ProLogis NA3 NV II, LLC v. IGT, Inc., No. 3:2011cv00346 - Document 104 (D. Nev. 2014)

Court Description: ORDER granting 98 Motion for Attorney Fees. Plaintiff is awarded a total of $391,996.48. Signed by Judge Howard D. McKibben on 6/6/2014. (Copies have been distributed pursuant to the NEF - KR)
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ProLogis NA3 NV II, LLC v. IGT, Inc. Doc. 104 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) IGT, INC., ) ) Defendant. _________________________________ ) PROLOGIS NA3 NV II, LLC, 3:11-cv-00346-HDM-WGC ORDER 16 Before the court is the plaintiff Prologis NA3 NV II, LLC’s 17 (“Prologis”) motion for attorneys’ fees and non-taxable litigation 18 expenses (Doc. #98). The defendant IGT, Inc. (“IGT”) has opposed 19 (Doc. #99) and the plaintiff has replied (Doc. #103). On the same 20 day Prologis submitted its motion, it also filed a Bill of Costs 21 (Doc. #97). IGT did not object to the bill of costs, and the Clerk 22 of Court then taxed costs against IGT (Doc. #102). 23 This matter commenced on May 13, 2011 when Prologis filed a 24 complaint against IGT, claiming that IGT owed Prologis damages for 25 breach of a lease agreement made between the parties. (See 26 generally Complaint, Doc. #1). The matter proceeded to a bench trial on November 18-20, 2013. (See Doc. ##85, 88, 89.) 27 The court 28 1 1 then issued a judgment in favor of the plaintiff on January 29, 2 2014, awarding Prologis damages for breach of contract in the 3 amount of $2,531,299.00. (Doc #96 at 1.) 4 In its “Findings of Fact and Conclusions of Law” (Doc. #95 at 5 26 (“Decision”)), the court found that “Prologis is entitled to an 6 award of costs and attorneys’ fees as the prevailing party in 7 accordance with the provisions of Section 22 in the lease.” 8 The court ordered that Prologis shall submit to the court its bill of costs and affidavits in support of reasonable attorneys’ fees on or before March 1, 2014. The Clerk of Court will then tax costs. Any objection to the taxation of costs shall be filed within 20 days of the taxation of costs by the Clerk. Any objections to Prologis’ request for attorneys’ fees shall be filed within 20 days after the filing of Prologis’ request for fees. 9 10 11 12 13 14 Id. Id. Prologis then filed the instant motion on February 28, 2014. 15 On the same day, it filed a bill of costs. IGT filed no objection 16 to Prologis’ bill of costs, and the Clerk of Court taxed costs in 17 the amount of $6,123.27 against IGT on April 7, 2014. 18 responded to Prologis’ motion on March 20, 2014, and Prologis 19 replied on April 7, 2014. 20 attorneys’ fees and $29,534.41 in non-taxable, out-of-pocket 21 litigation costs, for a total of $402,800.41.1 22 STANDARD IGT then Prologis has requested $373,266.00 in 23 24 1 25 26 27 28 Prologis initially requested a total award of $390,766.93, comprised of $361.333.80 in attorneys’ fees and $29,433.13 in non-taxable litigation costs. However, Prologis stated in its motion that it would “update [its request] with fees and costs which are incurred through the date of Prologis’ reply on this motion.” (P. Mot. 18 n.13.) In its reply, Prologis then increased its attorneys’ fee award request by $11,932.20 and litigation expenses by $101.28 to account for additional fees and expenses accumulated after filing the motion. (P. Reply 5 n.4, 6, 6 n.5.) 2 1 Federal Rule of Civil Procedure 54(d)(2) sets forth the 2 procedure for obtaining an award of attorneys’ fees in federal 3 court. 4 such an award. 5 F.3d 1276, 1281 (9th Cir. 1999). 6 is based on diversity, the court must apply state law in 7 determining whether an award of attorneys’ fees is allowed. 8 Life Assurance Co. v. LaPeter, 563 F.3d 837, 847 (9th Cir. 2009). 9 In Nevada, a court may award attorneys’ fees to a prevailing party It does not, however, provide the substantive basis for See MRO Commc’ns, Inc. v. Am. Tel. & Tel. Co., 197 Because jurisdiction in this case Canada 10 if authorized by statute, rule, or contract. 11 Sons, Inc. v. Smith & Harmer, Ltd., 124 Nev. 1206, 1220 (Nev. 12 2008). 13 Prologis is entitled to an award of costs and attorneys’ fees as 14 the prevailing party in accordance with various provisions of 15 Section 22 of the lease between the parties. 16 Frank Settlmeyer & In the instant action, the court has already found that (Doc. #95 at ¶ 32.) Once it has been established that a party is entitled to an 17 award of attorneys’ fees, the court must determine what fee is 18 “reasonable.” 