Govan v. Security National Financial Corporation, et al

Filing 106

ORDER denying 99 Motion for Bond. Signed by Judge David G Campbell on 7/12/2011.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Taloren Govan, an unmarried man,
Plaintiff,

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No. CV-10-0057-PHX-DGC
ORDER

vs.
Security National Financial Corporation, a
Utah corporation; Crystal Rose Funeral
Home, Inc., an Arizona corporation; and
Greer-Wilson Funeral Home, Inc., an
Arizona corporation,
Defendants.

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Plaintiff commenced this employment law action by filing a complaint against

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Defendants on January 8, 2010. Doc. 1. On May 16, 2011, the Court granted summary

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judgment in favor of Defendants and the Clerk entered judgment accordingly. Docs.

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92, 93. Plaintiff has appealed. Doc. 96.

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Defendants have filed a motion for a cost bond on appeal in the amount of

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$5,306.60. Doc. 99. The motion is fully briefed. Docs. 100, 104. Oral argument has not

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been requested. For reasons stated below, the motion will be denied.

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Defendants estimate that their attorneys’ fees on appeal will be not less than

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$5,000. Pursuant to A.R.S. § 12-341.01(C), which requires an award of attorney fees

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where a claim is groundless and constitutes harassment, Defendants request an order

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requiring Plaintiff to post an appeal bond sufficient to cover their estimated attorneys’

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fees. Doc. 99 at 3-4.

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Plaintiff argues, correctly, that A.R.S. § 12-341.01(C) has no application in federal

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court. Doc. 100 at 3. This Circuit has made clear that it is not proper to use an Arizona

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sanction statute, including A.R.S. § 12-341.01(C), in federal litigation. In re Larry’s

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Apartment, L.L.C., 249 F.3d 832, 838-40 (9th Cir. 2001). Defendants assert in their reply

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that Title VII is an applicable fee-shifting statute (Doc. 104 at 2), but it is well established

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that “courts will not consider arguments raised for the first time in a reply brief.’” Bach

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v. Forever Living Prods. U.S., Inc., 473 F. Supp. 2d 1110, 1122 n.6 (W.D. Wash. 2007)

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(citing Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 843 n.6 (9th Cir. 2004)); see Gadda

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v. State Bar of Cal., 511 F.3d 933, 937 n.2 (9th Cir. 2007).

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Defendants’ motion will be denied with respect to the $5,000 in estimated

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attorneys’ fees. The Court also declines to grant the motion with respect to the $306.06

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in estimated copying costs. Doc. 99 at 2. Defendants, consistent with applicable rules of

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procedure, may seek an award of fees and costs after the appeal has been resolved.

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IT IS ORDERED that Defendants’ motion for cost bond on appeal (Doc. 99) is
denied.
Dated this 12th day of July, 2011.

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