the district courts granting a fees based on the vote as offer of judgment will the cross appeal relates to the courts denial of fees imposed as a condition on a motion to voluntarily dismiss with the court's permission i'll address both of the arguments on appeal and cross appeal during my time here and i would ask to reserve five minutes of time for a bottle on the appeal of the offer of judgment the sole issue on the appeal is did the district court err in finding that the plaintiff was sort of a common theory of defendant must show that there's either a common theory of liability or derivative damages the court the just the court in this case found that there was a common theory of liability the nevada law was a further the the interests of supplement the rule was changed in one thousand nine hundred eighty recognizing that in certain circumstances an offer of judgment would further the interests of women in those circumstances there would be  the the particular portions of the rule were added to allow any individual party to weigh the risks and benefits of either rejecting or accepting a joint apportioned offer when they knew the additional the actual mt which was a portion to them the in their brief the harris's have conceded that the term single in single commentary of liability against defendants however this was not the proper analysis the issue is not whether all of the damages relate to particular claims instead the issue is whether the parties are unable to determine their share of a joint offer and make a meaningful choice between accepting the offer or continuing to litigate it can i ask you this though if we just look at the complaint isn't that the best source to try to figure out whether the plaintiffs jointly are pursuing one common pool of damages i think the complaint is is a good source it's not the only source i think that goes to the issue that the heiresses appraised which is they say they did essentially assert that the complaint has two causes of and in the summary judgment process and that's exactly what happened in this case ok but so let me just ask you this if we were just to limit our review to the complaint would you can see that it's framed in such a way that it just simply asserts a single cause of action on behalf of all of the plaintiffs against all of the defendant no no it would not because i think the facts of the complete even in the complaint show that there are different damages in the different parties are seeking different damages go ok but i'm just looking at th particular counts right i don't want to prod you admitted that it says all plaintiffs versus you know the harris parties count two breach of contract same thing i look at that and then i look at the prayer for relief and i don't see anything that suggests there are there are some you know one plaintiff is pursuing this theory of liability for this amount of damages and some other plaintiff is pursuing a different right so i just look at that it seems to me the district court is right but you're saying that there's more we should look at and what is that i'm saying you ought to both that there's more that you should look at the most of saying that looking at the plane itself it does it shows that it shows that that's the  to four post petition financing based on representations from james harris so that claim itself is then subsumed in the kind of action that that claim is a loan but there's no separate claim that trinity has asserted for one hundred ten thousand dollars in the complaint that's my point i said if you want to say that there's something more we should look at the need be we are going i think they are just reporting dollars that there were four separate claims on the motion for summary judgment if it in fact ruled that there were four separate claims it set out which claims what those claims were and who the parties were involved in them if you look can you help me situate us in terms of the timeline because you're going to talk about what the summary judgment ruling and i just want to use the offer of judgment made way earlier the offer of judgment was made substantially earlier than the summary judgment rule summary so so what other than the complaint were the defendant to use as a basis for deciding whether to make an on apportioned offer of judgment at that point in time when the offer was made at the point of time when the offer was made your honor i believe that the that the complaint would have been the the sole information of the point if that's true then why you're about to tell us some stuff that happened later in summary judgment why should we care about that it shouldn't we be looking at whatever they had available to them at the time they made the offer of know i don't i don't believe so and again i think that the complaint does i don't concede that the plane itself is putting that aside i don't think that that's the appropriate mechanism to look at how are they supposed to i just i mean were they supposed to be clairvoyant and figure out at a very early stage in the litigation when you're conceding all they had before the most the complaint they're supposed to guess as to how the litigation is going to progress and how your clients are going to sort of part you know  would play to make a claim and i think it's looking at the complaint it's clear that not all plaintiffs were sorting the same claims but it's clear that the damages that there were there were three areas of damages at all places were we're basing the damages on all of the all of the claims and in fact the the information the other information that was available is that one of the claims was based on a written offer a written guarantee agreement that guarantee agreement was signed only by two of the plaintiffs in fact one of the other plaintiffs was would have been responsible under the claim so clearly that under that claim it could not have ben all play disc were not and could not bring a claim under the guarantee agreement which again the trinity claim sets forth the specific amount for one hundred thousand dollars claim i know but your i mean if your clients are in control of how the accounts are framed in the complaint i hear what you're saying that me you're right there is a separate line item that mentions trying to needle on this amount but then when you go to the actual counts which you're governments are incorporated into the counts so i think those particular facts go into the counts in the end the court should look at the actual facts that are plenty rather than the the title of the count and looking at that i believe that that shows that there are different counts as the as the court found on summary just what do you say that the fenced should have done then that they should have made separate offers of judgment per kind of how would they know which claims they were making an  could they have done that i believe they could have done yes and as you say they should have done they should have done that in fact the claim for trinity in the complaint was clearly hundred ten thousand dollars the claim on the dan currie loan was cooler twenty five thousand dollars the the two other claims i would concede for the for the loan guarantee and for the i'm sorry