Custom Homes By Via LLC v. Bank of Oklahoma NA et al

Filing 170

ORDER granting 156 plaintiff's motion for Order Fixing Attorney's Fees and AWARDING plaintiff pretrial fees in the amount of $22,387.50. Signed by Senior Judge Frederick J Martone on 6/4/14.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Custom Homes By Via LLC, Plaintiff, 10 11 vs. 12 Bank of Oklahoma; Bank of Arizona, 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-01017-PHX-FJM ORDER 15 16 17 The court has before it plaintiff’s Request for an Order Fixing the Amount of 18 Attorney’s Fees for Waiver of Jury Trial (doc. 156), the Bank’s response (doc. 157), and 19 plaintiff’s reply (doc. 158). 20 We granted the Bank’s motion to strike the jury on the eve of trial based on 21 defendant’s agreement to pay plaintiff’s “reasonable fees and expenses incurred in preparing 22 for a jury trial.” Order (doc. 106) at 1. Plaintiff argued that it would otherwise be prejudiced 23 because it had spent a significant amount of time “preparing for a jury” including “pretrial 24 motions, Voir Dire, jury instructions, Opening Statements etc”. (Doc. 103 at 2). The Bank 25 agreed to cover plaintiff’s pretrial fees and a bench trial was held. 26 Plaintiff has now filed an itemized fee statement showing that it incurred a total of 27 $23,497.50 on pretrial matters in preparation for a jury trial. In particular, plaintiff incurred 28 $9,705.00 responding to defendant’s motions in limine, $4,912.50 in preparing its own 1 motions in limine, and $2,220.00 in preparing its opening statement. The Bank now argues 2 that plaintiff should not be reimbursed for these fees because plaintiff would have prepared 3 motions in limine and an opening statement regardless of whether we held a bench or jury 4 trial. 5 Because motions in limine are designed to avoid prejudice that may flow from ruling 6 on an evidentiary objection in front of a jury, motions in limine apply only to jury trials. 7 There is no reason to file them in a case to the court without a jury. Plaintiff is entitled to 8 reimbursement for all fees associated with motions in limine. 9 Opening statements, on the other hand, are presented to a judge as well as a jury. 10 Plaintiff’s counsel argues that he originally designed his opening statement for a jury. But 11 some form of it was also presented to the court. Nevertheless, at the time of the agreement, 12 the Bank did not object to plaintiff’s request for fees associated with opening statements. 13 Therefore, we will award plaintiff half of the expense incurred in preparation of opening 14 statements, or $1,110.00. 15 16 17 IT IS ORDERED GRANTING plaintiff’s motion for Order Fixing Attorney’s Fees (doc. 156) and AWARDING plaintiff pretrial fees in the amount of $22,387.50. DATED this 6th day of June, 2014. 18 19 20 21 22 23 24 25 26 27 28 -2-

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