Acuna v. United States of America, No. 1:2011cv00406 - Document 42 (E.D. Cal. 2012)
Court Description: ORDER ADOPTING the AMENDED 39 FINDINGS AND RECOMMENDATIONS; Granting in Part Plaintiff's Motion for Approval of Settlement signed by District Judge Lawrence J. O'Neill on 12/11/2012. Notice to Dismiss due by 1/18/2013.(Flores, E)
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Acuna v. United States of America Doc. 42 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 I.A., by and through his guardian ad litem, ADRIANA ACUNA, ) ) ) Plaintiff, ) v. ) ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) _______________________________________ ) Case No.: 1:11-cv-00406-LJO-JLT ORDER ADOPTING THE AMENDED FINDINGS AND RECOMMENDATIONS GRANTING IN PART PLAINTIFF’S MOTION FOR APPROVAL OF SETTLEMENT Plaintiff I.A. is a minor appearing in this proceeding by and through his guardian ad litem, 18 Adriana Acuna, who seeks approval of the settlement of Plaintiff’ claims. (Doc. 32). On December 19 7, 2012, the Magistrate Judge recommended approval be granted in part. (Doc. 39). 20 Specifically, the Magistrate Judge found the proposed settlement amount of $4,550,000.00 21 was “fair, reasonable, and in the best interests of the child,” and recommended approval of the 22 proposed settlement total. (Doc. 39 at 4). In addition, the Magistrate Judge found the requested fee 23 award of $730,213.67 was reasonable, and recommended the amount be awarded to Plaintiff’s 24 counsel. Id. 25 Although the parties requested to hold $100,000.00 in a client trust account for costs, the 26 Magistrate Judge determined this was not reasonable. (Doc. 39 at 5). Further, the Magistrate Judge 27 found Plaintiff’s counsel was not entitled to recover costs related to claims against the County. Id. 28 Therefore, the Magistrate Judge recommended costs in the amount of $83,534.30 be granted. 1 Dockets.Justia.com 1 In addition, the Magistrate Judge recommended payment in the amount of $61,213.52 to the 2 Department of Health Care Services to refund costs of medical services advanced by Medi-Cal. 3 (Doc. 39 at 6). Although Plaintiff’s counsel requested twenty-five percent of the original lien 4 amount be paid as attorney fees and costs, the Magistrate Judge determined “counsel has failed to 5 demonstrate the child is not paying twice for the same legal effort, or that the costs awarded above 6 do not include costs related to recovery the amount due on the Medi-Cal lien.” Id. (citing Diamond 7 v. John Martin Co., 753 F.2d 1465, 1467 (9th Cir. 1985) (“[T]he burden of proof is on the party 8 seeking the attorney fee award.”)). Therefore, the Magistrate Judge recommended the additional 9 award for attorney fees and costs from the Medi-Cal lien be denied. 10 The parties were granted fourteen days from the date of service to file objections to the 11 Magistrate’s Amended Findings and Recommendations. (Doc. 39 at 7). On December 11, 2012, 12 Plaintiff and Defendant filed a “Notices of Non-Objection” to the Findings and Recommendations. 13 (Docs. 40-41). 14 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley 15 United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of 16 the case. Having carefully reviewed the entire file, the Court finds that the findings and 17 recommendation are supported by the record and by proper analysis. 18 Accordingly, IT IS HEREBY ORDERED: 19 1. 20 The Amended Findings and Recommendations issued December 7, 2012, are ADOPTED IN FULL; 21 2. The settlement of $4,550,000.00 for the claims of I.A. is APPROVED; 22 3. The motion to approve attorney fees is GRANTED in the amount of $730,213.67; 23 4. The motion to approve costs is GRANTED in the amount of $83,534.30; 24 5. Payment to the Department of Health Care Services is ORDERED in the amount of 25 26 $61,213.52; 6. The balance of the initial payment amount attributable to the child ($1,750,000 of 27 $4,550,000) after the lien, fees and costs are paid—which equals $875,038.51—is 28 ORDERED deposited in the “I[ ]. A[ ]. Special Needs Trust;” and 2 1 7. The remainder of the settlement proceeds, $2,800,000, is ORDERED to be used to 2 purchase installment refund annuity contracts which pay at least $4,535.65 monthly 3 and increase at least by 3 percent compounded annually, after the first year of 4 payments. 5 This Court VACATES all pending matters and dates, including the January 16, 2013 pretrial 6 conference and February 25, 2013 trial, and FURTHER ORDERS the parties, no later than January 7 18, 2013, to file papers to dismiss this action in its entirety or to show good cause why this action has 8 not been dismissed. 9 10 11 12 IT IS SO ORDERED. 13 14 Dated: 15 66h44d December 11, 2012 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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