United States District Court, D. Nevada
ORDER PLAINTIFF'S MOTION FOR ATTORNEY'S
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs Louis Vignola and Tamara Harless
(“Plaintiffs”)' Motion for Attorney's
Fees. (ECF No. 218). For the reasons stated below, the Court
GRANTS Plaintiff's Motion.
Court adopts the findings of fact and procedural history as
set forth in its Findings of Fact, Conclusions of Law, and
Verdict, entered April 27, 2015. (ECF No. 215). On May 27,
2015, the Clerk of Court entered a Judgment in favor of
Plaintiffs on pursuant to the Court's prior Order, in the
amount of $9, 070, 846.01. (ECF Nos. 15, 16). Plaintiffs
filed a Bill of Costs on May 28, 2015. (ECF No. 217). On June
9, 2015, Plaintiffs filed the instant Motion for
Attorney's Fees, in the amount of $3, 628, 338.40
pursuant to Federal Rule of Procedure 56(d)(2), NRS 17.115,
and NRS 18.010. (ECF No. 218). Defendant Charles Alfred
Gilman Jr. (“Defendant”) filed an Objection to
the Bill of Costs on June 15, 2015. (ECF No. 219). On June
26, 2015, Defendant filed a Response to the Motion for
Attorney's Fees. (ECF No. 220). Plaintiffs filed their
Reply on July 6, 2015. (ECF No. 221). The Court held a
hearing on the Motion for Attorney's Fees on March 23,
2016. (ECF No. 224). Costs were taxed against Defendant in
the amount of $14, 590.96 (ECF No. 225), and the Clerk of
Court filed a Memorandum regarding taxation of costs (ECF No.
226). Plaintiffs also request prejudgment interest in the
amount of $1, 910, 096.52. (Letter from Plaintiffs, dated
September 26, 2017).
state law governs whether a party is entitled to
attorney's fees, federal law dictates the procedure for
requesting attorney's fees. Carnes v. Zamani,
488 F.3d 1057, 1059 (9th Cir. 2007). The Ninth Circuit has
found that, “for Erie Railroad Co. v. Tompkins
purposes, state law on attorney's fees is substantive, so
state law applies in diversity cases. ‘[I]n an ordinary
diversity case where the state law does not run counter to a
valid federal statute or rule of court, and usually it will
not, state law denying the right to attorney's fees or
giving a right thereto, which reflects a substantial policy
of the state, should be followed.'” Alaska
Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 709 F.3d
872, 886 (9th Cir. 2013) (alterations in original) (citation
omitted). Nevada law permits an award of attorney's fees
to the prevailing party where the opposing party brought or
maintained a claim “without reasonable ground[s] or to
harass the prevailing party.” Nev. Rev. Stat. §
18.010(2)(b). “[A] claim is frivolous or groundless if
there is no credible evidence to support it.”
Rodriguez v. Primadonna Co., LLC, 216 P.3d 793, 800
(Nev. 2009) (citation omitted). The Court must liberally
construe § 18.010(2)(b) in favor of awarding
attorney's fees. Nev. Rev. Stat. § 18.010(2)(b).
Whether to award fees is within the Court's discretion.
Rodriguez, 216 P.3d at 800.
determine whether attorney's fees should be awarded
pursuant to Section 18.010(2)(b), the Court must
“inquire into the actual circumstances of the case,
rather than a hypothetical set of facts favoring
plaintiff's averments.” Baldonado v. Wynn Las
Vegas, LLC, 194 P.3d 96, 106-07 (Nev. 2008) (footnote
omitted). In cases interpreting the statute governing
attorney's fees, the Supreme Court of Nevada has
considered such factors as the complexity and uncertainty of
the legal issues presented, as well as whether the issue is
one of first impression, in deciding whether a claim was
brought or maintained with reasonable grounds. In
Baldonado, the Supreme Court of Nevada referenced
the complexity and unsettled nature of the legal issues
presented in finding that the district court did not abuse
its discretion in determining that appellants' arguments
were brought with reasonable grounds, even though
appellants' claims were unsuccessful on the merits.
Id. at 107; see also Rodriguez, 216 P.3d at
801 (denying defendant's motion for attorney's fees
because the plaintiff's civil action presented a novel
question of Nevada law). If there are several claims at
issue, and the court finds that some claims are groundless
while others are not, attorney's fees should be allocated
between the grounded and groundless claims. Bergmann v.
Boyce, 856 P.2d 560, 563 (Nev. 1993). The court may
exercise its discretion in determining the amount to award
for defense against groundless claims. Id.
mere fact that a claim failed to survive summary judgment,
absent other evidence, is not sufficient to prove the claims
were brought without reasonable grounds or to harass.
Bower v. Harrah's Laughlin, Inc., 215 P.3d 709,
726 (Nev. 2009), modified on other grounds by Garcia v.
Prudential Ins. Co. of Am., 293 P.3d 869 (Nev. 2013).
Relatedly, the fact that a plaintiff's complaint survives
a motion to dismiss is irrelevant as to whether the claims
had a reasonable basis, because the standard applied to a
motion to dismiss differs from the standard applied to a
post-judgment motion for attorney's fees.
Bergmann, 856 P.2d at 563.
law also permits an award of attorney's fees in the
context of rejected offers of judgment. Nev. Rev. Stat.
§ 17.115. To determine whether to award
attorney's fees pursuant to Section 17.115, the trial
court must apply two tests: the Beattie test and the
Brunzell test. See Gunderson v. D.R. Horton,
Inc., 319 P.3d 606, 616 (Nev. 2014) (citing Beattie
v. Thomas, 668 P.2d 268 (Nev. 1983) and Brunzell v.
Golden Gate Nat'l Bank, 455 P.2d 31 (Nev. 1969))
(finding that the district court abused its discretion by
failing to apply both tests). Under the Beattie
test, the district court must consider the following factors:
“(1) whether the plaintiff's claim [or
defendant's defense] was brought in good faith; (2)
whether the . . . offer of judgment was reasonable and in
good faith in both its timing and amount; (3) whether the
plaintiff's [or defendant's] decision to reject the
offer and proceed to trial was grossly unreasonable or in bad
faith; and (4) whether the fees sought by the offeror are
reasonable and justified in amount.” 668 P.2d at 274.
Depending upon which party is the offeror, the court's
analysis of the first factor should take into account the
good faith of the offeror in litigating liability. Yamaha
Motor Co., U.S.A. v. Arnoult, 955 P.2d 661, 673 (Nev.
properly determine the fourth Beattie factor, and
arrive at a reasonable value of the attorney's services,
the court applies the Brunzell test. The court must
consider: “(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;
[and] (4) the result: whether the attorney was successful and
what benefits were derived.” 455 P.2d at 33 (citation
omitted). “[G]ood judgment would dictate that each of
these factors be given consideration by the trier of fact and
that no one element should predominate or be given undue
weight.” Id. (citation and quotation marks
calculate prejudgment interest, Nevada law provides:
“When no rate of interest is provided by contract or
otherwise by law, or specified in the judgment, the judgment
draws interest from the time of service of the summons and
complaint until satisfied, except for any amount representing
future damages, which draws interest only from the time of
the entry of the judgment until satisfied, at a rate equal to
the prime rate at the largest bank in Nevada as ascertained
by the commissioner of financial institutions on January 1 or
July 1, as the case may be, immediately preceding the date of
judgment, plus 2 percent. The rate must be adjusted
accordingly on each January 1 and July 1 thereafter until the
judgment is satisfied.” Nev. Rev. Stat. §
Attorney's fees pursuant ...