19 determine a reasonable fee award, the court must begin by 20 calculating the “lodestar.” 21 224 F.3d 1014, 1028 (9th Cir. 2000). 22 by multiplying the number of hours the prevailing party reasonably 23 expended on the litigation by a reasonable hourly rate.” 24 (quoting Morales v. City Rafael, 96 F.3d 359, 363 (9th Cir. 1996). 25 Reasonable hourly rates “are to be calculated according to 26 prevailing market rates in the relevant community.” 27 Stenson, 465 U.S. 886, 895 (1984). 28 the court must “assess[] whether it is necessary to adjust the Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). To Caudle v. Bristow Optical Co., Inc., 3 “The ‘lodestar’ is calculated Id. Blum v. After computing the lodestar, 1 presumptively reasonable lodestar figure on the basis of the Kerr 2 factors.”2 Morales, 96 F.3d at 363. In addition to attorneys’ fees, the prevailing party is also 3 4 entitled to recover court costs. 5 1; N.R.S. § 18.020; N.R.S. § 18.005. 6 order, Prologis has already filed a Bill of Costs (Doc. #97), and 7 IGT has already had costs taxed against it in the amount of 8 $6,123.127. 9 by Federal Rule of Civil Procedure 54(d)(1) is possible under (Doc. #102.) Fed. R. Civ. P. 54(d)(1); LR 54Pursuant to the court’s Recovery of costs beyond those covered 10 Federal Rule of Civil Procedure 54(d)(2), which allows for a party 11 to move for attorneys’ fees and “related non-taxable expenses.” 12 See Fed. R. Civ. P. 54(d)(2). 13 of reasonable attorney’s fees to a prevailing party, as is the case 14 in Nevada (see N.R.S. § 18.020), the court has the discretion to 15 award reasonable out-of-pocket litigation expenses as part of the 16 attorney’s fee award “when it is the prevailing practice in a given 17 community for lawyers to bill those costs separate from their 18 hourly rates.” 19 577, 579-82 (9th Cir. 2010). 20 ANALYSIS Where a statute authorizes an award Grove v. Wells Fargo Fin. Calif., Inc., 606 F.3d 21 22 23 24 25 26 27 2 The Kerr 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.” Morales, 96 F.3d at 363 n8 (quoting Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). 28 4 In its opposition, IGT has raised only two objections to 1 2 Prologis’ fee request. 3 be able to recover attorneys’ fees for time its counsel spent 4 working on a state court summary eviction action. 5 5.) 6 for an “excessive” amount of work performed after the trial, and 7 that the court should (1) reduce Prologis’ fee award accordingly, 8 and (2) should not award Prologis additional fees for any work 9 performed after filing its motion. 10 First, IGT argues that Prologis should not (Def. Opp’n 4- Second, IGT argues that Prologis has requested attorneys’ fees (Def. Opp’n 5-6.) IGT has notably not objected in any way to the reasonableness 11 of the rest of the hours expended by Prologis’ counsel, or to 12 Prologis’ counsel’s hourly rates. 13 Prologis has argued that there should be neither upward nor 14 downward adjustments made to its lodestar calculation based upon 15 the Kerr factors (P. Mot. 13-17); IGT has also not argued for any 16 Kerr adjustments (see generally Def. Opp’n). 17 objected to Prologis' request for recovery of non-taxable costs in 18 the amount $29,534.41.3 19 (See generally Def. Opp’n.) Finally, IGT has not Id. The court will address IGT’s two objections separately below. 20 However, to the extent that IGT has not objected to Prologis’ 21 motion, the court hereby grants that motion. 22 the time spent by Prologis’ attorneys (other than the time spent on 23 the summary eviction motion and after the case was fully submitted, 24 which will be addressed below) is reasonable given the complexity 25 of the issues involved and the duration of the litigation. 26 court concludes that Prologis’ attorneys’ billing rates are 27 28 3 The court finds that The These non-taxable litigation costs are separate from the taxable costs assessed by the Clerk of Court on April 7, 2014 in the amount of $6,123.27, to which costs IGT has also not objected. 5 1 reasonable given the prevailing market rates in the community. 2 (See P. Mot. 11 and referenced attached Declarations and Exhibits.) 