Zinni

Filing 111

ORDER, denying Plaintiffs' Motion for Damages and Attorneys' Fees 88 ; granting the Bank's Motion for an Award of Attorneys' Fees 82 in the amount of $7,500. Signed by Judge Frederick J Martone on 6/12/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Renee M. Zinni; Marco S. D’Alonzo,
Plaintiffs,

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vs.

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M&I Marshall & Ilsley Bank, et al.,
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Defendants.
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No. CV-09-2035-PHX-FJM
ORDER

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Before the court is M&I Bank’s motion for attorney fees (doc. 82), plaintiffs’ response

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and motion for damages and attorney’s fees (docs. 87 and 88), the Bank’s response and reply

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(doc. 90), and plaintiffs’ reply (doc. 93).

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On May 11, 2011, we granted summary judgment in favor of the Bank on all claims
(doc. 72). Both parties now move for attorney’s fees.

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Plaintiffs simply state a “counter motion for damages and attorney’s fees” in their

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response to the Bank’s motion. They make no argument to support the claims. They were

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not the prevailing parties in this action. Therefore, plaintiffs’ claim for attorney’s fees and

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damages is denied (doc. 88).

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The Bank moves for attorney’s fees as the prevailing party in a matter arising out of

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a contract, pursuant to A.R.S. § 12-341.01. It seeks fees in the amount of $68,589.50, and

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non-taxable costs in the amount of $6,856.12.

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Plaintiffs’ only response to the Bank’s motion is to continue to argue the merits of

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their claims. Again, we have already carefully considered each of these arguments and will

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not revisit them in a motion for attorney’s fees. Instead, we look to the factors set forth in

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Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985).

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A court has wide discretion is deciding whether to award fees under § 12-341.01. The

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award of fees “should be made to mitigate the burden of the expense of litigation to establish

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a just claim or a just defense.” Id. § 12-341.01(B). “It need not equal or relate to the

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attorney fees actually paid or contracted.” Id. In deciding whether to award fees we consider

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whether (1) the unsuccessful party's claims were meritorious; (2) the litigation could have

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been avoided or settled; (3) assessing fees would cause extreme hardship; (4) the successful

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party prevailed with respect to all relief sought; (5) the legal question was novel; and (6) an

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award would discourage other parties with tenable claims from litigating them. Warner, 143

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Ariz. at 570, 694 P.2d at 1184.

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After considering each of the Warner factors, we conclude that an award of fees in this

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case is appropriate. Many of plaintiffs’ claims, as alleged, were colorable. Others lacked

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merit. Therefore, this factor is neutral. Given the parties’ diverse positions, settlement was

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not possible. The legal questions presented, involving Arizona’s deed of trust statute, TILA,

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RESPA, FDCPA, and HOEPA, breach of contract, and fraud claims were not novel.

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Defendants ultimately prevailed on every claim and an award of fees would not discourage

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other parties from filing meritorious actions. These factors weigh in the Bank’s favor. Given

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plaintiffs’ financial inability to complete the construction project on the property, it is

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reasonable to presume that a financial hardship is likely. This factor alone weighs in

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plaintiffs’ favor.

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We now turn to the reasonableness of the requested fees. The Bank employed a total

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of eight lawyers, two paralegals, and two legal secretaries, expended almost 400 hours at the

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rate of $200 to $175 per hour on a relatively routine foreclosure matter, and now seeks in

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excess of $75,000 in fees and costs. This is a classic example of over-lawyering a case.

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Moreover, most of the claimed non-taxable costs consists of “Westlaw legal research”
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without the specificity required by LRCiv 54.2(e)(2)(B). We think 75 hours at $200 per hour

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should be sufficient to litigate a relatively routine matter. We then discount that amount by

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plaintiffs’ presumed hardship to yield reasonable fees and costs in the amount of $7,500.

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IT IS ORDERED DENYING plaintiffs’ motion for damages and attorney’s fees
(doc. 88).
IT IS ORDERED GRANTING the Bank’s motion for an award of attorney’s fees
(doc. 82) in the amount of $7,500.
DATED this 12th day of September, 2011.

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