Smith et al v. JPMorgan Chase Bank NA et al

Filing 28

ORDER denying 21 Motion for Attorney Fees. Signed by Judge David G Campbell on 9/26/2011.(NVO)

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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 Phillip A. Smith and Amy R. Smith, No. CV11-8046-PCT DGC ORDER 10 Plaintiffs, 11 vs. 12 JP Morgan chase Bank; Washington Mutual Bank, FA; Green Tree Servicing, LLC; and Does 1 through 10, inclusive, 13 14 Defendants. 15 16 17 Defendant Green Tree Servicing, LLC (“Green Tree”) filed a motion to dismiss 18 Plaintiffs’ complaint on May 20, 2011. Plaintiffs did not file a response, and on July 28, 19 2011, the Court summarily granted Green Tree’s motion. On August 9, 2011, Green Tree 20 filed a motion for attorneys’ fees. Doc. 21. The motion has been fully briefed. Docs. 24, 21 25. For the reasons stated below, the court will deny Green Tree’s motion. 22 I. Legal Standard. 23 Pursuant to Federal Rule 54(d)(2), a request for attorneys’ fees must be filed by 24 motion. Fed. R. Civ. P. 54(d)(2). Among other requirements, the motion must “specify 25 the judgment and the statute, rule, or other grounds entitling the movant to the award.” 26 Id. Additionally, Local Rules 54.2 requires that “at a minimum” the motion include “the 27 applicable judgment and the statutory or contractual authority entitling the party to the 28 1 award.” LRCiv 54.2(b)(A). Local Rules 54.2 also requires the moving party to submit a 2 memorandum in support of the fees, setting forth, in order and under separate headings, 3 the eligibility, entitlement, and reasonableness of the requested award. LRCiv 54.2(c)(1)- 4 (3). The moving party must also provide supporting documents, including (1) a statement 5 of consultation, (2) the attorneys’ fee agreement, (3) a “task-based itemized statement of 6 fees and expenses,” and (4) an affidavit of moving counsel attesting to the reasonableness 7 of rate and reasonableness of time spent and expenses incurred. LRCiv 54.2(d)(1)-(4). 8 II. Motion for Attorneys’ Fees. 9 Defendant’s motion refers to the Court’s July 28 order granting its motion to 10 dismiss as the applicable judgment for which it requests fees. Doc. 21 at 1. The motion 11 also includes a task-based statement itemizing relevant attorneys’ fees and expenses and 12 an affidavit from moving counsel containing a statement that, based upon his experience, 13 the fees and time spent are reasonable and appropriate. Doc. 22, 22-1, Ex. A. In 14 substance, however, the motion does not come close to meeting the pleading 15 requirements of Rule 54 and Local Rules 54.2. First, the motion states no statutory basis 16 for recovery of fees as minimally required by both rules. Second, the motion contains no 17 separate memorandum setting forth the eligibility, entitlement, and reasonableness of the 18 award, as required by Local Rules 54.2(c)(1)-(3). 19 statement of consultation as required by Local Rules 54.2(d)(1). Third, the motion contains no 20 Defendant concedes, as it must, that the motion “was not the bastion of 21 compliance with Rule 54(d) and LRCiv 54.2.” Doc 25 at 2 n. 1. Defendant concedes this 22 in a footnote in which it then dismisses its failings as “technical difficulties.” Id. 23 Defendant argues that it should not be punished for “a slight procedural malady” because 24 it has demonstrated “overall conformity” with the rules. Id. The Court disagrees. 25 Defendant admits that it left out “a citation to the exact statute” under which it was 26 entitled to relief. In fact, Defendant cited to no rule or statute as a basis for relief. 27 Instead, Defendant asks the Court to infer from its allegations stating that it was the 28 -2- 1 prevailing party to a contract claim and that the motion stated a plea for relief under 2 A.R.S. § 12-341.01. Doc. 25 at 8. In the alternative, Defendant argues that it referenced 3 Rule 11 sanctions in its initial motion to dismiss and that this should serve as an adequate 4 basis for its entitlement to attorneys’ fees. Doc. 25 at 3. The Court will not reach so far 5 to import legal bases that the relevant pleading rules require to be stated in the instant 6 motion. 