Advocates for Individuals With Disabilities LLC et al v. MidFirst Bank

Filing 116

ORDER: Defendants Motion for Award of Attorneys' Fees and Sanctions 51 is granted in the amount of $31,473.50. The Clerk of Court enter judgment in favor of Defendant MidFirst Bank (1) against Peter Strojnik in the amount of $31,473. 50 plus interest at the federal rate of 2.42% per annum from the date of judgment until paid, of which $13,112.00 is also the joint and several obligation of Advocates for Individuals with Disabilities, LLC, and David Ritzenthaler, and ( 2) against Advocates for Individuals with Disabilities, LLC, and David Ritzenthaler, jointly and severally with Peter Strojnik, in the amount of $13,112.00 plus interest at the federal rate of 2.42% per annum from the date of judgment un til paid. Defendant's Motion for Reconsideration of the Clerk of Court's Denial of Costs 64 is granted and costs are taxed against Advocates for Individuals with Disabilities, LLC, and David Ritzenthaler in favor of Defendant MidFirst Ba nk in the amount of $686.95. IT IS FURTHER ORDERED that the following motions are denied: (1) Plaintiffs' Motion for Extension of Time to File Notice of Appeal 71 ; (2) Plaintiffs' Motion for Reconsideration and Relief from Judgment 72 ; (3) State of Arizona's Motion to Intervene 87 ; and (4) Defendant's Request for Expedited Ruling 90 . This case remains terminated. Signed by Senior Judge Neil V Wake on 7/24/2018. (REK)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Advocates for Individuals with Disabilities,
LLC, and David Ritzenthaler,

No. CV-16-01969-PHX-NVW
ORDER

10

Plaintiffs,

11

v.

12

MidFirst Bank,

13

Defendant.

14
15
16
17
18

I.

Table of Contents
BACKGROUND .................................................................................................... 1

19

A.

This Action Through Dismissal...................................................................... 1

20

B.

Motions Now Before the Court ...................................................................... 4

21
22

II.

ATTORNEY FEES AND SANCTIONS ............................................................... 4
A.

Legal Standards .............................................................................................. 4
1. Attorney Fees Under the Americans with Disabilities Act ..................... 4

23
24

2. Attorney Fees and Sanctions Under the Arizonans with Disabilities
Act............................................................................................................ 5

25

3. Sanctions Under 28 U.S.C. § 1927 .......................................................... 6

26
27
28

B.

Analysis ......................................................................................................... 7
1. AID continued this action in bad faith for the purpose of increasing
and extorting fees; MidFirst is entitled to fees and expenses of
litigation under the ADA ......................................................................... 7

1

2. MidFirst is also entitled to an award of fees against AID’s counsel
Strojnik under 28 U.S.C. § 1927 for vexatious and unreasonable bad
faith multiplication of the proceedings. ................................................... 8

2
3

3. All of MidFirst’s requested fees are reasonable ...................................... 9

4

4. Fees incurred after the case was mooted until AID’s concession of
lack of standing and jurisdiction resulted in dismissal of the ADA
claim will be awarded under the ADA against Strojnik, AID, and
Ritzenthaler, and all later fees will be awarded against Strojnik under
28 U.S.C. § 1927. .................................................................................... 12

5
6
7
8

III.

RECONSIDERATION OF DENIAL OF TAXABLE COSTS ............................ 12

9

IV.

AID’S POST-JUDGMENT REASSERTION OF ITS ABANDONED
CONTENTION OF STANDING .......................................................................... 13

10

A.

AID expressly abandoned its contention of standing and federal subjectmatter jurisdiction .......................................................................................... 13

B.

17

Under Rule 59, AID’s Motion fails as exceeding the 28-day limit and for
lack of a contested ruling on standing and jurisdiction .................................. 16
It is not necessary in this case to decide whether mere error of law is
always a basis for Rule 60(b) relief from judgment because AID
conceded lack of standing without a contested ruling; but even an
erroneous contested ruling would not be of the type of error of law
remediable under Rule 60(b) and would still be subject to the Court’s
discretion if it was .......................................................................................... 18

18

1.

AID made a deliberate choice to concede it lacked standing, and
deliberate choices do not qualify for relief under Rule 60 ..................... 18

2.

Correcting a mistake under Rule 60(b)(1) requires the Court to have
made the mistake of its own initiative .................................................... 19

3.

Relief under Rule 60(b)(6) requires “extraordinary circumstances,”
which are not present here ...................................................................... 20

4.

As any relief under Rule 60(b) is also within the Court’s discretion,
the Court would exercise its discretion to deny the Motion as late,
unfair, and empowering more abuse of the litigation process................ 20

11
12
13

C.

14
15
16

19
20
21
22
23
24
25

V.

LATE APPEAL ..................................................................................................... 21

26

A.

Legal Standard ................................................................................................ 21

27

B.

As a matter of fact, AID’s failure to appeal was not neglect, and its
request for late appeal was a change of mind ................................................. 23

28

- ii -

1

C.

2

If the failure to appeal was negligent, not intentional, in the Court’s
discretion it was not excusable in light of all the circumstances involved .... 26
1. There is no danger of injustice to AID in denying a late appeal ............. 26

3

2. Continuing injustice to MidFirst is certain from a late appeal ................ 27

4

7

3. Even on AID’s own story, which the Court does not credit, failure to
timely appeal was the result of counsel’s unexplained ignorance of
procedure ................................................................................................. 28
4. The length of the delay is not insignificant ............................................. 28

8

5. AID acted in bad faith ............................................................................. 29

9

6. The other Pincay factors weigh against allowing a late appeal .............. 29

5
6

10
11
12

VI. STATE OF ARIZONA’S MOTION TO INTERVENE ........................................ 30
A.

The State has no right to intervene under Rule 24(a) ..................................... 30

B.

Permissive intervention is not warranted ....................................................... 32

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- iii -

1

Plaintiffs brought this action under federal and state civil rights disability statutes.

2

Plaintiffs conceded they lacked standing and federal jurisdiction, and the Court dismissed

3

the federal claim in accordance with Plaintiffs’ stipulation. The state claim was certain to

4

be dismissed on remand, so it too was dismissed here on grounds of futility. (Doc. 49.)

5

To understand the many motions now before the Court, some background information is

6

necessary.

7
8
9

I.

BACKGROUND
A.

This Action Through Dismissal

10

On May 17, 2016, Plaintiffs Advocates for Individuals with Disabilities, LLC, and

11

David Ritzenthaler (collectively “AID”) sued Defendant MidFirst Bank (“MidFirst”) in

12

Maricopa County Superior Court. (Doc. 1-1, Ex. 2.) MidFirst removed the case to this

13

Court. (Doc. 1.)

14

AID alleged MidFirst violated federal and state disability laws by failing to

15

comply with various parking lot specifications, such as adequate spaces and proper

16

signage. Advocates for Individuals with Disabilities LLC v. MidFirst Bank, 279 F. Supp.

17

3d 891, 892-93 (D. Ariz. 2017).

18

Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 through 12189, and the

19

Arizonans with Disabilities Act (“AZDA”), A.R.S. §§ 41-1492 through 41-1492.012.

20

Yet the Complaint failed to allege a single harm to Ritzenthaler, let alone that he ever

21

visited MidFirst’s premises—or even that he was disabled. Id. at 893.

In particular, AID alleged violations of both the

22

The Complaint was a template, which as the Court noted, has become the stock-in-

23

trade of AID’s attorneys Peter Strojnik and Fabian Zazueta. “As in many of their cases,

24

the discrepancies in parking signage and striping here were minor, even trivial.” Id.

25

MidFirst corrected the violations immediately. Yet, as in other cases, Strojnik and

26

Zazueta refused to dismiss the case unless they were paid their fees of “no less than

27

$5,000.” Id.

28

1

The Court noted that AID’s attorneys’ “extortionate practice has become

2

pervasive.” Id. Using Ritzenthaler as the aggrieved co-plaintiff, AID had pursued about

3

160 cookie-cutter lawsuits removed to federal court and more than 1,000 such suits in

4

Arizona state court. The pleadings followed the same script “right down to the same

5

typographical errors.” Id.

6

On September 8, 2016, the Court ordered AID to show cause why the case should

7

not be dismissed for lack of standing. (Doc. 20.) The Court also allowed, at AID’s

8

request, an amended complaint to cure the standing defects. (Docs. 22, 23.) AID failed

9

to file its own requested amendment. Weeks after the Court’s order to show cause, AID

10

conceded “this Court does not have jurisdiction over the claims at issue.” (Doc. 24 at 3.)

11

At oral argument on December 20, 2016, the Court accepted AID’s

12

acknowledgement of lack of standing and federal jurisdiction and orally directed

13

dismissal of the federal claim rather than remand to state court as AID requested. (Doc.

14

45 at 81.) But AID still wanted to litigate its potential AZDA state law claim in state

15

court. Advocates, 279 F. Supp. 3d at 893-94.

16

Then there was another twist.

The Arizona Attorney General requested

17

consolidation of the more than 1,000 identical cases filed by Strojnik and Zazueta in state

18

court. Id. at 894. On March 2, 2017, the superior court dismissed all the consolidated

19

cases, except one, for lack of standing. In the one undismissed case, another judge had

20

already ruled the complaint was sufficient to withstand a motion to dismiss, and Arizona

21

procedure strongly disfavors “horizontal appeals.” Id.

