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Eruchalu v. U.S. Bank, N.A.

United States District Court, D. Nevada

March 29, 2017

GODSON ERUCHALU, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, et.al, Defendants.

          ORDER ADOPTING REPORT & RECOMMENDATION OF MAGISTRATE JUDGE CAM FERENBACH, DENYING PLAINTIFF'S MOTION TO STRIKE, DENYING PLAINTIFF'S MOTION TO VACATE, AND GRANTING DEFENDANTS' COUNTERMOTION FOR SANCTIONS

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court for consideration is the Report and Recommendation of Magistrate Judge Cam Ferenbach (ECF No. 323) granting Defendant's Amended Motion for Attorney Fees (ECF No. 303), Defendant's Countermotions for Sanctions (ECF Nos. 299, 312), Plaintiff's Motion to Strike (ECF No. 309), and Plaintiff's Motion to Vacate Judgment or Order Due to Judicial Prejudice, Judicial Misconduct, Procedural Errors and Lack of Jurisdiction (ECF No. 294).

         II. BACKGROUND

         On April 11, 2016, Plaintiff filed his Motion to Vacate Judgment or Order Due to Judicial Prejudice, Judicial Misconduct, Procedural Errors and Lack of Jurisdiction. ECF No. 294. On May 13, 2016, Defendant First Option filed its Amended Motion for Attorney Fees. ECF No. 303. On May 24, 2016, Plaintiff filed his Motion to Strike Defendant's Response to his opposition to Judge Ferenbach's first Report and Recommendation (ECF No. 296) that dismissed Defendant's Motion for Attorney Fees without prejudice. ECF No. 309. On June 20, 2016, Plaintiff filed his Motion to Strike First Option's Amended Motion for Attorney Fees.[1] ECF No. 316. On July 5, 2016, First Option filed its Response to Plaintiff's Motion to Strike. ECF No. 321. On July 28, 2016, Judge Ferenbach issued a Report and Recommendation that First Option's Amended Motion for Attorney Fees (ECF No. 303) should be granted, that First Option should be awarded $189, 908.65, and that Plaintiff's Motion to Extend Time (ECF No. 308) be denied as moot. ECF No. 323. On August 15, 2016, Plaintiff filed his Objection to Judge Ferenbach's Report and Recommendation. ECF No. 324. On September 1, 2016, First Option filed its Response to Plaintiff's Objection. ECF No. 325.

         III. REPORT & RECOMMENDATION (ECF No. 323)

         A. Legal Standard

         A district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). A party may file specific written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Local Rule IB 3-2(b). Where a party fails to object, however, a district court is not required to conduct “any review, ” de novo or otherwise, of the report and recommendations of a magistrate judge. Thomas v. Arn, 474 U.S. 140, 149 (1985).

         “There is no general right to recover attorney's fees under the Bankruptcy Code.” Renfrow v. Draper, 232 F.3d 688, 693 (9th Cir. 2000). “[A] prevailing party in a bankruptcy proceeding may be entitled to an award of attorney fees in accordance with applicable state law if state law governs the substantive issues in the proceedings.” In re Baroff, 105 F.3d, 439, 441 (9th Cir. 1997).

         However, “[w]hen a statute provides for such fees, it is termed a ‘fee-shifting' statute. Under a fee-shifting statute, the court ‘must calculate awards for attorneys' fees using the ‘lodestar' method[.]'” Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003) (citation omitted). This “is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). “After making that computation, the district court then assesses whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr factors that are not already subsumed in the initial lodestar calculation.” Id. at 363-64. These factors include:

(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, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)).

         “When the district court makes its award, it must explain how it came up with the amount.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). “The explanation need not be elaborate, but it must be comprehensible.” Id. “When the difference between the lawyer' request and the court's award is relatively small, a somewhat cursory explanation will suffice.” Id. “But where the disparity is larger, a more specific articulation of the court's reasoning is expected.” Id. “Nevertheless, the district court can impose a small reduction, no greater than 10 percent - a ‘haircut' - based on its exercise of discretion without a more specific explanation.” Id. at 1112.

         B. ...


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