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Branch Banking and Trust Co. v. Estate of Rad

United States District Court, D. Nevada

June 16, 2017

BRANCH BANKING AND TRUST COMPANY, Plaintiff,
v.
THE ESTATE OF SAIID FOROUZAN RAD and AKBAR RASTGOO DAMAVANDI; and R. PHILIP NOURAFCHAN, Defendants.

          ORDER GRANTING MOTION FOR ATTORNEY'S FEES AND COSTS (ECF No. 54)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Plaintiff Branch Banking and Trust Company (“BB&T”) filed suit against defendants Saiid Forouzan Rad[1] and R. Philip Nourafchan for breach of a guaranty. I granted BB&T's motion for summary judgment, and judgment was entered against the defendants in the amount of $44, 517, 158.59. ECF Nos. 50, 52. BB&T now moves for attorney's fees in the amount of $62, 412.82 and nontaxable costs in the amount of $233.50 based on the guaranty's contractual language which requires the payment of reasonable attorney's fees and costs incurred in collecting the debt. The defendants oppose, arguing that I should not award attorney's fees and nontaxable costs at this time because the defendants may prevail on appeal. As to the amount of the award, the defendants argue I should consider that they attempted to resolve this matter expeditiously and that their defenses were asserted in good faith.

         “If state substantive law governs a case, then an award of attorney fees is also governed by state law.” Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 218 (9th Cir. 2013). Under Nevada law, “attorney's fees are only available when authorized by a rule, statute, or contract.” Flamingo Realty, Inc. v. Midwest Dev., Inc., 879 P.2d 69, 73 (Nev. 1994) (quotation omitted).

         The reasonableness of an attorney's fee award is also determined by state law when a federal court is sitting in diversity. Mangold v. Cal. Pub. Util. Comm'n, 67 F.3d 1470, 1478 (9th Cir. 1995). In Nevada, “the method upon which a reasonable fee is determined is subject to the discretion of the court, which is tempered only by reason and fairness.” Shuette v. Beazer Homes Holdings Corp., 124 P.3d 530, 548-49 (Nev. 2005) (en banc) (quotation omitted). One permissible method of calculation is the lodestar approach, which involves multiplying “the number of hours reasonably spent on the case by a reasonable hourly rate.” See Id. at 549 & n.98 (quotation omitted). In most cases, the lodestar figure is a presumptively reasonable fee award. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008).

         In determining the reasonableness of a fee request, I am guided by the factors listed in Brunzell v. Golden Gate National Bank:

(1) the qualities of the advocate: his ability, his training, education, experience, professional standing and skill; (2) the character of the work to be done: its difficulty, its intricacy, its importance, time and skill required, the responsibility imposed and the prominence and character of the parties where they affect the importance of the litigation; (3) the work actually performed by the lawyer: the skill, time and attention given to the work; (4) the result: whether the attorney was successful and what benefits were derived.

455 P.2d 31, 33 (Nev. 1969); see also Haley v. Dist. Ct., 273 P.3d 855, 860 (Nev. 2012) (“[I]n determining the amount of fees to award, the court is not limited to one specific approach; its analysis may begin with any method rationally designed to calculate a reasonable amount, so long as the requested amount is reviewed in light of the factors set forth in Brunzell.” (quotation omitted)).

         I also am guided by the factors set forth in Local Rule 54-14(b). See Schneider v. Elko Cty. Sheriff's Dep't, 17 F.Supp.2d 1162, 1166 (D. Nev. 1998). That rule provides that the motion must include the following:

(1) A reasonable itemization and description of the work performed;
(2) An itemization of all costs sought to be charged as part of the fee award and not otherwise taxable pursuant to LR 54-1 through 54-13;
(3) A brief summary of:
(A) The results obtained and the amount involved;
(B) The time and labor required;
(C) The novelty and difficulty of the questions ...

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