JB Carter Enterprises, LLC v. Elavon, Inc.

Filing 106

ORDER denying 82 and 103 Motions for Attorney Fees. Signed by Judge Jennifer A. Dorsey on 8/3/2020. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:18-cv-00394-JAD-NJK Document 106 Filed 08/03/20 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 JB Carter Enterprises, LLC dba ATM
Merchant Systems,
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Plaintiff
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v.
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Elavon, Inc.,
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Defendant
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Case No.: 2:18-cv-00394-JAD-NJK

Order Denying Defendant’s
Motion for Attorney’s Fees

[ECF Nos. 82, 103]

Defendant Elavon, Inc. moves for attorney’s fees and nontaxable costs under the fee-

10 shifting provision in its Master Agreement with Plaintiff JB Carter Enterprises, LLC dba ATM
11 Merchant Systems (ATMMS). 1 I granted summary judgment in Elavon’s favor on ATMMS’s
12 oral contract-related claim because the Master Agreement’s integration clause required that
13 purported oral contract to be in writing. I also granted summary judgment in Elavon’s favor on
14 ATMMS’s other claims because no genuine issues of material fact remained. ATMMS contends
15 that (1) the fee-shifting provision does not apply because my summary-judgment ruling did not
16 include a determination that it breached the Master Agreement and, in the alternative, (2) that the
17 fee-shifting provision only applies to the fees incurred defending its claims related to the alleged
18 oral contract. Because the fee-shifting provision does not encompass Elavon’s defensive use of
19 the Master Agreement’s integration clause, I deny Elavon’s motion for attorney’s fees.
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ECF Nos. 82 (redacted motion); 103 (unredacted motion).

Case 2:18-cv-00394-JAD-NJK Document 106 Filed 08/03/20 Page 2 of 4

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Discussion

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This is a diversity-jurisdiction case, so state law on attorney’s fees applies. 2 Under

3 Nevada law, attorney’s fees are not recoverable “unless authorized by statute, rule, or agreement
4 between the parties.” 3 Nevada allows parties to freely provide for attorney’s fees “by express
5 contractual provisions.” 4 “The objective in interpreting an attorney fees provision, as with all
6 contracts, is to discern the intent of the contracting parties.” 5
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Elavon points to the attorney’s fee provision in the Master Agreement, which reads:

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In the event any party hereto is determined, in connection with a
final and binding arbitration pursuant to Section 14 above, to have
breached this Agreement, then the non-defaulting party shall be
entitled to recover expenses incurred in enforcing the provisions of
this Agreement, including reasonable attorneys’ fees and costs. 6

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11 Elavon argues that the Master Agreement’s fee-shifting provision encompasses this litigation
12 regarding an alleged oral contract, “necessarily breach[ing]” the integration clause. 7 That
13 integration clause states that the “agreement represents the entire understanding among
14 [ATMMS], Elavon, and [its parent U.S. Bank National Association] with respect to the matters
15 contained herein and, except as provided in this Agreement, it may be amended only by an
16 instrument in writing signed by each of the parties hereto.” 8
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2

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Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 973 (9th Cir. 2013) (“[S]tate
law on attorney’s fees is substantive, so state law applies in diversity cases.”)

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First Interstate Bank of New v. Green, 694 P.2d 496, 498 (Nev. 1985).

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Davis v. Beling, 278 P.3d 501, 515 (Nev. 2012).

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Id. (quotation omitted).

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ECF No. 103 at 5.

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ECF No. 104 at 4.

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ECF No. 78 at 2–3.

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There are two fatal flaws in Elavon’s position. First, there was no arbitration to trigger

2 the attorneys-fees provision. Having won summary judgment on its argument that the Master
3 Agreement represents the entire understanding between it and ATMMS with respect to the
4 subject matter of the alleged oral contract, Elavon conveniently now reads the term “arbitration”
5 to mean arbitration or litigation. Elavon justifies this reading by arguing that ATMMS’s attempt
6 to circumvent the Master Agreement by pleading an oral contract “led to this dispute being
7 litigated in this Court rather than in arbitration.” 9 ATMMS does not respond, but Elavon’s
8 embrace of equity works both ways. Because the record shows that Elavon never moved to
9 compel arbitration under the Master Agreement, I decline to extend a provision for attorney’s
10 fees incurred in arbitration to encompass attorney’s fees incurred in litigation.
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Elavon’s second foundational error is its assumption that any party was determined to

12 have breached the agreement. Although I found that the Master Agreement’s integration clause
13 barred ATMMS’s breach-of-oral-contract claim, I never “determined” that ATMMS breached
14 the integration clause by pursuing that claim, as required by the attorney’s fees provision. 10 I can
15 only assume that, in filing this litigation, ATMMS had a good-faith basis for believing that the
16 alleged oral contract did not relate to the subject matter of the Master Agreement and was thus
17 exempt from the integration clause. 11 Elavon calls ATMMS’s strategy “deceptive[]
18 pleading[,]” 12 but I have not made that finding. So I deny Elavon’s motion for attorney’s fees. I
19 need not—and do not—reach ATMMS’s alternative responsive argument.
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ECF No. 103 at 4 n.4.

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Id. at 5.

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See generally Fed. R. Civ. P. 11.

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ECF No. 104 at 4.
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Case 2:18-cv-00394-JAD-NJK Document 106 Filed 08/03/20 Page 4 of 4

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

3 [ECF Nos. 82, 103] is DENIED.
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Dated: August 3, 2020

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_______________________________
U.S. District Judge Jennifer A. Dorsey

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