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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Spirit Master Funding X LLC,

Plaintiff,

v. 

BCB Holdings Incorporated, et al.,

Defendants.

No. CV-18-00957-PHX-DLR

ORDER 

This action concerns Defendants’ breach of a commercial lease and related 

guaranties. The Court previously granted summary judgment for Plaintiff. (Docs. 68, 70.) 

Plaintiff had requested that the Court include in the total damages award its reasonable 

attorneys’ fees and costs pursuant to fee-shifting provisions in the lease and guaranties, but 

Defendants opposed the request—not because of a disagreement over the applicability of 

the fee-shifting provisions or over the reasonableness of the fees and costs sought, but 

because Defendants believed Plaintiff’s request should be made in a separate fee motion 

pursuant to Local Rule of Civil Procedure (“LRCiv”) 54.2. After noting some ambiguity 

about whether such fees and costs may be considered an element of damages (and therefore 

exempt from LRCiv 54.2), the Court declined to award Plaintiff its fees and costs at 

summary judgment and instead directed Plaintiff to file a separate, LRCiv 54.2-compliant 

application.

On May 22, 2020, Plaintiff filed an application for attorney’s fees and costs pursuant 

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to LRCiv 54.2. (Docs. 72-73.) Plaintiff seeks attorneys’ fees in the amount of $288,435.50 

and non-taxable costs in the amount of $22,376.20. Although they previously insisted that 

Plaintiff file this separate application, Defendants chose not to respond to it. The Court 

may deem Defendants’ failure to respond as a consent to the granting of the motion. LRCiv 

7.2(i). Nonetheless, the Court has reviewed Plaintiff’s application and finds it well-taken.

Plaintiff is entitled to recover its attorneys’ fees and costs pursuant to the fee-shifting 

provisions in the lease and guaranties. (Doc. 73 at 4.) When attorneys’ fees are sought 

pursuant to a contractual provision, a fee award must be supported by proof of what is 

reasonable. Schweiger v. China Doll Rest., Inc., 673 P.2d 927, 931 (Ariz. Ct. App. 1983). 

“A fee award calculated by a lodestar method—multiplying a reasonable hourly rate by the 

number of hours expended—is presumptively reasonable.” Flood Control Dist. of 

Maricopa Cty. v. Paloma Inv. Ltd. P’ship, 279 P.3d 1191, 1212 (Ariz. Ct. App. 2012). 

“[I]n corporate and commercial litigation between feepaying clients, there is no need to 

determine the reasonable hourly rate prevailing in the community for similar work because 

the rate charged by the lawyer to the client is the best indication of what is reasonable under 

the circumstances of the particular case.” Schweiger, 673 P.2d at 931-32. However, “upon 

the presentation of an opposing affidavit setting forth the reasons why the hourly billing 

rate is unreasonable, the court may utilize a lesser rate.” Id. at 932.

Once the prevailing party makes a prima facie case that the fees requested are 

reasonable, the burden shifts to the party opposing the fee request to establish that the 

amount requested is clearly excessive. If that party fails to make such a showing of 

unreasonableness, the prevailing party is entitled to full payment of the fees. If, however, 

the party opposing the award shows that the otherwise prima facie reasonable fee request 

is excessive, the Court has discretion to reduce the fees to a reasonable level. Geller v. 

Lesk, 285 P.3d 972, 976 (Ariz. Ct. App. 2012).

Here, Plaintiff has met its prima facie burden by submitting detailed, task-based 

itemizations of the fees and costs incurred prosecuting this action. The burden therefore 

shifts to Defendants to present specific objections to the reasonableness of the fees and 

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costs requested. Defendants, by failing to respond, have not done so.1 Accordingly,

IT IS ORDERED that Plaintiff’s motion for attorneys’ fees and non-taxable costs 

(Docs. 72-73) is GRANTED. Plaintiff is awarded attorneys’ fees in the amount of 

$288,435.50 and non-taxable costs in the amount of $22,376.20.

Dated this 26th day of June, 2020.

Douglas L. Rayes

United States District Judge

1 Notably, the parties consulted before Plaintiff filed its motion in an effort to resolve 

the attorneys’ fees and costs issues without Court intervention. According to Plaintiff, “the 

parties were unable to reach any agreement on the amount of attorneys’ fees to which Spirit 

is entitled.” (Doc. 73-14.) This is surprising, given that whatever objections Defendants 

might have had during this consultation, they did not raise with the Court through a 

responsive pleading.

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