1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Edgar Avitia De La Vega, 2:23-cv-00865-RFB-MDC 4 Plaintiff(s), ORDER GRANTING MOTION FOR 5 ATTORNEY’S FEES (ECF NO. 53) vs. 6
7 Ayman Enterprises, Inc., et al., 8 Defendant(s). 9 10 Plaintiff Edgar Avitia De La Vega filed a Motion for Attorney’s Fees (“Motion”). ECF No. 53. 11 The Court GRANTS the Motion IN PART. The Court finds that an award of $18,696.00 in attorney’s 12 fees and costs, to be paid by defendant Clarence Eugene Mitchell II, is reasonable. 13 I. BACKGROUND 14 This is a personal injury case. Defendant Mitchell allegedly crashed his employer’s truck into 15 plaintiff’s vehicle. Defendant Mitchell has disappeared, and he has not cooperated in discovery. This 16 Court ordered case terminating sanctions against defendant Mitchell. ECF No. 52. The plaintiff now 17 brings this Motion against defendant Mitchell pursuant to this Court’s earlier Order. ECF No. 51 at 6-7. 18 Plaintiff argues in his Motion that Mitchell should be required to pay all of plaintiff’s attorney’s fees and 19 costs associated with (1) having to bring both the first and the renewed Motion for Sanctions and (2) the 20 written discovery and the depositions against defendant Mitchell. ECF No. 53 at 2. The defendants 21 argue much of fees and costs plaintiff seeks were self-incurred and unwarranted; for example, defense 22 counsel notified plaintiff in advance of each deposition that Mitchell would not be appearing. ECF No. 23 54 at 2. Plaintiff argues in the reply that he had to prosecute the case. ECF No. 55 at 2. 24 // 25 1 II. LEGAL STANDARD 2 “A federal court sitting in diversity applies the law of the forum state regarding an award of 3 attorneys’ fees.” Kona Enterprises, Inc. v. Est. of Bishop, 229 F.3d 877, 883 (9th Cir. 2000). In Nevada, 4 “the method upon which a reasonable fee is determined is subject to the discretion of the court, which is 5 tempered only by reason and fairness.” Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 124 6 P.3d 530, 548–49 (2005) (en banc) (internal quotation marks omitted). One permissible method is the 7 lodestar approach, which involves “multiplying the number of hours reasonably spent on the case by a 8 reasonable hourly rate.” Id. at 549, n.98 (internal quotation marks omitted). 9 The Nevada Supreme Court has held that courts should consider the following elements when 10 determining attorney’s fees: (1) the qualities of the advocate: their ability, training, education, 11 experience, professional standing and skill; (2) the character of the work to be done: its difficulty, its 12 intricacy, its importance, time and skill required, the responsibility imposed and the prominence and 13 character of the parties where they affect the importance of the litigation; (3) the work actually 14 performed by the lawyer: the skill, time and attention given to the work; (4) the result: whether the 15 attorney was successful and what benefits were derived. Brunzell v. Golden Gate Nat’l Bank, 85 Nev. 16 345, 349, 455 P.2d 31 (1969). The fact finder should consider each element such that “no one element 17 should predominate or be given undue weight.” Id. at 349–50, 455 P.2d 33. 18 Local Rule 54-14 also requires the moving party to include an attorney affidavit, “[a] reasonable 19 itemization and description of the work performed,” and a “brief summary” of thirteen categories of 20 information. L.R. 54-14(a)–(b). The categories are: (1) the results obtained and the amount involved; (2) 21 the time and labor required; (3) the novelty and difficulty of the questions involved; (4) the skill 22 requisite to perform the legal service properly; (5) the preclusion of other employment by the attorney 23 due to acceptance of the case; (6) the customary fee; (7) whether the fee is fixed or contingent; (8) the 24 time limitations imposed by the client or the circumstances; (9) the experience, reputation, and ability of 25 1 the attorney(s); (10) the undesirability of the case, if any; (11) the nature and length of the professional 2 relationship with the client; (12) awards in similar cases; and (13) any other information the court may 3 request. 