Free Petition - District Court of Arizona - Arizona

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Case 2:04-cv-00550-JWS Document 39 Filed 09/06/2005 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Luis Omar Alvarez Acuna, Plaintiff, vs. KBI, Inc., et al, Defendants. ) ) ) ) ) ) ) ) ) )

No. CIV 04-0550 PHX JWS PETITION IN SUPPORT OF ATTORNEYS' FEES AWARD

By Order filed August 29, 2005, this Court granted KBI's request for attorneys' fees. KBI hereby applies for an award of $2,723.50 in attorneys' fees. This petition is supported by the following Memorandum of Points and Authorities, as well as the Affidavit of Troy Foster and the billing records from Lewis and Roca. MEMORANDUM OF POINTS AND AUTHORITIES The Court has determined that KBI is entitled to fees pursuant to Rule 37(a)(4)(A). Rule 37(a)(4)(A) provides that the successful moving party is entitled to "the reasonable expenses incurred in making the motion, including attorney's fees. . . ." The "rate charged by the lawyer to the client is the best indication of what is reasonable under the circumstances of the particular case." Schweiger v. China Doll Restaurant, Inc., 138 Ariz 183, 673 P.2d 927 (App. 1983). KBI agreed to pay, and has paid, Lewis and Roca's standard hourly rates for the lawyers involved in the litigation. See attached Affidavit of Troy Foster.

The lawyers involved in drafting and finalizing the KBI's Notice of NonCompliance with Court's Order and Motion for Sanctions were Troy Foster and Justin Pierce. Troy Foster's standard hourly rate is $345.00 and Justin Pierce's standard hourly rate is $235.00. The fees and costs charged to KBI for the Motion are shown in the Affidavit of Troy Foster, attached hereto as Exhibit A, and the attachment to Exhibit A ­ the records of fees and costs from which KBI's monthly invoices are created. Only the fees relating to Defendant's Notice of Non-Compliance with Court's Order and Motion for Sanctions are sought in this Application. Finally, although the cost of computerized legal research is also recoverable in an award of attorney's fees, Ahwatukee Custom Estates Management Ass'n v. Bach, 193 Ariz. 401, 473 P.2d 106 (1999), KBI has decided only to pursue the attorneys' fees specifically identifiable to work performed on its Motion. The time entries and costs are summarized as follows: Attorney Troy Foster Justin Pierce Tracy Mickelson TOTAL Hourly Rate $345.00 $235.00 $155.00 Hours 3.4 6.4 .3 10.1 Total $1,173.00 $1,504.00 $46.50 $2,723.50

The time spent in preparing the Motion was necessary and appropriate in light of Mr. Acuna's complete unwillingness to abide by this Court's Order compelling him to provide requested discovery to KBI. "[T]ime billed for a service such as a discovery motion and its attendant notices, involves not simply writing words on a piece of paper. It involves, as well, thinking about the case and how what is sought related to an appropriate theory of [the case]." First Interstate Bank v. Simon, 159 Ariz. 91, 764 P.2d 1150 (App. 1988). Thus, KBI seeks reimbursement of $2,723.50 from plaintiff for his failure to participate in the discovery process and abide by this Court's Orders, which necessitated KBI's Motion.

Case 2:04-cv-00550-JWS

Document 39

Filed 09/06/2005

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DATED this 6th day of September, 2005. LEWIS AND ROCA LLP

By s/Justin S. Pierce Troy P. Foster Justin S. Pierce Attorneys for Defendants CERTIFICATE OF SERVICE X I hereby certify that on September 6, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: I hereby certify that on September 6, 2005, I served the attached document by first class mail on the following, who are not registered participants of the CM/ECF System:

X

Luis Omar Alvarez Acuna 2934 West Rose Lane Phoenix, Arizona 85017 Plaintiff Pro Per

s/Kathleen A. Topczewski

Case 2:04-cv-00550-JWS

Document 39

Filed 09/06/2005

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