Pure Wafer Incorporated v. Prescott, City of et al
Filing
148
ORDER: IT IS ORDERED that Pure Wafer's Motion for Attorneys' Fees, (Doc. 142 ), is GRANTED in the amount of $69,535.62 [see attached Order for details]. Signed by Senior Judge James A Teilborg on 7/31/17.(MAW)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Pure Wafer Incorporated,
Plaintiff,
10
11
ORDER
v.
12
No. CV-13-08236-PCT-JAT
City of Prescott, et al.,
13
Defendants.
14
15
Pending before the Court is Plaintiff Pure Wafer, Inc.’s (“Pure Wafer’s”) Motion
16
for Attorneys’ Fees. (“Motion,” Doc. 142; see also Doc. 142-1). After reviewing the City
17
of Prescott’s (the “City’s”) Response, (Doc. 143), and Pure Wafer’s Reply, (Doc. 144),
18
the Court now rules on the Motion.
19
I.
BACKGROUND
20
The Court previously detailed the factual and procedural background in its
21
Findings of Fact and Conclusions of Law and Permanent Injunction (the “Findings and
22
Conclusions”). (See Doc. 87 at 1–13). After a bench trial, the Court found that the City
23
violated the Contract Clause of the U.S. Constitution when it declared that its sewage
24
treatment plant would no longer accept effluent discharged by Pure Wafer. (See id. at 13–
25
29). Because the Court found in favor of Pure Wafer on its Contract Clause claims, it did
26
not reach the merits of Pure Wafer’s alternative claims for breach of contract and the
27
implied covenant of good faith and fair dealing resulting from the parties’ obligations
28
under a Development Agreement. (Id. at 29). The Court also granted Pure Wafer’s
1
request for a permanent injunction, enjoining the City from enforcing various provisions
2
of the City’s Ordinance No. 4856-1313 (the “Ordinance”) against Pure Wafer. (See id.
3
at 29–32). The Court finally entered a final judgment in Pure Wafer’s favor.
4
(“Judgment,” Doc. 88).
5
The City appealed the Findings and Conclusions as well as the Judgment.
6
(Doc. 95). The Ninth Circuit Court of Appeals (the “Ninth Circuit”) affirmed-in-part and
7
reversed-in-part and remanded for further proceedings. Pure Wafer Inc. v. City of
8
Prescott, 845 F.3d 943, 959 (9th Cir. 2017). In particular, the Ninth Circuit held:
9
11
[W]hile the City prevails on its appeal of the Contract Clause
issue, judgment for Pure Wafer can be sustained on the
alternative ground that the City has breached its contract with
Pure Wafer. We leave it for the district court on remand to
decide the appropriate remedy.
12
Id. at 958. The Ninth Circuit also affirmed the Court’s judgment on the City’s
13
counterclaim. Id. at 958 n.14.
10
14
After the Ninth Circuit issued its opinion, Pure Wafer filed its motion for
15
attorneys’ fees with the Ninth Circuit. (Doc. 142-1 at 10). The Ninth Circuit subsequently
16
filed an order remanding Pure Wafer’s motion for attorneys’ fees to this Court.1
17
(Doc. 136). The Court then issued an order allowing the parties to refile the same
18
pleadings regarding the motion for attorneys’ fees that they filed with the Ninth Circuit.
19
(Doc. 140).
20
II.
LEGAL STANDARD
21
Ninth Circuit Rule 39-1.6 governs the procedure for attorneys’ fees motions on
22
appeal. This rule sets forth the required content of the memorandum in support of the
23
motion, the necessary supporting documentation—including an itemized statement of
24
fees, a showing that the hourly rates are legally justified, and an affidavit attesting to the
25
accuracy of the information—and the format and description requirements of the
26
itemized statement. 9th Cir. R. 39-1. The parties’ Development Agreement provides that
27
1
28
The City argues that the Ninth Circuit lacked jurisdiction over the attorneys’ fees
motion because the Ninth Circuit had already filed its mandate. (Doc. 143-1 at 2).
Because the Ninth Circuit remanded the Motion to this Court, this argument is moot.
-2-
1
“the prevailing party shall be entitled to reasonable attorneys’ fees and all reasonable
2
costs, expenses, and disbursements in connection with such action.” (Doc. 1-1 at 16).
3
III.
ANALYSIS
4
Pure Wafer seeks an award of $87,548.12 in attorneys’ fees and an additional
5
$8,554.25 in other litigation costs and expenses, for a total of $96,102.37. (Doc. 142-
6
1 at 4). The City argues that Pure Wafer is not entitled to these fees, costs, and expenses
7
because: (1) Pure Wafer is not the prevailing party; (2) Pure Wafer seeks costs unrelated
8
to the appeal, improperly seeks costs, and seeks costs that are unreasonable; (3) Pure
9
Wafer’s request is a procedurally deficient collateral attack on the Court’s determination
10
that costs are not appropriate in this case; and (4) Pure Wafer’s requested attorneys’ fees
11
are unreasonable and should be reduced by at least $32,899.37, if awarded. (See
12
Doc. 143 at 2–7).
