Zyppah, Inc. v. Allemeier

Filing 38

ORDER. IT IS HEREBY ORDERED that 28 Allemeier's motion for attorney's fees is DENIED, 35 Allemeier's supplemental motion for attorney's fees is DENIED as moot, and 37 Zyppah's motion to strike Allemeier's supplemental motion for attorney's fees is also DENIED as moot. Signed by Judge Jennifer A. Dorsey on 6/7/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Zyppah, Inc.,

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Case No.: 2:17-cv-02840-JAD-PAL

Petitioner

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v.

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Order Denying Motion for Attorney’s Fees
[ECF Nos. 28, 35, 37]

Daniel Allemeier, Jr.,
Respondent

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Petitioner Zyppah, Inc. employed respondent Daniel Allemeier, Jr., as the president of its

10 Professional Division in January 2017, but terminated him five months later based on alleged
11 fiduciary-duty breaches, work-performance issues, and failures to comply with the terms of the
12 employment contract. Soon after, Allemeier filed a demand for arbitration with the American
13 Arbitration Association (AAA) and requested a Los Angeles, California venue. Zyppah
14 responded that the employment contract required the parties to arbitrate their disputes in Nevada.
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Neither party would budge on the arbitral-venue issue, so Zyppah brought this action to

16 compel Allemeier to arbitrate in Nevada and to enjoin the California arbitration. Eventually I
17 granted Allemeier’s motion to dismiss Zyppah’s petition because Zyppah was not an aggrieved
18 party under the Federal Arbitration Act (FAA), and the question of arbitral venue was one for the
19 arbitrator to decide. 1 Allemeier now submits a bill of costs 2 and moves to have Zyppah pay his
20 attorney’s fees. 3 I find that Allemeier’s requests are premature, so I deny them without prejudice
21 to his ability to renew them before the arbitrator.
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Discussion

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Zyppah opposes Allemeier’s separate requests for fees and costs because, among other

24 bases, he is not yet a prevailing party within the meaning of NRS § 18.010(2)(b) because the
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ECF No. 26.

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ECF No. 29.

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ECF No. 28.
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1 underlying unlawful-termination issues are still unresolved. I agree. None of the parties’ cited,
2 binding authority addresses whether a party who successfully defends against a motion to
3 compel arbitration is a prevailing party. But Zyppah cites to Perry v. NorthCentral University,
4 Inc., 4 for the proposition that this dismissal stage is merely a procedural transfer of venue within
5 the overarching employment-litigation and not a victory on a significant issue. 5 I recently
6 adopted the Perry reasoning in another, materially similar case:
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In Perry . . . Judge Rosenblatt declined to award the defendant
attorney’s fees because it was not yet a prevailing party: “[A]n
order compelling arbitration, being merely a preliminary
procedural order that is not on the merits and does not materially
alter the legal relationship of the parties, does not make the litigant
obtaining the order a prevailing party for purposes of a fee award.”
He went on to reason “that the defendants should not . . . be
awarded their attorneys’ fees for succeeding . . . on nothing more
than effecting a change in the forum charged with deciding the
merits of the plaintiff’s claims.” And because the arbitrator had
not yet resolved the plaintiff’s claims in the defendants’ favor,
“there would be no justification for awarding the defendants
attorneys’ fees for simply obtaining their preferred choice of
forum” because “it would be a completely hollow victory for the
defendants to have procured arbitration, if the arbitrator rules
against them.” 6

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The procedural posture in Perry is different than the one here, but the end result is the

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18 same. Perry filed a civil action, and NorthCentral University moved to compel Perry to arbitrate
19 his disputes. Allemeier, by contrast, first filed a demand to arbitrate in Los Angeles, then
20 Zyppah brought this petition to compel arbitration in Nevada, and Allemeier moved to dismiss
21 Zyppah’s compelled-arbitration-venue petition. When NorthCentral University’s motion was
22 granted, the parties went to arbitration. Similarly, when I granted Allemeier’s dismissal motion,
23 the parties went to arbitration. So, the Perry reasoning is just as applicable here, regardless of
24 the nuanced procedural differences.
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Perry v. NorthCentral University, Inc., 2012 WL 1753014, at *1 (D. Ariz. May 16, 2012).

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ECF No. 34 at 5.

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Bailey v. AffinityLifestyles.com, Inc., 2:16-cv-02684-JAD-VCF, ECF No. 38 (order) (internal
citations omitted).
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Because the parties have submitted their disputes to arbitration, it is the province of the

2 arbitrator to decide who the prevailing party will be and whether to award that party reasonable
3 attorney’s fees and costs.
Conclusion

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Accordingly, IT IS HEREBY ORDERED that Allemeier’s motion for attorney’s fees

6 [ECF No. 28] is DENIED, Allemeier’s supplemental motion for attorney’s fees [ECF No. 35] is
7 DENIED as moot, and Zyppah’s motion to strike Allemeier’s supplemental motion for
8 attorney’s fees [ECF No. 37] is also DENIED as moot.
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Dated: June 7, 2018
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U.S. District Judge Jennifer A. Dorsey
S.
S. District Judge Jenni
t
g e

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