United States District Court, D. Nevada
HOWARD D. McKIBBEN, District Judge.
Before the court is the plaintiff Prologis NA3 NV II, LLC's ("Prologis") motion for attorneys' fees and non-taxable litigation expenses (Doc. #98). The defendant IGT, Inc. ("IGT") has opposed (Doc. #99) and the plaintiff has replied (Doc. #103). On the same day Prologis submitted its motion, it also filed a Bill of Costs (Doc. #97). IGT did not object to the bill of costs, and the Clerk of Court then taxed costs against IGT (Doc. #102).
This matter commenced on May 13, 2011 when Prologis filed a complaint against IGT, claiming that IGT owed Prologis damages for breach of a lease agreement made between the parties. ( See generally Complaint, Doc. #1). The matter proceeded to a bench trial on November 18-20, 2013. ( See Doc. ##85, 88, 89.) The court then issued a judgment in favor of the plaintiff on January 29, 2014, awarding Prologis damages for breach of contract in the amount of $2, 531, 299.00. (Doc #96 at 1.)
In its "Findings of Fact and Conclusions of Law" (Doc. #95 at 26 ("Decision")), the court found that "Prologis is entitled to an award of costs and attorneys' fees as the prevailing party in accordance with the provisions of Section 22 in the lease." Id. The court ordered that
Prologis shall submit to the court its bill of costs and affidavits in support of reasonable attorneys' fees on or before March 1, 2014. The Clerk of Court will then tax costs. Any objection to the taxation of costs shall be filed within 20 days of the taxation of costs by the Clerk. Any objections to Prologis' request for attorneys' fees shall be filed within 20 days after the filing of Prologis' request for fees.
Prologis then filed the instant motion on February 28, 2014. On the same day, it filed a bill of costs. IGT filed no objection to Prologis' bill of costs, and the Clerk of Court taxed costs in the amount of $6, 123.27 against IGT on April 7, 2014. IGT then responded to Prologis' motion on March 20, 2014, and Prologis replied on April 7, 2014. Prologis has requested $373, 266.00 in attorneys' fees and $29, 534.41 in non-taxable, out-of-pocket litigation costs, for a total of $402, 800.41. STANDARD
Federal Rule of Civil Procedure 54(d)(2) sets forth the procedure for obtaining an award of attorneys' fees in federal court. It does not, however, provide the substantive basis for such an award. See MRO Commc'ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1281 (9th Cir. 1999). Because jurisdiction in this case is based on diversity, the court must apply state law in determining whether an award of attorneys' fees is allowed. Canada Life Assurance Co. v. LaPeter, 563 F.3d 837, 847 (9th Cir. 2009). In Nevada, a court may award attorneys' fees to a prevailing party if authorized by statute, rule, or contract. Frank Settlmeyer & Sons, Inc. v. Smith & Harmer, Ltd., 124 Nev. 1206, 1220 (Nev. 2008). In the instant action, the court has already found that Prologis is entitled to an award of costs and attorneys' fees as the prevailing party in accordance with various provisions of Section 22 of the lease between the parties. (Doc. #95 at ¶ 32.)
Once it has been established that a party is entitled to an award of attorneys' fees, the court must determine what fee is "reasonable." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). To determine a reasonable fee award, the court must begin by calculating the "lodestar." Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1028 (9th Cir. 2000). "The lodestar' is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate." Id. (quoting Morales v. City Rafael, 96 F.3d 359, 363 (9th Cir. 1996). Reasonable hourly rates "are to be calculated according to prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984). After computing the lodestar, the court must "assess whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr factors." Morales, 96 F.3d at 363.
In addition to attorneys' fees, the prevailing party is also entitled to recover court costs. Fed.R.Civ.P. 54(d)(1); LR 54-1; N.R.S. § 18.020; N.R.S. § 18.005. Pursuant to the court's order, Prologis has already filed a Bill of Costs (Doc. #97), and IGT has already had costs taxed against it in the amount of $6, 123.127. (Doc. #102.) Recovery of costs beyond those covered by Federal Rule of Civil Procedure 54(d)(1) is possible under Federal Rule of Civil Procedure 54(d)(2), which allows for a party to move for attorneys' fees and "related non-taxable expenses." See Fed.R.Civ.P. 54(d)(2). Where a statute authorizes an award of reasonable attorney's fees to a prevailing party, as is the case in Nevada ( see N.R.S. § 18.020), the court has the discretion to award reasonable out-of-pocket litigation expenses as part of the attorney's fee award "when it is the prevailing practice in a given community for lawyers to bill those costs separate from their hourly rates." Grove v. Wells Fargo Fin. Calif., Inc., 606 F.3d 577, 579-82 (9th Cir. 2010).
In its opposition, IGT has raised only two objections to Prologis' fee request. First, IGT argues that Prologis should not be able to recover attorneys' fees for time its counsel spent working on a state court summary eviction action. (Def. Opp'n 4-5.) Second, IGT argues that Prologis has requested attorneys' fees for an "excessive" amount of work performed after the trial, and that the court should (1) reduce Prologis' fee award accordingly, and (2) should not award Prologis additional fees for any work performed after filing its motion. (Def. Opp'n 5-6.)
IGT has notably not objected in any way to the reasonableness of the rest of the hours expended by Prologis' counsel, or to Prologis' counsel's hourly rates. ( See generally Def. Opp'n.) Prologis has argued that there should be neither upward nor downward adjustments made to its lodestar calculation based upon the Kerr factors (P. Mot. 13-17); IGT has also not argued for any Kerr adjustments ( see generally Def. Opp'n). Finally, IGT has not objected to Prologis' request for recovery of non-taxable costs in the amount $29, 534.41. Id.
The court will address IGT's two objections separately below. However, to the extent that IGT has not objected to Prologis' motion, the court hereby grants that motion. The court finds that the time spent by Prologis' attorneys (other than the time spent on the summary eviction motion and after the case was fully submitted, which will be addressed below) is reasonable given the complexity of the issues involved and the duration of the litigation. The court concludes that Prologis' attorneys' billing rates are reasonable given the prevailing market rates in the community. ( See P. Mot. 11 and referenced attached Declarations and Exhibits.) The court finds that the circumstances of the case do not warrant adjustment to the lodestar based on the Kerr factors, and that the lodestar (aside from IGT's two specific objections, which, again, will be addressed below) is reasonable, especially given Prologis' 10 percent self-imposed, across-the-board reduction of its fee request and IGT's non-opposition to this portion of Prologis' motion. ( See P. Mot. 12-13; see ...