Pasina et al v. California Casualty Indemnity Exchange
Filing
284
ORDER Denying 187 Plaintiff's Motion for Attorney Fees; Denying 252 Defendant's Motion for Attorney Fees; Denying 261 Plaintiff's Motion for Judgment Notwithstanding the Verdict; Denying 262 Plaintiff's Motion for New Trial; and Denying 264 Defendant's Motion to Interplead Funds and Motion for $15,000 Offset Against Costs Owed to CCIE by plaintiff. Signed by Chief Judge Robert C. Jones on 7/5/11. (Copies have been distributed pursuant to the NEF - EDS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CINDY CHARYULU, as Special
Administratix for the Estate of FATU
TAPUTU
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Plaintiff,
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v.
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CALIFORNIA CASUALTY INDEMNITY
EXCHANGE, and DOES I through V,
inclusive, ROE CORPORATIONS I through
V,
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)
2:08-cv-1199-RCJ-RJJ
ORDER
Defendants.
___________________________________
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Currently before the Court are Plaintiff’s Motion for Attorney Fees and Costs (#187);
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Defendant’s Motion for Attorney's Fees and Costs (#252); Plaintiff’s Motion for Judgment
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Notwithstanding the Verdict (#261); Plaintiff’s Motion for a New Trial (#262); and Defendant’s
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Motion to Interplead Funds and Motion for $15,000 Offset Against Costs Owed to CCIE by
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Plaintiff (#264). The Court heard oral argument on June 3, 2011.
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BACKGROUND
Christopher Ramirez and Kamila Pasina, as the Special Administrator of the Estate
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of Fatu Taputu, brought a claim against Defendant California Casualty Indemnity Exchange
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for breach of contract, insurance bad faith, and other theories of recovery for the manner in
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which Defendant handled a claim for personal injuries stemming from an automobile accident
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which occurred on June 21, 2004. Tricia Maldonado, who had a personal liability policy with
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Defendant insurance company, gave Christopher Ramirez permission to drive her car. While
driving her car, he struck Fatu Tatupu as he was walking on the side of the road. Tatupu
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suffered fatal injuries and his heirs submitted a claim under the liability portions of Defendant’s
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policy for the vehicle. Pasina, on behalf of Taputu’s estate, submitted a claim with the
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Defendant and also filed against Ramirez for negligence, and against Tricia Maldonado for
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negligent entrustment. The case against Ramirez was resolved in a stipulated judgment for
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$1.2 million, not involving Defendant. The case against Maldonado was resolved by a jury trial
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in which the jury found in favor of Maldonado. Ramirez pled guilty when criminal charges were
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brought against him for driving under the influence and or being under control of a vehicle
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resulting in substantial bodily harm. The Court dismissed Ramirez from the lawsuit.
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On September 17, 2010, the Court granted Plaintiff’s motion to amend caption and
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change the Special Administrator of the Estate of Fatu Taputu to Cindy Charyulu (“Plaintiff”).
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(Minutes (#186); Motion to Amend Caption (#148)). A five-day jury trial commenced on
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November 5, 2010. (See Minutes (#237)). The jury found in favor of Defendant. (See Jury
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Verdict (#246)).
DISCUSSION
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I.
Plaintiff’s Motion for Attorney Fees and Costs Incurred (#187)
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Plaintiff files a motion, pursuant to 28 U.S.C. § 1927, for attorneys fees and costs
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incurred in opposing Defendant’s Renewed Motion for Summary Judgment (#137),
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Countermotion to Dismiss (#153), Motion for Sanctions (#154), Motion to Deem Assignment
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Invalid (#159), and Renewed Motion to Disqualify David Sampson, Esq. (#175). (Mot. for Att’y
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Fees (#187) at 1-2). Plaintiff argues that she should get fees for responding to Defendant’s
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Renewed Motion for Summary Judgment (#137) because it was the fourth motion for summary
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judgment filed in this case. (Id. at 3). She seeks $8,837.50 in fees for that motion. (See id.
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at 4). She seeks $10,512.50 in fees for responding to Defendant’s Countermotion to Dismiss
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(#153) and Motion for Sanctions (#154) because Defendant filed three motions to dismiss.
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(Id. at 4-5). She seeks $5387.50 in fees for responding to Defendant’s Motion to Deem
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Assignment Invalid (#159) because Defendant “elected to collaterally attack” the assignment
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instead of accepting the Court’s ruling on the assignment’s validity. (Id. at 5). She seeks
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$4275 in fees for responding to Defendant’s Renewed Motion to Disqualify David Sampson,
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Esq. (#175) because Defendant filed the motion instead of accepting the Court’s ruling. (Id.
