Allstate Insurance Company et al v. Belsky et al

Filing 288

ORDER - Allstate's motion for fees (ECF No. 123 ) is denied without prejudice. Allstate is given leave to file a renewed motion for fees within seven (7) days. Signed by Judge Miranda M. Du on 3/26/2018. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 8 9 ALLSTATE INSURANCE COMPANY, ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, ALLSTATE INDEMNITY COMPANY, and ALLSTATE FIRE & CASUALTY INSURANCE COMPANY, Case No. 2:15-cv-02265-MMD-CWH ORDER 10 Plaintiffs, v. 11 12 13 14 MARJORIE BELSKY, MD; MARIO TARQUINO, MD; MARJORIE BELSKY, MD, INC., doing business as INTEGRATED PAIN SPECIALISTS; and MARIO TARQUINO, MD, INC., DOES 1100, and ROES 101-200, 15 Defendants. 16 17 18 19 MARJORIE BELSKY, MD, MARIO TARQUINO, MD, MARJORIE BELSKY, MD, INC. doing business as, INTEGRATED PAIN SPECIALISTS, and MARIO TARQUIN, MD, INC., Counter-claimants, 20 21 22 23 24 25 26 v. ALLSTATE INSURANCE COMPANY, ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, ALLSTATE INDEMNITY COMPANY, and ALLSTATE FIRE & CASUALTY INSURANCE COMPANY, Counter-defendants. I. SUMMARY 27 Before the Court is Counter-defendants Allstate Insurance Company, Allstate 28 Property & Casualty Insurance Company, Allstate Indemnity Company, and Allstate Fire 1 & Casualty Insurance Company’s (“Allstate”) Motion for Fees Pursuant to NRS § 41.670 2 (“Motion”) based on the Court’s prior order (ECF No. 101) granting in part its anti-SLAPP 3 motion and dismissing four of six counterclaims asserted against it. (ECF No. 123.) The 4 Court has reviewed Counter-claimants Marjorie Belsky, MD; Mario Tarquino, MD; Marjorie 5 Belsky, MD, Inc. d/b/a Integrated Pain Specialists; and Mario Tarquino, MD, Inc.’s 6 (“Belsky/Tarquino Parties”) response (ECF No. 130) and Allstate’s reply (ECF No. 143). 7 For the following reasons, the Court denies Allstate’s Motion without prejudice. 8 II. DISCUSSION 9 The Belsky/Tarquino Parties do not dispute that Allstate is entitled to reasonable 10 attorneys’ fees as the prevailing party on a special motion to dismiss under NRS § 41.660. 11 (ECF No. 130 at 8.) However, the Belsky/Tarquino Parties argue that Allstate’s Motion 12 should be denied for failure to comply with LR 54-14. (Id. at 9.) The Belsky/Tarquino 13 Parties further argue that any recovery should be reduced to account for Allstate’s failure 14 to prevail on two of the counterclaims. (Id. at 15.) Finally, the Belsky/Tarquino Parties 15 request a stay. (Id. at 20.) 16 A. 17 LR 54-14(b)(1) requires a motion for attorney’s fees to include “[a] reasonable 18 itemization and description of the work performed.” Allstate has provided the Court with 19 detailed billing records for in camera review1 but has provided the Belsky/Tarquino Parties 20 only descriptions of the work performed. These descriptions are sufficient in part. 21 Attorneys Jared Green, Eron Cannon, Jennifer Koh, and paralegal Debbie Sizemore 22 performed relatively little work—each billed fewer than seven hours—and the descriptions 23 of their work accurately reflect the billing records the Court has reviewed in camera. These 24 descriptions are insufficient as to the work of attorneys Tom Baxter and Daniel Aquino, 25 26 27 28 Local Rules however. Although Allstate seeks fees for 98.7 hours of work by Baxter, the only description Allstate has provided to the Belsky/Tarquino Parties is this: “Mr. Baxter billed 1These records consist of two exhibits. Exhibit A contains billing records for attorneys Eron Cannon and Jennifer Koh, and Exhibit B contains billing records for attorneys Jared Green, Tom Baxter, Daniel Aquino, and paralegal Debbie Sizemore. 2 1 98.7 hours directly related to addressing the counterclaims raised by Counter-claimants 2 and the anti-SLAPP motion.” (ECF No. 123 at 5.) And although Allstate seeks fees for 3 15.1 hours of work by Aquino, it has provided only the following description of Aquino’s 4 work: “reviewing this Court’s order and the relevant pleadings, preparing Allstate’s Motion 5 for Attorney Fees and related declarations, and other tasks related to the motion.” (Id. at 6 8.) 