Harrington et al v. Tackett

Filing 198

ORDER Re: ECF No. 189 Memorandum - As a civil compensatory sanction, Tackett is ordered to pay Plaintiffs $42,952.33 in attorneys fees and $202 in costs. Tacketts request for reconsideration of the courts order finding him in civil conte mpt is denied. Tackett remains obligated to pay Plaintiffs $1,911.72 for Mr. Harringtons expenses incurred in traveling to Arizona on December 10, 2020. Signed by Magistrate Judge Craig S. Denney on 5/27/2022. (Copies have been distributed pursuant to the NEF - CJD)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

Case No.: 3:18-cv-00028-CSD

DANIEL HARRINGTON,
4 PAMELLA HARRINGTON, and
NIGHTWATCH MARINE, LLC,
5
Plaintiffs
6
v.
7
DAVID TACKETT,
8
Defendant
9
10

Order
Re: ECF No. 189

On January 10, 2022, the court issued an order imposing a compensatory civil contempt

11 sanction after finding defendant Tackett in civil contempt of this court’s orders to return to
12 Plaintiffs the approximately 130,000 pounds of turquoise ore that is the subject of this litigation.
13 (ECF No. 187.) The court gave Plaintiffs 30 days to file a memorandum of their fees and
14 expenses incurred in obtaining the contempt finding and the attendant proceedings that have not
15 been previously awarded. (Id.)
16

Plaintiffs filed their memorandum of fees and expenses. (ECF Nos. 189, 189-1 to 189-4.)

17 Tackett filed a response. (ECF No. 190.) Plaintiffs filed a reply. (ECF No. 192.)
18

After a thorough review, the court will award Plaintiffs $42,952.33 in fees and $202 in

19 costs as a civil compensatory sanction against Tackett.
20

I. DISCUSSION

21 A. Attorney’s Fees and Costs as a Compensatory Civil Contempt Sanction
22

The court determined that Plaintiffs are entitled to a civil compensatory fine payable to

23 them, as opposed to a coercive civil fine that would be payable to the court. (See ECF No. 187 at

1 3-4.) Compensatory sanctions are intended to compensate the aggrieved party for the injuries that
2 resulted from the noncompliance with the court’s order. “Where compensation is intended, a fine
3 is imposed, payable to the complainant.” United Mine Workers, 330 U.S. at 304. “Such fine must
4 of course be based upon evidence of complainant’s actual loss, and his right, as a civil litigant, to
5 the compensatory fine is dependent upon the outcome of the basic controversy.” Id.”
6

A court may award the aggrieved party the attorney’s fees and costs incurred in obtaining

7 the finding of contempt as a compensatory contempt sanction. See Donovan v. Burlington N.,
8 781 F.2d 680, 684 (9th Cir. 1986) (quoting Perry v. O’Donnell, 759 F.2d 702, 705 (9th Cir.
9 1985)) (recognizing “the cost of bringing the violation to the attention of the court is part of the
10 damages suffered by the prevailing party[.]”); General Signal Corp. v. Donallco, Inc., 787. F2d
11 1376, 1380 (9th Cir. 1986); Daimler AG v. A-Z Wheels LLC, No. 16-CV-875 JLS (MDD), 2022
12 WL 281580, at *5 (S.D. Cal. Jan. 31, 2022) (“Compensatory sanctions may also take the form of
13 Plaintiff’s attorneys’ fees in obtaining the contempt finding.”)
14

In cases where attorney’s fees are awarded as a compensatory civil contempt sanction,

15 courts have applied traditional methods for calculating the fee award, including reference to local
16 rules and the “lodestar” analysis along with the Kerr factors. See General Signal, 787 F.2d at
17 1380-81 (noting that the district court should consider the Kerr factors in awarding attorney’s
18 fees in connection with the civil contempt finding); RG Abrams Ins. v. Law Offices of C.R.
19 Abrams, No. 2:21-cv-00194-FLA (MAAx), 2021 WL 5213103, at *9-10 (C.D. Cal. Nov. 9,
20 2021) (utilizing lodestar approach to assess award of fees to be awarded as civil contempt
21 sanction); Black Lives Matter Seattle-King County v. City of Seattle, 516 F.Supp.3d 1202, 121122 12 (W.D. Wash. Jan. 28, 2021) (using lodestar figure and Kerr factors to determine fees awarded
23 in connection with contempt finding); Northern Central Distrib., Inc. v. Bogenschutz, No. 1:17-

