United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is a motion for attorney's fees and costs filed by defendants Tammy Rogers and Wynn Las Vegas, LLC ("Wynn"). (Doc. # 237). Plaintiff Carolyn Conboy has filed a response (doc. # 242), to which defendants replied (doc. # 246).
Also before the court is defendants' motion to vacate (doc. # 235) plaintiff's bill of costs (doc. # 229). Plaintiff has filed a response (doc. # 239), to which defendants replied (doc. # 243).
Also before the court is plaintiff's motion for attorney's fees. (Doc. # 238). Defendants have filed a response (doc. # 241), to which plaintiff replied (doc. # 245).
In her original complaint, filed on September 19, 2011, plaintiff alleged the following claims: (1) extortion or coercion; (2) battery; (3) false imprisonment; (4) slander per se; (5) malicious prosecution; (6) conversion; (7) negligence; and (8) negligent hiring and training. (Doc. # 1-1). Plaintiff ultimately sought the following relief: (1) $1, 750.00 in special damages; (2) over $75, 000.00 in general damages; (3) over $75, 000.00 in punitive damages; (4) prejudgment interest; (5) lawsuit costs; (6) and attorney's fees. (Doc. # 28 at 16).
On January 9, 2012, defendants submitted an offer of judgment in the amount of $999.00, which plaintiff rejected. (Doc. # 237 at 14). On March 26, 2014, the jury returned a verdict of $500 against defendant Wynn, but found no liability on behalf of defendant Rogers. ( See doc. # 232). In their instant motions, defendants seek attorney's fees, taxable costs, and non-taxable costs incurred in defending the underlying action. (Docs. # 237). Defendants also request that the court vacate plaintiff's bill of costs. (Doc. # 235).
On March 31, 2014, plaintiff filed a bill of costs seeking $2448.09 for taxable costs. (Doc. # 229). Plaintiff seeks attorney's fees and costs, arguing that she is the prevailing party in this suit. (Doc. # 238).
A. Defendants' motion for attorneys' fees and costs
Relying on the Supreme Court, the Ninth Circuit has found that a state's offer of judgment rules are substantive and therefore a federal court sitting with diversity jurisdiction should follow the state's offer of judgment rules. MRO Commc'ns, Inc. v. AT&T, 197 F.3d 1276, 1281 (9th Cir. 1999) (citing Alyeska Pipeline Serv. v. Wilderness Society, 421 U.S. 240, 259 (1975)). In that case, the court specifically stated that "Nevada law permits a prevailing defendant to recover attorneys' fees incurred after an offer of judgment is rejected by the plaintiff. It would be unjust and a violation of the national policy described in Erie R. Co. v. Tompkins, 304 U.S. 64... (1938)." MRO Commc'ns, Inc., 197 F.3d at 1282-83; see also Armstrong v. Riggi, 549 P.2d 753, 754 (Nev. 1976) ("The offer of judgment rule, NRCP 68, invests the court with discretion to allow [attorney's fees and costs] when the judgment obtained by the offeree is not more favorable than the offer.").
The Nevada Rules of Civil Procedure and the Nevada Revised Statutes provide similar offer of judgment rules. See NRS 17.115; Nev. R. Civ. P. 68. Nev. R. Civ. P. 68 directs that when "an offeree rejects an offer and fails to obtain a more favorable judgment, ... (2) the offeree shall pay the offeror's post-offer costs... and reasonable attorney's fees." Nev. R. Civ. P. 68(f). NRS 17.115 provides a similar discretionary penalty that allows the court to grant costs for expert witnesses. See NRS 17.115(4)(d).
On January 9, 2012, defendants submitted an offer of judgment in the amount of $999.00, which plaintiff rejected. (Doc. # 237 at 14). The jury awarded plaintiff $500.00 on March 26, 2014. (Doc. # 232). The court finds that plaintiff rejected an offer and failed to obtain a more favorable judgment. Further, plaintiff's argument-that attorney's fees are inappropriate because Fed.R.Civ.P. 68 makes no mention of it-fails as Nev. R. Civ. P. 68 applies. See MRO, 197 F.3d at 1281.
Prior to granting an award of attorney's fees, the Nevada Supreme Court directed courts to consider whether: (1) plaintiff's claims were brought in good faith; (2) defendants' offer was reasonable and in good faith considering both timing and amount; (3) whether plaintiff's decision to reject the offer and proceed was unreasonable or in bad faith; and (4) whether ...