1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 BROOKS HOFFMANN, 10 Plaintiff, Case No. 3:19-CV-00032-RCJ-CBC 11 vs. ORDER 12 SHEA MURPHY,

13 Defendant. 14 15 Ms. Katherine Parks, counsel for Defendant Shea Murphy, moves for attorney’s fees after 16 dismissal of this case. (ECF No. 24.) The Court already found the case to be frivolous and now 17 finds that the fees requested are reasonable. Therefore, the Court grants the motion. 18 FACTUAL BACKGROUND 19 Plaintiff sued Defendant for six causes of action based on state and federal law regarding 20 an incident that took place at the Lovelock Municipal Swimming Pool. The Court granted 21 Defendant’s motion to dismiss with prejudice, finding the case to be frivolous. (ECF No. 22.) Ms. 22 Parks then filed the instant motion for attorney’s fees. (ECF No. 24.) She swears by affidavit to

23 have worked 28.6 hours and charged $180 per hour. (ECF No. 24 Ex. 1.) Multiplying these 24 numbers, she requests a total of $5148. (Id.) 1 LEGAL STANDARD 2 A “court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee 3 as part of the costs” for any action brought under

.

(b). A 4 prevailing defendant may be awarded attorney’s fees if plaintiff’s action was frivolous. Fox v. 5 Vice,

(2011) (quoting Christianburg Garment Co. v. EEOC,

, 419– 6 20 (1978)). 7 The touchstone for reasonableness of attorney’s fees is the lodestar figure, which is the 8 amount of hours the attorney reasonably expended in the case multiplied by the reasonable hourly 9 rate. Hensley v. Eckerhart,

(1983). There is a strong presumption that the 10 lodestar amount is a reasonable amount. Jordan v. Multnomah Cty.,

, 1262 (9th Cir. 11 1987) (citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,

, 565 12 (1986)). However, this presumption may be overcome on consideration of twelve factors:

13 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, 14 (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, 15 (5) the customary fee, (6) whether the fee is fixed or contingent, 16 (7) time limitations imposed by the client or the circumstances, (8) the amount involved, and the results obtained, 17 (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, 18 (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 19 20 Kerr v. Screen Extras Guild, Inc.,

(9th Cir. 1975) (citing Johnson v. Georgia 21 Highway Express, Inc.,

(5th Cir. 1974), abrogated on other grounds by City of 22 Burlington v. Dague,

(1992)); LR 54-14(b)(3). 23 /// 24 /// 1 ANALYSIS 2 Following Ms. Parks’ request for attorney’s fees, Plaintiff filed what this Court construed 3 as a motion for extension of time (ECF Nos. 26 and 27). In granting this motion, the Court 4 reminded Plaintiff that LR 54-1(e) requires specific identification of disputed charges, the 5 particular basis for the opposition, and supporting affidavits if necessary. (ECF No. 28 at 1:13– 6 16.) Despite this reminder, Plaintiff’s response fails to identify any specific charges disputed 7 except one. In fact, the vast majority of Plaintiff’s response attempts to reargue the merits of the 8 underlying case. 9 The only exception is where Plaintiff alleges that Ms. Parks was counsel for defendants in 10 a separate case regarding the same underlying conduct. (ECF No. 29 at 3:18–4:14.) Plaintiff argues 11 that Ms. Parks’ billing is duplicative, and therefore unreasonable, due to her earlier involvement. 12 Ms. Parks contends that her familiarity with the underlying facts is irrelevant as Ms. Murphy was

13 not a defendant in the prior case and the claims in the instant case differed from the claims brought 14 in the prior case. (ECF No. 30 at 3:1–17.) 15 While familiarity with underlying facts may somewhat reduce the amount of time 16 necessary to familiarize oneself with a case, such familiarity provides only slight benefit where the 17 parties and the claims differ. Defendant was not a party in the first case, merely a subpoenaed 18 witness who was not actually called to testify. The claims brought by Plaintiff in the first case were 19 for defamation, breach of contract, tortious breach of contract, breach of the covenant of good faith 20 and fair dealing, intentional infliction of emotional distress, and negligent infliction of emotional 21 distress. (ECF No. 8 Ex. 1.) Here, the claims brought by Plaintiff are entirely different, with the 22 possible exception of the state tort claims. However, even if those underlying state tort claims are