7 Allstate argues that it cannot provide billing records to the Belsky/Tarquino Parties 8 because the billing records contain confidential, privileged information, including “the 9 specific nature of the services provided, such as researching particular areas of law.” (ECF 10 No. 143 at 7 (quoting Clarke v. Am. Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 11 1992).) While “submission of attorney billing records in camera is permissible to preserve 12 attorney client privilege,” Clarke, 974 F.2d at 129, the Court must permit the 13 Belsky/Tarquino Parties an opportunity to challenge those parts of the billing record that 14 are not protected by lawyer-client privilege. See MGIC Indem. Corp. v. Weisman, 803 F.2d 15 500, 505 (9th Cir.1986) (“No reason appears why the timesheets should not have been 16 made available to MGIC and MGIC given the opportunity to challenge them. We remand 17 for the sole purpose of a hearing in which MGIC may challenge the reasonableness of the 18 fees awarded. The court may withhold from MGIC any information it finds protected by the 19 lawyer-client privilege.”); see also United States v. $1,379,879.09 Seized From Bank of 20 Am., 374 F. App’x 709, 711 (9th Cir. 2010) (“The district court abused its discretion when 21 it reviewed the billing records in camera and denied the government the opportunity to 22 raise specific objections to the billing records.”). 23 The billing records contain only some presumably privileged information. Allstate 24 must provide non-privileged information to the Belsky/Tarquino Parties to the extent 25 Allstate wishes to recover its fees. Without that information, the Belsky/Tarquino Parties 26 are unable to dispute with specificity the reasonableness of Allstate’s fees. The Court will 27 therefore deny Allstate’s Motion without prejudice and with leave to file a renewed motion 28 /// 3 1 including Exhibit B of the in camera documents. However, Allstate may redact the following 2 entries from Exhibit B to preserve attorney-client privilege: 3 1. All entries for attorneys or staff other than Baxter and Aquino; 4 2. Entry dated 6/20/16 for 4.4 hours; 5 3. Entry dated 6/21/16 for 0.9 hours; and 6 4. Entry dated 6/28/16 for 1.4 hours. 7 B. Reduction of Fees 8 The parties agree that the fee award should be reduced to account for Allstate’s 9 failure to prevail on all of the counterclaims on anti-SLAPP grounds but disagree about 10 how to calculate the reduction. The Belsky/Tarquino Parties argue that fees should be 11 reduced by three-eights, or 37.5 percent, because there were actually eight distinct 12 counterclaims and Allstate prevailed on anti-SLAPP grounds on five them. (ECF No. 130 13 at 18.) Allstate argues that the fees should be reduced by only twenty percent because it 14 prevailed on four counterclaims on anti-SLAPP grounds and the two other counterclaims 15 were analyzed as one counterclaim in the Court’s prior order. (ECF No. 143 at 10.) The 16 Belsky/Tarquino Parties’ argument is predicated on the assumption that Allstate cannot 17 delineate its billing records by issue or counterclaim. (See ECF No. 130 at 18.) The Court 18 will permit Allstate to delineate its billing records by counterclaim in its renewed motion for 19 attorneys’ fees. If Allstate is unable or unwilling to do so, the Court will reduce the fees by 20 an appropriate percentage to be determined. 21 C. Stay 22 The Belsky/Tarquino Parties further request that the Court stay the resolution of 23 this motion pending the outcome of their Motion for Sanctions, to Disqualify Plaintiffs’ 24 Counsel, for Injunctive Relief, and/or for Other Appropriate Relief (“Motion for Sanctions”). 25 (ECF No. 130 at 20 (citing ECF No. 107).) The Court will not issue a stay because the 26 Motion for Sanctions has been resolved. (ECF No. 263.) 27 /// 28 /// 4 1 2 3 4 III. CONCLUSION It is therefore ordered that Allstate’s motion for fees (ECF No. 123) is denied without prejudice. Allstate is given leave to file a renewed motion for fees within seven (7) days. DATED THIS 26th day of March 2018. 5 6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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