Beach v. Wal-Mart Stores, Inc.

958 F. Supp. 2d 1165, 2013 WL 3832418, 2013 U.S. Dist. LEXIS 102901
CourtDistrict Court, D. Nevada
DecidedJuly 23, 2013
DocketNo. 3:11-cv-00007-HDM-VPC
StatusPublished
Cited by3 cases

This text of 958 F. Supp. 2d 1165 (Beach v. Wal-Mart Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beach v. Wal-Mart Stores, Inc., 958 F. Supp. 2d 1165, 2013 WL 3832418, 2013 U.S. Dist. LEXIS 102901 (D. Nev. 2013).

Opinion

HOWARD D. McKIBBEN, District Judge.

Before the court is the defendant WalMart’s (“defendant”) motion for attorney’s fees and nontaxable costs (# 74). Plaintiff Shalimar Beach (“plaintiff’) has opposed (# 75), and defendant has replied (# 79). Pursuant to order of the court, the parties have filed supplemental briefs addressing the impact of the Ninth Circuit’s decision in Goldberg v. Pacific Indemnity Company, 627 F.3d 752 (9th Cir.2010) on defendant’s request for nontaxable costs (# 84, #89).

Plaintiffs complaint, which asserted a single claim of negligence against defendant, was filed in state court on December 3, 2010, and removed to this court on January 5, 2011. On May 23, 2012, defendant made plaintiff an offer of judgment in the amount of One Hundred Thousand and One dollars ($100,001.00). The offer was made pursuant to Nevada Revised Statute § 17.115 and Federal Rule of Civil Procedure 68. (Def. Mot. Attorney’s Fees Ex. 1). Plaintiff rejected the offer. (Def. Reply Ex. 4).

On October 30, 2012, trial commenced. On November 1, 2012, the jury found in favor of the defendant and against the plaintiff. Judgment was filed on November 1, 2013, and entered on November 6, 2012. On November 15, 2012, defendant filed the instant motion for attorneys’ fees and nontaxable costs. Defendant seek attorneys’ and paralegal fees in the amount of Thirty-Nine Thousand, Three Hundred Fifty-Six dollars ($39,356.00),1 incurred from the date of its offer of judgment to the date of entry of judgment, and other nontaxable costs in the amount of Thirty-Six Thousand Three-Hundred Twenty-Five Dollars and Twenty Eight Cents ($36,325.28).

1. Attorneys’ Fees

Defendant bases its claim for attorney’s fees on Federal Rule of Civil Procedure 54(d)(2), Nevada Rule of Civil Procedure 68, and Nevada Revised Statutes § 17.115.

Federal Rule of Civil Procedure 54(d)(2) sets forth the procedure for obtaining an award of attorneys’ fees in federal court. It does not, however, 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).

A motion under Rule 54(d)(2) must identify the basis for the requested award. Here, defendant identifies Nevada Revised Statutes § 17.115.2 Section 17.115 provides that “[a]t any time more than 10 days before trial, any party may serve upon one or more other parties a written offer to allow judgment to be taken in accordance [1170]*1170with the terms and conditions of the offer of judgment.” Id. § 17.115(1). If a party rejects an offer of judgment and fails to obtain a more favorable judgment, the court may order that party to pay the offeror’s “[reasonable attorney’s fees incurred by the [offeror] for the period from the date of service of the offer to the date of entry of the judgment.” Id. § 17.115(4)(d)(3).

Where, as here, the “court is exercising its subject matter jurisdiction over a state law claim,” a party may recover attorneys’ fees under state law giving a right thereto if the law “reflects a substantial policy of the state” and “does not run counter to a valid federal statute or rule of court.” See MRO Commc’ns, 197 F.3d at 1281 (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 259 n. 31, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)).

The controlling case applicable to the facts of this case is MRO Communications. In that case, the Ninth Circuit held that under Federal Rule of Civil Procedure 54(d)(2), a prevailing defendant could recover áttorney’s. fees incurred after a rejected offer of judgment made pursuant to Nevada state law. Id. Here, defendant made an offer of judgment pursuant to Nev.Rev.Stat. § 17.115. Defendant made its offer of judgment more than ten days before trial. Plaintiff rejected the offer but failed to obtain a more favorable judgment. Accordingly, under MRO Communications and § 17.115, the defendant may recover reasonable attorney’s fees.

Even so, plaintiff asserts several reasons why she believes an award of attorney’s fees in this case would be improper.

First, plaintiff argues that fees may only be awarded where the complaint was frivolous, groundless, or brought to harass. However, the case cited by plaintiff for this proposition — Bobby Berosini, Ltd. v. People for the Ethical Treatment of Animals, 114 Nev. 1348, 971 P.2d 383, 386-87 (1998) — involved an award of fees under Nevada Revised Statutes § 18.010, which authorizes a court to award attorney’s fees when a claim “was brought without reasonable ground or to harass the prevailing party.” As such, the case is inapplicable here, where the award of attorney’s fees is based on Nevada Revised Statutes § 17.115.

Second, plaintiff objects to an award of fees because defense counsel has not disclosed his fee agreement with Wal-Mart. Defense counsel argues that the fee agreement is protected by attorney-client -privilege but represents the rates set forth in the motion for attorney’s fees are the rates actually charged to and agreed to be paid by the defendant. (Def. Reply Ex. 1 (Kent. Decl. ¶23)). Plaintiff cites no law requiring disclosure of the defendant’s fee agreement before an award of fees. Defense counsel has represented that the rates are accurate, and the court finds the rates do not exceed the reasonable, customary rate in this community.

Third, plaintiff appears to argue that because defendant declined plaintiffs request to later settle the case for the offer-of-judgment amount that any award of fees is not merited. Plaintiff did not accept defendant’s formal offer to settle the case for $100,001.00 before it expired. Further, plaintiff waited until the eve of trial to attempt to accept the offer. By that time, the defendant had incurred a substantial amount in fees to prepare for trial and had no obligation to submit another offer of settlement.

Finally, plaintiff asserts that fees should be denied because defendant did not identify a federal rule allowing recovery of attorney’s fees. Defendant identified Federal Rule of Civil Procedure 54(d)(2), which in conjunction with the offer-of-judgment made pursuant to Nevada Re[1171]*1171vised Statutes § 17.115 provides a basis for recovery in this case.

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958 F. Supp. 2d 1165, 2013 WL 3832418, 2013 U.S. Dist. LEXIS 102901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beach-v-wal-mart-stores-inc-nvd-2013.