Emtek (Shenzhen) Co., Ltd v. Waian Llc

• Court: District Court, D. Nevada
• Decided: January 27, 2021
• Docket: 2:19-cv-00927
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 EMTEK (SHENZHEN CO., LTD., a foreign Case No. 2:19-cv-00927-GMN-EJY limited liability company, 5 Plaintiff, 6 ORDER v. 7

WAIAN LLC, OWEN S. WONG and 8 EMTEK INTERNATIONAL LLC,

9 Defendants.

11 Pending before the Court is Plaintiff’s Revised Memorandum of Attorney’s Fees and Costs 12 (ECF No. 56). The Court has considered the Revised Memorandum and Defendant’s Response Brief 13 (ECF No. 57). 14 I. Discussion 15 As previously stated by the Court, the Court enjoys “a great deal of discretion in determining 16 the reasonableness of the fee and, as a general rule, [an appellate court] will defer to its determination 17 ... regarding the reasonableness of the hours claimed by the [movant].” Prison Legal News v. 18 Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (quoting Gates v. Deukmejian, 987 F.2d 1392, 19 1398 (9th Cir. 1992)). When reviewing hours claimed by the party to whom fees have been awarded, 20 the Court may exclude hours arising from overstaffing, duplication, excessiveness or that are 21 otherwise unnecessary. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Cruz v. 22 Alhambra School Dist., 601 F.Supp.2d 1183, 1191 (C.D. Cal. 2009). When determining the 23 reasonable hourly rate to be applied to an award of attorney’s fees, the Court must consider the 24 “prevailing market rates in the relevant community” and compare the rates of “lawyers of reasonably 25 comparable skill, experience and reputation” to the rates requested in the case before the Court. 26 Soule v. P.F. Chang’s China Bistro, Inc., Case No. 2:18-cv-02239-GMN-GWF, 2019 WL 3416667, 27 at *1 (D. Nev. July 26, 2019) (internal citation omitted). This is a two step process. The first step 1 requires the Court to “calculate the lodestar amount by” multiplying “the number of hours reasonably 2 expended on the” motion at issue “by a reasonable hourly rate.” Id. (citations omitted). The second 3 step requires the Court to consider adjusting the lodestar amount upward or downward, something 4 done “only on rare and exceptional occasions, … using a multiplier based on factors not subsumed 5 in the initial calculation of the lodestar.” Id. citing Van Gerwen v. Guarantee Mut. Life Co., 214 6 F.3d 1041, 1045 (9th Cir. 2000) (internal brackets removed). 7 Plaintiff’s counsel, Mr. Pernsteiner, a partner with Louis Brisbois Bisgaard & Smith, charges 8 $350 per hour for his time. Defendant does not object to this hourly rate. ECF No. 57 at 3. Counsel 9 for Plaintiff further represents that he spent 26 hours “in connection with attempting to secure 10 Defendants’ compliance with, and response to, Plaintiff’s written discovery requests served on May 11 7, 2020.” ECF No. 56 at 2. Counsel attaches billing records to support this representation. ECF 12 No. 56-1. 13 Defendant contends that the 26 hours requested by Plaintiff includes time Counsel for 14 Plaintiff would have spent reviewing documents placed in a drop box irrespective of the Motion to 15 Compel and, for this reason, these hours should not be included in the amounts awarded to Plaintiff. 16 ECF No. 57 at 4. A review of Counsel for Plaintiff’s time shows Counsel spent 1.1 hours on July 17 28, 2020, and 2.1 hours on August 4, 2020 analyzing documents in the drop box. ECF No. 56-1. 18 The time record states that this time was spent in “formulation of motion to compel on unanswered 19 discovery responses.” Id. Given that Defendant concedes that over 1,200 pages of Bates stamped 20 documents were produced to Plaintiff, even with a detailed index (see ECF No. 57 at 3), the Court 21 does not find this time excessive. 22 Defendant also complains that Counsel performed “non-attorney work” such as finalizing 23 the motion to compel, preparing a supporting declaration, and preparing exhibits for filing. Id. at 6. 24 The Court also rejects this argument. While it is true that some firms have paralegals or assistants 25 who prepare declarations and exhibits, it is neither unheard of nor improper for Counsel to do so 26 himself. The amount of time spent in these endeavors is also not excessive. 27 Finally, Defendant complains that Plaintiff’s 16 page Motion and three page Declaration 1 || hours of time Plaintiff's Counsel spent preparing the Reply brief. Further, if one reduces the □ 2 || hours by the 3.2 hours Counsel for Plaintiff spent reviewing more than 1,200 pages of documents 3 || preparation for the Motion, this reduces the total amount of time for drafting and finalizing Plaintiff 4 || Motion and Reply to 22.8 hours. There is no duplication of work represented in the billing recor 5 || as Counsel for Plaintiff did all the work himself. Research was not excessive, nor was drafting tim 6 || The only time billed that the Court will not allow is the .3 entry for analyzing correspondence ai 7 || updating discovery information received from opposing counsel, and the .40 entry for reviewing tl 8 || Court’s Order on the Motion to Compel. This deducts $525 from the request for fees. No costs a 9 || requested. 10 |} IY. Order 11 Accordingly, 12 IT IS HEREBY ORDERED that the Revised Memorandum of Attorney’s Fees and Cos 13 || seeking fees and no costs is GRANTED in the amount of $8,575.00. 14 IT IS FURTHER ORDERED that Defendant shall pay this amount to Counsel for Plainti 15 || within thirty (30) days of the date of this Order. 16 17 Dated this 27th day of January, 2021 18 19 20 . ELAYNA J. Y Hi 21 AYN, STATES wee JUDGE 22 23 24 25 26 27 28