22

This Court denied remand of the AZDA claim. Under Bell v. City of Kellogg, 922

23

F.2d 1418, 1425 (9th Cir. 1991), a federal court may dismiss rather than remand a state

24

claim where there is “absolute certainty that remand would prove futile.” When there are

25

no comity concerns, the disposition on remand is certain, and the court can prevent waste

26

of judicial resources and parties’ legal fees, Bell permits dismissal rather than remand.

27

Advocates, 279 F. Supp. 3d at 894-95.

28

-2-

1

Because the AZDA then read any “person who believes” a covered person had

2

been aggrieved “may institute a civil action,” AID contended that a Sherpa in Tibet

3

would have standing under the statute despite lack of any injury to the Sherpa. Id. at 896

4

(citing A.R.S. § 41-1492.08(A) (2011)). Before this case was decided, the Arizona

5

Legislature amended the AZDA effective on August 9, 2017, replacing the old language

6

with the following: “Any aggrieved person . . . may institute a civil action.” Id. (citing

7

A.R.S. § 41-1492.08(A) (2017)).

8

person to give written notice to the intended defendant and to allow thirty days to cure the

9

defect before filing suit. Id. at 896-97 (A.R.S. § 41-1492.08(E) (2017)).

The amendment also now requires the aggrieved

10

Even before the 2017 amendment, it was certain that the Arizona courts would

11

find AID lacked statutory standing. Although Arizona courts may dispense with standing

12

as a matter of discretion in rare cases of great public importance to assure prompt

13

adjudication, in all other cases they rigorously enforce the requirement of true

14

adversaries, routinely following federal precedents on standing. Id. at 897 (citing Sears

15

v. Hull, 192 Ariz. 65, 961 P.2d 1013 (1998)). “In no case have the Arizona courts waived

16

standing to enforce a private statutory right for which there is a plethora of injured

17

potential plaintiffs to enforce the right for their own injury.” Id.

18

Finally, the Court noted that the Arizona courts would not perpetuate Strojnik’s

19

unethical litigation tactics. His meritless fee demands of $5,000 or more appear in all his

20

template complaints, which he files to obtain a nuisance-value settlement. Id. at 897-98.

21

“A compromise for less than the costs of defense is a good working definition of a

22

nuisance-value settlement.” Fletcher v. City of Fort Wayne, Ind., 162 F.3d 975, 976 (7th

23

Cir. 1998) (Easterbrook, J.). The Arizona Rules of Professional Conduct permit attorneys

24

to charge only reasonable fees. It is impossible that a reasonable fee for such a simple

25

form complaint would be $5,000. “No fee is the reasonable fee for an unnecessary

26

lawsuit that a demand letter would have taken care of.” Id. at 898. “The prevailing party

27

in a federal civil rights case is entitled to an award of attorneys’ fees, but the fees must be

28

reasonable, and the reasonable fee is sometimes zero.” Hyde v. Small, 123 F.3d 583, 584

-3-

1

(7th Cir. 1997) (Posner, C.J.) (internal citation omitted). An unreasonable fee may not be

2

charged merely because the attorney shifts the fee to the losing party. Advocates, 279 F.

3

Supp. 3d at 897 (citing Matter of Swartz, 141 Ariz. 266, 274, 686 P.2d 1236, 1244

4

(1984)).

5

In sum, to a certainty the Arizona courts would not countenance a no-standing

6

lawsuit in a pattern of more than a thousand such lawsuits to extort fees unethically from

7

defendants. This Court denied remand and dismissed the state law claim under Bell for

8

lack of standing under state law. Id. at 897-98.

9

B.

Motions Now Before the Court

10

Now before the Court are the following motions.

11

1.

MidFirst moves for attorney fees and sanctions. (Doc. 51.)

12

2.

MidFirst seeks review of the Clerk of Court’s denial of costs. (Doc. 64.)

13

3.

AID moves for reconsideration of its concession of no standing and federal

14

jurisdiction and relief from the judgment dismissing the federal ADA claim and the state

15

AZDA claim. (Doc. 72.)
4.

16
17

of time to appeal. (Doc. 71.)
5.

18
19

Having failed to file a timely notice of appeal, AID moves for an extension

The State of Arizona moves to intervene post-judgment to adjudicate

Strojnik a vexatious litigant and to impose sanctions. (Doc. 87.)

20
21
22
23

II.

ATTORNEY FEES AND SANCTIONS
A.

Legal Standards
1.

Attorney Fees Under the Americans with Disabilities Act

24

Under the ADA, “the court or agency, in its discretion, may allow the prevailing

25

party, other than the United States, a reasonable attorney’s fee, including litigation

26

expenses, and costs.” 42 U.S.C. § 12205.

27

Civil rights law must strike a balance between chilling legitimate actions on the

28

one hand and indulging unfounded accusations on the other. Blue v. Dep’t of Army, 914

-4-

1

F.2d 525, 535 (4th Cir. 1990). Consequently, it is much more difficult for prevailing

2

defendants to recover fees in civil rights cases than it is for prevailing plaintiffs. CRST

3

Van Expedited, Inc. v. EEOC, 136 S. Ct. 1642, 1654 (2016) (Thomas, J., concurring)

4

(noting the asymmetry). Defendants may recover attorneys’ fees only “upon a finding

5

that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though

6

not brought in subjective bad faith.” Christianburg Garment Co. v. EEOC, 434 U.S. 412,

7

421 (1978).

8

Thus, there are three bases for assessing fees against a plaintiff in an ADA action:

9

frivolity, unreasonableness, and lack of foundation. “Without foundation” is nebulous

10

and begets the very post hoc reasoning the Court warned against. “[I]t is important that a

11

district court resist the understandable temptation to engage in post hoc reasoning by

12

concluding that, because a plaintiff did not ultimately prevail, his action must have been

13

unreasonable or without foundation.” Id. at 421-22. But “frivolous” and “unreasonable”

14

are both terms of art in the law. “Frivolous” means “[l]acking a legal basis or legal merit;

15

not serious; not reasonably purposeful.” Black’s Law Dictionary 739 (9th ed. 2009).

16

“Unreasonable” means “[n]ot guided by reason; irrational or capricious.” Id. at 1679.

17

“Courts should therefore ask whether the action was irrational, capricious, not guided by

18

reason, not serious, or not reasonably purposeful.” Watson v. Cty. of Yavapai, 240 F.

19

Supp. 3d 996, 1000 (D. Ariz. 2017). Of course, “if a plaintiff is found to have brought or

20

continued such a claim in bad faith, there will be an even stronger basis for charging him

21

with the attorney’s fees incurred by the defense.”

22

(emphasis in original). But bad faith is not required to award fees. Id. at 419.

23
24
25

Christianburg, 434 U.S. at 422

Attorney fees can be assessed against attorneys themselves under the ADA. See
C.W. v. Capistrano Unified Sch. Dist., 784 F.3d 1237, 1248, 1250 (9th Cir. 2015).
2.

26

Attorney Fees and Sanctions Under the Arizonans with
Disabilities Act

27

The AZDA provides, “In any action or proceeding under this section, the court

28

may allow the prevailing party . . . reasonable attorney fees as part of the costs.” A.R.S.

-5-

1

§ 41-1492.09(F) (1994). But “this section” refers to § 41-1492.09, titled “Enforcement

2

by the attorney general.”

3

1492.09(F).

Fees cannot be awarded in this case under A.R.S. § 41-

4

Nor can fees be awarded under a recent amendment to the AZDA. In 2017 the

5

Legislature amended the AZDA fee provision to permit courts to “impose a sanction on a

6

plaintiff or the plaintiff’s attorney if the court determines that an action or series of

7

actions is brought under this article for the primary purpose of obtaining a payment from

8

the defendant due to the costs of defending the action in a court.”

9

1492.09(H) (2017). On its face, this new fee authorization for all cases under the AZDA

10

fits this case like a glove. Indeed, as the Legislature stated it in its legislative findings,

11

the amendment was made “in response to thousands of lawsuits and complaints that were

12

filed against Arizona businesses by the same lawyers and generally the same plaintiff.”

13

2017 Ariz. Sess. Laws, ch. 175, § 4. The amendment might as well have been called the

14

Strojnik Amendment. But since the amendment is substantive and does not speak to

15

whether it applies in pending cases, by statutory rule of construction it does not. A.R.S.

16

§ 1-244; Aida Renta Tr. v. Maricopa Cty., 221 Ariz. 603, 613, 212 P.3d 941, 951 (Ct.

17

App. 2009) (“An allowance for attorneys’ fees is a substantive right, and therefore the

18

increased cap does not apply retroactively.” (internal citation omitted)). The AZDA does

19

not authorize award of attorney fees in this case.

20

3.

A.R.S. § 41-

Sanctions Under 28 U.S.C. § 1927

21

“Any attorney . . . who so multiplies the proceedings in any case unreasonably and

22

vexatiously may be required by the court to satisfy personally the excess costs, expenses,

23

and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927.

24

“Sanctions pursuant to section 1927 must be supported by a finding of subjective bad

25

faith.” New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989). “Bad

26

faith is present when an attorney knowingly or recklessly raises a frivolous argument or

27

argues a meritorious claim for the purpose of harassing an opponent. Tactics undertaken

28

with the intent to increase expenses may also support a finding of bad faith.” Id. (internal

-6-

1

quotation marks and citations omitted). The district court must make a specific finding of

2

subjective bad faith; negligence is not enough. MGIC Indem. Corp v. Moore, 952 F.2d

3

1120, 1122 (9th Cir. 1991). Thus, to be sanctioned under § 1927, an attorney must

4

knowingly engage in vexatious or dilatory conduct or he must demonstrate recklessness

5

so severe that it necessarily implies subjective bad faith.

