United States District Court, D. Nevada
I.REPORT AND RECOMMENDATION
filed a motion for evidentiary hearing to enforce settlement
agreement (ECF No. 197), and defendants filed a cross-motion
to enforce settlement agreement (ECF No. 208). After an
evidentiary hearing, the Magistrate Judge entered her report
and recommendation (ECF No. 234), recommending that
plaintiffs motion to enforce the settlement agreement be
granted, and defendants' cross-motion be denied.
Plaintiff filed an objection to the report and recommendation
(ECF No. 238), and defendants filed a response (ECF No. 241).
Defendants also filed an objection to the report and
recommendation (ECF No. 239), and plaintiff filed a response
(ECF No. 240).
court has considered the pleadings and memoranda of the
parties and other relevant matters of record and has made a
review and determination in accordance with the requirements
of 28 U.S.C. § 636 and applicable case law, and good
cause appearing, the court herby ADOPTS AND
ACCEPTS the report and recommendation of the United
States Magistrate Judge (ECF No. 234). The court finds and
concludes that the record supports the Magistrate Judge's
conclusion that defendants breached the Settlement Agreement
with plaintiff, causing plaintiff to incur damages in the
amount of $499, 210.10. Plaintiffs motion to enforce
settlement agreement (ECF No. 197) is
GRANTED, and defendants' cross-motion to
enforce settlement agreement (ECF No. 208) is
DENIED. The court enters judgment in this case in
favor of plaintiff and against defendants, jointly and
severally, in the total amount of $499, 210.10.
MOTION FOR ATTORNEY'S FEES
before the court is plaintiffs motion for attorney's fees
(ECF No. 246). Defendants have opposed (ECF No. 247), and
plaintiff has replied (ECF No. 248). Plaintiff seeks an award
of fees in the amount of $101, 005.00 and an award of costs
in the amount of $9, 161.31.
filed his motion pursuant to Federal Rule of Civil Procedure
54. Federal Rule of Civil Procedure 54(d)(1) allows an award
of costs to the prevailing party. Federal Rule of Civil
Procedure 54(d)(2) sets forth the procedure for obtaining an
award of attorney's fees but does not provide the
substantive basis for such an award. Fees are recoverable
only if there is a rule, statute, or contract that authorizes
such an award. See MRO Commc'ns, Inc. v. Am. Tel.
& Tel. Co., 197 F.3d 1276, 1281 (9th Cir. 1999).
plaintiff seeks an award of costs and fees pursuant to
Section 18 of a Settlement Agreement ("SA") entered
into with defendants. Section 18 reads as follows:
Indemnification. The Parties hereto agree to
indemnify and hold each other and each, every and all of
their respective insurers, agents, representative, officers,
directors, members, managers, spouses, attorneys, heirs,
successors and assigns harmless from and against the
aggregate of all expenses, losses, costs, deficiencies,
liabilities and damages (including, without limitation,
related counsel and paralegal fees and expenses) incurred or
suffered by such indemnified parties resulting from or
arising out of any breach of any of the representations or
warranties made by them in this Agreement.
agreements are governed by the law of the forum state.
United Commercial Ins. Serv. Inc. v. Paymaster
Corp., 962 F.2d 853, 856 (9th Cir. 1992). Under Nevada
law, "a settlement agreement is a contract, [and] its
construction and enforcement are governed by principles of
contract law." May v. Anderson, 121 Nev. 668,
672 (119 P.3d 1254, 1257 (Nev. 2005). "Unlike most
contracts, indemnification agreements are strictly construed
and will not be held to provide indemnification unless it is
so stated in clear and unequivocal language." Casun
Invest, A.G. v. Ponder, No. 2:16-cv-2925-JCM-GWF, 2018
WL 6413161 at *2 (D. Nev. Dec. 6, 2018) (citing George L.
Brown Ins. v. Star Ins. Co., 237 P.3d 92, 97 (Nev.
argues that the plain meaning of the indemnity provision
provides for attorney's fees if any party breaches any of
the representations made in the agreement. Defendants argue
that the Indemnity Clause only applies to representations and
warranties and neither section of the SA that plaintiff
alleges were breached are representations or warranties. The
court concludes that the language of Section 18 of the SA
plainly states that the breaching party, in this case the
defendants, will be responsible for all counsel and paralegal
fees and expenses incurred out of any breach of any of the
representations or warranties made in the SA. Here, the
Magistrate Judge clearly found, and the court adopts the
recommendation, that the defendants breached material terms
and conditions of the SA, specifically that defendants
breached Sections 9.1 and 9.2 of the SA. Defendants'
conduct in breaching the terms of the SA by breaching the
representation in the SA that defendants would make monthly
payments of $12, 500.00 and breaching the representation that
defendants would provide $200, 000.00 worth of Americana
based on prices paid by plaintiff when he was an employee of
HK, clearly falls under the umbrella of the indemnity clause
of the SA, the terms of which are clear and unequivocal.
Plaintiff is therefore entitled to an award of fees and costs
pursuant to Section 18 of the SA.
making an award of attorney's fees, the court begins by
calculating the "lodestar." Caudle v. Bristow
Optical Co., Inc., 224 F.3d 1014, 1028 (9th Cir. 2000).
The lodestar is reached by multiplying the number of hours
the prevailing party reasonably expended on the litigation by
a reasonable hourly rate. Id. In determining the
hours to be included in the lodestar, the court should
exclude hours that are "excessive, redundant, or
otherwise unnecessary." McCown v. City of
Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009).
cases, the lodestar is presumptively a reasonable fee award.
Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149
n.4 (9th Cir. 2001). However, if the circumstances warrant,
the court may "adjust the lodestar to account for other
facts that are not subsumed within it." Id.
Those factors are:
(1) the time and labor required; (2) the novelty and
difficulty of the questions involved; (3) the skill requisite
to perform the legal service properly; (4) the preclusion of
other employment by the attorney due to acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the "undesirability" of the case;
(11) the nature and length of the professional relationship
with the client; and (12) awards in similar cases.
Cairns v. Franklin Mint. Co., 292 F.3d 1139, 1158
(9th Cir. 2002) (citing Kerr v. Screen Extras Guild,
Inc., 526 F.2d 67, 70 (9th Cir. 1975)). "The court
need not consider all factors - only those called into
question by the case at hand and necessary to support the
reasonableness of the fee award." Cairns, 292
F.3d at 1158 (citing Kessler v. Assocs. Fin Servs. Co. of
Hawaii, 639 F.2d 498, 500 n. 1 (9th Cir. 1981).
counsel seeks an hourly rate of $450.00 per hour for himself
and $125.00 for his paralegal. Defendants make no argument as
to the reasonableness of the hourly rates. The court
concludes that these hourly rates are reasonable and
customary hourly rates for the type of work performed in this
case. Counsel seeks compensation for 208.4 hours of work for
himself and 57.8 hours of work for his paralegal. Defendants
make no argument as to the reasonableness of counsel's
hours. The court ...