Sunlighten, Inc. v. Finnmark Designs, LLC
Filing
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ORDER. IT IS ORDERED that 51 the Memorandum of Fees in Support of Award of Sanctions Under Fed. R. Civ. P. 37 is GRANTED in the amount of $6,978.50. IT IS FURTHER ORDERED that Plaintiff shall pay this amount to Defendants Counsel within thirty (30) days of the date of this Order. Signed by Magistrate Judge Elayna J. Youchah on 7/15/2021. (Copies have been distributed pursuant to the NEF -cc: Finance - JQC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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SUNLIGHTEN, INC.,
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Plaintiff,
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Case No. 2:20-cv-00127-JAD-EJY
ORDER
v.
FINNMARK DESIGNS, INC.,
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Defendant.
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Before the Court is Defendant Finnmark Designs, LLC’s (“Defendant”) Memorandum of
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Fees in Support of Award of Sanctions Under Fed. R. Civ. P. 37 (“Memorandum”) (ECF No. 51).
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Plaintiff Sunlighten, Inc. filed a Response to Defendant’s Memorandum of Fees in Support of Award
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of Sanctions Under Fed. R. Civ. P. 37 (“Response”) (ECF No. 59). The full background leading to
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Plaintiff’s Memorandum is found in the Court’s May 4, 2021, Order (EFC No. 49). This background
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is not repeated here.
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I.
DISCUSSION
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A.
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The Court “has a great deal of discretion in determining the reasonableness of the fee and, as
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a general rule, [an appellate court] will defer to its determination ... regarding the reasonableness of
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the hours claimed by the [movant].” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th
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Cir. 2010) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992)). When considering
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reasonable attorney’s fees, the Court must review the “prevailing market rates in the relevant
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community” comparing hourly rates charged by “lawyers of reasonably comparable skill, experience
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and reputation.” Soule v. P.F. Chang’s China Bistro, Inc., Case No. 2:18-cv-02239-GMN-GWF,
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2019 WL 3416667, at *1 (D. Nev. July 26, 2019) (quoting Blum v. Stenson, 465 U.S. 886, 895-96
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n. 11 (1984)). This is a two-step process requiring the Court to first “calculate the lodestar figure by
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taking the number of hours reasonably expended on the” motion at issue and multiplying that number
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“by a reasonable hourly rate.” Fischer v. SJP-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (citing
Attorneys’ Fees
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Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)) (internal quotation marks omitted). The second
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step requires the Court to consider adjusting the lodestar upward or downward, something done
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“only on rare and exceptional occasions, … using a multiplier based on factors not subsumed in the
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initial calculation of the lodestar.” Soule, 2019 WL 3416667, at *1 (citing Van Gerwin v. Guarantee
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Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000)) (internal brackets removed).
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Here, Defendant asks the Court to find hourly rates of $300 for Mr. Gile and $110 for his
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paralegal/law clerk. ECF No. 51 at 3. Plaintiff does not argue that these rates are unreasonable.
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Given that Defendant cited multiple examples in cases where this Court allowed similar rates and
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Plaintiff did not raise the rates as an issue in the Response, the Court finds these rates to be
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reasonable.
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B.
Time Billed
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“District courts possess the necessary discretion to adjust the amounts awarded to address
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excessive and unnecessary effort expended in a manner not justified by the case.” Ballen v. City of
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Redmond, 466 F.3d 736, 746 (9th Cir. 2006). This includes “time spent reviewing work of other
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attorneys as duplicative” (Melancon v. Harrah’s Entertainment, Inc., Case No. 2:08-cv-00212-RCJ-
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RJJ, 2010 WL 11639687, at *4 (D. Nev. Feb. 26, 2010)), as well as entries on time reports that fails
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“to delineate what work was performed in each entry” and thus appear duplicative. American
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General Life Ins. Co. v. Futrell, Case No. 2:11-cv-00977-PMP-CWH, 2012 WL 4962997, at*4 (D.
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Nev. Oct. 16, 2012). Ultimately, when reviewing hours claimed by the party to whom fees have
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been awarded, the Court may exclude hours arising from overstaffing, duplication, excessiveness or
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that are otherwise unnecessary. See, e.g., Hensley, 461 U.S. at 433; see also Cruz v. Alhambra
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School Dist., 601 F.Supp.2d 1183, 1191 (C.D. Cal. 2009). Finally, it is always Plaintiffs’ burden to
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establish that the fees they seek are reasonable. Soule, 2019 WL 3416667, at *1 (citing Camacho v.
