Opinion
NO. CIV. S-05-1502 LKK/JFM.
December 7, 2007
ORDER
The court is in receipt of defendants' request for entry of judgment. On July 3, 2007, this action was dismissed without prejudice pursuant to both the parties' stipulation, Fed.R.Civ.P. 41(a)(1)(ii), and court order, Fed.R.Civ.P. 41(a)(2). On October 11, 2007, the court awarded attorneys' fees, which defendants now seek to appeal.
The clerk of the court does not enter judgment where dismissal is without prejudice. See Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995) ("A voluntary dismissal without prejudice is ordinarily not a final judgment from which the plaintiff may appeal.") (emphasis in original).
In any event, it appears that defendants should be able to appeal the attorneys' fees order without the entry of judgment, because nothing in this case remains to be decided. Cf. Gates v. Rowland, 39 F.3d 1439, 1450 (9th Cir. 1994) (noting only that interim attorneys' fees awards are not appealable); Haitian Refugee Ctr. v. Meese, 791 F.2d 1489, 1494 (11th Cir. 1986) ("the district court's order awarding attorneys' fees is appealable"),vacated on other grounds, 804 F.2d 1573 (11th Cir. 1986).
Although the court in Gates noted that final judgment had been entered in finding that an attorneys' fees award was appealable, the more important issue was that the fee award itself was final.
If defendants disagree, they may file further briefing on the issue.
IT IS SO ORDERED.