4 “Where . . . the failure of a party or their attorney to attend a deposition is not substantially 5 justified, the court is obliged to impose monetary sanctions to compensate both costs and attorney fees 6 occasioned by the unjustified non-compliance.” DeShazier v. Williams, No. CV F 06-0591 AWI SMS, 7 2009 WL 80430, at *1 (E.D. Cal. Jan. 13, 2009) (citing FRCP 37(d)); see also Allen v. Walmart, Inc., 8 No. 2:21-cv-01394-JAD-NJK, 2023 U.S. Dist. LEXIS 14170, at *2 (D. Nev. Jan. 26, 2023) (granting in 9 part and denying in part a motion for attorney’s part for discovery sanctions). 10 A Court may “after giving an opportunity to be heard, require the party or deponent whose 11 conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s 12 reasonable expenses incurred in making the motion, including attorney’s fees.” FRCP 37(a)(5)(A). 13 Three exceptions apply: “(i) the movant filed the motion before attempting in good faith to obtain the 14 disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or 15 objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id. 16 The Court must calculate an award of attorney’s fees using the “lodestar” method under Hensley 17 v. Eckerhart, 461 U.S. 424, 433 (1983). See Caudle v. Bristow Optical Co., 224 F.3d 1014, 1028 (9th 18 Cir. 2000). To calculate the “lodestar,” the Court must multiply “the number of hours the prevailing 19 party reasonably expended on the litigation by a reasonable hourly rate.” Id. The Court “should exclude 20 from this initial fee calculation hours that were not ‘reasonably expended.’” Hensley, at 461 U.S. at 434. 21 A reasonable hourly rate is the rate prevailing in the community for similar work. Gonzalez v. City of 22 Maywood, 729 F.3d 1196, 1200 (9th Cir. 2013). The relevant community is the community in which the 23 court sits. Schwarz v. Sec. of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995). Although the 24 resulting “lodestar” figure is presumptively reasonable, the court can further adjust that amount by 25 1 considering the factors laid out in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), 2 abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 (1992). A district court’s 3 failure to consider the Kerr factors, which have been fully incorporated into Local Rule 54-14, 4 constitutes an abuse of discretion. See 526 F.2d at 70; see also LR 54-14. “An attorney’s fees award 5 should include compensation for all hours reasonably expended prosecuting the matter, but ‘hours that 6 are excessive, redundant, or otherwise unnecessary’ should be excluded.” Red Rock Fin. Servs. v. Russo, 7 No. 2:23-cv-01313-RFB-DJA, 2025 U.S. Dist. LEXIS 60932, at *17 (D. Nev. Mar. 31, 2025) (citing 8 Costa v. Comm’r of SSA, 690 F.3d 1132, 1135 (9th Cir. 2012)). 9 III. ANALYSIS 10 A.
Free access — add to your briefcase to read the full text and ask questions with AI
1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Edgar Avitia De La Vega, 2:23-cv-00865-RFB-MDC 4 Plaintiff(s), ORDER GRANTING MOTION FOR 5 ATTORNEY’S FEES (ECF NO. 53) vs. 6
7 Ayman Enterprises, Inc., et al., 8 Defendant(s). 9 10 Plaintiff Edgar Avitia De La Vega filed a Motion for Attorney’s Fees (“Motion”). ECF No. 53. 11 The Court GRANTS the Motion IN PART. The Court finds that an award of $18,696.00 in attorney’s 12 fees and costs, to be paid by defendant Clarence Eugene Mitchell II, is reasonable. 13 I. BACKGROUND 14 This is a personal injury case. Defendant Mitchell allegedly crashed his employer’s truck into 15 plaintiff’s vehicle. Defendant Mitchell has disappeared, and he has not cooperated in discovery. This 16 Court ordered case terminating sanctions against defendant Mitchell. ECF No. 52. The plaintiff now 17 brings this Motion against defendant Mitchell pursuant to this Court’s earlier Order. ECF No. 51 at 6-7. 18 Plaintiff argues in his Motion that Mitchell should be required to pay all of plaintiff’s attorney’s fees and 19 costs associated with (1) having to bring both the first and the renewed Motion for Sanctions and (2) the 20 written discovery and the depositions against defendant Mitchell. ECF No. 53 at 2. The defendants 21 argue much of fees and costs plaintiff seeks were self-incurred and unwarranted; for example, defense 22 counsel notified plaintiff in advance of each deposition that Mitchell would not be appearing. ECF No. 23 54 at 2. Plaintiff argues in the reply that he had to prosecute the case. ECF No. 55 at 2. 24 // 25 1 II. LEGAL STANDARD 2 “A federal court sitting in diversity applies the law of the forum state regarding an award of 3 attorneys’ fees.” Kona Enterprises, Inc. v. Est. of Bishop, 229 F.3d 877, 883 (9th Cir. 2000). In Nevada, 4 “the method upon which a reasonable fee is determined is subject to the discretion of the court, which is 5 tempered only by reason and fairness.” Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 124 6 P.3d 530, 548–49 (2005) (en banc) (internal quotation marks omitted). One permissible method is the 7 lodestar approach, which involves “multiplying the number of hours reasonably spent on the case by a 8 reasonable hourly rate.” Id. at 549, n.98 (internal quotation marks omitted). 9 The Nevada Supreme Court has held that courts should consider the following elements when 10 determining attorney’s fees: (1) the qualities of the advocate: their ability, training, education, 11 experience, professional standing and skill; (2) the character of the work to be done: its difficulty, its 12 intricacy, its importance, time and skill required, the responsibility imposed and the prominence and 13 character of the parties where they affect the importance of the litigation; (3) the work actually 14 performed by the lawyer: the skill, time and attention given to the work; (4) the result: whether the 15 attorney was successful and what benefits were derived. Brunzell v. Golden Gate Nat’l Bank, 85 Nev. 16 345, 349, 455 P.2d 31 (1969). The fact finder should consider each element such that “no one element 17 should predominate or be given undue weight.” Id. at 349–50, 455 P.2d 33. 18 Local Rule 54-14 also requires the moving party to include an attorney affidavit, “[a] reasonable 19 itemization and description of the work performed,” and a “brief summary” of thirteen categories of 20 information. L.R. 54-14(a)–(b). The categories are: (1) the results obtained and the amount involved; (2) 21 the time and labor required; (3) the novelty and difficulty of the questions involved; (4) the skill 22 requisite to perform the legal service properly; (5) the preclusion of other employment by the attorney 23 due to acceptance of the case; (6) the customary fee; (7) whether the fee is fixed or contingent; (8) the 24 time limitations imposed by the client or the circumstances; (9) the experience, reputation, and ability of 25 1 the attorney(s); (10) the undesirability of the case, if any; (11) the nature and length of the professional 2 relationship with the client; (12) awards in similar cases; and (13) any other information the court may 3 request. 4 “Where . . . the failure of a party or their attorney to attend a deposition is not substantially 5 justified, the court is obliged to impose monetary sanctions to compensate both costs and attorney fees 6 occasioned by the unjustified non-compliance.” DeShazier v. Williams, No. CV F 06-0591 AWI SMS, 7 2009 WL 80430, at *1 (E.D. Cal. Jan. 13, 2009) (citing FRCP 37(d)); see also Allen v. Walmart, Inc., 8 No. 2:21-cv-01394-JAD-NJK, 2023 U.S. Dist. LEXIS 14170, at *2 (D. Nev. Jan. 26, 2023) (granting in 9 part and denying in part a motion for attorney’s part for discovery sanctions). 10 A Court may “after giving an opportunity to be heard, require the party or deponent whose 11 conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s 12 reasonable expenses incurred in making the motion, including attorney’s fees.” FRCP 37(a)(5)(A). 13 Three exceptions apply: “(i) the movant filed the motion before attempting in good faith to obtain the 14 disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or 15 objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id. 16 The Court must calculate an award of attorney’s fees using the “lodestar” method under Hensley 17 v. Eckerhart, 461 U.S. 424, 433 (1983). See Caudle v. Bristow Optical Co., 224 F.3d 1014, 1028 (9th 18 Cir. 2000). To calculate the “lodestar,” the Court must multiply “the number of hours the prevailing 19 party reasonably expended on the litigation by a reasonable hourly rate.” Id. The Court “should exclude 20 from this initial fee calculation hours that were not ‘reasonably expended.’” Hensley, at 461 U.S. at 434. 