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Sotomura v. County of Hawaii

United States Court of Appeals, Ninth Circuit
Jun 7, 1982
679 F.2d 152 (9th Cir. 1982)

Summary

holding plaintiffs were prevailing parties, "even though they prevailed by obtaining dismissal of the appeal as untimely rather than affirmance on the merits"

Summary of this case from Melendres v. Maricopa Cnty.

Opinion

Nos. 80-4488, 80-4498.

June 7, 1982.

Wayne Minami, Atty. Gen., Chelun Huang, Jackie Mahi Erickson, Deputy Attys. Gen., Honolulu, Hawaii, Clifford H. F. Lum, Corp. Counsel, Bruce to, Deputy Corp. Counsel, County of Hawaii, Hilo, Hawaii, for defendants-appellants/cross-appellees.

Clinton Ashford and Douglas MacDougal, of Ashford Wriston, Honolulu, Hawaii, for plaintiffs-appellees/cross-appellants.

Appeal from the United States District Court for the District of Hawaii.

Before BROWNING, Chief Judges, SKOPIL and NORRIS, Circuit Judges.


ORDER


The Sotomuras obtained a judgment in their civil right suit brought under 42 U.S.C. § 1983. Defendant appealed. After briefs were filed on the merits and on the Sotomuras' motion to dismiss the appeal as untimely, we granted the motion to dismiss. The Sotomuras now seek attorney's fees under 42 U.S.C. § 1988 for services performed in connection with the appeal. The Sotomuras are "prevailing parties," a prerequisite to such an award, even though they prevailed by obtaining dismissal of the appeal as untimely rather than affirmance on the merits. Hastings v. Maine-Endwell Central School District New York, 676 F.2d 893, 896 (2d Cir. 1982). Cf. Macher v. Gayne, 448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980); Williams v. Alioto, 625 F.2d 845, 847-48 (9th Cir. 1980).

Normally fees are not awardable to a party who prevails on appeal only because of erroneous procedural or evidentiary rulings below. Hanrahan v. Hampton, 446 U.S. 754, 759, 100 S.Ct. 1987, 1990, 64 L.Ed.2d 670 (1980). But this court's ruling on the motion to dismiss was not interlocutory but final and, in effect, conclusively determined the "substantial rights of the parties." Id. at 757, 100 S.Ct. at 1989. Our dismissal contemplates no future proceedings involving the merits of the controversy which could change the favorable result obtained by the Sotomuras. Swietlowich v. County of Buchs, 620 F.2d 33, 34 (3d Cir. 1980). Viewing the litigation as a whole, Gurule v. Wilson, 635 F.2d 782, 791 (10th Cir. 1981), the Contours successfully defended the district court judgment in their favor and are "prevailing parties" under section 1988.

The Sotomuras seek $34,941.40 in attorney's fees. Although the issues were complex, most of the legal arguments had already been briefed before the district court. The hours claimed for preparation some duplicator and inefficiency. Upon due considerations, we award attorneys fees in the amount of $25,000 plus costs in the amount of $158.86.

IT IS SO ORDERED.


Summaries of

Sotomura v. County of Hawaii

United States Court of Appeals, Ninth Circuit
Jun 7, 1982
679 F.2d 152 (9th Cir. 1982)

holding plaintiffs were prevailing parties, "even though they prevailed by obtaining dismissal of the appeal as untimely rather than affirmance on the merits"

Summary of this case from Melendres v. Maricopa Cnty.

holding a party that successfully defends a district court ruling on appeal is a "prevailing party"

Summary of this case from Lorillard Tobacco Co. v. Engida

In Sotomura v. County of Hawaii, 679 F.2d 152 (9th Cir. 1982) (per curiam), the panel granted plaintiffs fees for services on appeal when defendant's case was dismissed as untimely.

Summary of this case from Jensen v. City of San Jose
Case details for

Sotomura v. County of Hawaii

Case Details

Full title:JOSEPH YUKI SOTOMURA AND GRACE FUMIYE SOTOMURA…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jun 7, 1982

Citations

679 F.2d 152 (9th Cir. 1982)

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