-RJJ Alliance of Nonprofits for Insurance, Risk Retention Group v. Brett J. Barratt, Commissioner of Insurance of the State of Nevada et al, No. 2:2010cv01749 - Document 69 (D. Nev. 2011)
Court Description: ORDER Granting in part and denying in part 60 Plaintiff Alliance of Nonprofits for Insurance, Risk Retention Group's Motion for Attorney Fees and costs. Plaintiff is awarded $88,215.91 in attorneys' fees and costs. Signed by Judge James C. Mahan on 11/2/11. (Copies have been distributed pursuant to the NEF - EDS)
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-RJJ Alliance of Nonprofits for Insurance, Risk Retention Group ...nce of the State of Nevada et al Doc. 69 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 8 ALLIANCE OF NONPROFITS FOR INSURANCE, RISK RETENTION GROUP, 9 2:10-CV-1749 JCM (RJJ) Plaintiff, 7 10 v. 11 12 BRETT J. BARRATT, et al., Defendants. 13 14 15 ORDER 16 Presently before the court is plaintiff Alliance of Nonprofits for Insurance, Risk Retention 17 Group’s motion for attorneys’ fees and costs. (Doc. #60). Defendants Barratt, et. al. filed an 18 opposition. (Doc. #63). Plaintiff then filed a reply and an errata to the reply. (Docs. #65 and #66). 19 The court issued an order on July 22, 2011, granting plaintiff’s motion for summary judgment 20 and denying defendants’ motion for summary judgment. (Doc. #52). In the order, the court 21 expressly held that “plaintiff is entitled to an award of attorney fees under 42 U.S.C. § 1988 to be 22 set pursuant to FRCP 54.” (Doc. #52). Defendants filed a notice of appeal of the court’s order on 23 July 29, 2011. (Doc. #55). Plaintiff then filed the instant motion for attorneys’ fees on August 5, 24 2011. 25 Pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54(d)(2), plaintiff moves 26 this court to award $127,828.00 in attorneys’ fees and $4,643.41 in costs. Defendants oppose this 27 motion on multiple grounds. Defendants first argue that this court is without jurisdiction to award 28 James C. Mahan U.S. District Judge Dockets.Justia.com 1 attorneys’ fees. Defendants additionally argue that an award of attorneys’ fees in this case is 2 improper because: (1) the court’s order depended on the Supremacy Clause, (2) the court cannot 3 award attorneys’ fees under 42 U.S.C. §§ 1983 and 1988 against a judicial officer, and (3) amici are 4 not entitled to attorneys’ fees. The court will address each of these issues in turn. 5 Jurisdiction 6 Ninth Circuit case law clearly establishes that a district court retains jurisdiction to rule upon 7 a request for attorneys’ fees even if a notice of appeal has been filed. Masalosalo v. Stonewall Ins. 8 Co., 718 F.2d 955, 956-57 (9th Cir. 1983). Here, however, defendants argue that the court has been 9 divested of jurisdiction to award attorneys’ fees because defendants have appealed the entirety of the 10 court’s July 22, 2011, order. (Doc. #52). In other words, defendants argue that because the court’s 11 order included a statement that plaintiff was entitled to an award of attorneys’ fees – without stating 12 a definite amount – the court was subsequently divested of jurisdiction to award attorneys’ fees when 13 defendants filed a notice of appeal of that order. 14 In support of their argument, defendants cite an unpublished memorandum opinion from the 15 Ninth Circuit, Greenburg v. Roberts Properties, Ltd., 246 Fed. Appx. 500 (9th Cir. 2007). This case 16 does not persuasively support defendants’ argument. In Greenburg, the Ninth Circuit stated that an 17 award of attorneys’ fees was not collateral to the appeal because “the request for attorneys’ fees was 18 fully resolved and the judgment awarding an amount of attorneys’ fees was entered prior to the filing 19 of a notice of appeal.” Greenburg, 246 Fed. Appx. at **1. Thus, the appellate