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Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008)).
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Defendant seeks to recover attorneys’ fees for 42.7 billable hours at the above hourly rates
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of $300 for attorney time and $110 for paralegal/law clerk time. ECF No. 51-1 at 4. Defendant
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provided a detailed list of tasks in Exhibits A and B of the Memorandum. See ECF No. 51-1 at 3 to
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4, ECF No. 51-2. The Court finds that not all of this time is recoverable. In the prior Order (ECF
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No. 49), the Court ordered that “Plaintiff shall be required to pay reasonable fees and costs incurred
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by Defendant for bringing its Motion to Compel [(ECF No. 36)].” ECF No. 49 at 3. The entries on
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December 4, 2020 (review responses to discovery for a total of .6 or $180.00); December 13, 2020
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(email exchange between defense counsel and his paralegal for .2 or $60.00); December 13, 2020
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(review responses to discovery for a total of .5 or $112.00); and, December 15, 2020 (email to client
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for a total of .2 or $60.00) are not sufficiently related to the Motion to Compel to justify requiring
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Plaintiff to pay these fees.
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Defendant is correct that a party moving for attorneys’ fees may also recover fees for the
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time expended in filing a motion for attorneys’ fees. SOC-SMG, Inc. v. Christian & Timbers, LLC,
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Case No. 3:08-CV-00392-ECR-VPC, 2010 WL 2085076, at *7 (D. Nev. May 20, 2010) (citing
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Anderson v. Dir., Off. Of Workers Comp. Programs, 91 F.3d 1322, 1325 (9th Cir. 1996)). However,
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the Court also has discretion “to reduce fees-on-fees to the extent of the applicant’s success on the
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underlying fees.” SOC-SMG, Inc., 2010 WL 2085076, at *7 (citing Thompson v. Gomez, 45 F.3d
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1365, 1368 (9th Cir. 1995)).
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In determining the final amount of attorneys’ fees owed to Defendant, the Court first removes
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all of the above disallowed entries from the calculation. The Court also disallows two entries that
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do not contain descriptions, totaling $210.00. See ECF No. 51-2 at 17, 27. This decreases the
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amount provided by Defendant by $622.00, leaving the total amount spent on the Motion to Compel
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as $5,066.00 (as opposed to the Defendant’s calculation of $5,688.00).
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approximately 90% of the Defendant’s request for the underlying fees. Using the fees-on-fees rule
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from Thompson, the Court reduces the Defendant’s calculation for the value of work on the
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Memorandum to $1,912.50 (as opposed to Defendant’s calculation of $2,125.00). Adding the value
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of the work on the Motion to Compel to the value of the work on the Memorandum, the Court arrives
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at a grand total of $6,978.50.
This represents
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C.
Party Responsible to Pay Sanction
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Defendant requests the Court hold Plaintiff and Plaintiff’s counsel jointly and severally liable
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for the attorneys’ fees award. ECF No. 51 at 8. Rule 37(a)(5) sanctions may be issued against a
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party, a party’s attorney, or both. Fed. R. Civ. P. 37(a)(5). The Court therefore has authority under
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Rule 37 to award fees against a party and its counsel jointly and severally. See, e.g., Toth v. Trans
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World Airlines, Inc., 862 F.2d 1381, 1387 (9th Cir. 1988). Responsibility may fall to both the party
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and counsel jointly and severally when it is unclear from the record which is less blameworthy than
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the other. Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Ass’n, 316 F.R.D.327
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(D. Nev. 2016). Nonetheless, sanctions against counsel are a step too far for this Court to take.
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There is nothing that Defendant presents showing that Plaintiff’s counsel is responsible for Plaintiff’s
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delay in producing discovery documents. For this reason, the Court awards sanctions against
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Plaintiff only.
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II.
ORDER
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Accordingly,
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IT IS HEREBY ORDERED that the Memorandum of Fees in Support of Award of Sanctions
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Under Fed. R. Civ. P. 37 (ECF No. 51) is GRANTED in the amount of $6,978.50.
IT IS FURTHER ORDERED that Plaintiff shall pay this amount to Defendant’s Counsel
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within thirty (30) days of the date of this Order.
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Dated this 15th day of July, 2021.
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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE
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