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

1 RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 2 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 3 Telecopier: 602/257-9582 4 Charles L. Chester ­ 002571 Matthew T. Clarke ­ 018281 5 Attorneys for Defendants 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Defendants, State Farm Mutual Automobile Insurance Company and Dave Gonzales, by and through undersigned counsel and pursuant to Fed.R.Civ.Proc., Rule 54(d) and Local Rules of Civil Procedure 54.2, hereby move this Court for an award of attorneys' fees and non-taxable costs. Pursuant to Local Rule 54.2, at the time of filing the motion for attorneys' fees UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JOHN KILLINGSWORTH, a married man, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and DAVE GONZALES, Defendants.

No. CIV-03-1950-PHX-NVW MOTION FOR ATTORNEYS' FEES AND NON-TAXABLE EXPENSES The Honorable Neil V. Wake

21 and taxable costs, "counsel need not file a memorandum of points and authorities, as 22 required by Rule 7.2, Local Rules of Civil Procedure or the supporting documentation, 23 as required by paragraph (d) of this Local Rule," but must specify (1) the applicable 24 judgment and statutory authority for an award of attorneys' fees and non-taxable costs, 25 as well as (2) the amount of or a fair estimate of the fees and costs sought. 26 27 28
652380.1 10/12/2005 Case 2:03-cv-01950-NVW

I.

The Applicable Judgment and the Statutory Authority Entitling State Farm to An Award of Attorneys' Fees

Plaintiff sued Defendants alleging violations of several federal antiDocument 283 Filed 10/12/2005 Page 1 of 5

1 discrimination laws as well as several pendent state law contract based claims, including 2 breach of contract, breach of covenant of good faith and fair dealing, interference with 3 contract, and promissory estoppel. On September 30, 2005, the Court entered summary
1 4 judgment in favor of Defendants on each and all of Plaintiff's remaining claims,

5 including the state law claims. 6 Pursuant to Arizona statute, A.R.S. § 341.01 (A), "[i]n any contested action

7 arising out of contract, express or implied, the court may award the successful party 8 reasonable attorneys fees...." 4 A.R.S. §341.01(A). The statute applies to contracts that 9 are either express or implied, including breach of contract, breach of the implied 10 covenant of good faith and fair dealing, and intentional interference with contract 11 claims. See Smith v. American Exp. Travel Related Services Co., Inc., 179 Ariz. 131, 12 876 P.2d 1166 (App. Div. 1 1994) (employer entitled to award of attorneys' fees for 13 defending against employee's breach of contract and breach of implied covenant of 14 good faith and fair dealing claims); Rutledge v. Arizona Board of Regents, 147 Ariz.

15 534, 711 P.2d 1207 (App. Div.1 1985) (where intentional interference with contract 16 claim can not exist but for a the existence of a contractual relationship between the 17 parties, attorneys' fees are available under A.R.S. §12-341.01(A)). Alone, a promissory 18 estoppel claim does not arise from contract sufficient to invoke §12-341.01(A). Double 19 AA Builders, Ltd. V. Grand State Construction. LLC., 210 Ariz. 503, 114 P.3d 835 20 (App. Div. 1 2005) However, because Plaintiff's promissory estoppel claim is so 21 interwoven into the breach of contract claim, State Farm is entitled to recover fees 22 expended defending that claim as well. See e.g., Ramsey Air MedsLLC v. Cutter

23 Aviation, Inc., 198 Ariz. 10, 13, 6 P.3d 315, 318 (App. Div. 1 2000) ("It is well24 established that a successful party to a contract claim may recover not only attorneys' 25 fees expended on the contract claim, but also fees expended in litigating an `interwoven' 26 tort claim.") 27 28
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Summary judgment was previously granted on some of Plaintiff's claims.
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In cases involving both federal and pendent state claims, A.R.S. §12-341.01 (A)

2 is applicable, at least as to the state-law claims. See, Newlsonm v. Pima Community
th 3 College, 83 F.3d 1075 (9 Cir. 1996) (fees awarded under statute for defense of pendent