21 A reasonable hourly rate is the rate prevailing in the community for similar work. Gonzalez v. City of 22 Maywood, 729 F.3d 1196, 1200 (9th Cir. 2013). The relevant community is the community in which the 23 court sits. Schwarz v. Sec. of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995). Although the 24 resulting “lodestar” figure is presumptively reasonable, the court can further adjust that amount by 25 1 considering the factors laid out in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), 2 abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 (1992). A district court’s 3 failure to consider the Kerr factors, which have been fully incorporated into Local Rule 54-14, 4 constitutes an abuse of discretion. See 526 F.2d at 70; see also LR 54-14. “An attorney’s fees award 5 should include compensation for all hours reasonably expended prosecuting the matter, but ‘hours that 6 are excessive, redundant, or otherwise unnecessary’ should be excluded.” Red Rock Fin. Servs. v. Russo, 7 No. 2:23-cv-01313-RFB-DJA, 2025 U.S. Dist. LEXIS 60932, at *17 (D. Nev. Mar. 31, 2025) (citing 8 Costa v. Comm’r of SSA, 690 F.3d 1132, 1135 (9th Cir. 2012)). 9 III. ANALYSIS 10 A. The Brunzell Factors and LR 54-14 11 Regarding the first factor pertaining to the qualities of the advocates, plaintiff’s lead counsel, 12 Joseph Gutierrez declares that he has twenty-one years of experience in personal injury matters. See 13 ECF No. 53-1, Decl. Gutierrez ¶ 30. Attorney Esteban Hernandez has nearly five years of experience. 14 Id. The Court finds that plaintiff’s counsel are experienced in this area of law and the first factor weighs 15 in plaintiff’s favor. Regarding the second and third factors, the character of plaintiff’s counsel’s work, 16 and the work they performed, is significant. Counsel spent many hours drafting the subject 17 interrogatories, attempting to get defense counsel to provide Mitchell’s verification of such responses, 18 and going back and forth with defense counsel for months to set up Mitchell’s depositions. Counsel also 19 expended time drafting the original motion for sanctions and the instant Motion. The Court finds that 20 time spent on such tasks is reasonable and that the second and third factors both weigh in plaintiff’s 21 favor. Regarding the final factor, the result, unquestionably favors plaintiff as he successfully provided 22 the evidence necessary for the Court to rule in his favor and enter case terminating sanctions against 23 Mitchell. Plaintiff has satisfied the Brunzell factors. 24 25 1 Regarding LR 54-14, the Court also finds that the results obtained, the time and labor required, 2 the experience, reputation, skill, and ability of the attorneys, all weigh in plaintiff’s favor as the Court 3 analyzed using the Brunzell factors. As it relates to the novelty and difficulty of the questions involved, 4 this factor weighs only slightly in plaintiff’s favor as it has undoubtedly been difficult for the plaintiff to 5 deal with Mitchell’s disappearance, but the issues here are not novel. Plaintiff’s counsel is working on a 6 contingency fee, which is neutral here. The customary fee factor weighs in plaintiff’s favor given that 7 counsel has submitted sworn declarations regarding their hourly rates. Plaintiff’s counsel has not been 8 precluded from working on other cases, so this factor does not weigh in his favor. Regarding the time 9 limitations imposed by the client or the circumstances, there were no unusual time limitations or 10 extenuating circumstances. However, there were the normal limitations of discovery deadlines and 11 diligent prosecution of plaintiff’s case. Thus, this factor weighs slightly against the plaintiff. As it 12 relates to the undesirability of the case, this case was not undesirable, so this factor is neutral. 13 Regarding the nature and length of the professional relationship that counsel has with its client, this is 14 the first case in which counsel has represented, so this factor is neutral. On balance, the factors outline in 15 LR 54-14 weigh in plaintiff’s favor. 16 B. Mitchell’s Discovery Abuses 17 The Court gave defendant Mitchell multiple opportunities to comply with his discovery obligations. 18 The Court finds that plaintiff’s expenses related to filing the original motion and the renewed Motion, as 19 well as preparing for oral argument, are reasonable per Rule 37. The Court finds that none of the 20 exceptions apply. The first exception is inapplicable because plaintiff attempted in good faith to obtain 21 defendant Mitchell’s deposition and verification on numerous occasions. Plaintiff attempted to get 22 verification for Mitchell’s responses to his interrogatories and to get Mitchell to appear to a deposition 23 for many months to no avail. The defendants’ argument in the response, that plaintiff knew Mitchell 24 would not appear, is not persuasive because the plaintiff has a duty to prosecute his case. 25 1 The second exception does not apply because no justifiable explanation exists for Mitchell refusing 2 to cooperate in discovery and failing to appear. Defense counsel represents that their office attempted to 3 locate Mitchell for years. The Court finds that Mitchell has fled to avoid accountability and liability. The 4 third exception is inapplicable because plaintiff should not have to bear the consequences of defendant 5 Mitchell’s absence. Mitchell is a crucial witness and party in this case, yet he has wasted significant 6 time, effort, and expense by refusing to cooperate. The Court grants plaintiff’s fees pursuant to FRCP 7 37. 