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Jablonski Enterprises, Ltd. v. Nye County

United States District Court, D. Nevada

October 25, 2017

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

          REPORT & RECOMMENDATION

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants Greg Ekins and G.I.S. Land Services' Renewed Motion for Attorney's Fees (ECF No. 110), filed on September 18, 2017. Plaintiff filed its Response (ECF No. 112) on October 2, 2017. Defendants filed their second supplement (ECF No. 114) on October 16, 2017.

         Defendants filed their Motion for Attorney's Fees (ECF No. 73) on February 21, 2017. Plaintiff filed its omnibus Response (ECF No. 88) on March 10, 2017. Defendants filed their Reply (ECF No. 92) 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. Defendants filed their Supplement (ECF No. 97) and Plaintiff filed its Supplement (ECF No. 98) on July 28, 2017. The Court denied Plaintiff's motion (ECF No. 73) without prejudice on August 28, 2017 and permitted Defendants to refile their motion for attorney's fees and costs to comply with LR 54-14.

         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 their special Motion to Dismiss pursuant to Nevada's anti-Strategic Lawsuits Against Public Participation (“SLAPP”) statute, NRS § 41.650, et seq. ECF No. 11.

         In May 2016, the Fifth Judicial District Court dismissed Plaintiff's claims with prejudice. On October 6, 2016, Defendants filed Supplements to their Motion to Dismiss (ECF Nos. 62) attaching the state court order dismissing Plaintiff's claims with prejudice and requested that the Court grant dismissal. See ECF Nos. 60, 61. 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. On September 25, 2017, the Court granted Plaintiff's Motion to Reconsider (ECF No. 76) its order granting Defendants' motions to dismiss, but, nonetheless, adhered to its ruling that Plaintiff's complaint is dismissed with prejudice under the doctrine of claim preclusion. ECF No. 111. On October 13, 2017, the Court of Appeals of the State of Nevada affirmed the Fifth Judicial District Court's order granting special motions to dismiss. ECF No. 114.

         Defendants argue that Fed.R.Civ.P. 54 authorizes the prevailing party to recover costs and that NRS 41.670(1) authorizes the Court to enter an award reasonable attorney's fees and costs upon the grant of a special motion to dismiss. See Renewed Motion for Attorney's Fees (ECF No. 110), pg. 2. Defendants further argue that the defense in this matter is distinct and different from services provided in the related state court proceedings. Plaintiff argues that Defendant's fee request is excessive and that Defendants fail to explain the fee request increase from $11, 625.00 in their first application for fees to $13, 350.00.

         DISCUSSION

         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. M idwest 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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