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Security Alarm Financing Enterprises, L.P. v. Nebel

United States District Court, D. Nevada

January 19, 2018

MIKAYLA NEBEL, et al., Defendant(s).


         Presently before the court is Magistrate Judge Ferenbach's report and recommendation. (ECF No. 100). No. objections have been filed, and the deadline for filing objections has since passed.

         Also before the court is plaintiff Security Alarm Financing Enterprises, L.P.'s motion for attorney's fees. (ECF No. 127). Defendant Russel Niggemyer has not filed a response, and the time for doing so has since passed.

         I. Background

         This case, a trademark infringement action, was originally filed in the Northern District of California. Initially, the complaint named two defendants, Russel Niggemyer and Mikayla Nebel. Defendant Nebel has since been dismissed from the action.[1]

         Defendant Niggemyer was served with a summons on September 23, 2015. (ECF No. 7). Defendant filed a motion to dismiss for lack of personal jurisdiction with the United States District Court, Northern District of California on November 9, 2015. (ECF No. 23). The court granted the motion, finding that defendants “did not expressly aim” any alleged copyright infringement at California. (ECF No. 52 at 12). The court transferred the action to the United States District Court, District of Nevada on March 14, 2016, because both defendants were citizens of Nevada. Id. at 13.

         Defendant continued to communicate with plaintiff but failed to appear or otherwise respond to the complaint after the case was transferred. (ECF No. 101). Due to the defendant's inaction, plaintiff filed a motion for entry of clerk's default (ECF No. 88), and the clerk entered default against defendant on September 26, 2016, (ECF No. 91). On November 10, 2016, plaintiff filed a motion for default judgment against defendant (ECF No. 101), which this court granted on May 30, 2017, (ECF No. 122).

         II. Legal Standard

         a. Report and recommendation

         This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1).

         Where a party fails to object, however, the court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made).

         b. Motion for attorney's fees

         Federal Rule of Civil Procedure 54(d)(2) allows a party to file a motion for attorney's fees if it: (1) is filed within 14 days after judgment is entered; (2) identifies the legal basis for the award; and (3) indicates the amount requested or an estimate thereof. Moreover, “[a] federal court sitting in diversity applies the law of the forum state regarding an award of attorneys' fees.” Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000). A Nevada trial court “may not award attorney fees absent authority under a statute, rule, or contract.” Albios v. Horizon Communities, Inc., 132 P.3d 1022, 1028 (Nev. 2006).

         In Brunzell, the Nevada Supreme Court articulated four factors for a court to apply when assessing requests for attorney's fees:

(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; (4) the result: whether the attorney was successful and what benefits were derived.

455 P.2d at 33. The trial court may exercise its discretion when determining the value of legal services in a case. Id. at 33-34.

         Additionally, a trial court applying Nevada law must utilize Bruzell to assess the merits of a request for attorney's fees, yet that court is not required to make findings on each factor. Logan v. Abe, 350 P.3d 1139, 1143 (Nev. 2015). “Instead, the district court need only demonstrate that it considered the required factors, and the award must be supported by substantial evidence.” Id. (citing Uniroyal Goodrich Tire Co. v. Mercer, 890 P.2d 785, 789 (Nev. 1995), superseded by statute on other grounds as discussed in RTTC Commc'ns, LLC v. Saratoga Flier, Inc., 110 P.3d 24, 29 n.20 (Nev. 2005)).

         III. Discussion

         a. Report and recommendation

         No party has objected to the report and recommendation. Further, as the court noted in its order dated May 30, 2017, the pending report and recommendation is moot due to the dismissal of defendant Nebel from the case. (ECF No. 122). ...

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