Opinion
2:09-cv-01872-RCJ-RJJ
December 07, 2011.
ORDER
This case arises out of Plaintiff Shawna Lynn Mendoza's automobile collision with a hitand-run driver. Pending before the Court are Third-party Defendant Jacob Transportation Services, LLC's ("Jacob") Motion for Attorney's Fees and Costs (ECF No. 94) and Defendant's Motion to Compel (ECF No. 96). For the reasons given herein, the Court denies attorney's fees, grants costs, and denies the motion to compel.
I. FACTS AND PROCEDURAL HISTORY
On or about December 18, 2007, Plaintiff was involved in a hit-and-run collision with an unknown driver. (Compl. ¶ 6, Aug. 24, 2009, ECF No. 34-1). At the time of the collision, Plaintiff held an insurance policy with Defendant, policy number 497524763 ("the Policy"), which included UM coverage. ( Id. ¶ 7). On October 28, 2008, Plaintiff demanded that Defendant pay her the UM policy limit of $100,000. ( Id. ¶ 9). Plaintiff rejected Defendant's counteroffer of $6700. ( See id. ¶ 10; Opp'n Mot. Summ. J. 3:10-11, Aug. 23, 2010, ECF No. 29).
Plaintiff sued Defendant in state court. The Amended Complaint ("AC") lists three causes of action: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; and (3) Unfair Claims Practices Under Nevada Revised Statutes ("NRS") Section 686A.310. Defendant removed. The Court denied Plaintiff's motion to remand. Defendant filed a motion for summary judgment or to amend the answer. The Court denied the motion for summary judgment, ruling that the vehicle that hit Plaintiff was "unknown" under the language of the policy when that ambiguous term was interpreted to Plaintiff's benefit. The Court granted Defendant leave to amend its answer to plead a third-party complaint against Jacob, the company owning the vehicle that Plaintiff originally thought hit her. Defendant brought third-party claims against Jacob for indemnification and contribution, and Jacob moved to dismiss under the statute of limitations. The Court granted Jacob's motion because: (1) the only potentially viable third-party claim against Jacob was for subrogation, not indemnification or contribution, and the statute of limitations ran on a subrogation claim before Defendant requested leave to plead any third-party claims against Jacob; and (2) the public policy of Nevada prevented the subrogation of personal injury claims to insurers, in any case. The Court then granted partial offensive summary judgment to Plaintiff, ruling that the UM provision of the Policy applied and that Defendant had waived the right to argue that it did not, in any case. Jacob has now moved for attorney's fees and costs against Defendant.
II. LEGAL STANDARDS
Rule 54 requires an award of costs to a prevailing party and permits an award of attorney's fees to a prevailing party if provided for elsewhere (by statute, rule, or contract). See Fed.R.Civ.P. 54(d). Local Rules 54-1 and 54-16 contain procedural and evidentiary requirements for fee awards. State law governing attorney's fees applies in federal diversity cases when the requested fees are tied to the substance of the case, as opposed to procedural misconduct. In re Larry's Apartment, L.L.C., 249 F.3d 832, 837-38 (9th Cir. 2001) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). Nevada Revised Statutes section 18.010 provides a trial court discretion to award attorney's fees to a prevailing party, inter alia, where a third-party complaint is brought or maintained "without reasonable ground." See Nev. Rev. Stat. § 18.010(2)(b). Claims are groundless under section 18.010 if not supported by any evidence in the record. See Semenza v. Caughlin Crafted Homes, 901 P.2d 684, 687-88 (Nev. 2009).
III. ANALYSIS
CONCLUSION
See Smith v. Crown Fin. Servs. of Am.890 P.2d 769771
IT IS FURTHER ORDERED that the Motion to Compel (ECF No. 96) is DENIED.
IT IS SO ORDERED.