2

1 cv-01351-AWI-EPG, 2018 WL 6528422, at *5 (E.D. Cal. Dec. 12, 2018) (using lodestar method
2 to assess attorney’s fees awarded as a civil contempt sanction).
3 B. The Lodestar Analysis
4

When a party establishes it is entitled to an award of attorney’s fees, “[i]t remains for the

5 district court to determine what fee is ‘reasonable.’” Hensley v. Eckerhart, 461 U.S. 424, 433
6 (1983). A determination of whether a fee is reasonable is generally based upon the traditional
7 lodestar calculation set forth in Hensley. First, the court must determine a reasonable fee by
8 multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.
9 Id. Second, the court must decide whether to adjust the lodestar amount based on an evaluation of
10 factors articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), that have
11 not been subsumed in the lodestar calculation. See Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119
12 (9th Cir. 2000) (citation omitted). The factors are also set forth in Local Rule 54-14. The court has
13 discretion to adjust the amount awarded to address excessive and unnecessary effort, and as such
14 may exclude hours that are excessive, redundant or otherwise unnecessary. Id.
15

1. Reasonable Hourly Rate

16

Reasonable hourly rates are determined by the “prevailing market rates in the relevant

17 community.” Blum v. Stevenson, 465 U.S. 886, 895 (1984); Moreno v. City of Sacramento, 534
18 F.3d 1106, 1111 (9th Cir. 2008). The burden is on the moving party to demonstrate the requested
19 rates are in line with those in the community for similar services by lawyers of reasonably
20 comparable skill, experience and reputation. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir.
21 2001) (internal quotation marks and citation omitted). Affidavits or declarations of the moving
22 attorney and other attorneys regarding prevailing rates in the community are sufficient evidence.
23 United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) (citations

3

1 omitted). The court may also rely on its own familiarity with the rates in the community to assess
2 those sought in the pending case. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).
3

The determination is not made by “reference to the rates actually charged by the prevailing

4 party.” Schwarz v. Sec. of Health & Human Servs., 73 F.3d 895, 908 (9th Cir. 1995) (citation
5 omitted).
6

Four attorneys were involved in this case on behalf of Plaintiffs, and they request varying

7 hourly rates based on their years of experience:
8

Attorney

Hourly Rate

Experience

9

Brian Irvine

$475

21 years

10

Anjali Webster

$297.50

11 years

11

Justin Bustos

$363.33

18 years

12

John Desmond

$560

28 years

13
14

Plaintiffs provide biographies from counsel’s website and cite a recent case from within

15 this district to justify the requested rates.
16

In 2011 and 2015, rates of $400 and $450 for lawyers with thirty-plus years of experience

17 were approved in cases in the unofficial northern division of the District of Nevada. See Doud v.
18 Yellow Cab, 3:13-cv-00664-WGC; Van Asdale v. Int’l Game Tech., Case No. 3:04-cv-0070319 RAM. In the Doud case (in 2015), the court also approved the hourly rate of $350 for an attorney
20 who had been practicing for 20-plus years.
21

In 2018, the following rates were approved within this district: an hourly rate of $450 per

22 hour for a lawyer with over 30-years of experience; a rate of $375 for an attorney with 19 years of
23 experience; and a rate of $275 for an attorney with 9 years of experience. Leverty & Assoc. v.

