Bosem et al v. Remax Properties, LLC et al

Filing 49

ORDER that Defendants are awarded the sum of $3,805.00 in attorneys fees requested in Defendants Amended Memorandum 46 . Signed by Judge Gloria M. Navarro on 5/19/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SANFORD BOSEM, et al.,
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Plaintiffs,
vs.

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REMAX PROPERTIES, LLC, et al.,
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Defendants.

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Case No.: 2:10-cv-00251-GMN-RJJ
ORDER

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On August 8, 2009, the Court granted Defendants’ Motion to Dismiss and awarded

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them attorney’s fees and costs based on Plaintiffs’ conduct in this case, which was tantamount

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to bad faith. (See Order, ECF No. 39.) Conduct is “tantamount to bad faith” if there is

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“recklessness . . . combined with an additional factor such as frivolousness, harassment, or an

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improper purpose.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2006). Here, Plaintiff

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Bosem’s conduct was both reckless and frivolous. As explained in the August 9, 2010 Order,

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Plaintiff Bosem is only licensed to practice law in Florida, where he is currently suspended

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for failure to pay his bar dues. Yet, he brought this case on behalf of himself and Plaintiff

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Phantom Tours, LLC, presenting Phantom Tours, LLC as being represented “pro se” by

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himself. However, because Plaintiff Bosem is not admitted in this District or appearing pro

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hac vice in this case, such activity essentially constitutes the unauthorized practice of law.

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The only party for which Plaintiff could ethically have appeared pro se was himself, but he

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very clearly lacked standing to bring this lawsuit. Such lack of standing should have been

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readily apparent to a person with legal training such as Plaintiff Bosem.

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Furthermore, the “Notice of Removal” (ECF No. 5) and “Motion to Dismiss Removed
Actions” (ECF No. 7) are nothing short of frivolous. Plaintiffs were not defendants in an

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underlying Nevada state case filed by Defendants--Defendants only appear to have made a

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demand for payment of rent. Therefore, Plaintiffs had no grounds for filing a Notice of

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Removal. Because Plaintiff Bosem recklessly filed an obviously meritless suit while also

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purporting to represent a limited-liability company he was not authorized to represent before

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this Court, the Court determined that an award of attorney’s fees and costs to Defendants was

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appropriate.

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However, Defendants’ first Memorandum of Fees and Costs (ECF No. 43) provided

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insufficient information for the Court to be able to award reasonable attorney’s fees, so the

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Court ordered Defendants to file a brief more thoroughly describing their attorney’s fees and

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costs (see Order, ECF No. 45). Defendant did so (see ECF No. 36), though the Amended

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Memorandum contains no mention of costs. A Bill of Costs should have been filed pursuant

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to Local Rule 54-1.

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For the reasons that follow, Defendants will be awarded the $3,805.00 in attorney’s
fees requested in the Amended Memorandum.

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I.

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The calculation of reasonable attorney’s fees is normally a two-step process. First, the

DISCUSSION

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Court computes the “lodestar” figure, which requires that the Court multiply the reasonable

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hourly rate by the number of hours reasonably expended on the litigation. Fischer v. SJB-

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P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (citation omitted). This lodestar amount is

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presumptively reasonable. See Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th

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Cir. 2008).

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A.

Step One
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Reasonable Hourly Rate

It is customary for attorneys to bill an hourly rate for legal services. Ms. Hofsommer,
who served as counsel for Defendants, and Mr. Sanders, another member of her law firm,

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charged a rate of $150.00 per hour for the work performed on this case. Even though Ms.

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Hofsommer is in her first year of practicing law, this is still a very reasonable fee.

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2.

Hours Reasonably Expended

Exhibit 1 to Defendants’ Amended Memorandum is an itemized list of the hours Ms.

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Hofsommer and Mr. Sanders spent working on this case. The hours billed reflect the

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attorneys’ work on the Motion to Dismiss in this case, as well as research into some of the

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more intricate procedural and substantive facets of it. The Court is familiar with the papers

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Defendants filed in this case and finds that these hours, and the resulting lodestar amount, are

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reasonable.

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B.

Step Two

If the circumstances warrant it, the Court may adjust the lodestar amount to account

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for other factors that are not subsumed within it. Camacho, 523 F.3d at 978. Courts often

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look to the Kerr factors to determine whether to increase or decrease the lodestar amount;

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indeed, the Kerr factors are incorporated in their entirety into Local Rule of Civil Practice 54-

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16. The Kerr factors are: (1) the time and labor required; (2) the novelty and the difficulty of

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the questions involved; (3) the skill required to perform the legal service properly; (4) the

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preclusion of other employment by the attorney due to the acceptance of the case; (5) the

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customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by

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the client or circumstances; (8) the amount involved and the results obtained; (9) the

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experience, reputation, and ability of the attorney; (10) the “undesirability” of the case, if any;

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(11) the nature and length of the professional relationship with the client; and (12) awards in

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similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).

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Having considered all of those factors, the Court concludes that none of them warrant

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a revision of Ms. Hofsommer’s fee application, and the court will therefore award

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Defendants’ $3,805.00 in attorney’s fees.

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CONCLUSION
IT IS HEREBY ORDERED that Defendants are awarded the sum of $3,805.00 in
attorney’s fees requested in Defendants’ Amended Memorandum (ECF No. 46).
DATED this 19th day of May, 2011.

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________________________________
Gloria M. Navarro
United States District Judge

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