TCF Inventory Finance, Inc. v. Marker Oil Company, Inc. et al
Filing
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ORDER signed by District Judge John A. Mendez on 7/25/2018 ORDERING 62 the Court GRANTS in PART and DENIES in PART Plaintiff's Motion for Attorneys' Fees and Taxable Costs and ORDERS Defendants to pay Plaintiff: $102,293.00 in attorneys' fees, in addition to the $15,000 previously awarded, ECF No. 51 ; and $12,413.16 in nontaxable expenses. (Reader, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TCF INVENTORY FINANCE, INC.,
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No.
2:17-cv-1768-JAM-DB
Plaintiff,
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v.
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MARKER OIL COMPANY, INC., AND
BILLY LEON MARKER, JR.,
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ORDER RE: PLAINTIFF’S MOTION FOR
ATTORNEYS’ FEES AND NONTAXABLE
EXPENSES
Defendants.
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Plaintiff TCF Inventory Finance, Inc., (“Plaintiff”) seeks
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attorneys’ fees and related nontaxable expenses pursuant to
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Federal Rule of Civil Procedure 54(d)(2).1
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Company, Inc., and Billy Leon Marker, Jr., did not oppose.
Defendants Marker Oil
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This litigation concerned Defendants’ breach of an agreement
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between the parties—the Inventory Security Agreement—and resulted
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in a judgment for Plaintiff.
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prevailing party.
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express language requiring Marker Oil to pay reasonable
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attorneys’ fees and legal expenses incurred by Plaintiff “in
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connection with establishing, perfecting, maintaining perfection
As such, Plaintiff is the
The Inventory Security Agreement contains
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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for July 10, 2018.
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of, protecting and enforcing its security interest in the
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Collateral and collecting indebtedness[.]” See Inventory Security
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Agreement, ECF No. 1-1, ¶ 20(c).
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Marker agrees to pay “on demand all costs and expenses, including
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reasonable attorneys’ fees, incurred by [Plaintiff] in enforcing
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this Guaranty.”
The Guaranty provides that Mr.
See Guaranty, ECF No. 1-4.
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I.
ATTORNEYS’ FEES
Plaintiff seeks $130,825.50 in attorneys’ fees.
Mot. at 2.
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This amount includes the $15,000 in fees the Court awarded to
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Plaintiff in the April 12, 2018, Order Granting Motion for
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Contempt.
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include the additional $12,912.50 in attorneys’ fees that
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Plaintiff sought but the Court denied.
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attorneys’ fees motion and the accompanying affidavit of counsel
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substantially comport with Local Rule 293.
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Mot. at n.1; Order, ECF No. 51.
This amount does not
Mot. at n.1.
Plaintiff’s
When evaluating requests for attorneys’ fees, a court begins
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by calculating the lodestar amount, which involves multiplying
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the number of hours reasonably expended by a reasonable hourly
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rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
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court should exclude from this initial calculation any
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“excessive, redundant, or otherwise unnecessary” hours expended.
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See id. at 434.
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adjust the lodestar amount:
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A
The following factors may counsel a court to
(1) the time and labor required; (2) the novelty and
the difficulty of the questions involved; (3) the skill
requisite to perform the legal service properly;
(4) the preclusion of other employment by the attorney
due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances;
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(8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case;
(11) the nature and length of the professional
relationship with the client; and (12) awards in
similar cases.
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Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.
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1975), abrogated on other grounds by City of Burlington v. Dague,
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505 U.S. 557 (1992).
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Turning first to the requested rates, the Court finds the
attorneys’ rates reasonable.
Although counsel did not produce
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evidence of commensurate rates in the Sacramento area—the
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community upon which the request must be based—the Court finds
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the requested rates of $365 to $385 per hour for partners match
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the prevailing rates in the region.
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Stores, L.P., 291 F.R.D. 443, 460 (E.D. Cal. 2013) (“As many
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cases in the Eastern District [] observe, ‘prevailing hourly
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rates in the Eastern District of California are in the $400/hour
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range.’”).
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paralegals to be too high.
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Sacramento community are less than $100 per hour, often closer to
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$75 per hour.
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2:09-CV-01753-GEB, 2011 WL 6211874, at *2 (E.D. Cal. Dec. 14,
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2011) (awarding $75 per hour for paralegals); Monterrubio v. Best
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Buy Stores, L.P., 291 F.R.D. 443, 461 (E.D. Cal. 2013) (awarding
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$75 per hour for a legal assistant and $95 per hour for a
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paralegal).
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concerning the paralegals’ years of experience or expertise, the
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Court finds $75 per hour the appropriate rate.