13
A.
14
The City argues that Pure Wafer is not the prevailing party because the matter was
15
remanded to this Court and some of Pure Wafer’s arguments were rejected on appeal.
16
(Doc. 134-1 at 3). The Ninth Circuit held “judgment for Pure Wafer can be sustained on
17
the alternative ground that the City has breached its contract with Pure Wafer.” Pure
18
Wafer, 845 F.3d at 959. Although, the Ninth Circuit noted that the City prevailed on its
19
Contract Clause argument, Pure Wafer is ultimately the prevailing party as the City was
20
found to have breached the Development Agreement. Id. Thus, the City’s argument is
21
rejected.
22
B.
23
The City advances a few arguments as to why Pure Wafer is not entitled to costs
24
related to the appeal. First, the City argues that Pure Wafer seeks fees and costs unrelated
25
to the appeal, improperly seeks costs, and seeks unreasonable costs. (Doc. 143-1 at 4).
26
Second, the City argues that Pure Wafer’s request for costs is a procedurally deficient
27
collateral attack on the Ninth Circuit’s ruling that each party shall bear its own costs on
28
appeal. (Id. at 9). Pure Wafer rejoins that the expenses it seeks are “far broader than
Prevailing Party
Costs on Appeal
-3-
1
‘taxable costs.’” (Doc. 144-1 at 4). Further, Pure Wafer argues that under the language of
2
the Development Agreement, it is entitled to “all reasonable costs, expenses, and
3
disbursements in connection with such action.” (Id. at 3).
4
While the Development Agreement could be interpreted to include certain costs
5
and expenses, the Ninth Circuit specifically ordered “each party shall bear its own costs
6
on appeal.” Pure Wafer, 845 F.3d at 959. This Court is bound by the ruling of the Ninth
7
Circuit and will not award costs. After reviewing Pure Wafer’s requested “litigation
8
expenses,” the Court finds that the expenses are all “costs” and, thus, not recoverable
9
under the Ninth Circuit’s mandate. (Id.). Therefore, the Court will not award the
10
$8,554.25 of “expenses” or costs requested by Pure Wafer. (Doc. 142-1 at 24, 32).
Reasonableness of Attorneys’ Fees
11
C.
12
The City argues that some of Pure Wafer’s requested fee amounts are
13
unreasonable. (Doc. 143-1 at 4). Specifically, the City claims that the Court should
14
reduce Pure Wafer’s requested attorneys’ fees because: (1) certain time entries are related
15
to prior work before this Court and not related to the appeal; (2) some items are related to
16
a voluntarily dismissed Ninth Circuit appeal; (3) it is unreasonable to take 22 hours to
17
update case law after filing its brief and before oral argument; (4) it is unreasonable to
18
recover for preparation for a mediation that Pure Wafer withdrew from; and (5) it is
19
unreasonable to recover fees for litigating the ultimately unsuccessful Contract Clause
20
claim. (Id. at 4–7).
21
1.
Attorneys’ Fees Unrelated to the Appeal
22
The City argues that certain entries are unreasonable because they are not part of
23
the appeal and, instead, relate to this Court’s “entry, stay, and collection of an attorneys’
24
fees judgment.” (Id. at 4). Pure Wafer argues that under the Development Agreement, it
25
is entitled to all reasonable attorneys’ fees related to such action, which are “not limited
26
to attorneys’ fees and expenses incurred in briefing and arguing the Court of Appeals.”
27
(Doc. 144-1 at 3 (quotation marks omitted)). The Court disagrees. This Motion was filed
28
-4-
1
with the Ninth Circuit, and, thus, the fees must relate to the Ninth Circuit appeal.2
2
Therefore, the fees incurred in litigation before this Court—$9,997.50,3 (see Doc. 143-2
3
at 2–3)—are not recoverable as part of the Ninth Circuit appeal.
4
2.
Attorneys’ Fees Related to a Separate Appeal
5
The City argues that fees related to a separate appeal to the Ninth Circuit, which
6
was voluntarily dismissed, are not recoverable. (Doc. 143-1 at 4). Pure Wafer argues that
7
because the appeal arose out of this action, it should be recoverable. (Doc. 144-1 at 4).
8
The Court agrees with the City—because the appeal was voluntarily dismissed, there was
9
no prevailing party. Therefore, the Court will not award attorneys’ fees for litigating the
10
separate appeal. These fees are entirely duplicative of the $9,997.50 the Court deemed
11
unrecoverable in the prior section. See supra Section III.C.1.
12
3.
