Beach v. Wal-Mart Stores, Inc., No. 3:2011cv00007 - Document 92 (D. Nev. 2013)
Court Description: ORDER GRANTING in part and DENYING in part Defendant's 74 Motion for Attorney Fees. It is DENIED as to the request for expert witness fees and other nontaxable costs. It is GRANTED as to the request for attorney's fees, which are hereby awarded in the amount of $32,754.50. Signed by Judge Howard D. McKibben on 07/23/2013. (Copies have been distributed pursuant to the NEF - KR)
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Beach v. Wal-Mart Stores, Inc. Doc. 92 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 12 13 14 15 16 ) ) ) Plaintiff, ) ) vs. ) ) WAL-MART STORES, INC., ) ) Defendant. _________________________________ ) SHALIMAR BEACH, 3:11-cv-00007-HDM-VPC ORDER 17 Before the court is the defendant Wal-Mart’s (“defendant”) 18 motion for attorney’s fees and nontaxable costs (#74). Plaintiff 19 Shalimar Beach (“plaintiff”) has opposed (#75), and defendant has 20 replied (#79). Pursuant to order of the court, the parties have 21 filed supplemental briefs addressing the impact of the Ninth 22 Circuit’s decision in Goldberg v. Pacific Indemnity Company, 627 23 F.3d 752 (9th Cir. 2010) on defendant’s request for nontaxable 24 costs (#84, #89). 25 Plaintiff’s complaint, which asserted a single claim of 26 negligence against defendant, was filed in state court on December 27 3, 2010, and removed to this court on January 5, 2011. On May 23, 28 1 Dockets.Justia.com 1 2012, defendant made plaintiff an offer of judgment in the amount 2 of One Hundred Thousand and One dollars ($100,001.00). 3 was made pursuant to Nevada Revised Statute § 17.115 and Federal 4 Rule of Civil Procedure 68. 5 Plaintiff rejected the offer. (Def. Mot. Attorney’s Fees Ex. 1). (Def. Reply Ex. 4). On October 30, 2012, trial commenced. 6 The offer On November 1, 2012, 7 the jury found in favor of the defendant and against the plaintiff. 8 Judgment was filed on November 1, 2013, and entered on November 6, 9 2012. On November 15, 2012, defendant filed the instant motion for 10 attorneys’ fees and nontaxable costs. 11 and paralegal fees in the amount of Thirty-Nine Thousand, Three 12 Hundred Fifty-Six dollars ($39,356.00),1 incurred from the date of 13 its offer of judgment to the date of entry of judgment, and other 14 nontaxable costs in the amount of Thirty-Six Thousand Three-Hundred 15 Twenty-Five Dollars and Twenty Eight Cents ($36,325.28). 16 I. Attorneys’ Fees 17 Defendant seek attorneys’ Defendant bases its claim for attorney’s fees on Federal Rule 18 of Civil Procedure 54(d)(2), Nevada Rule of Civil Procedure 68, and 19 Nevada Revised Statutes § 17.115. 20 Federal Rule of Civil Procedure 54(d)(2) sets forth the 21 procedure for obtaining an award of attorneys’ fees in federal 22 court. 23 such an award. 24 statute, or contract that authorizes such an award. 25 Commc’ns, Inc. v. Am. Tel & Tel. Co., 197 F.3d 1276, 1281 (9th Cir. 26 1999). It does not, however, provide the substantive basis for Fees are recoverable only if there is a rule, See MRO 27 28 1 Defendant originally sought $41,628.00 but subsequently lowered its request to remove fees incurred after November 6, 2012. 2 1 A motion under Rule 54(d)(2) must identify the basis for the 2 requested award. Here, defendant identifies Nevada Revised 3 Statutes § 17.115.2 4 more than 10 days before trial, any party may serve upon one or 5 more other parties a written offer to allow judgment to be taken in 6 accordance with the terms and conditions of the offer of judgment.” 7 Id. § 17.115(1). 8 to obtain a more favorable judgment, the court may order that party 9 to pay the offeror’s “[r]easonable attorney’s fees incurred by the Section 17.115 provides that “[a]t any time If a party rejects an offer of judgment and fails 10 [offeror] for the period from the date of service of the offer to 11 the date of entry of the judgment.” 12 Id. § 17.115(4)(d)(3). Where, as here, the “court is exercising its subject matter 13 jurisdiction over a state law claim,” a party may recover 14 attorneys’ fees under state law giving a right thereto if the law 15 “reflects a substantial policy of the state” and “does not run 16 counter to a valid federal statute or rule of court.” 