United States District Court, D. Nevada
GEORGE FOLEY, Jr., Magistrate Judge.
This matter comes before the Court on Defendant Kabo Tool Company's ("Kabo") Memorandum in Support of Attorneys' Fees and Costs (#286), filed on May 16, 2014. Plaintiff JS Products, Inc., ("JSP") filed its Opposition (#313) to Defendants' Motion on June 2, 2014. Plaintiff filed its Reply (#346) on August 13, 2014.
On February 26, 2013, Defendant Kabo filed a motion to compel, in which it sought production of a variety of documents and items from JSP, including a copy of the manufacturing drawings or prints for the accused wrenches. See Dkt. #120. The Court conducted a hearing on April 2, 2013 during which it indicated that it would order JSP to produce manufacturing drawings based on Mr. Moore's testimony that JSP could obtain them from its supplier. See Dkt. #154, 202. Pursuant to the Court's order, JSP produced emails showing that Mr. Moore requested manufacturing drawings from its supplier, Porauto. See Dkt. #268, Exhibit 2. On August 2, 2013, JSP's counsel sent a letter to Kabo's attorney enclosing the affidavit of Roger Wiesenauer and a disc containing the purported manufacturing drawings. See #257, Exhibit H. Kabo provided the drawings produced by JSP, along with other documents and testimony, to its mechanical engineering expert S. Philip Buckley. See Dkt. #274 at 4. Mr. Buckley thereafter submitted his expert report dated January 10, 2014 indicating that 82% of the JSP accused wrenches had a thickness of the distal end of the first jaw smaller than a thickness of the distal end of the second jaw. Id .; see also #259-10, Exhibit J. JSP's expert witness Gene Olson prepared a rebuttal expert report, dated February 11, 2014, stating that the Buckley Report referred to technical drawings, however, the drawings did not contain enough information to determine the dimensions of the wrenches other than those which were actually measured. See Dkt. #257, Exhibit K. During his deposition on April 10, 2014, Mr. Olson confirmed his statements that Exhibits K, L, and M to Mr. Buckley's report, which were the drawings that JSP obtained from Porauto in April 2013, were not true manufacturing drawings. See Dkt. #257, Exhibit L; see also Dkt. #270, Exhibit A. On April 11, 2014, Defendant Kabo filed an emergency motion for sanctions alleging that Plaintiff JSP failed to comply with the Court's Order #202.
The Court conducted a hearing in this matter on April 25, 2014. See Dkt. #271. The undersigned issued an order on May 2, 2014, granting Defendant's motion in part finding that JSP violated the Court's July 3, 2013 order. See Dkt. #274. The Court concluded, however, that Kabo was not so prejudiced by JSP's discovery violation as to warrant the severe sanction of entering a judgment for infringement against JSP. See Dkt. #274. Instead, the Court granted Defendant Kabo an award of expenses, including attorney's fees. Id. Specifically, the order states:
Defendant/Counterclaimant Kabo is awarded its reasonable attorney's fees and costs in regard to its motion for sanctions. The Court will also consider an application by Kabo for reimbursement of any expenses such as additional expert witness fees, deposition costs, and attorney's fees, that are hereafter incurred as a result of JSP's failure to produce the manufacturing drawings for the accused wrenches as it represented it did on August 2, 2013.
See Dkt. #274 at 14. The Court further instructed Kabo to serve and file a "memorandum, supported by the affidavit of counsel, establishing the amount of attorney's fees and costs incurred in the motion addressed in this order." Id.
On May 16, 2014, Defendant Kabo submitted its Memorandum in Support of Reasonable Attorneys' Fees and Costs (#286) requesting $132, 629.48 which includes $104, 682.25 in attorneys' fees, $1, 733.78 in travel costs, $6, 570.00 in expert fees, $180.00 in deposition fees, $12, 071.00 in fees incurred in preparing Memorandum (#286), and $7, 392.45 in local counsel's fees and costs. See Dkt. #286. Counsel for Defendant Kabo alleged that as a result of JSP's failure to produce the manufacturing documents and original factory drawings for the accused wrenches, Kabo was forced to file two motions to compel production and an emergency motion for sanctions (#42, #120, and #254).
In its Response (#313), Plaintiff opposed Defendant Kabo's demand for over $130, 000.00 in attorney's fees arguing that the amount was unreasonable for a sanctions motion prepared on 24hours' notice. Plaintiff further argued that:
[t]he Court has already refused to award Kabo the vast majority of fees included in its demand. This Court specifically awarded Kabo its reasonable attorney's fees and costs in regard to its motion for sanctions' and ordered Kabo to serve and file a memorandum establishing the amount of attorney's fees and costs incurred in the motion addressed in this order.' [citation omitted] The Court denied Kabo's broader requests for terminating sanctions, an adverse inference, and additional attorneys' fees and costs for two prior motions, depositions, and expert reports."
See Dkt. #313.
In its Reply (#346), Kabo argues that its request for fees and costs is within the scope of the Court's order, is reasonable and supported, and should not be diminished. See Dkt. #346. Specifically, Defendant Kabo interpreted the Court's language "in regard to" to mean that the grant of an award concerned those fees and costs outlined in the underlying motion for sanctions.
Where the attorneys' fees requested are unreasonably excessive, it is within a court's discretion to deny fees entirely. See Lewis v. Kendrick, 944 F.2d 949, 958 (1st Cir. 1991); see also Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980); see also First State Ins. Group v. Nationwide Mut. Ins. Co., 402 F.3d 43, 44 (1st Cir. 2005) (upholding the district court's decision declining to award prevailing party any expenses and fees after concluding that the requested amount, $89, 012.82, was not reasonable for the work involved). In First State Ins. Group, the Court found that a $60, 000 request for compensation of attorneys' fees and approximately $30, 000 request for local counsel, travel, and other fees was ...