Plaza 75 Shopping Center, LLC v. Big Lots Stores, Inc.

Filing 61

ORDER that Defendant's motion for attorneys' fees and costs (Doc. 56 ) is granted in part. Defendants are awarded attorneys' fees and costs of $26,114.00. Signed by Judge David G Campbell on 11/21/2012.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaza 75 Shopping Center, LLC,
Plaintiff,

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ORDER

v.

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No. CV10-0592-PHX-DGC

Big Lots Stores, Inc.,
Defendant.

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Plaintiff Plaza 75 Shopping Center, LLC (“Plaintiff” or “Plaza 75”) filed suit

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against Defendant Big Lots (“Defendant” or “Big Lots”) for breach of a commercial lease

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agreement. Doc. 1-1 at 4. After judgment was entered on its behalf (Doc. 47), Big Lots

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filed a motion for attorneys’ fees (Doc. 49). The Court denied the motion without

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prejudice pending resolution of the then-pending appeal. Doc. 54. The judgment was

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affirmed on appeal (Doc. 55), and Big Lots has now filed a renewed motion for

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attorneys’ fees and costs (Doc. 56 at 2). The motion is fully briefed and no party has

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requested oral argument. The Court will grant the motion in part.

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I.

Entitlement and Eligibility.

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Big Lots seeks attorneys’ fees and costs pursuant to the parties’ lease agreement

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and A.R.S. § 12-341.01. Doc. 56. Section 40 of the lease agreement provides that “[i]n

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the event either Landlord or Tenant is required to enforce the provisions of this Lease,

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then the prevailing party shall be entitled to court costs and reasonable attorney’s fees

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from the non-prevailing Party as the court may award.” Doc. 56 at 3; Doc. 37-1, Ex. A at

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39. An award of attorneys’ fees required by contract is mandatory, Bennett v. Appaloosa

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Horse Club, 201 Ariz. 372, 378, 35 P.3d 426, 432 (Ariz. Ct. App. 2001), enforced

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according to the terms of the contract, F.D.I.C. v. Adams, 187 Ariz. 585, 931 P.2d 1095,

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1108 (Ariz. Ct. App.1996), and subject to the requirement of reasonableness, see

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Gametech Int'l, Inc. v. Trend Gaming Sys., L.L.C., 380 F. Supp. 2d 1084, 1088 (D. Ariz.

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2005).

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Under A.R.S. § 12-341.01(A), the court may award reasonable attorney fees to the

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successful party in a contested action arising out of a contract.

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discretion to limit any award to a reasonable amount. McDowell Mt. Ranch Cmty. v.

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The Court retains

Simmons, 216 Ariz. 266, 269-70, 165 P.3d 667, 670-71 (Ariz. Ct. App. 2007).

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Plaza 75 does not dispute Big Lots’ entitlement to attorneys’ fees and costs.

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Doc. 59. The Court finds that Big Lots is entitled to an award of fees and costs and will

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proceed to examine the reasonableness of the award requested.

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II.

Reasonableness.

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Big Lots seeks attorneys’ fees and costs in the amount of $28, 563.1 Doc. 60 at 1.

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Plaza 75 contends it would be unreasonable to include attorneys’ fees for certain time

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expenditures, and objects to the reasonableness of legal assistant Lori McAdoo’s hourly

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rate. Doc. 59 at 1-3. Plaza 75 also requests that any award in favor of Big Lots be

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reduced by $875 in sanctions previously awarded to it. Doc. 34.

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A.

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Plaza 75 argues that it would be unreasonable for any award of attorneys’ fees in

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Defendant’s favor to include fees incurred in preparing for the settlement conference that

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was vacated because Defendant made a late request to appear telephonically, or in

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preparing a settlement conference memorandum which was never shared with Plaintiff.

Fees Incurred in Preparing for Settlement Conference.

