Lucht v. MOLALLA RIVER SCHOOL DISTRICT, 63 F. Supp. 2d 1256 (D. Or. 1999)

Dana R. Taylor, Hagen Dye Hirschy & Dilorenzo, PC, Portland, OR, for Plaintiffs.

Nancy Hungerford, Andrea L. Hungerford, Hungerford Law Firm, West Linn, OR, for Defendant.

PANNER, District Judge.

Magistrate Judge Janice M. Stewart filed his Findings and Recommendation on August 4, 1999. the matter is now before me. See 28 U.S.C. § 636(b) (1) (B) and Fed. R.Civ.P. 72(b). No objections have been timely filed. This relieves me of my obligation to give the record de novo review. Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1206 (9th Cir. 1983). See also Britt v. Simi Valley Unified School Dist. 708 F.2d 452, 454 (9th Cir. 1983). I find no error. Accordingly, I ADOPT the findings and Recommendation of Magistrate Judge Stewart.

Plaintiffs' Motion for Attorney Fees and Nontaxable Expenses (#28) is granted. Counsel for Plaintiffs is ordered to submit a Supplemental Judgment to be entered for plaintiffs in the sum of $9,623.28 for attorney's fees and nontaxable expenses. Enforcement of the Supplemental Judgment is stayed pending appeal to the Ninth Circuit Court of Appeals.

IT IS SO ORDERED.

STEWART, United States Magistrate Judge.

After entry of Judgment in their favor on June 25, 1999, and pursuant to 20 U.S.C. § 1415(i) (3) (B), plaintiffs now move for an award of their attorney fees and nontaxable expenses incurred in this case in the sum of $9,623.28 (docket #28). Defendant neither contests the amount of the fees and costs sought, nor that plaintiffs, as the prevailing parties, are entitled to recover their fees and costs. Accordingly, defendant does not object to entry of an Order awarding fees and costs in the amount requested by plaintiffs.

However, on July 15, 1999, defendant appealed the court's Judgment to the Ninth Circuit Court of Appeals. Therefore, defendant requests that the court delay entry of a Supplemental Judgment *1257 awarding attorney fees and costs to plaintiffs until the Ninth Circuit has issued its opinion. Defendant argues that it would be inequitable to require defendant to pay attorney fees and costs now and then require defendant to attempt to recover that payment from plaintiffs, should defendant prevail on appeal. Needless to say, plaintiffs oppose defendant's request.

Given defendant's concern, coupled with the novel issue presented in this case, this court agrees that payment of attorney fees and costs should be deferred pending appeal. However, that goal can be accomplished without delaying entry of a Supplemental Judgment. Rule 8(a) (1) (A) of the Rules of Appellate Procedure permits a party to move in district court for "a stay of the judgment or order of a district court pending appeal." Rather than delay entry of a Supplemental Judgment, this court should enter the Supplemental Judgment for the uncontested amount, but then stay its enforcement pending appeal.

Therefore, this court recommends that plaintiff's Motion for Attorney Fees and Nontaxable Expenses (docket #28) should be GRANTED, that a Supplemental Judgment should be entered for plaintiffs in the sum of $9,623.28 for attorney fees and nontaxable expenses, and that enforcement of the Supplemental Judgment should be stayed pending appeal to the Ninth Circuit Court of Appeals.

Aug. 4, 1999.