Yellowstone Poky, LLC. v. First Pocatello Associates, L.P.
Filing
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MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR ATTORNEY FEES & COSTS. First Pocatellos renewed motion for attorney fees and costs (Dkt. 164 ) is GRANTED. The Court awards First Pocatello attorney fees in the amount of $133,654.50 and costs in the amount of $949.26. Signed by Judge Dee V Benson. (alw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
YELLOWSTONE POKY, LLC, an Idaho
Limited Liability Company,
Plaintiff,
vs.
FIRST POCATELLO ASSOCIATES, L.P.,
A New Jersey Limited Partnership,
MEMORANDUM DECISION
AND ORDER
GRANTING MOTION FOR
ATTORNEY FEES & COSTS
Defendant.
___________________________________
FIRST POCATELLO ASSOCIATES, L.P.
Case No. 4:16-cv-00316
Counterclaimant,
Judge Dee Benson
vs.
YELLOWSTONE POKY, LLC, and
FEATHERSTON HOLDINGS, INC.
Counterdefendants.
Before the Court is Defendant First Pocatello Associates, L.P.’s (“First Pocatello’s”)
Renewed Motion for Award of Attorney Fees and Costs. (Dkt. 164). Plaintiff Yellowstone Poky
did not respond to the motion, and the deadline for filing a response has passed. For the reasons
set forth below, the Court grants the motion.
BACKGROUND
Plaintiff Roger Featherson, Featherston Holdings, and Yellowstone Poky, LLC
(“Yellowstone Poky”), brought this diversity action against First Pocatello, alleging breach of
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agreement and other claims arising from an aborted real property deal. See Yellowstone Poky,
LLC v. First Pocatello Assocs., L.P., ___ F. App’x ___, 2020 WL 1231356, at *1 (9th Cir. 2020).
On February 27, 2018, this Court granted First Pocatello’s motion for summary judgment and
dismissed with prejudice Count One of Yellowstone Poky’s Second Amended Complaint
alleging breach of contract and breach of implied covenant of good faith and fair dealing. (Dkt.
97.) The Court also granted summary judgment in favor of First Pocatello on its First
Counterclaim (seeking declaratory judgment that the underlying purchase agreement was void
and unenforceable for failure to satisfy Idaho’s statute of frauds) and Third Counterclaim
(quieting title of the property at issue in favor of First Pocatello). (Dkt. 119.) On January 11,
2019, the Court granted First Pocatello’s motion for entry of final judgment as to Count One of
the Second Amended Complaint as well as the First and Third Counterclaims. (Dkt. 131.)
On January 25, 2019, First Pocatello, as the prevailing party, filed a motion for attorney
fees and costs pursuant to 12-120(3). (Dkt. 135.) On February 8, 2019, Yellowstone Poky
appealed the Judgment entered in First Pocatello’s favor. (Dkt. 137.) Yellowstone Poky then
opposed First Pocatello’s motion for attorney fees, arguing that the motion was premature
because “uncertainty remain[ed] as to the overall outcome of this action.” (Dkt. 138 at 2.)
Yellowstone Poky did not object to the reasonableness of the number of hours or to the
reasonableness of the hourly rates submitted to the Court by First Pocatello in the Declaration of
Howard D. Burnett in support of the motion for fees and costs, nor did Yellowstone Poky dispute
that Idaho Code § 12-120(3) and ¶¶ 31 and 32 of the Real Estate Purchase and Sale Agreement at
issue in the lawsuit provided a legal basis for First Pocatello to recover its attorney fees and
costs. Yellowstone Poky’s sole objection to the motion for attorney fees and costs was that a
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determination of the “prevailing party” was premature in light of Yellowstone Poky’s thenpending appeal to the Ninth Circuit and in light of the other then-remaining claims in this action.
In light of the pending appeal, this Court temporarily denied First Pocatello’s motion for
attorney fees and costs, but granted Defendant “leave to renew the motion following disposition
of the remaining claims in this action and following the resolution of the matter on appeal.”
(Dkt. 148 at 3.)
On March 13, 2020, the United States Court of Appeals for the Ninth Circuit affirmed
this Court’s grant of partial summary judgment in favor of First Pocatello, and on April 6, 2020,
the Ninth Circuit issued its Mandate fully resolving the appeal. (Dkts. 156 & 157, respectively.)
