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