Colony Insurance Company v. Kuehn et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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COLONY INSURANCE CO.,
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Plaintiff,
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vs.
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HAROLD KUEHN, et al.,
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Defendants. )
__________________________________________)
Case No. 2:10-cv-01943-KJD-GWF
ORDER
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This matter comes before the Court on Memorandum of Attorney’s Fees Pursuant to Order
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Granting Susan and Joe Fallini’s Motion for Order to Show Cause (#85), filed on April 11, 2012.
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To date, Defendant Kuehn has filed no response to the Fallini’s Memorandum, and the time for
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objections has expired.
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BACKGROUND
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This case involves a lawsuit for declaratory judgment regarding whether Plaintiff Colony
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Insurance Company (“Colony”) has a duty to defend or indemnify Defendants Harold Kuehn,
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Thomas Gibson and their law firm, Gibson & Kuehn, LLP, in regard to a legal malpractice action
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brought against them by Susan and Joe Fallini (“Fallini Defendants”), who are also joined as
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defendants in this action. On March 5, 2012, the Fallini Defendants filed a Motion for Order to
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Show Cause (#79) against Defendant Harry Keuhn. On April 4, 2012, the Court granted the
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motion, recommending contempt to the district court and awarding the Fallini Defendants their
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reasonable attorney’s fees and costs associated with the motion. (See #83.) The Fallini Defendants
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now bring this Memorandum, requesting reimbursement of attorney’s fees in the amount of $1,350.
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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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The Fallini Defendants requests a total of $1,350 in fees associated with their Motion to
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Show Cause. The Fallini Defendants requests reimbursement of attorneys’ fees at an hourly rate of
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$450 for the time of John Ohlsen, Esq., based on Mr. Ohlsen’s 40 years of litigation experience in
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federal and state court. After reviewing the Memorandum of Costs and Fees and the affidavit of
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John Ohlsen, Esq., the Court finds that the Fallini Defendants have offered sufficient evidence that
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$450 an hour is a reasonable hourly rate.
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Mr. Ohlsen spent 3 hours on the Motion for Order to Show Cause. The Court finds this is a
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reasonable amount of time to spend preparing the motion. Further, Defendant Kuehn failed to
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object to the requested fees. “Failure of an opposing party to file points and authorities in response
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to any motion shall constitute a consent to the granting of the motion.” LR 7-2(d). Based on the
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reasonable hourly rates discussed above, the Court will award attorneys’ fees to the Fallini
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Defendants in the amount of $1,350. 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.
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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.
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______________________________________
GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE
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