17 Commc’ns, 197 F.3d at 1281 (quoting Alyeska Pipeline Serv. Co. v. 18 Wilderness Soc’y, 421 U.S. 240, 259 n.31 (1975)). 19 See MRO The controlling case applicable to the facts of this case is In that case, the Ninth Circuit held that 20 MRO Communications. 21 under Federal Rule of Civil Procedure 54(d)(2), a prevailing 22 defendant could recover attorney’s fees incurred after a rejected 23 offer of judgment made pursuant to Nevada state law. 24 defendant made an offer of judgment pursuant to Nev. Rev. Stat. § 25 17.115. Id. Here, Defendant made its offer of judgment more than ten days 26 27 28 2 While defendant also identifies Nevada Rule of Civil Procedure 68, its offer of judgment was not made pursuant to that rule. It is therefore not a basis for an award in this case. 3 1 before trial. 2 more favorable judgment. 3 § 17.115, the defendant may recover reasonable attorney’s fees. 4 5 6 Plaintiff rejected the offer but failed to obtain a Accordingly, under MRO Communications and Even so, plaintiff asserts several reasons why she believes an award of attorney’s fees in this case would be improper. First, plaintiff argues that fees may only be awarded where 7 the complaint was frivolous, groundless, or brought to harass. 8 However, the case cited by plaintiff for this proposition – Bobby 9 Berosini, Ltd. v. People for the Ethical Treatment of Animals, 971 10 P.2d 383, 386-87 (Nev. 1998) – involved an award of fees under 11 Nevada Revised Statues § 18.010, which authorizes a court to award 12 attorney’s fees when a claim “was brought without reasonable ground 13 or to harass the prevailing party.” 14 inapplicable here, where the award of attorney’s fees is based on 15 Nevada Revised Statutes § 17.115. 16 As such, the case is Second, plaintiff objects to an award of fees because defense 17 counsel has not disclosed his fee agreement with Wal-Mart. 18 Defense counsel argues that the fee agreement is protected by 19 attorney-client privilege but represents the rates set forth in the 20 motion for attorney’s fees are the rates actually charged to and 21 agreed to be paid by the defendant. 22 ¶ 23)). 23 defendant’s fee agreement before an award of fees. 24 has represented that the rates are accurate, and the court finds 25 the rates do not exceed the reasonable, customary rate in this 26 community. (Def. Reply Ex. 1 (Kent. Decl. Plaintiff cites no law requiring disclosure of the Defense counsel 27 Third, plaintiff appears to argue that because defendant 28 declined plaintiff’s request to later settle the case for the 4 1 offer-of-judgment amount that any award of fees is not merited. 2 Plaintiff did not accept defendant’s formal offer to settle the 3 case for $100,001.00 before it expired. 4 until the eve of trial to attempt to accept the offer. 5 time, the defendant had incurred a substantial amount in fees to 6 prepare for trial and had no obligation to submit another offer of 7 settlement. 8 9 Further, plaintiff waited By that Finally, plaintiff asserts that fees should be denied because defendant did not identify a federal rule allowing recovery of 10 attorney’s fees. Defendant identified Federal Rule of Civil 11 Procedure 54(d)(2), which in conjunction with the offer-of-judgment 12 made pursuant to Nevada Revised Statutes § 17.115 provides a basis 13 for recovery in this case. 14 Under MRO Communications and § 17.115, the defendant may 15 recover reasonable attorney’s fees subject to the court’s 16 considerations of the factors set forth in Beattie v. Thomas, 668 17 P.2d 268, 274 (Nev. 1983). 18 any or all of the offeror’s attorneys’ fees incurred after service 19 of the offer. 20 four factors: (1) whether the plaintiffs’ claim was brought in good 21 faith; (2) whether the defendant’s offer of judgment was reasonable 22 and in good faith in both its timing and amount; (3) whether the 23 plaintiffs’ decision to reject the offer and proceed to trial was 24 grossly unreasonable or in bad faith; and (4) whether the fees 25 sought by the offeror are reasonable and justified in amount. 