United States District Court, D. Nevada
ORDER (DOCKET NO. 34)
J. KOPPE United States Magistrate Judge.
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.
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.
ENTITLEMENT TO FEES
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.
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. 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.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.
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.
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%.
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.
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.
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