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Wysocki v. Dourian

United States District Court, D. Nevada

October 20, 2017

DALE WYSOCKI, Plaintiffs,
v.
DIKRAN DOURIAN, Defendants.

          ORDER GRANTING MOTION FOR ATTORNEYS' FEES AND COSTS (DOCKET NO. 18)

          NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Defendant's motion for attorneys' fees and costs. Docket No. 18. Plaintiff filed a response in opposition. Docket No. 19. Defendant filed a reply. Docket No. 20. The Court finds the motion properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the Court ORDERS Plaintiff to pay Defendant attorneys' fees in the amount of $925 within 30 days of the issuance of this order.

         I. OVERVIEW

         The pending motion for fees and costs arises out of Defendant's motion to dismiss and for sanctions. Docket No. 14. Defendant submitted in his motion to dismiss that Plaintiff failed to produce initial disclosures and failed to respond to Defendant's first set of written discovery requests. Id. at 2. In addition to requesting the Court to dismiss Plaintiff's complaint and grant Defendant attorneys' fees and costs, Defendant also requested the Court to compel Plaintiff to produce initial disclosures and respond to Defendant's written discovery requests. Id. at 10. Plaintiff did not file a response.

         On September 11, 2017, the Court issued an order granting in part and denying in part Defendant's motion to dismiss. Docket No. 17. The Court ordered Plaintiff to produce initial disclosures and respond to Defendant's written discovery requests, waiving all objections, no later than September 25, 2017. Id. The Court also granted Defendant's request for reasonable attorneys' fees and costs incurred in bringing the motion to dismiss. Id.

         II. ENTITLEMENT TO FEES

         Despite the Court's encouragement for the parities to agree among themselves on an amount of expenses, it is evident from the parties' pleadings that the parties are unable to set aside issues stemming from the criminal case related to the instant civil matter and are unable to reach an agreement as to expenses. Docket Nos. 18, 19, 20. Plaintiff submits he is “willing to abide by this court's order and pay defense counsel's reasonable fees and costs incurred in the preparation of their motion” but challenges the reasonableness of the amount requested. Docket No. 19 at 2-4. As the Court has already determined that Defendant is entitled to recover reasonable attorneys' fees and costs and Plaintiff is not in opposition, the Court turns to the calculation of the fees.

         III. APPORTIONMENT

         In response, Plaintiff objects that a portion of Defendant's expenses “are for time spent prior to the filing of their motion for fees and costs.” Docket No. 19 at 2-3. Plaintiff misconstrues the Court's order granting Defendant attorneys' fees and costs; the Court granted Defendant attorneys' fees and costs incurred in bringing the motion to dismiss and for sanctions, which was filed prior to Defendant's motion for attorneys' fees and costs. Docket No. 19 at 2-3. Nonetheless, the Court reviews all expenses in determining its calculation.

         A. LODESTAR

         Reasonable attorneys' fees are generally calculated using the traditional “lodestar” method. See, e.g., Camacho v. Bridgeport Fin'l, Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the lodestar method, the Court determines a reasonable fee by multiplying “the number of hours reasonably expended on the litigation” by “a reasonable hourly rate.” See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar figure is presumptively reasonable. Cunningham v. County of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988).[1]

         1. Reasonable Hours

         The touchstone in determining the hours for which attorneys' fees should be calculated is whether the expenditure of time was reasonable. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 588 (D. Nev. 2013). The Court “has a great deal of discretion in determining the reasonableness of the fee and, as a general rule, [an appellate court] will defer to its determination . . . regarding the reasonableness of the hours claimed by the [movant].” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992)). The reasonableness of hours expended depends on the specific circumstances of each case. See Camacho, 523 F.3d at 978. In reviewing the hours claimed, the Court may exclude hours related to overstaffing, duplication, and excessiveness, or that are otherwise unnecessary. See, e.g., Hensley, 461 U.S. at 433.

         With respect to attorneys' fees arising out of a motion to compel discovery, recoverable fees include those “incurred in making the motion [to compel].”[2] Fed.R.Civ.P. 37(a)(5)(A). In addition, the movant may also recover “fees on fees” for the time expended in filing a motion for attorneys' fees. See, e.g., Aevoe Corp. v. AE Tech Co., 2013 U.S. Dist. LEXIS 135755, at *24-25 (D. Nev. Sept. 20, 2013) (collecting cases). In making the determination of the reasonableness of hours expended on such motions, “the Court considers factors such as the complexity of the issues raised, the ...


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