26 see also RTTC Commc’ns, LLC v. Saratoga Flier, Inc., 110 P.3d 24, 27 28 (Nev. 2005). 28 plaintiff’s claim was brought in good faith and the plaintiff did Id. The court has the discretion to allow In fashioning an award, the court must consider Id.; An award of fees may be proper even where the 5 1 not act unreasonably in rejecting the offer of judgment. 2 110 P.3d at 29-30. 3 See RTTC, Plaintiff brought her claim to recover damages for injuries 4 suffered after slipping and falling in a puddle of water on 5 defendant’s premises. 6 brought in good faith. 7 The court finds plaintiff’s claim was The defendant made its offer of judgment after discovery had 8 closed but months before the trial date. This timing allowed 9 plaintiff to consider the offer in light of the evidentiary 10 strength of her claim before having to engage in much costly and 11 time-consuming trial preparation. 12 reasonable in timing. 13 plaintiff’s claimed medical damages and lost wages exceeded 14 $100,001, the offer was reasonable given the weaknesses defendant 15 perceived in plaintiff’s case,3 including the lack of evidence that 16 defendant was aware of or caused the water spill and its expert’s 17 opinion that a mere five percent of plaintiff’s claimed medical 18 damages could be attributed to the fall. 19 20 21 22 23 The offer was therefore While at the time defendant made its offer For the same reason, plaintiff’s decision to reject the offer and proceed to trial was unreasonable, although not grossly so. Finally, the fees sought are for the most part reasonable and justified, as discussed further below. On balance the court concludes the defendant is entitled to an 24 25 26 27 28 3 Plaintiff argues that the offer was unreasonable because defendant later refused to settle for $100,000.00 and repeatedly declined to attend a settlement conference with plaintiff. Plaintiff also argues that the offer was just one part of ongoing settlement negotiations so her rejection of the $100,000 was not unreasonable. The court finds these assertions irrelevant to determining whether the offer made by defendant was reasonable. 6 1 2 award of its reasonable attorney’s fees. The first step in determining an attorney’s fee award is to 3 calculate the “lodestar.” Candle v. Bristow Optical Co., Inc., 224 4 F.3d 1014, 1028 (9th Cir. 2000). 5 multiplying the number of hours the prevailing party reasonably 6 expended on the litigation by a reasonable hourly rate. 7 most cases, the lodestar is presumptively a reasonable fee award. 8 Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 9 2001). The lodestar is reached by In Id. However, if the circumstances warrant, the court may 10 “adjust the lodestar to account for other factors that are not 11 subsumed within it.” 12 13 14 15 16 17 Id. Those factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 18 19 Cairns v. Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir. 2002) 20 (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th 21 Cir. 1975)). 22 called into question by the case at hand and necessary to support 23 the reasonableness of the fee award.” 24 hours to be included in the lodestar, the court should exclude 25 hours that are “excessive, redundant, or otherwise unnecessary.” 26 McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009). The court need not consider all factors – “only those Id. In determining the 27 In this case, the defendant seeks $145 per hour for lead 28 counsel Stephen Kent, $135 per hour for associate counsel Shannon 7 1 Parke, and $90 per hour for paralegal Sherril Metcalf. The court 2 concludes these are reasonable hourly rates well within the range 3 of customary hourly charges in this locality. The defendant seeks compensation for 118.7 hours by Mr. Kent, 4 5 127.8 hours by Ms. Parke and 79.6 hours by Ms. Metcalf. 6 determining whether the hours sought are reasonable, the court 7 considers the plaintiff’s several specific objections. 8 1. 