4 contract-based claims); Moses v. Phelps Dodge Corp., 826 F.Supp. 1234 (D. Ariz. 5 1993) (same); Ackerman v. Wester Elec. Co., 643 F.Supp. 836 (N.D. Cal. 1986) (state 6 law controls entitlement to award of attorneys' fees with respect to pendent state
th 7 claims), aff'd, 860 F.2d 1514 (9 Cir. 1988). Wherefore, pursuant to A.R.S. §12-

8 341.01(A), and as the successful parties to this litigation, Defendants move for an award 9 of attorneys' fees incurred defending each of Plaintiff's contract based claims. 10 11 12 II. The Amount of Attorneys' Fees and Related Non-Taxable Expenses Sought or a Fair Estimate of Such Amount

Unless otherwise stated herein, when computing attorneys' fees and non-taxable

13 costs associated with Plaintiff's contract based claims, undersigned assumed that one 14 quarter of the attorneys' hours and non-taxable expenses incurred by State Farm were 15 related to the contract claims. That assumption was applied uniformly until the Court 16 dismissed Plaintiff's interference with contract claim. From that point forward, 17 undersigned assumed that one-sixth of the attorneys' hours and non-taxable expenses 18 incurred by State Farm were related to Plaintiff's contract based claims. 19 One hundred percent of the attorneys' fees incurred by State Farm for

20 undersigned's efforts in briefing the issue of the statute of limitations on contract claims 21 were attributed to the Plaintiff's contract claims. 22 One hundred percent of the attorneys' fees incurred by State Farm for efforts

23 responding to Plaintiff's claim of damages, including fees associated with retention by 24 State Farm of its own damages expert as well as fees incurred responding to and 25 preparing for the deposition of both Plaintiff's and Defendants' damage experts, 26 including non-taxable costs associated with same, were attributed to Plaintiff's contract 27 claims. 28
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Based upon the foregoing, State Farm's attorneys' fees and non-taxable costs are

2 stated (subject to modification) as follows: 3 4 5 6 7 8 9 10 11 12 13 14 15 B. Non-Taxable Expenses: State Farm is entitled to reimbursement of approximately $16,000 in non-taxable A. Attorneys Fees: Attorney Charles Chester Michael Moberly Matthew Clarke Mariette Spence Darla Smith Travis Waldron Lisa VanBockern Rate $275 $275 $225 $180 $175 $110 $110 Hours 86.0 3.6 116.6 76.8 42.6 17.4 21.9 Total___ $ 23,650 $ 990

$ 26,235 $ 13,824 $ 7,455 $ 1,914 $ 2,409 $ 76,477

Total Attorneys' Fees

16 expenses incurred defending this lawsuit. 17 Documentation supporting the foregoing attorneys' fees and non-taxable

18 expenses will be itemized and attached as exhibits to Defendants' Memorandum and 19 Points of Authorities In Support of Defendants' Motion for Attorneys' Fees and Non20 Taxable Expenses, which pursuant to Local Rule 54.2(b)(2) and (d) will be filed within 21 60 days of the Judgment entered in this matter. 22 23 24 25 26 27 28
Case 2:03-cv-01950-NVW Document 283

DATED this 12th day of October, 2005. RYLEY CARLOCK & APPLEWHITE

By

/s/ Charles L. Chester Charles L. Chester Matthew T. Clarke Mariette Spence One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Defendants -4Filed 10/12/2005 Page 4 of 5

1

CERTIFICATE OF MAILING I hereby certify that on October 12, 2005, I electronically transmitted the attached

2 MOTION FOR ATTORNEYS' FEES AND NON-TAXABLE EXPENSES to the Clerk's 3 the following CM/ECF registrants: 4 5

Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to John Gabroy & Garry Bryant Attorneys for Plaintiffs

6 And a courtesy copy mailed via first class mail to: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cv-01950-NVW Document 283
By /s/ Lisa Lopez The Honorable Neil V. Wake U.S. District Court, Phoenix Division 401 West Washington Street, SPC 52 Phoenix, Arizona 85003

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