4

1 Exley, No. 3:17-cv-00175-MMD-WGC, 2018 WL 6728415 (D. Nev. Nov. 5, 2018), report and
2 recommendation adopted in 2019 WL 913096 (D. Nev. Feb. 22, 2019)
3

Subsequently, the hourly rate of $500 has been approved for attorneys with between 18-30

4 years of experience. Newmark Group, Inc. v. Avison Young, No. 2:15-cv-00531-RFB-EJY, 2022
5 WL 990640 (D. Nev. Apr. 1, 2022); Leftenant v. Blackmon, No. 2:18-cv-01948-EJY, 2022 WL
6 605344 (D. Nev. Feb. 28, 2022).Rates of $450-$500 per hour have been recently approved for
7 attorneys with 13-21 years of experience. Newmark Group, Inc. v. Avison Young, No. 2:15-cv8 00531-RFB-EJY, 2022 WL 990640 (D. Nev. Apr. 1, 2022); Buck v. Lakeview Mediation Solutions,
9 No. 2:20-cv-00189-GMN-BNW, 2021 WL 5176472, at *6 (D. Nev. Oct. 19, 2021); McGuire v.
10 Allegro Acceptance Corp., No. 2:18-cv-01635-MMD-VCF, 2020 WL 3432533, at *4 (D. Nev.
11 June 22, 2020).
12

Tackett does not challenge the hourly rates sought by Plaintiffs’ counsel. Based on the

13 awards previously allowed within this district and the court’s familiarity with prevailing rates in
14 this community, the court finds the requested rates are reasonable. 1
15

2. Parameters of the Fee Award

16

The court’s contempt sanction was limited to fees and costs incurred “in obtaining the

17 finding of contempt and attendant proceedings that have not already been awarded[.]” (ECF No.
18 187 at 4:11-12.)
19

Tackett argues that Plaintiffs’ fee request dates back to October of 2020, but Plaintiffs

20 should only be able to seek fees and costs beginning with their motion for order to show cause
21
22
23

1

The court acknowledges that Mr. Desmond’s rate is on the higher end of what has been found
to be reasonable within this district.
5

1 that was filed on January 13, 2021. In addition, Tackett argues that the award should not include
2 fees associated with the misconduct of his former counsel, Mr. Posin.
3

The court granted partial summary judgment in Plaintiffs favor on September 24, 2020,

4 which gave them their requested remedy of rescission of the agreement (i.e., Tackett was to
5 return the turquoise ore and Plaintiffs were to return his $20,000 down payment in exchange for
6 the turquoise ore). (ECF No. 124.) On October 26, 2020, Plaintiffs filed a status report indicating
7 Tackett had not complied with the court’s order to return the turquoise ore. At that point,
8 Plaintiffs had only communicated with Tackett’s former counsel, Mr. Posin, about return of the
9 turquoise ore, but Mr. Posin failed to respond. (ECF No. 130.) The court set a status conference
10 for December 4, 2020. (ECF No. 135.) Defendants filed a supplemental status report, indicating
11 there were further communications with Mr. Posin to attempt to schedule the pickup of the
12 turquoise ore, but he had still failed to respond. (ECF No. 136.)
13

The court held the hearing on December 4, 2020. Mr. Posin appeared for Tackett, but

14 Tackett did not personally appear at the hearing. The court ordered Mr. Posin to contact Tackett
15 by December 7, 2020, to arrange for Plaintiffs to pick up the turquoise that week. (ECF No. 137.)
16

Plaintiffs filed a status report on December 8, 2020, indicating that Mr. Posin did not

17 respond to their efforts to arrange to pick up of the turquoise. In that status report, Plaintiffs
18 argued that Tackett was in contempt of the court’s order granting partial summary judgment and
19 requiring the return of the turquoise. (ECF No. 138.) The court set another status conference for
20 December 11, 2020, and the court ordered Tackett to attend. (ECF No. 142.)
21

On December 10, 2020, Plaintiffs filed another status report. Mr. Posin provided the

22 address where the turquoise ore was located, but he did not provide a date and time for the
23 turquoise ore to be picked up. Plaintiffs’ counsel emailed Mr. Posin to advise that Mr. Harrington

6

1 would arrive at the address provided on December 10, 2020, to inspect the ore, and assuming it
2 was in place, to arrange for its transport. Mr. Harrington arrived in Arizona to inspect the ore, but
3 Tackett would not grant him access because he did not have an appointment. Plaintiffs’ counsel
4 attempted to contact Mr. Posin without success. (ECF No. 143.)
5

Tackett and Mr. Posin appeared for the December 11, 2020 hearing, at which point the

6 court ordered Tackett to show cause by December 14, 2020, why he should not be held in
7 contempt for failing to return the turquoise ore as ordered. (ECF No. 144.)
8

