Opinion
No. 05-5790.
February 16, 2007.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
Appeal from the United States District Court for the Southern District of New York (Cote, J.).
Arthur Z. Schwartz, Schwartz, Lichten Bright, P.C., New York, NY, for Appellants.
Mitchel B. Craner, New York, NY, for Appellees.
Present: ROSEMARY S. POOLER, ROBERT D. SACK, RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Plaintiffs appeal an order of the district court denying their request for attorneys' fees. We assume the parties' familiarity with the facts, proceedings below, and specification of appellate issues. We hold as follows.
The district court could not award attorney's fees against a non-party to the underlying action. See Toth v. UAW, Local No. 723, 743 F.2d 398, 405 (6th Cir. 1984) ("We find no case law authority which supports or recognizes a separate cause of action for attorneys' fees against a person or entity merely `benefitted' by the resolution of another lawsuit in the plaintiffs favor."); Cantwell v. San Mateo County, 631 F.2d 631, 638-39 (9th Cir. 1980) (declining to award fees against other members of defendant retirement system who benefitted from plaintiffs victory in underlying litigation, for several reasons including their non-party status). We note that a separate action against the Trust was commenced in New York state court seeking attorneys' fees for the same actions that were the subject of this litigation and that an award of attorneys' fees against the Trust has been made. Plaintiffs cannot, as they argue, obtain fees pursuant to the All Writs Act, 28 U.S.C. § 1651, because relief under the All Writs Act is not "necessary or appropriate to effectuate and prevent the frustration of the order [the district court] previously issued." United States v. New York Tel, 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977).
We therefore affirm the judgment of the district court.