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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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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U.S. BANK, N.A.,
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Plaintiff,
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vs.
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RECOVERY SERVICES NORTHWEST, INC.,
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d/b/a CUSTOM RECOVERY, et al.,
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Defendants.
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__________________________________________)

Case No.: 2:13-cv-01254-APG-GWF
ORDER

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This matter is before the Court on Plaintiff’s Memorandum of Attorneys’ Fees and Costs

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(ECF No. 107), filed on October 28, 2016. Defendant filed an Opposition (ECF No. 110) on

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November 9, 2016 and Plaintiff filed a Reply (ECF No. 117) on November 16, 2016.

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BACKGROUND

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On July 25, 2016, Plaintiff U.S. Bank filed a motion for sanctions against Defendant Custom

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Recovery arguing that Defendant failed to provide an adequately prepared Rule 30(b)(6) witness.1

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Motion for Sanctions (ECF No. 85). Defendant responded on August 10, 2016 and asserted that

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sanctions were not appropriate because Plaintiff’s counsel did not object to the testimony of

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Defendant’s Rule 30(b)(6) witness during the deposition and because Plaintiff’s counsel did not

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attempt to meet and confer prior to requesting sanctions. Opposition (ECF No. 91) The Court held

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a hearing in this matter on August 29, 2016 and issued a written decision on October 13, 2016,

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wherein the Court granted Plaintiff’s motion and found that an evidence preclusion sanction as well

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as monetary sanctions were appropriate. See Order (ECF No. 103). As ordered, Plaintiff filed this

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Memorandum of Attorneys’ Fees and Costs requesting reimbursement of fees and costs in the

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amount of $29,228.17.

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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).

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DISCUSSION

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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 n.

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

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

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

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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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Plaintiff requests a total of $27,188.57 in attorneys’ fees and $665.00 in paralegal fees

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“associated with scheduling and conferring, preparing for and conducting the deposition (of

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Defendant’s Rule 30(b)(6) witness), preparing, researching and drafting the Motion for Sanctions,

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Reply, and Motion to Strike Custom’s Memo is Issue for Hearing, attending the hearing, and similar

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services...” Memorandum (ECF No. 107), 5:15-18. Plaintiff requests reimbursement of attorneys’

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fees at an hourly rate of $354.38 for attorney Ryan Looksevelt, Esq.2 It also requests reimbursement

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of paralegal fees at an hourly rate of $166.25 for Michelle Wood.3 After reviewing Plaintiff’s

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Memorandum of Attorneys’ Fees and Costs and the declaration of Ryan Loosevelt, Esq., the Court

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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.

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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.

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finds that Plaintiff has offered sufficient evidence that the hourly rate of $354.38 is reasonable. This

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conclusion is also in line with the prevailing rates in the relevant community. See Marrocco v. Hill,

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291 F.R.D 586, 589 (D. Nev. 2013) (finding the reasonable hourly rate in the Nevada community to

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be $375-$400 for partner with over thirty-five years of experience); Perrigo v. Premium Asset

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Servs., LLC, 2015 WL 4597569, *10 (D. Nev. July 28, 2015) (“Rate determinations in other cases in

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the District of Nevada have found hourly rates as much as $450 for partners and $250 for an

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experienced associate to be the prevailing market rate in this forum.” ). However, Plaintiff’s

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counsel’s requested rate for his paralegal exceeds the reasonable rates in this forum. Generally,

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paralegals command rates between $75 and $125. Watson v. NCO Fin. Sys., Inc., 2015 WL

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1959163, at *2 (D. Nev. Apr. 29, 2015) (finding $125 to be reasonable); Plaza Bank v. Alan Green

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Family Trust, 2013 WL 1759580, *2 (D. Nev. Apr. 24, 2013) (finding $100 to be reasonable);

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Agarwal v. Oregon Mut. Ins. Co., 2013 WL 5882710, at *2 (D. Nev. Oct. 30, 2013) (finding $75 to

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be reasonable). Therefore, the Court will reduce Plaintiff’s requested paralegal rate to $125 based

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on the fact that Ms. Woods has 17 years of experience as a paralegal.

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Plaintiff’s counsel represents that he expended a total of 68.7 hours for the various activities

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associated with the deposition of Defendant’s 30(b)(6) witness as well as 9 hours of work spent in

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connection with opposing Defendant’s objection to this Court’s Order. Memorandum (ECF No.

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107), pgs. 5-6; Reply (ECF No. 117), pg. 2. In addition, Plaintiff’s counsel represents that his

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paralegal, Michelle Wood, expended 4 hours of time. Counsel believes that these hours are

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reasonable because the work performed “resulted in successfully precluding Custom from offering

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evidence it failed to offer at the deposition which directly impacts summary judgment and trial.”

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Memorandum (ECF No. 107), 4:8-9. Defendant’s counsel does not object to Plaintiff’s counsel’s

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hourly rates, the amount of time expended, or the overall fee request. Rather, Defendant argues that

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Plaintiff’s counsel’s “legal services preparing U.S. Bank’s Motion for Sanctions had no value,

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because the motion requested relief based on a known false representation that U.S. Bank’s motion

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complied with FRCP 37(d).” Opposition (ECF No. 110), 6:22-25 (emphasis in original). The Court

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previously disposed of Defendant’s argument. See Order (ECF No. 103), pg. 6-7. There, the Court

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found that the meet and confer requirement found in Rule 37(d) did not apply to the circumstances
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of this case and Defendant’s argument was therefore without merit. Id. This ruling has also been

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upheld by the District Judge following Defendant’s objection. See Order (ECF No. 147).

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Therefore, based on a review of the itemization of attorneys’ fees and the declarations of Ryan

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Loosevelt, Esq., the Court finds that the amount of time expended was reasonable and will award

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Plaintiff the following: $27,188.57 in attorney’s fees and $500 in paralegal fees for a total of

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$27,688.57.

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Plaintiff also requests reimbursement in the amount of $1,374.60 in costs incurred from

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obtaining the deposition transcript of Defendant’s Rule 30(b)(6) witness, James Morin. It asserts

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that these costs should be reimbursed because Defendant’s discovery misconduct rendered Mr.

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Morin’s testimony useless and a waste of time. The Court agrees. The Court will therefore award

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Plaintiff costs in the amount of $1,374.60.

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Thus, based on the reasonable hourly rates discussed above, the Court will award attorneys’

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fees (including paralegal fees) in the amount of $27,688.57 and costs in the amount of $1,374.60 for

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a total of $29,063.17. The relevant factors are subsumed in this calculation of the reasonable

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

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enhancement or reduction of the fees. Accordingly,

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IT IS HEREBY ORDERED that Defendant Custom Recovery is ordered to pay Plaintiff

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U.S. Bank the sum total of $29,063.17. Defendant is further ordered to make the payment to

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Plaintiff by April 6, 2017.

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DATED this 7th day of March, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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