 conduct; and the motion is untimely. ECF No. 143 at 5–23. To the extent that he raises the same 22 objections to the Cromwell defendants’ motions, my rulings, supra, stand. 23 24 1. Mcavoyamaya acted in bad faith at the summary-judgment stage. The Cromwell defendants take the position that Mcavoyamaya maintained the entire 25 action in bad faith and that he opposed their motion for summary judgment in bad faith. ECF 26 No. 142-1 at 13–17. They contend that “the undisputed facts confirmed that [Lall] was terminated 12 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 13 of 16 1 for violating The Cromwell’s cash handling policy four times in her last nine months of 2 employment” and that her accusations of discrimination and retaliation were “entirely 3 unsupported by the evidence.” Id. at 7–8. The basis for many of the Cromwell defendants’ 4 allegations of bad faith is the hearing at which Mcavoyamaya was unprepared and made several 5 misrepresentations of law and fact to the court. ECF No. 131. They contend that even if 6 Mcavoyamaya brought this case in good faith, “‘[b]ad faith’ may be found, not only in the actions 7 that led to the lawsuit, but also in the conduct of the litigation.” ECF No. 142-1 at 13. They point 8 to at least four of the Nevada Rules of Professional Conduct that Mcavoyamaya violated: (1) 9 competence, (2) meritorious claims and contentions, (3) candor toward the tribunal, and (4) 10 misconduct. Id. at 15 n.1. And finally, they characterize his litigation tactics as “designed to 11 thwart a fair determination of straightforward legal issues, creating a bewildering and 12 ambiguous record and violat[ing] several rules regarding legal procedure and professional 13 conduct. Id. at 16 (citing ECF No. 118 at 2). 14 Although the Cromwell defendants classify Mcavoyamaya’s conduct in this entire case as 15 bad faith, I disagree. It is often difficult to determine at such an early stage whether a client’s 16 claims have merit, and the deficiencies of such claims often do not appear until at least some 17 discovery has been conducted. Because the Cromwell defendants present no evidence that 18 Mcavoyamaya acted in bad faith in bringing this case, I consider only the narrower request 19 related to his conduct leading up to and at summary judgment. As argued by the Cromwell in its 20 motion, Mcavoyamaya should have withdrawn the FLMA claim for relief well before summary 21 judgment. EFC No. 142-1 at 9. I agree. Mcavoyamaya’s failure to notify the court or the 22 defendants of his intent to drop the FMLA claim until the March 10, 2023 hearing, despite 23 defendants having raised the claim in their summary judgment motions is, simply put, egregious. 24 See ECF Nos. 73, 94, 117. 25 At the Sanctions hearing, I asked the Cromwell to cite Mcavoyamaya’s specific 26 transgressions to support their motion. They responded that Mcavoyamaya: (1) had knowledge 13 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 14 of 16 1 as early as the motion to dismiss stage that Lall had failed to exhaust her administrative 2 remedies, (2) raised new arguments in the reply briefing, argued for the first time at the 3 summary judgment hearing (specifically, the “continuing violation” argument), and (3) made 4 misleading or inaccurate representations 16 about the evidence at the summary judgment hearing. 5 The Cromwell also alleged that on more than one occasion, Mcavoyamaya failed to answer 6 direct questions from the court 17 and engaged in “gaslight[ing].” 7 While the Cromwell cited one misrepresentation made by Mcavoyamaya during the 8 Sanctions hearing, the court can recall others. For example, Mcavoyamaya made 9 misrepresentations about an e-mail from Lall’s supervisor. At the summary judgment hearing, 10 Mcavoyamaya argued to the court that there was an e-mail showing that a Cromwell employee 11 was “going to accuse [Lall] of drug use,” suggesting it was documentary evidence of harassment 12 and bad behavior, thus supporting her bringing this case. The court re-reviewed the e-mail 13 Mcavoyamaya was referencing in making that argument in open court. 18 Upon completion, I 14 asked Mcavoyamaya where in the e-mail it stated that the employee was going to accuse Lall of 15 drug use. He responded that it “was in that e-email,” which was simply untrue. What the e-mail 16 actually discussed was the possibility of drug testing Lall given the particular symptoms she was 17 exhibiting. The e-mail did not state that the Cromwell (or its employee) was going to accuse 18 Lall of drug abuse. In making this misleading argument, Mcavoyamaya also failed to account for 19 other e-mails showing Lall’s supervisors’ attempts to accommodate her or minimize potential 20 risk to her health and others at the property given her symptoms (i.e., seizures). 