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at 6).
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In response, Defendant argues that its motions for summary judgment were not
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duplicative. (Resp. to Mot. for Att’y Fees (#194) at 4-6). Defendant asserts that the motions
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to dismiss were not duplicative and that Plaintiff failed to offer an argument as to why she was
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entitled to fees for its motion for sanctions (#154). (Id. at 6-7). Defendant contends that its
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motion to deem the assignment invalid was not duplicative of an earlier motion. (Id. at 7).
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Defendant argues that most of these motions were filed after depositions. (Id. at 2).
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Defendant contends that its motions to disqualify were not identical and that the renewed
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motion was filed after depositions. (Id. at 8).
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Pursuant to 28 U.S.C. § 1927, “[a]ny attorney or other person admitted to conduct
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cases in any court of the United States . . . who so multiplies the proceedings in any case
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unreasonably and vexatiously may be required by the court to satisfy personally the excess
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costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28
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U.S.C. § 1927. Sanctions under this section “must be supported by a finding of subjective bad
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faith.” In re Keegan Mgmt., Sec. Litig., 78 F.3d 431, 436 (9th Cir. 1996). “Bad faith is present
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when an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious
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claim for the purpose of harassing an opponent.” Id.
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In this case, the Court denies the motion for attorneys’ fees and costs for responding
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to various motions. First, Plaintiff fails to make an argument as to why she should receive fees
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for responding to the Motion for Sanctions (#154). (See Mot. for Att’y Fees (#187) at 4-5).
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Second, although Defendant filed multiple summary judgments, each sought summary
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judgment on different issues, including bad faith, punitive damages, and validity of an October
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7, 2009 assignment. (See Mot. for Summ. J. (#57); Mot. for Partial Summ. J. (#87); Mot. for
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Summ. J. (#159)). Additionally, Defendant’s renewed motion for summary judgment (#137)
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sought reconsideration of the Court’s prior ruling based on a then-recently decided federal
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Nevada case. (See Renewed Mot. for Summ. J. (#137) at 1-2). Third, although Defendant
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filed multiple motions to dismiss, each sought dismissal on a different ground, including lack
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of standing for Christopher Ramirez and Kamilla Pasina as third party beneficiaries, lack of
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standing for Pasina for failure to demonstrate a valid assignment of rights, and attorney fraud.
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(See Mot. to Dismiss (#9) at 5, 8; Mot. to Dismiss (#27) at 1; Counter Motion to Dismiss (#153)
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at 11). Finally, the two motions to disqualify Plaintiff’s counsel were different because the
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latter motion was based on evidence acquired after depositions were conducted. (See
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Renewed Mot. to Disqualify (#175) at 3-4). Accordingly, the Defendant did not act in bad faith
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and the Court denies the motion for attorneys’ fees and costs (#187).
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II.
Defendant’s Motion for Attorneys’ Fees and Costs (#252)
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Defendant moves for $548,486 in attorneys’ fees and $25,857.19 in costs as the
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prevailing party in this action. (Mot. for Att’y Fees (#252) at 1, 3). Specifically, Defendant
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seeks costs as the prevailing party under Fed. R. Civ. P. 54(d)(1) and NRS § 18.020. (Id. at
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4). Defendant seeks costs and attorneys’ fees under Fed. R. Civ. P. 68 and NRS § 17.115
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because Plaintiff failed to recover more than Defendant’s tendered offer of judgment. (Id. at
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5). Defendant also seeks attorneys’ fees under NRS § 18.010 because Plaintiff brought
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claims without reasonable grounds, in bad faith, to harass Defendant. (Id. at 7-13). Defendant
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seeks fees and costs under 28 U.S.C. § 1927 and under this Court’s inherent authority. (Id.
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at 13, 15). Defendant argues that any award of attorneys’ fees and costs should also be
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imputed to University Medical Center (“UMC”) because Plaintiff’s counsel and UMC arranged
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to have Charyulu of UMC substituted as the Special Administratix of the Estate. (Id. at 17).
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In support of its motion, Defendant attaches a Bill of Costs, Witness Fees, a Memorandum of
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Costs, an Expense Report, and Time Detail Reports. (See Exhs. C-D (#252-3, 252-4)).
