Spirit Master Funding X LLC v. BCB Holdings Incorporated et al

Filing 74

ORDER granting 72 Motion for Award of Attorneys' Fees and Related Non-Taxable Expenses. Plaintiff is awarded attorneys' fees in the amount of $288,435.50 and non-taxable costs in the amount of $22,376.20. Signed by Judge Douglas L Rayes on 6/26/2020. (MMO)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Spirit Master Funding X LLC,
Plaintiff,

10
11

ORDER

v.

12

No. CV-18-00957-PHX-DLR

BCB Holdings Incorporated, et al.,

13

Defendants.

14
15
16

This action concerns Defendants’ breach of a commercial lease and related

17

guaranties. The Court previously granted summary judgment for Plaintiff. (Docs. 68, 70.)

18

Plaintiff had requested that the Court include in the total damages award its reasonable

19

attorneys’ fees and costs pursuant to fee-shifting provisions in the lease and guaranties, but

20

Defendants opposed the request—not because of a disagreement over the applicability of

21

the fee-shifting provisions or over the reasonableness of the fees and costs sought, but

22

because Defendants believed Plaintiff’s request should be made in a separate fee motion

23

pursuant to Local Rule of Civil Procedure (“LRCiv”) 54.2. After noting some ambiguity

24

about whether such fees and costs may be considered an element of damages (and therefore

25

exempt from LRCiv 54.2), the Court declined to award Plaintiff its fees and costs at

26

summary judgment and instead directed Plaintiff to file a separate, LRCiv 54.2-compliant

27

application.

28

On May 22, 2020, Plaintiff filed an application for attorney’s fees and costs pursuant

1

to LRCiv 54.2. (Docs. 72-73.) Plaintiff seeks attorneys’ fees in the amount of $288,435.50

2

and non-taxable costs in the amount of $22,376.20. Although they previously insisted that

3

Plaintiff file this separate application, Defendants chose not to respond to it. The Court

4

may deem Defendants’ failure to respond as a consent to the granting of the motion. LRCiv

5

7.2(i). Nonetheless, the Court has reviewed Plaintiff’s application and finds it well-taken.

6

Plaintiff is entitled to recover its attorneys’ fees and costs pursuant to the fee-shifting

7

provisions in the lease and guaranties. (Doc. 73 at 4.) When attorneys’ fees are sought

8

pursuant to a contractual provision, a fee award must be supported by proof of what is

9

reasonable. Schweiger v. China Doll Rest., Inc., 673 P.2d 927, 931 (Ariz. Ct. App. 1983).

10

“A fee award calculated by a lodestar method—multiplying a reasonable hourly rate by the

11

number of hours expended—is presumptively reasonable.”

12

Maricopa Cty. v. Paloma Inv. Ltd. P’ship, 279 P.3d 1191, 1212 (Ariz. Ct. App. 2012).

13

“[I]n corporate and commercial litigation between feepaying clients, there is no need to

14

determine the reasonable hourly rate prevailing in the community for similar work because

15

the rate charged by the lawyer to the client is the best indication of what is reasonable under

16

the circumstances of the particular case.” Schweiger, 673 P.2d at 931-32. However, “upon

17

the presentation of an opposing affidavit setting forth the reasons why the hourly billing

18

rate is unreasonable, the court may utilize a lesser rate.” Id. at 932.

Flood Control Dist. of

19

Once the prevailing party makes a prima facie case that the fees requested are

20

reasonable, the burden shifts to the party opposing the fee request to establish that the

21

amount requested is clearly excessive. If that party fails to make such a showing of

22

unreasonableness, the prevailing party is entitled to full payment of the fees. If, however,

23

the party opposing the award shows that the otherwise prima facie reasonable fee request

24

is excessive, the Court has discretion to reduce the fees to a reasonable level. Geller v.

25

Lesk, 285 P.3d 972, 976 (Ariz. Ct. App. 2012).

26

Here, Plaintiff has met its prima facie burden by submitting detailed, task-based

27

itemizations of the fees and costs incurred prosecuting this action. The burden therefore

28

shifts to Defendants to present specific objections to the reasonableness of the fees and

-2-

1

costs requested. Defendants, by failing to respond, have not done so.1 Accordingly,

2

IT IS ORDERED that Plaintiff’s motion for attorneys’ fees and non-taxable costs

3

(Docs. 72-73) is GRANTED. Plaintiff is awarded attorneys’ fees in the amount of

4

$288,435.50 and non-taxable costs in the amount of $22,376.20.

5

Dated this 26th day of June, 2020.

6
7
8
9
Douglas L. Rayes
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

Notably, the parties consulted before Plaintiff filed its motion in an effort to resolve
the attorneys’ fees and costs issues without Court intervention. According to Plaintiff, “the
parties were unable to reach any agreement on the amount of attorneys’ fees to which Spirit
is entitled.” (Doc. 73-14.) This is surprising, given that whatever objections Defendants
might have had during this consultation, they did not raise with the Court through a
responsive pleading.
-3-