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Jablonski Enterprises, Ltd. v. Nye County

United States District Court, D. Nevada

August 30, 2017

JABLONSKI ENTERPRISES, LTD., Plaintiff,
v.
NYE COUNTY, et al., Defendants.

          FINDINGS AND RECOMMENDATION

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants Nye County, Sheree Stringer, Debbie Orrick, Brian Kunzi, and Marla Zlotek's Motion for Attorney's Fees (ECF No. 75), filed on February 21, 2017. Plaintiff filed its omnibus Response (ECF No. 88) on March 10, 2017. Defendants filed their Reply (ECF No. 91) on March 17, 2017. On July 27, 2017, the Court instructed the parties to file supplements to their motions attaching any state court award of attorney's fees and costs. See ECF No. 96. Plaintiff filed its Supplement (ECF No. 98) on July 28, 2017. Defendants filed their Supplement (ECF No. 101) on August 8, 2017.

         BACKGROUND

         This case arises from the disputed ownership of a parcel of real property in Nye County, Nevada, known as parcel number APN-106-06. Plaintiff alleges he was the titled legal owner of the property and that Defendants conspired to transfer the title of the property without consulting Plaintiff. See ECF No. 1. Plaintiff filed his Complaint (ECF No. 1) on December 4, 2015, and subsequently, filed an identical Complaint in the Fifth Judicial District Court, Nye County, Nevada, alleging the following: (1) violation of civil rights; (2) forgery of conveyance; (3) uttering a forged instrument; (4) conversion; (5) civil conspiracy; (6) civil racketeering; and (7) respondeat superior. Defendants filed special Motions to Dismiss pursuant to Nevada's anti-Strategic Lawsuits Against Public Participation (“SLAPP”) statute, NRS § 41.650, et seq. ECF No. 51.

         In May 2016, the Fifth Judicial District Court dismissed Plaintiff's claims with prejudice. On May 4, 2016, Plaintiff voluntarily dismissed Defendants Nye County, Stringer, Orrick, Kunzi, and Zlotek from the state court case. On September 29, 2016, Defendants Brust, Lithium Corporation, Summa, LLC, Henry Tonking, Greg Ekins, and GIS Land Services filed Supplements to their motions to dismiss attaching the state court order dismissing Plaintiff's claims with prejudice, and requested that the Court take judicial notice of the fact that identical claims were dismissed in another court. See ECF Nos. 60, 61, 62. On February 7, 2017, the Court granted Defendants' special Motion to Dismiss, entered judgment, and dismissed Plaintiff's claims with prejudice as being barred by the doctrine of res judicata. ECF Nos. 67, 68.

         Defendants argue that NRS 41.670(1) provides that the Court shall award reasonable attorney's fees and costs upon the grant of a special motion to dismiss under NRS § 41.660. See Motion for Attorney's Fees (ECF No. 75), pg. 8. Plaintiff argues that Defendants were dismissed from the state court proceedings and Plaintiff's claims in this court were dismissed based on res judicata and, therefore, Defendants are not entitled to an award of attorney's fees under NRS § 41.670. Response (ECF No. 88), pg. 3.

         DISCUSSION

         A. Application for Attorney's Fees

         In an action involving state law claims, district courts apply the law of the forum state to determine whether a party is entitled to attorneys' fees, unless it conflicts with a valid federal statute or procedural rule. Jiangmen Kinwai Furniture Decoration Co. Ltd v. Int'l Mkt. Centers, Inc., 2016 WL 6637699, at *2 (D. Nev. Nov. 8, 2016) (citing MRO Commc'ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1282 (9th Cir. 1999)). Under Nevada law, attorney's fees are available only when “authorized by rule, statute, or contract.” Flamingo Realty, Inc. v. Midwest Dev., Inc., 879 P.2d 69, 73(Nev. 1994); Nev. Rev. Stat. § 18.010.

         N.R.S. § 41.670 states as follows:

If the court grants a special motion to dismiss filed pursuant to NRS 41.660:
(a) The court shall award reasonable costs and attorney's fees to the person against whom the action was brought. . .

Nev. Rev. Stat. Ann. § 41.670(1)(a).

         In Rebel Communications, LLC v. Virgin Valley Water Dist., No. 2:10-CV-0513-LRH-GWF, 2012 WL 5839048, (D. Nev. Nov. 16, 2012), the Court granted the defendant's renewed special motion to dismiss and found that the defendants were entitled to reasonable attorney's fees under Nevada's Anti-SLAPP statute. The Court, however, found that in the circumstances of the case, the scope of work for an award of attorneys' fees should be specifically limited to work respecting the renewed special motion to dismiss and related discovery. Id. at *1. The Court found that the ...


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