Opinion
CV-21-00538-TUC-JGZ
10-18-2022
Larisa F Stokes Trust, Plaintiff, v. Roberta Franzheim, Defendant.
ORDER
Jeniffer G. Zipps United States District Judge
Pending before the Court is Plaintiff's Application for Attorneys' Fees and Taxable Costs. (Doc. 33.) On August 29, 2022 the Court granted, in part, Plaintiff's Motion to Compel and for Civil Contempt (Doc. 26), ordering Defendant to pay Plaintiff's reasonable attorneys' fees and taxable costs incurred after May 18, 2022. (Doc. 32.) The Court reserved ruling on the remaining portions of the Motion to Compel pending the return of the Portrait. Plaintiff was directed to file an application for such fees pursuant to Federal Rule of Civil Procedure 54(d)(2) and Local Rule 54.2, and a separate request for taxable costs pursuant to Local Rule 54.1(a). On August 31, 2022, Plaintiffs filed the present Application.
At the September 1, 2022 hearing on the Motion to Compel, the parties informed the Court that the Portrait had been returned to Plaintiff and the Court discharged the order to show cause. Upon Defendant's request for more time to negotiate, the Court informed that parties that the Application for Attorneys' Fees would be ruled on after the time to file a response had passed. Defendant has not filed a response to the Application, nor requested an extension of time to respond. For the following reasons, the Court will grant the Application in part and award a total of $9,240.00 in attorneys' fees. Plaintiff is granted leave to separately re-file its bill of costs under Local Rule 54.1(a).
I. Discussion
First, Plaintiff is entitled to fees. On August 29, 2022, the Court ordered Defendant to pay Plaintiff's reasonable attorneys' fees and taxable costs incurred after May 18, 2022 in connection with obtaining compliance with the Court's Orders. (Doc. 32 at 3.) The Court did so as an exercise of its inherent civil contempt powers to sanction Defendant for failing to comply with the Court's May 18 2022 Order and to compensate Plaintiff for losses sustained by Defendant's noncompliance. See Shell Offshore, Inc. v. Greenpeace, Inc., 815 F.3d 623, 629 (9th Cir 2016); Perry v. O'Donnell, 759 F.2d 702, 705 (9th Cir. 1985).
Plaintiff requests a total of $9,240.00 in attorneys' fees and $224.60 in taxable costs incurred since May 18, 2022. Plaintiff's Application complies with Local Rules 54.2(d)-(e), providing the required statement of consultation, fee agreement, task-based itemized statement of fees, and affidavit of moving counsel. However, Plaintiff's request for taxable costs does not comply with Local Rule 54.1(a), which requires the filing of a separate bill of costs on a form provided by the Clerk. Compliance with Local Rule 54.1(a) is mandatory. See Gilbert MH LLC v. Gilbert Fam. Hosp. LLC, No. CV 18-04046-PHX-SPL, 2021 WL 227097 at *5 (D. Ariz. Jan 26, 2022). Here, instead of submitting a separate bill of costs, Plaintiff included two itemized costs for service of process in its Application for Attorneys' Fees. Because Plaintiff's request for taxable costs was timely filed, as directed by the Court's August 29 2022 Order (see Doc. 32 at 3), Plaintiff will be granted leave to re-file it separately. See Delieutraz v. Johnson, No. CV-11-08210-PCT-NVW, 2013 WL 1498949, at *1 (D. Ariz. Apr. 11, 2013) (granting leave to re-file motion for taxable costs after Plaintiff timely, but improperly, filed for taxable costs under District of Arizona rules).
The form may be found on the District of Arizona's website under Forms, AO 133 -Bill of Costs. See https://www.azd.uscourts.gov/forms.
Plaintiff also filed for costs with its first Motion for Attorney Fees (Doc. 25) on May 23, 2022, less than fourteen days after the entry of judgment on May 18, 2022. While that motion was ultimately denied because Plaintiff was not entitled to fees for a default action under Arizona statute, the Court recognizes that Plaintiff timely preserved its request for taxable costs.
The Court has reviewed Plaintiff's Application for Attorneys' Fees and supporting memorandum, as well as the record and relevant fee factors, and finds Plaintiff's fee request reasonable. See LRCiv 54.2(c)(3) (enumerating factors to be applied in evaluating reasonableness). The sum of $9,240.00 is calculated from a total of 52.8 hours from May 18, 2022 to August 30, 2022. (Doc. 33-1 at 8-12.) Notably, Plaintiff has billed nothing for all entries between May 18, 2022 and May 26, 2022; those tasks did not involve obtaining Defendant's compliance with the May 18 Order.
The Court finds that Plaintiff has established that its attorneys' hours and hourly rates are reasonable. Counsel billed at reasonable rates based on their experience in Arizona practice: Robert Sullivan billed a $300 senior litigator hourly rate, as a shareholder with nearly 25 years' experience in Arizona, and Jeremiah Sullivan billed a $150 law clerk hourly rate, as a third-year law student ranked in the top 15 of his class with experience as an editor on Catholic University Law Review. (Doc. 33 at 3.) The prevailing hourly rate for experienced litigators in the District of Arizona is between $300 and $350 an hour. See Barrio v. Gisa Investments LLC, No. CV-20-00991-PHX-SPL, 2021 WL 1947507 at *2 (D. Ariz. May 14, 2021) (collecting cases).
Once a party establishes its entitlement to fees and meets the minimum requirements in its application and affidavit for fees, the burden shifts to the opposing party to demonstrate the unreasonableness of the requested fees. Gilbert MH LLC, 2021 WL 5412845 at *3 (quoting Nolan v. Starlight Pines Homeowners Ass'n, 167 P.3d 1277, 1286 (Ariz.Ct.App. 2007)). If the opposing party does not make a showing of unreasonableness, or fails to dispute the fees, the requesting party is entitled to full payment. Id. Defendant has failed to respond to Plaintiff's attorney fee application and has not challenged Plaintiff's fee submissions. Thus, the Court will award Plaintiff the full $9,240.00 in attorneys' fees.
Accordingly, IT IS ORDERED that the remaining portions of the Motion to Compel and for Civil Contempt (Doc. 26) are DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff's Application for Attorneys' Fees and Taxable Costs (Doc. 33) is GRANTED in part. Plaintiff is awarded $9,240.00 in attorneys' fees. Defendant shall pay Plaintiff's fees within twenty (20) days of the date of this Order.
IT IS FURTHER ORDERED that Plaintiff is granted leave to re-file its bill of costs pursuant to Local Rule 54.1(a) on a form provided by the Clerk.