7/19/12: Research federal procedural rules, setting order, and local rules and prepare memorandum of pre-trial 9 dead lines – 1.8 hours 10 11 In 10/16/12: Legal research on cases indicating “mere happening” 12 instruction is no longer good law; note 13 distinguishing facts in analysis of law in premises 14 liability context – 1.5 hours 15 10/23/12: Legal research and legal requirements for the pretrial brief – .5 hours 16 17 Plaintiff objects to these charges incurred by Ms. Parke on 18 that grounds that Mr. Kent, who has represented Wal-Mart for 20 19 years, should have been well-versed in federal court procedures and 20 could have shared that knowledge with Ms. Parke. 21 provides no specific basis for objecting to the “mere happening” 22 jury instruction research. 23 of procedural rules is always necessary as rules are often 24 changing, and that research of the “mere happening” instruction was 25 necessitated by plaintiff’s own motion in limine challenging its 26 inclusion. Plaintiff Defense counsel responds that research The court finds these charges reasonable and necessary. 27 28 8 1 2. 7/24-12 to 11/1/12: Various charges relating to 2 compilation and redaction of exhibits 3 – 58.4 hours Plaintiff objects to several of these charges as unreasonable 4 5 and/or duplicative. First, plaintiff asserts that defendant’s assembly of her 6 7 medical files into exhibits was duplicative because she had 8 included her entire relevant medical file in her proposed exhibits, 9 which she gave to defense counsel a week before trial. Second, she 10 asserts that the charges for redacting defendant’s exhibits were 11 unreasonable because defense counsel repeatedly failed to redact 12 portions that plaintiff’s counsel had already asked to be redacted, 13 requiring multiple revisions instead of just one. 14 objects to charges for assembling exhibits that were deemed 15 unrelated and thus inadmissible. 16 total number of hours spent on exhibits as excessive. Third, plaintiff Finally, plaintiff objects to the Defendant responds that it could not rely on plaintiff’s 17 18 exhibits as she had extensively redacted them, including removal of 19 reference to items that defense counsel thought might be admissible 20 at trial. 21 necessitated by court rulings during trial, and that it was 22 impossible to know which exhibits would be admitted and which would 23 not. 24 the 58.4 hours of work is a gross oversimplification and that much 25 more work was conducted during than those hours than simply 26 compiling and redacting exhibits. 27 28 Further, it argues that the repeated redactions were Finally, defendant asserts that plaintiff’s representation of The court finds that – with one exception – the time spent by Ms. Metcalf from July 24, 2012 to August 1, 2012, to compile the 9 1 defendant’s exhibits was reasonable and necessary preparation for 2 trial. 3 entries for the addition of Carson Tahoe records to exhibit binders 4 on August 1, 2012. 5 by 0.3 hours attributable to Ms. Metcalf on August 1, 2012. 6 court rejects plaintiff’s objection to the inclusion of these 7 records at all. 8 plaintiff’s April 2009 visit to the emergency room after sticking 9 herself in the eye with a bamboo stick. However, defendant does not explain why there are two The court will therefore reduce the fee award The The Carson Tahoe records apparently related to While these records were 10 ultimately deemed inadmissible, defendant’s argument for their 11 inclusion was not completely frivolous. 12 is entitled to recover for the time spent to incorporate them into 13 the exhibit binders. Therefore, the defendant 14 The court finds that the time spent from October 23, 2012, to 15 November 1, 2012, to make copies of and redactions to the exhibits 16 should be discounted due to duplication and/or unnecessary multiple 17 revisions. 18 the extent of required redactions, but also recognizing that time 19 spent copying and redacting was increased by defendant’s inclusion 20 of many duplicative exhibits and arguments to leave unredacted many 21 documents that should have been redacted, the court finds it proper 22 to reduce the hours spent for copying and redacting by twenty-five 23 percent. 