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Branch Banking and Trust Co. v. Jones/Windmill, LLC

United States District Court, D. Nevada

February 7, 2017

BRANCH BANKING AND TRUST COMPANY, Plaintiffs,
v.
JONES/WINDMILL, LLC, et al., Defendants.

          ORDER

         Presently before the court is plaintiff Branch Banking and Trust Company's motion for attorneys' fees and nontaxable costs. (ECF No. 171). Defendants filed a response (ECF No. 172), and plaintiff filed a reply (ECF No. 176).

         I. Introduction

         On June 8, 2012, plaintiff filed an amended complaint against defendants involving rights under a property loan, asserting three claims for relief: (1) deficiency; (2) breach of guarantee; and (3) breach of the covenant of good faith and fair dealing. (ECF No. 6). On August 5, 2014, this court granted plaintiff's motion for summary judgment on all issues but the fair market value of the underlying property at the time of the trustee's sale. (ECF No. 97). This court also denied plaintiff's motion for hearing and defendants' motions for summary judgment and certification of questions of law to the Nevada Supreme Court. (ECF Nos. 69, 70, 93, 97).

         On June 16, 2016, the court adopted Magistrate Judge Foley's report and recommendation, finding that the fair market value of the underlying property was $438, 648.25 at the time of the relevant trustee's sale. (ECF Nos. 166, 167). On July 7, 2016, judgment was entered against defendants, jointly and severally, in the amount of $908, 990.07. (ECF No. 169).

         On July 21, 2016, plaintiff filed the instant motion for attorneys' fees and nontaxable costs. (ECF No. 171). Plaintiff argues: (1) the terms of the promissory note and guarantee require defendants' payment of attorneys' fees; (2) the four factors of Brunzell v. Golden Gate Nat. Bank, 455 P.2d 33 (Nev. 1969), weigh in favor of the requested award; (3) Local Rule 54-14 provides for attorneys' fees; and (4) Federal Rule of Civil Procedure 54(d) and Local Rule 54-1 entitle plaintiff to costs, as itemized in plaintiff's exhibit.[1] See (ECF Nos. 171, 171-1).

         In response, defendants first argue that plaintiff has not followed Local Rule 54-14 by failing to address the twelve factors enumerated in that rule. See LR 54-14(b)(3); see also (ECF No. 172). Next, defendants state that Bruznell does not support plaintiff's motion because: (1) staffing the case with ten individuals is unreasonable; (2) the fees are excessive in light of Mr. Nork's billed hours; and (3) plaintiff's submitted exhibits illustrate work billed in this case that is excessive, vaguely recorded, or irrelevant to this action. (ECF No. 172). Finally, defendants assert that plaintiff's request for costs is unfounded. (Id.).

         Plaintiff replied, first resisting defendants' characterization of its Local Rule 54-14 summaries. (ECF No. 176). Next, plaintiff argues that the fees are reasonable because plaintiff's counsel utilized cost-controlled staffing for this action, and work sometimes had to be shifted between firm employees. (Id.). Further, pretrial motions allegedly required the hours logged by counsel, the entries involving the Federal Deposit Insurance Corporation were necessary in anticipation of trial, the billing table sufficiently articulates the necessary work done in this case, and defendants' objection to the payment of costs is not supported by legal authority. (Id.).

         II. Legal Standard

         a. Attorneys' fees

         Federal Rule of Civil Procedure 54(d)(2) allows a party to file a motion for attorneys' fees if it: (1) is filed within 14 days after judgment is entered; (2) identifies the legal basis for the award; and (3) indicates the amount requested or an estimate thereof. Moreover, “[a] federal court sitting in diversity applies the law of the forum state regarding an award of attorneys' fees.” Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000). A Nevada trial court “may not award attorney fees absent authority under a statute, rule, or contract.” Albios v. Horizon Communities, Inc., 132 P.3d 1022, 1028 (Nev. 2006).

         In Brunzell, the Nevada Supreme Court articulated four factors for a court to apply when assessing requests for attorneys' fees:

(1) the qualities of the advocate: his ability, his training, education, experience, professional standing and skill; (2) the character of the work to be done: its difficulty, its intricacy, its importance, time and skill required, the responsibility imposed and the prominence and character of the parties where they affect the importance of the litigation; (3) the work actually performed by the lawyer: the skill, time and attention given to the work; (4) the result: whether the attorney was successful and what benefits were derived.

455 P.2d at 33. The trial court may exercise its discretion when determining the value of legal services in a case. Id. at 33-34.

         Additionally, a trial court applying Nevada law must utilize Bruzell to assess the merits of a request for attorneys' fees, yet that court is not required to make findings on each factor. Logan v. Abe, 350 P.3d 1139, 1143 (Nev. 2015). “Instead, the district court need only demonstrate that it considered the required factors, and the award must be supported by substantial evidence.” Id. (citing Uniroyal Goodrich Tire Co. v. Mercer, 890 P.2d 785, 789 (Nev. 1995), sup ...


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