Plaza Bank v. Green et al

Filing 119

ORDER Granting 92 Motion for Attorney Fees in favor of Plaintiff Plaza Bank and against Defendants in the amount of $55,525.00 for attorneys fees, $374.00 in taxable costs, and $4,255.72 in non-taxable costs. Signed by Judge Miranda M. Du on 4/24/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PLAZA BANK, a California corporation,
Plaintiff,

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v.

ORDER

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Case No. 2:11-cv-00130-MMD-VCF

ALAN GREEN FAMILY TRUST, a Nevada
trust; ALAN GREEN, an individual,

(Plf.’s Motion for Attorney Fees
– dkt. no. 92)

Defendants.

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I.

SUMMARY
Before the Court is Plaintiff’s Motion for Attorney Fees. (Dkt. no. 92.) The Court

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has also considered Defendant’s Opposition and Plaintiff’s Reply.

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discussed below, the Motion is granted.

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II.

For the reasons

BACKGROUND

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This case is a deficiency action complicated by an alleged fraudulent transfer. The

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facts are recited in more detail in the Court’s Order granting partial summary judgment in

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favor of Plaintiff. (Dkt. no. 75.) The background facts relevant to the instant motion are

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recounted below.

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On October 1, 2012, this Court granted partial summary judgment in favor of

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Plaintiff. The Court subsequently granted Plaintiff’s motion to voluntarily dismiss the

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remaining claims and for entry of final order and judgment. Plaintiff then moved for

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attorneys’ fees and costs pursuant to the operative Deed of Trust, which contains an

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attorney fees and expenses provision in favor of the Lender.1 Defendants do not dispute

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that the Deed of Trust provides for recovery of reasonable fees and costs.

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Plaintiff asks this Court to award attorney’s fees in the amount of $63,521.00, and

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costs in the amount of $374.00 in taxable costs and $4,255.72 in non-taxable costs.

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Defendants object, claiming these amounts are unreasonable and excessive.

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III.

DISCUSSION
Attorney’s Fees

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A.

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Reasonable attorney’s fees are based on the “lodestar” calculation set forth in

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Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See Fischer v. SJB-P.D., Inc., 214 F.3d

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1115, 1119 (9th Cir. 2000). The court must first determine a reasonable fee by

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multiplying “the number of hours reasonably expended on the litigation” by “a reasonable

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hourly rate.” Hensley, 461 U.S. at 433. Next, the court decides whether to adjust the

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lodestar calculation based on an evaluation of the factors articulated in Kerr v. Screen

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Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), which have not been subsumed in the

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lodestar calculation. See Fischer, 214 F.3d at 1119 (citation omitted).

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The factors the Ninth Circuit set forth in Kerr are:

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(1) the time and labor required, (2) the novelty and difficulty of the
questions involved, (3) the skill requisite to perform the legal service
properly, (4) the preclusion of other employment by the attorney due to
acceptance of the case, (5) the customary fee, (6) whether the fee is fixed
or contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount involved and the results obtained, (9) the
experience, reputation, and ability of the attorneys, (10) the “undesirability”
of the case, (11) the nature and length of the professional relationship with
the client, and (12) awards in similar cases.

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Kerr, 526 F.2d at 70. Factors one through five are subsumed in the lodestar calculation.

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See Morales v. City of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir. 1996). Further, the

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sixth factor, whether the fee is fixed or contingent, may not be considered in the lodestar

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The Deed of Trust provides for recovery of reasonable attorneys’ fees: “If Lender
institutes any suit or action to enforce any of the terms of this Deed of trust, Lender shall
be entitled to recover such sum as the court may adjudge reasonable as attorneys’ fees
at trial and upon any appeal.”
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calculation. See Davis v. City & Cnty. of S.F., 976 F.2d 1536, 1549 (9th Cir. 1992),

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vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993). Once calculated, the

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“lodestar” is presumptively reasonable. See Pennsylvania v. Delaware Valley Citizens’

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Council for Clean Air, 483 U.S. 711, 728 (1987). Finally, only in “rare and exceptional

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cases” should a court adjust the lodestar figure. Van Gerwen v. Guarantee Mut. Life

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Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (internal quotations omitted). See also Fischer,

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214 F.3d at 1119 n. 4 (stating that the lodestar figure should only be adjusted in rare and

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exceptional cases).
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Reasonable Hourly Rate

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Courts consider the experience, skill, and reputation of the attorney requesting

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fees when determining the reasonableness of an hourly rate. Webb v. Ada County, 285

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F.3d 829, 840 & n.6 (9th Cir. 2002). A reasonable hourly rate should reflect the

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prevailing market rates of attorneys practicing in the forum community for “similar

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services by lawyers of reasonably comparable skill, experience and reputation.” See id.;

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see also Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984). To inform and assist the

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court in the exercise of its discretion, “[t]he party seeking an award of fees should submit

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evidence supporting the . . . rates claimed.” Hensley v. Eckerhart, 461 U.S. 424, 433

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(1983); see also Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987).

