Ripa v. Federal National Mortgage Association et al

Filing 39

ORDER that Defendants' motion for attorneys' fees (Doc. 33 ) is granted. Defendants are awarded attorneys' fees and non-taxable expenses against Plaintiff in the amount of $16,686.80. Signed by Judge David G Campbell on 4/23/2014.(KMG)

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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 Alan Ripa, No. CV-13-01612-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Federal National Mortgage Association, et al., 13 Defendants. 14 15 16 On October 21, 2013, the Court granted Defendants’ Motion to Dismiss under 17 Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6). Doc. 27. Defendants Wells 18 Fargo Bank, N.A. and Federal National Mortgage Association have moved for an award 19 of attorney’s fees pursuant to Rule 54(d)(2), seeking fees for claims against them arising 20 out of contract under A.R.S. § 12-341.01(A). Doc. 33. The motion has been fully 21 briefed. Docs. 36, 38. The Court will grant the motion. 22 I. Legal Standard. 23 Under Arizona law, “[i]n any contested action arising out of a contract, express or 24 implied, the court may award the successful party reasonable attorney fees.” A.R.S. 25 § 12-341.01(A). Under Arizona law, the trial court has discretion regarding awarding 26 attorneys’ fees. See Wilcox v. Waldman, 744 P.2d 444, 450 (Ariz. Ct. App. 1987). 27 Courts consider: (1) the merits of the unsuccessful party’s claim, (2) whether the 28 successful party’s efforts were completely superfluous in achieving the ultimate result, 1 (3) whether assessing fees against the unsuccessful party would cause extreme hardship, 2 (4) whether the successful party prevailed with respect to all relief sought, (5) whether 3 the legal question presented was novel or had been previously adjudicated, and 4 (6) whether a fee award would discourage other parties with tenable claims from 5 litigating. Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1319-20 (9th 6 Cir. 1997); Associated Indem. Corp. v. Warner, 694 P.2d 1181, 1184 (Ariz. 1985) (en 7 banc); Uyleman v. D.S. Rentco, 981 P.2d 1081, 1086 (Ariz. Ct. App. 1999). No single 8 factor is determinative – the court should weigh all factors in exercising its discretion. 9 See Wilcox, 744 P.2d at 450. 10 II. Analysis. 11 A. 12 Plaintiff contends that the “non-contract claims,” including the consumer fraud 13 claims, statutory violation claims, negligent misrepresentation, and negligent supervision 14 claims, are not tied to the contract. Doc. 36 at 3-4. Defendants respond that all of 15 Plaintiff’s claims depend, explicitly or implicitly, on a contractual relationship between 16 the parties because they all related to the Note and Deed of Trust. Doc. 38 at 4. Where a 17 defendant allegedly breaches a duty that would not exist but for the contract, those claims 18 are found to arise in contract. Doc. 34 at 2-3; see Assyia v. State Farm Mut. Auto. Ins. 19 Co., 273 P.3d 668, 672-73 (Ariz. Ct. App. 2012). Plaintiff asserted two breach of 20 contract claims in this case, and the Court finds that the remaining claims arose of out of 21 contract. Therefore, the Court will individually consider the six factors outlined above. 22 Appropriateness of Awarding Fees. 1. Whether the Claims had Merit. 23 The Court dismissed all fourteen of Plaintiff’s claims. Doc. 27. Plaintiff asserts 24 that the claims should not have been dismissed, but he does not explain the reason for his 25 assertion. Doc. 36 at 7. This factor favors Defendants. 26 2. Whether Defendants’ Efforts were Superfluous. 27 Plaintiff contends that Defendants made no offer to resolve the matter. Id. at 3. 28 Defendants respond argue that during the pendency of the motion to dismiss, they -2- 1 reached out to Plaintiff’s counsel regarding potential settlement options and Plaintiff 2 never responded. Doc. 34 at 6; Exhibit D. Plaintiff has not shown that Defendants could 3 have avoided this litigation. This factor favors Defendants. 3. 4 Whether Imposition of Fees would be a Hardship for Plaintiff. 5 Plaintiff does not contend that imposition of fees would be a hardship. “[T]he 6 party asserting financial hardship has the burden of coming forward with prima facie 7 evidence of financial hardship.” Woerth v. City of Flagstaff, 808 P.2d 297, 305 (Ariz. Ct. 8 App. 1990). Plaintiff has failed to meet this burden. This factor favors Defendants. 4. 9 Whether Defendant Succeeded with Respect to All Relief. 