Lemieux et al v. CWALT, Inc et al
ORDER granting 62 Motion for Attorney Fees. Signed by Magistrate Judge Jeremiah C. Lynch on 3/21/2017. (TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
DAWN C. LEMIEUX and STEVE G.
CWALT, INC. ALTERNATIVE LOAN
TRUST 2006-33CB, BAYVIEW LOAN
SERVICING, LLC., ASSET
FORECLOSURES SERVICES a/k/a
PEAK FORECLOSURE SERVICES,
INC., and UN-NAMED DOES 1-100,
By Order entered February 15, 2017, this diversity action was dismissed for
lack of prosecution under authority of Fed. R. Civ. P. 41(b), a dismissal which
operated as an adjudication on the merits in favor of the Defendants. Liability
upon Defendants’ counterclaim for attorneys’ fees and costs was also entered in
Presently before the Court is Defendants’ motion under Fed. R. Civ. P. 54
requesting an award of attorneys’ fees and costs incurred in defense of Plaintiffs’
claims. Defendants predicate their motion upon the attorney fees and cost
provisions of the promissory note and related trust indenture that lie at the center
of this controversy. Consistent with the decisional law of Montana, Defendants –
as the prevailing party – are entitled, pursuant to the terms of the promissory note,
to recover their attorneys’ fees and costs reasonably incurred in the defense of this
action.1 See, Lewistown Propane Co. v. Moncur, 61 P.3d 780, 783-84 (Mont.
The Defendants have satisfied the procedural requirements of Fed. R. Civ.
P. 54(d)(2)(B) by submitting the affidavit of counsel stating: (1) the hours spent by
counsel in defending; (2) the hourly rate charged by counsel in accordance with
the retainer extant between counsel and the Defendants; (3) the attorneys fees
billed to Defendants; and (4) actual costs incurred in defending.
Review of the record reflects the Plaintiffs have not filed a response to the
Defendants’ motion within the time prescribed by L.R. 7.1(d)(1)(B)(ii) – a failure
that under the rule may be deemed an admission that the motion is well taken. Nor
have the Plaintiffs requested an opportunity to file submissions on the motion
Because jurisdiction is based on diversity of citizenship, the Court applies
the substantive law of Montana, the forum state. Medical Laboratory Mgmt.
Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 812 (9th
pursuant to Fed. R. Civ. P. 43.
Findings of Fact and Conclusions of Law
In December of 2015, Defendants retained the services of the law firm
Davis, Hatley, Haffeman & Tighe, P.C. Defendants agreed to pay for the services
of Maxon Davis, Esq., Derek Oestreicher, Esq., and Benjamin Burns at the hourly
rate of $275.00. $150.00, and $150.00, respectively. Based upon the affidavit of
Mr. Davis, and given the Court’s familiarity with the hourly rates being charged
by practitioners in the District of Montana with experience and skills similar to the
two referenced attorneys, the Court finds the hourly fees charged by these two
attorneys to be entirely reasonable and consistent with prevailing rates in the
District of Montana.
The Defendants were billed for services performed by the three referenced
attorneys during the time frame of December 2015 through February 2017 in the
total amount of $25,422.50:
Davis: 66 hours at $175.00 per hour
Burns: 15 hours at $150.00 per hour
Oestreicher: 27 hours at $150.00 per hour
Being intimately familiar with the proceedings in this matter – from the
filing of the complaint to the time of trial – the 108 hours of attorney time
expended in defense is entirely reasonable. Consequently, using the standard
lodestar method for calculating attorneys’ fees, the Court finds the Defendants are
entitled to an attorney fee award in the amount of $25,422.50. The Court also
finds the Plaintiffs lack of response to the Defendants’ motion is an admission to
the reasonableness of the amount requested.
The Defendants have also established they incurred litigation costs in the
total amount of $1,794.81 – an amount the Court finds to be reasonably expended
in defending this action. The Plaintiffs’ lack of response is likewise deemed an
admission the costs requested are reasonable.
Therefore, IT IS HEREBY ORDERED that Defendants’ motion is
GRANTED. The Defendants are entitled to recover from the Plaintiffs, jointly and
severally, attorneys’ fees and costs in the total amount of $27,217.31. The Clerk
of Court is directed to enter judgment in favor of the Defendants and against the
Plaintiffs’ upon both the Plaintiffs’ complaint and the Defendants’ counterclaim,
with Defendants entitled to recover of the Plaintiffs jointly and severally in the
monetary sum of $27,217.31.
DATED this 21st day of March, 2017.
Jeremiah C. Lynch
United States Magistrate Judge
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