Archway Insurance Services, LLC v. Harris

FILED
NOT FOR PUBLICATION
JUL 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARCHWAY INSURANCE SERVICES, No. 14-16695
LLC; et al.,
D.C. No.
Plaintiffs-Appellants, 2:11-cv-01173-JCM-CWH
v.
MEMORANDUM*
JAMES HARRIS and GREGORY
HARRIS,
Defendants-Appellees,
and
HARRIS CONSULTING SERVICES,
INC.,
Defendant.
ARCHWAY INSURANCE SERVICES, No. 14-16717
LLC; et al.,
D.C. No.
Plaintiffs-Appellees, 2:11-cv-01173-JCM-CWH
v.
JAMES HARRIS; et al.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 4
Defendants-Appellants.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted July 6, 2016
Pasadena, California
Before: VANASKIE,** MURGUIA, and WATFORD, Circuit Judges.
1. The district court correctly found that the Harrises’ unapportioned offer
of judgment was valid. Nevada Rule of Civil Procedure (NRCP) 68 and Nevada
Revised Statute (NRS) § 17.115 permit an award of attorney’s fees against a party
who rejects an offer of judgment and obtains a less favorable outcome. Albios v.
Horizon Cmties., Inc., 132 P.3d 1022, 1028 (Nev. 2006).1 When a defendant
makes an unapportioned offer of judgment to multiple plaintiffs, NRCP 68 and
NRS § 17.115 require the defendant to show that the plaintiffs asserted a “single
**
The Honorable Thomas I. Vanaskie, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
1
The Nevada Legislature repealed NRS § 17.115 effective October 1, 2015.
The Nevada Supreme Court has continued to apply NRS § 17.115 to offers of
judgment made before that date. E.g., WPH Architecture, Inc. v. Vegas VP, LP,
360 P.3d 1145, 1146 n.1 (Nev. 2015).
Page 3 of 4
common theory of liability” and that “the same person was authorized to decide
whether to settle the claims of all plaintiffs.” Id. at 1031.
Plaintiffs asserted a single common theory of liability. Their complaint
contained two counts against the Harrises, both of which were labeled “Plaintiffs v.
James Harris and Gregory Harris.” The prayer for relief does not differentiate
among the plaintiff companies. The district court correctly found that the
complaint alleged a common theory of liability.
The court also ruled correctly on the settlement authorization prong. A
group of four individuals, all principal owners of the four plaintiff businesses, was
authorized to settle the claims of all plaintiffs. The businesses were jointly
represented by one set of lawyers, which suggests that they had a “unity of
interest.” See RTTC Commc’ns, LLC v. Saratoga Flier, Inc., 110 P.3d 24, 30 (Nev.
2005).
The Harrises’ unapportioned offer satisfied both the settlement authorization
and single common theory requirements. The district court properly awarded
attorney’s fees under NRCP 68 and NRS § 17.115.
2. The district court did not abuse its discretion in denying the Harrises’
request for fees related to the voluntarily dismissed claim. The court’s local rules
required the Harrises to review and edit their motion for fees. U.S. Dist. Ct. Rules
Page 4 of 4
D. Nev., LR 54-14(c) (formerly LR 54-16). The Harrises’ attorney submitted a
declaration that did not separately itemize fees related to the dismissed claim. The
court properly found that the dismissed claim was not related to the remaining
claims since they alleged different conduct. See Entm’t Research Grp., Inc. v.
Genesis Creative Grp., Inc., 122 F.3d 1211, 1230 (9th Cir. 1997). By failing to
remove the unrelated fees from their request, the Harrises failed to comply with the
local rule. The district court did not abuse its discretion in denying the Harrises’
request for fees related to the voluntarily dismissed claim on that basis. See VISA
Int’l Serv. Ass’n v. Bankcard Holders of Am., 784 F.2d 1472, 1476 (9th Cir. 1986).
AFFIRMED.