Iovino v. AmTrust Financial Services, Inc.

• Court: District Court, D. Nevada
• Decided: January 29, 2025
• Docket: 2:22-cv-01974
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 CARMEN IOVINO, 6 Case No. 2:22-cv-01974-APG-NJK Plaintiff, 7 Order v. 8 [Docket No. 192] AM TRUST FINANCIAL SERVICES, INC., 9 et al., 10 Defendants. 11 Pending before the Court is Defendants’ motion regarding the amount of sanctions to be 12 awarded. Docket No. 192. Plaintiff filed a response. Docket No. 195. Defendants filed a reply. 13 Docket No. 197. The matter is properly resolved without a hearing. See Local Rule 78-1. 14 I. BACKGROUND 15 On December 3, 2024, the Court granted Defendants’ request for sanctions. Docket No. 16 190 at 3. The Court ordered the parties to meet and confer to determine if they could agree upon 17 the sanction amount. Id. The parties could not agree, which resulted in the filing of the instant 18 motion. Docket No. 192. 19 II. ENTITLEMENT TO FEES 20 As a threshold matter, Plaintiff contends that sanctions are not warranted because his 21 conduct was substantially justified, as it was reasonable for him to seek this information in 22 discovery and to seek the Court’s intervention.1 Docket No. 195 at 10. Further, Plaintiff submits 23 that the only motion subject to the Court’s sanctions is the renewed motion to compel financial 24 information, and that “Defendants are procedurally barred for seeking attorney’s fees for unrelated 25 discovery motion work as their request is untimely and outside the scope of the actual motion filed 26 1 The fact that a party might consider its own position reasonable does not establish 27 substantial justification. See, e.g., Wood v. GEICO Casualty Co., 2016 WL 6069928, at *2 (D. Nev. Oct. 14, 2016) (quoting Flonnes v. Prop. & Cas. Co. of Hartford, 2012 WL 3730533, at *2 28 (D. Nev. Sept. 25, 2013)). 1 by Plaintiff.” Id. at 2. This argument is inappropriate in the context of the present dispute, as the 2 Court has already granted Defendants’ motion for sanctions. Docket No. 190 at 3. Plaintiff 3 essentially asks the Court to reconsider its prior ruling without addressing the standard for 4 reconsideration, which prohibits Plaintiff from raising new arguments when they could reasonably 5 have been raised earlier in the litigation. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 6 1985); see also Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). 7 Defendants properly requested sanctions for five discovery motions, see Docket No. 184 at 11, 8 and Plaintiff failed to respond to that request. Docket No. 190 at 3. The Court finds no reason to 9 reconsider its position that sanctions are appropriate. Accordingly, the Court will proceed to 10 determine the proper sanction amount. 11 III. LODESTAR CALCULATION 12 The amount of fees awardable under Rule 37 of the Federal Rules of Civil Procedure is 13 determined using the familiar lodestar approach. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 587 14 (D. Nev. 2013). Under the lodestar method, the Court determines a reasonable fee by multiplying 15 the number of hours reasonably expended by a reasonable hourly rate. See Hensley v. Eckerhart, 16 461 U.S. 424, 433 (1983). The lodestar figure is presumptively reasonable. Cunningham v. 17 County of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988).2 The Ninth Circuit has made clear that 18 “the district court is required to independently review [a] fee request even absent [] objections.” 19 Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992). 20 a. Hourly Rate 21 The first lodestar step is to calculate the attorneys’ reasonable hourly rates “according to 22 the prevailing market rates in the relevant community[.]” Blum v. Stenson, 465 U.S. 886, 895-96 23 & n.11 (1984). The party requesting attorneys’ fees must demonstrate that the hourly rates sought 24 are “in line with those prevailing in the community for similar services by lawyers of reasonably 25 comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). 26

