Opinion
No. CV04-2701-PHX-NVW
12-30-2011
Charles Edward Byrd, Plaintiff, v. Joseph M. Arpaio et al., Defendants.
ORDER
Before the Court is Plaintiff's Motion/Application for Attorneys' Fees (Doc. 174). This motion includes fees claimed by Fennemore Craig, P.C. (trial counsel) and by Mr. Jarrett Green (counsel on appeal). Defendants and Fennemore Craig have since settled their fees dispute, mooting that portion of the motion. (Doc. 179.) Mr. Green continues to claim his fees.
In the Ninth Circuit, a party/attorney seeking fees incurred on appeal must first move the appellate court for those fees. Cummings v. Connell, 402 F.3d 936, 948 (9th Cir. 2005); Gametech Int'l, Inc. v. Trend Gaming Sys., L.L.C., 380 F. Supp. 2d 1084, 1093-94 (D. Ariz. 2005); Nader v. Brewer, No. CV-04-1699-PHX-FJM, 2009 WL 811450, at *1 (D. Ariz. Mar. 27, 2009). Such a motion was required within 14 days of the mandate. Ninth Circuit Rule 39-1.6(a). The Ninth Circuit, in its discretion, could then refer the motion to the district court. Id. 39-1.8.
This Court's review of the Ninth Circuit's docket shows that Byrd filed no request for fees incurred on appeal, either as part of his briefs or separately. The mandate is also silent about fees.
Apart from this procedural impediment, Mr. Green would be entitled to a substantial award of fees. But this Court may not make such an award unless the Court of Appeals modifies its mandate to allow consideration of such a request.
IT IS THEREFORE ORDERED that Plaintiff's Motion/Application for Attorneys' Fees (Doc. 174) is DENIED.
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Neil V. Wake
United States District Judge