6

B.

Analysis

8

AID continued this action in bad faith for the purpose of
increasing and extorting fees; MidFirst is entitled to fees and
expenses of litigation under the ADA.

9

AID’s conduct warrants award of fees under the ADA. After its filing, this action

10

served no further purpose but to expand the nuisance value for leverage on the defendant

11

and to collect fees. The Court does not find it was frivolous to file the action, but the

12

action became frivolous, vexatious, and in bad faith once MidFirst promptly cured the

13

non-compliance and AID persisted in the lawsuit to extort unreasonable attorney fees.

7

1.

14

AID insisted on pursuing this action even after it was mooted by MidFirst’s

15

corrections. In its Complaint AID prayed for relief “[i]rrespective of Defendants [sic]

16

‘voluntary cessation’” of any violations—including getting an award of fees “in an

17

amount no less than $5,000.” (Doc. 1-1, Ex. 2 at 11, ¶ 32.) AID anticipated that

18

MidFirst and others would cure the violations but rushed to file and then refused to

19

dismiss when the problems were fixed. The sole purpose of AID’s continuation of this

20

case after it was filed was to extort unreasonable legal fees from MidFirst. When

21

pressed, AID eventually admitted “this Court does not have jurisdiction over the claims at

22

issue under . . . Article III.” (Doc. 24 at 3.)

23

AID argues that MidFirst may not be awarded fees because it is not the prevailing

24

party, the action having been dismissed for lack of standing and jurisdiction. (Doc. 55 at

25

5-6.) Not so. The case on which AID relies, Branson v. Nott, 62 F.3d 287, 293 (9th Cir.

26

1995), was recognized as overruled in Amphastar Pharmaceuticals Inc. v. Aventis

27

Pharma SA, 856 F.3d 696, 710 (9th Cir. 2017). The “Supreme Court has effectively

28

overruled Branson’s holding that when a defendant wins because the action is dismissed

-7-

1

for lack of subject matter jurisdiction he is never a prevailing party.” Id. (citing CRST

2

Van Expedited, Inc. v. EEOC, 136 S. Ct. 1642 (2016)). “It would make little sense if

3

Congress’ policy of sparing defendants from the costs of frivolous litigation depended on

4

the distinction between merits-based and non-merits-based frivolity.” CRST, 136 S. Ct.

5

at 1652 (internal quotation marks, citation, and emphasis omitted).

6
7
8
9

Because this case was really about attorney fees, fees will be awarded under the
ADA against Plaintiffs and Strojnik jointly and severally.
2.

MidFirst is also entitled to an award of fees against AID’s
counsel Strojnik under 28 U.S.C. § 1927 for vexatious and
unreasonable bad faith multiplication of the proceedings.

10

Strojnik’s actions warrant sanctions against him under 28 U.S.C. § 1927 for bad

11

faith prolongation of the proceedings. His tactics had the sole purpose of increasing the

12

expense of this litigation—to drive up its nuisance value so he could unethically extort

13

excessive and unreasonable attorney fees for himself.

14

Section 1927 applies not to commencement of the action but to multiplication of

15

the proceedings thereafter. The filing of the Complaint is not the basis for the § 1927

16

sanctions in this case. The basis is the prolongation after the case was promptly mooted

17

by MidFirst’s compliance. Everything in this lawsuit after its filing and MidFirst’s cure

18

was unreasonable and vexatious multiplication in bad faith to extort unreasonable and

19

unethical attorney fees from MidFirst, as it likely was for more than a thousand other

20

defendants in state and federal courts.

21

Strojnik’s business model began with suing people without notice for minor and

22

easily cured technical violations. It is usually not illegal or unethical to sue people

23

without notice. But it became unethical and sanctionable under § 1927 once he took the

24

next steps of (1) demanding patently excessive and unreasonable attorney fees beyond

25

any statutory basis and (2) prolonging the lawsuit to extort such fees by forcing the

26

defendant to incur its own legal expense to resist the mooted case and AID’s fee demand.

27

Here the very purpose of the multiplication of proceedings was to run up expenses to

28

extort legal fees for AID’s lawyer himself. Indeed, when Strojnik first made contact with
-8-

1

MidFirst after suing it, he upped his demand from $5,000 to $7,000 in attorney fees.

2

(Doc. 45 at 5.) It is hard to think of a clearer example of unreasonable and vexatious bad

3

faith multiplication of proceedings than this.

4

Fees as sanctions under 28 U.S.C. § 1927 will be assessed against AID’s counsel

5

for fees incurred after MidFirst cured the alleged ADA deficiency, as Strojnik expected at

6

the outset MidFirst would do.

7

It is a close question, but the Court declines to award attorney fees against

8

Zazueta, who is a second-year attorney working under direction of Strojnik, an attorney

9

with decades of experience.

10
11

The authority to award fees under both statutes is

discretionary.
3.

All of MidFirst’s requested fees are reasonable.

12

Local Rule LRCiv 54.2(c)(3) states the factors to consider in quantifying an

13

attorney fee award. These include (A) the “time and labor required of counsel,” (B) the

14

“novelty and difficulty of the questions presented,” (C) the “skill requisite to perform the

15

legal service properly,” (D) the “preclusion of other employment by counsel because of

16

the acceptance of the action,” (E) the “customary fee charged in matters of the type

17

involved,” (F) whether the fee is fixed or contingent, (G) any “time limitations imposed

18

by the client or the circumstances,” (H) the “amount of money, or the value of the rights,

19

involved, and the results obtained,” (I) the “experience, reputation and ability of

20

counsel,” (J) the case’s “undesirability,” (K) the “nature and length of the professional

21

relationship between the attorney and the client,” (L) awards “in similar actions,” and

22

(M) any “other matters deemed appropriate under the circumstances.”

23

MidFirst requests $22,253.00 in attorney fees incurred through the filing of its fee

24

Motion. (Doc. 51 at 14.) MidFirst’s request is reasonable. MidFirst’s counsel charged

25

market rates for varying levels of experience, which MidFirst paid monthly. Its counsel

26

obtained the best possible result: entire dismissal of this case with no further proceedings

27

in state court on remand. The Motion will be granted in the amount of fees sought.

28

-9-

1

MidFirst supplemented its Motion, after the Court allowed it to do so, to include

2

an additional $9,220.50 in later fees. (Docs. 66, 70.) The additional fees were incurred

3

in further attempting to settle and in drafting the Reply and the Supplement. (Doc. 70-1,

4

Ex. R.) Those fees are reasonable too.

5

AID objects to some hours billed and the rates in general terms. Those non-

6

specific objections are overruled. LRCiv 54.2(f). “It is not enough for an opposing party

7

simply to state . . . that the hours claimed are excessive and the rates submitted too high.”

8

Ariz. v. Maricopa Cty. Med. Soc’y, 578 F. Supp. 1262, 1264 (D. Ariz. 1984) (quoting

9

Nat. Ass’n of Concerned Vets. v. Sec’y of Def., 675 F.2d 1319, 1338 (D.C. Cir. 1982)).

10

Local Rule LRCiv 54.2(f) requires objection to specific time entries.

11

AID takes issue with three specific charges: (1) $272.50 for “multiple

12

communications with a reporter,” (2) $2,415.00 for drafting the Answer, and

13

(3) $5,103.00 for work on the fee Motion. AID’s attacks on the fees incurred in drafting

14

the Answer and Fee Motion fail. The billing entries were detailed, and AID offers no

15

argument that any specific task was unreasonable. In any event, the amounts sought are

16

reasonable.

17

The Court takes judicial notice that Strojnik gave numerous radio, television, and

18

print media interviews about these lawsuits and his justification for holding out for

19

$5,000 or more in attorney fees.

20

coverage, which is widely known in this community. Fed. R. Evid. 201. MidFirst’s

21

counsel incurred $272.50 in fees (half an hour) for conversations with a reporter about

22

the case. (Doc. 65 at 7.) AID objects that it was unreasonable for MidFirst’s counsel to

23

charge for talking to a reporter. (Doc. 55 at 15.) “Talk about chutzpah.” United States v.

24

Ramirez-Cortez, 213 F.3d 1149, 1159 (9th Cir. 2000) (Silverman, J., dissenting). It was

25

reasonable for counsel to charge for answering a reporter’s questions in a high-profile

26

case to counter Strojnik’s media narrative and to defend his client’s reputation.

Strojnik’s interviews resulted in extensive media

27

AID further contends MidFirst’s counsel fail to establish their skill, reputation,

28

and experience and, consequently, their billing rates. (Doc. 55 at 15.) Lead counsel John

- 10 -

1

A. Doran’s affidavit establishes all of that. (Doc. 51-2, Ex. K.) His rates are entirely

2

reasonable for lawyers of Doran’s skill, experience, and reputation. So also for the rates

3

of his associates. AID also says there is no proof of a contractual relationship. (Doc. 55

4

at 16-17.) MidFirst attached its engagement letter to its Motion. (Doc. 51-1, Ex. B.)

5

MidFirst’s Deputy General Counsel also affirmed the relationship in an affidavit. (Doc.

6

65-2, Ex. Q.) As of March 2017, MidFirst had paid $18,000 in legal fees billed. (Doc.

7

51-2, Ex. K at 28.)

8

AID says the time entries submitted with the Supplement are based on

9

inadmissible hearsay about the services of other lawyers in the firm. (Doc. 81 at 2-3.)

