Byrd v. Maricopa Cty Sher Of, et al

Filing 181

ORDER that Plaintiff's 174 Motion/Application for Attorneys' Fees is DENIED. Signed by Judge Neil V Wake on 12/30/11. (ESL)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Charles Edward Byrd,
Plaintiff,

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ORDER

vs.

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No. CV04-2701-PHX-NVW

Joseph M. Arpaio et al.,
Defendants.

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Before the Court is Plaintiff’s Motion/Application for Attorneys’ Fees (Doc. 174).

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This motion includes fees claimed by Fennemore Craig, P.C. (trial counsel) and by Mr.

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Jarrett Green (counsel on appeal). Defendants and Fennemore Craig have since settled

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their fees dispute, mooting that portion of the motion. (Doc. 179.) Mr. Green continues

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to claim his fees.

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In the Ninth Circuit, a party/attorney seeking fees incurred on appeal must first

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move the appellate court for those fees. Cummings v. Connell, 402 F.3d 936, 948 (9th

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Cir. 2005); Gametech Int’l, Inc. v. Trend Gaming Sys., L.L.C., 380 F. Supp. 2d 1084,

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1093–94 (D. Ariz. 2005); Nader v. Brewer, No. CV-04-1699-PHX-FJM, 2009 WL

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811450, at *1 (D. Ariz. Mar. 27, 2009). Such a motion was required within 14 days of

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the mandate. Ninth Circuit Rule 39-1.6(a). The Ninth Circuit, in its discretion, could

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then refer the motion to the district court. Id. 39-1.8.

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This Court’s review of the Ninth Circuit’s docket shows that Byrd filed no request

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for fees incurred on appeal, either as part of his briefs or separately. The mandate is also

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silent about fees.

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Apart from this procedural impediment, Mr. Green would be entitled to a

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substantial award of fees. But this Court may not make such an award unless the Court

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of Appeals modifies its mandate to allow consideration of such a request.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion/Application for Attorneys’
Fees (Doc. 174) is DENIED.
Dated: December 30, 2011.

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