Free Affidavit - District Court of Arizona - Arizona

ROWLEY CHAPMAN BARNEY & BUNTROCK, LTD. 63 East Main Street, Suite 501 Mesa, Arizona 85201-7417 (480) 833-1 113 FAX (480) 833-1 114 Attorneys for DefendantsIJudgment Creditors Shane D. Buntrock - SBN 019693 buntrock@,azle~al.com . Jordan K Rolfe - SBN 024905

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UNITED STATES DISTRICT COURT DISTRICT O F ARIZONA

IIDAVID MENKEN,

PlaintiffIJudgment Debtor,

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No. MC03-0035-PHX-FJM

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AFFIDAVIT OF RENEWAL OF JUDGMENT REGISTRATION

GERRY F. EMM, MAXINE C. EMM; COLDWELL BANKER ITILDO, INC., a Nevada corporation; MARSHA L. TOMERLIN,

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STATE OF ARIZONA County of Maricopa

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Pursuant to A.R.S. 5 12-1612(B), the undersigned, having been states for 111 the purpose of renewing those certain judgments entered in this Court dulyorsworn, April 30, on about 2003, as follows: 1. DefendantJJudgment Creditor was awarded judgment against PlaintiffIJudgment

Debtor and said judgments became final on June 26, 2000 by mandate of the Ninth Circuit Court of Appeals, Case No. CV-96-00142-DWH in the aggregate amount of $29,883.63 plus

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accrued interest pursuant to N.R.S. 17.130(2). The judgment was recorded in the Office of

the County Recorder of Maricopa County, Arizona on May 1, 2003 at Docket No. 20030558897.

2.

DefendanVJudgment Creditor is the owner of the judgment. No execution is

outstanding and unreturned upon said judgment at this time.

3.

There have been no payments upon the judgment and nothing has been duly

the judgment. II credited upon There are no setoffs or counterclaims in favor of the Judgment Debtor.
4.

5.

The principal amount due upon the Judgment, after allowing all setoffs and

counterclaims known to Affiant, is $29,883.63, plus further accruing interest pursuant to N.R.S. 17.130(2).

1II

6.

The information contained herein is true and correct and not made upon

information and belief.

RNEY & BUNTROCK,LTD.

P
CHRYSTE F. ROGERS Nofor" P"bli< . Stof. - ,... on0
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I rdan K. Rolfe Attorneys for DefendantIJudgment Creditor 63 E. Main Street, Suite 501 Mesa, Arizona 85201-7423

SUBSCRIBED AND SWORN to before me this a of April, 2008 by JORDAN day 11 K.ROLFE.

C O L . ~~ ~ ~ ~ ~ :

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*****
DAVID MENKEN,

UNITED STATES DISTRICTCO
DISTNCT OF

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Plaintiff,

v.
GERRY F. FMM, Defendant.

CERTIFICATIO FOR REGISTRATION IN

Case Number:

..

CV-Ng6-0142-DW

1,

LANCE S. WILSON

Clerk of the United States district court certify that the

attached judgment is a true and correct copy of the originaljudgment entered in this action appears in the records of this court, and that

April 29th 2003 ,as it
Date

An appeal was taken from tis judgment and the judgment was affirmed by mandate of the Court of Appeals issued on June 26th, 2000.

Unh(llDOMIDOMI

IN TESTIMONY WHEREOF, I sign my name and affix the seal of this Court.

April 29th, 2003
Date

LANCE S. WILSON
Clerk

'Insen the appropriate language: ..."no notice ofappcal from lhis judgment has been filed, andno motionofany kindlistedinRul~ a ) ofthc Fcdcral q Rules of Appellate Procedure has been filed." nonoticeofappeal *om this judgment has been filed, mdany motions ofthe kinds listed in Rule 4(a) of the Federal Rules of AppellatePracedure ( t ) been disposed of, the latest orderdisposing ofsuohamotion havingbeenenleredon [date]!' ..."an have appeal was taken from thisjudgment and thejudgmen,l was affinmd by mandate ofthe Coun of Appeals issued on [date]. ..."an appeal was iaken fmm lhis judgment and the appeal was dismissed by order entered on [date]."

..."

(tNote: The motions listed in Rule 4(a), Fed. R. App. P., are motions: forjudgment nolwithstanding the verdict; to amend or make additional findings of fact; to alter or amend the judgment; for a new trial; and for an extension of time for filing a notice of appeal.)

