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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Currently before the Court is Defendant Nelcela, Inc, Leonard Campagna and Alec Dollarhide's ("Nelcela") Motion for Attorneys' Fees Regarding MTSI's Dismissed Claims. (Dkt.#314). After reviewing the pleadings and determining that oral argument is not necessary, the Court issues the following Order. I. Background On March 31, 2005 the Court granted Plaintiff Merchant Transaction Systems, Inc. ("MTSI"), motion to extend Plaintiff's amended pleading deadline. (Dkt#104). On May 12, 2005, Plaintiff MTSI moved to extend the deadline to file its amended complaint and lodged its amended complaint. On June 10, 2005, the Court denied Plaintiff's motion to amend and the lodged amended complaint was deemed filed. (Dkt.#162).
Case 2:02-cv-01954-MHM Document 373 Filed 08/25/2006

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Nelcela, Inc., an Arizona corporation; Len) Campagna, an Arizona resident; Alec) Dollarhide, an Arizona resident; Ebocom,) Inc., a Deleware corporation; Post) Integrations Inc., an Illinois corporation, ) ) ) Defendants. __________________________________) ) And Related Counterclaims and CrossClaims. Merchant Transaction Systems, Inc.,

No. CIV-02-1954-PHX-MHM ORDER

Plaintiff's Amended
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Complaint set forth multiple claims against Nelcela, including the claims that the Court had previously dismissed: (1) Count ten, Fraud; (2) Count Eleven, RICO; (3) Count Thirteen, Unjust Enrichment; (4) Count Fourteen, Open Account; (5) Count Fifteen, Account Stated; and (6) Count Sixteen, Quantum Merit. (Dkt.#108). These claims were dismissed without prejudice by the Court's August 12, 2003 order. (Dkt.#36). In response to MTSI's Amended Complaint asserting these claims, Nelcela again moved to dismiss these claims. MTSI's counsel then contacted Nelcela's counsel regarding a stipulation to dismiss these claims. (Nelcela's Motion for Attorney's Fees, Exhibit A). Nelcela requested that MTSI pay the $715.00 in attorneys' fees incurred in drafting the motion to dismiss. (Id). MTSI's counsel refused, thus Nelcela filed its reply in support of dismissal. On November 8, 2005 the Court briefly addressed at oral argument Nelcela's motion to dismiss these claims along with several other pending motions. MTSI's counsel agreed that the claims should be dismissed and noted that he had previously stipulated to dismissal of such claims; however positioned that attorneys' fees were not warranted as the claims were asserted due to an oversight after Nelcela filed the motion to dismiss those claims. Upon consent of both parties, the Court dismissed these claims and granted leave to Nelcela to file a motion for attorneys' fees "outlining the legal and factual basis for a fee award." (Dkt.#310). II. Analysis In support of Nelcela's request for attorneys' fees, Nelcela argues that such an award is appropriate because of MTSI's continued games and mistakes in this litigation causing the other parties expense. Nelcela does not identify any specific other instances in support of this statement, but also notes that MTSI did not even offer a compromise of partial payment of Nelcela's fees incurred in drafting its motion to dismiss. However, what Nelcela fails to note is the fact that even with MTSI's blatant error in reasserting these claims, this matter could have likely been avoided had these parties communicated with one another. For

instance, as evidenced by MTSI's offer to dismiss these claims asserted in error, had Nelcela identified the error prior to drafting and filing the motion to dismiss, these claims would have -2Case 2:02-cv-01954-MHM Document 373 Filed 08/25/2006 Page 2 of 3

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likely been withdrawn by MTSI. Rather, Nelcela spent over $700.00 in attorneys' fees in drafting the motion to dismiss. In light of this fact and the fact that MTSI clearly disregarded the Court's previous order by asserting the same previously dismissed claims in its amended complaint, the Court will award a portion of Nelcela's requested fees. Specifically, Nelcela will be awarded fees in the amount of $420.75, taking into consideration Nelcela's time at oral argument and preparing the instant motion for attorneys' fees. (Nelcela's Motion for Attorney's Fees, Exhibit A). Accordingly, IT IS HEREBY ORDERED that Nelcela's Motion for Attorneys Regarding MTSI's Dismissed Claims is granted in part and denied in part. (Dkt.#314). IT IS FURTHER ORDERED that MTSI shall pay Nelcela $420.75 as compensation for attorneys' fees by September 5, 2006. DATED this 22nd day of August, 2006.

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