Tutor v. City of Hailey

Full title: RONALD N. TUTOR, an Individual; and TUTOR-SALIBA CORPORATION, a California…

Court: United States District Court, D. Idaho

Date published: Jun 29, 2004

Case No. CV-02-475-S-BLW (D. Idaho Jun. 29, 2004)

Opinion

Case No. CV-02-475-S-BLW.

June 29, 2004

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief Judge, District

Introduction

The Court has before it Plaintiffs' Motion to Vacate the April 6, 2004 Attorney's Fee Order and Alternative Motion to Stay Enforcement of the Attorney's Fee Order Pending Appeal Without the Necessity of Posting a Bond (Motion to Vacate). For the reasons set forth below, the Court will deny the motion and alternative motion.

Background

Plaintiffs Ronald N. Tutor and Tutor-Saliba Corporation alleged various constitutional, federal statutory and state law claims in their Complaint. On January 21, 2004, the Court entered summary judgment in favor of Defendants the City of Hailey and the Friedman Memorial Airport Authority on all claims. Plaintiffs have appealed that decision.

Post judgment, the Defendants requested attorney's fees and costs pursuant to 42 U.S.C. § 1988 and Rule 54(d). On April 6, 2004, the Court entered an Order granting, in part, and denying, in part, the Defendants' request. The Court awarded Defendants attorney's fees only in connection with Plaintiffs' constitutional claims. In determining the amount of the award, the Court acknowledged that most of the parties' work had focused on Plaintiffs' statutory claims under the Airports and Airways Improvements Act (AAIA) and the Airport Noise and Capacity Act (ANCA), claims which the Court deemed non-frivolous.¹ The Court also determined that only twenty percent of the Defendants' work was attributable to defense of the constitutional claims, which the Court found to be frivolous. Accordingly the Court ruled that "an award of twenty percent of the Airport's fees is commensurate with the time expended by the Airport in defending the constitutional claims."² Memorandum Decision and Order, p. 15. On April 20, 2004, Plaintiffs filed the present motion and, on May 6, 2004, Plaintiffs filed a Notice of Appeal regarding the Attorney's Fee Order.

1 In the Memorandum Decision and Order on Summary Judgment, the Court found it unnecessary to determine whether Plaintiffs' claims under the AAIA or the ANCA were actionable under § 1983.

2 The Court determined that Plaintiffs' state law claim was without merit but, because the Defendants failed to cite to any authority which authorizes an award of attorney's fees for the state law claim, denied the Defendants' request for attorney's fees on this claim.

Discussion

The Court will first address Plaintiffs' motion to vacate the Attorney's Fee Order, then the Alternative Motion to Stay Enforcement of the Attorney's Fee Order Pending Appeal Without the Necessity of Posting a Bond.

I Motion to Vacate Attorney's Fee Order

Before discussing Plaintiffs' challenge to the Court's Order, the Court will address Defendants' contention that the present motion is moot. Defendants assert that the Federal Rules of Civil Procedure do not recognize or provide for a "motion to vacate" an appealable order and that Plaintiffs have availed themselves of a complete and adequate remedy, namely initiating an appeal of the Order awarding attorney's fees. However, neither styling the motion as a "Motion to Vacate" nor filing a Notice of Appeal while the motion is pending renders the motion moot. Federal Rule of Appellate Procedure 4(a)(4)(A)(iv) contemplates the filing of a motion to alter or amend the judgment under Fed.R.Civ.P. 59(e). The Court will look to the import of the motion, not its label, and will treat the Plaintiffs' motion as a motion to alter or amend the judgment. Also, a notice of appeal from a judgment or order does not divest this court of jurisdiction to determine a timely motion addressed to that order. See United National Insurance Company v. RD Latex Corp., 242 F.3d 1102, 1109 (9^th Cir. 2001) ("The notice of appeal in this case did not . . . divest the district court of jurisdiction at the time it was filed because there was then a pending motion for reconsideration.") See also Miller v. Marriott Int'l, Inc., 300 F.3d 1061, 1063-64 (9^th Cir. 2002). Based on the foregoing, the Court finds that Plaintiffs' motion is not moot.

Ordinarily, "[r]econsideration is appropriate [under Rule 59(e)] if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. School District No. IJ Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9^th Cir. 1993). Here, Plaintiffs' motion is grounded in their assertion that the Court committed clear error by applying an incorrect standard in ruling on Defendants' request for attorney's fees.