court had jurisdiction 20 to review the award of attorneys’ fees simultaneously with its review of the underlying action. See 21 id. 22 In the instant case, plaintiff’s request for attorneys’ fees has not been fully resolved and the 23 court has never awarded a specific amount of attorneys’ fees. The court has not issued a final, 24 appealable order on the subject of attorneys’ fees. See 28 U.S.C. § 1291; Jensen Elec. Co. v. Moore, 25 Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir. 1989) (stating that “[a]n order 26 awarding attorney’s fees which does not fully dispose of the issue of attorney’s fees is not a final, 27 appealable order”); see also Lopez v. Diversified Collection Services, Inc., 199 F.3d 1332, at *1 (9th 28 James C. Mahan U.S. District Judge -2- 1 Cir. 1999) (unpublished decision) (finding that an “order stating that attorney’s fees will be awarded 2 is not [a final] order”). Accordingly, the “attorney’s fees request[ is] collateral to the main action 3 . . . ,” Greenburg, 246 Fed. Appx. 500, at *1 (quoting International Ass’n of Bridge, Structural, 4 Ornamental, and Reinforcing Ironworker’s Local 75 v. Madison Industries, Inc., 733 F.2d 656, 659 5 (9th Cir. 1984)), and this court has jurisdiction over the instant motion. 6 Attorneys’ Fees 7 I. 8 1983 holding 9 Defendants impermissibly are attempting to relitigate the court’s final 42 U.S.C. § Defendants oppose plaintiff’s requested attorneys’ fees on two grounds: (1) preemption of 10 state law under the Supremacy Clause does not give rise to a cognizable claim under 42 U.S.C. § 11 1983, and (2) attorneys’ fees pursuant to 42 U.S.C. §§ 1983 and 1988 are improper against a 12 judicial officer. (Doc. #63). 13 These two arguments do not address the merits of awarding discretionary attorneys’ fees 14 pursuant to 42 U.S.C. § 1988. Instead, by raising these two defenses against attorneys’ fees, 15 defendants are attacking the underlying final 42 U.S.C. § 1983 holding. (See Doc. #52) (stating 16 “plaintiff is entitled to a remedy under 42 U.S.C. § 1983”). These arguments are not 17 procedurally proper because defendants’ notice of appeal has divested this court of jurisdiction 18 over its final § 1983 holding. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 19 (1982). Thus, at this late point in the litigation, defendants cannot relitigate the prior § 1983 20 holding before this court. 21 Nevertheless, as stated above, this court retains jurisdiction over the attorneys’ fees award 22 because the order granting attorneys’ fees was not a final, appealable order. Plaintiff was still 23 required to make an application for attorneys’ fees pursuant to Federal Rule of Civil Procedure 24 54 and Nevada Local Rule 54-16. Therefore, the court’s prior order stating plaintiff was entitled 25 to attorneys’ fees was not an order which “fully dispose[d] of the issue of attorney’s fees” and 26 was not an appealable order. See Jensen Elec. Co., 873 F.2d at 1329. 27 28 James C. Mahan U.S. District Judge -3- 1 II. 2 Attorneys’ fees for amici The court’s July 22, 2011, order stated that “plaintiff is entitled . . . to an award of 3 attorney fees under 42 U.S.C. § 1988.” (Doc. #52, emphasis added). However, the instant 4 motion asks for more than attorneys’ fees for the plaintiff; the motion requests $44,255.50 in 5 attorneys’ fees for the amicus curiae. Defendants object to plaintiff’s request for attorneys’ fees for the amicus curiae. 