3 The court finds that the circumstances of the case do not warrant 4 adjustment to the lodestar based on the Kerr factors, and that the 5 lodestar (aside from IGT’s two specific objections, which, again, 6 will be addressed below) is reasonable, especially given Prologis’ 7 10 percent self-imposed, across-the-board reduction of its fee 8 request and IGT’s non-opposition to this portion of Prologis’ 9 motion. (See P. Mot. 12-13; see generally Def. Opp’n.) The court 10 further finds that Prologis is entitled to recover non-taxable 11 litigation costs, as it is “the prevailing practice in [this] 12 community for lawyers to bill those costs separate from their 13 hourly rates.” 14 I. 15 Grove, 606 F.3d 577 at 579-82; P. Mot. 17-18. State Court Summary Eviction Action Prologis has included in its lodestar calculations time spent 16 working on a state court summary eviction action it filed on July 17 14, 2010 against IGT. 18 that Prologis seeks compensation for $16,927.204 in fees incurred 19 exclusively for work on the state summary eviction action, and 20 argues that Prologis should not be entitled to recover these fees 21 because the summary eviction action was a separate, unrelated 22 action in which Prologis was not even a “prevailing party.” 23 Opp’n 3-5.) (P. Mot. 3-4, 8-9, Ex K.) IGT points out (Def. 24 25 4 26 27 28 IGT has noted that Prologis’ lodestar calculations include $18,808.00 in fees incurred exclusively for work on the state court summary eviction action; however, as IGT points out, because Prologic reduced its fee request across the board by 10 percent, this amounts to an actual request of only $16,927.20 in fees related to the summary eviction. (Def. Opp’n 4-5, 5 n.2.) 6 After IGT breached the parties’ lease agreement by prematurely 1 2 vacating the leased premises and attempting to terminate the lease 3 without having given appropriate written notice (Decision 12, 24- 4 25), Prologis initiated a summary eviction action against IGT in 5 state court under the provisions of Chapter 30 of the Nevada 6 Revised Statutes. 7 the action unilaterally without prejudice after IGT heavily 8 contested it and “it became abundantly clear that Defendant was not 9 going to make any claims to possession of the premises.” 10 11 (Decision 12.) Prologis ultimately dismissed (P. Mot. 3-4.) Prologis argues that it filed the summary eviction action “to 12 eliminate any concerns/arguments that it would be acting wrongfully 13 in re-taking possession of Defendant’s premises.” 14 its reply, Prologis further maintains that 15 16 17 18 19 20 (P. Mot. 3.) In an award of fees for time expended in the summary eviction action would be directly analogous to awarding fees in a related, pre-litigation administrative proceeding as the summary eviction action was a necessary and integral step in the litigation process to first ensure that the Defendant had indeed moved out for good and was no longer claiming a possessory interest in the premises. (P. Reply 3.) Given Prologis’ stance throughout the instant action that IGT 21 breached the lease agreement by vacating the premises early and 22 ceasing to pay rent, all the while improperly claiming to have 23 exercised its early termination option, the court is not persuaded 24 by Prologis’ claim that its state court summary eviction action was 25 “a necessary and integral step in the litigation process” or was 26 needed to “ensure that the defendant had indeed moved out for 27 good.” 28 introduced at trial demonstrated that Prologis was well apprised of Id. Multiple written communications between the parties 7 1 IGT’s intent to vacate and relinquish all possession of the 2 premises.5 3 action was an unrelated proceeding not covered by any of the 4 various fee recovery provisions of the lease agreement between the 5 parties, and that Prologis is therefore not entitled to recover 6 attorneys’ fees stemming from it. 7 Prologis’ lodestar by $16,927.20. 8 9 Therefore, the court finds that the summary eviction Accordingly, the court reduces However, the court finds that no further reduction is necessary to account for removing Prologis’ counsel’s time working 10 on the summary eviction action from the fee award. Despite IGT’s 11 claims to the contrary (see Def. Opp’n 4), the court finds that 12 Prologis’ record keeping is neither inappropriately bundled nor 13 inappropriately redacted such that it is “impossible to tell 14 whether [some of Prologis’ counsel’s] bills are for work done in 15 this action [or the summary eviction action].” 