Jablonski Enterprises, LTD v. Nye County et al

Filing 105

REPORT AND RECOMMENDATION that 75 Defendants' Motion for Attorney's Fees be granted, in part, and denied, in part. Objections to R&R due by 9/13/2017. Signed by Magistrate Judge George Foley, Jr on 8/30/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JABLONSKI ENTERPRISES, LTD.,

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Plaintiff,
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vs.
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NYE COUNTY, et al.,
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Defendants.
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__________________________________________)

Case No. 2:15-cv-02296-GMN-GWF
FINDINGS AND
RECOMMENDATION

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This matter is before the Court on Defendants Nye County, Sheree Stringer, Debbie Orrick,

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Brian Kunzi, and Marla Zlotek’s Motion for Attorney’s Fees (ECF No. 75), filed on February 21,

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2017. Plaintiff filed its omnibus Response (ECF No. 88) on March 10, 2017. Defendants filed their

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Reply (ECF No. 91) on March 17, 2017. On July 27, 2017, the Court instructed the parties to file

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supplements to their motions attaching any state court award of attorney’s fees and costs. See ECF

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No. 96. Plaintiff filed its Supplement (ECF No. 98) on July 28, 2017. Defendants filed their

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Supplement (ECF No. 101) on August 8, 2017.

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BACKGROUND

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This case arises from the disputed ownership of a parcel of real property in Nye County,

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Nevada, known as parcel number APN-106-06. Plaintiff alleges he was the titled legal owner of the

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property and that Defendants conspired to transfer the title of the property without consulting

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Plaintiff. See ECF No. 1. Plaintiff filed his Complaint (ECF No. 1) on December 4, 2015, and

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subsequently, filed an identical Complaint in the Fifth Judicial District Court, Nye County, Nevada,

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alleging the following: (1) violation of civil rights; (2) forgery of conveyance; (3) uttering a forged

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instrument; (4) conversion; (5) civil conspiracy; (6) civil racketeering; and (7) respondeat superior.

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Defendants filed special Motions to Dismiss pursuant to Nevada’s anti-Strategic Lawsuits Against

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Public Participation (“SLAPP”) statute, NRS § 41.650, et seq. ECF No. 51.

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In May 2016, the Fifth Judicial District Court dismissed Plaintiff’s claims with

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prejudice. On May 4, 2016, Plaintiff voluntarily dismissed Defendants Nye County, Stringer, Orrick,

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Kunzi, and Zlotek from the state court case. On September 29, 2016, Defendants Brust, Lithium

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Corporation, Summa, LLC, Henry Tonking, Greg Ekins, and GIS Land Services filed Supplements to

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their motions to dismiss attaching the state court order dismissing Plaintiff’s claims with prejudice,

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and requested that the Court take judicial notice of the fact that identical claims were dismissed in

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another court. See ECF Nos. 60, 61, 62. On February 7, 2017, the Court granted Defendants’ special

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Motion to Dismiss, entered judgment, and dismissed Plaintiff’s claims with prejudice as being barred

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by the doctrine of res judicata. ECF Nos. 67, 68.

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Defendants argue that NRS 41.670(1) provides that the Court shall award reasonable

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attorney’s fees and costs upon the grant of a special motion to dismiss under NRS § 41.660. See

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Motion for Attorney’s Fees (ECF No. 75), pg. 8. Plaintiff argues that Defendants were dismissed

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from the state court proceedings and Plaintiff’s claims in this court were dismissed based on res

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judicata and, therefore, Defendants are not entitled to an award of attorney’s fees under NRS §

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41.670. Response (ECF No. 88), pg. 3.

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DISCUSSION

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A.

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In an action involving state law claims, district courts apply the law of the forum state to

Application for Attorney’s Fees

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determine whether a party is entitled to attorneys’ fees, unless it conflicts with a valid federal statute

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or procedural rule. Jiangmen Kinwai Furniture Decoration Co. Ltd v. Int'l Mkt. Centers, Inc., 2016

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WL 6637699, at *2 (D. Nev. Nov. 8, 2016) (citing MRO Commc'ns, Inc. v. Am. Tel. & Tel. Co., 197

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F.3d 1276, 1282 (9th Cir. 1999)). Under Nevada law, attorney’s fees are available only when

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“authorized by rule, statute, or contract.” Flamingo Realty, Inc. v. M idwest Dev., Inc., 879 P.2d 69,

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73(Nev. 1994); Nev. Rev. Stat. § 18.010.

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...

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...
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N.R.S. § 41.670 states as follows:

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If the court grants a special motion to dismiss filed pursuant to NRS 41.660:
(a) The court shall award reasonable costs and attorney's fees to the person against
whom the action was brought. . .

