Opinion
2:10-CV-1749 JCM (RJJ).
November 2, 2011
ORDER
Presently before the court is plaintiff Alliance of Nonprofits for Insurance, Risk Retention Group's motion for attorneys' fees and costs. (Doc. #60). Defendants Barratt, et. al. filed an opposition. (Doc. #63). Plaintiff then filed a reply and an errata to the reply. (Docs. #65 and #66).
The court issued an order on July 22, 2011, granting plaintiff's motion for summary judgment and denying defendants' motion for summary judgment. (Doc. #52). In the order, the court expressly held that "plaintiff is entitled to an award of attorney fees under 42 U.S.C. § 1988 to be set pursuant to FRCP 54." (Doc. #52). Defendants filed a notice of appeal of the court's order on July 29, 2011. (Doc. #55). Plaintiff then filed the instant motion for attorneys' fees on August 5, 2011.
Pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54(d)(2), plaintiff moves this court to award $127,828.00 in attorneys' fees and $4,643.41 in costs. Defendants oppose this motion on multiple grounds. Defendants first argue that this court is without jurisdiction to award attorneys' fees. Defendants additionally argue that an award of attorneys' fees in this case is improper because: (1) the court's order depended on the Supremacy Clause, (2) the court cannot award attorneys' fees under 42 U.S.C. §§ 1983 and 1988 against a judicial officer, and (3) amici are not entitled to attorneys' fees. The court will address each of these issues in turn.
Jurisdiction
Ninth Circuit case law clearly establishes that a district court retains jurisdiction to rule upon a request for attorneys' fees even if a notice of appeal has been filed. Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956-57 (9th Cir. 1983). Here, however, defendants argue that the court has been divested of jurisdiction to award attorneys' fees because defendants have appealed the entirety of the court's July 22, 2011, order. (Doc. #52). In other words, defendants argue that because the court's order included a statement that plaintiff was entitled to an award of attorneys' fees — without stating a definite amount — the court was subsequently divested of jurisdiction to award attorneys' fees when defendants filed a notice of appeal of that order.
In support of their argument, defendants cite an unpublished memorandum opinion from the Ninth Circuit, Greenburg v. Roberts Properties, Ltd., 246 Fed. Appx. 500 (9th Cir. 2007). This case does not persuasively support defendants' argument. In Greenburg, the Ninth Circuit stated that an award of attorneys' fees was not collateral to the appeal because "the request for attorneys' fees was fully resolved and the judgment awarding an amount of attorneys' fees was entered prior to the filing of a notice of appeal." Greenburg, 246 Fed. Appx. at **1. Thus, the appellate court had jurisdiction to review the award of attorneys' fees simultaneously with its review of the underlying action. See id.
In the instant case, plaintiff's request for attorneys' fees has not been fully resolved and the court has never awarded a specific amount of attorneys' fees. The court has not issued a final, appealable order on the subject of attorneys' fees. See 28 U.S.C. § 1291; Jensen Elec. Co. v. Moore, Caldwell, Rowland Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir. 1989) (stating that "[a]n order awarding attorney's fees which does not fully dispose of the issue of attorney's fees is not a final, appealable order"); see also Lopez v. Diversified Collection Services, Inc., 199 F.3d 1332, at *1 (9th Cir. 1999) (unpublished decision) (finding that an "order stating that attorney's fees will be awarded is not [a final] order"). Accordingly, the "attorney's fees request [is] collateral to the main action . . .," Greenburg, 246 Fed. Appx. 500, at *1 (quoting International Ass'n of Bridge, Structural, Ornamental, and Reinforcing Ironworker's Local 75 v. Madison Industries, Inc., 733 F.2d 656, 659 (9th Cir. 1984)), and this court has jurisdiction over the instant motion.
Attorneys' Fees
I. Defendants impermissibly are attempting to relitigate the court's final 42 U.S.C. § 1983 holding
Defendants oppose plaintiff's requested attorneys' fees on two grounds: (1) preemption of state law under the Supremacy Clause does not give rise to a cognizable claim under 42 U.S.C. § 1983, and (2) attorneys' fees pursuant to 42 U.S.C. §§ 1983 and 1988 are improper against a judicial officer. (Doc. #63).
These two arguments do not address the merits of awarding discretionary attorneys' fees pursuant to 42 U.S.C. § 1988. Instead, by raising these two defenses against attorneys' fees, defendants are attacking the underlying final 42 U.S.C. § 1983 holding. ( See Doc. #52) (stating "plaintiff is entitled to a remedy under 42 U.S.C. § 1983"). These arguments are not procedurally proper because defendants' notice of appeal has divested this court of jurisdiction over its final § 1983 holding. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). Thus, at this late point in the litigation, defendants cannot relitigate the prior § 1983 holding before this court.
