Colony Insurance Company v. Kuehn et al

Filing 90

ORDER that Defendant Kuehn is ordered to pay the Fallini Defendants the sum total of $1,350 by June 1, 2012. Signed by Magistrate Judge George Foley, Jr. on 5/1/12. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
8
9
10
11
12

COLONY INSURANCE CO.,

)
)
Plaintiff,
)
)
vs.
)
)
HAROLD KUEHN, et al.,
)
)
Defendants. )
__________________________________________)

Case No. 2:10-cv-01943-KJD-GWF
ORDER

13
14

This matter comes before the Court on Memorandum of Attorney’s Fees Pursuant to Order

15

Granting Susan and Joe Fallini’s Motion for Order to Show Cause (#85), filed on April 11, 2012.

16

To date, Defendant Kuehn has filed no response to the Fallini’s Memorandum, and the time for

17

objections has expired.

18

BACKGROUND

19

This case involves a lawsuit for declaratory judgment regarding whether Plaintiff Colony

20

Insurance Company (“Colony”) has a duty to defend or indemnify Defendants Harold Kuehn,

21

Thomas Gibson and their law firm, Gibson & Kuehn, LLP, in regard to a legal malpractice action

22

brought against them by Susan and Joe Fallini (“Fallini Defendants”), who are also joined as

23

defendants in this action. On March 5, 2012, the Fallini Defendants filed a Motion for Order to

24

Show Cause (#79) against Defendant Harry Keuhn. On April 4, 2012, the Court granted the

25

motion, recommending contempt to the district court and awarding the Fallini Defendants their

26

reasonable attorney’s fees and costs associated with the motion. (See #83.) The Fallini Defendants

27

now bring this Memorandum, requesting reimbursement of attorney’s fees in the amount of $1,350.

28

...

1
2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

1045 (9th Cir. 2000).

17

The Fallini Defendants requests a total of $1,350 in fees associated with their Motion to

18

Show Cause. The Fallini Defendants requests reimbursement of attorneys’ fees at an hourly rate of

19

$450 for the time of John Ohlsen, Esq., based on Mr. Ohlsen’s 40 years of litigation experience in

20

federal and state court. After reviewing the Memorandum of Costs and Fees and the affidavit of

21

John Ohlsen, Esq., the Court finds that the Fallini Defendants have offered sufficient evidence that

22

$450 an hour is a reasonable hourly rate.

23

Mr. Ohlsen spent 3 hours on the Motion for Order to Show Cause. The Court finds this is a

24

reasonable amount of time to spend preparing the motion. Further, Defendant Kuehn failed to

25

object to the requested fees. “Failure of an opposing party to file points and authorities in response

26

to any motion shall constitute a consent to the granting of the motion.” LR 7-2(d). Based on the

27

reasonable hourly rates discussed above, the Court will award attorneys’ fees to the Fallini

28

Defendants in the amount of $1,350. The relevant factors are subsumed in this calculation of the
2

1

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

2

enhancement or reduction of the fees.

3
4
5

IT IS HEREBY ORDERED that Defendant Kuehn is ordered to pay the Fallini
Defendants the sum total of $1,350 by June 1, 2012
DATED this 1st day of May, 2012.

6
7
8

______________________________________
GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3