21 16 The Cromwell referenced Mcavoyamaya’s representation at the summary judgment hearing of a (non- 22 existent) “order” allowing the late filing of Lall’s Equal Employment Opportunity Commission charge. I did not need to look hard for an example of Mcavoyamaya’s failure to answer questions from the court. During the Sanctions hearing, I twice asked him where in his opposition to the motions seeking 24 fees and costs did he specifically challenge defendants’ requests. He did not answer my question either time. Rather, he argued—carte blanche—that neither side should be able to recover any fees because there was no bad faith on his part. 25 23 17 18 Counsel for the Union provided the court with a copy of the e-mail as Mcavoyamaya was unprepared 26 to provide a copy to the court or cite to the email on the record so the court could bring it up electronically. 14 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 15 of 16 1 As an example of Mcavoyamaya making misleading or inaccurate representations to the 2 court, I asked Mcavoyamaya on what he was relying to argue that declarations might not be 3 “even permissible” for 30(b)(6) witnesses. ECF No. 131 at 31. He responded in an unclear and 4 roundabout way that he did not know. Id. at 31–32. When asked why he would make an 5 argument to the court if he did not know if a declaration was sufficient, Mcavoyamaya stated— 6 without any authority—that the court was supposed to give more weight to testimony versus 7 declarations. Id. at 32–33. 8 I conclude that 1) Mcavoyamaya should have withdrawn his FMLA claim before the 9 summary-judgment hearing, 2) he should not have raised novel arguments for the first time in 10 reply briefs or at oral argument, and 3) he should not have made misrepresentations to the court 11 about the facts, evidence, or the law. Each of these discussed amounts to sanctionable conduct 12 by Mcavoyamaya, and I find that they each meet both the reckless and bad faith standard. 13 2. 14 The Cromwell defendants seek reasonable hourly rates. The Cromwell defendants address the factors required by the local rules when moving 15 for attorneys’ fees. ECF No. 142-1 at 19–26. They seek to recover for 127.6 hours of work related 16 to summary judgment (ECF No. 142-5), and they indicate that their counsels’ hourly rates are 17 $405 (Godoy), $325 (Tantoy), and $350 (Benedict), and their paralegals’ hourly rates are $125. 18 ECF No. 142-1 at 22–23. I conclude the same as to these rates as I did for Local 165’s—they are 19 reasonable and commensurate with rates charged for similar work in this legal market. 19 See 20 supra section II, a, 2. 21 I find that the Cromwell provides sufficient information on which I can base an award of 22 attorneys’ fees for its work related to summary judgment. It discusses the qualifications of the 23 attorneys and addresses all the relevant factors under the local rules. Accordingly, the court 24 awards the Cromwell $45,470 in attorneys’ fees. The Cromwell did not provide clear 25 26 19 Mcavoyamaya is also silent as to the reasonableness of the Cromwell’s hourly rates. 15 Case 2:20-cv-01287-CDS-NJK Document 155 Filed 09/21/23 Page 16 of 16 1 information regarding costs related only to the summary judgment proceedings and therefore, I 2 defer issuing costs. If the Cromwell seeks to recover costs related to the summary judgment 3 motions, they must submit updated cost information within 14 days of today’s order. 4 III. Conclusion 5 IT IS THEREFORE ORDERED that Local 165’s motion for attorneys’ fees [ECF No. 141] 6 is GRANTED in part: Local 165 is awarded fees of $93,030 in attorneys’ fees, and $2,892 in 7 costs, against Michael Mcavoyamaya, personally. 8 IT IS FURTHER ORDERED that the Cromwell defendants’ motion for attorneys’ fees 9 [ECF No. 142] is GRANTED in part: the Cromwell defendants are awarded fees of $45,470, 10 against Michael Mcavoyamaya, personally. The Court defers any order of costs as set forth in 11 this order. If the Cromwell seeks to recover costs, it must submit a separate brief detailing the 12 amount it seeks to recover within 14 days of this order. Mcavoyamaya may file a response within 13 14 days of the brief being filed. No reply is needed at this time. 14 DATED: September 21, 2023 15 16 _________________________________ Cristina D. Silva United States District Judge 17 18 19 20 21 22 23 24 25 26 16
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