10

The Supplement includes an affidavit that complies with Local Rule LRCiv 54.2(d)(4),

11

which does not require an affidavit from every attorney who worked on the case. AID

12

cites Muniz v. United Parcel Service, Inc., 738 F.3d 214, 222-23 (9th Cir. 2013), but that

13

case dealt with a paralegal who did not keep time records and later attempted to estimate

14

her hours after the fact. MidFirst’s counsel kept contemporaneous billing records.

15

AID claims MidFirst’s counsel recorded time in impermissible block billing. The

16

billing entries of which AID complains are detailed and satisfy Local Rule LRCiv

17

54.2(e).

18

disregard the entries. It offers no reason why the entries are insufficient. Lawyers are not

19

required to break their time entries into second-by-second replays.

20

Eckerhart, 461 U.S. 424, 437 n.12 (1983). The time records are more than adequate to

21

judge the reasonableness and value of the services rendered.

AID points to two lightly redacted statements and says the Court should

See Hensley v.

22

AID argues that certain clerical tasks were improperly included. None of the tasks

23

to which AID points, including creating Exhibit R (the time entry log), are exclusively

24

clerical. AID also requests discovery from two local attorneys who submitted affidavits

25

regarding market rates. AID submitted no expert evidence to the contrary. In any event,

26

the undersigned is well familiar with market rates for litigation attorneys in this

27

community. The rates claimed are within reasonable, market rates.

28

- 11 -

1

AID has not shown that any of the claimed fees are unreasonable. The Court’s

2

independent review of all the claimed fees confirms the reasonableness of the services,

3

the hourly rates, the amounts claimed, and the fees as a whole.

4

4.

5
6
7

Fees incurred from the time MidFirst cured or committed to curing, as AID

8
9
10
11
12
13
14

expected it would, until the ADA claim was dismissed will be awarded against Plaintiffs
and Strojnik under the ADA. Until the ADA claim was terminated based on AID’s
concession of lack of standing and federal jurisdiction, MidFirst’s counsel was working
on ADA-related issues. The last such time entry was on October 18, 2016, and involved
attention to ADA case law. Therefore, fees in the amount of $13,112.00 under the ADA
will be awarded against Plaintiffs and Strojnik jointly and severally.
Those fees and the later fees will also be assessed against Strojnik under 28 U.S.C.

15
16
17
18
19
20

§ 1927. The cost of the action from the dismissal of the ADA claim through the fee
Motion was $9,141.00. MidFirst is also entitled to the $9,220.50 in fees post-dating the
fee Motion. A total additional $18,361.50 will be assessed against Strojnik pursuant to
§ 1927, in addition to the $13,112.00 already awarded against the Plaintiffs and Strojnik
under the ADA.
In sum, the Motion for Award of Attorneys’ Fees and Sanctions (Doc. 51) will be

21
22
23
24
25

Fees incurred after the case was mooted until AID’s concession
of lack of standing and jurisdiction resulted in dismissal of the
ADA claim will be awarded under the ADA against Strojnik,
AID, and Ritzenthaler, and all later fees will be awarded against
Strojnik under 28 U.S.C. § 1927.

granted in the total amount of $31,473.50, of which $13,112.00 will be awarded against
Plaintiffs and Strojnik, jointly and severally, under the ADA. Those same fees and an
additional amount of $18,361.50 will be assessed against Strojnik under § 1927.
III.

RECONSIDERATION OF DENIAL OF TAXABLE COSTS

26

The Clerk of Court denied MidFirst’s bill of costs for $681.95. (Doc. 61.) The

27

Clerk acknowledged MidFirst was the prevailing party but reasoned that costs “should be

28

awarded to a prevailing defendant in suit brought under ADA only if plaintiff’s action
- 12 -

1

was frivolous, unreasonable, or without foundation.” (Id. at 1.) The Court concludes that

2

after its filing this action became frivolous, unreasonable, and without foundation.

3

More fundamentally, the Clerk misapplied the standard for taxing costs. Federal

4

Rule of Civil Procedure 54(d) provides that unless “a federal statute, these rules, or a

5

court order provides otherwise, costs—other than attorney’s fees—should be allowed to

6

the prevailing party.” Our Local Rules also state the prevailing party is entitled to costs.

7

LRCiv 54.1(d). The Rules do not contain a carve-out against prevailing defendants in

8

ADA cases. “The prevailing party in a civil rights action [ ] is in the same position as any

9

other prevailing party with respect to costs available pursuant to 28 U.S.C. § 1920.”

10

Goostree v. Tenn., 796 F.2d 854, 864 (6th Cir. 1986).

11

MidFirst is entitled to its taxable costs under 28 U.S.C. § 1920 and court rules.

12

The Motion for Reconsideration of the Clerk of Court’s Denial of Costs (Doc. 64) will be

13

granted and costs taxed against AID in the amount of $681.95.

14
15
16
17

IV.

AID’S POST-JUDGMENT REASSERTION
CONTENTION OF STANDING
A.

OF

ITS

ABANDONED

AID expressly abandoned its contention of standing and federal
subject-matter jurisdiction.

18

AID explicitly withdrew and abandoned its contention of standing and federal

19

jurisdiction. The Court had entered an order to show cause why this action should not be

20

dismissed for lack of standing and jurisdiction. (Doc. 20.) AID responded defending

21

standing and also asking leave to amend its complaint, which was granted. (Doc. 22, 23.)

22

AID did not amend but on November 2, 2016, filed a Motion to Remand,

23

conceding it lacked standing and federal jurisdiction: “While this Court does not have

24

jurisdiction over the claims at issue under the . . . Article III analysis, Arizona State

25

Courts will have jurisdiction to hear the controversies. Arizona state courts do not

26

impose the requirements of Article III . . . .” (Doc. 24 at 3.) The Court took AID’s

27

abandonment of its contention of standing and federal jurisdiction at face value at a

28

- 13 -

1

hearing on December 12, 2016, and discussed AID’s request to remand the ADA claim to

2

the state court, for which AID had no legal authority. (Doc. 45 at 8-16.)

3
4
5
6
7

THE COURT:
It will be removed again, infinite regression of
removal and remand. That’s the consequence of what you’re saying,
right?
...
MR. STROJNIK: Your Honor, it is still a federal claim, and the
question you pose is for greater minds than mine.

8

(Id. at 15.) The request for remand was frivolous. Dismissal was ordered as the only

9

disposition consistent with AID’s admission of lack of standing.

10

The Court further considered at length the request to remand the state AZDA

11

claim and, as explained above, dismissed that claim for futility rather than remand and

12

pointlessly prolong the legal expense and the extortion it serves. Advocates, 279 F. Supp.

13

3d at 898. AID says judges of this court have remanded AZDA claims 38 times after

14

dismissing the federal claim for lack of standing. (Doc. 55 at 8.) There is no indication

15

that anyone sought dismissal and opposed remand in any of those cases. In any event,

16

that AID succeeded in prolonging some of these cases by remand does not mean any of

17

the prolongation was not futile.

18

AID says it rethought its abandonment in federal court of its ADA claim for lack

19

of standing and federal jurisdiction because of Civil Rights Education and Enforcement

20

Center v. Hospitality Properties Trust, 867 F.3d 1093 (9th Cir. 2017) (“CREEC”). That

21

case was decided four weeks before the judgment of dismissal.

22

There were good reasons for AID to abandon its contention of federal standing

23

and jurisdiction. AID had already briefed ADA standing (Doc. 22.) and apparently found

24

its own brief unpersuasive. Its position was against the strong weight of authority, even

25

assuming it was minimally debatable. Other than for its extortion value, it was a bad use

26

of resources to run up AID’s own attorney fees and its exposure to assessment of

27

MidFirst’s attorney fees. In any event, a plaintiff is the master of his own lawsuit and is

28

free to do battle or to surrender whenever he has no more will to fight. AID’s discussion

- 14 -

1

of the CREEC case bears only on AID’s own calculus of whether to fight here. It chose

2

not to fight here. A court can never force a plaintiff to fight when he chooses not to,

3

whatever his reasons. While it may or may not be strategic error of the plaintiff, it can

4

never be error of the court for a plaintiff to quit.

5

On November 7, 2017, sixty-three days after entry of judgment, AID filed a

6

bizarre Motion for Reconsideration and Motion for Relief from Judgment. (Doc. 72.)

7

The Motion argues it was “error” for AID to concede lack of standing and jurisdiction on

8

its own motion. Apparently, the Court was supposed to refuse the withdrawal and force

9

AID to persist in its claim in federal court. One hesitates to use the word frivolous too

10

often in one lawsuit, but surely this merits independent sanction under 28 U.S.C. § 1927

11

as additionally frivolous, unreasonable, and vexatious delay of these proceedings. It is

12

not error for the Court not to obstruct AID’s concession of lack of standing, which

13

MidFirst accepted.

14

AID alternatively styles its motion as one for reconsideration. But again, there is

15

nothing for the Court to reconsider. There is only the Court’s mandatory action on AID’s

16

strategic election to concede it lacked standing.

17

reconsideration under LRCiv 7.2(g)(1) must be error of the court, not error of the

18

litigant.” E.E.O.C. v. Eagle Produce, L.L.C., No. CV-06-1921-PHX-NVW, 2008 WL

19

2796407, at *2 (D. Ariz. July 18, 2008). In addition, the motion for reconsideration as

20

such was barred by the 14-day limit of Local Rule LRCiv 7.2(g)(2).

“The ‘manifest error’ warranting

21

AID argues that by “moving to remand, which proved unsuccessful, Plaintiffs are

22

not judicially estopped to argue that this Court has jurisdiction of Plaintiffs’ claims.”