27 2 Adjustments to the lodestar are proper in only “rare and exceptional cases.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). A departure from 28 the lodestar is not warranted in this case. 1 “Affidavits of the [movant’s] attorney and other attorneys regarding prevailing fees in the 2 community, and rate determinations in other cases, particularly those setting a rate for the 3 [movant’s] attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 4 of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). The Court may also rely on its 5 own familiarity with the rates in the community to analyze those sought in the pending case. 6 Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) 7 In this case, Defendants seek recovery for the time of three attorneys. Docket No. 192 at 8 8. Defendants’ counsel submitted a declaration elaborating on each attorney’s education and 9 experience. Docket No. 192-1 at 5. Defendants’ first attorney, Sheri Thome, requests an hourly 10 rate of $245. Docket No. 192 at 8. Thome, the regional managing partner at Wilson, Elser, 11 Moskowitz, Edelman & Dicker, has over 25 years of legal experience. Id. Defendants’ other 12 attorneys, Kathy McCarthy, with over 20 years of experience, and Jason Wigg, with over 25 years 13 of experience, seek an hourly rate of $205. Id. 14 Plaintiff does not dispute the reasonableness of these hourly rates. See Docket No.195. 15 Further, the Court, based on its own familiarity with attorneys in this District, concludes that these 16 hourly rates are reasonable. Rate determinations in other cases in the District of Nevada have 17 found hourly rates as much as $450 for a partner and $250 for an experienced associate to be the 18 prevailing market rate in this district. Sinanyan v. Luxury Suites Int’l, LLC, No. 2:15-cv-00225- 19 GMN-VCF, 2016 WL 4394484, at *4 (D. Nev. Aug. 17, 2016); see also Capital One, N.A. v. SFR 20 Invs. Pool 1, LLC, No. 2:17-cv-00604-RFB-DJA, 2019 WL 9100174, at *4, 7 (D. Nev. Sept. 24, 21 2019) (awarding hourly rates of $250 and $200 for associates with eight and five years of 22 experience); see also Crusher Designs, LLC v. Atlas Copco Powercrusher GmbH, 2015 WL 23 6163443, at *3 (D. Nev. Oct. 20, 2015) (awarding hourly rate of $450 to partner with substantial 24 litigation experience). 25 b. Hours Expended 26 The touchstone in determining the hours for which attorneys’ fees should be calculated is 27 whether the expenditure of time was reasonable. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 588 28 (D. Nev. 2013). The Court “has a great deal of discretion in determining the reasonableness of the 1 fee and, as a general rule, [an appellate court] will defer to its determination ... regarding the 2 reasonableness of the hours claimed by the [movant].” Prison Legal News v. Schwarzenegger, 3 608 F.3d 446, 453 (9th Cir. 2010) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 4 1992)). The reasonableness of hours expended depends on the specific circumstances of each case. 5 Camacho, 523 F.3d at 978. In reviewing the hours claimed, the Court may exclude hours related 6 to overstaffing, duplication, and excessiveness, or that are otherwise unnecessary. See, e.g., 7 Hensley, 461 U.S. at 433. In making the determination regarding the reasonableness of hours 8 expended on such motions, “the Court considers factors such as the complexity of the issues raised, 9 the need to review the record and pleadings, and the need to conduct legal research, in addition to 10 the length of the briefing.” See, e.g., Marrocco, 291 F.R.D. at 588. 11 Defendants seek to recover roughly 43 hours for responding to Plaintiff’s motion to compel 12 all other Nevada uninsured motorist claim files for claims between 2011 and present, roughly 30 13 hours for responding to Plaintiff’s motion to compel an in camera review, roughly 9 hours for 14 responding to Plaintiff’s motion to compel additional financial information, roughly 37 hours for 15 responding to Plaintiff’s omnibus motion to compel five separate categories of information, and 16 roughly 9 hours for responding to Plaintiff’s renewed motion to compel Defendants’ financial 17 information. Docket No. 192 at 6. The vast majority of these hours reflect time expended by 18 associate attorney Wigg, with less time expended by associate attorney McCarthy and managing 19 partner Thome. Id. at 7. Defendants argue that the time expended was reasonable as the motions, 20 came in “thick and fast,” and covered a broad range of issues. Id. 21 This is clearly an