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

Filing 328

ORDER re ECF No. 304 Motion for Attorney Fees : The Court ORDERS Defendant to pay Plaintiff $2,238.20 no later than July 5, 2017. The Court INSTRUCTS the Clerk's Office to serve this order on Defendant by e-mail at [e-mail]. (Ad hoc email service (NEF) to [e-mail] on 6/13/2017.) Signed by Magistrate Judge Nancy J. Koppe on 6/13/2017. (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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BARTECH SYSTEMS INTERNATIONAL, INC., )
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Plaintiff(s),
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vs.
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MOBILE SIMPLE SOLUTIONS, INC., et al.,
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Defendant(s).
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Case No. 2:15-cv-02422-MMD-NJK
ORDER
(Docket No. 304)

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On February 23, 2017, Plaintiff filed a motion for sanctions against Defendant Tessier

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(“Defendant”). Docket No. 238. Plaintiff asked the Court to award it attorneys’ fees and costs

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caused by Defendant’s failure to appear at a duly noticed deposition on December 15, 2016. See,

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e.g., id. at 2. On April 5, 2017, the Court granted in part Plaintiff’s motion. Docket No. 267. The

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Court determined that an award of fees and costs in this instance is just and that Defendant’s failure

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to attend his deposition was not substantially justified. Id. at 3-4. However, the Court also found

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that it had insufficient information with which to conduct the relevant analysis. Id. at 5-6. The Court

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therefore ordered Plaintiff to file, no later than May 5, 2017, a renewed motion for attorneys’ fees

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that provides all information necessary under the Rules and the case law for the Court to conduct a

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proper analysis. Id. at 6.

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Now pending before the Court is Plaintiff’s renewed motion for attorneys’ fees. Docket No.

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304. Defendant filed a response and Plaintiff filed a reply. Docket Nos. 318, 326. The only issue

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before the Court is the reasonableness of the fees requested. The Court finds this motion properly

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resolved without oral argument. See Local Rule 78-1. For the reasons discussed below, the Court

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awards attorneys’ fees of $2,238.20 and declines to award the costs requested.

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I.

ANALYSIS

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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. 304-1 at 3, 304-2 at 3. Plaintiff also attaches biographies for these two attorneys,

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attesting to their educational backgrounds and some of their accomplishments. Docket Nos. 304-3,

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304-4. Plaintiff seeks a rate of $225 per hour for Kyle S. Kushner, an associate attorney in Mr.

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Lawrence’s firm, and provides information about Mr. Kushner’s background. Docket Nos. 304-1

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at 3, 304-5. Finally, Plaintiff seeks a rate of $135 per hour for Tanya M. Metz, a paralegal in Mr.

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Lawrence’s firm, and provides information about Ms. Metz’s background. Docket Nos. 304-1 at 3,

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304-6.

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Though Defendant does not dispute the reasonableness of these rates, see, e.g., Docket No.

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318 at 2, the Court independently examines their reasonableness. The Court finds that the rates

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requested for Mr. Lawrence and Mr. Kealy are reasonable. Mr. Kushner, however, is an associate

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attorney with only one year and five months of experience. Docket No. 304 at 5. Accordingly, the

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Court finds a rate of $150 per hour reasonable for an associate with Mr. Kushner’s experience. The

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Court need not determine the reasonableness of Ms. Metz’s rate, as the Court finds that her time was

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not shown to have been reasonably spent due to Defendant’s failure to appear at his deposition.

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B.

REASONABLE HOURS

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Having decided the hourly rates 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 Sch. Dist., 601 F. Supp. 2d 1183, 1191 (C.D. Cal. 2009)

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

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inefficiently” spent).

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Plaintiff seeks to recover fees for 23.7 hours of work by Mr. Lawrence, 0.6 hours of work by

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Mr. Kealy, 6.2 hours of work by Mr. Kushner, and 4.3 hours of work by Ms. Metz. See Docket Nos.

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304-7, 304-9, 304-10. Defendant submits that Plaintiff seeks to recover fees that are outside the

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scope of the Court’s order, including work performed in preparation for his co-defendant’s

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deposition; work performed in preparation for Defendant’s December 15, 2016 deposition that was

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then useful to his deposition in February 2017; and travel fees and expenses that were incurred on

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account of both defendant and his co-defendant. See Docket No. 318 at 2-6. Defendant therefore

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submits that certain fees and expenses should not be granted, while others should be reduced. Id.

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at 3-7. Plaintiff replies that all of the fees it seeks to recover relate to Defendant, that it is irrelevant

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whether its counsel were able to re-use preparation work, and that its travel fees are attributable to

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Defendant. See Docket No. 326 at 2-5.

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The Court finds that several entries in the billing records submitted by Plaintiff do not reflect

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work necessitated by Defendant’s failure to appear at his deposition, and that certain entries reflect

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work that was useful to Defendant’s February 2017 deposition. See Docket No. 304-7 at 4, 6-11.

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Additionally, both Defendant and his co-defendant caused many of the travel-related fees. The Court

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therefore determines that Mr. Lawrence reasonably spent 5.7 hours; Mr. Kealy reasonably spent 0.2

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hours; and Mr. Kushner reasonably spent 2.1 hours of work as a result of Defendant’s failure to

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appear at his deposition. The Court finds that Ms. Metz did not reasonably spend any hours of work

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as a result of Defendant’s failure to appear at his December 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

HOURS

HOURLY RATE

TOTAL

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Gregory T. Lawrence

5.7

$325

$1,852.50

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Michael R. Kealy

0.2

$325

$65.00

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Kyle S. Kushner

2.1

$150

$315.00

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Accordingly, the Court finds a lodestar amount of $2,238.20.

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D.

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Plaintiff requests costs incurred from Defendant Tessier’s non-appearance, as well as Mr.

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Lawrence’s trip to Las Vegas to take the depositions of Defendants Tessier and Pigeat. Docket Nos.

COSTS

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304-7 at 15, 304-8 at 17. Plaintiff, however, presents no receipts for the costs requested and provides

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no explanation for why costs should be awarded for the videotaping notice of non-appearance when

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a court reporter was present and similarly took a notice of non-appearance. Cf. Johnson v. CFS II,

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Inc., 2013 WL 6841964, at *6 (N.D. Cal. Dec. 27, 2013) (“Nor has Johnson established that

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videotaping the Lohmeyer deposition was a reasonable cost to incur given that a court reporter also

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attended the deposition and prepared a transcript”); United States v. Boeing Co., 2012 WL 697140,

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at *3 (D. Or. Feb. 29, 2012). Moreover, the affidavits that Plaintiff presents in support of its fee

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application do not refer in any fashion to these costs. See Docket Nos. 304-1, 304-2. Given the lack

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of support provided for this request, the Court declines to award Plaintiff these costs. Cf. Local Rule

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54-1(b).

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II.

CONCLUSION

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Accordingly, the Court ORDERS Defendant to pay Plaintiff $2,238.20 no later than July 5,

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2017. The Court INSTRUCTS the Clerk’s Office to serve this order on Defendant by e-mail at

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[e-mail].

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IT IS SO ORDERED.

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DATED: June 13, 2017.

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___________________________________
NANCY J. KOPPE
United States Magistrate Judge

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