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In response, Plaintiff argues that she was the prevailing party because this Court
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granted her motion for a directed verdict on the breach of contract claim. (Opp’n to Att’y Fees
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(#259) at 3). She asserts that Defendant prevailed on the bad faith claim while she prevailed
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on the breach of contract claim in which Defendant agreed to pay the $15,000 policy limit and,
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thus, costs are not warranted. (Id. at 4). Alternatively, she argues that if costs are awarded,
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they should be reasonable and supported by necessary documentation. (Id.). She asserts that
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Defendant “provided no such documentation and simply listed the alleged costs out in a cost
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memo.” (Id.). She asserts that Defendant needs to present receipts and check stubs. (Id. at
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9). She asserts that NRS § 17.115 does not allow an award of attorneys’ fees in this action
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because it conflicts with Fed. R. Civ. P. 68. (Id. at 5-6). She asserts that her actions were not
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unreasonable or vexatious and that no attorneys’ fees are warranted under 28 U.S.C. § 1927
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or NRS § 18.010(2)(b). (Id. at 6-9).
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In reply, Defendant asserts that Plaintiff was not the prevailing party on the breach of
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contract claim because that claim was not sent to a jury and there was no verdict. (Reply to
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Mot. for Att’y Fees (#270) at 3-4). Defendant argues that Plaintiff does not dispute the costs
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incurred by Defendant because she only states that it should be supported by the necessary
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documentation. (Id. at 5). Defendant notes that Plaintiff does not dispute that an award of
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costs and fees should be imputed to UMC. (Id. at 10).
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A.
Costs
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Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal statute, these
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rules, or a court order provides otherwise, costs–other than attorney’s fees–should be allowed
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to the prevailing party.” Fed. R. Civ. P. 54(d)(1). For purposes of this rule, a “party in whose
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favor judgment is rendered is generally the prevailing party for purposes” of this rule.
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d’Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 896 (9th Cir. 1977). Rule 54 defines
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“judgment” as “a decree and any order from which an appeal lies.” Fed. R. Civ. P. 54(a).
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Nevada Revised Statute § 18.020 states that “[c]osts must be allowed of course to the
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prevailing party against any adverse party against whom judgment is rendered . . . In an action
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for the recovery of money or damages, where the plaintiff seeks to recover more than $2,500.”
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NRS § 18.020(3).
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In this case, the Court entered a judgment on jury verdict in favor of Defendant.
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(Judgment (#256)). However, the Court also granted Plaintiff’s motion for a directed verdict
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on the breach of contract claim for $15,000. (Minutes (#241) at 2). Therefore, both parties
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prevailed in this action. Accordingly, the Court denies costs to both parties.
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B.
Attorneys’ Fees under Offer of Judgment Rule
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Under Federal Rule of Civil Procedure 68, a party defending a claim may serve on an
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opposing party, at least 14 days before a date set for trial, an offer to allow judgment on
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specified terms, with the costs then accrued. Fed. R. Civ. P. 68(a). If the offeree rejects the
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offer and the “judgment that the offeree finally obtains is not more favorable than the
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unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Fed. R.
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Civ. P. 68(d).
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Nevada has a similar “offer of judgment” rule but provides that if the party who rejects
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an offer of judgment fails to obtain a more favorable judgment, the court “may order the party”
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to pay the offering party “[r]easonable attorney’s fees incurred by the party who made the offer
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for the period from the date of service of the offer to the date of entry of the judgment.” NRS
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§ 17.115(4)(d)(3).
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In diversity cases, the court applies federal law if the law is procedural and state law if
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the law is substantive. Walsh v. Kelly, 203 F.R.D. 597, 598 (D. Nev. 2001) (citing Erie R.R.
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Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). If the two rules conflict,
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the federal rule applies if it is “sufficiently broad to control an issue.” Id. (citing Hanna v.
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Plumer, 380 U.S. 460, 471-72, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)). “Statutes allowing for
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recovery of attorney’s fees are considered substantive for Erie purposes” and “will be applied
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in diversity cases unless they conflict with a valid federal statute or procedural rule.” Id.
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In Walsh, a plaintiff received a judgment which was less than the offer of judgment
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made by the defendants. Id. at 599. That court addressed whether NRS § 17.115 conflicted
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with Fed. R. Civ. P. 68 because the Nevada statute provided for both costs and attorneys’ fees
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while the federal rule only provided for costs. Id. at 600. The court determined that Fed. R.
