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Pure Wafer, Inc. v. City of Prescott

United States District Court, D. Arizona

July 29, 2014

Pure Wafer, Inc., Plaintiff,
City of Prescott et al., Defendants.


JAMES A. TEILBORG, Senior District Judge.

Pending before the Court are Plaintiff Pure Wafer, Inc. ("Pure Wafer")'s Motion for Attorneys' Fees (Doc. 93) and Defendant City of Prescott (the "City")'s Motion to Strike Pure Wafer's "Addendum to Plaintiff's Reply" (Doc. 103). The Court now rules on the motions.


The Court first considers the City's motion to strike because if granted, it would narrow the evidence before the Court in considering Pure Wafer's motion for attorneys' fees. Approximately two weeks after Pure Wafer filed its reply in support of its motion, it filed an "addendum" (Doc. 102) to its reply, which consists of new evidence and assertions in an attempt to reinforce Pure Wafer's argument that the Court should award attorneys' fees for work performed prior to its filing the complaint. (Doc 102 at 1-2). Among the new evidence are billing records documenting attorneys' fees charged by the City's counsel that Pure Wafer obtained by a public records request. ( Id. ) The City moves to strike Pure Wafer's addendum. (Doc. 103).

A. Legal Standard

Local Rule of Civil Procedure ("Local Rule") 7.2 governs the filing of motions to strike, and provides that "a motion to strike may be filed only if it is authorized by statute or rule... or if it seeks to strike any part of a filing or submission on the ground that it is prohibited (or not authorized) by a statute, rule, or court order." LRCiv 7.2(m)(1). "An objection to (and any argument regarding) the admissibility of evidence offered in support of or opposition to a motion must be presented in the objecting party's responsive or reply memorandum and not in a separate motion to strike or other separate filing." Id. 7.2(m)(2).

B. Analysis

First, the Court finds that the City's motion to strike is procedurally proper under Local Rule 7.2(m)(1) as the City argues in the motion that the Court should strike Pure Wafer's addendum because it is "not authorized by any applicable rules." (Doc. 103 at 2). The Court now turns to the substance of the City's arguments.

Local Rule 7.2 governs all motions and filings in civil litigation, including, for example, memoranda by the moving party, responses, and replies. Local Rule 54.2 specifically governs claims for attorneys' fees and refers back to Local Rule 7.2 as governing any response or reply filings subsequent to a motion for attorneys' fees. LRCiv 54.2(b)(3). Neither Local Rule 7.2 nor Local Rule 54.2 provides for an "addendum" to a reply or any filing of a similar nature. Thus, the Court finds that the Local Rules of Civil Procedure do not authorize Pure Wafer's addendum.

Pure Wafer argues that "the Court has an inherent power to allow deviation from Local Rules... when a moving party learns that its adversary had withheld important information that should have been available when an earlier pleading was withheld." (Doc. 104 at 1). Pure Wafer states that the City failed to fulfill its obligation to make good faith efforts under Local Rule 54.2 by refusing to provide the number of hours the City's counsel billed the City for work on this matter from its inception. ( Id. at 1-2). Pure Wafer further contends that this lack of good faith effort on the part of the City necessitated Pure Wafer taking extra time to seek the billing information via public records requests, thus justifying the Court's allowance of the addendum despite its incongruence with the Local Rules. The pertinent part of Local Rule 54.2 states:

No motion for award of attorneys' fees will be considered unless a separate statement of the moving counsel is attached to the supporting memorandum certifying that, after personal consultation and good faith efforts to do so, the parties have been unable to satisfactorily resolve all disputed issues relating to attorneys' fees or that the moving counsel has made a good faith effort, but has been unable, to arrange such conference.

LRCiv 54.2(d)(1).