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Plaintiff requests reimbursement of attorney’s fees at $425.00-$475.00 an hour for

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Partner time, $275.00-$375.00 for Associate time, and $175.00-$195.00 for Paralegal

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time. Considering the experience, skill, and reputation of the attorneys requesting fees

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and the prevailing market rates in the forum, the Court finds $425.00-$475.00 for Partner

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time to be reasonable. However, the Court finds $275.00-$375.00 for Associate time

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and $175.00-$195.00 for Paralegal time to be excessive based on the prevailing market

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rates in the forum. Thus, the Court adjusts the amount to $250.00 for Associate Nicole

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Lovelock, $325.00 for Associate Shlomo Sherman, and $100.00 for all paralegals.

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2.

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Reasonable Hours Expended

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In addition to evidence supporting the rates claimed, “[t]he party seeking an award

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of fees should submit evidence supporting the hours worked.” Hensley, 461 U.S. at 433;

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see also Jordan, 815 F.2d at 1263. “Where the documentation of hours is inadequate,

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the district court may reduce the award accordingly.” Hensley, 461 U.S. at 433. “The

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district court also should exclude from this initial fee calculation hours that were ‘not

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reasonably expended’.” Hensley, 461 U.S. at 433-34 (citation omitted). “In other words,

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the court has discretion to ‘trim fat’ from, or otherwise reduce, the number of hours

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claimed to have been spent on the case.” Edwards v. Nat’l Business Factors, Inc., 897

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F. Supp. 458, 460 (D. Nev. 1995) (quotation omitted); see also Gates v. Deukmejian,

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987 F.2d 1392, 1399 (9th Cir. 1992).

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On April 18, 2013, pursuant to this Court’s minute order, Plaintiff filed an itemized

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description of the legal services performed. This Court’s review of that documentation

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shows that Associate Sherman spent 5.9 hours on March 8, 9, and 10, 2011, reviewing

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documents that had already been filed in the case. Coupled with Associate Sherman’s

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affidavit stating that Associate Lovelock is no longer with the firm, the Court finds that

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this time was spent acquainting Associate Sherman with the case. Thus, those 5.9 hours

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were not reasonably expended in furtherance of the litigation. The Court adjusts the

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hours accordingly. The time reasonably spent is:

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Partner Matt Saltzman – 0.5 hours

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Partner Randolph Howard – 25.3 hours2

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Associate Nicole Lovelock – 22.6 hours

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Associate Shlomo Sherman – 113.7 hours

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Paralegals (collectively) – 11.9 hours

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19.90 hours billed at $450.00/hour and 5.40 hours billed at $475.00/hour.
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3.

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Lodestar Calculation and Kerr Factors

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Calculating the reasonable fee by multiplying “the number of hours reasonably

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expended on the litigation” by “a reasonable hourly rate,” the Court determines the

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following as the lodestar calculation:

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Saltzman – 0.5 hours X $425.00/hour

=

$

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Howard – 19.90 hours X $450.00/hour

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$ 8,955.00

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Howard – 5.40 hours X $475.00/hour

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$ 2,565.00

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Lovelock – 22.60 hours X $250.00/hour

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$ 5,650.00

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Sherman – 113.70 hours X $325.00/hour

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$36,952.50

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Paralegals – 11.90 hours X $100.00/hour

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$ 1,190.00

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Total Reasonable Fee

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$55,525.00

212.50

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The parties do not argue for or against any adjustment based on the Kerr factors.

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This Court’s independent review of the provided documentation does not support any

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adjustment based on those factors. Thus, the Court declines to adjust the lodestar in this

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case.

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B.

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Plaintiff seeks $374.00 in taxable costs3 and $4,255.72 in non-taxable costs.4

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Defendants raise no objection to the costs claimed. The Court finds these costs to be

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reasonable and reimbursable.

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IV.

Costs

CONCLUSION

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Attorney Fees is

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GRANTED. The Clerk of the Court is directed to enter judgment in favor of Plaintiff Plaza

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Set forth in the Bill of Costs filed as dkt. no. 94.

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Plaintiff seeks $15.20 for postage, $851.75 for document reproduction, $7.00 for
facsimiles, $3,086.78 for computerized legal research, $21.00 for recording fees,
$200.00 for courier service, and $73.99 for express mail, totaling $4,255.72 in nontaxable costs.
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Bank and against Defendants in the amount of $55,525.00 for attorneys’ fees, $374.00

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in taxable costs, and $4,255.72 in non-taxable costs.

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The Clerk of Court is ORDERED to CLOSE this case.
DATED THIS 24th day of April 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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