6 7 Defendants state that amici are not entitled to attorneys’ fees. Specifically, defendants assert that 8 both Ninth Circuit case law and the express language of 42 U.S.C. § 1988 indicate that amici are 9 not eligible for attorneys’ fees. (Doc. #63) (citing 42 U.S.C. § 1988; Miller-Wohl Co., Inc. v. 10 Comm’r of Labor and Indus., 694 F.2d 203, 204 (9th Cir. 1982)). In reply, plaintiff asserts that 11 Miller-Wohl has been vacated by the Supreme Court and is no longer good law. Instead, plaintiff 12 cites a Southern District of New York case for the proposition that amici can receive attorneys’ 13 fees. (Doc. #65) (citing Russell v. The Bd. of Plumbing Exam., 74 F. Supp 2d 349 (S.D.N.Y 14 1999)). Plaintiff correctly notes that the Miller-Wohl decision was vacated by the Supreme Court. 15 16 See Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus., 479 U.S. 1050 (1987). However, the 17 proposition underlying the Ninth Circuit’s Miller-Wohl decision – that amici are not eligible for 18 attorneys’ fees – has remained good law. See, e.g., United States v. City of Los Angeles, 82 Fed. 19 Appx. 585 (9th Cir. 2003); GST Tuscon Lightwave, Inc. v. City of Tuscon, 134 F.3d 377 (9th Cir. 20 1998) (unpublished decision). Accordingly, the court declines to award amici attorneys’ fees. 21 III. Calculation of Relief 22 Under 42 U.S.C. § 1988, a prevailing party “should ordinarily recover an attorney’s fee 23 unless special circumstances would render such an award unjust.” Ackerley Communications, 24 Inc. v. City of Salem, Or., 752 F.2d 1394, 1396 (9th Cir. 1985) (quoting Newman v. Piggie Park 25 Enterprises Inc., 390 U.S. 400, 402 (1968)). Here, the court has already determined that 26 discretionary attorneys’ fees pursuant to § 1988 are proper. (See Doc. #52) (holding plaintiff “is 27 entitled to an award of attorney fees under 42 U.S.C. § 1988”). Further, defendants’ brief has 28 James C. Mahan U.S. District Judge -4- 1 completely failed to address the court’s discretionary power to award attorneys’ fees pursuant to 2 § 1988, instead focusing on procedurally improper arguments attacking the court’s § 1983 ruling. 3 Thus, in the instant motion, the only issue properly before the court is the amount of attorneys’ 4 fees. 5 As stated above, plaintiff moves this court to award $127,828.00 in attorneys’ fees and 6 $4,643.41 in costs. (Doc. #60). The court has already determined that it will not award 7 $44,255.50 in requested fees for the amici. Therefore, the court must determine if the remaining 8 $88,215.91 in requested fees and costs is reasonable and if plaintiff’s motion conforms to the 9 applicable rules for attorneys’ fees. 10 According to Local Rule 54-16, a party requesting attorneys’ fees must file a motion 11 demonstrating the reasonableness of the award, an itemization and description of the work 12 performed, an itemization of all costs, and an attorney affidavit. Plaintiff has complied with the 13 requirements of the local rules, warranting an award of attorneys’ fees and costs. 14 First, plaintiff attached two attorney affidavits to the motion for attorneys’ fees. The 15 affidavits assert that Kimberly Maxson-Rushton and Robert Myers, Jr. have reviewed the 16 proposed fees and costs and have determined that they are reasonable. (See Doc. #60). Second, 17 plaintiff provided the court with records that itemize and describe the work performed by the 18 attorneys. (See Doc. #60, Exs. #3 and #4). 19 Upon reviewing the fees sought and determining their reasonableness, the court is 20 inclined to grant attorneys’ fees and costs, minus the requested amount for the amici’s fees and 21 costs. 22 Accordingly, 23 ... 24 ... 25 ... 26 ... 27 ... 28 James C. Mahan U.S. District Judge -5- 1 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff Alliance of 2 Nonprofits for Insurance, Risk Retention Group’s motion for attorneys’ fees and costs (doc. #60) 3 be, and the same hereby is, GRANTED in part and DENIED in part. Plaintiff is awarded 4 $88,215.91 in attorneys’ fees and costs. 5 DATED November 2, 2011. 6 7 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -6-
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