Even assuming, arguendo, that Local Rule 54.2(d)(1) imposes upon the City, as the nonmoving party, an obligation to make a good faith effort to resolve any disputes, Pure Wafer fails to show that the City was obligated, as part of that good faith effort, to share its own counsel's billing records. Local Rule 54.2 sets forth the factors that a moving party should discuss to justify the reasonableness of the requested attorneys' fee award. LRCiv 54.2(c)(3). That provision does not include among the thirteen relevant factors the comparable fees or hours billed by the nonmoving party's counsel. Id. Although the list is nonexclusive, id., exclusion of this factor from the list indicates it is not inherently relevant to the determination of reasonableness of the moving party's attorneys' fees. This weighs against finding a lack of good faith on the part of the City for its refusal to provide documentation of its own attorneys' fees. Furthermore, despite the City's refusal to share this information, Pure Wafer certified to the Court in its Statement of Consultation that the parties did satisfy the good faith requirements of Local Rule 54.2(d)(1): "After personal consultation and good faith efforts to do so, the parties were unable to satisfactorily resolve all dispute issues relating to attorneys' fees." (Doc. 93-1 at 3). Thus, even if the Court could deviate from the Local Rules of Civil Procedure to accommodate for a party's lack of good faith, the Court finds that Pure Wafer has not presented sufficient grounds for the Court to do so here.

For the foregoing reasons, the Court will grant the City's motion to strike and, accordingly, will disregard Pure Wafer's addendum in considering the motion for attorneys' fees.


Pure Wafer seeks an award of $234, 468 in its motion for attorneys' fees (Doc. 93 at 12-13) as well as an additional $6, 465 for additional fees incurred in composing the reply (Doc. 100 at 10-11).[1] The parties do not dispute that (a) the action in this case arises "out of a contract, " (b) Pure Wafer was successful on the merits of its action, and (c) Pure Wafer is entitled to reasonable attorneys' fees. (Doc. 93; Doc. 97; Doc. 100). Rather, the parties dispute the amount of attorneys' fees the Court should award to Pure Wafer. (Doc. 97; Doc. 100). The City argues that the Court should reduce that award by at least $90, 164.50 for several reasons (Doc. 97), each of which is discussed below.

A. Background

Assuming familiarity with the factual and procedural history of this action, the Court will recount only those aspects of this litigation that are relevant to the pending issue of attorneys' fees and costs. See Pure Wafer, Inc. v. City of Prescott, et al., ___ F.Supp.2d ___, 2014 WL 1515143, at *2-8 (D. Ariz. 2014).

At issue in this case is the City's enactment of an ordinance (the "Ordinance") that imposes new requirements upon sewer users and sets forth new local limits for the concentrations of certain chemicals in users' effluent. Id. at *7-8. The City informed Pure Wafer in a March 5, 2013 letter that it would enact the Ordinance limiting Pure Wafer's discharge of fluoride in its effluent to amounts less than those agreed upon by the parties in a previous contract (the "Agreement"). Id. at *7. The City subsequently enacted the Ordinance on May 28, 2013. Id.

On September 27, 2013, Pure Wafer filed its initial complaint, seeking temporary and permanent injunctive and declaratory relief against the City's enforcement of certain provisions of the Ordinance. (Doc. 1 ¶ 145). During the hearing on Pure Wafer's motion for a preliminary injunction, the parties and the Court agreed upon a stipulated order to advance the trial on the merits, consolidate the trial with the preliminary injunction hearing, and not file summary judgment motions. (Doc. 53; Doc. 61). After the consolidated preliminary injunction hearing and bench trial, the Court issued its decision, entering judgment for Pure Wafer and against the City on Pure Wafer's claims. (Doc. 87 at 32). With respect to attorneys' fees, the Court held:

Pure Wafer requests fees pursuant to 42 U.S.C. § 1988, A.R.S. § 12-341.01, and section 14.16 of the Agreement. (Doc. 19 at 23). Because Pure Wafer has prevailed on a matter arising out of contract (specifically, the Agreement) and the Ordinance deprives Pure Wafer of its constitutional rights, all three of these authorities support a fee award. Thus, Pure Wafer is entitled to its reasonable attorneys' fees and costs.

(Doc. 87 at 31 (citing S. Cal. Gas Co v. City of Santa Ana., 336 F.3d 885, 886-87 (9th Cir. 2003) (holding that a Contract Clause violation gives rise to a 42 U.S.C. § 1983 claim and a corresponding award of attorneys' fees under section 1988(b))); A.R.S. § 12-341.01 ("In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees."); (Tr. Ex. 3 § 14.16) ("In... any action in any court... to enforce any covenant or any of such party's rights or remedies under this Agreement, including any action for declaratory or equitable relief, the prevailing party shall be entitled to reasonable attorneys' fees ...

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