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adjusted accordingly.
See Monterrubio v. Best Buy
However, the Court finds the requested rates for
The prevailing rates in the
See Passport Health, Inc. v. Travel Med, Inc., No.
Because counsel’s declaration lacked any information
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The award will be
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The Court further finds that the number of hours expended on
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this case was unreasonable.
Four different partners devoted a
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total of 406.2 hours on this case.
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counsel indicates that each partner has different areas of
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expertise, it is not clear why it was necessary to utilize four
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partner level attorneys instead of delegating tasks to associate
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attorneys.
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the redundant invoice entries.
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and examined every billing entry in the invoices provided in
Bay Decl. ¶¶ 4–7.
Although
The inefficiency in this structuring is reflected in
The Court has carefully reviewed
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support of Plaintiff’s request.
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billed for attorney services that were determined to be redundant
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(i.e. attorneys reviewing the same filings or revising the same
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documents multiple times) has been reduced accordingly.
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ensure compensation is limited to only those hours reasonably
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expended, the hours and corresponding fee award are reduced as
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follows (changes underlined):
Hours Awarded
Timekeeper
(Hours Requested)
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See Bay Decl., Exh. A.
Time
To
Billed/Hour
Bill Amount
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August 2017
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Bay
20.7 (21.8)
$365.00
$7,555.50
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Brown
8.5 (12.5)
$365.00
$3,102.50
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Fink
4.5
$365.00
$1,642.50
Hockett
22.2 (29.6)
$365.00
$8,103.00
Sachtleben
6.6 (8.3)
$75.00
$495.00
Total
62.5 (76.7)
--
$20,898.50
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September 2017
Bay
19.7 (21.7)
$365.00
$7190.50
Brown
5.5 (8)
$365.00
$2007.50
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Fink
.7
$365.00
$255.50
Hockett
12.1 (14.8)
$365.00
$4416.50
Sachtleben
7.8 (8.5)
$75.00
$585.00
Total
45.8 (53.7)
--
$14455.00
Bay
1.0
$365.00
$365.00
Brown
1.2 (3.8)
$365.00
$438.00
Fink
1.3
$365.00
$474.50
Hockett
2.5 (3.8)
$365.00
$912.50
Sachtleben
.5
$75.00
$37.50
Total
6.5 (10.4)
--
$2227.50
Bay
15.3
$365.00
$5584.50
Brown
12 (17)
$365.00
$4380.00
Hockett
.7
$365.00
$255.50
Sachtleben
0 (.2)
$75.00
0
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Total
32.1 (33.2)
--
$11716.50
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December 2017
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Bay
4.9 (5.1)
$365.00
$1788.50
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Brown
5.6 (7.1)
$365.00
$2044.00
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Fink
0 (.2)
$365.00
0
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Hockett
2.2 (3.6)
$365.00
$803.00
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Huning
.6
$75.00
$45.00
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Sachtleben
0 (.1)
$75.00
0
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Total
13.3 (16.7)
--
$4680.50
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January 2018
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Bay
37.3 (39.2)
$365.00
$13614.50
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October 2017
November 2017
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Brown
3.4 (3.8)
$365.00
$1241.00
Fink
29.8 (30.8)
$365.00
$10877.00
Hockett
2.2 (2.6)
$365.00
$803.00
Sachtleben
.4 (.5)
$75.00
$30.00
Total
73.1 (76.9)
--
$26565.50
Bay
10.2
$365.00
$3723.00
Fink
1.5 (2.2)
$365.00
$547.50
Hockett
0 (.4)
$365.00
0
Sachtleben
0 (.1)
$75.00
0
Total
11.7 (12.9)
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$4270.50
February 2018
March 2018 (less fees awarded/considered in Contempt Order)
Bay
4 (24.2)
$385.00
$1540.00
Brown
0 (1.2)
$385.00
0
Fink
3.1 (26.6)
$385.00
$1193.50
Hockett
0 (.1)
$385.00
0
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Sachtleben
0 (.3)
$75.00
0
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Total
7.1 (52.4)
--
$2733.50
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April 2018 (less fees awarded/considered in Contempt Order)
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Bay
9.6 (41.9)
$385.00
$3696.00
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Brown
1.3 (13.2)
$385.00
$500.50
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Fink
27.2 (33.1)
$385.00
$10472.00
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Hockett
.2 (.7)
$385.00
$77.00
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Sachtleben
0 (.5)
$75.00
0
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Total
38.3 (89.4)
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$14745.50
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Grand Total $102,293.00
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The Court finds Plaintiff is entitled to $102,293.00 in
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attorneys’ fees.
