United States District Court, D. Nevada
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Application for
Fees (ECF No. 22), filed on February 21, 2017. Plaintiff
filed a Response (ECF No. 24) on March 4, 2017. Defendant did
not file a reply.
brought this case alleging that she suffered bodily injury
damages as the result of a slip and fall accident in
Defendant's store on August 13, 2014. Complaint
(ECF No. 1-2). On January 18, 2017, Defendant filed a Motion
to Strike Plaintiff's Initial Expert Disclosures arguing
that Plaintiff's initial treating physician expert
disclosure was untimely. See Motion to Strike (ECF
No. 14). Plaintiff responded to Defendant's Motion to
strike on January 31, 2017 and asserted that her disclosure
of treating physician witnesses was timely because they were
disclosed in a List of Witnesses provided to Defendant prior
to the expert disclosure deadline. See Response (ECF
No. 17). The Court conducted a hearing in this matter on
February 15, 2017 and issued a written order on February 17,
2017, wherein the Court denied Defendant's request to
strike Plaintiff's expert disclosure but ordered counsel
for Plaintiff to pay Defendant's reasonable
attorney's fees and costs incurred in prosecuting its
motion to strike. Order (ECF No. 20). Thereafter,
Defendant filed this Application requesting reimbursement for
fees in the amount of $1, 905.50.
Supreme Court has held that reasonable attorney fees must
“be calculated according to the prevailing market rates
in the relevant community, ” considering the fees
charged by “lawyers of reasonably comparable skill,
experience, and reputation.” Blum v. Stenson,
465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541 (1984). Courts
typically use a two-step process when determining fee awards.
Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th
Cir. 2000). First, the Court must calculate the lodestar
amount “by taking the number of hours reasonably
expended on the litigation and multiplying it by a reasonable
hourly rate.” Id. Furthermore, other factors
should be taken into consideration such as special skill,
experience of counsel, and the results obtained. Morales
v. City of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir.
1996). “The party seeking an award of fees should
submit evidence supporting the hours worked and rates claimed
. . . [w]here the documentation of hours is inadequate, the
district court may reduce the award accordingly.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
Second, the Court “may adjust the lodestar, [only on
rare and exceptional occasions], upward or downward using a
multiplier based on factors not subsumed in the initial
calculation of the lodestar.” Van Gerwen v.
Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir.
requests a total of $1, 905.50 in fees associated with
bringing its motion to strike. Specifically, Defendant
requests reimbursement of attorney's fees at an hourly
rate of $185.00 for attorney Michael Lowry. After reviewing
Defendant's application for fees and the declaration of
Michael Lowry, Esq., the Court finds that Defendant has
offered sufficient evidence that the hourly rate of $185 is
reasonable. Moreover, Plaintiff concedes that this rate is in
requests reimbursement for 10.3 hours of attorney work
associated with its motion to strike broken down as follows:
3.2 hours spent drafting the motion to strike, 4.6 hours
spent drafting the reply, 1.7 hours spent preparing for,
attending and reporting to Defendant concerning the hearing
on the motion to strike and 0.8 hours spent reviewing
documents and drafting related correspondence.
Application (ECF No. 22-2). Plaintiff argues that
while Defendant's Application for Fees is overall
well-taken, Defendant should not be awarded fees for drafting
the reply brief. Plaintiff asserts that Defendant's reply
brief presented an improper argument that was not raised in
its motion to strike or in Plaintiff's opposition.
Plaintiff's argument was formally made in a Motion to
Strike Defendant's Reply Brief (ECF No. 18), which the
Court denied. See Order (ECF No. 20). The Court
finds that Defendant is entitled to fees for time spent
drafting its reply brief. As the Court noted in its February
17, 2017 Order, the July 13, 2016 disclosures were brought
into play because Plaintiff asserted that those disclosures
were timely and satisfied the requirements of Rule 26(a).
See Order (ECF No. 20), pg. 6. As a result,
Defendant was allowed to argue that Plaintiff did not satisfy
those requirements in its reply brief. The Court therefore
finds that the time spent by Defendant's counsel
associated with Defendant's motion to strike was
reasonable. Thus, the Court will award Defendant reasonable
attorney's fees based on the reasonable hourly rate
discussed above in the amount of ...