24 on October 23, 2012, 3.9 hours (SAM) and 2.9 hours (SAM) on October 25 24, 2102, 4.2 hours (SAM) on October 25, 2012, 3.4 hours (SAM) on 26 October 30, 2012, 1.6 hours (SKP), .4 hours (SKP), and 3.6 hours 27 (SAM) on October 31, 2012, and 3 hours (SAM) on November 1, 2012 – 28 will be reduced by twenty-five percent. Recognizing that there were ongoing issues regarding Therefore, the charges for those items – 2.4 hours (SAM) 10 The court finds the 1 remainder of the time spent during that period to be reasonable and 2 necessary. 3 3. 8/1/12: Read records obtained from Sutter Auburn Faith 4 Hospital pertaining to Plaintiff’s prior 5 hysterectomy – .4 hours 6 8/1/12: Discuss Sutter Auburn Faith records – .1 hours 7 Plaintiff objects to these charges because they involve 8 medical records unrelated to her damages in this case. Defendant 9 responds that a half hour to review and discuss whether plaintiff’s 10 hysterectomy records should be included is reasonable. 11 concludes that this time was reasonably spent evaluating 12 plaintiff’s medical records to determine if they were relevant to 13 the case. 14 4. 15 16 9/17/12 to 10/22/12: The court Focus Group Mock Trial Expenses – 33.1 hours4 Plaintiff objects to these charges because a mock trial is not 17 a reasonable and customary legal service. Defense counsel responds 18 that it had an obligation to be well prepared and receive an 19 independent evaluation of the case before trial. 20 persuaded by the defendant’s argument. 21 therefore be omitted from the attorney’s fee award: (1) 9/17/12 – 22 email about focus group; read response – .1 hours (SSK); (2) 23 9/21/12 – email about mock trial – .1 hours (SSK); (3) 9/25/12 – 24 begin drafting Beach’s mock trial case statement to show to focus 25 group – 3.7 hours (SKP); (4) 9/26/12 – continue work on Plaintiff’s 26 focus group case statement – 5.4 hours (SKP); (5) 9/27/12 – finish The court is not The following charges will 27 28 4 While plaintiff’s opposition objects to 28 hours, the line items she objects to total 33.1 hours. 11 1 drafting Plaintiff’s mock trial case statement for focus group – 2 5.1 hours (SKP); (6) 10/10/12 – work on mock trial opening 3 statement – 1.8 hours (SSK); (7) 10/11/12 – revise Plaintiff’s case 4 summary for focus group – .8 hours (SKP); (8) 10/11/12 – prepare 5 law and jury instructions for focus group – 2.2 hours (SKP); (9) 6 10/11/12 – work on and present opening statement for mock trial – 7 5.6 hours (SSK); (10) 10/15/12 – participate in mock trial – 3.6 8 hours (SSK); (11) 10/15/12 – attend and take notes on focus group 9 discussion and results – 2.7 hours (SKP); (12) 10/16/12 – email 10 report to Julie Gibbens about mock trial results – .9 hours (SSK); 11 (13) 10/19/12 – read mock trial report – .5 hours (SSK); (14) 12 10/22/12 – read focus group summary to discuss with Mr. Kent – .6 13 hours (SAM). 14 preparation of jury instructions and an opening statement, there 15 are other entries in the billing records for these items that are 16 reasonable and unrelated to the mock trial. 17 compensate for the same work twice. 18 5. 10/26/12: There is no reason to Take exhibits to court clerk at courthouse, discuss exhibits – 1.8 hours (SSK) 19 20 The court notes that while some of this time included Plaintiff objects to this charge as excessive because defense 21 counsel’s office is only three blocks from the courthouse and a 22 messenger could have provided the same service instead of Mr. Kent. 23 In addition, she argues, the charge is duplicative because Ms. 24 Metcalf spent half an hour discussing exhibits with the courtroom 25 deputy the day before. 26 reviewing, loading and taking the exhibits to the courthouse, 27 locating and waiting for the clerk, discussing the exhibits, and 28 returning. Defendant responds that this charge was for The court finds this expense reasonable and not 12 1 duplicative of Ms. Metcalf’s time. 2 who represented defendant at trial, it was reasonable and necessary 3 for him to spend time with the courtroom deputy discussing the 4 presentation of exhibits. 5 6. 