United States District Court, D. Nevada
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
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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).
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. 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.
REPORT & RECOMMENDATION (ECF No. 323)
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).
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).
“[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)).
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.