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Civ. P. 68 was sufficiently broad to cover the point in dispute–offer of judgment rules. Id. The
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court found that the award of attorneys’ fees in NRS § 17.115 conflicted with Fed. R. Civ. P.
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68. Id. The court concluded that Fed. R. Civ. P. 68 applied and defendants could not recover
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attorneys’ fees based on their rejected offer of judgment. Id. at 601.
Accordingly, the Court finds that Defendant is not entitled to attorneys’ fees under NRS
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§ 17.115.
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C.
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Under Nevada Revised Statute § 18.010(2), a court may make allowance of attorney’s
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fees to a prevailing party “when the court finds that the claim, counterclaim, cross-claim or
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third-party complaint or defense of the opposing party was brought or maintained without
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reasonable ground or to harass the prevailing party.” NRS § 18.010(2)(b). “The court shall
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liberally construe the provisions of this paragraph in favor of awarding attorney’s fees in all
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appropriate situations.” Id. “It is the intent of the [Nevada] Legislature that the court award
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attorney’s fees pursuant to this paragraph and impose sanctions pursuant to Rule 11 of the
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Nevada Rules of Civil Procedure in all appropriate situations to punish for and deter frivolous
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or vexatious claims and defenses.” Id.
As noted above, the Court finds that both parties prevailed and, therefore, denies an
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Attorneys’ Fees under NRS § 18.010
award of attorneys’ fees under this statute.
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D.
Attorneys’ Fees under 28 U.S.C. § 1927 & Inherent Power
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Pursuant to 28 U.S.C. § 1927, “[a]ny attorney or other person admitted to conduct
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cases in any court of the United States . . . who so multiplies the proceedings in any case
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unreasonably and vexatiously may be required by the court to satisfy personally the excess
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costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28
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U.S.C. § 1927. Sanctions under this section “must be supported by a finding of subjective bad
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faith.” In re Keegan Mgmt., Sec. Litig., 78 F.3d 431, 436 (9th Cir. 1996). “Bad faith is present
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when an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious
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claim for the purpose of harassing an opponent.” Id. Additionally, a “district court has inherent
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power to award attorney’s fees for bad faith conduct.” Earthquake Sound Corp. v. Bumper
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Indus., 352 F.3d 1210, 1220 (9th Cir. 2003).
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The Court makes no finding of bad faith and, therefore, denies an award of attorneys’
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fees under § 1927 and its inherent power. Accordingly, the Court DENIES Defendant’s motion
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for costs and attorneys’ fees (#252).
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III.
Plaintiff’s Motion for Judgment Notwithstanding the Verdict and for a New Trial
(#261, 262)1
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A.
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Plaintiff argues for a judgment notwithstanding the verdict because Defendant “failed
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to present any evidence whatsoever that its conduct met the industry standards as they relate
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to good faith and fair dealing and the unfair claims practices act.” (Mot. for JNOV (#261) at
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2). Plaintiff asserts that Defendant only presented evidence that it had met its own “best
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claims practices” but made no attempt to present evidence that its “best claims practices” met
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industry standards. (Id. at 2-3). He asserts that the verdict is contrary “to the only reasonable
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conclusion that could have been reached in light of the evidence.” (Id. at 4).
Motion for Judgment Notwithstanding the Verdict (#261)
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Defendant responds that Plaintiff cannot seek a judgment notwithstanding the verdict
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because Plaintiff failed to move for judgment as a matter of law at trial on her bad faith and
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NRS § 686A.310 claims. (Resp. to Mot. for JNOV (#273) at 4). Defendant lists evidence
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presented at trial that demonstrates that it handled Plaintiff’s underlying claim in a reasonable
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manner. (Id. at 4-5).
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Plaintiff replies that she did move for a directed verdict at the close of the case. (Reply
to Mot. for JNOV (#276) at 2).
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Pursuant to Fed. R. Civ. P. 50(a), “[a] motion for judgment as a matter of law may be
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made at any time before the case is submitted to the jury. The motion must specify the
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judgment sought and the law and facts that entitle the movant to the judgment.” Fed. R. Civ.
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P. 50(a)(2). “If the court does not grant a motion for judgment as a matter of law made under
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Rule 50(a), the court is considered to have submitted the action to the jury.” Fed. R. Civ. P.
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50(b). A movant may file a renewed motion for judgment as a matter of law or a request for
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a new trial no later than 28 days after the jury was discharged. Id. In ruling on the renewed
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motion, a court may allow the judgment on the jury verdict, order a new trial, or direct the entry
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of judgment as a matter of law. Fed. R. Civ. P. 50(b)(1)-(3).