unreasonable request.3 See, e.g., Alutiiq Int’l Solutions, LLC v. Lyon, 22 2012 WL 4182026, at *2, 4 (D. Nev. Sept. 17, 2012) (reducing hours for motion to compel from 23 13.8 hours to 4.0 hours); Marrocco v. Hill, 291 F.R.D. 586, 589 (D. Nev. 2013) (reducing hours 24 3 While attorneys and their clients are free to staff matters as they see fit and spend time 25 working on matters as they see fit, they are not entitled to recover fees as sanctions for hours that are deemed to be excessive. See Aevoe Corp. v. Shenzhen Membrane Precise Electron Ltd., 2012 26 WL 2244262, * 10 (D. Nev. June 15, 2012) (“The court does not doubt that this amount of time was actually spent [by multiple attorneys]. However, while the law firm and its clients may agree 27 to multiple attorneys working on a case, the court will not impose sanctions ... for the entire amount.”) 28 1 for motion to compel to 15 hours); Izzo v. Wal-Mart Stores, Inc., 2016 WL 1337335, *4 (D. Nev. 2 Apr. 5, 2016) (reducing hours for opposition to motion to compel from 47.9 hours to 10.35 hours). 3 The Court will address each request in turn. 4 i. Plaintiff’s motion to compel all other Nevada UM claim files 5 Defendants seek to recover roughly 43 hours for responding to Plaintiff’s motion to compel 6 all other Nevada uninsured motorist claim files for claims between 2011 and present. Docket No. 7 192 at 6. On June 7, 2024, Wigg billed .3 hours for a meet and confer with Plaintiff’s counsel. 8 Docket No. 192-2 at 3. The case law in this District has long been clear that such time is not 9 recoverable absent unusual circumstances. See, e.g., Aevoe Corp. v. AE Tech Co., 2013 WL 10 5324787, at *6 & n.12 (D. Nev. Sept. 20, 2013) (collecting cases). Such time is not recoverable 11 here. 12 On June 16, 2024, Thome billed .7 hours to review Plaintiff’s motion and draft an email to 13 client. Docket No. 192-2 at 5. The Court finds that having a managing partner review a motion 14 and draft an email to be unnecessary, considering that two other attorneys are staffed on the matter. 15 Such time is not recoverable here. 16 On June 24, 2024, McCarthy made an entry of 6 hours for preparing the introduction and 17 fact section of Defendants’ response. Docket No. 192-2; see also Docket No. 114 at 2-6. These 18 two sections are essentially a summary of Defendants’ response and its factual context. See Docket 19 No. 114 at 2-6. In light of this, the Court finds that Defendants’ entry of 6 hours for this four-page 20 summary is unreasonable and reduces it to 1.5 hours. See also Izzo v. Wal-Mart Stores, Inc., No. 21 2:15-cv01142-JAD-NJK, 2016 WL 1337335, at *4 (D. Nev. Apr. 5, 2016) (finding that 22 Defendant’s entry of 1.5 hours for a one-page summary is unreasonable and reducing it to .75 23 hours). On June 25, 2024, McCarthy made an entry of five hours for preparing the section 24 opposing the production on the basis of relevance. Docket 192-2. The section is two pages long. 25 See Docket No. 114 at 9-11. In light of this, the Court finds that Defendants’ entry of 5 hours for 26 this two-page section is unreasonable and reduces it to 1 hour. On June 26, 2025, McCarthy billed 27 3.5 hours to prepare the section regarding burden and 4 hours to prepare the section regarding 28 confidentiality. Docket No. 192-2. The section ended up comprising roughly 5 pages. Docket 1 No. 114 at 13-17. In light of this, the Court finds that Defendants’ entry of 7.5 hours for this five- 2 page section is unreasonable and reduces it to 2 hours. 3 On June 25, 2024, Wigg billed 3.10 hours to revise his proposed declaration in support of 4 Defendants’ response. Docket No. 192-2. The declaration was roughly 2 pages long. Docket No. 5 114-1. The Court finds that Defendants’ entry of 3.10 hours is unreasonable and reduces it to 1 6 hour. On June 27 and 28, 2024, Wigg billed a total of 6.4 hours for supplemental legal research. 