10/26/12 to 10/29/12: As Mr. Kent was the attorney Time spent assembling information on 6 prospective jurors and preparing for 7 voir dire – 8.1 hours Plaintiff objects to these charges as an excessive and seeks a 8 9 fifty percent reduction. Defendant responds that voir dire 10 preparation is critical, and this time was reasonable. 11 concludes that the time spent preparing for voir dire was 12 reasonable and not excessive. 13 7. 11/5/12 to 11/6/12: The court Charges for researching and preparing 14 Bill of Costs and Motion for 15 Attorney’s Fees – 4.2 hours5 16 Plaintiff argues that because judgment should have been 17 entered the date the jury returned the verdict – November 1, 2012 – 18 defendant should not be allowed to recover any fees incurred 19 thereafter. 20 recover for what was standard post-trial work. 21 judgment should have been entered on the date the jury returned its 22 verdict, the court in its discretion will not allow fees incurred 23 after November 1, 2012. Defendant responds that it should be allowed to Because the Accordingly, these fees will be denied. 24 25 26 27 28 5 Plaintiff originally objected to all fees sought in connection with preparation of posttrial motions, which were incurred up to November 13, 2012. Defendant conceded that all fees incurred after the day judgment was entered cannot be recovered. This number reflects the request for fees incurred November 6, 2012, and earlier. 13 1 8. 7/24/12 to 9/19/12: Time spent preparing motions in limine – 12.5 hours 2 Plaintiff objects on the basis that defendant’s motion in 3 4 limine was “mainly stock or omnibus.” Defendant responds that the 5 time spent drafting seventeen motions in limine was reasonable and 6 a necessary part of pretrial preparation. 7 defendant’s motions in limine were primarily stock and many 8 requested relief that is clearly provided for in the Federal Rules 9 of Civil Procedure. The court finds that Accordingly, the court discounts the time 10 spent on defendant’s motion in limine by two-thirds. 11 spent by Mr. Kent will be reduced from 2.5 hours to 1.66 hours and 12 the time spent by Ms. Parke will be reduced from 10 hours to 6.67 13 hours. 14 9. 7/20/12: The time Compile list of witnesses with contact information 15 and a brief description of prior testimony and 16 statements – 2.5 hours (SKP) 17 7/24/12: Prepare list of documents disclosed to Plaintiff to 18 compare to list of documents identified in pretrial 19 order – 2.1 hours (SAM) 20 Plaintiff objects to this time as duplicative of work done 21 earlier in litigation, citing to defendant’s disclosures of 22 witnesses and documents and all supplements thereto. 23 Ex. 6). 24 information already disclosed, also included updating that 25 information to include any relevant testimony obtained during 26 discovery as to those witnesses. 27 charge reasonable. 28 essentially summarizing information already disclosed to the (Pl. Opp’n The court finds that the first charge, while summarizing Accordingly, the court finds this The court finds that the second charge was for 14 1 plaintiff, and as such the charge for 2.1 hours is excessive. 2 court will reduce this charge by fifty percent. 3 10. 8/30/12 to 9/27/12: Time spent creating a special damages chart – 9.3 hours 4 5 The Plaintiff objects on the grounds that 9.3 hours was an 6 excessive amount of time to compile a chart consisting of 7 relatively few medical expenses as well as information about 8 insurance that was inadmissible. 9 considerable time was required to sort through plaintiff’s medical Defendant responds that 10 bills to determine which were attributable to her slip-and-fall. 11 It also argues that the insurance information was relevant because 12 defendant should not have had to pay more in damages than 13 plaintiff’s insurance actually paid out. 14 charge reasonable and denies plaintiff’s objection to such. 15 11. 8/30/12 to 10/26/12: Charges for working on jury instructions – 7.7 hours 16 17 The court finds this Plaintiff argues that this time is excessive because most of 18 defendant’s proposed instructions were stock and counsel also spent 19 time researching an assumption of the risk instruction that the 20 court ultimately concluded did not apply. 21 that the time spent by SKP (4.3 hours) be denied. 