23

(Doc. 94 at 3.) But judicial estoppel has nothing to do with this. Nor does the absence of

24

technical elements of judicial estoppel allow a party who has abandoned a claim to

25

retrieve the abandoned claim post-judgment, without basis in the Rules or any error on

26

the part of the court, and despite serious prejudice to the opposing party.

27

concession of lack of standing and federal jurisdiction was absolute and not conditioned

28

on the Court agreeing to remand the ADA claim to state court.

- 15 -

AID’s

1

In some circumstances a party may be relieved of a stipulation, but AID makes no

2

such request and makes no attempt to meet the standards for withdrawal of a stipulation.

3

Relief from a stipulation is committed to the Court’s discretion and typically requires a

4

showing of manifest injustice, lack of prejudice to the other party, and minimal

5

inconvenience to the court. Seymour v. Summa Vista Cinema, Inc., 809 F.2d 1385, 1388

6

(9th Cir. 1987); see also Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 444

7

(1902) (explaining that stipulations ought to be enforced unless the result is inequitable).

8

Allowing AID to withdraw from its concession a year later would be manifestly unjust to

9

MidFirst and to the Court. The Court would exercise its discretion to deny such a motion

10

even if it properly invoked the discretion of the Court.

11

Finally, it is not necessary to discuss AID’s contentions about the effect of Civil

12

Rights Education and Enforcement Center v. Hospitality Properties Trust, 867 F.3d 1093

13

(9th Cir. 2017) (“CREEC”), which AID says led it to seek relief from the judgment. The

14

substantive effect of CREEC does not matter under the rules discussed herein. But

15

CREEC is not conclusive that AID would have had standing if had not abandoned it.

16

Another judge of this Court has already found CREEC not dispositive in dismissing nine

17

of Strojnik’s recent ADA lawsuits for lack of standing. See generally Gastelum v.

18

Canyon Hosp. LLC, No. CV-17-02792-PHX-GMS, 2018 WL 2388047 (D. Ariz. May 25,

19

2018).

20

For the foregoing reasons, Plaintiffs’ Motion for Reconsideration and Motion for

21

Relief from Judgment (Doc. 72) will be denied as meritless, regardless of whether it is a

22

Rule 60 motion, a Rule 59 motion, a motion for reconsideration, or something else. The

23

Motion is also beset with procedural fatalities in all its possible incarnations.

24
25
26
27
28

B.

Under Rule 59, AID’s Motion fails as exceeding the 28-day limit and
for lack of a contested ruling on standing and jurisdiction.

A court can correct any interlocutory error until it becomes embodied in a final,
appealable order. No rule of court is needed to authorize fixing such an error; it is
inherent in the interlocutory nature of rulings until they pass beyond change because
fixed in a later final, appealable order.

Plaintiffs’ Motion for Reconsideration and
- 16 -

1

Motion for Relief from Judgment cannot be granted as a motion for reconsideration,

2

though it is styled as such, for two reasons. First, it is barred by the 14-day limit of Local

3

Rule LRCiv 7.2(g). Second, the alleged error became embodied in the September 5,

4

2017 final judgment, which extinguished the authority to change interlocutory rulings

5

unless the change is in compliance with the rules concerning final judgments.

6

Once embodied in a final, appealable order, the authority to change a previously

7

interlocutory order must arise from a rule of court. That is essential to any measure of

8

finality for judgments. Rule 59 authorizes fixing any error of law leading to the judgment

9

upon a timely motion. Fed. R. Civ. P. 59(b), (d), and (e). Indeed, under Rule 59(d), the

10

court can fix an error sua sponte within 28 days of judgment, or even after 28 days if a

11

timely motion was filed within that time, even for a different asserted error. (On a timely

12

motion, the court can also grant a new trial, alter or amend a judgment, or reopen a bench

13

trial for further proceedings, which relief is not always predicated on an error of law.)

14

But without a motion within 28 days, it is itself error to change a final appealable order

15

even to fix a mere error of law not of the court’s own doing, unless it is authorized by

16

another rule. It is also error to change a final, appealable order unless it fixes an error of

17

law even if a timely motion to make that change is filed.

18

Reconsideration and Motion for Relief from Judgment cannot be granted under Rule 59,

19

even if there were underlying error, because it was not filed within 28 days. AID does

20

not argue otherwise.

Plaintiffs’ Motion for

21

As discussed above, AID’s motion also fails under both Rule 59 and Rule 60(b)

22

because the Court acted on AID’s conceded lack of jurisdiction without need for a

23

contested ruling of lack of standing and federal jurisdiction. The only thing contested in

24

the Court’s action on AID’s concession was the denial of remand to state court. But the

25

concession necessarily resulted in dismissal from the admitted lack of jurisdiction.

26
27
28

- 17 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

C.

It is not necessary in this case to decide whether mere error of law is
always a basis for Rule 60(b) relief from judgment because AID
conceded lack of standing without a contested ruling; but even an
erroneous contested ruling would not be the type of error of law
remediable under Rule 60(b) and would still be subject to the Court’s
discretion if it was.

AID expressly grounds its Motion for Relief from Judgment on Rule 60(b)(1) and
(6), knowing it cannot be sustained on Rule 59 due to that Rule’s time limit. Rule 60(b)
allows the Court to “relieve a party or its legal representative from a final judgment,
order, or proceeding” on listed grounds. Generally, a “motion under Rule 60(b) must be
made within a reasonable time” and on some grounds within one year. Fed. R. Civ. P.
60(c)(1). Other grounds are based on later-occurring events. The Rule 60(b) grounds
upon which AID relies are (1) “mistake, inadvertence, surprise, or excusable neglect” and
(6) “any other reason that justifies relief.” In the absence of the specific grounds set forth
in Rule 60, the proper motion must be made under Rule 59 and within its time limit. Cf.
Gonzalez v. Crosby, 545 U.S. 525, 528 (2005) (“Rule 60(b) allows a party to seek relief
from a final judgment, and request reopening of his case, under a limited set of
circumstances . . . .”).
AID’s Motion fails under Rule 60(b) for several reasons. First, a party cannot
obtain relief under Rule 60(b) for a deliberate litigation choice it has made. Second, the
Court did not err in failing to reject AID’s concession of no Article III standing. Third,
there are no “extraordinary circumstances” as Rule 60(b)(6) requires. Finally, the Court
would exercise its discretion to deny the Motion if it had discretion.
1.

23

AID made a deliberate choice to concede it lacked standing, and
deliberate choices do not qualify for relief under Rule 60.

24

“Rule 60 is not intended to provide relief from the consequences of a decision

25

deliberately made by a party or counsel, even though subsequent events reveal that the

26

decision was unwise.” 12 Moore’s Federal Practice § 60.02[2] (Daniel R. Coquillette et

27

al. eds., 3d ed. 2015). “For purposes of subsection (b)(1), parties should be bound by and

28

accountable for the deliberate actions of themselves and their chosen counsel.” Latshaw

- 18 -

1

v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1101 (9th Cir. 2006). See also Eskridge

2

v. Cook Cty., 577 F.3d 806, 810 (7th Cir. 2009) (“Since counsel made a ‘deliberate,

3

strategic choice’ to dismiss the federal lawsuit and proceed . . . in state court, counsel’s

4

incorrect assessment of the consequences of that choice did not compel relief under Rule

5

60(b).”); McCurry ex rel. Turner v. Adventist Health System/Sunbelt, Inc., 298 F.3d 586,

6

594 (6th Cir. 2002) (“Rule 60(b) motion may not be used as a technique to avoid the

7

consequences of decisions deliberately made yet later revealed to be unwise.”); United

8

States v. Bank of N.Y., 14 F.3d 756, 759 (2d Cir. 1994) (“When a party makes a

9

deliberate, strategic choice to settle, she cannot be relieved of such a choice merely

10

because her assessment of the consequences was incorrect.”) In short, a deliberate choice

11

is not a “mistake” or “neglect” under Rule 60(b)(1), and it cannot support relief even if

12

deemed “excusable.” Only excusable neglect suffices under the Rule.

13

As explained, AID had good reasons to abandon standing. It made a deliberate,

14

strategic choice not to pursue its claim in this Court. It was not error, nor could it ever be

15

error, for this Court to accept AID’s choice.

16

2.

17
18
19
20
21
22
23
24
25
26
27
28

Correcting a mistake under Rule 60(b)(1) requires the Court to
have made the mistake of its own initiative.

Nevertheless, AID contends now that the Court erred in accepting its choice.
Errors of law are sometimes cognizable under Rule 60(b). Gila River Ranch, Inc. v.
United States, 368 F.2d 354, 356-57 (9th Cir. 1966). The cases sometimes use general
language that, when taken out of context, may suggest Rule 60(b) can be used to correct
any error of law.

Closer analysis reveals that is not so.

The Ninth Circuit cases

uniformly deal with mistakes of the court’s own initiative—not when a party has led the
court into error. Otherwise, the routine actions of lawyers that lead judges into error
could unwind judgments without time limit except for unreasonableness. In Gila River,
the judge mistakenly used the term “judgment” instead of “verdict” when granting a
remittitur. Id. The court’s correction of its own error was permitted under Rule 60(b)(1).
That the mistake must be of the court’s own initiative is also apparent in the cases
AID cites. In Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th
- 19 -

1

Cir. 1999), the district court properly vacated under Rule 60(b) an award of damages.

