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McCart-Pollak v. Etkin

United States District Court, D. Nevada

July 31, 2018

EDWARD ETKIN, et al., Defendants.



         Presently before the court is defendants Edward Etkin and Law Office of Edward Etkin, Esq. PC's (together, “Etkin” or defendants) motion for attorney's fees (ECF No. 66), filed December 22, 2017. Plaintiff Shana Lee McCart-Pollack filed a response and countermotion to extend time for payment (ECF Nos. 71, 72) on January 8, 2018. Defendants filed a reply in support of their motion and a response to the countermotion (ECF Nos. 73, 74) on January 9, 2018. McCart-Pollack filed a reply in support of her countermotion (ECF No. 76) on January 19, 2018. Defendants move for a determination of attorney's fees awarded at the hearing held on December 8, 2017. (Mins. of Proceedings (ECF No. 64).)

         I. BACKGROUND

         This attorney malpractice action arises from a dispute regarding the handling of McCart-Pollack's patent and trademark case. Plaintiff alleges that by mishandling her pending patent and trademark application, her attorney caused her to suffer various damages. (Compl. (ECF No.1).) In preparation for trial, defendants moved to compel discovery, and for sanctions. (Mot. to Compel (ECF No. 23).) At a hearing on December 8, 2017, the court granted the motion and sanctions of attorney's fees and ordered the parties to meet and confer regarding the amount of fees and costs. (Mins. of Proceedings (ECF No. 64).) Because the parties were unable to resolve the dispute regarding the amount of fees, defendants moved for a determination of the amount of attorney's fees. Defendants seek attorney's fees in the amount of $2, 860.00.

         McCart-Pollack does not contest the reasonableness of the fees, but desires to extend the time, until the end of the case, to pay the fees. (ECF Nod. 71, 72). She argues that defense counsel has already been paid by Etkin, except for $100 which she offers to pay now, so counsel has been made whole. She further argues that she has a claim against Etkin for $5, 000 which she believes she will win at the end of the case. She also argues that she did not act in bad faith, she is a pro se litigant, and she restates her arguments made at the hearing regarding the merits of the motion to compel. Etkin replies that the purpose of the attorney's fees is to make the defendants whole, and that Etkin had to pay his lawyer $2, 860 to compel discovery in order to defend the case and prepare for trial. Etkin further argues that he is entitled to prompt payment, and that any dispute regarding the ultimate outcome of the case must wait until the case is resolved.

         II. ANALYSIS

         The court should only award attorney's fees that it deems reasonable. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). The lodestar method is the customary method that the court uses when determining attorney's fees. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). “The ‘lodestar' is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Id.; see also McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). The requesting party “has the burden of submitting billing records to establish that the number of hours it has requested are reasonable.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). The court should exclude from the lodestar calculation hours that were not “reasonably expended, ” including hours that are “excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); see also Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006). If the court determines some requested fees should be excluded as unreasonable, the court may exclude bill entries pursuant to an hour-by-hour analysis. Gonzalez, 729 F.3d at 1203.

         The lodestar amount is a presumptively reasonable fee. Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 982 (9th Cir. 2008). Although presumptively reasonable, the court may adjust the lodestar amount based on the Kerr factors[1] to account for factors that have not been subsumed in the lodestar calculation. Id. “The number of hours to be compensated is calculated by considering whether, in light of the circumstances, the time could reasonably have been billed to a private client.” Moreno, 534 F.3d at 1111.

         Furthermore, Local Rule 54-14(b) requires a party seeking attorney's fees to include (1) a reasonable itemization and description of the work performed and (2) an itemization of all costs sought to be charged as part of the fee award.[2]

         A. Reasonable Hourly Rate

         The court determines a reasonable hourly rate by reference to the “prevailing market rates in the relevant community” for an attorney of similar experience, skill, and reputation. Gonzalez, 729 F.3d at 1205 (quotation omitted). The relevant community generally is “the forum in which the district court sits.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010) (quotation omitted). The party seeking fees bears the burden of producing satisfactory evidence to justify the requested rate. Gonzalez, 729 F.3d at 1206.

         Here, the hourly rates on the billing record submitted by defendants' attorneys is $200.00. McCart-Pollack did not object to the reasonableness of the rates, and the court finds this rate to be reasonable for this forum.

         B. Reasonable Hours Expended

         Defendants request compensation for, and provide a reasonable itemization of, 14.3 hours of attorney work to prepare the motion to compel and appear for the hearing on December 8, 2017. McCart-Pollack did not object to the reasonableness of the hours ...

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