HeliQwest International Incorporated v. Patriot Towers Incorporated

Filing 16

ORDER granting 15 Motion (Application) for Default Judgment to the extent that the plaintiff is awarded the following relief: (1) Damages of $241,139.21; (2) Interest on the awarded damages at the applicable statutory rate pursuant to 28 U.S .C. § 1961(a) from the date of judgment until the principal balance and all accrued interest is paid in full; and (3) Plaintiffs attorneys' fees and costs in the total amount of $6,822.00. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. (See document for full details). Signed by Senior Judge Paul G Rosenblatt on 4/6/15.(LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

HeliQwest International, Inc.,
Plaintiff,

11
12
13

vs.
Patriot Towers, Inc.,
Defendant.

14
15

)
)
)
)
)
)
)
)
)
)
)

No. CV-14-02639-PHX-PGR
ORDER

16

Pending before the Court is plaintiff HeliQwest International, Inc.’s Application

17

for Entry of Default Judgment (Doc. 15). Having considered the motion in light of the

18

relevant record, the Court finds that the motion should be granted pursuant to

19

Fed.R.Civ.P. 55(b)(2).

20

Background

21

The plaintiff commenced this action, which is based on diversity of citizenship

22

jurisdiction, on December 5, 2014; its complaint alleges claims for breach of contract

23

and unjust enrichment. The plaintiff, a Colorado-based helicopter charter company

24

specializing in external load and specialty operations, entered into a Master Services

25

Agreement (“MSA”) and a Work Order/Flight Quote agreement (“Work Order”) with

26

-1-

1

defendant Patriot Towers, Inc. in April 2013; the defendant is alleged to be an

2

Arizona corporation that specializes in the engineering, installation, testing,

3

integration, and maintenance of various telecommunication networks. The plaintiff

4

alleges that it performed helicopter services for the defendant in connection with the

5

MSA and Work Order and that the defendant paid the plaintiff’s invoices without

6

objection through April 14, 2014, but then the defendant stopped making payments

7

leaving a large sum that remains due and owing. The parties’ MSA provides that it

8

“shall be governed by, and construed in accordance with, the laws of the State of

9

Arizona, without regard to the conflict of law principles.” MSA ¶ 32.01.

10

The defendant was served with process through the Arizona Corporation

11

Commission on December 19, 2014 (Doc. 8). The plaintiff filed its Application for

12

Entry of Default on March 2, 2015 and served it on the defendant on March 3, 2015

13

(Doc. 13), and the Clerk of the Court entered default against the defendant on March

14

3, 2015 (Doc. 14). In its pending Application for Entry of Default Judgment, filed on

15

March 3, 2015, the plaintiff seeks damages of $241,139.21 and attorneys’ fees and

16

costs in the amount of $7,580.00.

17

Discussion

18

A. Whether default judgment should be entered

19

Although the plaintiff never mentions it, the Court must consider seven factors

20

in determining whether to exercise its discretion to enter default judgment: (1) the

21

possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive

22

claim; (3) the sufficiency of the complaint; (4) the sum of money at stake; (5) the

23

possibility of a dispute concerning material facts; (6) whether the default was due to

24

excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil

25

Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72

26

(9th Cir.1986). In considering the Eitel factors, the Court takes all factual allegations
-2-

1

in the complaint as true, except for those relating to damages. See TeleVideo

2

Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir.1987).

3

The first factor weighs in favor of granting the plaintiff’s motion because the

4

plaintiff will be prejudiced if this action is not resolved since it may be left without any

5

other recourse to recover the monies owed it by the defendant.

6

The second and third factors favor a default judgment because the complaint

7

is both factually and legally sufficient and by defaulting the defendant has admitted

8

the non-damages related allegations in the complaint.

9

The fourth factor also favors a default judgment because the contract-based

10

damages of $241,139.21 is a significant sum and the plaintiff has submitted

11

evidence showing that the defendant has not paid that sum after contractually

12

agreeing to do so.

13

The fifth factor also favors a default judgment because the sufficiency of the

14

complaint and the defendant’s default, along with the plaintiff’s submission of

15

evidence clearly supporting its allegations, establish that a dispute regarding

16

material facts is not a genuine possibility.

17

The sixth factor further favors a default judgment because the likelihood of the

18

defendant’s default being the result of excusable neglect is not a possibility since the

19

record clearly establishes that the defendant has been aware of this action: the

20

defendant was properly served with the complaint and the default application, and

21

the plaintiff’s evidence shows that the plaintiff’s counsel communicated several times

22

with the defendant’s counsel both before and after the filing of this action in an effort

23

to resolve the matter.

24

The seventh factor favors default judgment notwithstanding the strong public

25

policy favoring decisions on the merits because the defendant’s failure to defend this

26

action renders an adjudication on the merits impractical, if not impossible.
-3-

1

Having reviewed all of the Eitel factors, the Court concludes that the entry of

2

default judgment against the defendant is appropriate.

3

B. Amount of damages

4

The Court concludes that the plaintiff’s submitted evidence regarding

5

contractual damages, which consists of a declaration by Brent Miners (Doc. 15-3),

6

the plaintiff’s Controller, the parties’ contracts (Doc. 15-4), and the plaintiff’s invoices

7

to the defendant, which are supported by the plaintiff’s flight reports (Doc. 15-5), are

8

sufficient to establish that the defendant owes the plaintiff the sum of $241,139.21.