10 The Court granted Defendants’ motion to dismiss (Doc. 27) and entered judgment 11 in favor of Defendants (Doc. 30). Because Defendants prevailed on all claims, this factor 12 favors Defendants. 5. 13 Whether Legal Issues were Novel. 14 Defendants contend that the legal issues were not novel and that many of the same 15 issues in the complaint had been pled and rejected in this court. Doc. 34 at 7; see Raup v. 16 Wells Fargo Bank, NA, No. CV-13-00137-PHX-GMS, 2013 WL 3216175 (D. Ariz. June 17 25, 2013). Plaintiff does not contend that the legal issues were novel; he only notes that 18 in Raup, the court did not dismiss all claims. Doc. 36 at 6. The Court agrees with 19 Defendants that the legal issues were not novel. This factor favors Defendants. 6. 20 Whether a Fee Award would Discourage Meritorious Litigation. 21 Defendants contend that an award of attorneys’ fees would protect against 22 “groundless, yet time-consuming suits.” Doc. 34 at 8. Defendants argue that Plaintiff’s 23 counsel, who was also counsel for plaintiffs in Raup, was aware of the pleading 24 deficiencies in the complaint but proceeded to pursue his claims. Id. at 7-8. Therefore, 25 Defendants contend that an award of fees would enforce the principle that “a plaintiff 26 should not proceed on meritless claims in contract actions.” Id. at 8. Plaintiff does not 27 argue that a fee would discourage meritorious litigation. This factor favors Defendants. 28 /// -3- 1 2 In sum, the Court finds that all six factors favor Defendants and that an award of fees is appropriate. 3 B. Reasonableness of Requested Fees. 4 Defendants request a total of $16,686.60 in fees. Doc. 34 at 1-2. Plaintiff 5 contends that the only work completed in this matter involved the dismissal of the claims, 6 and that “it is unconscionable” that “this amount should be charged for a case that went 7 no further than a Rule 12 Motion.” Doc. 36 at 7. Local Rule 54.2(f) states that a 8 memorandum in opposition to a motion for an award of attorney’s fees “shall identify 9 with specificity all disputed issues of material fact and shall separately identify each and 10 every disputed time entry or expense item.” LRCiv 54.2(f). Plaintiff has not specifically 11 identified a single disputed expense. 12 Defendants discuss the factors used to determine reasonable attorneys’ fees as 13 outlined in Schweiger v. China Doll Rest., Inc., 673 P.2d 927, 931 (Ariz. Ct. App. 1983), 14 including (1) the qualities of the advocate, (2) the character of the work, including its 15 difficulty and importance, (3) the work actually performed, including the skill, time and 16 attention given to the work, and (4) the result. Doc. 34 at 8. Defendants contend that the 17 work performed was “necessary to respond and defend against claims in this action,” and 18 the number of hours expended was reasonable because they were earned by performing 19 services that “would have been undertaken by a reasonable and prudent lawyer to 20 advance or protect his client’s interests.” Doc. 34 at 9. Defendants further contend that 21 the average billing rate was equal to $174.86 per hour, which is similar to or lower than 22 rates charged by other Phoenix law firms. Id. at 10. Defendants also note that their 23 attorneys have a combined total of more than seven years of experience representing 24 banks and other financial institutions, and the paralegal’s rates were justified because the 25 paralegal “works regularly with members of the firm’s financial services litigation 26 subgroup in a litigation support role.” Id. Plaintiff does not address any of these issues. 27 The Court finds the hourly rates charged by Defendants’ legal team to be 28 reasonable for the Phoenix market and for attorneys of the skill and experience needed -4- 1 for a case such as this. The Court also finds the time records provided by defense counsel 2 to be sufficiently detailed, and the hours incurred in defending this case to be reasonable. 3 Having considered the record as a whole and the relevant fee award factors, see Warner, 4 694 P.2d at 1184, the Court finds the requested fee award to be reasonable and 5 appropriate. 6 reasonableness of a fee award). 7 See also LRCiv 54.2(c)(3)(A)-(M) (listing factors bearing on the IT IS ORDERED that Defendants’ motion for attorneys’ fees (Doc. 33) is 8 granted. 9 Plaintiff in the amount of $16,686.80. 10 Defendants are awarded attorneys’ fees and non-taxable expenses against Dated this 23rd day of April, 2014. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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