23 similar, they were dismissed on the merits via jury verdict in the first case and dismissed as 24 untimely in the instant case, and therefore required a new and different legal analysis than that 1 originally used. Accordingly, the Court finds that Ms. Parks’ familiarity with the underlying facts 2 is not sufficient to render the requested fee award duplicative or unreasonable. 3 In the instant case, Plaintiff’s action was deemed frivolous by the Court. (See ECF No. 22 4 at 3:12–13 (“Little analysis is needed. The Plaintiff’s claims are frivolous and should be dismissed 5 with prejudice for failure to state a claim.”).) Consequently, attorney’s fees are appropriate, and 6 the Court need therefore only determine whether the amount requested is reasonable. 7 Ms. Parks requests a total of $5,148, representing 28.6 hours of labor at an hourly rate of 8 $180. Analysis of rates in the relevant community—the Reno legal community—shows that her 9 hourly rate is reasonable. See, e.g., Sanchez v. Elizondo, No. 3:15-CV-474-RCJ-CBC,

5833052, at *2 (D. Nev. Nov. 7, 2018) (allowing hourly rate of $400); Tr. of N. Nevada Operating 11 Engineers Health & Welfare Tr. Fund v. Mach 4 Constr., LLC, No. 3:08-CV-578-LRH-RAM, 12

, at *2 (D. Nev. Sept. 18, 2013) (allowing hourly rate of $200).

13 Ms. Parks swears by affidavit that she reasonably spent 28.6 hours on the case and provides 14 documentation of her time spent. (ECF No. 24 Ex. 1.) Plaintiff provides no meritorious objection 15 to this figure. The Court is aware that other cases with successful motions to dismiss have ended 16 with fewer hours spent. See Tracy v. CEO, Successor for Deutsche Nat’l Tr. Co., No. 3:11-CV- 17 436-LRH-VPC,

, at *2 (D. Nev. July 26, 2012) (expenditure of eighteen hours 18 in a case where defendant’s motion to dismiss was granted and motion for attorney’s fees was the 19 123rd entry in the docket). Nevertheless, the handwritten complaint and oppositional brief was 20 largely unintelligible raising frivolous claims and arguments. Thus, the Court believes that the time 21 spent is reasonable based on Ms. Parks’ affidavit and supporting documentation. 22 The twelve factors largely indicate that that the award is reasonable. Six of the twelve

23 factors weigh in favor of granting the full award. Ms. Parks spent 28.6 hours litigating this case. 24 The issues involved were not novel but reasonably required extra work, because the filings were 1 handwritten and largely incomprehensible. The Court already found that the $180 per hour was a 2 modest amount for attorney’s in the area. She quickly succeeded in the litigation by winning on a 3 motion to dismiss. Ms. Parks is a respected attorney in the area having practiced for over twenty 4 years. Lastly, she became acquainted with Defendant from the previous lawsuit seven years ago. 5 The other factors either disfavor finding that the award was not applicable or are not helpful 6 for this analysis. The case did not require extraordinary skill—winning a motion to dismiss on a 7 case that the Court deemed to be frivolous. Ms. Parks admits that she did not forego other 8 employment to take this case. The fee was at a fixed rate. There were not extra time limits imposed 9 on Ms. Parks. The case was not “undesirable.” The Court is unaware of a court that deemed an 10 award of $5,148 in similar circumstances appropriate or not. 11 Since more factors favor finding that award appropriate than not and the strong 12 presumption of reasonableness for lodestar figures, the Court declines to deviate from the lodestar

13 figure provided by Ms. Parks. Accordingly, the Court grants Ms. Parks’ motion. 14 The Court now turns to Plaintiff’s requests leave to make a supplemental filing in response 15 to Ms. Parks’ motion for attorney’s fees. A court may grant leave to make supplemental filings 16 only where there is good cause. LR 7-2(g). Here, Plaintiff does not present good cause but merely 17 attempts to reargue the merits of the underlying case once again. Therefore, the Court denies 18 Plaintiff’s motion. 19 Finally, because the Court denies Plaintiff’s motion to make a supplemental filing, 20 Defendant’s motion to strike (ECF No. 32) is moot. Accordingly, the Court denies that motion. 21 /// 22 ///

23 /// 24 /// 1 CONCLUSION 2 IT IS HEREBY ORDERED that Defendant’s Motion for Attorney’s Fees and Costs (ECF 3 || No. 24) is GRANTED. Attorney’s fees are awarded to Shea Murphy and against Brooks Hoffman 4 || in the amount of $5,148. 5 IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Make a Supplemental 6 || Filing (ECF No. 31) is DENIED. 7 IT IS FURTHER ORDERED that Defendant’s Motion to Strike (ECF No. 32) is DENIED 8 |} AS MOOT. 9 IT IS SO ORDERED. 19 || Dated: This 2nd day of March, 2020. 11 12 £4 oe ROBERA JONES 13 United Stateg District Judge 14 15 16 17 18 19 20 21 22 23 24

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