7 Docket No. 192-2 at 9, 11. As the motion was denied for lack of legal argument, the Court does 8 not find this supplemental legal research necessary in addition to all the other hours expended on 9 this motion. Such time is not recoverable here. On June 27, 2025, McCarthy billed 3.3 hours to 10 complete the opposition. The Court finds this unnecessary considering all the other hours spent 11 on this motion. Such time is not recoverable here. 12 Accordingly, the Court finds that the reasonable amount of time preparing the response is 13 5.5 hours, comprised of 4.5 hours for McCarthy and 1 hour for Wigg. 14 ii. Plaintiff’s motion for in camera review 15 Defendants seek to recover roughly 30 hours for responding to Plaintiff’s motion to compel 16 an in camera review of Plaintiff’s unredacted claim file. Docket No. 192 at 6. However, Plaintiff’s 17 motion to compel was denied as it was legally deficient and failed to provide any meaningful 18 analysis. Docket No. 152 at 1-2. The Court is certainly reluctant to penalize a winning attorney 19 for filing briefs that are well-researched, well-supported, and well-written. See Nadarajah v. 20 Holder, 569 F.3d 906, 922 (9th Cir. 2009) (“By and large, the court should defer to the winning 21 lawyer’s professional judgment as to how much time he was required to spend on the [motion 22 practice”); see also On Demand Direct Response, LLC v. McCart-Pollak, 2018 WL 2014067, at 23 *1 n.2 (D. Nev. Apr. 30, 2018) (discovery motions are not exempt from the normal briefing rules, 24 including that meaningfully developed argument must be provided). Having said that, the number 25 of hours worked are higher than the Court would expect given the lack of argument and legal 26 support in Plaintiff’s motion. See Docket No. 152 at 2. In short, the Court finds that a reasonable 27 amount of time spent should not have exceeded 8 hours. See Marrocco v. Hill, 291 F.R.D. 586 28 1 (D. Nev. 2013) (reducing 30.6 hours for a 28-page countermotion to compel to 15 hours). 2 Accordingly, the Court finds the reasonable hours spent are 8 hours for Wigg.4 3 iii. Plaintiff’s motions to compel production of additional financial 4 information 5 Defendants seek to recover roughly 9 hours for responding to Plaintiff’s motion to compel 6 production of additional financial information. Docket No. 192 at 6. Defendants also seek to 7 recover roughly 9 hours for responding to Plaintiff’s renewed motion to compel Defendant’s 8 financial information. Id. Plaintiff’s motions are largely identical. Compare Docket Nos. 142 9 and 180. Defendants’ responses are highly similar. Compare Docket Nos. 150 and 184. As such, 10 the Court finds Defendants’ work in opposing these two motions duplicative. Accordingly, the 11 Court finds the reasonable hours spent are 8 hours for Wigg. 12 iv. Plaintiff’s omnibus motion 13 Defendants seek to recover roughly 37 hours for responding to Plaintiff’s omnibus motion 14 to compel five separate categories of information. Docket No. 192 at 6. 15 On October 31, 2024, Wigg billed 2.1 hours to prepare and attend a meet and confer with 16 Plaintiff’s counsel. Docket No. 192-2 at 2. Such time is not recoverable here. See, e.g., Aevoe 17 Corp., 2013 WL 5324787, at *6 & n.12. 18 Further, the motion consists of roughly 24 pages of text, nearly half of which was 19 introductory or background discussion. See Docket No. 159. Moreover, Plaintiff’s motion failed 20 to provide legal authority or meaningful developed argument, see Docket No. 179 at 6, and 21 requested discovery that the Court previously denied, see id. at 7. Given the circumstances, the 22 Court finds a reasonable amount of time to be expended to have been 9 hours for Wigg. 23 24 25 26

27 4 On July 16, 2024, Thome billed .7 hours to review and supplement Defendants’ motion. Docket No. 192-2. The Court finds an award to Thome to be unreasonable as Wigg did the bulk 28 of the work on this opposition. See Docket No. 192-2 at 13-17. 1 c. Fees to be awarded 2 In light of the reasonable hours and rates determined above, the Court hearby calculates 3] the lodestar as follows: :

6 Files McCarthy 4.5 $922.50 [tn camera Review |Wige 8 Additional Wigg $205 $1,640 9 Financial 10 Information LomnibusMotion [wige | 12 Accordingly, the Court finds a lodestar amount of $6,252.50. 13) IV. CONCLUSION 14 For the reasons discussed above, Defendants’ motion regarding the amount of sanctions is 15] GRANTED in part and DENIED in part. The Court hereby awards Defendants $6,252.50 in 16] attorneys’ fees. Payment must be made no later than February 20, 2025. 17 IT IS SO ORDERED. 18 Dated: January 29, 2025 ye.

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