Nevertheless, as stated above, this court retains jurisdiction over the attorneys' fees award because the order granting attorneys' fees was not a final, appealable order. Plaintiff was still required to make an application for attorneys' fees pursuant to Federal Rule of Civil Procedure 54 and Nevada Local Rule 54-16. Therefore, the court's prior order stating plaintiff was entitled to attorneys' fees was not an order which "fully dispose[d] of the issue of attorney's fees" and was not an appealable order. See Jensen Elec. Co., 873 F.2d at 1329.
II. Attorneys' fees for amici
The court's July 22, 2011, order stated that " plaintiff is entitled . . . to an award of attorney fees under 42 U.S.C. § 1988." (Doc. #52, emphasis added). However, the instant motion asks for more than attorneys' fees for the plaintiff; the motion requests $44,255.50 in attorneys' fees for the amicus curiae.
Defendants object to plaintiff's request for attorneys' fees for the amicus curiae. Defendants state that amici are not entitled to attorneys' fees. Specifically, defendants assert that both Ninth Circuit case law and the express language of 42 U.S.C. § 1988 indicate that amici are not eligible for attorneys' fees. (Doc. #63) (citing 42 U.S.C. § 1988; Miller-Wohl Co., Inc. v. Comm'r of Labor and Indus., 694 F.2d 203, 204 (9th Cir. 1982)). In reply, plaintiff asserts that Miller-Wohl has been vacated by the Supreme Court and is no longer good law. Instead, plaintiff cites a Southern District of New York case for the proposition that amici can receive attorneys' fees. (Doc. #65) (citing Russell v. The Bd. of Plumbing Exam., 74 F. Supp 2d 349 (S.D.N.Y 1999)).
Plaintiff correctly notes that the Miller-Wohl decision was vacated by the Supreme Court. See Miller-Wohl Co., Inc. v. Comm'r of Labor and Indus., 479 U.S. 1050 (1987). However, the proposition underlying the Ninth Circuit's Miller-Wohl decision — that amici are not eligible for attorneys' fees — has remained good law. See, e.g., United States v. City of Los Angeles, 82 Fed. Appx. 585 (9th Cir. 2003); GST Tuscon Lightwave, Inc. v. City of Tuscon, 134 F.3d 377 (9th Cir. 1998) (unpublished decision). Accordingly, the court declines to award amici attorneys' fees.
III. Calculation of Relief
Under 42 U.S.C. § 1988, a prevailing party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Ackerley Communications, Inc. v. City of Salem, Or., 752 F.2d 1394, 1396 (9th Cir. 1985) (quoting Newman v. Piggie Park Enterprises Inc., 390 U.S. 400, 402 (1968)). Here, the court has already determined that discretionary attorneys' fees pursuant to § 1988 are proper. ( See Doc. #52) (holding plaintiff "is entitled to an award of attorney fees under 42 U.S.C. § 1988"). Further, defendants' brief has completely failed to address the court's discretionary power to award attorneys' fees pursuant to § 1988, instead focusing on procedurally improper arguments attacking the court's § 1983 ruling. Thus, in the instant motion, the only issue properly before the court is the amount of attorneys' fees.
As stated above, plaintiff moves this court to award $127,828.00 in attorneys' fees and $4,643.41 in costs. (Doc. #60). The court has already determined that it will not award $44,255.50 in requested fees for the amici. Therefore, the court must determine if the remaining $88,215.91 in requested fees and costs is reasonable and if plaintiff's motion conforms to the applicable rules for attorneys' fees.
According to Local Rule 54-16, a party requesting attorneys' fees must file a motion demonstrating the reasonableness of the award, an itemization and description of the work performed, an itemization of all costs, and an attorney affidavit. Plaintiff has complied with the requirements of the local rules, warranting an award of attorneys' fees and costs.
First, plaintiff attached two attorney affidavits to the motion for attorneys' fees. The affidavits assert that Kimberly Maxson-Rushton and Robert Myers, Jr. have reviewed the proposed fees and costs and have determined that they are reasonable. ( See Doc. #60). Second, plaintiff provided the court with records that itemize and describe the work performed by the attorneys. ( See Doc. #60, Exs. #3 and #4).
Upon reviewing the fees sought and determining their reasonableness, the court is inclined to grant attorneys' fees and costs, minus the requested amount for the amici's fees and costs.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff Alliance of Nonprofits for Insurance, Risk Retention Group's motion for attorneys' fees and costs (doc. #60) be, and the same hereby is, GRANTED in part and DENIED in part. Plaintiff is awarded $88,215.91 in attorneys' fees and costs.