Mr. Posin later admitted he was not conveying all of the court’s orders or these

9 communications to his client. Therefore, it was not clear whether Tackett had notice of the
10 court’s orders up to that point. Tackett was unequivocally on notice that he may be held in
11 contempt for failing to return the turquoise ore as of the December 11, 2020 hearing (and before
12 Plaintiffs filed their motion for an order to show cause on January 13, 2021). As such, the court
13 will not allow Plaintiffs to recover fees incurred prior to the December 11, 2020 hearing, but the
14 court will allow them to recover fees from that point forward.
15

3. Reasonableness of the Time Spent

16

Initially, Plaintiffs requested $81,700.33 in attorneys’ fees. In their reply brief, however,

17 Plaintiffs acknowledge that certain fees set forth in their memorandum are not related to the
18 contempt issue (See ECF No. 192-1 at 3), and these fees will be deducted from the amount
19 requested by Plaintiffs:
20

Date

Timekeeper Description

Hours

21

1/19/21

ADW

0.2

22

1/21/21

BRI

23

1/22/21

ADW

Review and analyze Tackett’s opposition to motion
for attorneys’ fees
Continue preparing reply in support of motion for
attorneys’ fees; review order taxing cost
Review docket entry taxing costs

7

2.6
0.1

1

1/25/21

BRI

2

1/26/21

ADW

3

1/26/21

ADW

4

1/26/21

BRI

6

2/16/21

ADW

7

7/29/21

BRI

5

8

Continue legal research and drafting reply in
support of motion for attorneys’ fees
Review filed reply in support of motion for
attorneys’ fees
Discuss reply in support of motion for attorneys’
fees with B. Irvine
Direct staff re: service of motion for attorneys’ fees
on Posin; draft and file certificate of service;
complete drafting and file reply in support of
motion for attorney’s fees
Review Tackett’s motion for late filing of notice of
appeal
Exchange emails with client re: status; review order
from Judge Cobb allowing Eljen Parties to take
$20,000 Harrington payment if ore is returned

3.2
0.2
0.3
4.1

0.2
0.5

9
The court finds other fees Plaintiffs have requested are not reasonable for various

10
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12
13
14
15

reasons, including that: the billing entries to not demonstrate a direct relationship to the contempt
proceedings; they were incurred before Tackett definitively had notice of the contempt issue; the
billing entries bill for multiple events and include events not related to the contempt issue. As
such, the following fees will not be allowed:
Date

Timekeeper Description

22

11/19/20 BRI

Phone conference with clients re: status; draft email
to opposing counsel re: exchange of money for ore
Phone conference with client re: inspection and
status report; draft and file status report
Review minute order setting status conference;
draft email to client re: same
Phone conference with counsel for the Sugars re:
Florida case; conference with clients re: same
Email opposing counsel re: ore; phone conference
re: same
Exchange emails with opposing counsel re: ore
pickup
Draft email to opposing counsel re: ore pickup

23

12/1/20

Direct staff re: emails to chambers for hearing

16
17
18
19
20
21

10/23/20 BRI

Hours

10/26/20 BRI
10/28/20 BRI
11/5/20

BRI

11/6/20

BRI

11/13/20 BRI

BRI

8

0.9

0.2

1.1
0.3
0.8
0.3
0.2
0.2

1

12/3/20

BRI

12/4/20

BRI

12/7/20

BRI

12/8/20

BRI

12/9/20

BRI

2
3
4
5
6
7
8
9
10
11
12
13

12/10/20 JPD

14

12/10/20 BRI

15
16
12/11/20 BRI

17
18
19
20

12/16/20 BRI

21
22
23

Participate in conference call with counsel for Eljen
Parties re: judgment collection; phone conference
with client re: status and strategy; draft
supplemental status report and supporting
declaration
Prepare for and conduct status hearing; conference
with client re: same; review hearing minutes; phone
conference with opposing counsel re: ore pickup;
draft email re: same
Multiple phone conference with opposing counsel
re: ore pickup; draft email re: same; conference
with client re: status; review client email with pick
up quote; continue preparing additional status
report
Exchange emails with client regarding or
inspection; continue drafting status report regarding
turquoise exchange; Review and analyze court
order regarding sanctions; Review and analyze
judgment entered in favor of Harringtons;
Exchange emails with opposing counsel regarding
inspection
Review email communication with Court regarding
status conference; Exchange emails with client
regarding inspection
Review and analyze supplemental status report

