Mahai Dutciuc v. Meritage Homes of Arizona Inc et al

Filing 88

ORDER granting 74 Motion for Attorney Fees; granting 83 Motion for Ruling; granting 87 Motion to Strike Opposition to Motion for Attorney's Fees and Costs. (See document for full details). Signed by Judge Mary H Murguia on 3/1/11.(LAD)

Mahai Dutciuc v. Meritage Homes of Arizona Inc et al

Doc. 88

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Meritage Homes of Arizona, Inc., an) Arizona Corporation; MTH Mortgage,) LLC, and Arizona Limited Liability) ) Company, ) ) Defendants. ) ) Mahai Dutciuc,

No. CV 09-866-PHX-MHM ORDER

Currently before the Court are Defendant Meritage Homes of Arizona, Inc.'s 19 ("Meritage") Motion for Attorneys' Fees and Related Non-Taxable Expenses,(Doc. 74); 20 Motion for Summary Ruling on Its Motion for Attorney's Fees and Non-Taxable Costs, 21 (Doc. 83), and Motion to Strike Opposition to Defendant Meritage's Motion for 22 Attorney's Fees and Costs. (Doc. 87). 23 I. 24 On September 16, 2010, this Court entered an order dismissing Plaintiff's claims 25 against Meritage with prejudice because it found that Plaintiff's Third Amended 26 Complaint failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Doc. 27 72). Meritage subsequently filed a Motion for Attorneys' Fees on September 30, 2010, 28 BACKGROUND

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(Doc. 74), and a Memorandum of Points and Authorities in support of that motion on November 15, 2010. (Doc. 80). Because Plaintiff had not filed a response, on December 21, 2010, Meritage filed a Motion for Summary Ruling on Its Motion for Attorney's Fees and Non-Taxable Costs, requesting that this Court summarily grant its request for attorney's fees pursuant to LRCiv 7.2(i). (Doc. 83). On February 7, 2010, this Court issued an Order informing Plaintiff, who is represented by counsel, that he had "until close of business on Tuesday, February 15, 2011 to show cause why Meritage's motion for attorneys' fees should not be summarily granted and, if he believes good cause exists, to file a responsive memoranda." (Doc. 85, p.2). The Court also warned Plaintiff that should he "fail to perform either of these tasks, Meritage's motion for attorneys' fees w[ould] be summarily granted," pursuant to LRCiv 7.2(i). (Id., (citing Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994) (affirming the district court's summary granting of a motion for summary judgment under LRCiv 7.2(i) when non-moving party was given express warning of consequences of failing to respond)). On February 16, 2011, Plaintiff filed a response to Meritage's fees motion. (Doc. 86). On February 18, 2010, Meritage filed its Motion to Strike Opposition to Defendant Meritage's Motion for Attorney's Fees and Costs. (Doc. 87). II. DISCUSSION The Court could not have been any clearer in its February 7 Order. It very specifically ordered Plaintiff to: (1) show cause for his failure to timely respond to Meritage's motion for attorney's fees, which was filed over four months earlier, on September 30, 2010; and (2) if Plaintiff believed good cause existed to also file a response to that motion. Furthermore, the Court ordered that these tasks needed to be accomplished no later than close of business on February 15, 2011. Plaintiff's response was filed on February 16, 2010, one day after the deadline imposed by the Court. Additionally, in that response, Plaintiff never once explains his failure to file a timely response. Because Plaintiff utterly failed to comply with the Court's July 30 Order, the Court -2-

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will grant Defendant's instant motion to strike. See LRCiv 7.2(m)(1) (authorizing the filing of a motion to strike where the subject submission is "prohibited (or not authorized) by statute, rule, or court order." (emphasis added)). Having so done, the Court will treat Meritage's motion for fees as unopposed and grant the relief requested therein. Notwithstanding Plaintiff's failure to object, the Court has independently reviewed the documentation filed by Meritage in support of its fee request and finds that the request is reasonable. Accordingly, the Court awards $11,695.50 in attorney's fees to Meritage, which represents $8,835.00 for fees incurred in defending against Plaintiff's claims and $2,857.50 incurred in connection with preparing its motion for attorney's fees and supporting documents. Accordingly IT IS HEREBY ORDERED granting Meritage's Motion to Strike Opposition to Defendant Meritage's Motion for Attorney's Fees and Costs. (Doc. 87). IT IS HEREBY ORDERED granting Meritage's Motion for Summary Ruling on Its Motion for Attorney's Fees and Non-Taxable Costs. (Doc. 83). IT IS FURTHER ORDERED granting Meritage's Motion for Attorneys' Fees and Related Non-Taxable Expenses filed by Defendant Meritage Homes of Arizona, Inc. ("Meritage"). (Doc. 74). The Court awards Meritage $11,695.50 in attorney's fees. DATED this 1st day of March, 2011.

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