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The docket entries for these motions are identical. (See generally Docket Sheet
#261, 262).
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The Ninth Circuit has held that “[b]ecause it is a renewed motion, a proper post-verdict
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Rule 50(b) motion is limited to the grounds asserted in the pre-deliberation Rule 50(a) motion.
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Thus, a party cannot properly ‘raise arguments in its post-trial motion for judgment as a matter
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of law under Rule 50(b) that it did not raise in its preverdict Rule 50(a) motion.’” E.E.O.C. v.
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Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009).
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In this case, the trial took place between November 5, 2010, and November 11, 2010.
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(See Docket Sheet #237-38, 240-42). The parties did not have the trial transcribed. (See
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generally Docket Sheet). The trial minutes from November 10, 2010, state that the Court
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denied Defendant’s motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a).
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(Minutes (#241) at 2). The minutes also state that the Court granted Plaintiff’s motion for a
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directed verdict on the breach of contract claim for $15,000. (Id.).
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In this case, Plaintiff only moved for a Rule 50(a) directed verdict on the breach of
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contract claim and did not seek a directed verdict on the other claims. Therefore, Plaintiff
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cannot seek a directed verdict on those claims now. Accordingly, the Court denies Plaintiff’s
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Rule 50(b) Motion for Judgment Notwithstanding the Verdict (#261).
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B.
Motion for a New Trial (#262)
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Plaintiff argues that she is entitled to a new trial because defense counsel repeatedly
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made improper arguments at trial. (Mot. for New Trial (#262) at 6). Specifically, Plaintiff
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asserts that Defendant should not have been able to make arguments about Plaintiff’s
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underlying motives in pursuing the claim because those arguments are irrelevant and tainted
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the trial. (Id. at 7-9). Plaintiff argues that the Nevada Supreme Court has held that such
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arguments are irrelevant in Allstate Ins. v. Miller, 212 P.3d 318 (Nev. 2009). (Id. at 7, 9).
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Plaintiff also asserts that defense counsel violated the golden rule argument in both opening
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and closing by telling the jury to “put yourself in the shoes of the insurance company” and “If
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you had a claim would you want Michelle Minor handling it? I know I would.” (Id. at 10-11).
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Plaintiff argues that defense counsel introduced impermissible evidence regarding Keith
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Edwards’ religion. (Id. at 11-12). Plaintiff contends that this Court issued an inaccurate
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description of an insurance company’s duties because there is no authority stating that an
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insurance carrier does not have a duty to pay a claim prior to a demand being made. (Id. at
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13). Plaintiff alleges that Michelle Minor’s crying during her testimony tainted the jury verdict.
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(Id. at 16). Plaintiff contends that it should have been able to put Brad Ballard, UMC’s former
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counsel, on the stand to refute Defendant’s claim that Plaintiff was trying to set them up. (Id.).
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In response, Defendant argues that it did not engage in any attorney misconduct during
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the trial and that, if it did, it was minor. (Resp. to Mot. for New Trial (#273) at 8). Defendant
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argues that it complied with the Court’s ruling that it could present evidence of what Plaintiff
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and her counsel said and did and could argue the reasonable inferences from that evidence.
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(Id. at 10-11). Defendant acknowledges that during opening arguments it asked the jury to
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consider the position Michelle Minor was placed in and during closing asked the jury whether
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they wanted Minor adjusting their claim. (Id. at 14). Defendant argues that these statements
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did not violate the golden rule and that Plaintiff failed to object to either statement at trial. (Id.).
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Defendant admits that it referenced Keith Edwards’ religion but argues that, at trial, the Court
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issued an instruction to the jury to disregard such evidence. (Id. at 16). Defendant asserts
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that there is no duty in Nevada for an insurance company to pay a claim before a demand is
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made. (Id. at 17).
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Pursuant to Fed. R. Civ. P. 59(a), a court, on motion, may grant a new trial on all or
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some of the issues to any party after a jury trial, “for any reason for which a new trial has
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heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). A
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court may grant a motion for a new trial based on grounds that have been historically
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recognized. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). “Historically
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recognized grounds include, but are not limited to, claims ‘that the verdict is against the weight
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of the evidence, that the damages are excessive, or that, for other reasons, the trial was not
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fair to the party moving.’” Id. The trial court may grant a new trial “only if the verdict is contrary
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to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent
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a miscarriage of justice.” Id. In order to have a new trial based on attorney misconduct, “the
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‘flavor of misconduct must sufficiently permeate an entire proceeding to provide conviction that
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the jury was influenced by passion and prejudice in reaching its verdict.’” Kehr v. Smith
10
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Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984).
