Orbit Irrigation Products v. Capener et al

Filing 67

MEMORANDUM DECISION AND ORDER granting 49 Motion for Attorney Fees; granting 55 Motion to Strike ; denying 62 Motion to Strike. Signed by Judge Dee Benson on 11/7/13. (jlw)

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U.S. OISTHICT COUR
IN THE UNITED STATES COURT FOR THE DISTlMFNrRFJ:F~
NORTHERN DNISION

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UTAH

ORBIT IRRIGATION PRODUCTS, INC., a
Utah Corporation, dba ORBIT
IRRIGATIONS PRODUCTS (NINGBO)
L.T.D.,

MEMORANDUM DECISION
AND ORDER

Plaintiff,

vs.

Case No. 1:13-CV-55

JANICE CAPENER, an individual, aka
Janice Kuang, aka Janice White aka Jie
Kuang, aka Janice Kuang Capener, aka Janice
J. Kuang, aka Janice Capener, aka KJ Peng,
akaMegan Luo; DAN CAPENER, an
individual; SUNHILLS INTERNATIONAL,
LLC, a California limited liability company;
RONG PENG, an individual; CHARLIE
CRUMP, an individual; and DOES 1-10,
Defendants.

Pending before the Court is Plaintiff Orbit Irrigation Products, Inc.' s ("Orbit") Motion for
an Award of Attorneys' Fees. (Dkt. No. 49). Also before the Court are Defendants Janice
Capener, Dan Capener, Sunhills International, LLC, and Rong Peng' s (collectively "Sunhills")
Motion to Strike the Declaration Supporting Request for Attorneys' Fees and Motion to Strike
the Supplemental Declarations Supporting Request for Attorneys' Fees. (Dkt. Nos. 55,62).

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On October 31, 2013, the Court heard oral argument on these matters. The Plaintiff was

represented by Mark Bettilyon and Greg Ericksen. Sunhills was represented by Michael Brady.
After review and consideration of the memoranda submitted by the parties and the oral
arguments of counsel, the Court enters the following Memorandum Decision and Order.

BACKGROUND
On Aug. 5,2013, this Court awarded Orbit attorneys' fees incurred in opposition to
Defendants' improper removal of this action to federal court. (Dkt. No. 47). On August 19,
2013, Orbit filed their motion for attorneys' fees, requesting a total of$36,549.50. (Dkt. No. 49).
As required by law, Orbit submitted a Declaration Supporting Request for Attorneys' Fees with
their motion. (Dkt. No. 50). Appended to that declaration was a summary of the hours and legal
fees billed by Orbit's counsel for Orbit's Motion to Remand. See Pl.'s Decl. Supp. Req. for
Attys' Fees Exs. A, B.
On August 28,2013, Sunhills made two separate filings: (1) an Opposition to [Orbit]'s
Motion for an Award of Attorneys' Fees, and (2) a Motion to Strike the Declaration Supporting
Request for Attorneys' Fees. (Dkt. Nos. 55,56). The motion to strike alleged that the
declaration submitted by Orbit in support of their motion for attorneys' fees was deficient.
On September 13, 2013, Orbit filed their Reply Memorandum in Support of Motion for
Award of Attorneys' Fees. Attached to this reply were two Supplemental Declarations, both of
which remedied the deficiencies in the prior declaration.
On September 24, 2013, Sunhills filed another motion to strike, this time in regard to

Orbit's supplemental declarations, arguing that the supplemental declarations were untimely.
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DISCUSSION
A.

Sunhills' Motion to Strike Declaration Supportin& Request for
Attorneys' Fees

According to the local rules of this Court, a motion for attorneys' fees must "be
accompanied by an affidavit of counsel setting forth the scope ofthe effort, the number of hours
expended, the hourly rates claimed, and any other pertinent supporting information that justifies
the award." DUCivR S4-2(f)(iii).
There are two ways a party can satisfy this affidavit requirement. First, their affidavit
may be taken before any judge, the clerk of any court, any justice court judge, or any notary
public of this state. See Utah Code. Ann. §78B-S-701. Second, they can submit an unsworn
declaration that will carry the effect of an affidavit, if subscribed to as true "under the penalty of
peIjury." See 28 U.S.C. § 1746(2).
Orbit's initial declaration didn't fulfill either of these requirements. See Decl. of Mark
Bettilyon Supp. Req. for Att'y Fees at 1. The declaration submitted by Orbit begins "being first
duly sworn upon oath," however there is no jurat executed by any person authorized under Utah
Code Ann. §78B-S-701. See Decl. of Mark Bettilyon Supp. Req. for Att'ys Fees at 2.
Additionally, the declaration does not state that it was made under the "penalty ofpeIjury" as
required under 28 U.S.C. § 1746.
Accordingly, Sunhills' Motion to Strike Declaration Supporting Request for Attorneys'
Fees is GRANTED.

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B.

