Otomo et al v. Nevada Association Services, Inc. et al

Filing 94

ORDER that Plaintiff Nicolas Otomo is ordered to pay Defendants the sum total of $2,175.00. Plaintiff shall have until 6/30/2014 to pay the full amount of the fees owed. Signed by Magistrate Judge George Foley, Jr on 5/22/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NICOLAS OTOMO, TIMOTHY McCRIGHT,
on behalf of themselves and all those similarly
situated,

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Plaintiffs,
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vs.
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NEVADA ASSOCIATION SERVICES, INC.
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and DAVID STONE,
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Defendants.
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__________________________________________)

Case No. 2:10-cv-02199-JCM-GWF
ORDER

This matter comes before the Court on Defendants’ award of attorney’s fees pursuant to
Court Order (#92), entered on April 17, 2014.
BACKGROUND

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Plaintiffs brought a proposed class action lawsuit against Defendants for claims under the

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Fair Debt Collection Practices Act (“FDCPA”) and the Nevada Deceptive Trade Practices Act, as

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well as for declaratory relief, injunctive relief, and negligence per se. See Doc. #6. Plaintiffs

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challenged Defendants’ ability as a collection agency to enforce rights on behalf of the HOA and to

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proceed with a foreclosure as part of its collection efforts. The parties entered into a Settlement

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Agreement, in which Plaintiff Otomo agreed to pay his remaining balance of $3,307.72 to the

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homeowner association and a $200.00 management company fee within thirty (30) days of its

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execution. See Doc. #87 at Exhibit A. The Settlement Agreement also set forth a provision

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entitling a prevailing party to reasonable attorney’s fees and reimbursement of costs if the party was

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forced to litigate to enforce the provisions of the Settlement Agreement. Id. Plaintiff Otomo

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executed the Settlement Agreement on June 10, 2013, thereby requiring him to pay his balance and

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fees by July 10, 2013. Id. Plaintiff Otomo failed to pay his outstanding assessment in full as of

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July 10, 2013. See Doc. #87.

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Defendants then filed a Motion to Enforce Settlement Agreement (#87), therein requesting

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their attorneys’ fees in bringing the motion. See Doc. #87 at pg. 6. A motion hearing was held

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before the undersigned on March 19, 2014. In its Order (#92) entered April 17, 2014, the Court

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granted Defendant’s Motion to enforce the Settlement Agreement and granted Defendants’

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reasonable attorney’s fees incurred in obtaining the judgment. The Court ordered Plaintiff to file a

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financial affidavit within thirty days after entry of Judgment, the purpose of which was to assess an

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appropriate award of attorney’s fees against Plaintiff. See Doc. # 92. Plaintiff failed to comply

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with the Court’s order. The Court now reviews Defendants’ Motion for and Declaration in support

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of attorney’s fees to determine a reasonable award.

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DISCUSSION

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Pursuant to the Settlement Agreement the parties entered into, “[i]f any party files any

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litigation to enforce this Agreement, then the prevailing party to any enforcement action shall be

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entitled to reasonable attorney’s fees and reimbursement of costs.” See Doc. #87 at Exhibit 1, ¶ 10.

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

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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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Defendants request a total of $2,175.00 in fees associated with its cost in bringing its

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Motion (#87) to enforce settlement. Defendants indicate that the time required to bring the

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aforementioned motion was 7 hours. Associate Attorney, Brian Anderson, provided 5 hours of

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service in drafting the brief at an average rate of $295.00 per hour, for a total of $1,475.00. Partner,

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Patrick Reilly, provided 2 hours of services at an average rate of $350.00 per hour, for a total of

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$700.00. Mr. Reilly declared that the hourly rates charged are similar to those charged by

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comparable law firms for similar legal issues. Additionally, Mr. Reilly establishes that he

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employed appropriate means to responsibly control fees and expenses. For the motion in question,

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for example, Mr. Anderson, an associate with a lower billing rate performed most of the research

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and drafting while Mr. Reilly supervised the efforts, counseled on strategy, and communicated with

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opposing counsel to avoid duplication of efforts. Furthermore, both counsel have extensive years

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of experience in commercial litigation, which must be accounted for in the fee calculation. The

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Declaration (#87-1) submitted in support of Defendants’ motion for attorney’s fees therefore

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illustrates that the attorney’s fees requested are reasonable.

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The Court therefore awards Defendants total fees in the amount of $2,175.00. The relevant

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factors are subsumed in this calculation of the reasonable attorney’s fees, and there are no other

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exceptional circumstances which warrant enhancement or reduction of the fees. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff Nicolas Otomo is ordered to pay Defendants the

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sum total of $2,175.00. Plaintiff shall have until June 30, 2014 to pay the full amount of the fees

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owed.

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DATED this 22nd day of May, 2014.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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