Bartech Systems International, Inc. v. Mobile Simple Solutions, Inc. et al

Filing 212

ORDER granting ECF No. 173 Plaintiff's Motion for Attorney Fees. Defendant is ordered to pay $4,035 to Plaintiff no later than 02/15/2017. Clerk is instructed to serve Defendant Pigeat by e-mail at [e-mail] (e-served 01/26/2017). IT IS SO ORDERED. Signed by Judge Miranda M. Du on 01/25/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BARTECH SYSTEMS INTERNATIONAL, INC., )
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Plaintiff(s),
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vs.
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MOBILE SIMPLE SOLUTIONS, et al.,
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Defendant(s).
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Case No. 2:15-cv-02422-MMD-NJK
ORDER
(Docket No. 173)

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The Court previously granted Plaintiff’s motion to compel the deposition of Defendant

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Pigeat, and for an award of attorneys’ fees. Docket No. 169. The only remaining dispute is the

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calculation of the fees. Plaintiff submitted proof of the attorney fees it incurred in filing the

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underlying motion. Docket No. 173. Defendant Pigeat filed a response in opposition, and Plaintiff

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filed a reply. Docket Nos. 183, 186. The Court finds this issue properly resolved without a hearing.

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See Local Rule 78-1. For the reasons discussed more fully below, the Court calculates the

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reasonable attorneys’ fees at $4,035.

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Reasonable attorneys’ fees are generally calculated using the traditional “lodestar” method.

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See, e.g., Camacho v. Bridgeport Fin’l, Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the lodestar

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method, the Court determines a reasonable fee by multiplying “the number of hours reasonably

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expended on the litigation” by “a reasonable hourly rate.” See Hensley v. Eckerhart, 461 U.S. 424,

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433 (1983). The lodestar figure is presumptively reasonable. Cunningham v. Cty. of Los Angeles,

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879 F.2d 481, 488 (9th Cir. 1988).

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A.

HOURLY RATE

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The party seeking an award of attorneys’ fees bears the burden of establishing the

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reasonableness of the hourly rates requested. Camacho, 523 F.3d at 980. “To inform and assist the

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court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory

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evidence–in addition to the attorney’s own affidavits–that the requested rates are in line with those

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prevailing in the community for similar services by lawyers of reasonably comparable skill,

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experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). “Affidavits of the

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[movant’s] attorney and other attorneys regarding prevailing fees in the community, and rate

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

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satisfactory evidence of the prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge

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

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rates in the community to analyze those sought in the pending case. Ingram v. Oroudjian, 647 F.3d

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925, 928 (9th Cir. 2011).

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In this case, Plaintiff seeks a rate of $325 per hour each for Gregory T. Lawrence, a partner

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at Conti Fenn & Lawrence, and Michael R. Kealy, Vice-President of Parsons Behle & Latimer.

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Docket Nos. 173-2 at 3, 173-3 at 3. Plaintiff also attaches biographies for these two attorneys,

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attesting to their educational backgrounds and some of their accomplishments. See Docket No. 173-

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4. Plaintiff seeks a rate of $225 per hour each for associate attorneys in Mr. Lawrence’s firm.

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Docket No. 173-2 at 3. Finally, Plaintiff seeks a rate of $135 per hour for paralegals in Mr.

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Lawrence’s firm. Id.

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Though Defendant Pigeat does not dispute the reasonableness of these rates, see, e.g., Docket

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No. 183 at 5, the Court independently examines their reasonableness. The Court finds the rates

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requested for Mr. Lawrence, Mr. Kealy, and Mr. Lawrence’s associates reasonable. See, e.g.,

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Crusher Designs, LLC v. Atlas Copco Powercrusher GmbH, 2015 WL 6163443, at *2 (D. Nev. Oct.

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20, 2015) (internal quotation marks and citation omitted). The Court need not determine the

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reasonableness of the paralegals’ rate, as the Court finds that no paralegal time was shown to have

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been reasonably spent due to Defendant’s failure to appear at her deposition.

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B.

REASONABLE HOURS

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Having decided the hourly rate that should be applied in this case, the Court turns to the

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hours reasonably expended.

