Jablonski Enterprises, LTD v. Nye County et al
Filing
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REPORT AND RECOMMENDATION that 110 Greg Ekins and G.I.S. Land Services' Renewed Motion for Attorney Fees be granted, in part, and Plaintiff should pay the total sum of $2,287.50. Objections to R&R due by 11/8/2017. Signed by Magistrate Judge George Foley, Jr on 10/25/17. (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
REPORT & RECOMMENDATION
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This matter is before the Court on Defendants Greg Ekins and G.I.S. Land Services’ Renewed
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Motion for Attorney’s Fees (ECF No. 110), filed on September 18, 2017. Plaintiff filed its Response
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(ECF No. 112) on October 2, 2017. Defendants filed their second supplement (ECF No. 114) on
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October 16, 2017.
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Defendants filed their Motion for Attorney’s Fees (ECF No. 73) on February 21, 2017.
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Plaintiff filed its omnibus Response (ECF No. 88) on March 10, 2017. Defendants filed their Reply
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(ECF No. 92) 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. Defendants filed their Supplement (ECF No. 97) and Plaintiff filed its Supplement (ECF No.
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98) on July 28, 2017. The Court denied Plaintiff’s motion (ECF No. 73) without prejudice on August
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28, 2017 and permitted Defendants to refile their motion for attorney’s fees and costs to comply with
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LR 54-14.
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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 their special Motion to Dismiss pursuant to Nevada’s anti-Strategic Lawsuits
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Against Public Participation (“SLAPP”) statute, NRS § 41.650, et seq. ECF No. 11.
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In May 2016, the Fifth Judicial District Court dismissed Plaintiff’s claims with prejudice. On
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October 6, 2016, Defendants filed Supplements to their Motion to Dismiss (ECF Nos. 62) attaching
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the state court order dismissing Plaintiff’s claims with prejudice and requested that the Court grant
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dismissal. See ECF Nos. 60, 61. On February 7, 2017, the Court granted Defendants’ special Motion
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to Dismiss, entered judgment, and dismissed Plaintiff’s claims with prejudice as being barred by the
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doctrine of res judicata. ECF Nos. 67, 68. On September 25, 2017, the Court granted Plaintiff’s
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Motion to Reconsider (ECF No. 76) its order granting Defendants’ motions to dismiss, but,
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nonetheless, adhered to its ruling that Plaintiff’s complaint is dismissed with prejudice under the
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doctrine of claim preclusion. ECF No. 111. On October 13, 2017, the Court of Appeals of the State
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of Nevada affirmed the Fifth Judicial District Court’s order granting special motions to dismiss. ECF
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No. 114.
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Defendants argue that Fed. R. Civ. P. 54 authorizes the prevailing party to recover costs and
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that NRS 41.670(1) authorizes the Court to enter an award reasonable attorney’s fees and costs upon
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the grant of a special motion to dismiss. See Renewed Motion for Attorney’s Fees (ECF No. 110), pg.
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2. Defendants further argue that the defense in this matter is distinct and different from services
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provided in the related state court proceedings. Plaintiff argues that Defendant’s fee request is
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excessive and that Defendants fail to explain the fee request increase from $11,625.00 in their first
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application for fees to $13,350.00.
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DISCUSSION
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In an action involving state law claims, district courts apply the law of the forum state to
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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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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. On September 25, 2017, the Court granted Plaintiff’s Motion to Reconsider (ECF No.
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76) its order granting Defendants’ motions to dismiss, but, nonetheless, adhered to its ruling that
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Plaintiff’s complaint is dismissed with prejudice under the doctrine of claim preclusion. ECF No.
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111. Because the Court found that the final judgment in the state action was a valid decision on the
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merits, Defendant’s special motions to dismiss were granted within the meaning of Nevada’s Anti-
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SLAPP statute. The Court, therefore, finds that Defendants are entitled to reasonable attorney’s fees
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pursuant to N.R.S. § 41.670(1).
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An award of attorney’s fees should, however, be limited to work performed regarding the
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issues of res judicata and claim preclusion as well as issues related to federal law. Further,
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Defendants are requesting an award of attorney’s fees in the related state court matter for performing
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work drafting documents that are the same or substantially similar to the filings in this matter.
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Plaintiff argues that Defendants did not provide billing detail in their state court fee request. The
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Court compared Defendant’s billing records in the state court proceedings contained in its supplement
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with its billing records in this matter. See ECF No. 97, pg. 47. An award of attorney’s fees in both
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actions for work that is the same or substantially similar is excessive and would amount to double
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recovery. The Court will, therefore, reduce Defendants’ award of attorney’s fees to a reasonable
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amount of hours of work performed.
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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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In this matter, Defendants request $13,350 in attorney’s fees based on 35.6 hours of work
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performed in preparing briefs, conferring with Defendants, interviewing witnesses, reviewing
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documents, preparing the application for fees, and reviewing briefs filed by parties to this matter.
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That amount is based on work performed by Thomas P. Erwin, Esq. at an hourly rate of $375.00.
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Plaintiff does not take issue with counsel’s hourly rate or qualifications. See Response (ECF No.
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112), pg. 2. After review of Defendants’ counsel’s affidavits and billing records, the Court finds that
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35.6 hours of labor should be reduced to 6.1 hours. The awarded hours represent work performed on
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Defendants’ motion to dismiss and related legal research. The Court further reduced the awarded
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hours to a reasonable amount based upon the similarity and duplication of work performed in the state
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proceedings. As a result, the Court will award Defendants reasonable attorney’s fees in the amount of
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$2,287.50. Accordingly,
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RECOMMENDATION
IT IS HEREBY RECOMMENDED that Greg Ekins and G.I.S. Land Services’ Renewed
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Motion for Attorney’s Fees (ECF No. 110) be granted, in part, and Plaintiff should pay the total sum
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of $2,287.50.
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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 25th day of October, 2017.
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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge
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