22 Plaintiff requests only Defendant responds that preparation of jury instructions is a 23 time consuming but important task, that the law is always changing, 24 and that there are many things the parties need to consider in 25 assembling their instructions. 26 27 The court finds this charge reasonable and denies plaintiff’s objection to such. 28 15 1 12. 10/23/12: Prepare request for leave to file reply – 2 hours 2 10/25/12: Revise motion for leave to file reply and reply in 3 support of motion in limine II – .9 hours 4 Plaintiff objects to these charges as replies are not allowed 5 to motions in limine. Defendant responds that it was required to 6 prepare a request for leave to file the reply precisely because 7 replies are not typically allowed, and that a reply was 8 necessitated here by new information raised by plaintiff during the 9 pretrial conference. The court finds these charges reasonable and 10 denies plaintiff’s objection to such. 11 13. 11/6/12: hours 12 13 14 15 16 Expenses incurred the day judgment was entered – 1.2 As discussed above, the court declines to award these expenses. Accordingly, based on these adjustments, the court calculates the lodestar as follows: 17 102.5 hours at $145/hour: $14,862.50 18 88 hours at $135/hour: $11,880.00 19 66.8 hours at $90/hour: $6,012.00 20 _________________________________________ 21 Total: 22 The court does not find reason to adjust the lodestar up or $32,754.50 23 down based on any of the factors. 24 and customary and if anything below market, and defense counsel 25 obtained a very favorable result. 26 motion for attorney’s fees is GRANTED in the amount of $32,754.50. 27 28 16 The fees sought were reasonable Accordingly, the defendant’s 1 2 II. Nontaxable Expenses Defendant seeks $27,494.86 in expert witness fees, $300.00 in 3 “witness location investigation” fees, and $8,531.42 in “mock 4 trial/focus group” expenses. 5 Revised Statutes §§ 17.115, 18.020, and 18.005. 6 Defendant bases its request on Nevada In actions brought to recover more than $2,500, Nevada law 7 allows recovery of up to $1,500 per expert witness “unless the 8 court allows a larger fee after determining that the circumstances 9 surrounding the expert’s testimony were of such necessity as to 10 require the larger fee,” § 18.005(5), and “[a]ny other reasonable 11 and necessary expense incurred in connection with the action,” § 12 18.005(17). 13 rejected an offer of judgment made pursuant to § 17.115 but has 14 failed to obtain a more favorable judgment, Nevada law allows the 15 court to order payment of the defendant’s reasonable expert witness 16 costs. Nev. Rev. Stat. § 17.115(4)(d)(1). Nev. Rev. Stat. § 18.020(3). Where a plaintiff has 17 Where a statute authorizes an award of reasonable attorney’s 18 fees to a prevailing party, the court has the discretion to award 19 reasonable out-of-pocket litigation expenses as part of the 20 attorney’s fee award “when it is the prevailing practice in a given 21 community for lawyers to bill those costs separate from their 22 hourly rates.” 23 577, 579-82 (9th Cir. 2010). 24 like expert fees, have by tradition and statute been treated as a 25 category of expenses distinct from attorney’s fees.” 26 the Constr. Indus. & Laborers Health & Welfare Trust v. Redland 27 Ins. Co., 460 F.3d 1253, 28 made any showing it is the prevailing practice in this community Grove v. Wells Fargo Fin. Calif., Inc., 606 F.3d These “do not include costs that, 1258 (9th Cir. 2006). 17 Trustees of Defendant has not 1 for lawyers to bill mock trial expenses or witness location 2 investigation fees costs separate from their hourly rates. 3 Grove, 606 F.3d at 579-82; see also Secalt S.A. v. Wuxi Shenxi 4 Constr. Mach. Co., Ltd., 668 F.3d 677, 690 (9th Cir. 2012) (finding 5 abuse of discretion in awarding nontaxable expenses as part of 6 attorney’s fee award where no finding made that it was the 7 prevailing practice in the local community to charge such costs 8 separately from attorneys’ fees). 9 expense to be a reasonable litigation cost that should be See Further, the court finds neither 10 compensated. 