US Bank, NA v. Recovery Services Northwest, Inc.,

Filing 150

ORDER re Plaintiff's 107 Memorandum of Attorneys' Fees and Costs. Defendant Custom Recovery is ordered to pay Plaintiff U.S. Bank the sum total of $29,063.17. Defendant is further ordered to make the payment to Plaintiff by 4/6/2017. Signed by Magistrate Judge George Foley, Jr on 3/7/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 U.S. BANK, N.A., 7 8 9 10 11 ) ) Plaintiff, ) ) vs. ) ) RECOVERY SERVICES NORTHWEST, INC., ) d/b/a CUSTOM RECOVERY, et al., ) ) Defendants. ) __________________________________________) Case No.: 2:13-cv-01254-APG-GWF ORDER 12 13 This matter is before the Court on Plaintiff’s Memorandum of Attorneys’ Fees and Costs 14 (ECF No. 107), filed on October 28, 2016. Defendant filed an Opposition (ECF No. 110) on 15 November 9, 2016 and Plaintiff filed a Reply (ECF No. 117) on November 16, 2016. 16 BACKGROUND 17 On July 25, 2016, Plaintiff U.S. Bank filed a motion for sanctions against Defendant Custom 18 Recovery arguing that Defendant failed to provide an adequately prepared Rule 30(b)(6) witness.1 19 Motion for Sanctions (ECF No. 85). Defendant responded on August 10, 2016 and asserted that 20 sanctions were not appropriate because Plaintiff’s counsel did not object to the testimony of 21 Defendant’s Rule 30(b)(6) witness during the deposition and because Plaintiff’s counsel did not 22 attempt to meet and confer prior to requesting sanctions. Opposition (ECF No. 91) The Court held 23 a hearing in this matter on August 29, 2016 and issued a written decision on October 13, 2016, 24 wherein the Court granted Plaintiff’s motion and found that an evidence preclusion sanction as well 25 as monetary sanctions were appropriate. See Order (ECF No. 103). As ordered, Plaintiff filed this 26 Memorandum of Attorneys’ Fees and Costs requesting reimbursement of fees and costs in the 27 amount of $29,228.17. 28 1 The facts and circumstances surrounding Plaintiff’s motion for sanctions are thoroughly discussed in the Court’s October 13, 2016 Order and are incorporated by reference herein. See Order (ECF No. 103). 1 DISCUSSION 2 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 n. 5 11, 104 S.Ct. 1541 (1984). Courts typically use a two-step process when determining fee awards. 6 Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court must calculate the 7 lodestar amount “by taking the number of hours reasonably expended on the litigation and 8 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 Plaintiff requests a total of $27,188.57 in attorneys’ fees and $665.00 in paralegal fees 18 “associated with scheduling and conferring, preparing for and conducting the deposition (of 19 Defendant’s Rule 30(b)(6) witness), preparing, researching and drafting the Motion for Sanctions, 20 Reply, and Motion to Strike Custom’s Memo is Issue for Hearing, attending the hearing, and similar 21 services...” Memorandum (ECF No. 107), 5:15-18. Plaintiff requests reimbursement of attorneys’ 22 fees at an hourly rate of $354.38 for attorney Ryan Looksevelt, Esq.2 It also requests reimbursement 23 of paralegal fees at an hourly rate of $166.25 for Michelle Wood.3 After reviewing Plaintiff’s 24 Memorandum of Attorneys’ Fees and Costs and the declaration of Ryan Loosevelt, Esq., the Court 25 26 2 Plaintiff’s counsel’s usual rate is $405 per hour. However, Holland & Hart LLP provides U.S. Bank with a 12.5% discount on fees. 27 3 28 Michelle Woods’ usual rate is $190 per hour but the 12.5% discount afforded to U.S. Bank is also applied to her hourly rate. 2 1 finds that Plaintiff has offered sufficient evidence that the hourly rate of $354.38 is reasonable. This 2 conclusion is also in line with the prevailing rates in the relevant community. See Marrocco v. Hill, 3 291 F.R.D 586, 589 (D. Nev. 2013) (finding the reasonable hourly rate in the Nevada community to 4 be $375-$400 for partner with over thirty-five years of experience); Perrigo v. Premium Asset 5 Servs., LLC, 2015 WL 4597569, *10 (D. Nev. July 