1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 SMITH & WESSON BRANDS, INC., Case No. 2:22-cv-01773-JCM-EJY SMITH & WESSON, INC., 5 Plaintiff, ORDER 6 v. 7 SW NORTH AMERICA, INC., 8 Defendant. 9 10 Pending before the Court is Plaintiffs’ Motion for Attorneys’ Fees (ECF No. 69). The Court 11 reviewed the Motion, Defendant’s Opposition (ECF No. 72), and Plaintiffs’ Reply (ECF No. 74). 12 I. Background 13 On July 5, 2023, the Court entered an Order granting Plaintiffs’ special motion to dismiss 14 Defendant’s counterclaims under NRS 41.660, Nevada’s anti-SLAPP statute. ECF No. 63. In its 15 current Motion, Plaintiffs argue they are entitled to a mandatory attorneys’ fees award of $33,125.00 16 under NRS 41.670(1)(a) because they prevailed on their special motion to dismiss. ECF No. 69 at 17 2-3, ECF No. 74 at 6.1 Plaintiffs contend the balance of the Kerr2 factors, as reflected in LR 54-14, 18 indicates the hours spent and rates charged were reasonable. ECF No. 69 at 4-8. 19 Defendant responds that the hourly rates charged by Plaintiffs’ counsel reflect the 20 Philadelphia market, not the Las Vegas market, and should be adjusted downward. ECF No. 72 at 21 5. Defendant argues the legal fees sought are too high for the work done, and Plaintiffs’ invoices 22 include some duplicate billing. Id. at 5-6. Defendant concludes that Plaintiffs’ request for additional 23 fees in connection with their Reply to Defendant’s Opposition should be denied. Id. at 6.3 24 1 Plaintiffs request $23,807.25 incurred in connection with their special motion to dismiss and $9,317.75 incurred 25 in connection with the instant Motion. ECF No. 69 at 2-3, ECF No. 74 at 6. 2 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). 26 3 Defendant also argues the Court already declined an award of attorneys’ fees; therefore, the current Motion should be denied. ECF No. 72 at 4. NRS 41.670(1)(a) states: “[i]f the court grants a special motion to dismiss filed 27 pursuant to NRS 41.660 … [t]he court shall award reasonable costs and attorney[s’] fees against whom the action was brought.” In accordance with the statute, and because Plaintiffs prevailed on their special motion to dismiss, an award 1 In their Reply, Plaintiffs argue their most senior attorney is more experienced than any of the 2 attorneys in the cases Defendant cites in support of its contentions. ECF No. 74 at 4. Plaintiffs 3 further argue that in Gunn v. Drage, Case No. 2:19-cv-2102-JCM-EJY, 2021 WL 848640, at *4 (D. 4 Nev. Mar. 5, 2021), which the Ninth Circuit affirmed in part at 2023 WL 3043651 (9th Cir. Apr. 21, 5 2023), the Court held rates between $525 and $675 were “reasonable and appropriate,” so counsel’s 6 rates (which range from $315 per hour to $675 per hour) are appropriate as well. Id. Plaintiffs argue 7 Defendant does not explain why the amount of time spent on the Reply related to the special motion 8 to dismiss was unreasonable and analogous case law supports Plaintiffs’ billing. Id. at 5. Finally, 9 Plaintiffs argue that they are entitled to attorneys’ fees incurred in connection with the instant Motion 10 and related briefing because there are other cases that “accommodat[e], consider[ ], and award[ ] 11 such fees.” Id. at n. 1. 12 II. Discussion 13 The Court has broad discretion in determining the reasonableness of attorney fees. Prison 14 Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (quoting Gates v. Deukmejian, 15 987 F.2d 1392, 1398 (9th Cir. 1992)).4 The Court applies the “lodestar method” when considering 16 fees, which “is calculated by multiplying the number of hours the prevailing party reasonably 17 expended on the litigation by a reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 18 973, 978 (9th Cir. 2008) (citing Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th 19 Cir.2001)). 20 A. Reasonableness of Hours Billed. 21 i. Special Motion to Dismiss. 