Trustees of the Operating Engineers Pension Trust et al v. Western Explosives Systems Company

Filing 17

ORDER. IT IS HEREBY ORDERED that Defendant WESCO shall pay Plaintiff $4,770.31 in attorney's fees and costs. IT IS FURTHER ORDERED that WESCO is to make the payment to Plaintiffs no later than 12/13/2018 unless an objection is filed. Signed by Magistrate Judge George Foley, Jr on 11/14/2018. (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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***

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TRUSTEES OF THE OPERATING
ENGINEERS PENSION TRUST, et al.,
Plaintiffs,

ORDER

v.
WESTERN EXPLOSIVES SYSTEMS
COMPANY,
Defendant.

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Case No. 2:18-cv-00805-JCM-GWF

This matter is before the Court on Plaintiffs’ Memorandum in Support of Fees and Costs

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Request re: Motion to Compel (ECF No. 13), filed on September 13, 2018 and Plaintiffs’

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Memorandum in Support of Fees and Costs Request re: Motion for Order to Show Cause (ECF

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No. 16), filed on October 25, 2018. To date, no party has filed an opposition and the time for

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response has now expired.

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BACKGROUND

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On August 13, 2018, Plaintiffs filed their motion to compel (ECF No. 10) and on

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September 10, 2018, the Court granted their motion. See Order, (ECF No. 12). The Court

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ordered Defendant Western Explosives Systems Company (“WESCO”) to serve its answers to

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Plaintiff’s First Set of Interrogatories and responses to Request for Production no later than

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September 24, 2018. Defendant WESCO failed to serve its answers and responses as ordered.

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The Court also granted Plaintiffs’ request for an award of reasonable attorney’s fees and costs

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incurred in filing its motion to compel and instructed Plaintiff to file a memorandum in support

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of fees and costs. Id. On September 13, 2018, Plaintiffs filed their memorandum in support of

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fees and costs, and on September 26, 2018, Plaintiffs filed their motion for order to show cause
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(ECF No. 14). Defendant WESCO has not filed an opposition to either Plaintiffs’ memorandum

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in support of fees and costs or motion for order to show cause. On October 17, 2018 the Court

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granted Plaintiffs’ Motion for Order to Show Cause (ECF No. 15) and order Defendants to show

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cause, in writing why sanctions should not be imposed for failure to comply with this Court’s

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Order. The Court further instructed Plaintiff to file another memorandum in support of fees and

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costs associated with brining the motion for an order to show cause. See Order, (ECF No. 15).
DISCUSSION

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The Supreme Court has held that reasonable attorney fees must “be calculated according

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to the prevailing market rates in the relevant community,” considering the fees charged by

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“lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S.

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886, 895-96 n. 11, 104 S.Ct. 1541 (1984).

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determining fee awards. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the

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Court must calculate the lodestar amount “by taking the number of hours reasonably expended on

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the litigation and multiplying it by a reasonable hourly rate.” Id. Furthermore, other factors should

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be taken into consideration such as special skill, experience of counsel, and the results obtained.

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Morales v. City of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir. 1996). “The party seeking an award

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of fees should submit evidence supporting the hours worked and rates claimed . . . [w]here the

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documentation of hours is inadequate, the district court may reduce the award accordingly.”

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Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Second, the Court “may adjust the lodestar, [only

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on rare and exceptional occasions], upward or downward using a multiplier based on factors not

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subsumed in the initial calculation of the lodestar.” Van Gerwen v. Guarantee Mut. Life Co., 214

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F.3d 1041, 1045 (9th Cir. 2000).

Courts typically use a two-step process when

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Plaintiffs’ request attorney’s fees in the amount of $5,383.00 1 for time expended in the

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matter as well $35.31 for costs related to the motion to compel, motion for order to show cause

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and preparation of the memorandums in support of fees and costs against WESCO for a total of

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$5,418.31. The amount is based on work performed by Michael A. Urban, Esq., Nathan R. Ring,

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This number represents the combined total of attorney’s fees requested in both Plaintiffs’ Memorandum in Support
of Fees and Costs (ECF No. 13) and Plaintiffs’ Memorandum in Support of Fees and Costs (ECF No. 15).

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Esq. and at an hourly rate of $360.00 and work performed by April Denni paralegal employed by

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Plaintiffs’ counsel’s office, at an hourly rate of $110.00. After reviewing Plaintiffs’ counsel’s

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affidavits and itemized billing entries, the Court finds that $$5,418.31 for fees and costs to

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prepare Plaintiffs motions and memorandums is excessive. The Court finds the hours involved

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in preparing Plaintiffs motions and memorandums and labor related to such motions should take

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no more than 13.5 hours of attorney labor. Therefore, the Court will reduce Plaintiffs’ attorney’s

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fees request by $648.00 to a total of $4,735.00. As a result, the Court will award reasonable

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attorney’s fees in the amount of $4,735.00 and costs in the amount of $35.31 for a total of

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$4,770.31. Accordingly,

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IT IS HEREBY ORDERED that Defendant WESCO shall pay Plaintiff $4,770.31 in
attorney’s fees and costs.
IT IS FURTHER ORDERED that WESCO is to make the payment to Plaintiffs no later
than December 13, 2018 unless an objection is filed.
Dated this 14th day of November, 2018.

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GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

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