United States District Court, D. Nevada
before the court is defendant State of Nevada ex
rel. Eighth Judicial District Court's
(“EJDC”) motion for fees and costs. (ECF No. 62).
Plaintiff Thomas Knickmeyer filed a response (ECF No. 64),
and defendant filed a reply (ECF No. 65).
February 13, 2014, plaintiff filed a complaint in this court,
alleging violations of Title VII of the Civil Rights Act of
1964 and Nevada law, negligent supervision, wrongful
termination, and retaliation. (ECF No. 1). This court later
dismissed the negligent supervision claim with prejudice and
dismissed the wrongful termination and retaliation claims
without prejudice. (ECF No. 21). Because plaintiff failed to
specify which Nevada laws had allegedly been violated, any
applicable “Nevada law” portion of the first
claim was also dismissed without prejudice. (Id.).
March 24, 2016, this court granted defendant's motion for
summary judgment. (ECF No. 55). In the order granting that
motion, this court stated, inter alia, that
“defendant has demonstrated that Knickmeyer has failed
to present evidence sufficient to show that he suffered from
pervasively hostile discriminatory conduct . . . [i]n fact,
the evidence suggests that Mr. Knickmeyer may have instead
himself contributed to a hostile environment for his
coworkers.” (Id. at 10). Additionally,
plaintiff did not offer any substantive opposition to bolster
his racial discrimination claim in the face of the
defendant's motion for summary judgment. (Id.).
Finally, this court held that plaintiff had failed to
establish a necessary causal link between the EJDC's
notice of termination of employment and plaintiff's
Nevada Equal Rights Commission (“NERC”) filing
with respect to alleged charges of racial discrimination.
(Id. at 11-13).
judgment in this case was entered on April 12, 2016. (ECF No.
57). Defendant filed the present, timely motion for attorney
fees on April 26, 2016. (ECF No. 62); see also LR
district court may award attorneys' fees and costs in
favor of a prevailing defendant only in “exceptional
circumstances” involving alleged claims under Title VII
of the Civil Rights Act of 1964 that are “frivolous,
unreasonable or without foundation.” See Harris v.
Maricopa Cnty. Superior Court, 631 F.3d 963, 968 (9th
Cir. 2011) (quoting Barry v. Fowler, 902 F.2d 770,
773 (9th Cir. 1990)); see also 42 U.S.C. §
2000e-5(k) (“In any action or proceeding under this
subchapter the court, in its discretion, may allow the
prevailing party, other than the Commission or the United
States, a reasonable attorney's fee (including expert
fees) as part of the costs . . . .”). A defendant may
only recover fees that are “attributable exclusively to
plaintiff's frivolous claims.” Harris, 631
F.3d at 968 (quoting Tutor-Saliba Corp. v. City of
Hailey, 452 F.3d 1055, 1059 (9th Cir. 2006).
claimant shoulders the burden of showing that attorney's
fees are warranted. Id. (citing Trs. of Dirs.
Guild of Am.-Producer Pension Benefits Plans v. Tise,
234 F.3d 415, 427 (9th Cir. 2000)). In a case where both
frivolous and non-frivolous claims have been asserted, the
claimant must indicate the portion of the fees and costs
generated by resolving the frivolous claims. Id. at
972. When determining whether a claim was frivolous, “a
district court must assess the claim at the time the
complaint was filed, and must avoid post hoc
reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or
without foundation.” Tutor-Saliba Corp., 452
F.3d at 1060 (internal quotation marks omitted) (citations
attorneys' fees are based on the “lodestar”
calculation set forth in Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). The court must first determine a
reasonable fee by multiplying “the number of hours
reasonably expended on the litigation” by “a
reasonable hourly rate.” Id. “The
district court . . . should exclude from this initial fee
calculation hours that were ‘not reasonably
expended.'” Id. at 433-34. Thus, the
“court has discretion to ‘trim fat' from, or
otherwise reduce, the number of hours claimed to have been
spent on the case.” Edwards v. Nat'l
Bus. Factors, Inc., 897 F.Supp. 458, 460-61 (D. Nev.
1995). After calculating the lodestar amount, the court can
further adjust the lodestar calculation by considering the
(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 the results
obtained, (9) the experience, reputation, and ability of the
attorneys, (10) the ‘undesirability' of the case,
(11) the nature and length of the professional relationship
with the client, and (12) awards in similar cases.
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70
(9th Cir. 1975), abrogated on other grounds by City of
Burlington v. Dague, 505 U.S. 557 (1992); see also
Stetson v. Grissom, 821 F.3d 1157, 1166-67 (9th Cir.
Rule 54-14(b)(3) specifically identifies the information that
a party must submit to a trial court in this district for its
consideration of a motion for attorneys' fees. These
thirteen items are as follows:
(A) The results obtained and the amount involved; (B) The
time and labor required; (C) The novelty and difficulty of
the questions involved; (D) The skill requisite to perform
the legal service properly; (E) The preclusion of other
employment by the attorney due to acceptance of the case; (F)
The customary fee; (G) Whether the fee is fixed or
contingent; (H) The time limitations imposed by the client or
the circumstances; (I) The experience, reputation, and
ability of the attorney(s); (J) The undesirability of the
case, if any; (K) The nature and ...