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COURT DISTRICT OF NEVADA DAVID.MENKEN, CV-N-96-0142-DWH (RAM) Plaintiff,
VS.

ORDER
mfM.,oo-

GERRY F. EMM, et al.,
Defendants.
1

This is a diversity action arising fkom an alleged breach of a contract to sell land. Defendants moved to dismiss and/or for summary judgment on several grounds. This court adopted the Report and Recommendation of Magistrate Judge McQuaid denying defendants' motion to dismiss or for summary judgment, except that the motion was granted as to defendant Valentine (the seller's real estate agent) on the claim for breach of fiduciary duty. ## 43,44. The facts as stated in the Report and Recommendation are incorporated herein by reference.

On October 14, 1997, plaintiff's California counsel withdrew from representation, stating
it had "served its purpose of conducting pretrial pleadings, discovery and motion work," and that plaintiff was to proceed solely with his local trial counsel. #46. Plaintiff now moves the court for an order dismissing this matter with prejudice, pursuant to Fed.R.Civ.P. 41(a)(2). #47. Plaintiff claims dismissal is necessary because withdrawal of the California counsel necessitates that instate counsel review the file and prepare the case, resulting in duplicative fees which he can no longer afford. Defendants request that attorney's fees be ordered either as a condition to Rule 41

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dismissal, or pursuant to Rule 54 (d). #50.

ANALYSIS

I.

Motion for Voluntary Dismissal Whether to grant a motion to dismiss lies in the discretion of the trial-court. Hamilton v.

Firestone Tire &Rubber Co., 679 F.2d 143, 145 (9IhCi. 1982). Dismissal is generally allowed

unless defendant will suffer prejudice as a result. Id. It is difficult to imagine any such result in the present case because plaintiff has requested dismissal with prejudice. Defendants request, however, that dismissal be conditioned upon granting costs and attorney's fees. When a dismissal pursuant to Rule 41(a)(2) is granted with prejudice, the court usually does not grant attorneys fees. See Cauley v. Wilson,754 F.2d 769,772 (7" Cir. 1985); Burnette
v. GodshaN, 828 FSupp. 1439,1444 (N.D. Cal. 1993), affd 72 F.3d 766 (9" Cir. 1995). Costs

and fees are more typically allowed in dismissals without prejudice because a defendant should not incur expense for work that could not be used in later litigation on the same claim. See Koch
v. Hankins, 8 F.3d 650.65 1 (9IhCir. 1993) (no automatic right to costs for work product that may . .
8-

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be useful in pending state litigation). Defendant. argue that Krasnow v. Sack & Perry, 58 F.Supp. 828, 829 (S.D.N.Y. 1945) counsels otherwise. Besides obvious problems with the age and authority of that case, the court notes that in Krasnow the court found that when plaintiff brought the case, he must have had "substantial doubt" as to whether the action was justified; in the present case, plaintiffs claim has survived a round of motions to dismiss and for summary judgment, so his claim was not clouded by "substantial doubt." Thus, the request for dismissal with prejudice will be granted unconditionally.
11.

Rule 54(d)
A.

Costs

Rule 54 provides that a prevailing party will normally recover costs. "Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attomeys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d). Commentators have observed that a dismissal with prejudice is a "complete adjudication 2-

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and a bar to further action between the parties." 9 CHARLES ALANWRIGHT ARTHUR AND R.

MILLER, FEDERAL PRACTICE PROCEDURE AND 5 2364, at 277 (2d ed. 1994). While the Ninth
Circuit has not ruled on whether dismissal with prejudice entitles the defendant to costs under Rule 54, the Tenth Circuit recently held that "in cases not involving a settlement, when a party dismisses an action with or without prejudice, the district court has discretion to award costs to the prevailing party under Rule 54." Cantrell v. International Bhd. Of Elec. Workers,Local
2021, 69 F.3d 456,458 (10' Cir. 1995)(en banc).

Rule 54 creates a presumption for costs in favor of a prevailing party; the presumption stands unless the trial court finds a reason not to award costs. See Delta Airlines, Inc. v. August, 450 US. 346, 352 (1981). Plaintiff advances no reason overcoming the Rule 54 presumption, asserting only that "[dlefendants can not recover, as a condition of dismissal, attorney's fees and costs previously incurred in the action and the cases cited by them do not stand in any way for such a proposition." #51 at 2. Plaintiff apparently misunderstands the difference between dismissal conditioned on payment of costs (Rule 41(a)) and dismissal with prejudice resulting in
rnllaxurrn

a grant of costs (Rule 54(d)). Moreover, plaintiff provides no reason to overcome the Rule 54
presumption. Therefore, the court finds costs shall be taxed in the amount of $1,413.63.