22 Plaintiffs seek to recover attorneys’ fees for 14.8 hours billed by partner Hara K. Jacobs; 21.5 23 hours billed by partner Noah Robbins; and 2.4 hours billed by associate Madeleine Coles for a total 24 4 “[A] court may adjust the lodestar upward or downward using a ‘multiplier’ based on factors not subsumed in 25 the initial calculation of the lodestar.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). These factors include: “(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill requisite 26 to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) time limitations imposed by the client or the circumstances; (7) the amount involved and the 27 results obtained; (8) the experience, reputation and ability of the attorneys; (9) the ‘undesirability’ of the case; (10) the nature and length of the professional relationship with the client; and (11) awards in similar cases.” Id. at 1045 n.2 1 of 38.7 hours of work. ECF No. 69 at 3-4. The Court may exclude hours arising from overstaffing, 2 duplication, excessiveness or that are otherwise unnecessary. See, e.g., Hensley v. Eckerhart, 461 3 U.S. 424, 433-34 (1983); see also Cruz v. Alhambra School Dist., 601 F.Supp.2d 1183, 1191 (C.D. 4 Cal. 2009). Mr. Robbins, a partner, drafted and revised the special motion to dismiss. See, e.g., 5 ECF No. 69-2 at 3, 4, 13. Ms. Jacobs, also a partner, revised Mr. Robbins’ drafts. See, e.g., id. at 3, 6 4, 5, 13, 23. The Court finds it unusual and excessive to have two partners billing on one motion, 7 with one partner revising another partner’s work. For this reason, the Court reduces the time billed 8 on the motion to dismiss by the number of hours Ms. Jacobs billed to revise Mr. Robbins’ work. 9 The Court allows Mr. Robbins’ 21.5 hours and Ms. Coles’ 2.4 hours, for a total of 23.9 hours, billed 10 in connection with the special motion to dismiss. 11 ii. Motion for Attorneys’ Fees. 12 Plaintiffs seek attorneys’ fees for 8.9 hours billed by Ms. Coles, 4.9 hours billed by Mr. 13 Robbins, 4.1 hours billed by Ms. Jacobs, and 2.2 hours billed by paralegal Keith Garland incurred 14 in connection with the instant Motion for Attorneys’ Fees. ECF Nos. 69-1 at 4; 74-1 at 3.5 “The 15 party seeking an award of fees must submit evidence supporting the hours worked and the rates 16 claimed.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (citing 17 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “Where the documentation of hours is inadequate, 18 the district court may reduce the award accordingly.” Hensley, 461 U.S. at 433. 19 Here, Plaintiffs did not include invoices to support their fees on fees request. Instead, 20 Plaintiffs provide brief descriptions of the work done without billing statements. ECF Nos. 69-1 at 21 4; 74-1 at 3. Plaintiffs offer no explanation for their decision. Accordingly, the Court disallows Mr. 22 Garland’s 2.2 hours (paralegal time) as unsupported. The Court allows the 8.9 hours billed by Ms. 23 Coles on the Motion and Reply. Ms.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 SMITH & WESSON BRANDS, INC., Case No. 2:22-cv-01773-JCM-EJY SMITH & WESSON, INC., 5 Plaintiff, ORDER 6 v. 7 SW NORTH AMERICA, INC., 8 Defendant. 9 10 Pending before the Court is Plaintiffs’ Motion for Attorneys’ Fees (ECF No. 69). The Court 11 reviewed the Motion, Defendant’s Opposition (ECF No. 72), and Plaintiffs’ Reply (ECF No. 74). 12 I. Background 13 On July 5, 2023, the Court entered an Order granting Plaintiffs’ special motion to dismiss 14 Defendant’s counterclaims under NRS 41.660, Nevada’s anti-SLAPP statute. ECF No. 63. In its 15 current Motion, Plaintiffs argue they are entitled to a mandatory attorneys’ fees award of $33,125.00 16 under NRS 41.670(1)(a) because they prevailed on their special motion to dismiss. ECF No. 69 at 17 2-3, ECF No. 74 at 6.1 Plaintiffs contend the balance of the Kerr2 factors, as reflected in LR 54-14, 18 indicates the hours spent and rates charged were reasonable. ECF No. 69 at 4-8. 