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

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Ira M. Schwartz (I.D. No. 010448) Michael A. Cordier (I.D. No. 014378) DeCONCINI McDONALD YETWIN & LACY, P.C. 7310 N. 16th St., Suite 330 Phoenix, Arizona 85020 Telephone (602) 282-0500 (602) 282-0520 (Facsimile)
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
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IN AND FOR THE DISTRICT OF ARIZONA
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DECONCINI MCDONALD YETWIN & LACY, P.C.

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Erchonia Medical Inc., et al
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Case No.: CIV 02-2036-PHX-MHM Consolidated with CIV 02-2048-PHX-MHM and CIV 02-2353-PHX-MHM ERCHONIA MEDICAL INC.'S MOTION FOR AN AWARD OF ATTORNEYS' FEES

Plaintiff,
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v.
Suite 330 Phoenix, Arizona 85020

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Miki Smith, et al
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7310 N. 16th Street,

Defendants.
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Plaintiff Erchonia Medical, Inc. ("Erchonia") moves that it be awarded its attorneys' fees incurred in this matter pursuant to A.R.S. §12-341.01 and A.R.S. 12-349. This matter arises out of contract so an award of attorneys' fees is authorized by statute. In addition, given Mr. Smith's failure to participate in this matter in good faith and his failure to comply with multiple orders of this court, attorneys' fees are properly awarded pursuant to A.R.S. §12349. Erchonia requests it be awarded attorneys fees in the amount of $ 82,432.50. This motion is supported by the attached memorandum of points and authorities.

Case 2:02-cv-02036-MHM

Document 386

Filed 09/25/2007

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MEMORANDUM OF POINTS AND AUTHORITIES Pursuant to Local Rule Civil 54.2, Plaintiff Erchonia Medical Inc. ("Erchonia") submits this Memorandum of Points and Authorities in support Its Motion for An Award of Attorneys' Fees ("Motion"). I. Eligibility Erchonia is entitled to an award of attorneys' fees pursuant to the terms of a written contract providing for the payment of attorneys fees, A.R.S. §12-341.01 and A.R.S. §12349. Defendant signed a promissory note which specifically authorizes the payment of attorneys' fees if needed to collect the note. Further, A.R.S. §12-341.01 provides for an award of attorneys fees in contract cases. Finally, A.R.S. 12-349 allows for an award of attorneys' fees where the defendant unreasonably expands or delays the proceedings. Defendant in this action was found in contempt by the Court due to his failure to cooperate in these proceedings, which failure caused the proceedings to be substantially expanded and delayed. II. Entitlement Erchonia is entitled to an award of reasonable attorneys' fees pursuant to the express terms of its promissory note. In addition, Defendant's actions in failing to cooperate in these proceedings further warrant an award of attorneys' fees. III. Request for Fees ­ Reasonableness of Request Erchonia requests that it be awarded her attorneys' fees in the amount of $82,432.50. This amount is fair and reasonable in light of the work required to obtain a judgment in its favor on the counts tried against Defendant Miki Smith. Erchonia notes that its request for fees relates only to those claims directed specifically against Mr. Smith and only for the work involved in pursuing those claims.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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As detailed in the attached listing, counsel for Erchonia spent a total of 279.80 hours in the prosecution of this matter. Given the nature of these claims, the effort required to bring these claims to judgment and the repeated disregard of this Court's

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orders, Erchonia believes these amounts are fair and reasonable.
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This matter did not preclude counsel from accepting other employment.
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The fees charged in this matter were reasonable and customary for the handling of a
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matter of this type. Erchonia further refers the Court to the attached declaration which
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DECONCINI MCDONALD YETWIN & LACY, P.C.

further sets forth the hourly rates and time expended in this matter. This matter was
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handled on an hourly basis, at counsel's normal hourly rate for these types of matters. The
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fees incurred were reasonable in this action. As noted in the attached declaration of
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counsel, Mr. Schwartz has over 20 years experience practicing law, with his practice predominantly in the field of intellectual property law. Similarly, Mr. Cordier has approximately 15 years of experience in the practice of law. Additionally, an award of attorneys' fees is especially warranted in this case where Defendant Miki Smith willfully failed to obey the Court's orders.

IV.

Certificate of Consultation Pursuant to L.R.Civ. 54.2(d)(1), the undersigned counsel certifies that he has

attempted to consult with Mr. Smith and he has received emails concerning this application, but Mr. Smith has not indicated his position regarding this application.

V.

Supporting Documents Attached to this Memorandum is a declaration of counsel, which incorporates a

detailed itemization of the hours worked on this matter.

