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. 98. Defendants 27th & Southern
Holding, 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., L.L.C. (collectively
“defendants”) filed an opposition (ECF No. 103)
to which Branch Banking replied (ECF No. 105).
Facts and Procedural Background
a breach of contract action arising from a promissory note
and personal guarantee. On September 20, 2007, defendant
27th & Southern Holding, LLC
(“27th & Southern”) 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 $3, 056, 000.00. See ECF No. 49,
Ex. 1. The note was secured by a deed of trust encumbering
certain real property in Maricopa County, Arizona. ECF No.
49, Ex. 2; ECF No. 50, Ex. 3. The promissory note was also
subject to a guarantee in which defendants guaranteed the
payment of all indebtedness under the loan. Id.
August 14, 2009, the Federal Deposit Insurance Corporation
(“FDIC”) was named as receiver for Colonial Bank.
ECF No. 49, Ex. 4; ECF No. 50, Ex. 7. On September 28, 2011,
the FDIC assigned all rights, title, and interest in the
promissory note and guarantee to Branch Banking. Id.
27th & Southern 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. 49, Ex. 5. On April 23, 2012, a
judicial foreclosure of the property was entered and the
property was sold at public auction for $1, 080, 000.00 in
partial satisfaction of the loan. ECF No. 49, Ex. 7 & 8;
ECF No. 50, Ex. 8 & 9.
October 10, 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 24, 2015, the court
granted Branch Banking's motion for summary judgment and
denied defendants' motion for summary judgment. ECF No.
74. 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 court held a heading on the
fair market value of the property. ECF No. 93. After the
hearing, the court found that the fair market value of the
property was $1, 000, 000.00. ECF No. 96. Subsequently, on
July 11, 2016, the court entered an order awarding Branch
Banking a deficiency judgment against defendants in the
amount of $2, 040, 258.71. ECF No. 96; ECF No. 97.
Thereafter, Branch Banking filed the present motion for
attorney's fees. ECF No. 98.
motion, Branch Banking seeks an award of attorney's fees
in the amount of $160, 971.77 and non-taxable costs in the
amount of $9, 842.47. ECF No. 98. 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. 98.
The court agrees. Here, the parties entered into a promissory
note which specifically provides for an award of fees.
See ECF No. 50, Exhibit 2 at 3 (“Borrower
promised to pay all such expenses and reasonable
attorneys' fees[.]”). 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. 50, Exhibit 4
at 4-5 (“Guarantor shall also pay Lender's
reasonable attorneys' fees and all costs and other
expenses which Lender expends or incurs in collecting . . .
any such indebtedness[.]”). 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.
97. 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
motions filed by the parties. 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
$2, 000, 000.00. 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. 98, 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 ...