B.

Fees

Defendants also request attorney's fees pursuant to Rule 54(d)(2). Federal courts are required to apply state law in diversity actions with regard to the allowance or disallowance of attorney's fees. Schulz v. Lamb, 591 F.2d 1268, 1273 (9' Cir. 1978). Where state statutes allow the prevailing party attorney's fees, they may be recovered, People o Sioux County v. National f

Surely Co., 276 U.S. 238,243-44,48 S.Ct. 239, (1928), and the Nevada statutes do provide for
the discretionary award of attorney's fees to the prevailing plaintiff under certain conditions. NRS 18.010. Specifically, NRS 18.010(5) recognizes written agreements entitling a prevailing party to reasonable attomey's fees, and the Nevada Supreme Court has upheld the validity of such

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agreements. Musso v. Binick, 104 Nev. 613,614 (Nev. 1988). The relevant clause in this case states: In the event legal action is instituted by the Broker@,or any party to this agreement, to enforce the terms of this agreement, or arising out o the execution of this agreement or the sale, or to collect commissions, the preva~ling party shall be entitled to receive from the other arty a reasonable attorney fee to be determined by the court in which such action is

2

fraught.

#1, exh. A. 7 1 1. This clause applies to the present action, but the court is unable to determine
the reasonableness of the fee because defendants' attorneys have provided almost no useful detail

as to how they arrived at their fees. Each month's billing contains only block paragraphs
describing the work done and a total fee for the month at the end of the bill. There is no breakdown of individual billing rates or time spent on each item. Therefore, defendants are requested to provide, as soon as practicable, billing data providing greater detail. Accordingly, IT IS HEREBY ORDERED that plaintiffs motion to dismiss with prejudice (#48) is GRANTED.

IT IS FURTHER ORDERED that defendants are awarded costs in the amount of
$1,413.63.

IT IS FURTHER ORDERED that defendants shall provide the court with adequately

letailed billing information as soon as is practicable. The clerk shall keep this file open pending h e court's decision on attorney's fees. Dated: This Y z y of September, 1998.

J-

UNITED STATES DISTRICT JUDGE

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DISTRICT OF NEVADA ENTERED&SERVED

SEP291998
CLERK.

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9s. DISTRICT COURT
DEPUT/~

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
3AVID MENKEN,
Plaintiff,
VS.

3ERRY F. EMM, et al.,
Defendants.

Defendants have omp plied (#56) with the court's order (#55) that d e y provide adequately jetailed billing information as to their attorney's fees incurred in defending this action. The court Snds the hours and the hourly rates for the tasks shown as performed are reasonable and that the asks were reasonable to perform in defense of this action. Accordingly, and pursuant to Paragraph

.I of the written agreement, defendants, as prevailing parties, are awarded their attorney's fees in the
rum of $28,470.00.

IT IS SO ORDERED.
DATED: This

4 z?r 7 day of September, 1998.

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NO. 98-17288 CT/AG#: CV-96-00142-DWH.
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DAVID MENKEN Plaintiff v.

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Appellant

GERRY F. EMM; MAXINE C . EMM; COLDWELL BANKER ITILDO, INC., a l
Nevada corporation; MARSHA L. TOMERLIN Defendants

TU
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Appellees

--------------------APPEAL FROM the United F 2 Z ; i District Court for the District of Nevada (Reno)

.

THIS CAUSE came on to be heard on the Transcript of the Record from the United States District Court for the District of Nevada (Reno) and was duly submitted. ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court, that the judgment of the said District Court in this cause be, and hereby is AFFIRMED.

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DAVID MENKEN, Plaintiff-Appellant v. GERRY F. EMM, et al., Defendants-Appellees,

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Case No.: CV-N-96-142-DWH C/A # :
98-17288

ORDER ON MANDATE
The above-entitled c u & & . as+a3 been before the United States

Court of Appeals for the Ninth Circuit, and the Court of Appeals having on June 26, 2000 issued its mandate AFFIRMING the judgment of the District Court, and the Court being fully advised in the premises, NOW, THEREFORE, IT IS ORDERED that the mandate be spread upon the records of this Court. f" & Dated thiso
1998

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." ". ...-. US. DISTRICT COURT

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