Pure Wafer Incorporated v. Prescott, City of et al

Filing 114

ORDER denying Defendants' 108 Motion to Stay of Monetary Relief Pending Appeal. Signed by Senior Judge James A Teilborg on 9/23/2014.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Pure Wafer Incorporated,
Plaintiff,

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ORDER

v.

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No. CV-13-08236-PCT-JAT

City of Prescott, et al.,

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Defendants.

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Pending before the Court is Defendants’ Motion for Relief of Stay of Monetary

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Relief Pending Appeal (Doc. 108). The Court now rules on the motion.

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I.

Background

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On April 17, 2014, the Court entered its Findings of Fact and Conclusion of Law

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and Permanent Injunction. (Doc. 87). The same day, the Court entered a final judgment in

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favor of Plaintiff. (Doc. 88). Plaintiff subsequently timely moved for an award of

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attorneys’ fees. (Doc. 93). While that motion was pending, Defendants filed a notice of

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appeal to the Ninth Circuit Court of Appeals (“Ninth Circuit”) in which they appealed

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from the Findings of Fact and Conclusions of Law and Permanent Injunction (Doc. 87) as

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well as the Judgment (Doc. 88). (Doc. 95).

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On July 29, 2014, the Court granted the motion for attorneys’ fees and awarded

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Pure Wafer its fees. (Doc. 107). Defendants now move to stay enforcement of that

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monetary award pending the resolution of the appeal before the Ninth Circuit. (Doc. 108).

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II.

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Analysis
The parties have thoroughly briefed the issue of whether the Court should stay the

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fee award. However, the Court cannot decide this issue because it is moot. A request to

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stay relief pending appeal presumes that the relief sought to be stayed has in fact been

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appealed. Defendants have not filed a notice of appeal regarding the fee award, nor have

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they amended their initial notice of appeal to include the fee award as a subject of their

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appeal. Therefore, the Court cannot stay enforcement of such relief.

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It is well-settled and long-established case law in the Ninth Circuit that “[a] timely

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notice of appeal from the judgment or order complained of is mandatory and

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jurisdictional.” Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir. 2007) (quoting Culinary

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& Serv. Emps. Union v. Haw. Emp. Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir.

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1982)). “Where no notice of appeal from a postjudgment order [regarding] attorneys’ fees

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is filed, the court of appeals lacks jurisdiction to review the order.” Id. In Culinary &

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Service Employees Union, the plaintiffs argued that their previously-filed notice of appeal

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from the district court’s judgment was constructively amended to include an appeal from

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the subsequent award of fees. 688 F.2d at 1232. The Ninth Circuit found no evidence in

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the record showing an actual amendment and held it had no jurisdiction to review the

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award. Id.

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Similarly, in Whitaker, the plaintiffs argued that their notice of appeal from the

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district court’s grant of summary judgment “automatically pended until the district court

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decided their request for attorney fees, and therefore, that the notice of appeal

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encompasse[d] the attorney fees claim.” 486 F.3d at 585. The Ninth Circuit noted that the

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time for filing a notice of appeal can be altered in certain circumstances, such as if “a

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party files a notice of appeal before the district court has decided a motion for attorney

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fees, the notice does not become effective until the court decides the motion.” Id. But the

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Ninth Circuit rejected the plaintiffs’ argument, holding that a party “wishing to challenge

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the attorney fees decision ‘must file a notice of appeal, or an amended notice of appeal’

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specifying its appeal of that decision.” Id. (quoting Fed. R. App. P. 4(a)(4)(B)(i)); see

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also Fed. R. App. P. 3(c)(1)(B) (notice of appeal must “designate the judgment, order, or

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part thereof being appealed”).

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Finally, in Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999), the Ninth Circuit

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held that it had no jurisdiction to review a fee award that had not been timely appealed

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despite its reversal of the merits upon which that fee award had been based. In Leslie, the

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district court awarded attorneys’ fees to defendants; part of this award was “assessed

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solely against [the plaintiff] on the ground that [the defendants were] the prevailing

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part[ies].” 198 F.3d at 1160. Although the plaintiff timely appealed the district court’s

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grant of summary judgment to the defendants, he failed to timely appeal the order

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awarding fees. Id. On the merits appeal, the Ninth Circuit reversed the district court’s

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grant of summary judgment to defendants but nonetheless refused to reverse the fee

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award, concluding that “[t]he award of fees and costs is a collateral issue . . . and our

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appellate jurisdiction over the merits of [the plaintiff’s] appeal from the district court’s

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summary judgment does not imbue us with jurisdiction to review the fee award.” Id.

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(citation omitted).

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In this case, Defendants have not timely filed a notice of appeal from the Court’s

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award of attorneys’ fees, nor have they timely amended their previously-filed notice of

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appeal from the merits judgment. Consequently, on this record, it appears that the Ninth

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Circuit would not have jurisdiction over the award of attorneys’ fees. Therefore, the

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Court will deny Defendants’ request for a stay.1

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III.

Conclusion
For the foregoing reasons,

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Defendants are not without recourse. If the Ninth Circuit reverses the Court’s
merits judgment in this case, Defendants will likely have a remedy under Federal Rule of
Civil Procedure 60(b)(5) for reversal of the fee award. See Cal. Med. Ass’n v. Shalala,
207 F.3d 575, 577-78 (9th Cir. 2000).
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IT IS ORDERED denying Defendants’ Motion for Stay of Monetary Relief
Pending Appeal (Doc. 108).
Dated this 23rd day of September, 2014.

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