Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kiessling v. Rader

United States District Court, D. Nevada

March 24, 2017

JAMES KIESSLING, Plaintiffs,
v.
DET. RADER P#6099, et al., Defendants.

          ORDER (DOCKET NO. 34)

          NANCY J. KOPPE United States Magistrate Judge.

         On December 27, 2017, Plaintiff sought attorneys' fees in conjunction with his motion to compel. Docket No. 26 at 12-13. That motion to compel involved three disputes. On February 17, 2017, the Court granted the motion to compel with respect to two disputes and found that attorneys' fees should be awarded. Docket No .33. Concurrently herewith, the Court is issuing an order granting in part the remaining aspect of the motion to compel, but declining to award attorneys' fees with respect to that dispute.

         Pending before the Court is Plaintiffs motion to calculate attorneys' fees. Docket No. 34. Defendants filed a response in opposition. Docket No. 35. The Court finds the motion properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the Court ORDERS Defendants and their counsel to pay Plaintiff attorneys' fees in the amount of $3, 761 within 30 days of the issuance of this order.

         I. ENTITLEMENT TO FEES

         The Court has already concluded that Plaintiff is entitled to recover reasonable attorneys' fees in at least some form with respect to the disputes concerning discovery of internal affairs documents and other instances of excessive force. Docket No. 33 at 5-6. Notwithstanding that order, Defendants challenge Plaintiffs entitlement to fees. The Court construes this aspect of the briefing as amotion for reconsideration. Motions for reconsideration are disfavored. Local Rule 59-1(a). Such motions are proper when: (1) there is newly discovered evidence that was not available when the original motion or response was filed; (2) the court committed clear error or the initial decision was manifestly unjust; or (3) there is an intervening change in controlling law. Id. No such circumstances exist here.

         Defendants argue that their positions in opposing the motion to compel were substantially justified. Docket No. 35 at 3-4. Defendants already raised this argument and it was rejected. Docket No. 26 at 12-13; Docket No. 33 at 5-6.[1] Nonetheless, Defendants contend that their positions were substantially justified because they had a good faith belief in those positions. Docket No. 35 at 3-4.[2]The fact that a party might consider its own position reasonable does not establish substantial justification. See, e.g., Woodv. GEICO Casualty Co., 2016 WL 6069928, at *2 (D. Nev. Oct. 14, 2016) (quoting Flonnes v. Prop. & Cas. Co. of Hartford, 2012 WL 3730533, at *2 (D. Nev. Sept. 25, 2013)). Defendants' attestation does not alter the Court's earlier conclusion that they had not shown substantial justification and that sanctions are appropriate.

         In short, the Court finds no reason to reconsider its position that an award of attorneys' fees is proper with respect to the disputes concerning discovery of internal affairs documents and other instances of excessive force.

         II. APPORTIONMENT

         When a motion to compel is not granted in full, the Court may apportion the expenses that are recoverable. Fed.R.Civ.P. 37(a)(5)(C). The motion to compel in this case raised three disputes. For the disputes concerning discovery of internal affairs documents and other instances of excessive force, Plaintiff prevailed and Defendants' positions were not substantially justified. For the personnel file dispute, the Court granted the motion to compel only in part and found that attorneys' fees were not appropriate as to that dispute. Defendant therefore argues that any award of attorneys' fees should be apportioned to deduct time expended by counsel with respect to this last dispute. Docket No. 35 at 7. Given these circumstances, the Court agrees that the fee award should be apportioned and will apportion the time expended on the motion to compel and reply by reducing them by 33%.[3]

         III. LODESTAR

         Reasonable attorneys' fees are generally calculated using the traditional "lodestar" method. See, e.g., Camacho v. Bridgeport Fin 'I, 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. County of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988).[4]

         A. REASONABLE HOURS

         The touchstone in determining the hours for which attorneys' fees should be calculated is whether the expenditure of time was reasonable. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 588 (D. Nev. 2013). The Court "has a great deal of discretion in determining the reasonableness of the fee and, as a general rule, [an appellate court] will defer to its determination ... regarding the reasonableness of the hours claimed by the [movant]." Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992)). The reasonableness of hours expended depends on the specific circumstances of each case. Camacho, 523 F.3d at 978. In reviewing the hours claimed, the Court may exclude hours related to overstaffing, duplication, and excessiveness, or that are otherwise unnecessary. See, e.g., Hensley, 461 U.S. at 433.

         With respect to attorneys' fees arising out of a motion to compel discovery, recoverable fees include those "incurred in making the motion [to compel]." Fed.R.Civ.P. 37(a)(5)(A). In addition, the movant may also recover "fees on fees" for the time expended in filing a motion for attorneys' fees. See, e.g., Aevoe Corp. v. AE Tech Co., 2013 WL 5324787, at *7 (D. Nev. Sept. 20, 2013) (collecting cases). In making the determination of the reasonableness of hours expended on such motions, "the Court considers factors such as the complexity of the issues raised, the need to review the record ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.