Free Motion for Attorney Fees - District Court of Arizona - Arizona

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Stephen D. Hoffman, #13875 LEWIS BRISBOIS BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central Avenue, Suite 1700 Phoenix, Arizona 85012-2761 Telephone: (602) 385-1040 Facsimile: (602) 385-1051 Attorneys for Wong and World Nutrition

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

MARLYN NUTRACEUTICALS, INC., an Arizona corporation, Plaintiff,

No. CIV 02-1876 PHX-HRH THIRD-PARY PLAINTIFF WORLD NUTRITION'S MOTION FOR ATTORNEYS' FEES (Assigned to The Honorable H. Russell Holland)

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vs.
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WILLIAM WONG and JANE DOE WONG, husband and wife; PATRICK BUEHL and JANE DOE BUEHL, husband and wife; WORLD NUTRITION, INC., an Arizona corporation; ABC Corporations I-X; XYZ PARTNERSHIPS I-X; and JOHN DOES I-X and JANE DOES I-X, husbands and wives, respectively, Defendants,

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WORLD NUTRITION, INC., an Arizona corporation, Third Party Plaintiff/Counterclaimant/ Defendant, vs.

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MARLYN NUTRACEUTICALS, INC., an Arizona Corporation; and CRAIG KNOBLOCH, Counterdefendant/Plaintiff/Third Party Defendant.

Case 2:02-cv-01876-HRH 4826-0902-2722.1

Document 340

Filed 02/18/2008

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LEWIS BRISBOIS BISGAARD & SMITH LLP

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Third-Party Plaintiff, World Nutrition, Inc. ("World Nutrition") hereby moves the Court for an award of attorneys' fees against Third-party Defendant Craig Knobloch. Attached hereto as Exhibit 1 is a copy of the employment contract between World Nutrition and Mr. Knobloch. Paragraph 4(b) of that contract provides as follows: Nothing herein shall be construed as prohibiting the Company from pursuing any other remedy available to it for a breach or threatened breach of this Agreement and Employee agrees to pay the Company for any losses or damages and its expenses, including reasonable attorneys' fees, incurred in protecting its rights hereunder. As the Court is aware, the jury found in favor of World Nutrition on its claims against Mr. Knobloch. Accordingly, World Nutrition is entitled to an award of its

attorneys' fees for having to pursue the breach of employment agreement (contract) action. World Nutrition is entitled to attorneys' fees both by the express terms of the contract and according to A.R.S. §12-341.01. A.R.S. §12-341.01 provides: A. In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees. If a written settlement offer is rejected and the judgment finally obtained is equal to or more favorable to the offeror than an offer made in writing to settle any contested action arising out of a contract, the offeror is deemed to be the successful party from the date of the offer and the court may award the successful party reasonable attorney fees. This section shall in no manner be construed as altering, prohibiting or restricting present or future contracts or statutes that may provide for attorney fees. B. The award of reasonable attorney fees pursuant to subsection A should be made to mitigate the burden of the expense of litigation to establish a just claim or a just defense. It need not equal or relate to the attorney fees actually paid or contracted, but the award may not exceed the amount paid or agreed to be paid. Attached hereto as Exhibit 2 is the declaration of counsel Stephen D. Hoffman in support of the motion for attorneys' fees in the amount of $8,218.00. /// /// ///
Case 2:02-cv-01876-HRH
4826-0902-2722.1

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LEWIS BRISBOIS BISGAARD & SMITH LLP

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DATED this 18th day of February, 2008. LEWIS BRISBOIS BISGAARD & SMITH, LLP

By:________s/ Stephen Hoffman_________________ Stephen D. Hoffman Attorneys for Wong and World Nutrition

CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of February, 2008, a copy of the foregoing THIRDPARTY PLAINTIFF WORLD NUTRITION'S MOTYION FOR ATTORNEYS' FEES was filed electronically. A Notice of Electronic Filing (NEF) will be sent by operation of the Court's Electronic Case Filing (ECF) system to the filing party, the assigned Judge and any registered user in the case as indicated on the NEF. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court's system.

____S/Stephen D. Hoffman________________ Stephen D. Hoffman LEWIS BRISBOIS BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central Avenue, Suite 1700 Phoenix, Arizona 85012-2761 Telephone: (602) 385-1040 Facsimile: (602) 385-1051

Case 2:02-cv-01876-HRH
4826-0902-2722.1

Document 340

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Filed 02/18/2008

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