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


File Size: 113.6 kB
Pages: 4
Date: December 31, 1969
File Format: PDF
State: Arizona
Category: District Court of Arizona
Author: unknown
Word Count: 1,078 Words, 6,820 Characters
Page Size: 611.28 x 790.92 pts
URL

https://www.findforms.com/pdf_files/azd/43520/132-1.pdf

Download Motion for Attorney Fees - District Court of Arizona ( 113.6 kB)


Preview Motion for Attorney Fees - District Court of Arizona
l FENNEMORE CRAIG, P.C.
William L. Thorpe (N0. 005641)
2 Sal J. Rivera (No. 016728)
3003 North Central Avenue
3 Suite 2600
Phoenix, Arizona 85012-2913
4 Telephone: (602) 916-5000
wthorpeg%fclaw.com
5 srivera@ claw.com
I6 Attorneys for BNSF
7
8 UNITED STATES DISTRICT COURT
9 DISTRICT OF ARIZONA
10 Steven Schrum, No. CI)/04-619-PI—IX—RCB
ll Plaintiff] BNSF’S APPLICATION FOR
12 ATTOR.NEYS’ FEES AND COSTS
v.
13 The Burlington Northern Santa Fe
14 Railway Company,
Defendant.
15
The Burlington Northern Santa Fe
16 Railway Company, a corporation,
17 Third Party Plaintiff
1 8 v_
19 Chemical Lime Company of Arizona, a
corporation; ABC Corporations I—lV,
20 fictitious corporations,
21 Third Party Defendants
22
23 Pursuant to Court Order and A.R.S. §§ 12-341 and 12-341.01, BNSF Railway
24 Company ("BNSF") submits its application for attorneys’ fees and costs. This application
25 is supported by the following Memorandum of Points and Authorities, exhibits and all
26 other matters of record.
FsNNEMoRE CRAIG, P.C.
Case 2:04-cv—00619—RCB Document 132 Filed 06/22/2007 Paget of4

l MEMORANDUM OF POINTS AND AUTHORITIES
2 In February 2004, plaintiff sued BNSF under the Federal Employers’ Liability Act
3 for injuries allegedly arising from his work at third party defendant Chemical Lime
4 Company’s Nelson Arizona plant. Pursuant to the industry track agreement (the "I'fA")
5 between BNSF and Chemical Lime, BNSF tendered its defense to Chemical Lime on
_6 numerous occasions and advised Chemical Lime that it would look to Chemical Lime to
. 7 defend and indemnify BNSF. BNSF also worked to obtain and provide all information
3 Chemical Lime requested and needed to consider and accept BNSF’s tender of defense.
9 Notwithstanding BNSF’s efforts, Chemical Lime repeatedly refused to defend and
11) indemnify BNSF, so BNSF successfiilly defended itself from plaintiffs claims.
11 Among other things, BNSF deposed plaintiff, plaintiffs physicians, and plaintiffs n
12 purported expert. All depositions other than plaintiffs were out—of-town depositions and
13 two ofthe depositions were conducted in Chicago. BNSF also prepared and responded to
14 written discovery and served fourteen supplemental disclosure statements. BNSF was
15 also required to make repeated efforts to obtain certain discovery from plaintiff and filed a
16 motion to strike certain opinions that were not timely disclosed by plaintiff. In addition to
17 defending plaintiffs claims, BNSF was required to file and pursue its third party lawsuit
18 against Chemical Lime. BNSF ultimately obtained summary judgment against both
19 plaintiff and Chemical Lime after substantial briefing and cross—briefing of its motions.
2Q Plaintiff appealed the summary judgment to the Ninth Circuit, where the matter has been
21 fully briefed. BNSF also pursued further briefing, which Chemical Lime opposed, to have
22 Chemical Lime discharge its contractual obligations to defend and indemnify BNSF.
23 After being brought into this suit, Chemical Lime frequently joined BNSF’s briefs and
24 BNSF took the lead on most, if not all, of the oral and written discovery in this case.
25 On May 23, 2007, the Court entered an Order granting BNSF’s motion for
. 26 summary judgment on its claims against Chemical Lime and specifically ruled that the
FENNEMORE CRAIG. P.C. 6
; Case 2:04-cv—00619-RCB- Document 1322 - Filed 06/22/2007 Page 2 of 4