8 C. The Fees and Hourly Rate of Plaintiff’s Counsel 9 Plaintiff’s counsel declares that they spent 38.4 hours working on the instant matter. ECF No. 10 53-1, Decl. Gutierrez ¶ 24. Some of the early case work included setting defendant Mitchell’s 11 deposition, noticing the deposition, hiring a court reporter, attending the deposition for which Mitchell 12 failed to appear, and drafting the first motion for sanctions due to Mitchell’s discovery abuses. The 13 Court gave Mitchell a final opportunity to rectify his discovery failures, so counsel spent additional time 14 and resources to set a date for the second deposition (Mitchell again failed to appear), and to obtain 15 verification of Mitchell’s responses to plaintiff’s interrogatories. Decl. Gutierrez ¶¶ 14–18. Counsel also 16 appeared in Court and prepared for oral arguments. Id. ¶ 24. The Court finds that plaintiff’s counsel has 17 spent a reasonable amount of time and is entitled to compensation. 18 The Court has reviewed the plaintiff’s billing/time and generally finds the time billed and 19 amount requested to be reasonable. Plaintiff’s counsel charges $595 per hour for the founding partner 20 Gutierrez and $425 per hour for Hernandez, who is of counsel with the firm. ECF No. 53-1, Decl. 21 Gutierrez ¶¶ 30–31. The Court finds that the $450.00 hourly rate for attorney Hernandez with five years 22 of experience is reasonable. The reasonableness of the rate is established by the Declaration of Jospeh 23 Gutierrez, who is the managing partner of Maier, Gutierrez & Associates and is supported by other case 24 in this district. See Humphries v. Button, No. 2:21-cv-01412-ART-EJY, 2025 U.S. Dist. LEXIS 50920, 25 1 at *5 (D. Nev. Mar. 20, 2025) ($450 hourly rate for five-year associate reasonable). By extension, Court 2 finds that a rate of $595 per hour for Gutierrez with over twenty years of experience is reasonable. Id., 3 (finding rates of $750 and $600 reasonable for the Las Vegas legal community for attorneys with 25 4 years of experience or “substantial expertise and involvement in this case”). 5 The attorneys break their time down as follows: 6 a. Drafting/filing plaintiff’s motions to compel: 5.0 hours. 7 b. Preparing/attending depositions of defendant Mitchell: 5.3 hours. 8 c. Drafting/filing plaintiff’s motion to for sanctions: 4.7 hours. 9 d. Drafting/filing plaintiff’s reply brief: 8.2 hours. 10 e. Drafting/filing plaintiff’s renewed motion to for sanctions: 1.8 hours. 11 f. Drafting/filing plaintiff’s renewed reply brief: 2.5 hours. 12 g. Preparing/attending hearing on motion for sanctions: 10.9 hours. 13 Plaintiff’s counsel Gutierrez worked 22.8 hours and Hernandez worked 15.6 hours. Counsel also 14 attached a timesheet for the legal work the attorneys performed, which the Court has reviewed. ECF No. 15 53-7. The Court reduces the $20,196.00 requested fees by $1,500.00 because (1) there is overlap of 16 similar work for Attorney Hernandez’s 09/18/2024 separate time entries; and (2) Attorney Joseph 17 Gutierrez’ 5/29/2025 entry appears to include tasks billed for in the 03/07/2025 billing entry. Overall, 18 the Court finds that plaintiff’s billing provides sufficient detail to allow the Court to determine the 19 reasonableness of the time reported vis-a-vis the description of the tasks performed. All other factors 20 support an award of $18,696.00 as reasonable. 21 // 22 // 23 // 24 // 25 1 IT IS ORDERED that: 2 1. Plaintiff's Motion for Attorney’s Fees (ECF No. 53) is GRANTED IN PART. 3 2. The Court awards $18,696.00 in attorney’s fees and costs, to be paid by defendant Clarence 4 Eugene Mitchell II, to plaintiffs counsel. Jp, | Aff fp 5 Dated: September 4, 2025. fi yw 6 A Aimilians □ “Snited States Mogistra ie Judge G3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25