District courts are authorized to award attorneys' fees to a prevailing defendant in civil rights cases only in those exceptional cases when the action is unreasonable, frivolous, meritless, or without foundation, or when the plaintiff continues to litigate after it clearly becomes so. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); see also Franceschi v. Schwartz, 57 F.3d 828, 832 (9^th Cir. 1995). The Defendants' constitutional claims meet this standard. In awarding Defendants part of the requested attorney's fees, the Court considered the amount of the fee requested, whether the claims were frivolous or non-frivolous, the results obtained, the extent to which the frivolous and non-frivolous claims were interrelated, the extent to which the work by Defendants' counsel could be fairly attributable to defending the frivolous claims, and the various additional factors set forth in the Attorney's Fee Order. However, Plaintiffs assert that, if any one of the multiple grounds of plaintiffs' 1983 cause of action had merit, then no fees may be awarded under Section 1988 for defending even the frivolous claims. As Plaintiffs point out, the Court concluded that Plaintiffs' federal statutory claims were not meritless and denied the Defendants' request for fees for these claims.³ Hence, the question is: May the Defendants, who prevailed on all claims in a civil rights action, frivolous and non-frivolous alike, recover attorney's fees for legal services incurred in defending the frivolous claims?

3 Plaintiffs also contend that their constitutional claims were not frivolous because Defendants did not file a motion to dismiss the claims but waited to file a motion for summary judgment. However, the Defendants' tactical decision to wait until the end of discovery to seek summary judgment does not render Plaintiffs' constitutional claims non-frivolous.

Plaintiffs attempt to analogize their argument — that if any grounds for their action were not meritless, then the entire action was not meritless — to Fed.R.Civ.P. 12(b)(6) which states: "that a complaint shall not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41 (1957). However, this attempted analogy is unavailing. As Defendants point out in their response to the present motion, Rule 12(b)(6) serves very different purposes than 42 U.S.C. § 1988 and for the Rule 12(b)(6) analogy to support Plaintiffs' position, Rule 12(b)(6) would have to provide that if any aspect of a complaint could survive a Rule 12(b)(6) motion, then no aspect of the complaint could be dismissed. That, of course, is not the case.

Recently, in Peters v. Winco Foods, Inc., ___ F.Supp.2d ___, 2004 WL 1234106 (E.D.CA) (Apr. 29, 2004), the district court resolved this issue in the context of an Americans with Disabilities Act (ADA)⁴ case where the plaintiff had alleged numerous violations of the ADA and state law. The district court granted the defendant's motion for summary judgment on all federal causes of action and declined to exercise supplemental jurisdiction over the state law claims. Ruling on the defendants' request for attorney's fees, the district court discussed the problems that arise when a defendant seeks attorneys fees for defending frivolous claims that may be interrelated with non-frivolous claims. The court observed that the circuits are split:

4 42 U.S.C. 122200 et seq.

In cases where some of plaintiff's losing claims are frivolous but others are not, some Circuits have applied the Supreme Court's reasoning from Hensley v. Eckerhart, 461 U.S. 424 (1983), to conclude that, where plaintiff's frivolous and nonfrivolous claims are interrelated, the defendant may not recover attorney's fees for time spent defending the frivolous claims. Tarter v. Raybuck, 742 F.2d 977 (6^th Cir. 1984) (finding district court abused its discretion in awarding attorneys' fees to defendant because action that included one non-frivolous Fourth Amendment claim was not wholly meritless or without foundation); Colombrito v. Kelly, 764 F.2d 122, 132 (2d Cir. 1985) (reversing district court's award of attorneys' fees where plaintiff's claims were closely intertwined and continuation of the meritless claim past discovery had only scant effect on the time and other resource costs of the litigation). See also Conte, Alba, Attorney Fee Awards 2d Ed. (2003).

However, other Circuits have permitted an award of attorneys fees for costs of defending the frivolous claims even where they are interrelated with non-frivolous claims. See Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993) (stating that "a district court should not deny fees for defending frivolous claims merely because calculation would be difficult"); Curry v. A.H. Robbins Co., 775 F.2d 212 (7^th Cir. 1985) (holding that a prevailing defendant may be awarded fees incurred in defending against a frivolous claim or portion thereof, even if other claims asserted by the plaintiff were not frivolous); Head v. Medford, 62 F.3d 351 (11^th Cir. 1995) (reversing district court's denial of attorneys' fees for frivolous federal due process claims even though no finding had been made regarding merit of state law claims over which court declined to exercise supplemental jurisdiction).

Id. at 3. Hence, the Circuits are divided in their approach to the issue. The Ninth Circuit has yet to address this question. However, the Peters Court concluded that it had discretion to award attorneys fees, even where the plaintiff's action was not wholly frivolous. In reaching its decision, the Peters Court discussed two Ninth Circuit cases, Jensen v. Stangel, 762 F.2d 818 (9th Cir. 1985) and Saman v. Robbins, 173 F.3d 1150 (9^th Cir. 1999). It stated:

In Jensen v. Stanngel (sic) . . ., the Court appeared to apply Hensley to deny a prevailing defendant attorneys fees. See Conte, Alba, Attorney Fee Awards § 5.03 (2d ed. 2003) (citing Jensen for the proposition that "courts have applied the Hensley analysis in determining that if the frivolous and non frivolous claims are interrelated the defendant may not recover attorneys' fees . . . for time spen[t] defending the frivolous claims.") In Jensen, the Ninth Circuit reversed the lower court's award of attorneys fees to defendants in a civil rights action against the City of San Jose and individual police officers. The Court found that the plaintiff's claim against the individual officer was not frivolous and reversed the fee award as to that officer. However, the Court also reversed the award to the City of San Jose, even though plaintiff's claim against the City may have become frivolous after discovery failed to produce evidence supporting plaintiff's claims. Without citing Hensley, the court noted that the attorney "spent the bulk of his time defending [the nonfrivolous claim]" and counsel conceded the "city's fee claim would rise and fall with the [officer's] claim. Id. at 819.

