Dychiuchay v. Grieshaber et al

Filing 26

ORDER Denying Defendant Grieshaber and Aradia's 22 Motion for Attorney Fees. Signed by Judge James C. Mahan on 10/28/15. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FRANCINE DYCHIUCHAY,

Case No. 2:15-cv-00558-JCM-PAL
Plaintiff,

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v.

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DAVID GRIESHABER, et al.,
Defendants.

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ORDER

Presently before the court is defendant

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motion for attorney s fees. (Doc. # 22).

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Plaintiff

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defendants have not filed a reply.

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I. Background

filed a response in opposition. (Doc. # 23). To date,

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agreements to operate websites containing explicit

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photographs of plaintiff. In 2000, the parties entered into a verbal agreement to operate a website,

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FrancineDee.com, as partners. (Doc. # 1-1 at 13). In August 2003, the parties terminated their

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agreement. (Id. at 14). Subsequently, plaintiff requested that the defendants shut down the website,

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and alleges that defendants refused to do so. (Id. at 16).

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Plaintiff then filed an action in state court on February 11, 2014, against defendants

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asserting thirteen causes of action arising out of the above conduct. On March 7, 2014, defendants

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removed that action to this court. On March 12, 2014, defendants filed a motion to dismiss for lack

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of personal jurisdiction in that case.

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court denied

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February 4, 2015. See Dychiuchay v. Grieshaber et al., No. 2:14-cv-00354-JCM-GWF, 2015 WL

anted on April 28, 2014, and this
on

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476195, at *5 (D. Nev. Feb. 4, 2015).

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On February 27, 2015, plaintiff filed suit in state court again, asserting fourteen causes of

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action arising out of the above conduct against the same defendants. (Doc. # 1-1). The causes of

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complaint, as well as seven new or expanded1 causes of action. Defendants removed the action to

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federal court on March 26, 2015, under 28 U.S.C. § 1441. (Doc. # 1). On March 31, 2015, plaintiff

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filed a motion to remand the case back to state court. (Doc. # 5).

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On April 17, 2015, defendants filed a motion to dismiss the case pursuant to FED. R. CIV.

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P. 12(b)(2) for lack of personal jurisdiction. (Doc. # 9). Defendants also filed a motion for sanctions

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pursuant to FED. R. CIV. P. 11 for filing a duplicative lawsuit. (Doc. # 11).

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to dismiss, having found that it

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lacked personal jurisdiction over the defendants. (Doc. # 20). On that date, this court also denied

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plain

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for sanctions, ordering that plaintiff pay defendants attorney s fees in the amount of 720 dollars.

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(Doc. # 21). Subsequently, defendants filed the instant motion for attorney s fees pursuant to NRS

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§ 18.010(2), FED. R. CIV. P. 54(d)(2), and local rule 54-16. (Doc. # 22).

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II.

Legal Standards
Federal Rule of Civil Procedure 54(d)(2)(B)(ii) provi

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, and

fees

must

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Assurance Co. of America v. Nat'l Fire & Marine Ins. Co., 2:11-cv-00275-

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JCM-GWF, 2012 WL 6626809, at *1 (D. Nev. Dec. 19, 2012).

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Pursuant to Local Rule 54 16(b)(1) and (3), a party's motion for attorney's fees must

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summary

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demonstrating, among other things, the time spent, skill required, novelty and difficulty of the

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contract. (See Case No. 2:14-cv-00354
included two causes of action for breach of contract: one for breach of contract for payment of
services and one for breach of contract for failure to terminate. (Doc. # 1-1).
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case, and the customary fee charged. The motion must also be accompanied by an attorney

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tion and confirming that the bill had
16(c).

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III. Discussion

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FED. R. CIV. P. 54(d)(2). Under Nevada

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Flamingo

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Realty, Inc. v. Midwest Dev., Inc., 110 Nev. 984, 991 (1994)

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is left to the sound discretion of the district court. Id.

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In Nevada, a court

fees

fees:

[W]hen the court finds that the claim . . . was brought or maintained without
reasonable ground or to harass the prevailing party. The court shall liberally
construe the
appropriate situations. It is the intent of the Legislature that the court award
of the Nevada Rules of Civil Procedure in all appropriate situations to punish for
and deter frivolous or vexatious claims and defenses because such claims and
defenses overburden limited judicial resources, hinder the timely resolution of
meritorious claims and increase the costs of engaging in business and providing
professional services to the public.
NRS § 18.010(2)(b).
To support a discretionary award of attorney

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supporting the proposition that the complaint was brought without reasonable grounds or to harass

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Semenza v. Caughlin Crafted Homes, 901 P.2d 684 (Nev. 1995) (quoting

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Chowdhry v. NLVH, Inc., 851 P.2d 459 (Nev. 1993)).
Defendants filed their motion in compliance with federal and local rules. However, the

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harass the defendants. Plaintiff states that her second complaint was made in a good faith effort to

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cure a defect in her prior complaint. (Doc. # 23 at 9).

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duplicate of her first complaint, and it included attempts to correct deficiencies identified in her

mere

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assertions that she filed the second action in a good faith attempt to correct the deficiencies in her

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previous case,
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reasonable grounds.
Furthermore, this court has already awarded the defendants sanctions in the form of

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att

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attorney s fees is in

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IV. Conclusion
inappropriate because it

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finds t

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already awarded sanctions.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants Grieshaber
motion for attorney s fees (doc. # 22) be, and the same hereby is, DENIED.
DATED THIS 28th day of October, 2015.

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JAMES C. MAHAN
UNITED STATES DISTRICT JUDGE

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