19 Defendant responds that the hourly rates charged by Plaintiffs’ counsel reflect the 20 Philadelphia market, not the Las Vegas market, and should be adjusted downward. ECF No. 72 at 21 5. Defendant argues the legal fees sought are too high for the work done, and Plaintiffs’ invoices 22 include some duplicate billing. Id. at 5-6. Defendant concludes that Plaintiffs’ request for additional 23 fees in connection with their Reply to Defendant’s Opposition should be denied. Id. at 6.3 24 1 Plaintiffs request $23,807.25 incurred in connection with their special motion to dismiss and $9,317.75 incurred 25 in connection with the instant Motion. ECF No. 69 at 2-3, ECF No. 74 at 6. 2 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). 26 3 Defendant also argues the Court already declined an award of attorneys’ fees; therefore, the current Motion should be denied. ECF No. 72 at 4. NRS 41.670(1)(a) states: “[i]f the court grants a special motion to dismiss filed 27 pursuant to NRS 41.660 … [t]he court shall award reasonable costs and attorney[s’] fees against whom the action was brought.” In accordance with the statute, and because Plaintiffs prevailed on their special motion to dismiss, an award 1 In their Reply, Plaintiffs argue their most senior attorney is more experienced than any of the 2 attorneys in the cases Defendant cites in support of its contentions. ECF No. 74 at 4. Plaintiffs 3 further argue that in Gunn v. Drage, Case No. 2:19-cv-2102-JCM-EJY, 2021 WL 848640, at *4 (D. 4 Nev. Mar. 5, 2021), which the Ninth Circuit affirmed in part at 2023 WL 3043651 (9th Cir. Apr. 21, 5 2023), the Court held rates between $525 and $675 were “reasonable and appropriate,” so counsel’s 6 rates (which range from $315 per hour to $675 per hour) are appropriate as well. Id. Plaintiffs argue 7 Defendant does not explain why the amount of time spent on the Reply related to the special motion 8 to dismiss was unreasonable and analogous case law supports Plaintiffs’ billing. Id. at 5. Finally, 9 Plaintiffs argue that they are entitled to attorneys’ fees incurred in connection with the instant Motion 10 and related briefing because there are other cases that “accommodat[e], consider[ ], and award[ ] 11 such fees.” Id. at n. 1. 12 II. Discussion 13 The Court has broad discretion in determining the reasonableness of attorney fees. Prison 14 Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (quoting Gates v. Deukmejian, 15 987 F.2d 1392, 1398 (9th Cir. 1992)).4 The Court applies the “lodestar method” when considering 16 fees, which “is calculated by multiplying the number of hours the prevailing party reasonably 17 expended on the litigation by a reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 18 973, 978 (9th Cir. 2008) (citing Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th 19 Cir.2001)). 20 A. Reasonableness of Hours Billed. 21 i. Special Motion to Dismiss. 22 Plaintiffs seek to recover attorneys’ fees for 14.8 hours billed by partner Hara K. Jacobs; 21.5 23 hours billed by partner Noah Robbins; and 2.4 hours billed by associate Madeleine Coles for a total 24 4 “[A] court may adjust the lodestar upward or downward using a ‘multiplier’ based on factors not subsumed in 25 the initial calculation of the lodestar.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). These factors include: “(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill requisite 26 to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) time limitations imposed by the client or the circumstances; (7) the amount involved and the 27 results obtained; (8) the experience, reputation and ability of the attorneys; (9) the ‘undesirability’ of the case; (10) the nature and length of the professional relationship with the client; and (11) awards in similar cases.” Id. at 1045 n.2 1 of 38.7 hours of work. ECF No. 69 at 3-4. The Court may exclude hours arising from overstaffing, 2 