CH2E Nevada, LLC v. Mahjoob et al

Filing 75

ORDER Denying without prejudice Plaintiff's 68 Motion for Attorneys' Fees. Any renewed motion shall be filed no later than 2/10/2017. If a renewed motion is filed that fails to comply in full with the Rules and the case law, the Court will deny Plaintiffs request for fees. Signed by Magistrate Judge Nancy J. Koppe on 1/30/2017. (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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CH2E NEVADA LLC,

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Plaintiff,

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vs.

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LATIF MAHJOOB, et al.,

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Defendants.

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Case No. 2:15-cv-00694-JCM-NJK
ORDER
(Docket No. 68)

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Pending before the Court is Plaintiff’s motion for attorney fees. Docket No. 68. Defendant

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filed a response in opposition and Plaintiff filed a reply. Docket Nos. 73, 74. The Court finds this

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matter properly resolved without oral argument. See Local Rule 78-1. For the reasons discussed

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below, the motion is DENIED without prejudice.

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I.

OVERVIEW

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The pending motion for attorney fees arises out of Plaintiff’s motion to compel, which the

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Court granted. See Docket Nos. 55, 64. Although Plaintiff requested expenses as part of its motion,

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see Docket No. 55 at 14, the Court denied that request without prejudice. Docket No. 64 at 4. The

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Court ordered the parties to meet and confer as to whether attorneys’ fees and costs are appropriate

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and, if so, an amount that should be provided to Plaintiff. Id. The parties met and conferred, but

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were not able to resolve the issue. See Docket No. 68 at 2-3.

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II.

ENTITLEMENT TO RECOVER EXPENSES

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Defendant submits that the Court should not award Plaintiff attorneys’ fees and costs because

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Defendant’s objections in opposing the motion to compel were substantially justified. Docket No.

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73 at 5-8. Even where a motion to compel is granted in full, the Court should not award expenses

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where the “opposing party’s nondisclosure, response, or objection was substantially justified.” Rule

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37(a)(5)(A)(ii).1 “The burden is on the losing party to affirmatively demonstrate that its discovery

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conduct was substantially justified.” Am. Gen. Life Ins. Co. v. Futrell, 2012 WL 4962997, at *1 (D.

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Nev. Oct. 16, 2012). Substantial justification exists when the losing party has shown that there is

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a genuine dispute or that reasonable people could differ as to the appropriateness of the contested

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action. Id. (quoting Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993)).

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The Court finds that Defendant has not met its burden of showing that its discovery conduct

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was substantially justified. Defendant’s opposition to providing the discovery at issue centered on

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the relevance and sensitive nature of the material requested. See, e.g., Docket No. 64 at 3. First, the

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Court finds that reasonable minds could not differ as to the relevance of the discovery sought. See,

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e.g., id. Second, as Plaintiff notes, Defendant could not reasonably assert that the protective order

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already in place – which resulted from its own negotiations with Plaintiff – was insufficient to

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safeguard its information. See, e.g., Docket No. 74 at 2-3. The Court thus concludes that Plaintiff

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is entitled to recover its expenses in bringing the motion to compel.

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III.

LODESTAR CALCULATION

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Having determined that Plaintiff is entitled to recover its expenses in bringing its motion to

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compel, the Court turns to the calculation of the fees. Reasonable attorneys’ fees are generally

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calculated based on the traditional “lodestar” method. Camacho v. Bridgeport Fin., Inc., 523 F.3d

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973, 978 (9th Cir. 2008). Under the lodestar method, the Court determines a reasonable fee by

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

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rate.” See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar figure is presumptively

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reasonable. Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988).

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The party requesting attorneys’ fees must show, inter alia, that the hourly rates sought are

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“in line with those prevailing in the community for similar services by lawyers of reasonably

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Unless otherwise stated, references to “Rules” denote the Federal Rules of Civil Procedure.
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comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

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“Affidavits of the [movant’s] attorney and other attorneys regarding prevailing fees in the

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community, and rate determinations in other cases, particularly those setting a rate for the [movant’s]

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attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers of Am. v.

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Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). The Court may also rely on its own

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familiarity with the rates in the community to analyze those sought in the pending case. Ingram v.

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Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). “Rate determinations in other cases in the District

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

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associate to be the prevailing market rate in this forum.” Crusher Designs, LLC v. Atlas Copco

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Powercrusher GmbH, 2015 WL 6163443, at *2 (D. Nev. Oct. 20, 2015) (report and recommendation

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adopted by Navarro, C.J.). “Courts awarding attorneys’ fees in intellectual property or other

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complex cases routinely award fees based on rates within that range.” Id.

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The Court finds the pending motion and supporting materials insufficient to conduct the

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lodestar analysis at this time. The attached declaration indicates that Mr. Vigil has 16 years of

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experience as an attorney, and has garnered various honors. Docket No. 68 at 9-10. The declaration

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provides information about Ballard Spahr’s reputation as a whole, and asserts that the attorneys’

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rates in this case are “consistent” with “rates customarily charged in the Las Vegas, Nevada

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metropolitan area.” Id. This is insufficient. Plaintiff seeks to recover fees charged by five different

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attorneys working on a single motion to compel: Abran E. Vigil, Roger P. Thomasch, Peter

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Haviland, Gregory P. Szewczyk, and J. Matt Thornton. Id. at 10-11. The motion for attorneys’ fees

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itself only specifies Mr. Vigil’s position, and vaguely refers to the individuals who worked on the

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motion as “attorneys at different year levels.” See id. at 4-5. Additionally, no declaration was filed

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specifying the positions held by anyone other than Mr. Vigil, let alone evidencing their skill,

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experience, and reputation such that the Court can determine the reasonableness of the rates sought.

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This shortcoming is especially problematic given that it appears the rates sought are significantly

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higher than the prevailing rates in this District. See, e.g., Crusher Designs, 2015 WL 6163443, at

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*2.

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Accordingly, the pending motion for attorneys’ fees is hereby DENIED without prejudice.

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Docket No. 68. Any renewed motion shall be filed no later than February 10, 2017, and shall

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provide all information necessary under the Rules and the caselaw for the Court to conduct a proper

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lodestar analysis. If a renewed motion is filed that fails to comply in full with the Rules and the

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caselaw, the Court will deny Plaintiff’s request for fees.

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IT IS SO ORDERED.

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DATED: January 30, 2017

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___________________________________
NANCY J. KOPPE
United States Magistrate Judge

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