United States District Court, D. Nevada
SECURITY ALARM FINANCING ENTERPRISES, L.P. d/b/a SAFEGUARD SECURITY, Plaintiff(s),
MIKAYLA NEBEL, et al., Defendant(s).
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
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.
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
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.
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).
Report and recommendation
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.
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
Motion for attorney's fees
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).
Brunzell, the Nevada Supreme Court articulated four
factors for a court to apply when assessing requests for
(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
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.
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)).
Report and recommendation
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).