Phoenix Central v. Dean Witter Reynolds, Inc.

768 F. Supp. 702, 1991 U.S. Dist. LEXIS 10809, 1991 WL 145826
CourtDistrict Court, D. Arizona
DecidedJuly 12, 1991
DocketNo. CIV 90-1592-PHX-RGS
StatusPublished
Cited by3 cases

This text of 768 F. Supp. 702 (Phoenix Central v. Dean Witter Reynolds, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phoenix Central v. Dean Witter Reynolds, Inc., 768 F. Supp. 702, 1991 U.S. Dist. LEXIS 10809, 1991 WL 145826 (D. Ariz. 1991).

Opinion

ORDER

STRAND, District Judge.

On February 26, 1991, defendant filed a Motion for Sanctions pursuant to Federal Rules of Civil Procedure Rule 37, and 28 U.S.C. § 1927 for plaintiffs’ failure to engage in good faith discovery during depositions. This motion was followed by a Motion for Order Confirming Arbitration Award and Motion for Entry of Judgment in Favor of Dean Witter filed March 12, 1991. All the motions were then scheduled for oral argument which was heard April 8, 1991. The court having reviewed and considered the parties arguments presented in the memoranda, and having heard oral argument,

IT IS ORDERED granting defendant’s Motion for Sanctions pursuant to Federal Rules of Civil Procedure Rule 37 and 28 U.S.C. § 1927 against Recorp Partners, Inc., David P. Maniatis in his capacity as President of said corporation, Peter D. Maniatis, John D. Maniatis and counsel for all of said entities, G. Peter Spiess.

The court finds and concludes that the conduct engaged in by these individuals and corporate entities was unreasonable and vexatious and accordingly,

IT IS FURTHER ORDERED granting an award of one thousand dollars as a sanction and in part payment of attorneys’ fees related to this discovery dispute in favor of defendant and against the above mentioned corporation and each named individual, jointly and severally.

FURTHER ORDERED granting Dean Witter’s Motion for Order Confirming Arbitration pursuant to 9 U.S.C. § 9 of the Federal Arbitration Act affirming the arbitration award entered by the New York Stock Exchange arbitrators in favor of Dean Witter and against various individuals involved in the Maniatis groups for the amounts of $74,493.46 as to John D. Mania-tis, $19,055.50 as to Phoenix Central Partners, $146,591.58 against Recorp Partners, and $12,649.88 as to Recorp of America, Inc. together with reasonable attorneys’ fees and NYSE costs of $1,000.00. There was no award for Dean Witter as to Peter D. Maniatis.

FURTHER, having reviewed and considered the memoranda submitted by the parties and the arguments presented, the Court now finds and concludes that an award of attorneys’ fees is appropriate in this action as set forth in the arbitration award and pursuant to A.R.S. § 12-341.01.

ELIGIBILITY FOR ATTORNEYS’ FEES

Defendant is eligible for an award of attorneys’ fees in this contract action in view of the arbitration award and because it prevailed on all issues. The next inquiry is whether or not the defendant is “entitled” to such an award. Associated Indemnity Corp. v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985).

ENTITLEMENT TO ATTORNEYS’ FEES

In Warner, the Arizona Supreme Court set forth six standards to aid in the determination of whether attorneys’ fees should be awarded under the statute once eligibility has been established. They are as follows:

“(1) whether the unsuccessful party’s claim or defense was meritorious;
(2) whether the litigation could have been avoided or settled and the successful party’s efforts were completely superfluous in achieving the result;
(3) whether assessing fees against the unsuccessful party would cause an extreme hardship;
(4) whether the successful party prevailed with respect to all of the relief sought;
[704]*704(5) whether the legal question presented was novel and whether such claim or defense had previously been adjudicated in this jurisdiction; and
(6) whether the award would discourage other parties with tenable claims or defenses from litigating or defending legitimate contract issues for fear of incurring liability for substantial amounts of attorneys’ fees.”

Id. 143 Ariz. at 570, 694 P.2d at 1184.

The contractual relationship between the parties and the award of the arbitrators lead the Court to conclude that defendant is entitled to an award of attorneys’ fees with respect to this litigation.

DETERMINATION OF THE FEE

It remains for the District Court to determine what fee is “reasonable.” Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, at 1939, 76 L.Ed.2d 40 (1983). Factors to be considered in determining a reasonable fee award are set forth in Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App.1983). The procedure for the District Court to follow in setting an award of attorneys’ fees is set forth as follows in Hensley:

The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.
The district court also should exclude from this initial fee calculation hours that were not “reasonably expended.” S.Rep No. 94-1011, p. 6 (1978). Cases may be over staffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. ‘In the private sector, “billing judgment” is an important component in setting a fee. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.’ Copeland v. Marshall, 205 U.S.App.D.C. 390, 401; 641 F.2d 880, 891 (1980) (en banc).
The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.’

Id., 103 S.Ct. at 1939. Defendant Dean Witter’s Application for an Award of Attorneys’ Fees and the Affidavit of David L. Abney in support thereof and the statements of hours submitted set forth in detail the number of hours expended in this litigation by each person and the normal billing rates for all persons who have performed services.

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768 F. Supp. 702, 1991 U.S. Dist. LEXIS 10809, 1991 WL 145826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phoenix-central-v-dean-witter-reynolds-inc-azd-1991.