duplication, excessiveness or that are otherwise unnecessary. See, e.g., Hensley v. Eckerhart, 461 3 U.S. 424, 433-34 (1983); see also Cruz v. Alhambra School Dist., 601 F.Supp.2d 1183, 1191 (C.D. 4 Cal. 2009). Mr. Robbins, a partner, drafted and revised the special motion to dismiss. See, e.g., 5 ECF No. 69-2 at 3, 4, 13. Ms. Jacobs, also a partner, revised Mr. Robbins’ drafts. See, e.g., id. at 3, 6 4, 5, 13, 23. The Court finds it unusual and excessive to have two partners billing on one motion, 7 with one partner revising another partner’s work. For this reason, the Court reduces the time billed 8 on the motion to dismiss by the number of hours Ms. Jacobs billed to revise Mr. Robbins’ work. 9 The Court allows Mr. Robbins’ 21.5 hours and Ms. Coles’ 2.4 hours, for a total of 23.9 hours, billed 10 in connection with the special motion to dismiss. 11 ii. Motion for Attorneys’ Fees. 12 Plaintiffs seek attorneys’ fees for 8.9 hours billed by Ms. Coles, 4.9 hours billed by Mr. 13 Robbins, 4.1 hours billed by Ms. Jacobs, and 2.2 hours billed by paralegal Keith Garland incurred 14 in connection with the instant Motion for Attorneys’ Fees. ECF Nos. 69-1 at 4; 74-1 at 3.5 “The 15 party seeking an award of fees must submit evidence supporting the hours worked and the rates 16 claimed.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (citing 17 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “Where the documentation of hours is inadequate, 18 the district court may reduce the award accordingly.” Hensley, 461 U.S. at 433. 19 Here, Plaintiffs did not include invoices to support their fees on fees request. Instead, 20 Plaintiffs provide brief descriptions of the work done without billing statements. ECF Nos. 69-1 at 21 4; 74-1 at 3. Plaintiffs offer no explanation for their decision. Accordingly, the Court disallows Mr. 22 Garland’s 2.2 hours (paralegal time) as unsupported. The Court allows the 8.9 hours billed by Ms. 23 Coles on the Motion and Reply. Ms. Jacobs spent 3.3 hours on the Motion and Mr. Robbins spent 24 25
26 5 Defendant opposes this “fees on fees” request (ECF No. 72 at 6); however, “[i]n statutory fee cases, federal courts, including our own, have uniformly held that time spent in establishing the entitlement to and amount of the fee 27 is compensable.” In re Nucorp Energy, Inc., 764 F.2d 655, 659–660 (9th Cir. 1985). “This is so because it would be inconsistent to dilute a fees award by refusing to compensate attorneys for the time they reasonably spent in establishing 1 4 hours on the Reply, which the Court finds non-duplicative and reasonable. The Court awards a 2 total of 16.2 hours billed in connection with the Motion for Attorneys’ Fees. 3 B. Reasonableness of Rates Billed. 4 Plaintiffs ask the Court to apply the following billing rates: $675.00 per hour for Ms. Jacobs; 5 $607.50 for Mr. Robbins; and $315.00 for Ms. Coles. ECF No. 69 at 3-4. When determining the 6 reasonable hourly rate to be applied to an award of attorneys’ fees, the Court must consider the 7 “prevailing market rates in the relevant community” and compare the rates of “lawyers of reasonably 8 comparable skill, experience and reputation” to the rates requested in the case before the Court. 9 Soule v. P.F. Chang’s China Bistro, Inc., Case No. 2:18-cv-02239-GMN-GWF, 2019 WL 3416667, 10 at *1 (D. Nev. July 26, 2019) (internal citation omitted). 