9

C. Attorneys’ fees

10

The defendant seeks the sum of $7,580.00 for its attorneys’ fees incurred in

11

this matter between September 17, 2014 and January 14, 2015. In support of this

12

request, the plaintiff has submitted a declaration by Mark Wiletsky (Doc. 15-1), its

13

lead counsel, and sufficiently detailed time sheets for counsel and staff (Doc. 15-2).

14

The requested fee amount is based on 22.7 hours of work performed by three

15

attorneys, Mark Wiletsky (11 hours in 2014 and .4 hours in 2015), Joseph Neguse

16

(1.1 hours in 2014 and 2.2 hours in 2015), and J. Marcus Painter (3.4 hours in

17

2014), and two paralegals, Lisa Prodanovich (1 hour in 2014) and Karen Kinnear

18

(2.7 hours in 2014 and .9 hours in 2015). Wiletsky’s declaration states that his billing

19

rate was $360 per hour for 2014 and $370 per hour for 2015, that Mr. Painter’s

20

billing rate was $460 per hour for 2014, that Mr. Neguse’s billing rate was $275 per

21

hour for 2014 and $285 per hour for 2015, that Ms. Prodanovich’s billing rate was

22

$200 per hour for 2014, and that Ms. Kinnear’s billing rate was $215 per hour for

23

2014 and $220 per hour for 2015.

24

Since this is a diversity-based action, Arizona substantive law determines

25

whether the plaintiff is entitled to an award of attorneys’ fees. Carnes v. Zamani, 488

26

F.3d 1057, 1059 (9th Cir.2007). Under the applicable Arizona law, which the plaintiff
-4-

1

does not discuss, a “contractual provision for attorneys’ fees will be enforced

2

according to its terms.” F.D.I.C. v. Adams, 931 P.2d 1095, 1105 (Ariz.App.1996).

3

The parties’ contract provides that “[i]f either party employs an attorney or

4

commences legal proceedings to enforce the provisions of this Agreement, the

5

prevailing party shall be entitled to recover from the other reasonable costs incurred

6

in connection with such enforcement, including, but not limited to, attorneys’ fees

7

and costs of investigation and litigation.” MSA ¶ 16.04. The Court concludes that the

8

plaintiff, as the prevailing party, is contractually entitled to an award of reasonable

9

attorneys’ fees.

10

Under the parties’ contract, the attorneys’ fees awarded to the plaintiff must

11

be “reasonable.” The Court concludes that the total number hours claimed, i.e., 22.7

12

hours, is reasonable given the record of this action.

13

In determining the reasonableness of the billing rates, the Court’s beginning

14

point “is the determination of the actual billing rate which the lawyer charged in the

15

particular matter” because “in corporate and commercial litigation between fee-

16

paying clients, there is no need to determine the reasonable hourly rate prevailing

17

in the community for similar work because the rate charged by the lawyer to the

18

client is the best indication of what is reasonable under the circumstances of the

19

particular case.” Schweiger v. China Doll Restaurant, Inc., 673 P.2d 927, 931-32

20

(Ariz.App.1983). The Court notes that while the plaintiff, through Mr. Wiletsky’s

21

declaration, has provided the Court with the attorneys’ and paralegals’ billing rates,

22

the declaration does not specifically state that these rates were what the plaintiff was

23

actually charged, nor does the declaration set forth the specific fee arrangement

24

between the plaintiff and its counsel.

25

While the Court assumes that the plaintiff was billed at the stated rates, the

26

Court may nevertheless determine that the agreed-upon rates are unreasonable and
-5-

1

may utilize a lesser rate. Id. at 932. The Court is tempted to do so here, particularly

2

with regard to the billing rates of the paralegals, because conspicuously absent from

3

Mr. Wiletsky’s declaration is any information at all about the professional

4

backgrounds, experience and qualifications of any of the attorneys or paralegals,

5

which is information that is normally submitted in fee applications to justify billing

6

rates.

7

Because the plaintiff has not made any sufficient effort in its memorandum to

8

discuss the governing Ninth Circuit and Arizona law and because Mr. Wiletsky’s

9

declaration is deficient in a significant respect, together with the fact that the

10

memorandum does not comply in certain respects with procedural requirements of

11

this Court’s Local Rules, e.g., it does not fully comply with LRCiv 7.1(a)(3) and (b)(3),

12

the Court will reduce the amount of the requested fee award by 10%. Therefore,

13

IT IS ORDERED that plaintiff HeliQwest International, Inc.’s Application for

14

Entry of Default Judgment (Doc. 15) is granted to the extent that the plaintiff is

15

awarded the following relief:

16

(1) Damages of $241,139.21;

17

(2) Interest on the awarded damages at the applicable statutory rate pursuant

18

to 28 U.S.C. § 1961(a) from the date of judgment until the principal balance and all

19

accrued interest is paid in full; and

20

(3) Plaintiff’s attorneys’ fees and costs in the total amount of $6,822.00.

21

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment

22
23

accordingly.
DATED this 6th day of April, 2015.

24
25
26

-6-