4.2

3.1

2.1

4.8

0.4
0.3

Phone conference with client regarding inspection; 3.9
emails with client regarding the same; emails and
phone conferences with opposing counsel regarding
the same; Draft and file status report regarding
inspection
Prepare for and attend status hearing regarding
3.9
inspection of turquoise; conference with client
regarding same; Direct staff regarding filing of
recording; exchange emails with client regarding
inspection and status report; draft and file status
report; Exchange emails with opposing counsel
regarding inspection and pick up
Exchange emails with client regarding expenses for 4.1
trip to conduct inspection; continue preparing an
expense report and status report; Exchange emails
with client regarding status report; finalize and file
same 2

2

The court made a separate order allowing Mr. Harrington to recover the expenses for this trip
which occurred prior to the December 11, 2020 hearing.
9

1

12/16/20 BRI

2

12/17/20 BRI

3

12/21/20 BRI

4
5

Exchange emails with Court regarding Tackett
address; Review order directing US Marshals to
serve pleadings on Tackett 3
Exchange additional emails with counsel for Paul
Sugar regarding depositions
Exchange emails with clients regarding depositions
and subpoenas. Review order requiring
reimbursement of travel expenses by Tackett.
Confer with staff re: motion for attorneys’ fees and
bill of costs. Review motion for order to show
cause.
Review emails re: video exhibits; direct staff re:
same; review and analyze opposition to motion for
attorneys’ fees; conference with staff re: same
Continue drafting reply in support of motion 4

0.4
0.4
2.2

1/13/21

ADW

1/18/21

BRI

8

1/19/21

BRI

9

01/26/21 ADW

Review certificate of service

0.1

10

01/27/21 BRI

Continue drafting reply in support of motion 5

2.9

11

2/19/21

BRI

Exchange emails with clients re: status

0.2

12

3/4/21

BRI

Exchange emails with client re: status

0.2

13

3/10/21

BRI

Exchange emails with client re: status

0.2

3/30/21

BRI

Exchange emails with client re: status

0.2

6/16/21

BRI

Exchange emails with client regarding status 6

0.2

7/27/21

JPD

Review and analyze order on motion for sanctions 7

0.5

6
7

14
15
16

1.4
1.1
3.6

17
18
19

3

20

4

21

5

This is not directly related to the contempt proceedings.

This does not identify the motion to which it is referring, but two entries later stats continue
preparing reply in support of motion for attorneys’ fees.

Again, this does not state to which motion it is referring, but it appears to be referring to the
motion
for attorneys’ fees.
22
6
There is no description regarding what these emails were about.
23 7
There are two entries for this by JPD on July 27 and July 28, 2021; however, the court issued
its order on July 28, 2021.
10

1

07/29/21 BRI

2
3
4

08/11/21 BRI

Exchange emails with client re: status; review order 0.5
from Judge Cobb allowing Eljen parties to take
$20,000 Harrington payment if ore is returned 8
Exchange emails with client regarding case status
0.2

9/1/21

Exchange emails with client re: case status

BRI

0.2

5
The court finds the remainder of the fees sought are related to the contempt proceedings

6
7
8

and are reasonable in amount. The total amount of the allowed fees is $42,952.33, broken down
as follows:

9
10
11
12
13

Timekeeper

Allowable Hours

Rate

Amount

BRI

82

$475

$38,950

ADW

6

$297.50

$1,785

JPD

3.7

$560

$2,072

JQB

.4

$363.33

$145.33

TOTAL:

14

$42,952.33

15
4. Kerr/LR 54-14 Factors

16

Kerr and Local Rule 54-14 require the court to assess the amount of fees in connection

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21
22

with the following factors: the results obtained and amount involved; the time and labor required;
the novelty and difficulty of the questions involved; the skill requisite to perform the legal
service properly; the preclusion of other employment by the attorney due to acceptance of the
case; the customary fee; whether the fee is fixed or contingent; the time limitations imposed by
the client or circumstances; the experience, reputation and ability of the attorneys; the