However, in Saman v. Robbins . . ., the Ninth Circuit reached a contrary result. In that case, the district court had denied attorneys fees to all defendants in a civil rights action, concluding that "although several of plaintiffs' claims may have been groundless, those claims were related to plaintiffs' nonfrivolous claims." Id. at 1157. The Ninth Circuit held that the district court abused its discretion in denying attorneys' fees to one of the defendants, against whom all claims were groundless. Thus, Saman approved the award of attorneys fees to one defendant where some of plaintiff's claims against other defendants were not frivolous.

Id. at 4. Observing that "neither Jensen nor Saman addresses the precise situation before the court," the Peters Court concluded that "they do suggest that this Circuit affords the district court discretion to award attorneys fees, even where plaintiff's action is not wholly frivolous." Id. Moreover, in FN 4, the Peters Court opined:

The language of the Saman Court's decision also suggests that district courts have discretion to award fees where the plaintiff has asserted both frivolous and nonfrivolous claims against the same defendant. In affirming the district court's denial of fees to several other defendants, the Court stated that "we cannot say that the district court abused its discretion by finding that the circumstances of this case did not warrant and (sic) award of attorney fees . . ." If the Court intended to mandate that district courts deny fees in all cases containing related frivolous and nonfrivolous claims, it would do so expressly rather [than] simply finding that the court "[could not] say the [lower] court abused its discretion."

Id. Finding this analysis persuasive, the Court concurs with the view stated by the district court in Peters. ⁵ Under the circumstances present here, Defendants are entitled to an award of attorney's fees for the work performed in defending the frivolous constitutional claims.

5 Plaintiffs also argue that the Court failed to analyze the § 1983 cause of action as it appeared at the outset of the litigation but rather has engaged in "hindsight logic." However, the Plaintiffs could not, even at the outset of the litigation, establish that they had a Constitutionally protected right to operate their preferred aircraft at their preferred airport.

II Alternative Motion to Stay Enforcement of the Attorney's Fee Order Pending Appeal Without the Necessity of Posting a Bond

Rule 62(d) of the Federal Rules of Civil Procedure provides that "[w]hen an appeal is taken the appellant by giving a supersedeas bond may obtain a stay." A supersedeas bond preserves the status quo while protecting the non-appealing party's rights pending appeal. Plaintiffs have not posted a supersedeas bond.

In spite of the general requirement that a judgment debtor post a supersedeas bond in the full amount of the judgment, the district court, in its discretion, may use equitable principles to grant a stay of enforcement of the judgment pending appeal without a supersedeas bond. Equitable factors the Court may consider include: (1) the likelihood of success on the merits; (2) the extent of irreparable injury if a stay does not issue; (3) the balance of hardships; and (4) the public interest. United States v. Penninsula Communications, Inc., 287 F.3d 832, 838 (9^th Cir. 2002).

The Court has reviewed the file, including the memoranda and affidavits submitted in support of, and in opposition to, the present motion. Considering the arguments of counsel in light of the above principles, the Court concludes that Plaintiffs are not entitled to a stay. With regard to the first factor, Plaintiffs have failed to demonstrate a likelihood that they will prevail on appeal. With regard to the second factor, the Plaintiffs have provided the Court with no information that would warrant a finding that compliance with the attorney's fee order would present a financial hardship. Rule 62(d) dictates that, in the ordinary case, execution on a judgment for money should not be stayed unless the party that prevailed in the district court is secured from loss. Here, Plaintiffs have failed to propose any plan whatsoever to provide adequate alternative security that would preserve their current ability to satisfy the judgment. Similarly, with regard to the third factor, the Plaintiffs have provided the Court with no information or argument that would give rise to a finding that the balance of hardships tip in their favor. Finally, with regard to the fourth factor, the Plaintiffs have made no showing that a stay is necessary to further the public interest. Based on the foregoing, the Court finds that Plaintiffs are not entitled to a stay without the necessity of posting a bond.

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs' Motion to Vacate the April 6, 2004, Attorney's Fee Order and Alternative Motion to Stay Enforcement of the Attorney's Fee Order Pending Appeal Without the Necessity of Posting a Bond (Docket No. 106) are DENIED.