Stormans Inc, et al v. Mary Selecky

Filing

Filed Order for PUBLICATION (A. WALLACE TASHIMA, SUSAN P. GRABER and MARY H. MURGUIA) The request of Legal Voice f/k/a Northwest Women s Law Center for publication of the Order filed March 31, 2014, is granted, and that Order, in the form filed concurrently herewith, is ordered published. (SEE ATTACHED PUBLISHED ORDER FILED MARCH 31, 2014) [9153506]

Case: 12-35224

07/02/2014

ID: 9153506

DktEntry: 53

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LEGAL VOICE, FKA Northwest
Women’s Law Center,
Non-Party-Appellant,
v.
STORMANS INC., DBA Ralph’s
Thriftway; RHONDA MESLER;
MARGO THELEN,
Plaintiffs-Appellees.

No. 12-35224
D.C. No.
3:07-cv-05374RBL

ORDER

Filed July 2, 2014
Before: A. Wallace Tashima, Susan P. Graber,
and Mary H. Murguia, Circuit Judges.
Order

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LEGAL VOICE V. STORMANS, INC.
SUMMARY*

Attorneys’ Fees
The panel granted the request of Legal Voice f/k/a
Northwest Women’s Law Center for publication of the
panel’s prior order filed March 31, 2014, which granted the
Law Center’s motion for attorneys’ fees on appeal and
transferred the matter to the district court under Ninth Circuit
Rule 39-1.8, for a determination of the amount of fees to be
awarded.
In the March 31, 2014, order, the panel noted that it had
previously held that, under Federal Rule of Civil Procedure
45(d)(2)(B)(ii), the Law Center was entitled to at least a
portion of the expenses it incurred in the district court,
including attorneys’ fees, in complying with the subpoena
duces tecum served on it by plaintiffs. See Legal Voice v.
Stormans Inc., 738 F.3d 1178 (9th Cir. 2013). The panel
determined that its holding that the Law Center was entitled
to attorneys’ fees in the district court necessarily led to the
conclusion that the Law Center also was entitled to attorneys’
fees on appeal.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ORDER
The request of Legal Voice f/k/a Northwest Women’s
Law Center for publication of the Order filed March 31,
2014, is granted, and that Order, in the form filed
concurrently herewith, is ordered published.

ORDER
Legal Voice f/k/a Northwest Women’s Law Center (“Law
Center”) has moved for an award of attorneys’ fees on appeal.
For the reasons briefly discussed below, we grant the Law
Center’s motion and transfer the matter to the district court
under our local rule for a determination of the amount of fees
to be awarded.
We previously held that, under Federal Rule of Civil
Procedure 45(d)(2)(B)(ii), the Law Center is entitled to at
least a portion of the expenses it incurred in the district court,
including attorneys’ fees, in complying with the subpoena
duces tecum served on it by Plaintiffs. See Legal Voice v.
Stormans Inc., 738 F.3d 1178 (9th Cir. 2013). Our holding
that the Law Center is entitled to attorneys’ fees in the district
court necessarily leads to the conclusion that the Law Center
also is entitled to attorneys’ fees on appeal. Generally, a
party that is entitled to an award of attorneys’ fees in the
district court is also entitled to an award of attorneys’ fees on
appeal. See, e.g., Stewart v. Gates, 987 F.2d 1450, 1454 (9th
Cir. 1993) (noting that appellate attorneys’ fees may be
awarded under 42 U.S.C. § 1988’s fee-shifting provision to
a party that successfully defends an award on appeal);
Planned Parenthood of Cent. & N. Ariz. v. Arizona, 789 F.2d

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LEGAL VOICE V. STORMANS, INC.

1348, 1354 (9th Cir. 1986) (awarding attorneys’ fees on
appeal under § 1988 when the plaintiff won on the merits in
the district court and on appeal). We have no trouble
applying this general rule here, when the very purpose of the
appeal was to establish the entitlement to fees. See Orange
Blossom P’Ship v. S. Cal. Sunbelt Developers, Inc. (In re S.
Cal. Sunbelt Developers, Inc.), 608 F.3d 456, 462–65 (9th
Cir. 2010) (noting that in statutory fee cases, federal courts
have uniformly held that attorneys are entitled to be
compensated for the time reasonably spent establishing their
right to the fee); Camacho v. Bridgeport Fin., Inc., 523 F.3d
973, 981 (9th Cir. 2008) (“This is so because it would be
inconsistent to dilute a fees award by refusing to compensate
attorneys for the time they reasonably spent in establishing
their rightful claim to the fee.”).
That some of the legal services were provided pro
bono does not alter our analysis or conclusion. Attorneys’
fees are recoverable by pro bono attorneys to the same extent
that they are recoverable by attorneys who charge for their
services. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989)
(“[W]here there are lawyers or organizations that will take a
plaintiff’s case without compensation, that fact does not bar
the award of a reasonable fee.”).
We conclude, therefore, that the Law Center is entitled to
its reasonable attorneys’ fees on appeal. Because, under our
mandate, the district court is required to determine the
amount of attorneys’ fees to be awarded to the Law Center
under Rule 45(d)(2)(B)(ii) for work in the district court, see
Legal Voice, 738 F.3d at 1185, we transfer this matter to the
district court to determine the amount to be awarded as fees
on appeal. See Ninth Cir. R. 39-1.8.

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Accordingly, IT IS ORDERED:
1. The Law Center’s motion for attorneys’ fees on
appeal is granted; the Law Center is entitled to an award of its
reasonable fees on appeal.
2. Determination of the amount to be awarded as
attorneys’ fees on appeal is transferred to the district court
under Ninth Circuit Rule 39-1.8.