23
8

This was an order entered in another case.
11

1 undesirability of the case; the nature and length of the professional relationship with the client;
2 and awards in similar cases.
3

Here, not all of the factors are relevant given the procedural posture of this case, and

4 many of them are subsumed in the lodestar calculation. Plaintiffs’ counsel achieved an excellent
5 result for their client. This case required significant time and labor. While the substantive legal
6 question may not have been particularly difficult, this case presented various procedural hurdles
7 that were quite unique and made more difficult by a recalcitrant and uncooperative defendant.
8 These procedural difficulties undoubtedly required more time than counsel likely anticipated.
9 The attorneys involved have significant experience and abilities and maintain a good reputation
10 within the bar in Northern Nevada.
11

In sum, the court finds no basis within the Kerr factors/Local Rule 54-14 to adjust the

12 amount of fees.
13 C. Costs
14

Initially, Plaintiffs requested $12,655 in costs. In their reply, they indicate that the proper

15 amount is $6,532.50. Their exhibit itemizes the following costs:
16

Date

Item

Amount

17

10/7/20

Pacer

$8.50

18

12/18/20

Pacer

$202

19

1/6/21

Pacer

$1.90

20

1/6/21

Pacer

$12.90

Computerized Research

$6,246.00

21
22

TOTAL

$6,532.50

23

12

1

The October 7, 2020, charge is from prior to the time Tackett was officially on notice that

2 he may be held in contempt, and it is not recoverable. The December 18, 2020 Pacer charge for
3 $202 is reflected in Plaintiffs’ billing documentation as “litigation services and technologies,
4 transcript of audio telephone call.” This is a telephone call with Tackett that Mr. Harrington
5 recorded, and the court requested that a transcript be submitted. Therefore, the court will allow
6 this cost to be recovered. There is no explanation of how the January 6, 2021, Pacer fees relate to
7 the contempt proceeding; therefore, these costs will not be allowed. Finally, there is no
8 documentation or explanation to demonstrate the $6,246 for computerized research was
9 specifically related to the contempt proceedings. Therefore, this cost will not be allowed.
10

In sum, Plaintiffs are entitled to recover $202 in costs.

11 D. Miscellaneous Issues
12

In his response, Tackett asks for reconsideration of the court’s order finding him in civil

13 contempt. Tackett’s request is denied. Tackett’s request is based on his insistence that the
14 material he offered to return to Plaintiffs is the approximately 130,000 pounds in turquoise ore
15 that is the subject of this litigation. However, the court has already made a finding this is not the
16 case, and Tackett has not presented any new evidence that persuades the court otherwise.
17

Tackett also argues he is not yet obligated to pay Plaintiffs the expenses Mr. Harrington

18 incurred in traveling to Arizona to try and inspect the ore on December 10, 2020. Tackett
19 contends this is because the court ordered Plaintiffs could deduct these expenses from the
20 $20,000, they are to pay Tackett as part of the rescission remedy in the event he returns the
21 turquoise ore as ordered by the court. Tackett represents he is still holding the turquoise ore and
22 he has not received the $20,000; therefore, he should not be required to pay the expenses.
23

13

1

Tackett, however, misses the point. The court has found the turquoise on Tackett’s

2 property is not the turquoise Plaintiffs sold to Tackett. Since Tackett has not returned the
3 turquoise that was sold to Plaintiffs, they are under no obligation to return the $20,000.
4 Therefore, Tackett is required by court order to reimburse Mr. Harrington the $1,911.72 in
5 expenses incurred in traveling to Arizona on December 10, 2020.
6

II. CONCLUSION

7

As a civil compensatory sanction, Tackett is ordered to pay Plaintiffs $42,952.33 in

8 attorneys’ fees and $202 in costs.
9

Tackett’s request for reconsideration of the court’s order finding him in civil contempt is

10 denied.
11

Tackett remains obligated to pay Plaintiffs $1,911.72 for Mr. Harrington’s expenses

12 incurred in traveling to Arizona on December 10, 2020.
13 IT IS SO ORDERED.
14 Dated: May 27, 2022
15

_________________________________
Craig S. Denney
United States Magistrate Judge

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