Jackson et al v. United Artists Theatre Circuit, Inc. et al

Filing 88

ORDERED that Plaintiffs' counsel is to pay Defendant the total sum of $3,034.40. Plaintiffs' counsel is further ordered to make full payment to Defendant by Friday, January 27, 2012. Signed by Magistrate Judge George Foley, Jr. on 1/13/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THOMAS JACKSON and CAROL JACKSON,

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Plaintiffs,
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vs.
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UNITED ARTISTS THEATRE CIRCUIT, INC., )
d/b/a UA RAINBOW PROMENADE,
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Defendants.
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__________________________________________)

Case No. 2:10-cv-00050-LDG-GWF
ORDER

This matter comes before the Court on United Artists Theater Circuit Inc.’s Memorandum

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of Fees and Costs (#85), filed on December 19, 2011; Plaintiffs’ Brief in Opposition to

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Defendant’s Request for $3,034.40 in Attorney Fees (#86), filed on January 3, 2012; and

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Defendant’s Reply in Support of Memorandum of Fees and Costs (#87), filed on January 10, 2012.

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BACKGROUND

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This case involves a negligence action in which Plaintiffs Carol Jackson and Thomas

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Jackson seek the recovery of damages for bodily injuries and loss of consortium. Carol Jackson

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allegedly slipped on a substance, believed to be popcorn butter oil, in Defendant’s movie theater on

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February 29, 2008 and injured her neck, back and shoulder. On October 10, 2011, Defendant filed

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a Motion for Sanctions (#77), requesting that the Court sanction Plaintiffs for their failure to

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produce their computations of damages during the course of discovery, for deposing an individual

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after the close of discovery, without leave of court, and for other discovery violations. The facts

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and circumstances leading up to the Motion for Sanctions are outlined in the Court Order (#84)

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granting in part and denying in part Defendant’s motion.

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In granting Defendant’s motion, the Court prohibited Plaintiffs from introducing at trial the
testimony or medical records or bills of any physicians or health care providers whose identities

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were not disclosed prior to the end of discovery on February 14, 2011. The Court further awarded

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Defendant their reasonable attorney’s fees and costs incurred as a result of Plaintiffs’ failure to

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comply with Rule 26(a)(1)(A)(iii). The Court denied all other requested sanctions. On December

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19, 2011, Defendant filed this Memorandum, requesting reimbursement of fees and costs

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associated with Plaintiffs’ failure to provide their computations of damages in the amount of

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$3,034.40. Plaintiffs oppose Defendant’s Memorandum arguing that Defendant’s request for

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$3,034.40 in fees is unreasonable, excessive and redundant.

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DISCUSSION
The Supreme Court has held that reasonable attorney fees must “be calculated according to

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the prevailing market rates in the relevant community,” considering the fees charged by “lawyers of

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reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96

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n. 11, 104 S.Ct. 1541 (1984). Courts typically use a two-step process when determining fee

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awards. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court must

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calculate the lodestar amount “by taking the number of hours reasonably expended on the litigation

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and multiplying it by a reasonable hourly rate.” Id. Furthermore, other factors should be taken into

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consideration such as special skill, experience of counsel, and the results obtained. Morales v. City

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of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir. 1996). “The party seeking an award of fees should

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submit evidence supporting the hours worked and rates claimed . . . [w]here the documentation of

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hours is inadequate, the district court may reduce the award accordingly.” Hensley v. Eckerhart,

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461 U.S. 424, 433 (1983). Second, the Court “may adjust the lodestar, [only on rare and

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exceptional occasions], upward or downward using a multiplier based on factors not subsumed in

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the initial calculation of the lodestar.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041,

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1045 (9th Cir. 2000).

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Defendant requests a total of $3,034.40 in fees and costs associated incurred as a result of

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Plaintiffs’ failure to comply with Rule 26(a)(1)(A)(iii). Defendant requests reimbursement of

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attorneys’ fees and costs at an hourly rate of $150.00 for David Barron, Esq., partner; $130.00 for

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Chelsea Pyasetskyy, Esq, associate attorney; and $95.00 for Joshua Sliker, Esq, as a law clerk and

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$130.00 after October 10, 2011 when he became an associate attorney. After reviewing
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Defendant’s Memorandum and the affidavit of Chelsea Pyasetskyy, the Court finds that the they

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have offered sufficient evidence that the above hourly rate is reasonable. Further Plaintiffs do not

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dispute such rates are reasonable.

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In support of their request for reimbursement, Defendant provided detailed charts itemizing

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the work completed and the amount of time spent. Because Defendant’s Motion for Sanctions

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addressed several issues and the Court only awarded fees and costs associated with Plaintiffs’

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failure to provide a computation of damages, Defendant pro-rated their fees in an attempt to only

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seek reimbursement for the time spent on computation of damages argument. Plaintiffs object to

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this method of calculating the attorney’s fees, arguing that Defendant cites no authority that pro-

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rating fees is an appropriate way to calculate attorney’s fees. Plaintiffs further argue that pro-rating

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the fees in this instances leads to an unreasonable result. The Court finds that Defendant’s method

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of calculating the attorney’s fees in this case is appropriate. Considering the Motion for Sanctions

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advanced several arguments, pro-rating the fees and costs seems to be a reasonable approach to

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calculating only the fees related to Plaintiffs’ failure to provide a computation of damages.

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Defendant requests reimbursement for the time they spent reviewing the computation of

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damages and other discovery documents provided by Plaintiffs, conducting legal research on

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Plaintiffs’ failure to comply with the discovery rules, preparing the motion for sanctions and reply

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brief, and preparing and attending the hearing regarding the motion for sanctions. Considering the

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totality of the circumstances, the Court finds that reimbursement of $3,034.40 in fees and costs is

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reasonable and justifiable in light of Plaintiffs’ counsel’s disregard for the discovery rules.

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Therefore, based on the reasonable hourly rates discussed above, the Court will award attorneys’

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fees in the amount of $3,034.40. The relevant factors are subsumed in this calculation of the

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reasonable attorneys’ fees, and there are no other exceptional circumstances which warrant

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enhancement or reduction of the fees. Accordingly,

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...

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...

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IT IS HEREBY ORDERED that Plaintiffs’ counsel is to pay Defendant the total sum of

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$3,034.40. Plaintiffs’ counsel is further ordered to make full payment to Defendant by Friday,

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January 27, 2012.

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DATED this 13th day of January, 2012.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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