7 Defendant also argues that because Plaintiffs did not dispute the reasonableness of 8 attorneys’ fees when they faulted Defendant’s motion as lacking a statutory basis for 9 relief, Plaintiffs “appeared to have accepted the justification [of fees] provided,” and the 10 motion should be granted. Doc. 25 at 2. Plaintiff, however, had no obligation to dispute 11 the appropriateness of fees when it argued that Defendant had yet to make an appropriate 12 statutory claim. 13 As Plaintiffs note, Defendant also failed to provide a memorandum setting forth its 14 eligibility, its entitlement, and the reasonableness of its requested fees. Doc. 24 at 3. 15 Defendant argues that the declaration of its counsel, David Allen, addressed these points. 16 Id. Even if the Court were to accept this declaration as a substitute for the three-part 17 memorandum required by Local Rule 54.2(c), it simply is not the case that the declaration 18 discusses either Defendant’s eligibility or entitlement to fees as required by Local Rules 19 54.2(c)(1) & (2). Additionally, although the declaration contains a summary statement 20 that the fees and time spent were reasonable, it discusses none of the factors bearing on 21 reasonableness contained in Local Rule 54.2(c)(3). 22 deficiencies in its reply. Doc. 25 at 3-4. Regarding the reasonableness of the requested 23 award, however, the reply also fails to discuss any factors under Local Rule 54.2(3); 24 instead, it states a summary conclusion that “[w]hen considering the factors articulated by 25 Local Rule 54.2(c)(3), it is clear that the undertaking of counsel . . . was reasonable and 26 appropriate for the results obtained.” Id. at 4. Even if the Court were to accept new 27 28 -3- Defendant claims to cure any 1 arguments raised in the reply, Defendant fails substantively to satisfy Local Rule 2 54.2(c)(3). 3 Defendant also omitted any statement of consultation even though Local Rule 4 54.2(d)(1) expressly states that “no motion for award of attorneys’ fees will be considered 5 unless a separate statement of the moving counsel is attached.” LRCiv 54(d)(1). This is 6 to certify that the parties have already made a good-faith effort to resolve the fee issues 7 without success. 8 supplemental declaration of its attorney, David Allen, recounting a discussion he initiated 9 with Plaintiffs’ counsel requesting payment of fees on September 1, 2011. Doc 25 at 8. 10 Courts have discretion to allow a party to supplement required documents to a motion 11 (See Schrum v. Burlington N. Santa Fe Railway Co., No. CV 04-0619-PHX-RCB, 2008 12 WL 2278137, at *2; (D. Ariz. May 30, 2008) (making a one-time allowance for the late 13 submission of a statement of consultation in the reply brief); accord, Aillo v. Windham 14 Prof”ls, No. CV 10-1005-PHX-MHM, 2010 WL 4942755 (D. Ariz. Nov., 24, 2010) 15 (allowing late submission of the required fee agreement where fees were not in dispute). 16 Here, however, Defendant’s late submission fails to satisfy the Local Rule requirements 17 because the only consultation it alleges consists of an unanswered request for fees 18 Defendant made to Plaintiffs’ counsel after the submission of its motion. See Societe 19 Civile Succession Richard Guiono v. Beseder Inc., No. CV 03-1210-PHX-MHM, 2007 20 WL 3238703, at *8 21 consultation is clearly contrary to both the letter and the spirit of the Rule which requires 22 the statement of consultation to be attached to the supporting memorandum certifying 23 that a good faith effort was made to resolve the disputed issues.”). Id. Defendant attempts to cure this deficiency by submitting a (D. Ariz. Oct. 31, 2007) (“[A]fter the fact communication or 24 The requirements of both Federal Rule 54 and Local Rules 54.2 are not mere 25 suggestions, but requirements to provide the Court with a substantive basis upon which to 26 decide the eligibility and appropriateness of granting the requested relief. “[T]hese 27 28 -4- 1 requirements are not advisory, but are mandatory to support an award of attorneys’ fees.” 2 Societe Civile, WL 3238703, at *7. 3 IT IS ORDERED: 4 Defendant’s motion for attorneys’ fees (Doc. 21) is denied. 5 Dated this 26th day of September, 2011. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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