Weinfeld et al v. Minor et al
Filing
193
ORDER that the Plaintiffs Motion to Strike (ECF No. 181 ) is GRANTED IN PART. The Plaintiffs have until 1/28/2019 to file a surreply. Signed by Judge Robert C. Jones on 1/14/2019. (Copies have been distributed pursuant to the NEF - LH)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOSEPH WEINFELD, et al.,
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Plaintiffs,
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3:14-cv-00513-RJC-WGC
vs.
ORDER
BILL L. MINOR, et al.,
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Defendants.
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The Plaintiffs have filed a motion to strike (ECF No. 183) the Errata to Defendants’
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Motion for Attorneys’ Fees (ECF No. 181). The Plaintiffs argue that the Errata was improperly
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filed and prejudices the Plaintiffs by denying them the opportunity to respond. For the following
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reasons, the Court grants the Plaintiffs’ Motion to Strike in part.
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I.
FACTS AND PROCEDURAL HISTORY
After this Court entered its Order Granting Defendants’ Motion for Summary Judgment
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(ECF No. 157) and entered judgment accordingly (ECF No. 158), the Defendants filed a Motion
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for Attorneys’ Fees and Costs (ECF No. 160). Along with their motion, on the same day, the
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Defendants filed documents to support their request for costs and attorneys’ fees. However, these
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supporting documents were incorrectly filed, and the Court entered a notice on the following day
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that the Defendants’ exhibits were filed incorrectly and needed to be refiled. (ECF No. 168.) The
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Defendants’ complied with this notice on the same day and refiled Exhibit One (ECF No. 171)
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and Exhibit Two (ECF No. 169) to their Motion for Attorneys’ Fees. Following Plaintiffs’
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Response (ECF No. 176) that highlighted that Defendants’ supporting documentation was still
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incomplete, Defendants’ filed an Errata to Defendants’ Motion for Attorneys’ Fees.
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II.
DISCUSSION
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The Plaintiffs’ argue that the Errata should be stricken because it is an attempt to
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improperly supplement the Defendants’ Motion for Attorneys’ Fees and Costs, and because it is
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untimely, which precluded the Plaintiffs from responding to it. Alternatively, the Plaintiffs seek
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leave to file a surreply in opposition to the Defendants’ Errata. The Court agrees that the timing
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prejudiced the Plaintiffs and that the Plaintiffs should have an opportunity to respond. However,
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the Court disagrees that the Errata should be stricken from the record.
It is clear that the Defendants intended to submit all of the supporting documents found in
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the Errata as attachments to their original Motion for Attorneys’ Fees. Throughout their motion,
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Defendants reference exhibits and supporting documents as if they were included. To cite just
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one example, the Defendants write:
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In addition to the $179,747.50 the Defendants seek to recover in the attorneys’ fees
they incurred in this case and the $15,021.48 they seek in taxable costs (as stated in
the concurrently-filed bill of costs), the Defendants request that they be reimbursed
for the $2,822.15 that they have incurred in non-taxable costs. See Exhibits 1 and
2. Those costs include postage in the amount of $327.87; photocopy expenses in
the amount of $2,138.78; $215.50 in PACER expenses; and delivery/messenger
expenses in the amount of $140.00. See Invoices provided with Exhibits 1 and 2.
Additionally, the Defendants seek to recover the paralegal fees they reasonably
incurred in the amount of $36,396.00. See, Exhibit A to Exhibit 1.
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(Mot. for Att’y Fees and Costs 10:20–11:1, ECF No. 160.) Accordingly, it is unfitting to
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categorize the Errata as an attempt to supplement Defendants’ motion. The information was
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referenced and cited throughout the original motion, but it was inadvertently excluded. The
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specific references to non-taxable costs above are figures taken directly from Michael J.
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Morrison’s billing statement, which was a document that was not included in the original motion
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or supporting documents that were filed, but it was clearly intended to be included. Thus, the
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Defendants are correct that inadvertence (or inattentiveness) is the best term to characterize the
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Defendants’ errors, since it makes little sense to intentionally cite and reference absent
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documents. As such, the Court judiciously approves, retroactively, filing of Defendants’ Errata to
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correct the incomplete and missing exhibits referenced in the Defendants’ Motion. While the
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Defendants’ mistakes are not admirable, this Court declines to exercise its discretion to strike the
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Errata. Rather, it finds that the interests of justice are better served by allowing the Plaintiffs to
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respond to the Errata and for this Court to fully consider all available evidence before ruling on
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the Defendants’ Motion for Attorneys’ Fees and Costs.
CONCLUSION
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IT IS HEREBY ORDERED that the Plaintiffs Motion is GRANTED IN PART. The
Plaintiffs have fourteen days from the filing of this Order to file a surreply.
IT IS SO ORDERED.
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_____________________________________
ROBERT C. JONES
United States District Judge
Dated: January 14, 2019.
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