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Zamora v. Auto Gallery, Inc.

United States District Court, District of Nevada

February 12, 2015

MARIA TREJO DE ZAMORA and, ISELA GOMEZ-DEHINES, Plaintiffs,
v.
AUTO GALLERY, INC, Defendant.

ORDER(Dkt. ##27, 37)

ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

This order addresses three pending issues: (1) Magistrate Judge Hoffman’s Report and Recommendation recommending that default be entered against defendant Auto Gallery, Inc. (Dkt. #37), (2) plaintiffs’ request for attorneys’ fees and costs (Dkt. #27), and (3) plaintiffs’ request for partial summary judgment on their breach of contract claim (Dkt. #27.).

I. Magistrate Judge Hoffman’s report and recommendation

On November 21, 2014 Magistrate Judge Hoffman entered a Report and Recommendation recommending that I enter default against Auto Gallery. I am not obligated to conduct a de novo review of Judge Hoffman’s report because Auto Gallery failed to file a timely objection.[1]Nevertheless, I have conducted a de novo review and Magistrate Judge Hoffman’s report sets forth the proper legal analysis, and factual basis, for his decision. I therefore accept Magistrate Judge Hoffman’s report in its entirety.

II. Plaintiffs’ request for attorneys’ fees and costs

Plaintiffs’ motion for attorney's fees is unopposed. Under Local Rule 7–2(d), the failure of an opposing party to file points and authorities in response to a motion constitutes consent to the granting of the motion. Thus, the defendant’s failure to oppose is sufficient grounds, on its own, for me to grant the motion.[2] But, as explained below, I have reviewed the motion and determined that plaintiffs are entitled to attorneys’ fees and that the fees they request are reasonable.

A. Whether plaintiffs are entitled to attorneys’ fees

In a previous order I held that Auto Gallery violated N.R.S. sections 97.185(1)(e) and 97.299(2)(d), committed consumer fraud by means of a deceptive trade practice under N.R.S. sections 41.600 and 598.0923(3), committed conversion, and breached a contract with plaintiffs.[3]

Given my findings in my previous order, there are several grounds for me to award attorneys’ fees in this case. Defendants’ consumer-fraud violations trigger NRS 41.600(3) which states that reasonable attorneys’ fees shall be awarded to a prevailing party. NRCP 68(f) also permits me to award reasonable attorneys’ fees when a defendant rejects an offer of judgment and subsequently fails to obtain a more favorable judgment-as was the case here.[4] Nevada law permits me to award attorneys’ fees to pro bono counsel.[5]

Plaintiffs are therefore entitled to reasonable attorneys’ fees.

B. Whether plaintiffs’ fee calculation is reasonable

The reasonableness of attorneys’ fees is calculated using the “lodestar” figure.[6] The lodestar is calculated by “multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.”[7] After calculating the lodestar figure I may “assess whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr factors.”[8] The factors I may consider include:

1) the time and labor required, 2) the novelty and difficulty of the questions involved, 3) the skill requisite to perform the legal service properly, 4) the preclusion of other employment by the attorney due to acceptance of the case, 5) the customary fee, 6) whether the fee is fixed or contingent, 7) time limitations imposed by the client or the circumstances, 8) the amount involved and results obtained, 9) the experience, reputation, and ability of the attorney, 10) the undesirability of the case, 11) the nature and length of the professional relationship with the client, and 12) awards in similar cases.[9]

However, “[t]here is a strong presumption the lodestar figure represents a reasonable fee. Only in rare instances should the lodestar figure be adjusted on ...


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