16 The court finds that Prologis has satisfactorily identified the 17 subject matter of its time expenditures, and that Prologis is 18 entitled to redact its time log as needed to protect attorney- 19 client privilege. 20 U.S. at 433; MGIC Indem. Corp. V. Weisman, 803 F.2d 500, 505 (9th 21 Cir. 1986). 22 combined billing entries are in fact for work related to the 23 summary eviction action, the court is satisfied that Prologis’ 24 self-imposed 10 percent reduction of its lodestar more than offsets (Def. Opp’n 4.) See P. Mot. Ex. K; P. Reply 3-4; Hensley, 461 Moreover, even if some of the redacted or allegedly 25 5 26 27 28 For example, Joint Exhibit No. 47, which was received into evidence during the first day of the trial, constituted an email from Edwin Strickland, of IGT, to Travis Durfee, of Prologis, informing Prologis that “we, IGT, have vacated the building . . . All American Lock finished changing the locks from IGT master to ProLogis master and we have no more access to the building.” (See Doc. ##90 at 5, 85 at 2.) 8 1 any accidental inclusion of such fees in its eventual fee award. 2 (See P. Mot. 12-13.) 3 II. 4 “Excessive” Work Performed After Trial IGT notes in its opposition that Prologis has requested 5 compensation for 61 hours of work performed after the case was 6 fully submitted, approximately 50.10 hours of which was for work on 7 Prologis’ motion for fees. 8 of $19,427.00, less Prologis’ across-the-board 10 percent decrease. 9 (Def. Opp’n 5-6.) (Def. Opp’n 5.) This amounts to a sum IGT concedes that Prologis may legally recover 10 fees for work done on its own motion for fees, but nonetheless 11 argues that 50.10 hours of time spent on such a motion, as well as 12 61 hours spent total post-judgment, is unreasonable and should not 13 be fully compensated. 14 Prologis, in its motion, requested fees for an “excessive” amount 15 of work performed by its counsel after trial, Prologis should also 16 be denied any fees later claimed for work performed after 17 submitting its motion. 18 Id. IGT further argues that, because (Def. Opp’n 6.) In its reply, Prologis did increase its attorneys’ fee award 19 request by $11,932.20 and litigation expenses by $101.28 to account 20 for additional fees and expenses accumulated after filing the 21 motion.6 22 detailed “Supplemental Lodestar Summary” and a list of 23 “Supplemental Costs” to its reply, showing how these new fees and 24 costs arose. (P. Reply 5 n.4, 6, 6 n.5.) Prologis also attached a (P. Reply Ex. 1-2; P. Reply 5 n.4.) 25 The court cannot agree that the amount of time spent by 26 Prologis’ counsel post-trial, particularly on the fee motion, is 27 28 6 See supra note 1. 9 1 excessive. As Prologis explains in its reply, to prepare the fee 2 motion, Prologis’ counsel had to research the issues, draft the 18-page motion, prepare and secure signed, supporting declarations from outside counsel, compile, review and redact forty-five pages of single-spaced billing entries and otherwise properly document its requests for fees and litigation expenses. 3 4 5 6 (P. Reply 5.) At the time Prologis filed its fee motion, as IGT 7 points out, Prologis’ requested compensation for work on the fee 8 motion made up a mere 4 percent of Prologis’ total requested 9 compensation. (Def. Opp’n 6.) Additionally, the 43.60 hours spent 10 by Prologis’ counsel after February 26, 2014, which are catalogued 11 in the “Supplemental Lodestar Summary” attached to Prologis’ reply, 12 are also not excessive, especially given Prologis’ self-imposed 10 13 percent reduction in requested fees. 14 13.) 15 fee motion, and after submitting its case more generally, 16 constitutes “hours reasonably expended on the litigation,” given 17 the complexity and high stakes of issues involved. 18 F.3d at 1028. 19 CONCLUSION (P. Reply Ex. 1; P. Mot. 12- The court finds that Prologis’ counsel’s time working on the Caudle, 224 Accordingly, the plaintiff’s motion for attorneys’ fees and 20 21 non-taxable litigation expenses (Doc. #98) is GRANTED. 22 / 23 / 24 / 25 / 26 / 27 / 28 10 Plaintiff 1 is awarded attorneys’ fees in the amount of $356,338.80 and non- 2 taxable litigation expenses in the amount of $29,534.41, together 3 with the costs previously taxed by the Clerk of Court (Doc. #102) 4 in the amount of $6,123.27, for a total award of $391,996.48. 5 IT IS SO ORDERED. 6 DATED: This 6th day of June, 2014. 7 8 ____________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11