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Nev. Rev. Stat. Ann. § 41.670(1)(a).

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In Rebel Communications, LLC v. Virgin Valley Water Dist., No. 2:10-CV-0513-LRH-GWF,

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2012 WL 5839048, (D. Nev. Nov. 16, 2012), the Court granted the defendant’s renewed special

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motion to dismiss and found that the defendants were entitled to reasonable attorney’s fees under

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Nevada’s Anti-SLAPP statute. The Court, however, found that in the circumstances of the case, the

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scope of work for an award of attorneys’ fees should be specifically limited to work respecting the

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renewed special motion to dismiss and related discovery. Id. at *1. The Court found that the

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defendant’s first special motion to dismiss was not granted within the meaning of Nevada’s Anti-

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SLAPP statute because it was granted on other grounds. Id.

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On February 6, 2017, the Court granted Defendants’ Motions to Dismiss, found that

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Plaintiff’s claims were barred by the doctrines of res judicata and claim preclusion, and dismissed

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Plaintiff’s complaint with prejudice. See ECF No. 67. The claims in the state action are all derived

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from the same set of facts, the same documents, and the same state proceedings as the instant action.

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Id. at pg. 5. Because the Court found that the final judgment in the state action was a valid decision

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on the merits, Defendant’s special motions to dismiss were granted within the meaning of Nevada’s

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Anti-SLAPP statute. The Court, therefore, finds that Defendants are entitled to reasonable attorney’s

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fees pursuant to N.R.S. § 41.670(1). An award of attorney’s fees should, however, be limited to work

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performed regarding the issues of res judicata and claim preclusion as well as issues related to federal

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law.

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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 of

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San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir. 1996). “The party seeking an award of fees should submit

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evidence supporting the hours worked and rates claimed . . . [w]here the documentation of hours is

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inadequate, the district court may reduce the award accordingly.” Hensley v. Eckerhart, 461 U.S.

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424, 433 (1983). Second, the Court “may adjust the lodestar, [only on rare and exceptional

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occasions], upward or downward using a multiplier based on factors not subsumed in the initial

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calculation of the lodestar.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir.

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2000).

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Defendants seek $15,675 in attorney’s fees based on 95 hours of work performed by Chad

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Clement, Esq., Craig Anderson, Esq., and Christian Balducci, Esq. at an hourly rate of $165.00,

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$1,044.91 in costs, and sanctions in the amount of $10,000 for each Defendant. Plaintiffs voluntarily

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dismissed Defendants from the state court matter and Defendants did not file an application for

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attorney’s fees in the state court proceedings. See ECF No. 101. Although Defendants were

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voluntarily dismissed, they filed special motions to dismiss in the state court proceedings. After

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reviewing Defendants’ counsel’s affidavits and itemized billing records, the Court finds that 95 hours

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in attorney labor should be reduced to 17.5 hours. The awarded hours represent work performed on

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Defendants’ special motions to dismiss and research regarding federal law. The Court further

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reduced the awarded hours to a reasonable amount based upon the similarity and duplication of work

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performed in the state proceedings. Court finds that 17.5 hours in attorney labor to conduct research

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and draft the special motions to dismiss is reasonable. As a result, the Court will award Defendants

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reasonable attorney’s fees in the amount of $2,887.50.

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B.

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Defendants also request sanctions in the amount of $10,000 for each Defendant pursuant to

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N.R.S. § 41.670 on the grounds that Plaintiff’s action is frivolous. Under NRS 41.670, “the Court

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may award, in addition to reasonable costs and attorney’s fees. . ., an amount of up to $10,000 to the

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person against whom the action was brought.” Nev. Rev. Stat. 41.670(b). “A complaint, containing

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as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis

Request for Sanctions

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either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1831–32 (1989).

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The Court dismissed this action on the grounds of res judicata. It did not find Plaintiff’s claims to be

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frivolous. Defendants have not set forth a sufficient basis to warrant an award of $10,000 to each

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Defendant under N.R.S. § 41.670. The Court, therefore, denies Defendants’ request for sanctions.

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Accordingly,

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RECOMMENDATION
IT IS HEREBY RECOMMENDED that Defendants’ Motion for Attorney’s Fees (ECF No.

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75) be granted, in part, and denied, in part. Plaintiff shall pay the total sum of $2,887.50 and is

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ordered to make the payment to Defendants by October 2, 2017. It is further recommended that

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Defendants’ request for sanctions be denied.
NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be in

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writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held

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that the courts of appeal may determine that an appeal has been waived due to the failure to file

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objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also

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held that (1) failure to file objections within the specified time and (2) failure to properly address and

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brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal

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factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.

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1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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DATED this 30th day of August, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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