2
In this case, Plaintiff has failed to demonstrate that any misconduct on behalf of
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Defendant’s counsel sufficiently permeated the entire trial such that the jury was influenced
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by passion and prejudice in reaching its verdict. First, even if Defendant’s counsel did make
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an improper golden rule argument during opening and closing, the argument was isolated to
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one statement at opening and one statement at closing. Moreover, Plaintiff did not make any
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objections to those statements. Second, the Court sustained Plaintiff’s objection to the Keith
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Edwards’ religion reference and issued a limiting instruction. Third, Allstate does not stand for
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the proposition that motives of the underlying claimant or attorney are irrelevant in an action
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for bad faith. Instead, the Nevada Supreme Court, in a footnote, simply listed several
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arguments made by the insurance company, including “whether the district court improperly
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excluded Allstate’s evidence regarding [plaintiff’s] attorney’s motive” and noted that the listed
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issues were “without merit.” Allstate, 212 P.3d at 334. Fourth, NRS § 686A.310(1)(e) does
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not state that an insurance carrier has a duty to pay a claim prior to a demand but instead
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states that the carrier must effectuate prompt settlements when the “liability of the insurer has
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become reasonably clear.” See NRS § 686A.310(1)(e). Accordingly, Plaintiff has failed to
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demonstrate that attorney misconduct permeated the entire trial, and the Court denies the
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motion for a new trial (#262).
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IV.
Defendant’s Motion to Interplead Funds and Motion for $15,000 Offset Against
Costs Owed to CCIE by Plaintiff (#264)
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Defendant seeks an order permitting it to interplead the $15,000 insurance policy limit
21
owed to Plaintiff and an order that the $15,000 be returned to Defendant as an offset against
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the total costs owed to Defendant. (Mot. to Interplead Funds (#264) at 1). Defendant asserts
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that Fed. R. Civ. P. 22 permits the court to order an interpleader of funds where two or more
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parties claim an adverse interest in the entitlement to those funds. (Id. at 3). Defendant
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asserts that both the estate of Fatu Taputu and UMC claim an interest in the $15,000 because
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UMC is a creditor of the estate. (Id.). Defendant asserts that it is a creditor of the estate
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because it is entitled to costs as the prevailing party in this lawsuit. (Id.).
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In response, Plaintiff objects to the motion to interplead the funds because it has not
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been paid the policy limit and Defendant never told the Court that it was going to file such a
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motion. (Resp. to Mot. to Interplead (#272) at 2). Plaintiff seeks sanctions. (Id.). Plaintiff
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does not object to Defendant’s request for an offset. (See id.).
In reply, Defendant asserts that it has issued the check for $15,000. (Reply to Mot. to
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Interplead (#274) at 3).
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Federal Rule of Civil Procedure 22 states that persons with claims that may expose a
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defendant to double or multiple liability may be joined as defendants and required to
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interplead. Fed. R. Civ. P. 22(a)(1)-(2). Pursuant to 28 U.S.C. § 1335(a), the “district courts
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shall have original jurisdiction of any civil action of interpleader . . . filed by any person, firm,
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or corporation, association, or society . . . providing for the delivery or payment . . . of money
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or property of such amount or value [of $500 or more], or being under any obligation written
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or unwritten to the amount of $500 or more” if the adverse claimants have diversity and are
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claiming to be entitled to such money. 28 U.S.C. § 1335(a)(1).
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In this case, the Court denies Defendant’s motion for a $15,000 offset (#264) and
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orders Defendant to issue Plaintiff a check for $15,000. Additionally, the Court denies
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Defendant’s motion to interplead (#264).
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CONCLUSION
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For the foregoing reasons, IT IS ORDERED that Plaintiff’s Motion for Attorney Fees and
Costs (#187) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Attorney’s Fees and Costs
(#252) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Judgment Notwithstanding the
Verdict (#261) is DENIED.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for a New Trial (#262) is DENIED.
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IT IS FURTHER ORDERED that Defendant’s Motion to Interplead Funds and Motion
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for $15,000 Offset Against Costs Owed to CCIE by Plaintiff (#264) is DENIED.
DATED: This 5th day of July, 2011.
DATED: This _____ day of June, 2011.
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United States District Judge
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