Kolodrivskiy v. Wachovia Bank, Mortgage, FSB et al
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 9/12/11 ORDERING that Wachovia's motion for attorneys' fees 18 is DENIED WITHOUT PREJUDICE. Wachovia may re-file its motion after the entry of a final judgment in this action; the hearing on this motion currently set for 9/15/11 at 10:00 a.m. is VACATED. (Becknal, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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VALENTINA KOLODRIVSKIY,
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Plaintiff,
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CIV. NO. S-11-0371 GEB GGH PS
vs.
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WACHOVIA BANK, MORTGAGE, et al.,
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Defendants.
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ORDER
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This action was referred to the undersigned pursuant to Local Rule 302(c)(21). It
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was removed from state court on February 9, 2011. On July 11, 2011, defendant Wachovia Bank
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Mortgage (“Wachovia”) was dismissed from the case with prejudice pursuant to Federal Rule of
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Civil Procedure 41(b). Plaintiff’s claims against defendant ETS Services, LLC (“ETS”) remain
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pending.
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On August 8, 2011, Wachovia filed a motion for attorneys’ fees. Local Rule 293
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provides that “[m]otions for awards of attorneys’ fees to prevailing parties pursuant to statute
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shall be filed not later than twenty-eight (28) days after entry of final judgment.” L.R. 293(a)
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(emphasis added). See also Fed. R. Civ. P. 54(d)(2).1 However, no final judgment has been
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entered in this case. The Court’s July 11, 2011 order dismissing plaintiff’s claims against
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Wachovia with prejudice does not qualify as a final judgment, because it does not adjudicate all
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the parties’ rights and liabilities in the entire action. Importantly, the order did not address the
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pending claims against ETS.
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Under some circumstances, a court may direct the entry of a partial final
judgment. Federal Rule of Civil Procedure 54(b) provides that:
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When an action presents more than one claim for relief -- whether
as a claim, counterclaim, crossclaim, or third-party claim -- or
when multiple parties are involved, the court may direct entry of a
final judgment as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no just
reason for delay.
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Fed. R. Civ. P. 54(b). However, the Ninth Circuit has held that “[j]udgments under Rule 54(b)
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must be reserved for the unusual case in which the costs and risks of multiplying the number of
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proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the
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litigants for an early and separate judgment as to some claims or parties.” Morrison-Knudsen
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Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981). In the absence of an entered judgment, “any
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order...however designated, that adjudicates fewer than all the claims or the rights and liabilities
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of fewer than all the parties does not end the action as to any of the claims or parties....” Rule 54
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(b).
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The Court did not, in its July 11, 2011 order, direct the entry of a partial final
judgment. Accordingly, Wachovia’s motion for attorneys’ fees is premature.2 See e.g. RD Legal
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Under Federal Rule of Civil Procedure 54(d)(2), a fee motion must be filed no later
than 14 days after entry of judgment. However, district courts are permitted to establish special
procedures for fee-related issues by local rule. Fed. R. Civ. P. 54(d)(2)(D).
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Wachovia’s reliance on Garzon v. Varese, 2011 WL 103948 (C.D. Cal. Jan. 11, 2011)
for the proposition that a Rule 41(b) dismissal with prejudice allows fees to the prevailing party
is misplaced. Garzon is inapposite, because it only involved one plaintiff and one defendant, and
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Funding, LLC v. Erwin & Balingit, LLP, 2010 WL 1416968, at *1-2 (S.D. Cal. Apr. 8, 2010)
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(denying a plaintiff’s motion for entry of partial judgment as to some defendants, and for
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attorneys’ fees, where claims against another defendant remained pending); Camellia Park
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Homeowners Assoc. v. Greenbriar Homes Co., 882 F. Supp. 150, 150-51 (N.D. Cal. 1995)
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(denying fee motion brought after summary adjudication of certain claims where other claims
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remained unresolved).
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For the reasons discussed above, IT IS ORDERED that:
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1. Wachovia’s motion for attorneys’ fees (dkt. no. 18) is DENIED WITHOUT
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PREJUDICE. Wachovia may re-file its motion after the entry of a final judgment in this action
in accordance with L.R. 293.
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2. The hearing on this motion currently set for September 15, 2011 at 10:00 a.m.
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is VACATED.
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DATED: September 12, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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GGH:wvr
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Kolodrivskiy0371.Fees.wpd
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the order at issue disposed of the entire case. Garzon did not address the timeliness of a fee
motion brought after an order adjudicating fewer than all the parties’ rights and liabilities in the
action.
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