First Pocatello filed a motion for attorneys’ fees and non-taxable costs on appeal. Yellowstone
Poky did not file an opposition. The Ninth Circuit granted First Pocatello’s motion and awarded
First Pocatello attorneys’ fees and non-taxable costs in the amount of $88,983.95. (Dkt. 159.) 1
After the appeal, the only outstanding claim in the Second Amended Complaint was
Count Two, for unjust enrichment. On May 22, 2020, First Pocatello filed a motion seeking
dismissal of Count Two on the basis that it was moot given the Ninth Circuit’s Mandate. (Dkt.
163.) As First Pocatello explained: “By operation of law, and as a direct result of the Agreement
being unenforceable, the Agreement now must be unwound, resulting, at least nominally, in a
conditional authorization for a return to Yellowstone Poky of earnest money deposits made on
behalf of Yellowstone Poky … pursuant to the Agreement,” subject to an immediate equitable
right of setoff in favor of First Pocatello. (Dkt. 163-1 at 3.) Yellowstone Poky did not oppose
the motion. Accordingly, this Court granted the motion and dismissed Count Two on the basis
Consistent with the Ninth Circuit’s Mandate (Dkt. 159), this Court entered Judgment awarding fees and costs on
appeal. (Dkt. 171.)
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that it was moot. 2 Having dismissed Count Two, all the counts in Yellowstone Poky’s Second
Amended Complaint have been resolved and the Court finds First Pocatello to be the prevailing
party. 3
On May 22, 2020, First Pocatello filed a Renewed Motion for Attorney Fees and Costs,
seeking attorney fees in the amount of $133,654.50 and taxable costs in the amount of $949.26.
(Dkt. 164.) Plaintiff Yellowstone Poky did not respond to the renewed motion.
DISCUSSION
Idaho law governs the award of attorney fees in this matter because federal courts must
follow state law as to attorney fees in diversity actions. Kayser v. McClary, 875 F.Supp.2d 1167,
1183 (D. Idaho 2012). First Pocatello requests attorney fees pursuant to Idaho Code § 12-120(3)
and the Real Estate Purchase and Sale Agreement that was at issue in the suit.
Idaho Code Section 12-120(3) provides:
In any civil action to recover on … [a] contract relating to the purchase or sale of good,
wares, merchandise, or services and in any commercial transaction unless otherwise
provided by law, the prevailing party shall be allowed a reasonable attorney’s fee to be
set by the court, to be taxed and collected as costs.
Idaho Code § 12-120(3). There is no question in this case that First Pocatello is the prevailing
party. Likewise, there is no dispute that the claim arose out of a commercial transaction.
Accordingly, the Court finds that First Pocatello is entitled to its reasonable costs and fees.
The Court’s order dismissing Count Two of the Second Amended Complaint was entered on the same date and
simultaneous with this Memorandum Decision and Order.
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Count One, breach of contract, was dismissed with prejudice by the Court on February 27, 2018, and the dismissal
affirmed by the Ninth Circuit in its March 13, 2020 Memorandum (Dkt. 156) and its April 6, 2020 Mandate (Dkt.
157). Count Two, unjust enrichment, was dismissed as moot by the Court in an Order entered simultaneously with
this Memorandum Decision and Order. Count Three, preliminary injunction, was denied by the Court on January
30, 2018 (Dkt. 96) and in any event was based on Yellowstone Poky’s alleged contractual rights that have been
extinguished by the dismissal with prejudice of Count One. Count Four, misappropriation of trade secrets, was
resolved pursuant to the parties’ stipulation and dismissed with prejudice by the Court on April 2, 2019 (Dkt. 155).
First Pocatello’s Second Counterclaim was pled “in the alternative” to the First Counterclaim that was
resolved in favor of First Pocatello. Accordingly, the Court dismissed First Pocatello’s Second Counterclaim on
mootness grounds in an Order entered simultaneously with this Order.
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When determining the amount of attorney fees to be awarded under Idaho Code § 12120(3), federal courts sitting in diversity consider the reasonableness factors set forth in Idaho R.
Civ. P. 54(e)(3); see Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1024 (9th
Cir. 2003) (“An award of attorneys’ fees incurred in a suit based on state substantive law is
generally governed by state law.”).
Idaho Rule of Civil Procedure 54(e)(3) requires the Court to consider the following
factors in determining the amount of reasonable attorney fees:
(A) The time and labor required.
(B) The novelty and difficulty of the questions.
(C) The skill requisite to perform the legal service properly and the experience
and ability of the attorney in the particular field of law.
(D) The prevailing charges for like work.
(E) Whether the fee is fixed or contingent.
(F) The time limitations imposed by the client or the circumstances of the case.