28, 2015) (“Rate determinations in other cases in 6 the District of Nevada have found hourly rates as much as $450 for partners and $250 for an 7 experienced associate to be the prevailing market rate in this forum.” ). However, Plaintiff’s 8 counsel’s requested rate for his paralegal exceeds the reasonable rates in this forum. Generally, 9 paralegals command rates between $75 and $125. Watson v. NCO Fin. Sys., Inc., 2015 WL 10 1959163, at *2 (D. Nev. Apr. 29, 2015) (finding $125 to be reasonable); Plaza Bank v. Alan Green 11 Family Trust, 2013 WL 1759580, *2 (D. Nev. Apr. 24, 2013) (finding $100 to be reasonable); 12 Agarwal v. Oregon Mut. Ins. Co., 2013 WL 5882710, at *2 (D. Nev. Oct. 30, 2013) (finding $75 to 13 be reasonable). Therefore, the Court will reduce Plaintiff’s requested paralegal rate to $125 based 14 on the fact that Ms. Woods has 17 years of experience as a paralegal. 15 Plaintiff’s counsel represents that he expended a total of 68.7 hours for the various activities 16 associated with the deposition of Defendant’s 30(b)(6) witness as well as 9 hours of work spent in 17 connection with opposing Defendant’s objection to this Court’s Order. Memorandum (ECF No. 18 107), pgs. 5-6; Reply (ECF No. 117), pg. 2. In addition, Plaintiff’s counsel represents that his 19 paralegal, Michelle Wood, expended 4 hours of time. Counsel believes that these hours are 20 reasonable because the work performed “resulted in successfully precluding Custom from offering 21 evidence it failed to offer at the deposition which directly impacts summary judgment and trial.” 22 Memorandum (ECF No. 107), 4:8-9. Defendant’s counsel does not object to Plaintiff’s counsel’s 23 hourly rates, the amount of time expended, or the overall fee request. Rather, Defendant argues that 24 Plaintiff’s counsel’s “legal services preparing U.S. Bank’s Motion for Sanctions had no value, 25 because the motion requested relief based on a known false representation that U.S. Bank’s motion 26 complied with FRCP 37(d).” Opposition (ECF No. 110), 6:22-25 (emphasis in original). The Court 27 previously disposed of Defendant’s argument. See Order (ECF No. 103), pg. 6-7. There, the Court 28 found that the meet and confer requirement found in Rule 37(d) did not apply to the circumstances 3 1 of this case and Defendant’s argument was therefore without merit. Id. This ruling has also been 2 upheld by the District Judge following Defendant’s objection. See Order (ECF No. 147). 3 Therefore, based on a review of the itemization of attorneys’ fees and the declarations of Ryan 4 Loosevelt, Esq., the Court finds that the amount of time expended was reasonable and will award 5 Plaintiff the following: $27,188.57 in attorney’s fees and $500 in paralegal fees for a total of 6 $27,688.57. 7 Plaintiff also requests reimbursement in the amount of $1,374.60 in costs incurred from 8 obtaining the deposition transcript of Defendant’s Rule 30(b)(6) witness, James Morin. It asserts 9 that these costs should be reimbursed because Defendant’s discovery misconduct rendered Mr. 10 Morin’s testimony useless and a waste of time. The Court agrees. The Court will therefore award 11 Plaintiff costs in the amount of $1,374.60. 12 Thus, based on the reasonable hourly rates discussed above, the Court will award attorneys’ 13 fees (including paralegal fees) in the amount of $27,688.57 and costs in the amount of $1,374.60 for 14 a total of $29,063.17. The relevant factors are subsumed in this calculation of the reasonable 15 attorneys’ fees and costs, and there are no other exceptional circumstances which warrant 16 enhancement or reduction of the fees. Accordingly, 17 IT IS HEREBY ORDERED that Defendant Custom Recovery is ordered to pay Plaintiff 18 U.S. Bank the sum total of $29,063.17. Defendant is further ordered to make the payment to 19 Plaintiff by April 6, 2017. 20 DATED this 7th day of March, 2017. 21 22 23 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 24 25 26 27 28 4

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