United States District Court, D. Nevada
FINDINGS AND RECOMMENDATION
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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),
Application for Attorney's Fees
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.
§ 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).
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 ...