(G) The amount involved and the results obtained.
(H) The undesirability of the case.
(I) The nature and length of the professional relationship with the client.
(J) Awards in similar cases.
(K) The reasonable cost of automated legal research (Computer Assisted
Research), if the court finds it was reasonably necessary in preparing a party’s
case.
(L) Any other factor which the court deems appropriate in the particular case.
Idaho R. Civ. P. 54(e)(3). 4
The lodestar calculation method takes into consideration most of the same factors enumerated in Idaho Rule of
Civil Procedure 54(e)(3). See, e.g., Kerr v. Screen Extras Guild, Inc. 526 F.2d 67, 70 (9th Cir. 1975) (setting forth
the factors to be considered in determining the reasonableness of an attorney fees request.), abrogated on other
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The Court must exercise its discretion when considering the existence and applicability of
each factor, giving no one factor undue weight or emphasis. Nalen v. Jenkins, 763 P.2d 1081,
1083 (Idaho Ct. App. 1998). “Although these factors must be considered, the Court is not
required to make specific findings in the record with regard to how it employed or applied any of
the factors.” Smith v. Mitton, 104 P.3d 367, 376 (Idaho 2004); see Thomas v. Thomas, 249 P.3d
829, 839 (Idaho 2011) (“The court need not specifically address all of the factors contained in
I.R.C.P. 54(e)(3) in writing, so long as the record clearly indicates the court considered all of
them.”); see also Western Mortgage & Realty Co. v. KeyBank National Ass’n, Slip Copy, 2019
WL 5873455, at *3 (D. Idaho Jan. 2, 2019) (“Although a trial court is not required to make
‘specific findings demonstrating how it employed any of the factors in Rule 54(e)(3),’ it is
required to consider those factors when determining the amount of fees to award.”). Importantly,
the Court possesses considerable discretion in determining the reasonableness of an attorney fees
request. See Webb v. Ada County, 195 F.3d 524, 526 (9th Cir. 1999).
First Pocatello seeks fees in the amount of $133,654.50 for 584 hours of work. The
Court has considered each of the factors set forth in Rule 54(e)(3) and finds that the attorney fees
set forth in counsel’s declaration in support of the motion for fees and costs are reasonable.
The case was litigated by experienced attorneys. The specific billing rate for each
attorney who worked on the case is set forth in detail in detail in Howard D. Burnett’s
Declaration in support of the motion. (Dkt. 135-2 at 7 & Exhibit A.) The hourly rates charged
by Mr. Burnett and the other attorneys identified in the Declaration are comparable to the
reasonable hourly rates of attorneys of similar experience and similar work in this area.
grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989); see also Western Mortgage & Realty Co. v. KeyBank
National Ass’n, Slip Copy, 2019 WL 5873455 (D. Idaho Jan. 2 2019) (“The Kerr factors are also reflected in Idaho
law and are specifically enumerated in Idaho Rule of Civil Procedure 54(e)(3).”).
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As to the total number of hours billed, the Court finds them to be within reasonable limits
given the manner in which the case progressed, the claims raised, and the volume of filings. The
litigation was hotly contested and continued for over 4 years. Willnerd v. Sybase, Inc., 2012 WL
175341, at *5 (D. Idaho Jan. 20, 2012 (unpublished) (“With increased legal jousting comes the
price of attorney fees to the prevailing party.”). Additionally, the amount in controversy was
significant, centering on a proposed-but-never-consummated $21,000,000 transaction involving
the Gateway West Industrial Center. Finally, the Court notes that Yellowstone Poky did not
object to either the reasonableness of the hourly rates submitted by First Pocatello or the
reasonableness of the number of hours billed. (Dkt. 138 at 2, opposing Defendant’s motion for
fees and costs because it was “premature” due to “uncertainty remaining as to the overall
outcome”.)
Therefore, after considering the Rule 54(e)(3) factors, the Court, exercising its discretion,
awards First Pocatello, as the prevailing party, attorney fees in the amount of $133,654.50. The
Court also awards costs in the amount of $949.26, consistent with the detailed Bill of Costs
previously filed with the Court. (Dkt. 146.)
Based on the foregoing, IT IS HEREBY ORDERED:
First Pocatello’s renewed motion for attorney fees and costs (Dkt. 164) is GRANTED.
The Court awards First Pocatello attorney fees in the amount of $133,654.50 and costs in the
amount of $949.26.
DATED this 28th day of September, 2020.
__________________________________
Judge Dee Benson
United States District Judge
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