The Court “has a great deal of discretion in determining the

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reasonableness of the fee and, as a general rule, [an appellate court] will defer to its determination

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. . . regarding the reasonableness of the hours claimed by the [movant].” Prison Legal News v.

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Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (quoting Gates v. Deukmejian, 987 F.2d 1392,

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1398 (9th Cir. 1992)). In reviewing the hours claimed, the Court may exclude hours related to

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overstaffing, duplication, and excessiveness, or that are otherwise unnecessary. See, e.g., Hensley,

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461 U.S. at 433; see also Cruz v. Alhambra School Dist., 601 F. Supp. 2d 1183, 1191 (C.D. Cal.

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2009) (“the Court must eliminate from the lodestar time that was unreasonably, unnecessarily, or

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inefficiently” spent).

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In making this determination for hours expended on a discovery motion, the Court eschews

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correlating the hours expended and the number of pages submitted in briefing, as the length of

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briefing is not in itself indicative of reasonable expenditure of time. Compare Thompson v. Astrue,

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2012 WL 5949218, at *1 (E.D. Cal. Nov. 28, 2012) (finding one hour spent per page of “fairly

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routine” briefing is not unreasonable) with Alutiiq Int’l Solutions, LLC v. Lyon, 2012 WL 4182026,

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at *2, 4 (D. Nev. Sept. 17, 2012) (reducing hours for 13-page motion to compel from 13.8 hours to

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4.0 hours). Instead, the reasonableness of hours expended depends on the specific circumstances of

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each case. Camacho, 523 F.3d at 978. To that end, in determining the reasonableness of hours spent

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in relation to a discovery motion, the Court considers factors such as the complexity of the issues

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raised, the need to review the record and pleadings, and the need to conduct legal research, in

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addition to the length of the briefing. See Herb Reed Enters v. Monroe Powell’s Platters, 2013 U.S.

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Dist. Lexis 97559, at *31 (D. Nev. July 11, 2013); see also Easley v. U.S. Home Corp., 2012 WL

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3245526, at *3 (D. Nev. Aug. 7, 2012).

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Defendant submits that the hours claimed should be adjusted downward because, inter alia,

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the hours expended were excessive. Docket No. 183 at 3-5. Defendant’s assertion appears to rest

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primarily on the number of attorneys working on the case. See id. at 5. Billed time that includes

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unnecessary duplication of effort should be excluded from the lodestar. Herrington v. Cty. of

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Sonoma, 883 F.2d 739, 747 (9th Cir. 1989); see also Cruz, 601 F. Supp. 2d at 1191. “[C]ourts ought

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to examine with skepticism claims that several lawyers were needed to perform a task, and should

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deny compensation for such needless duplication as when three lawyers appear for a hearing when

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one would do.” Democratic Party of Wash. State v. Reed, 338 F.3d 1281, 1286 (9th Cir. 2004)

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(internal citations omitted). Of course, some duplication of effort is necessary in any case. Moreno

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v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

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The Court has reviewed the billing records submitted by Plaintiff. Docket Nos. 186-1, 186-2.

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The Court determines that Mr. Lawrence reasonably spent 7.7 hours; Mr. Kealy reasonably spent 1.6

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hours; and Mr. Lawrence’s associate attorneys reasonably spent 4.5 hours of work as a result of

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Defendant’s failure to appear at her deposition.

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C.

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In light of the reasonable hours and rates determined above, the undersigned hereby

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LODESTAR CALCULATION

calculates the lodestar as follows:

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ATTORNEY(S)

HOURS

HOURLY RATE

TOTAL

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Gregory T. Lawrence

7.7

$325

$2,502.50

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Michael R. Kealy

1.6

$325

$520

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Associates

4.5

$225

$1,012.50

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Accordingly, the Court finds a lodestar amount of $4,035. Defendant is ordered to pay this amount

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to Plaintiff no later than February 15, 2017. The Court INSTRUCTS the Clerk’s Office to serve this

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order on Defendant Pigeat by e-mail at [e-mail].

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IT IS SO ORDERED.

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DATED: January 25, 2017

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_______________________________
NANCY J. KOPPE
United States Magistrate Judge

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