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LLC v. Rose

United States District Court, D. Nevada

April 27, 2018

1st ONE HUNDRED INVESTMENT POOL, LLC, Plaintiffs,
v.
CARMEN J. ROSE, et al., Defendants.

          ORDER

          JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE

         Presently before the court is plaintiff 1st One Hundred Investment Pool, LLC's motion for attorney's fees. (ECF No. 41). Defendant Bank of New York Mellon Trust Company (“BNYM” or “defendant”) filed a response (ECF No. 42), and plaintiff filed a reply (ECF No. 43).

         I. Introduction

         On March 28, 2017, plaintiff filed a complaint in state court. On May 2, 2017, defendant BNYM filed a petition for removal. (ECF No. 1 at 23). On May 26, 2017, plaintiff filed a motion to remand to state court. (ECF No. 6). On June 21, 2017, defendant Nevada filed a motion to remand to state court on the basis of lack of unanimity. (ECF No. 26). On July 13, 2017, this court granted Nevada's motion to remand. (ECF No. 35).

         On July 17, 2017, defendant BNYM filed a motion to reconsider. (ECF No. 36). On August 30, 2017, the court denied BNYM's motion. (ECF No. 40). Plaintiff now moves for attorney's fees and costs incurred as a result of defendant BNYM's improper removal. (ECF No. 41).

         II. Legal Standard

         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

         Plaintiff's motion argues that because this court remanded the case to state court plaintiff is entitled to just costs and actual expenses incurred as a result of removal. (ECF No. 41).

         a. Whether defendant is entitled ...


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