for the  claims were inseparable in fact your honor that what that actually means is that because the claims are inseparable that they do not get their authorities for that because the what the court allowed them to do was was dismiss and seek fees therefore any issues relating to learn greek would have been usable in their claim for the damages on the on the counter claims which your response to i don't have the full title of the case but it's just called the cat case you know the one i'm talking about right that seem to me to be their best case for the notion that at least the district had to make some attempt to separate them you know i think the response is that in fact they were given every opportunity to make that account the court told them to do it up front they submitted a a affidavit which was which did not comply with the local rules the local rules stated that if it did not comply then that was grounds to to dismiss which is what the court actually found in the response and everything was pointed out  they did not comply and that they needed to comply they filed a supplement in which they did not say that they could separate them they said they could not separate them think they've waive that issue the sept separately i don't think the issue on a conditional motion to withdraw is that in order to to that the defect the plaintiff or the withdraw or is able to decide whether or not to to accept the conditions in this case it's a little strange because the judge both granted the the case the summary judgment motion would stand so there's no basis to to send it back to the court there's nothing else are both of those which was he found that there was a common theory of liability and he also found that the damages all related to the book of business so he really made friends on both and he didn't know how could he make that determination that the damage is all related to the book of business when you had this filed before the judge that amounted to about zero point five percent of the total damages and affirm that there was a written document that said it was a sign on bonus that was made by the harris agency but i agree what are you arguing today got was in a common theory of liability or it was a common theory of liability there are simply two claims both of the claim say plaintiffs versus james harris and greg harris the author of judgment specifically avoided making reference to harris consulting services because it wasn't a defendant so an arm apportioned offer of judgment was made on behalf of the two hearst parties who are being sued but let's talk about it because the complaint seems to set forth a lot of injured by the harris's promise to keep working at th a is that right or it says something similar to that ok and union one was also injured by making a personal lo seventeen point one one five decided to make it possible for defendants multiple defendants to make an offer judgment to multiple plaintiffs and that can be done at any time more than ten days before trial this was not a snap offer of judgment it was made here and a half after the case was filed and it wasn't made in january of two thousand and twelve in fact it was made in may of two thousand and twelve is shown in the record on page two sixteen so you had more time that there was there was more time it was well before the summary relief well that's i mean i guess since i read the complaint it seems like the district court's order for summary judgment seem to demonstrate that the plaintiffs allege different theories of liability so i mean i think what's happening today that was set out it seemed like he was able to after another year or or two years after the offer of judgment were the summary judgment stage the district court judge is required required under any rule sixty eight and r s t seventeen point one one five for determining whether there's a common theory of liability and the one case it gives us some guidance is the obvious case that about a supreme court where there are two claims for relief being asserted but if and that there was a common theory of liability and it labeled it construction defect which is not a count or claim for relief but is a theory of liability here the district court judge found that there are two claim you could have all the damages arise out of the construction defect and plead causes of action for breach of contract and negligence yes you have just essentially one theory of liability the construction was defective now  here you have separate claims that i'm sure there are two claims made by all the plaintiffs against these two defendants when a defendant is looking to determine how to properly comply with the rule for whether to make an apportioned offer of judgment on  portion offer of judgment i think the opening stages that must look those defendants must look at the complaint where there are an apportioned claims being made in the two counts against both defendants strongly and specifically says that every which way under those counts and in the prayer for relief those different it's a really left with no choice but to make an an appointment offer of judgment and that's what was properly done here if the plaintiffs were seeking to a portion of their damages which they really are required to do under rule eight under rule ten to not engage in collective allegations but to actually set forth specifically who is suing whom for what amount they had all the opportunity over a year and a half after filing their original complaint to ask for an amended complaint for leave the phone amended complaint and during this whole time a very detailed motion to dismiss was pending against their complaint i which ultimately ultimately was never even decided by the district court judge but during that entire time they had an deals it seems like the read the rejection of the offer of judgment didn't preclude them from recovering attorney's fees because their trial verdict was more they rebel than horizons offer a judgment that seems to be a little bit different than what happened here or what you're arguing well and i'm not sure have a favor ability was different or as compared to here but i think that's a different analysis and determine the reasonable  on the offer of judgment standard for how much was offered versus how much was obtained at trial here the reasonableness calculation is much easier because the plaintiffs obtained the zero and even if we start looking at the claims remember the plaintiffs filed a motion to voluntarily dismiss one of their claims so that really there's only one claim left which was their fraud claim and the district court judge correctly found that there was no evidence of any fraud crime on multiple levels and district court judge found that there was no evidence brought forward which makes it no different from the earlier stage there was no evidence in the first place there was no evidence in the end and the court also found that legally they had not even alleged a fraud claim because what they alleged was a claim about an opinion or but the future value of a book of business which is not a fraud framed up properly alleges a false statement of the then existing fact that is  supposing that the harris has said something