Sunhills' Motion to Strike Supplemental Declaration Supportina Request for
Attorneys' Fees

Sunhills also seeks to strike Orbit's supplemental declarations, arguing that (1) the reply
brief to which the supplemental declarations were attached was not filed within the required
deadline for a response and (2) the supplemental declarations themselves were filed beyond the
deadline for filing a motion for attorneys' fees. Each of these arguments will be addressed in
turn.
1.

Timeliness of Orbit's Reply

Under the local rules of this Court, parties have 14 days to file an opposing or reply
memorandum. See DUCivR 7-1 (b)94)(B). However, the Federal Rules of Civil Procedure
extends this deadline by three days for some filings. See Fed. R. Civ. P. 6(d). As relevant to this
case, Rule 6(d) allows three additional days after service of electronic means pursuant to Rule
5(b). Id.
Sunhills' opposition to Orbit's motion for attorneys' fees was filed on August 28,2013.
Orbit filed its reply on September 13, 2013, 16 days after Sunhills' response. Therefore, when
including the additional time Rule 6(d) allows for filing, Orbit's reply was timely.

2.

Timeliness of Orbit's Supplemental Declarations

District of Utah Civil Rule 54-2(t) reads in relevant part:
Unless otherwise provided by statute or extended by the court under Fed. R.
Civ. P. 6(b), a motion for attorneys' fees authorized by law must be filed and
served within fourteen (14) days after (i) entry ofa judgment .... The motion
must ... be accompanied by an affidavit of counsel setting forth the scope of
the effort, the number of hours expended, the hourly rates claimed, and any
other pertinent supporting information that justifies the award.

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DUCivR 54-2(f).
Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, when an act must be done
within a specified time, the court may extend the time (1) with or without motion if the court acts
before the time expires, or (2) on motion after the time has expired if the party failed to act
because of excusable neglect. See Fed. R. Civ. P. 6(b).
In this case, Orbit was awarded attorneys' fees on August 5, 2013. Therefore, absent an

extension, Orbit had until August 19, 2013, to file their motion for attorneys' fees, which is when
they in fact did file. However, as the foregoing has made clear, the declaration Orbit submitted .
with their initial motion did not satisfy the requirements ofDUCivR 54-2(f). Additionally, at no
point has Orbit moved for an extension of time based on excusable neglect.
However, the Court views Orbit's timely reply brief (with supplemental declarations
attached) as relating back to the initial motion that was timely filed on August 19. Therefore,
Orbit's supplemental declarations are considered as though they had been flIed with Orbit's
initial Motion for Award ofAttorneys' Fees. Accordingly, Sunhills' Motion to Strike
Supplemental Declarations Supporting Request for Attorneys' Fees is DENIED.

C.

Orbit's Motion for Award of Attorneys' Fees

Because the Court finds that Orbit's motion meets the requirements under District of
Utah Civil Rule 54-2(f), it next addresses the amount of attorneys' fees that will be awarded.
Orbit seeks $36,549.50 in attorneys' fees. Sunhills finds reasonable $19,246.00 ofthat

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amount. Defs.' Opp'n to Pl.'s Mot. for an Award of Attys' Fees at 15. With regard to the other
$17,303.50, Sunhills makes three objections.
First, Sunhills disputes $11,541.25 as redundant. Id. at 13-15. Second, Sunhills disputes
fees in the amount of$3,387.00, as either not related to the removal/remand or relating to un­
awardable clerical work (specifically $1,613.50 as unrelated to RemovallRemand and $1,773.75
as clerical). Id. at 15. For the remaining $2,375.00, Sunhills disputes the fees assigned to work
done by individuals identified in the summary of hours and legal fees as "KH," DE" and "SS."

Id. at 12. Sunhills argues that fees associated with these individuals are not acceptable until
Orbit confirms that these individuals are paralegals performing recognized paralegal work (as
opposed to clerical services).
Despite the opportunity to respond to these objections in their reply brief, Orbit failed to
do so. Consequently, the Court finds unreasonable the fees objected to as unrelated to the
removal/remand ($1,613.50) and the fees associated with unidentified persons ($2,375.00).
Additionally, the Court finds redundant those fees charged by Greg Ericksen regarding
preparation for and attendance at a hearing before this Court on July 10, 2013 ($1,031.25), based
on the fact that Mr. Ericksen did not argue or participate in the hearing. Therefore, Orbit's
Motion for Award of Attorneys' Fees is GRANTED in the amount of$31,529.75.

CONCLUSION

For the reasons stated above, Sunhills' Motion to Strike Declaration Supporting Request
for Attorneys' Fees is GRANTED, Sunhills Motion to Strike Supplemental Declarations

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Supporting Request for Attorneys' Fees is DENIED, and Orbit's Motion for Award of Attorneys'
Fees is GRANTED in the amount of$31,529.75.
IT IS SO ORDERED.
DATED this 7th day ofNovember, 2013.

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on
Unite States District Judge

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