11 have not been shown to be reasonable and customary litigation 12 expenses. 13 its former employee Rachel Davis’ contact information. 14 Davis left her employment with defendant before the trial in this 15 matter, defendant was on notice that she was a potential witness in 16 this case before she left. 17 track Davis down after defendant failed to maintain Davis’ contact 18 information should not be shifted to plaintiff. 19 reasons, to the extent these items are recoverable under Nevada 20 Revised Statutes § 18.005(17) and § 18.020(3), the court finds 21 neither to be a reasonable and necessary litigation expense. 22 request for mock trial expenses and witness location investigation 23 fees is therefore DENIED. 24 As discussed above, defendant’s mock trial expenses Further, defendant has not explained why it did not have Although The fees for a private investigator to For the same The The award of expert witness fees in federal court is a 25 procedural matter controlled by federal statute. 26 Allstate Ins. Co., 68 F.3d 1160, 1168 (9th Cir. 1995) (“[F]ederal 27 law should control the reimbursement of expert witnesses in federal 28 courts sitting in diversity jurisdiction.”); see also First Nat’l 18 See Aceves v. 1 Mortgage Co. v. Fed. Realty Inv. Trust, 631 F.3d 1058, 1070-71 (9th 2 Cir. 2011). 3 fees paid to its own expert witnesses, a federal court is bound by 4 the limit of § 1821(b), absent contract or explicit statutory 5 authority to the contrary.” 6 Inc., 482 U.S. 437, 439 (1987); see also Tracy v. Am. Family Mutual 7 Ins. Co., 2010 WL 5477751, at *8-9 (D. Nev. 2010) (diversity action 8 in which the court granted expert witness fees subject to the limit 9 of § 1821(b)). “[W]hen a prevailing party seeks reimbursement for Crawford Fitting Co. v. J.T. Gibbons, Therefore, § 1821(b) controls to the exclusion of 10 Nevada cost provisions authorizing higher expert witness fees. Nor 11 does Nevada’s offer-of-judgment statute provide a basis for 12 awarding fees beyond those provided for in § 1821(b). 13 Circuit has held that where a state offer-of-judgment statute 14 purports to grant the right to recover expert witness fees, and the 15 policies underlying the state statute “are sufficiently coextensive 16 with the asserted purposes of” Federal Rule 68 “to indicate that 17 the Federal Rule occupies the state rule’s field of operation, then 18 the two rules are in direct conflict and the Federal Rule precludes 19 the state rule’s application in federal diversity actions.” 20 Goldberg, 627 F.3d at 755-58 (internal punctuation omitted). 21 Goldberg involved Arizona Rule of Civil Procedure 68, an offer-of- 22 judgment rule allowing recovery of double costs and expert witness 23 fees, the court concludes there is no material difference between 24 Arizona Rule 68 and Nev. Rev. Stat. § 17.115(4)(d)(1) in their 25 purpose or application. 26 132 P.3d 1022, 1029 (Nev. 2006) (noting the purpose of § 17.115 is 27 “to save time and money for the court system, the parties, and the 28 taxpayer”); John W. Muije, Ltd. v. A N. Las Vegas Cab Co., Inc., The Ninth While See Albios v. Horizon Communities, Inc., 19 1 799 P.2d 559, 561 (Nev. 1990) (“The purpose of [§] 17.115 is to 2 promote settlement of suits by rewarding defendants who make 3 reasonable offers and penalizing plaintiffs who refuse to accept 4 them.”). 5 fees is limited to those provided for by 28 U.S.C. § 1821(b). 6 Defendant did not seek these fees in its bill of costs. 7 defendant’s motion for expert witness fees is therefore DENIED. 8 Conclusion Accordingly, the defendant’s recovery of expert witness The 9 The defendant’s motion for attorney’s fees and other 10 nontaxable costs (#74) is GRANTED IN PART and DENIED IN PART. 11 is DENIED as to the request for expert witness fees and other 12 nontaxable costs. 13 fees, which are hereby awarded in the amount of $32,754.50. It is GRANTED as to the request for attorney’s 14 IT IS SO ORDERED. 15 DATED: This 23rd day of July, 2013. 16 17 It ____________________________ UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 20
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