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VI. Conclusion For the reasons set forth above, Erchonia requests that the Court award it attorneys'

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fees in the amount of $82,432.50.
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Dated: September 25, 2007. DeCONCINI McDONALD YETWIN & LACY, P.C.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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By s/Ira M. Schwartz Ira M. Schwartz Michael A. Cordier 7310 North 16th Street, Suite 330 Phoenix, Arizona 85020 Attorneys for Plaintiff

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Certificate of Service I certify that on September 25, 2007, 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 those attorneys registered with CM/ECF: Michael Warzynski, Esq. JARDINE BAKER HICKMAN & HOUSTON PLLC 3300 N. Central Ave., Suite 2600 Phoenix, AZ 85012 Co-Counsel for Erchonia Medical Inc. Benjamin B. Lieb, Esq. Robert Brunelli, Esq. SHERIDAN ROSS PC 1560 Broadway, Suite 1200 Denver, CO 80202 Attorneys for Robert E. Moroney, LLC, Robert E. Moroney, and A Major Difference Inc. David Bray, Esq. MARISCAL WEEKS MCINTYRE & FRIEDLANDER PA 2901 N. Central Ave., Suite 200 Phoenix, AZ 85012 Attorneys for Robert E. Moroney, LLC, Robert E. Moroney, and A Major Difference Inc. Gregory L. Miles, Esq. Lori A. Curtis, Esq. DAVIS MILES PLLC 1550 E. McKellips Road, Suite 101 Mesa, AZ 85203 Attorneys for John and Claudette Brimhall Dominic L. Verstagen, Esq. KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 N. Central Ave. Suite 1500 Phoenix, AZ 85012 Attorneys for John and Claudette Brimhall Scott A. Salmon, Esq. THE CAVANAGH LAW FIRM 1850 N. Central Avenue, Suite 2400 Phoenix, AZ 85004 Attorneys for George Gonzalez and Lorena Guzman Gordon S. Bueler, Esq. BUELER JONES, LLP 1300 N. McClintock Drive, Suite B-4 Chandler, AZ 85226 Attorneys for Miki Smith and KMS Marketing, Inc.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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And a copy mailed to: Miki Smith 29554 Lee Rd. Evergreen, CO 80439 Defendant s/Ira M. Schwartz

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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DECLARATION OF IRA M. SCHWARTZ

I, Ira M. Schwartz, declare:
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I make this declaration of my own personal knowledge. I am competent to

testify concerning the matters set forth in this declaration. 2.
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I am, and have been at all times material to these proceedings, a shareholder

with the Phoenix office of DeConcini McDonald Yetwin & Lacy, P.C. (the "Firm"). Our

DECONCINI MCDONALD YETWIN & LACY, P.C.

firm represented Plaintiff Erchonia Medical Inc. ("Erchonia"). I was previously with the
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lawfirm of Robbins & Green, P.A. where I also represented Erchonia in this matter prior to
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joining DeConcini McDonald I submit this declaration in support of Erchonia's
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application for award of attorneys' fees. 3. I have been actively involved in this litigation since its inception, and I have

personal knowledge of the legal services rendered on behalf of Erchonia in this matter. 4. I was admitted to practice law in the State of Arizona and the Federal Courts

in Arizona in 1985. I have been engaged actively in the private practice of law in Arizona for over 20 years. 5. In connection with my practice, I am familiar with the fees and charges

customarily charged by attorneys in this community, including attorneys who practice in the field of intellectual property law. 6. Counsel has a long standing relationship with the Plaintiff. Counsel has

searched their records but could not locate the original fee agreement signed by the client. The client was billed based on the firm's regular hourly rates for litigation. The hourly rates billed are shown in the attached itemization. 7. Attached as Exhibit A to this Declaration is an itemized statement of the time

spent by the firm in the representation of Erchonia in this matter. All of the entries noted in Exhibit A reflect time spent on this matter by myself and other attorneys in the firm in the representation of Erchonia. This time was reasonable and necessary for the successful 7
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representation of Erchonia. The time reflected on Exhibit A is time principally spent only in the prosecution of those claims directed against Defendant Miki Smith on the counts which were presented at trial by default in this matter on September 18, 2007.

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I spent a total of 103.70 hours working on this matter. Additionally, Michael

A. Cordier, a shareholder attorney with the firm also spent a total of 176.10 hours working on this matter. These totals are through September 18, 2007. These hours were reasonable
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and necessary for the successful prosecution of this matter. The hours reflected on the
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DECONCINI MCDONALD YETWIN & LACY, P.C.

attached itemization were only those hours which relate to the claims on which Plaintiff
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recovered a judgment. As the Court is aware, this lawsuit involved a substantial number of
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claims and parties. Most of these other claims were resolved by a settlement. Counsel has
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included in its fee application only that time involved on matters which significantly related to the claims against Defendant Miki Smith on which judgment was awarded. 9. Initially this case involved multiple parties and claims and involved

substantial complex claims. The prosecution of the claims against Defendant Miki Smith was unnecessarily prolonged at the later stages of this due to Defendant Miki Smith's complete failure to cooperate in bringing this case to trial, his failure to cooperate with his then counsel, and his failure to comply with the orders of this Court. The acceptance of this case did not preclude other employment by the Firm. This case did not involve a contingency or fixed fee. Billings were made at customary and usual rates. Successful results were obtained, the experience of the attorneys were commensurate with the rates charged by other lawyers and legal assistants in this community with comparable experience and education in similar fields of law. 10. I submit that the sum of $82,432.50 is reasonable to award for the services

rendered in connection with the representation of Erchonia this matter.

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I declare under penalty of perjury that the foregoing is true and correct.

Executed on this date: September 25, 2007.
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s/Ira M. Schwartz______________ Ira M. Schwartz

DECONCINI MCDONALD YETWIN & LACY, P.C.

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