2

Such a “correction of [the] court’s own error of law is not subject to [the] time limit

3

imposed by” Rule 59(e). 12 Moore’s Federal Practice § 60.41[4][b][ix] n.87. So too

4

with Liberty Mutual Insurance Co. v. E.E.O.C., 691 F.2d 438, 440 (9th Cir. 1982), where

5

the court “corrected its award of costs” under Rule 60(b).

6

AID urges the Court to reconsider the Court’s “own mistake or inadvertence.”

7

(Doc. 72 at 6.) As should now be clear, AID’s Motion is based on fake procedural

8

history. At no point did the Court make a mistake of its own initiative or a contested

9

ruling on standing and jurisdiction.

10

3.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Relief under Rule 60(b)(6) requires
circumstances,” which are not present here.

AID’s Rule 60(b)(6) argument is easily disposed of.

“extraordinary

“Relief under section

60(b)(6) is reserved for extraordinary circumstances.” Ashford v. Steuart, 657 F.2d 1053,
1055 (9th Cir. 1981) (internal quotation marks omitted). “In a vast majority of the cases
finding that extraordinary circumstances do exist so as to justify relief, the movant is
completely without fault for his or her predicament; that is, the movant was almost
unable to have taken any steps that would have resulted in preventing the judgment from
which relief is sought.” 12 Moore’s Federal Practice § 60.48[3][b]. Nothing forced AID
to concede it lacked standing.
4.

As any relief under Rule 60(b) is also within the Court’s
discretion, the Court would exercise its discretion to deny the
Motion as late, unfair, and empowering more abuse of the
litigation process.

District courts have great discretion in considering motions under Rule 60(b).
Only “a failure to correct clear error constitutes abuse of discretion.” McDowell v.
Calderon, 197 F.3d 1253, 1255 n.4 (9th Cir. 1999) (en banc) (per curiam) (emphasis in
original). The Court of Appeals has expressly disavowed “any suggestion” in its prior
cases “that a refusal to reconsider is an abuse of discretion merely because the underlying
order is erroneous, rather than clearly erroneous.”

Id.

See also Bakery Mach. &

Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009) (“The
- 20 -

1

district court has great latitude in making a Rule 60(b) decision because that decision is

2

‘discretion piled on discretion.’”).

3

To grant relief from AID’s abandonment of standing and jurisdiction for the ADA

4

claim would allow AID and Strojnik to resume and prolong their abusive litigation tactics

5

to extort legal fees from MidFirst. The Motion was also much too late. It was filed more

6

than a year after AID’s written concession of lack of standing and jurisdiction, during

7

which time the Court relied on that abandonment in its own work. No doubt MidFirst did

8

too. The Motion was filed more than two months after entry of judgment. It would be

9

highly prejudicial to the administration of justice for AID to yank the rug out from under

10

fourteen months of the Court’s work and MidFirst’s work. As a matter of discretion, the

11

Court would reject the Motion even if it were within the Court’s discretion to consider.

12
13

V.

LATE APPEAL

14

AID also missed the deadline to file an appeal, which was October 5, 2017. On

15

November 3, 2017, AID filed a Motion for leave to file a late appeal. (Doc. 71.) “The

16

thirty-day deadline serves an important purpose, which is to set a definite point of time

17

when litigation shall be at an end, unless within that time the prescribed application has

18

been made; and if it has not, to advise prospective appellees that they are freed of the

19

appellant’s demands.” Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016)

20

(quoting Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 264 (1978)) (internal

21

quotation marks omitted). The Motion will be denied.

22

A.

Legal Standard

23

No “appeal shall bring any judgment, order or decree in an action, suit or

24

proceeding of a civil nature before a court of appeals for review unless notice of appeal is

25

filed, within thirty days after the entry of such judgment, order or decree.” 28 U.S.C.

26

§ 2107(a). But if a party fails to file a timely notice of appeal, the “district court may,

27

upon motion filed not later than 30 days after the expiration of the time otherwise set for

28

bringing appeal, extend the time for appeal upon a showing of excusable neglect or good

- 21 -

1

cause.” Id. § 2107(c). To the same effect is Federal Rule of Appellate Procedure

2

4(a)(5)(A), which states:

3
4
5
6

The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this
Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days
after the time prescribed by this Rule 4(a) expires, that party shows
excusable neglect or good cause.

7

When neglect is the basis for late appeal, in determining whether the neglect is

8

excusable and whether to allow a late appeal in the exercise of discretion, the district

9

court must examine all the circumstances involved, including “(1) the danger of prejudice

10

to the non-moving party, (2) the length of delay and its potential impact on judicial

11

proceedings, (3) the reason for the delay, including whether it was within the reasonable

12

control of the movant, and (4) whether the moving party’s conduct was in good faith.”

13

Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc) (citing Pioneer Inv.

14

Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).

15

“determination is at bottom an equitable one, taking account of all relevant circumstances

16

surrounding the party’s omission.” Pioneer, 507 U.S. at 395.

The

17

Despite differing approaches in different circuits to the Pioneer factors, there is

18

“general agreement on at least one principle”—that the district court has wide discretion

19

in deciding whether to allow a late appeal. Pincay, 389 F.3d at 858. The district court is

20

entrusted with discretion because it “is in a better position . . . to evaluate factors such as

21

whether the lawyer had otherwise been diligent, the propensity of the other side to

22

capitalize on petty mistakes, the quality of representation of the lawyers . . ., and the

23

likelihood of injustice if the appeal was not allowed.” Id. at 859.

24

In this Circuit, no neglect is automatically inexcusable and dispositive in itself. Id.

25

at 859-60. All neglect, whatever its kind, must be examined in light of the considerations

26

stated above. As a practical matter when relief is sought based on neglect, the finding of

27

“excusable” neglect and the discretionary decision to allow a late appeal merge into one.

28

That decision is reviewable only for abuse of discretion. Id. at 858. “To be sure, were
- 22 -

1

there any evidence of prejudice to [the responding party] or to judicial administration in

2

this case, or any indication at all of bad faith, we could not say that the [] Court abused its

3

discretion in declining to find the neglect to be ‘excusable.’” Pioneer, 507 U.S. at 398.

4

“We must therefore affirm unless we are left with the definite and firm conviction that

5

the lower court committed a clear error of judgment in the conclusion it reached after

6

weighing the relevant factors.” Pincay, 389 F.3d at 858.

7

The Rule requires both “neglect” and that it be “excusable.” As discussed both

8

above and below, AID’s failure to appeal was a choice, not neglect, and ineligible for

9

relief under 28 U.S.C. § 2107(c) and Federal Rule of Appellate Procedure 4(a)(5)(A). If

10

it was neglect, the Court finds in its discretion and in all circumstances involved that it

11

was not excusable.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

B.

As a matter of fact, AID’s failure to appeal was not neglect, and its
request for late appeal was a change of mind.

On September 5, 2017, the day judgment was entered, Strojnik advised his legal
assistant that he intended to appeal. (Doc. 71-4, Ex. B at 2.) Two weeks later, on
September 19, 2017, MidFirst filed its fee motion. (Doc. 51.) Nearly a month passed.
On October 16, 2017, Zazueta emailed a settlement offer that included forgoing appeal of
the judgment and any fee award.

(Doc. 74-1, Ex. 1 at 4-5.)

MidFirst’s counsel

responded that day that AID had “failed to timely file a notice of appeal of Doc. 49,”
which was the Court’s order dismissing the case. (Id. at 4.) Zazueta replied: “I apologize
I misspoke. AID intends to appeal any order awarding fees to Defendant and will
forgo filing its notice of appeal should your client be amenable to settlement.” (Id. at 3
(emphasis added).) Zazueta emailed the next day, restating that meaning: “My response
is specifically referencing AID’s negotiating ability as it currently stands, i.e., solely
capable of filing a notice of appeal of any future order awarding fees in light of the
missed deadline to appeal Doc. 49.” (Id. at 2 (emphasis added).) He also continued:
“To that end, we will file a motion to enlarge time to file our notice of appeal on grounds
of excusable neglect, lack of prejudice to your client, and in light of the pending
application for fees and sanctions before the court.” (Id.) But that last sentence made no
- 23 -

1

sense because AID did need not to appeal the earlier judgment to be able to appeal a later

2

fee award, which is all AID said it wanted to do. Perhaps counsel misunderstood that

3

aspect of appellate procedure too.

4

At the threshold, AID has failed to present any sworn, admissible evidence of

5

what happened or that it intended to appeal the September 5, 2017 judgment. The emails

6

are taken as having been sent and received, and MidFirst relies on them also. But the

7

unsworn statements in Strojnik’s briefs are vague, conclusory, and contradictory. There

8

are no affidavits of internal communications about the appeal, about what Strojnik told

9

the legal assistant, about what the legal assistant was told or did, or about whether

10

Strojnik intended to appeal the judgment when the time limit ran or only to appeal a later

11

fee award. That is a bold departure from the standard of practice for an attorney trying to

12

prove excusable neglect.

13

persuasion. The Court is left to draw factual conclusions with what AID has presented,

14

discounted for lack of oath, detail, and fullness.

15

conclusions are especially weak.

