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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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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

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Plaintiffs,
v.

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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,

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Defendants.
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MARJORIE BELSKY, MD, MARIO
TARQUINO, MD, MARJORIE BELSKY,
MD, INC. doing business as,
INTEGRATED PAIN SPECIALISTS, and
MARIO TARQUIN, MD, INC.,
Counter-claimants,

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v.
ALLSTATE INSURANCE COMPANY,
ALLSTATE PROPERTY & CASUALTY
INSURANCE COMPANY, ALLSTATE
INDEMNITY COMPANY, and ALLSTATE
FIRE & CASUALTY INSURANCE
COMPANY,
Counter-defendants.
I.

SUMMARY

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Before the Court is Counter-defendants Allstate Insurance Company, Allstate

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Property & Casualty Insurance Company, Allstate Indemnity Company, and Allstate Fire

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& Casualty Insurance Company’s (“Allstate”) Motion for Fees Pursuant to NRS § 41.670

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(“Motion”) based on the Court’s prior order (ECF No. 101) granting in part its anti-SLAPP

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motion and dismissing four of six counterclaims asserted against it. (ECF No. 123.) The

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Court has reviewed Counter-claimants Marjorie Belsky, MD; Mario Tarquino, MD; Marjorie

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Belsky, MD, Inc. d/b/a Integrated Pain Specialists; and Mario Tarquino, MD, Inc.’s

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(“Belsky/Tarquino Parties”) response (ECF No. 130) and Allstate’s reply (ECF No. 143).

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For the following reasons, the Court denies Allstate’s Motion without prejudice.

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II.

DISCUSSION

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The Belsky/Tarquino Parties do not dispute that Allstate is entitled to reasonable

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attorneys’ fees as the prevailing party on a special motion to dismiss under NRS § 41.660.

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(ECF No. 130 at 8.) However, the Belsky/Tarquino Parties argue that Allstate’s Motion

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should be denied for failure to comply with LR 54-14. (Id. at 9.) The Belsky/Tarquino

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Parties further argue that any recovery should be reduced to account for Allstate’s failure

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to prevail on two of the counterclaims. (Id. at 15.) Finally, the Belsky/Tarquino Parties

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request a stay. (Id. at 20.)

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A.

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LR 54-14(b)(1) requires a motion for attorney’s fees to include “[a] reasonable

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itemization and description of the work performed.” Allstate has provided the Court with

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detailed billing records for in camera review1 but has provided the Belsky/Tarquino Parties

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only descriptions of the work performed. These descriptions are sufficient in part.

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Attorneys Jared Green, Eron Cannon, Jennifer Koh, and paralegal Debbie Sizemore

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performed relatively little work—each billed fewer than seven hours—and the descriptions

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of their work accurately reflect the billing records the Court has reviewed in camera. These

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descriptions are insufficient as to the work of attorneys Tom Baxter and Daniel Aquino,

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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
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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.

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98.7 hours directly related to addressing the counterclaims raised by Counter-claimants

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and the anti-SLAPP motion.” (ECF No. 123 at 5.) And although Allstate seeks fees for

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15.1 hours of work by Aquino, it has provided only the following description of Aquino’s

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work: “reviewing this Court’s order and the relevant pleadings, preparing Allstate’s Motion

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for Attorney Fees and related declarations, and other tasks related to the motion.” (Id. at

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8.)

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Allstate argues that it cannot provide billing records to the Belsky/Tarquino Parties

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because the billing records contain confidential, privileged information, including “the

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specific nature of the services provided, such as researching particular areas of law.” (ECF

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No. 143 at 7 (quoting Clarke v. Am. Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir.

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1992).) While “submission of attorney billing records in camera is permissible to preserve

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attorney client privilege,” Clarke, 974 F.2d at 129, the Court must permit the

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Belsky/Tarquino Parties an opportunity to challenge those parts of the billing record that

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are not protected by lawyer-client privilege. See MGIC Indem. Corp. v. Weisman, 803 F.2d

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500, 505 (9th Cir.1986) (“No reason appears why the timesheets should not have been

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made available to MGIC and MGIC given the opportunity to challenge them. We remand

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for the sole purpose of a hearing in which MGIC may challenge the reasonableness of the

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fees awarded. The court may withhold from MGIC any information it finds protected by the

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lawyer-client privilege.”); see also United States v. $1,379,879.09 Seized From Bank of

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Am., 374 F. App’x 709, 711 (9th Cir. 2010) (“The district court abused its discretion when

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it reviewed the billing records in camera and denied the government the opportunity to

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raise specific objections to the billing records.”).

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The billing records contain only some presumably privileged information. Allstate

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must provide non-privileged information to the Belsky/Tarquino Parties to the extent

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Allstate wishes to recover its fees. Without that information, the Belsky/Tarquino Parties

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are unable to dispute with specificity the reasonableness of Allstate’s fees. The Court will

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therefore deny Allstate’s Motion without prejudice and with leave to file a renewed motion

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including Exhibit B of the in camera documents. However, Allstate may redact the following

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entries from Exhibit B to preserve attorney-client privilege:

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1. All entries for attorneys or staff other than Baxter and Aquino;

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2. Entry dated 6/20/16 for 4.4 hours;

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3. Entry dated 6/21/16 for 0.9 hours; and

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4. Entry dated 6/28/16 for 1.4 hours.

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B.

Reduction of Fees

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The parties agree that the fee award should be reduced to account for Allstate’s

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failure to prevail on all of the counterclaims on anti-SLAPP grounds but disagree about

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how to calculate the reduction. The Belsky/Tarquino Parties argue that fees should be

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reduced by three-eights, or 37.5 percent, because there were actually eight distinct

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counterclaims and Allstate prevailed on anti-SLAPP grounds on five them. (ECF No. 130

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at 18.) Allstate argues that the fees should be reduced by only twenty percent because it

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prevailed on four counterclaims on anti-SLAPP grounds and the two other counterclaims

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were analyzed as one counterclaim in the Court’s prior order. (ECF No. 143 at 10.) The

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Belsky/Tarquino Parties’ argument is predicated on the assumption that Allstate cannot

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delineate its billing records by issue or counterclaim. (See ECF No. 130 at 18.) The Court

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will permit Allstate to delineate its billing records by counterclaim in its renewed motion for

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attorneys’ fees. If Allstate is unable or unwilling to do so, the Court will reduce the fees by

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an appropriate percentage to be determined.

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C.

Stay

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The Belsky/Tarquino Parties further request that the Court stay the resolution of

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this motion pending the outcome of their Motion for Sanctions, to Disqualify Plaintiffs’

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Counsel, for Injunctive Relief, and/or for Other Appropriate Relief (“Motion for Sanctions”).

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(ECF No. 130 at 20 (citing ECF No. 107).) The Court will not issue a stay because the

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Motion for Sanctions has been resolved. (ECF No. 263.)

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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.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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