11 The Court recently found that when counsel is an “experienced litigator … with a career 12 spanning more than two decades … there is ample case law establishing that the upper range of 13 prevailing rates in this District is $450 for partners.”6 Doe v. Burns, Case No. 2:22-cv-0476-GMN- 14 VCF, 2023 WL 2020961, at *3 (D. Nev. Feb. 14, 2023). See also Wunderlich v. State Farm Mut. 15 Auto. Ins. Co., Case No. 2:21-cv-00486-JAD-EJY, 2021 WL 6138236, at *2 (D. Nev. Dec. 28, 2021) 16 (finding that a reasonable rate for a 30-year practitioner, whose reputation in the community was 17 well-known, was $550 per hour). Given that Ms. Jacobs and Mr. Robbins’ proposed rates exceed 18 the upper threshold for the Las Vegas market ($450-$550), the Court declines to award the rates 19 requested. In recognition of Ms. Jacobs’ over 25 years of experience in light of the reasonable hourly 20 rate in the District of Nevada, the Court finds a reasonable hourly rate for her representation is $550 21 per hour. Mr. Robbins has over 15 years of litigation experience. ECF No. 69 at 7. The Court 22 recently found that a 19-year practitioner’s billing rate of $435 was reasonable. Kurian v. SNAPS 23 Holding Co., Case No. 2:19-cv-01757-GMN-EJY, 2023 WL 7014963, at *2 (D. Nev. Oct. 24, 2023). 24 Mr. Robbins’ rate ($607.50) is 90% of Ms. Jacobs’ rate ($675.00), which the Court applies to award 25 Mr. Robbins the hourly rate of $495. 26
27 6 Plaintiffs cite to Gunn v. Drage; however, this case is distinguishable as the Gunn dispute began in California 1 The Court finds Ms. Coles’ rate of $315 per hour is reasonable as an associate “with 2 experience in commercial litigation and media law.” See Sciara v. Campbell, Case No. 2:18-cv- 3 01700-DJA, 2021 WL 8321866, at *3 (D. Nev. Apr. 28, 2021) (finding an appropriate hourly rate 4 for an associate with 10 years of experience to be $380-$390, and an associate with approximately 5 4 years of experience to be $325). Nonetheless, the Court finds Ms. Coles’ work on the motion to 6 dismiss was akin to that of a paralegal. ECF No. 69-2 at 6 (“review[ed the Motion] … and format 7 … for filing in the District of Nevada”); id. at 9 (“[r]eview defendant’s response to anti-slapp 8 motion”); id. at 13 (“[p]repare reply in support of anti-slapp motion for filing”); id. at 14 (“[c]omplete 9 final edit and review of reply”); and id. at 24 (“[r]eview opposition to motion for leave to supplement 10 and format[ted] for filing”). “[W]here tasks could be performed by a paralegal, the amount awarded 11 [should] be based on a paralegal rate.” Rowland v. Metro. Life Ins. Co., Case No. SACV-08-00714- 12 JVS (FFMx), 2009 WL 10673596, at *4 (C.D. Cal. Aug. 13, 2009). The typical range in this District 13 for paralegal hourly rates is between $75 and $125. See, e.g., Int'l Inst. of Mgmt. v. Org. for Econ. 14 Coop. & Dev., Case No. 2:18-cv-01748-JCM-GWF, 2019 WL 5578485, at *7 (D. Nev. Oct. 29, 15 2019) (in copyright infringement case, noting that the typical range for paralegal rates in Las Vegas 16 range from $75 to $125); see also Sciara, 2021 WL 8321866, at *3 (“[g]enerally, paralegals 17 command rates between $75 and $125”). In recognition of Ms. Coles’ role as a practicing attorney, 18 the Court finds the upper end paralegal range, at $125 an hour, to be reasonably applied to the work 19 she performed on the special motion to dismiss. 20 The work Ms. Coles did on the Motion for Attorneys’ Fees and supporting Reply is 21 appropriately ascribed to an attorney with the exception of .06 hours spent “reviewing time sheets 22 and calculating time and fees.” ECF No. 69-1 at 4. Thus, while .06 hours are calculated at the 23 paralegal rate, the remaining hours billed (8.3) are calculated at the associate rate of $315 per hour. 24 In sum, the Court awards the following: 25 Ms. Jacobs: 3.3 hours x $550 per hour = $1,815.00 26 Mr. Robbins: 25.5 hours x $495 per hour = $12,622.50 27 Ms. Coles: 8.3 hours x $315 per hour = $2,614.50 1 The total fee award is $17,427.00 2 III. Order 3 Accordingly, IT IS HEREBY ORDERED that Defendant is to pay Plaintiffs the total amount 4 of $17,427.00 in attorneys’ fees associated with Plaintiffs’ special motion to dismiss and Motion for 5 Attorneys’ Fees. 6 IT IS FURTHER ORDERED that this payment must be made no later than thirty (30) days 7 after the date of this Order. 8 Dated this 3rd day of November, 2023. 9
10 ELAYNA J. YOUCHAH 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27