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Big Lots’ originally sought an award in the total amount of $29,184. Doc. 56 at
1. Plaza 75 objected to fees incurred for time expended by Lori McAdoo on May 26,
2011, to “[p]repare documents for oral argument on summary judgment.” Doc. 59 at 1.
In its reply, Big Lots acknowledged the entry was included in error and withdrew $621
from its original request. Doc. 60 at 1.
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Doc. 59 at 2. Specifically, Plaza 75 objects to fees incurred for time spent preparing for

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the settlement conference on July 29 and 30, 2010 (Doc. 59 at 2-3), and not to fees

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incurred for time spent preparing for the settlement conference prior to July 29, 2010 (see

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Doc. 57-1, Ex. A at 3-4). Big Lots contends it is entitled to these fees “because the

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surprise cancellation of the settlement conference was neither invited nor desired by Big

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Lots.” Doc. 60 at 3.

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On June 9, 2010, with agreement by the parties, the Court referred a settlement

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conference to Magistrate Judge Lawrence Anderson and directed the parties to contact his

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office for a date and time for the conference. Doc. 17. On June 15, 2010, after the

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parties had failed to contact his office, Judge Anderson set a settlement conference for

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August 6, 2010. Doc. 19. On July 29, 2010, Big Lots filed a motion seeking relief from

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having to appear physically at the settlement conference, arguing that its willingness to

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participate was based on Big Lots’ representative being allowed to appear electronically.

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Doc. 21 at 2. In response, Judge Anderson cancelled the settlement conference. Doc. 23.

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Big Lots alleges that Judge Anderson scheduled the conference “[b]efore the

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parties had an opportunity to contact Judge Anderson” (Id. at 2), but Judge Anderson

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waited eight days after the referral for the parties to contact him (Doc. 34 at 2). Big Lots

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also argues that it did not receive Judge Anderson’s order requiring the presence of a

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corporate representative until its counsel returned from vacation on July 26, 2010

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(Doc. 60 at 3), but this argument is contradicted by the record. Judge Anderson’s order –

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titled “Settlement Conference Order” – was entered on June 15, 2010 (Doc. 19), and the

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time sheets for Big Lots’ counsel contain an entry for June 29, 2010 that reads: “[r]eview

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settlement conference order.” Doc. 57-1, Ex. A at 3. Big Lots’ motion a month later was

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untimely and resulted in cancellation of the settlement conference. The Court therefore

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finds Big Lots’ request for fees incurred in preparing for the conference on July 29 and

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30 to be unreasonable. The Court will subtract $558. Doc. 59 at 2.

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B.

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Plaza 75 contends that “it would be unfair and unreasonable for any award of

Fees Incurred in Responding to Motion for Sanctions.

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attorneys’ fees in Defendants’ favor to include attorneys’ fees incurred for time drafting a

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response to Plaintiff’s Motion for Sanctions, which was granted by the Court, and which

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arose out of Defendant’s late request to appear telephonically rather than in person.”

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Doc. 59 at 2. Plaza 75 specifically objects to the inclusion of $386 in fees for time spent

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drafting the response to Plaza 75’s motion for sanctions. Id.; Doc. 57-1, Ex. A at 4. Big

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Lots does not respond. The Court will subtract $386. Doc. 59 at 2.

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As a sanction, the Court awarded Plaintiff $875 in attorneys’ fees for work related

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to the settlement conference. Doc. 34. That order called for the award to be reduced

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from the prevailing party’s attorneys’ fees. Id. at 8. Big Lots argues that the $875

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sanction award should not be subtracted from its award because sanctions were not

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appropriately awarded. Doc. 60 at 3. The Court disagrees and will subtract $875.

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C.

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Big Lots seeks $1,980 for nine hours expended by paralegal Lori McAdoo at a rate

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of $220 per hour. Doc. 57 at 2; Doc. 57-1, Ex. A. Plaza 75 objects to the rate as

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unreasonable, and the Court agrees. In its discretion, the Court finds $150 to be a

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reasonable hourly rate for experienced paralegals in this area. Accordingly, the Court

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will subtract $630.2

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Reasonableness of Lori McAdoo’s Rate.

IT IS ORDERED that Defendant’s motion for attorneys’ fees and costs (Doc. 56)
is granted in part. Defendants are awarded attorneys’ fees and costs of $26,114.
Dated this 21st day of November, 2012.

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The Court arrived at this number by subtracting $150 from $220, and then
multiplying the nine hours expended by Ms. McAdoo.
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