It is also presumptuous for one carrying the burden of

Unsworn self-serving general

16

Strojnik’s statements in his Motion are inconsistent. Strojnik first said the legal

17

assistant “did not calendar the 30-day appeal deadline in light of Plaintiffs’ counsel’s

18

direction that the Order was not appealable in light of the pending application for

19

attorneys’ fees and sanctions.” (Doc. 71 at 2.) In the very next sentence, he says,

20

“counsel for Plaintiffs delegated the duty to calendar the appeal to the legal assistant,”

21

citing an email that said nothing about delegating calendaring responsibility but only that

22

Strojnik planned to appeal. (Id. at 3.) He says, “Plaintiff’s intention to appeal was

23

conveyed to Defendant numerous times since the Court entered its final Judgment in this

24

case (see emails attached as Exhibit C).” (Id. at 3.) But the referenced emails do not

25

substantiate that at all; they all post-date the expiration of the time to appeal, and even

26

then they speak of an appeal of a later fee award. Then he returns to faulting the legal

27

assistant: “Once Plaintiffs realized the decision to appeal was not calendared by the legal

28

assistant working on this case . . . .” and “Upon learning of the mis-calendaring of the

- 24 -

1

appeal . . . .” (Id. at 3, 4.) But Strojnik already said he had told the assistant not to

2

calendar the appeal. AID cannot both absolve and blame the legal assistant, from whom

3

we have heard nothing under oath and nothing at all.

4

AID’s Reply shifts back again, acknowledging it was “Plaintiffs’ counsel’s error

5

in his failure to understand whether the Judgment was appealable and failure to calendar

6

the deadline” and that “counsel did not believe that Doc. 49 was appealable in light of the

7

forthcoming application for fees.” (Doc. 84 at 6.) Strojnik’s uncorroborated statement

8

that he believed a pending fee motion suspended the time to appeal the judgment is a

9

convenient cover for his later change of mind about appealing the judgment. Of course,

10

it is possible the Strojnik believed that, but it is very unlikely in light of the clarity of the

11

appeal rules and the plausibility of a decision to appeal a future fee award only. No one

12

who consults the rules on appeal could come away thinking that. A lawyer’s mistake

13

must be “a real mistake, rather than one feigned for some tactical reason . . . . The good

14

faith consideration goes to the absence of tactical or strategic motives, not to the degree

15

of negligence.” Pincay, 389 F.3d at 860-61 (Berzon, J., concurring).

16

It is more likely Strojnik did not consult the rules at all and at best jumped to an

17

ignorant conclusion. Indeed, Strojnik never says he consulted the rules, only that “he did

18

not believe” the judgment was appealable. Strojnik is an experienced federal appellate

19

litigator. (Doc. 71 at 3.) But the most likely and persuasive conclusion from these

20

differing narratives is that the story about “believing” the judgment of dismissal was not

21

“appealable” (that the time to appeal was suspended by the fee motion) is an after-the-

22

fact rationalization for having “missed” the deadline for an appeal AID did not intend to

23

take. Later they changed their mind. Strojnik’s direction to the legal assistant not to

24

calendar an appeal because of the fee motion could just as well have meant he intended to

25

appeal a later fee award, not that he thought he did not have to appeal the judgment of

26

dismissal until he appeals a future fee award. The legal assistant does not tell us what she

27

was told. The Court so finds.

28

- 25 -

1

That conclusion is subsidiary to and not essential to the Court’s ultimate finding

2

that AID has failed to carry its burden of persuasion that its failure to appeal the judgment

3

was the result of neglect. Rather, the most persuasive inference to this Court is exactly

4

what AID’s counsel said in the emails of October 16 and 17, 2017: that AID planned to

5

appeal a later fee award, not the judgment of dismissal. It would make strategic sense to

6

appeal a fee award, whatever the merit of an appeal, to keep the discussion going toward

7

a possible compromise.

8

The Court finds as a fact that AID did not intend to appeal the judgment of

9

dismissal when the time to appeal came. The failure to appeal the judgment was a

10

conscious, strategic decision, not neglect. That fact alone precludes a late appeal by AID.

11
12
13

C.

If the failure to appeal was negligent, not intentional, in the Court’s
discretion it was not excusable in light of all the circumstances
involved.
1.

There is no danger of injustice to AID in denying a late appeal.

14

Denial of the formality of a late notice of appeal will not prejudice AID. For the

15

reasons already discussed under Rule 60(b), AID’s conscious, strategic concession of no

16

standing and federal jurisdiction is a waiver of review on appeal. “The burden of

17

demonstrating excusability lies with the party seeking the extension, and many courts,

18

both before and after Pioneer, have found no excusable neglect when the failure to timely

19

file an appeal is caused by . . . deliberate strategic decisions, since a party may not simply

20

change its mind after the time has run.” 20 Moore’s Federal Practice § 304.14[2][a].

21

This type of waiver or forfeiture of appellate review is similar to the exclusion for

22

invited error. “The invited error doctrine holds that ‘[O]ne may not complain on review

23

of errors below for which he is responsible.’” Sovak v. Chugai Pharm. Co., 280 F.3d

24

1266, 1270 (9th Cir. 2002) (quoting Deland v. Old Life Republic Ins. Co., 758 F.2d 1331,

25

1336-37 (9th Cir. 1985) (alteration in original). The doctrine is a “cardinal rule of

26

appellate review” and “prevents a party from inducing a court to follow a course of

27

conduct and then at a later stage of the case us[ing] the error to set aside the immediate

28

consequences of the error.” In re Bayer Healthcare & Merial Ltd. Flea Control Prods.

- 26 -

1

Mktg. & Sales Practices Litig., 752 F.3d 1065, 1072 (6th Cir. 2014) (internal quotation

2

marks omitted) (alteration in original). “If the defendant has both invited the error, and

3

relinquished a known right, then the error is waived and therefore unreviewable.” United

4

States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). Such a situation is deemed

5

waiver, not forfeiture. Id. at 845-46. There was no error of the Court in AID’s admission

6

of no standing and jurisdiction, but if somehow it was error of the Court, it was invited

7

error.

8
9

So AID’s concession of no standing and jurisdiction precludes appellate review of
that question in this case.

10

The Court did determine that, in light of AID’s concession, the proper disposition

11

was dismissal of the federal ADA claim, rather than remand to state court. If granted a

12

late appeal, that point could properly be reviewed on appeal. But AID loses nothing in

13

losing that review. The point is hopeless. There is no authority that would allow remand

14

to state court of a purported federal claim that lacks federal standing. That would defeat

15

the statutory right of removal.

16

The Court also did determine to dismiss the state AZDA claim rather than remand.

17

That question also could be reviewed upon a timely appeal. Pragmatically, even if AID

18

got that reversed on the ground that state law dismissal is less than certain, state law

19

dismissal is still highly likely. Reversal of the dismissal here of the state law claim

20

would have little more than theoretical benefit to AID with a very short half-life. There

21

is no practical possibility of injustice to AID from denial of late appeal.

22

2.

Continuing injustice to MidFirst is certain from a late appeal.

23

Surely the prospect of injustice to MidFirst is also relevant to whether neglect is

24

excusable in the district court’s discretion. Here such injustice is certain. In general the

25

burden of defending a late appeal alone is not a prejudice that warrants denial of a late

26

appeal. But here MidFirst would be put through more expense in resisting a mooted case

27

being pursued only to create nuisance value for a groundless attorney fee claim. The

28

certainty of the unfair harm to MidFirst from the process itself, weighed against the

- 27 -

1

absence of real benefit to AID from leave to appeal, strongly weighs against finding

2

neglect to be excusable.

3

3.

4
5
6

Even on AID’s own story, which the Court does not credit,
failure to timely appeal was the result of counsel’s unexplained
ignorance of procedure.

The Court must also consider “the reason for the delay, including whether it was
within the reasonable control of the movant.” Pincay, 389 F.3d at 855.

7

The time to appeal a judgment is not affected by the pendency of a motion for

8

award of attorney fees. “The Supreme Court has adopted a bright-line rule . . . that a

9

decision on the merits is a ‘final decision’ for purposes of § 1291 whether or not there

10

remains for adjudication a request for attorney’s fees attributable to the case.” Lobatz v.

11

U.S. W. Cellular of Cal., Inc., 222 F.3d 1142, 1145 (9th Cir. 2000) (quoting Burndich v.

12

Becton Dickinson & Co., 486 U.S. 196, 202-03 (1988)) (internal quotation marks

13

omitted). Though even failure to read the rule is not per se inexcusable, a “lawyer’s

14

failure to read an applicable rule is one of the least compelling excuses that can be

15

offered.” Pincay, 389 F.3d at 859.

16

Even if neglect explains the failure to appeal, the reasons were entirely within the

17

control of and at the fault of AID’s counsel. At best Strojnik instructed the legal assistant

18

not to calendar an appeal because he believed the pendency of the fee motion suspended

19

the time to appeal the judgment of dismissal. That is the gravest fault of counsel and all

20

but unbelievable for an experienced federal appellate litigator. Such a lawyer could not

21

acquire or carry around a background belief that a motion for attorney fees extends the

22
23
24
25

time to appeal a final judgment.
The reason for the delay cuts against a finding of excusability of neglect.
4.

The length of the delay is not insignificant.

The initial length of delay from expiration of the time to appeal until the Motion
for Late Appeal was 29 days, though AID’s counsel knew of the missed appeal at least 18

26

days before that and does not explain the delay in moving for an extension. The practical

27

delay was at least two months, not just 18 days. AID filed its Motion for Reconsideration

28

and Relief from Judgment at almost the same time as its Motion for Late Appeal. (Docs.

- 28 -

1

71, 72.) The two substantially overlapped and had to be considered and decided together.

2

But the two were not fully briefed until December 15, 2017. (Doc. 95.) That delay is not

3

trivial and does not carry much weight against the equitable considerations in opposition

4

to finding excusable neglect. This factor of “the length of delay and its potential impact

5
6
7
8

on judicial proceedings” carries little weight in favor of a late appeal. Pincay, 389 F.3d
at 855.
5.