Attorneys’ Fees Related to Updating Case Law
13
The City next argues that Pure Wafer’s requested fees for updating case law are
14
unreasonable. (Doc. 143-1 at 5). Pure Wafer claims that these expenses were necessary
15
for counsel to determine “whether any of the previously cited authorities have been
16
overruled, criticized, or questioned; or . . . whether new cases have been decided that are
17
pertinent to the issues briefed.” (Doc. 144-1 at 5). While the Court agrees with Pure
18
Wafer that some updating of research is necessary, the Court finds that the total amount
19
of attorneys’ fees—which accrued from work completed after Pure Wafer’s brief was
20
filed—relating to this research are unreasonable. See Cabrales v. Cty. of L.A., 875 F.2d
21
740, 741 (9th Cir. 1989) (reducing attorneys’ fees for duplicative research of cited cases).
22
Beyond the entries contested by the City, Pure Wafer’s counsel updated case law on other
23
occasions in preparation for the Ninth Circuit oral argument and the Court will not reduce
24
the uncontested, non-duplicative updating research fees. (See, e.g., Doc. 142-1 at 31–32).
25
26
27
28
2
While Pure Wafer may be correct that it might be able to recover attorneys’ fees
pursuant to the Development Agreement, these attorneys’ fees are not procedurally
recoverable as part of this Motion filed as part of the appeal.
3
Although the City’s calculation of these fees is $9,998.00, the Court’s own
calculation of these fees is $9,997.50.
-5-
1
However, because Pure Wafer had already filed its appellate brief, the Court finds it
2
unreasonable that Pure Wafer spent over 22.9 hours4 updating case law. Therefore, the
3
Court will reduce some of the fees5 related to Pure Wafer’s updating of case law; this
4
reduces Pure Wafer’s requested fee amount by $8,015.00, (see Doc. 143-2 at 5).
5
4.
Attorneys’ Fees Related to the Ninth Circuit Mediation Program
6
The City additionally argues that the Court should reduce Pure Wafer’s requested
7
fees related to the Ninth Circuit’s mediation program because “Pure Wafer refused to
8
participate in [the mediation] and actually withdrew from it.” (Doc. 143-1 at 6). Pure
9
Wafer argues that it did not refuse to participate in the mediation, and the fees regarding
10
mediation were incurred in connection with the appeal. (Doc. 144-1 at 4). Fees related to
11
the Ninth Circuit’s mediation program are reasonable. See Seven Signatures Gen. P’ship
12
v. Irongate Azrep BW LLC, Civil No. 11-00500 JMS-RLP, 2014 WL 4129522, at *3
13
(D. Haw. Aug. 18, 2014). Despite the fact that the mediation did not occur, it is
14
reasonable for an attorney to prepare for the mediation. Further, these fees relate to the
15
appeal. Therefore, the Court will not reduce the amount of fees relating to preparation for
16
the mediation.
5.
17
Attorneys’ Fees Related to Contract Clause Argument
18
Finally, the City argues that, because Pure Wafer’s Contract Clause argument was
19
unsuccessful, any fees related to the Contract Clause claim are presumptively
20
unreasonable. (Doc. 143-1 at 6–7). Pure Wafer does not clearly address this argument in
21
its Reply. Nonetheless, the Court rejects this argument. Pure Wafer remains the
22
prevailing party on appeal despite losing on some of its arguments. Therefore, the Court
23
declines to reduce Pure Wafer’s fees related to the Contract Clause argument.
24
///
25
26
27
28
4
Although the City’s Itemized Objection #2 purportedly objects to only 18.5
hours, the City lists 22.9 hours. (Doc. 143-2 at 4). This oversight is confirmed by the
City’s correct calculation of the contested $8,015.00 fee amount.
5
As the Court noted, the City does not object to all entries related to Pure Wafer’s
updating of case law in preparation for oral argument. (See, e.g., Doc. 142-1 at 31–32).
-6-
1
D.
2
Pure Wafer requests a total of $96,102.37 in attorneys’ fees, costs, and expenses.
3
(Doc. 142-1 at 4). Consistent with the Ninth Circuit’s mandate, the Court will subtract
4
$8,554.25, representing Pure Wafer’s costs, from Pure Wafer’s requested amount. The
5
Court will also subtract $9,997.50, representing work related to a voluntarily dismissed
6
Ninth Circuit appeal and unrelated to the appeal-at-issue, from Pure Wafer’s requested
7
amount. Finally, the Court will reduce Pure Wafer’s requested amount by $8,015.00,
8
representing the unreasonable time spent updating case law after Pure Wafer’s appellate
9
brief was filed. In sum, the Court reduces Pure Wafer’s requested amount by $26,566.75,
Summary
10
for a total award of $69,535.62.
11
IV.
CONCLUSION
12
Based on the foregoing,
13
IT IS ORDERED that Pure Wafer’s Motion for Attorneys’ Fees, (Doc. 142), is
14
15
GRANTED in the amount of $69,535.62.
Dated this 31st day of July, 2017.
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?