These fees are awarded in addition to the
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$15,000 in fees the Court previously awarded in connection with
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Plaintiff’s motion for contempt.
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none of the Kerr factors warrant an increase or decrease in this
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award.
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II.
The Court further finds that
NONTAXABLE EXPENSES
Plaintiff also seeks $30,881.88 for related nontaxable
expenses.
These expenses include $299.70 for delivery service
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and mailing costs, $2113.46 for counsels’ travel expenses,
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$10,000 for the premium for the surety bond that Plaintiff was
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required to post to obtain the prejudgment injunctive relief that
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the Court entered in September 2017, and $17,968.72 for 24-hour
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surveillance on Marker Oil until the temporary restraining order
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was entered.
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recovery of such costs, Plaintiff cites Section 20(c) of the
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Inventory Security Agreement, ECF No. 1-1, and the last sentence
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of the first paragraph of the Guaranty, ECF No. 1-4.
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Mot. at ¶ 7; Bay Decl. at ¶ 20.
As grounds for
“Under the ‘American rule,’ litigants ordinarily are
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required to bear the expenses of their litigation unless a
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statute or private agreement provides otherwise.”
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Fargo Fin. Cal., Inc., 606 F.3d 577, 579 (9th Cir. 2010)
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(citation omitted).
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attorneys’ fees provision in a contract, federal courts must
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apply state law.”
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17-1111 PA (SKx), 2017 WL 8220421, at *1 (C.D. Cal. Oct. 13,
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2017) (citing Resolution Trust Corp. v. Midwest Fed. Sav. Bank of
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Minot, 36 F.3d 785, 800 (9th Cir. 1993)).
Grove v. Wells
“When determining the applicability of an
Monster Energy Co. v. Sainte Claire, No. ED CV
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“California law
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authorizes the recovery of attorneys’ fees pursuant to
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contractual provisions.”
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*1 (C.D. Cal. Oct. 13, 2017).
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Monster Energy Co., 2017 WL 8220421, at
The contract at issue in this action has an Illinois choice
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of law provision.
See Inventory Security Agreement ¶ 16.
It
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appears that Illinois courts, similarly, follow the American Rule
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and only award fees where explicitly provided by statute or
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agreement.
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(1991).
See Helland v. Helland, 214 Ill. App. 3d 275, 277
“Contractual provisions for attorney fees must be
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strictly construed, and the court must determine the intention of
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the parties with respect to the payment of attorney fees.”
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at 277–78.
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Id.
Plaintiff did not address how the choice of law provision
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affects the Court’s analysis.
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discuss any legal authority to assist the Court in determining
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the scope of awardable attorneys’ fees and nontaxable expenses.
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The Agreement’s attorneys’ fees and expenses provision is written
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to cover a broad range of expenses and is written to entitle
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Plaintiff (Lender) to all of its fees and expenses, but not
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Defendants (Dealer).
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Plaintiff has cited no authority supporting the validity of such
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a broad, one-sided provision.
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Indeed, Plaintiff did not cite or
See Inventory Security Agreement ¶ 20(c).
Due to this deficiency the Court will award only those
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expenses regularly regarded as awardable attorneys’ fees.
For
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instance, attorneys’ fees awards can include reimbursement for
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out-of-pocket expenses including travel, courier, and copying
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costs.
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Francisco, 976 F.2d 1536, 1556 (9th Cir.1992), vacated in part on
See Grove, 606 F.3d at 580 (citing Davis v. City of San
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other grounds, 984 F.2d 345).
“[C]ourts have long held that
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certain non-taxable costs can be awarded as part of a reasonable
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attorneys’ fee since they are typically charged to paying clients
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by private attorneys.”
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976 F.2d at 1556).
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request for delivery service and mailing costs, travel expenses
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of counsel, and the premium for the surety bond, totaling
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$12,413.16.
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reimbursement of $17,968.72 for 24-hour surveillance because
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Plaintiff failed to provide sufficient legal support for the
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request and failed to show that this expense was reasonably
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undertaken.
Grove, 606 F.3d at 580 (quoting Davis,
Accordingly, the Court grants Plaintiff’s
The Court denies Plaintiff’s request for
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III.
ORDER
For the reasons set forth above, the Court grants in part
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and denies in part Plaintiff’s Motion for Attorneys’ Fees and
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Taxable Costs and ORDERS Defendants to pay Plaintiff:
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1.
$102,293.00 in attorneys’ fees, in addition to the
$15,000 previously awarded, ECF No. 51; and
2.
Dated:
$12,413.16 in nontaxable expenses.
July 25, 2018
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