AID acted in bad faith.

There is abundant evidence of bad faith by AID. If one believes, and this Court
does not, AID’s best account of why it missed the appeal deadline, that reason alone

9

would not evidence bad faith. But the inquiry concerning bad faith is broader than just

10

the immediate reasons for the missed appeal, as other inquiries show. AID’s bold and

11

pervasive violation of law and ethics in pressuring nuisance-value settlements for

12

patently excessive fee awards not authorized by the fee award statute colors everything in

13

the case. It should count against AID’s appeal to equity and discretion for dispensation to

14

revive that abuse of the litigation process when AID’s own grave neglect allowed that

15

abuse to come to its natural close.

16
17
18
19
20
21
22
23
24
25
26
27
28

Bad faith is specifically significant for whether the claimed excusable neglect “is a
real mistake, rather than a feigned one for some tactical reason.” Pincay, 389 F.3d at 860
(Berzon, J., concurring). Surely there is “any indication at all of bad faith” here such that
any neglect would be inexcusable. Pioneer, 507 U.S. at 398.
6.

The other Pincay factors weigh against allowing a late appeal.

Here there has been no “propensity of the other side to capitalize on petty
mistakes.” Pincay, 389 F.3d at 859. This Court must also consider “whether the lawyer
had otherwise been diligent” and “the quality of representation of the lawyers” over the
history of the litigation. Id. AID’s counsel was not diligent in preparing his Complaint,
even in proofreading it. His failure to offer sworn evidence in support of his Motion for
late appeal, especially from the people who could corroborate or refute his story, is far
short of diligence. His briefing throughout has been summary, conclusory, devoid of the
level of analysis the issues sometimes demand, and silent on contrary authority. His
grave neglect, if it was that and not conscious choice, in missing the appeal deadline is of
- 29 -

1

a pace with the rest of his representation. It is unworthy of discretion to be relieved of it.

2

MidFirst’s representation was competent throughout. These circumstances cut against

3

discretion to allow a late appeal as “excusable.”

4

The Court finds in its discretion that any neglect in failing to appeal, if that’s what

5

it was, is not excusable and not deserving of relief. The Court exercises its discretion in

6

reaching this conclusion after consideration of all the circumstances involved and all the

7

equities.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

VI.

STATE OF ARIZONA’S MOTION TO INTERVENE
The State of Arizona moves to intervene, three months after entry of judgment, to

adjudicate Strojnik a vexatious litigant and to get largely unspecified but some specified
relief against him. (Doc. 87 at 4-5.) The relief sought includes requiring Strojnik to
obtain leave of the Court before filing federal ADA civil rights disability actions in this
Court on behalf of any client. (Id.)
After dismissal of the consolidated state court cases, the State sought sanctions
against AID and its counsel. The parties settled that and AID’s appeal with an agreed
injunction against AID filing new AZDA cases in state court. (Doc. 87-2, Ex. B at 3-4.)
The injunction does not limit Strojnik from representing “any party in any action”; nor
does it address filing federal ADA cases in any court. (Id. at 4.) Strojnik then found a
new plaintiff and continued filing federal disability cases in federal court—55 at the time
of the State’s December 5, 2017 Motion to Intervene. (Doc. 87 at 3.) Neither AID nor
Strojnik has violated the agreed injunction entered in state court.
A.

The State has no right to intervene under Rule 24(a).

24

The four-part test for intervention of right under Rule 24(a) is—

25

(1) the motion must be timely; (2) the applicant must claim a “significantly
protectable” interest relating to the property or transaction which is the subject of
the action; (3) the applicant must be so situated that the disposition of the action
may as a practical matter impair or impede its ability to protect that interest; and
(4) the applicant’s interest must be inadequately represented by the parties to the
action.

26
27
28

- 30 -

1

Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc).

2

The State’s Motion to Intervene fails to meet the first three requirements, and the fourth

3

does not pertain to this case.

4

The State’s Motion is untimely. It comes after termination of an action among

5

three private parties largely by consent of the Plaintiffs themselves. The State argues that

6

a “change in circumstances” in this litigation that makes its motion timely. (Doc. 87 at

7

8.) Unlike Smith v. Los Angeles Unified School District, 830 F.3d 843, 854 (9th Cir.

8

2016), this is not a consent class injunction with ongoing effect that some parties sought

9

to modify to the detriment of the intervenor-applicant subclass. There is no ongoing

10

injunction here, and there has been no change in circumstances in this concluded lawsuit.

11

The State’s proffered “protectable interests” are not impaired by the past

12

disposition of this case and are not protectable interests at all. The State contends it has a

13

right to intervene to enjoin Strojnik and his future clients to protect the State’s residents

14

and their businesses from Strojnik’s abusive litigation practices. (Doc. 87 at 10-11.).

15

The State argues that “given Strojnik’s conduct, it is simply a matter of time before a

16

court considers whether he is a vexatious litigant. Strojnik will suffer little prejudice

17

from answering the inevitable questions about his conduct in this case, rather than a

18

different one.” (Doc. 87 at 9.) But if it is “simply a matter of time,” then that time will

19

come without reanimating this dead lawsuit to do it here. That interest is not impaired by

20

anything this Court has done or by failure to enjoin Strojnik here. That public interest

21

can be pursued by Bar discipline with its procedures for fairness to the lawyer and its

22

remedies focused on protecting the public.

23

The State also claims it has an interest in protecting its tax revenue, which “could

24

easily be impaired if Strojnik again begins extracting settlements from Arizona

25

businesses and draining their taxable revenue.” (Id. at 11.) True, Strojnik may be

26

extracting nuisance settlements in other cases on exorbitant groundless fee claims, but he

27

will not be extracting any settlements in this case. That tax-revenue interest from the

28

- 31 -

1

general health of the economy is not legally protectable on intervention in this action

2

among three private litigants.

3

The State also admits it fails to comply with Federal Rule of Civil Procedure

4

24(c), which requires that a motion to intervene “be accompanied by a pleading that sets

5

out the claim or defense for which intervention is sought.” The State says, “Notably,

6

none of the types of pleadings permitted by Rule 7 would seemingly apply in this context

7

where judgment has already been entered.” (Doc. 87 at 5 n.4.) That is a reason why

8

intervention is improper here, not a reason to violate Rule 24(c).

9

B.

Permissive intervention is not warranted.

10

Rule 24(b) allows permissive intervention if the intervenor-applicant “has a claim

11

or defense that shares with the main action a common question of law or fact.” Fed. R.

12

Civ. P. 24(b)(1)(B). In cases where a government officer or agency seeks to intervene on

13

timely motion, the Court may allow the officer to do so if a current party’s claim or

14

defense is based on a statute “administered by the officer or agency.” Fed. R. Civ. P.

15

24(b)(2)(A). But again, there is no current party in this dead case. The Attorney

16

General’s motion is not timely, coming three months after final judgment. The Arizona

17

Attorney General has no statutory role in federal ADA cases.

18

Moreover, permissive intervention is by definition “subject to the discretion of the

19

district judge.” Montgomery v. Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978). “In

20

exercising its discretion, the court must consider whether the intervention will unduly

21

delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P.

22

24(b)(3). Indeed, the Court may deny a government official’s Rule 24(b) motion if it

23

finds “intervention would unduly expand the controversy or otherwise lead to

24

improvident delay or expense.” Nuesse v. Camp, 385 F.2d 694, 706 (D.C. Cir. 1967).

25

The parties are done with this case in this court. It would unduly delay the parties to

26

resurrect this case for the State’s purposes.

27

permissive intervention.

28

The Court’s discretion is to deny any

The State’s Motion to Intervene (Doc. 87) will be denied.

- 32 -

1
2

IT IS THEREFORE ORDERED that Defendant’s Motion for Award of Attorneys’
Fees and Sanctions (Doc. 51) is granted in the amount of $31,473.50.

3

IT IS FURTHER ORDERED that the Clerk of Court enter judgment in favor of

4

Defendant MidFirst Bank (1) against Peter Strojnik in the amount of $31,473.50 plus

5

interest at the federal rate of 2.42% per annum from the date of judgment until paid, of

6

which $13,112.00 is also the joint and several obligation of Advocates for Individuals

7

with Disabilities, LLC, and David Ritzenthaler, and (2) against Advocates for Individuals

8

with Disabilities, LLC, and David Ritzenthaler, jointly and severally with Peter Strojnik,

9

in the amount of $13,112.00 plus interest at the federal rate of 2.42% per annum from the

10

date of judgment until paid.

11

IT IS FURTHER ORDERED that Defendant’s Motion for Reconsideration of the

12

Clerk of Court’s Denial of Costs (Doc. 64) is granted and costs are taxed against

13

Advocates for Individuals with Disabilities, LLC, and David Ritzenthaler in favor of

14

Defendant MidFirst Bank in the amount of $686.95.

15

IT IS FURTHER ORDERED that the following motions are denied:

16

(1)

17

Plaintiffs’ Motion for Extension of Time to File Notice of Appeal (Doc.
71);

18

(2)

Plaintiffs’ Motion for Reconsideration and Relief from Judgment (Doc. 72);

19

(3)

State of Arizona’s Motion to Intervene (Doc. 87); and

20

(4)

Defendant’s Request for Expedited Ruling (Doc. 90).

21

This case remains terminated.

22

Dated: July 24, 2018.

23
24
25
26
27
28

- 33 -