about the value of the book of business and what it would be in the future that's not some some claim a falsity at the time something the senate about what the value is if you say something about what the value is in two thousand and seven  crack abused its discretion and also improperly followed the law and abuse of discretion i think deals with any factual findings related to the attorney fees award although we never actually had any hearings before a district court judge  but i also agree that were illegal findings are being made about what the law means that goes under genova standard i think the failure to apportion would be subject to the de novo standard because anybody again under the hensley versus acar hard case of the united states supreme court or the traditional cut case of the circuit can claim that the claims for a leaf are related or that there's a common core of facts that would entitle the moving party to either all of the fees or to initially and initially on a portion of mouth of the court might there after decide should be reduced out of some sort of apportionment stand if a court does not agree that the claims are so related that they really relate to one damage claim under the rule forty one standard or any standard allowing for attorney fees the next step under hensley vs after heart is that the court must apportion if it's been given the information on the fees let me see if i understand this the claims that were voluntarily dismissed dealt with the guarantees in the at the authenticity or lack of authenticity of signatures and the guarantees is that correct that dealt with a document for lack of a better term or the defense were saying was forced to not have their actual  failed to tailor their fee requests to the single claim that had in dismissed it's true fault and part that is part of it yes first were the claims are related or from a common core in fact judge may hand in his last order found out all the damages related to a book the book of business now i don't think you meant to include the twenty five thousand dollar amount which is a relatively trivial amount compared to the other ones but likewise even the opponents here are the archway parties state that the the amounts are essentially the same in their footnote eight in their opening brief but they say one of the claims is for one point three million dollars they say that the other claim would include that but they can't get to play for damages but they also want an additional one point three million on top of that for that claim both of these amounts go toward a theory of liability that somehow the plaintiffs are guaranteed a five point two five million dollar value  difference in the amount of fees you are seeking between the offer of judgment motion and the court order motion the sixty six thousand dollars approximately and change of sixty six thousand seven hundred fifty five  dollars there is some overlap between the two for the voluntary dismissals from the onset of the case up to the date that an offer was made to dismiss by the plaintiffs and for the offer of judgment comes starting about a year and a half after the case was filed may of two thousand and twelve to the conclusion of the case ironically of the court also found that the fees were properly edited in the offer of judgment amount that they properly stated all the requirements of the local rules and the even took out some one point five hours in reviewing the amounts for the offer judgment which it could have also done for the other amount which is what i've normally seen what about the fact that the district judge made a finding that you had not complied with the local rule in your court order motion well the local rule says that a motion for attorney fees one of the things must be edited it doesn't say much more than that impertinent language as opposed to what is that an attorney confirm that the request is reviewed at a did and reasonable yes and i filed an affidavit that the court found for example with the offer of judgment complied with all of the rules for detail in an affidavit and that was properly edited for the offer of judgment now hear it was edited for the entire time span of what the court was allowing fees for that from the beginning to that exact date when the offer was made by the plaintiffs to dismiss now at that point if a court disagrees that they're related and we local rule and this is litigation where very few of the time and trees relate to a specific amount and that goes back to hensley what the u s supreme court said much of counsel's time will be dedicated to litigation as a whole  want to follow up on that i mean so is the district court record attempt to apportion a feat even where the attorney gives the court no way to do so i mean it seems like the israelis could have done more here i would agree if that it if the attorney gave the court in a way to do so i gave the court a way to do so by having completely unredacted amounts in the table going on for ten pages for every time entry for every day broken up by every task within each day and that makes it very easy for court to go through and strike out certain amounts which makes this process fairly simple and which is the process that i've seen in multiple cases just as in this case in any case i file if there's an opportunity to have an attorney fees plan for non meritorious claims being made against my clients i'm looking to do that properly under the law and the court usually apportions and strikes out if a believes that certain amounts are proper where they can't be apportioned specifically by each claim there are two claims or if one seems more substantial in some other way but there are different ways to do it that would properly grant attorney fees instead of simply a lemonade in all attorney fees where the court has found a proper basis for them thank you thank you think on the on the first issue of the field the the the issue is was there more than one claim but that's under the complaint or whether it's under the summary judgment record that the court found think looking at the summary j clear that there were four separate claims as the court so found that those four claims were divided among four different plaintiffs none of whom were common in any of the four counts the one i confuse about this i didn't think it matter whether there was more than one claim but rather the right question was whether all of the plaintiffs in any one claim were pursuing a common theory of liability against the defendant so if if you have four plaintiffs and they got to claim two separate claims but in each claim all four plaintiffs are pursuing a common theory of liability pursuing a common amount of of damages doesn't that allow the absolutely and that's the obvious case that's the husband and wife bring a claim for for breach claims there are there are different amounts of plaintiffs seeking different damages under different theories of liability in fact that's that's the difference between the obvious cases and this case that's not how you planned it it it's how what you have to do you have to parse through it you have to if you read looking at the actual allegations of the complaint each of those claims are set forth