1 ITA required Chemical Lime to defend and indemnify BNSF from and for plaintiffs
2 claims. gee Court’s Order attached as Exhibit A. The Court also advised BNSF to file an
3 application for the fees and costs it incurred in defending this matter. Q BNSF is also
4 entitled to attorneys’ fees pursuant to A.R.S. § 12-341.01(A), which provides, in pertinent
5 part: "In an contested action arising out of a contract, express or implied, the Court may
6 award the successful party reasonable attorneys’ fees .... " The purpose of this rule is to
7 "mitigate the burden of the expense of litigation to establish a just claim or a just
S defense." A.R.S. § 12-341.0l(b).
9 As set forth more fully in the attached Affidavit of William L. Thorpe (the "Thorpe
10 Affidavit"), the rates charged by defense counsel in defending and prosecuting this matter
11 are entirely reasonable and consistent with (and frequently lower than) the rates being
12 charged by other similarly situated lawyers. E Thorpe Affidavit attached as Exhibit B. `
13 As also set forth in the Thorpe Affidavit, these rates and the overall fees resulting from the
14 matter are reasonable given the experience and expertise of the attorneys and paralegals
15 involved; the nature and magnitude of the claims being asserted by plaintiff; and the fact
16 that Chemical Lime repeatedly failed and refused to defend and indemnify BNSF. .
17 CONCLUSION
18 Based on the foregoing, BNSF respectfully requests that the Court grant BNSF’s
19 request for _attorneys’ fees in the amount of $219,045, with interest thereon until paid.
20 DATED this _ day of June, 2007.
21 FENNEMORE CRAIG, nc.
22
23 By s/Sal J. Rivera
Sal J. Rivera
24 William L. Thorpe
25 Attorneys for BNSF
26
FENNEMOILE CRAIG, PC. 1 1 6
Case 2:04-cv—00619—FlCB Document 132 Filed 06/22/2007 Page 3 of 4 .

1 CERTIFICATE OF SERVICE
2 H I hereby certify that on June 21, 2007, I electronically transmitted the
attached document t0 the Clerk’s Office using the CM/ECP System for
3 and transmittal of a Notice of Electronic Filing to the following
C CF registrants:
4
George T. Brugess
5 I-Ioey & Farina, P.C.
542 S. Dearborn, Suite 200
6 Chicago, IL 60605
Attorneys for Plaintiff
7
Charles D. Onofry
_ 8 ReNae A. Nachman
Schneider & Onofry, P.C.
9 3101 N. Central Ave., Ste. 600
Phoenix, AZ 85012
_ 10 Attorneys for Third-Party
Defendant Chemical Lime
11
12 H I hereby certify that on June 21, 2007, I served the attached document by
facsimile and U.S. mail on the following, who are not registered
13 participants of the CM/ECF System:
14 William D. Black
One East Camelback Road
15 Suite 630
Phoenix, Arizona 85012-165 8
16
17
s/Mary Boston
18
19
20
21
22
23
n 24 g
25
26
FENNEMORE CRAIG, 192-m] 6
l HDENIA I- 4 _
c Case 2:04-cv—00619-RCB Document 132 Filed 06/22/2007 Page 4 of 4 I

Case 2:04-cv-00619-RCB

Document 132

Filed 06/22/2007

Page 1 of 4

Case 2:04-cv-00619-RCB

Document 132

Filed 06/22/2007

Page 2 of 4

Case 2:04-cv-00619-RCB

Document 132

Filed 06/22/2007

Page 3 of 4

Case 2:04-cv-00619-RCB

Document 132

Filed 06/22/2007

Page 4 of 4