United States District Court, D. Nevada
ORDER (DOCKET NO. 68)
J. KOPPE United States Magistrate Judge.
before the Court is Plaintiff's motion for attorney fees.
Docket No. 68. Defendant filed a response in opposition and
Plaintiff filed a reply. Docket Nos. 73, 74. The Court finds
this matter properly resolved without oral argument.
See Local Rule 78-1. For the reasons discussed
below, the motion is DENIED without
pending motion for attorney fees arises out of
Plaintiff's motion to compel, which the Court granted.
See Docket Nos. 55, 64. Although Plaintiff requested
expenses as part of its motion, see Docket No. 55 at
14, the Court denied that request without prejudice. Docket
No. 64 at 4. The Court ordered the parties to meet and confer
as to whether attorneys' fees and costs are appropriate
and, if so, an amount that should be provided to Plaintiff.
Id. The parties met and conferred, but were not able
to resolve the issue. See Docket No. 68 at 2-3.
ENTITLEMENT TO RECOVER EXPENSES
submits that the Court should not award Plaintiff
attorneys' fees and costs because Defendant's
objections in opposing the motion to compel were
substantially justified. Docket No. 73 at 5-8. Even where a
motion to compel is granted in full, the Court should not
award expenses where the “opposing party's
nondisclosure, response, or objection was substantially
justified.” Rule 37(a)(5)(A)(ii). “The burden
is on the losing party to affirmatively demonstrate that its
discovery conduct was substantially justified.” Am.
Gen. Life Ins. Co. v. Futrell, 2012 WL 4962997, at *1
(D. Nev. Oct. 16, 2012). Substantial justification exists
when the losing party has shown that there is a genuine
dispute or that reasonable people could differ as to the
appropriateness of the contested action. Id.
(quoting Devaney v. Cont'l Am. Ins. Co., 989
F.2d 1154, 1163 (11th Cir. 1993)).
Court finds that Defendant has not met its burden of showing
that its discovery conduct was substantially justified.
Defendant's opposition to providing the discovery at
issue centered on the relevance and sensitive nature of the
material requested. See, e.g., Docket No. 64 at 3.
First, the Court finds that reasonable minds could not differ
as to the relevance of the discovery sought. See,
e.g., id. Second, as Plaintiff notes, Defendant
could not reasonably assert that the protective order already
in place - which resulted from its own negotiations with
Plaintiff - was insufficient to safeguard its information.
See, e.g., Docket No. 74 at 2-3. The Court thus
concludes that Plaintiff is entitled to recover its expenses
in bringing the motion to compel.
determined that Plaintiff is entitled to recover its expenses
in bringing its motion to compel, the Court turns to the
calculation of the fees. Reasonable attorneys' fees are
generally calculated based on the traditional
“lodestar” method. Camacho v. Bridgeport
Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the
lodestar method, the Court determines a reasonable fee by
multiplying “the number of hours reasonably expended on
the litigation” by “a reasonable hourly
rate.” See Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). The lodestar figure is presumptively reasonable.
Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 488
(9th Cir. 1988).
party requesting attorneys' fees must show, inter
alia, that the hourly rates sought are “in line
with those prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience, and
reputation.” Blum v. Stenson, 465 U.S. 886,
895 n.11 (1984). “Affidavits of the [movant's]
attorney and other attorneys regarding prevailing fees in the
community, and rate determinations in other cases,
particularly those setting a rate for the [movant's]
attorney, are satisfactory evidence of the prevailing market
rate.” United Steelworkers of Am. v. Phelps Dodge
Corp., 896 F.2d 403, 407 (9th Cir. 1990). The Court may
also rely on its own familiarity with the rates in the
community to analyze those sought in the pending case.
Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir.
2011). “Rate determinations in other cases in the
District of Nevada have found hourly rates as much as $450
for partners and $250 for an experienced associate to be the
prevailing market rate in this forum.” Crusher
Designs, LLC v. Atlas Copco Powercrusher GmbH, 2015 WL
6163443, at *2 (D. Nev. Oct. 20, 2015) (report and
recommendation adopted by Navarro, C.J.). “Courts
awarding attorneys' fees in intellectual property or
other complex cases routinely award fees based on rates
within that range.” Id.
Court finds the pending motion and supporting materials
insufficient to conduct the lodestar analysis at this time.
The attached declaration indicates that Mr. Vigil has 16
years of experience as an attorney, and has garnered various
honors. Docket No. 68 at 9-10. The declaration provides
information about Ballard Spahr's reputation as a whole,
and asserts that the attorneys' rates in this case are
“consistent” with “rates customarily
charged in the Las Vegas, Nevada metropolitan area.”
Id. This is insufficient. Plaintiff seeks to recover
fees charged by five different attorneys working on a single
motion to compel: Abran E. Vigil, Roger P. Thomasch, Peter
Haviland, Gregory P. Szewczyk, and J. Matt Thornton.
Id. at 10-11. The motion for attorneys' fees
itself only specifies Mr. Vigil's position, and vaguely
refers to the individuals who worked on the motion as
“attorneys at different year levels.” See
Id. at 4-5. Additionally, no declaration was filed
specifying the positions held by anyone other than Mr. Vigil,
let alone evidencing their skill, experience, and reputation
such that the Court can determine the reasonableness of the
rates sought. This shortcoming is especially problematic
given that it appears the rates sought are significantly
higher than the prevailing rates in this District. See,
e.g., Crusher Designs, 2015 WL 6163443, at *2.
the pending motion for attorneys' fees is hereby
DENIED without prejudice. Docket No. 68. Any
renewed motion shall be filed no later than February 10,
2017, and shall provide all information necessary under the
Rules and the caselaw for the Court to conduct a proper
lodestar analysis. If a renewed motion is filed that fails to
comply in full with the Rules and the caselaw, the Court will
deny Plaintiffs request for fees.