United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE
the court is plaintiff Branch Banking and Trust Company's
(“Branch Banking”) motion for attorney's
fees. ECF No. 112. Defendants Pebble Creek Plaza Pad, LLC;
Yoel Iny, individually, and as trustee of the Y&T Iny
Family Trust dated June 8, 1994; Noam Schwartz, individually,
and as trustee of the Noam Schwartz Trust dated August 19,
1999; and D.M.S.I., LLC (collectively
“defendants”) filed an opposition (ECF No. 118)
to which Branch Banking replied (ECF No. 119).
Facts and Procedural Background
a breach of contract action arising from a promissory note
and personal guarantee. On September 20, 2007, defendant
Pebble Creek Plaza Pad, LLC (“Pebble Creek”)
executed a promissory note secured by deed of trust to
non-party Colonial Bank, N.A. (“Colonial Bank”)
for a loan in the amount of $2, 897, 000.00. See ECF
No. 58, Ex. 1. The note was secured by a deed of trust
encumbering certain real property in Maricopa County,
Arizona. ECF No. 58, Ex. 2; ECF No. 59, Ex. 3. The promissory
note was also subject to a guarantee in which defendants
guaranteed the payment of all indebtedness under the loan.
August 14, 2009, the Federal Deposit Insurance Corporation
(“FDIC”) was named as receiver for Colonial Bank.
ECF No. 58, Ex. 4. On September 28, 2011, the FDIC assigned
all rights, title, and interest in the promissory note and
guarantee to Branch Banking. Id.
Pebble Creek failed to pay the outstanding principal balance
of the loan by the required due date. On December 16, 2011,
Branch Banking commenced a judicial foreclosure action in the
Superior Court of the County of Maricopa, Arizona. ECF No.
58, Ex. 5. On April 23, 2012, a judicial foreclosure of the
property was entered and the property was sold at public
auction for $1, 120, 000.00 in partial satisfaction of the
loan. ECF No. 58, Ex. 7 & 8; ECF No. 59, Ex. 8 & 9.
October 3, 2012, after the property was sold at auction,
Branch Banking filed the underlying complaint for deficiency,
breach of guarantee, and breach of the covenant of good faith
and fair dealing. ECF No. 1. On June 23, 2015, the court
granted Branch Banking's motion for summary judgment and
denied defendants' motion for summary judgment. ECF No.
91. The court then directed the parties to file briefs
pursuant to NRS § 40.457(1) for a deficiency hearing.
Id. On May 16, 2016, the parties stipulated that the
fair market value of the property on June 21, 2012, was $1,
390, 000.00. ECF No. 109. Subsequently, on July 11, 2016, the
court entered an order awarding Branch Banking a deficiency
judgment against defendants in the amount of $741, 134.78.
ECF No. 110; ECF No. 111. Thereafter, Branch Banking filed
the present motion for attorney's fees. ECF No. 112.
motion, Branch Banking seeks an award of attorney's fees
in the amount of $160, 489.32 and non-taxable costs in the
amount of $9, 896.95. ECF No. 112. The court shall address
both requests below.
diversity action between Branch Banking, a North Carolina
banking corporation, and defendants. Because this action is
founded on diversity jurisdiction, Nevada state law applies
to Branch Banking's request for fees. Kona
Enterprises, Inc. v. Estate of Bishop, 299 F.3d 877, 883
(9th Cir. 2000); see also, In re: USA Commer. Mortg.
Co., 802 F.Supp.2d 1147, 1178 (D. Nev. 2011) (holding
that Nevada law applies to a determination of whether to
award fees on claims based on Nevada law). Under Nevada law,
a court may award attorney's fees when such fees are
authorized pursuant to a state statute, rule, or a contract
between the parties. See Albios v. Horizon Communities,
Inc., 132 P.3d 1022, 1027-28 (Nev. 2006); Horgan v.
Felton, 170 P.3d 982, 986 (Nev. 2007).
action Branch Banking contends that it is entitled to seek an
award of fees because both the promissory note and personal
guarantee authorizes such an award. See ECF No. 112.
The court agrees. Here, the parties entered into a promissory
note which specifically provides for an award of fees.
See ECF No. 59, Exhibit 2 at 3 (“Should the
indebtedness represented by the Note . . . be collected at
law, . . . Borrower agrees to pay, in addition to the
principal and interest due hereon, all reasonable
attorneys' fees, plus all other costs and expenses of
collection and enforcement[.]”). Similarly, the
guarantee signed by the individual defendants also provides
for an award of attorney's fees for any action to collect
on the underlying indebtedness. See ECF No. 59,
Exhibit 4 at 8 (“Guarantor shall also pay Bank's
reasonable attorney's fees and all costs and other
expenses which Bank expends or incurs in collecting . . . any
Indebtedness and/or Obligations or in enforcing the Guaranty
against Guarantor[.]”). Therefore, the court finds that
Branch Banking is entitled to seek an award of attorney's
fees in this action.
party has established its entitlement to an award of
attorney's fees the court must then determine the
reasonableness of such an award. In re: USA Commer.
Mortg. Co., 802 F.Supp.2d at 1178. See ECF No.
112. In Nevada, when determining whether to award
attorney's fees, the court analyses four factors: (1) the
reputation and skill of counsel; (2) the nature and character
of the litigation; (3) the nature and extent of the work
performed by counsel; and (4) the results obtained in the
litigation. See Brunzell v. Golden Gate Nat. Bank,
455 P.2d 31, 33 (Nev. 1969). The court has reviewed Branch
Banking's request for attorney's fees and finds that
the requested fees are reasonable. First, Branch
Banking's counsel, Holland & Hart LLP, is a national
AV-rated law firm with extensive experience in commercial
litigation which charges rates commensurate with the fees
charged in this district. Second, this litigation presented
several novel defenses in response to new Nevada statutes
that had recently gone into effect when the action was filed.
Thus, the time spent on this action was reasonable for the
particular novel defenses raised by defendants and for the
numerous unsuccessful motions filed by the defendants. Third,
counsels' skill and experience was integral to Branch
Banking's success in this action as counsel presented the
case to the court in a manner that helpfully explained the
complex matters of law presented to the court for the first
time. Further, the skill of counsel is highlighted by Branch
Banking's success in this action which resulted in a
deficiency judgment of over $741, 134.78. Finally, the court
notes that the present motion for attorney's fees
complies with LR 54-16 and contains a “reasonable
itemization and description of the work performed.”
See ECF No. 112, Ex. 1.
opposition, defendants contend that the request for
attorney's fees should be denied, or at least reduced,
because of improper billing entries. See, e.g., Huhmann
v. FedEx Corp., 2015 WL 6127198, at *8 (S.D. Cal. Oct.
16, 2015) (30% reduction for improper billing entries);
eMove, Inc. v. SMD Software, Inc., 2012 WL 4856276,
at *7 (D. Ariz. Oct. 11, 2012) (20% reduction for improper
billing entries); Gunderson v. Mauna Kea Prop.,
Inc., 2011 WL 9754085, at *10 (D. Haw. May 9, 2011) (20%
reduction for improper billing entries). In particular,
defendants argue that counsels' proffered ...