Fallay v. City and County of San Francisco et al

Filing 187

ORDER RE-SETTING DATES FOR MOTION FOR ATTORNEYS' FEES. Signed by Judge Charles R. Breyer on 1/22/2016. (crblc1, COURT STAFF) (Filed on 1/22/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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ORDER RE-SETTING DATES FOR
MOTION FOR ATTORNEYS’ FEES

Plaintiff,
v.
SAN FRANCISCO CITY AND COUNTY,
et al.,
Defendants.

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No. C 08-2261 CRB

AUGUSTINE FALLAY,

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On December 4, 2015, the Court granted the Insurer Defendants’1 Motion to Strike.

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See Mot. to Strike (dkt. 157); Order (dkt. 180). On December 18, 2015, the Insurer

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Defendants filed a Motion for Attorney Fees pursuant to California Code of Civil Procedure

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§ 425.16(c). See generally Mot. for Fees (dkt. 183). Plaintiff Augustine Fallay’s opposition

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to the Fees Motion was due on January 4, 2016. See Civil Local Rule 7-3(a). Rather than

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file an opposition, Plaintiff on January 13, 2016, filed an Ex Parte Application to Postpone

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the Hearing Date and for Extension of Time to Respond to FASIC’s Motion for Attorney’s

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Fees. See Application (dkt. 185). Plaintiff’s Application asks the Court to (1) postpone the

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hearing on the Fees Motion until after the appeal of the Court’s holding on the Motion to

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Strike; and (2) extend the time in which he may respond to the Fees Motion. Id. at 1–2.

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The Insurer Defendants are First American Specialty Insurance Company (“FASIC”), Robert
Dalton and Cindy Lloyd.

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Plaintiff’s request for a lengthy or indefinite postponement of the hearing is denied.

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As Plaintiff seems to acknowledge, his appeal of the Motion to Strike was premature,

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because the Court’s Order did not dispose of all claims against all defendants. See

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Application at 2 (“On the advice of the 9th Circuit Mr. Fallay will be filing a special motion

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to voluntarily withdraw his appeal temporarily until this court has issued its final decision”).

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Even if his appeal had been proper, this Court is permitted to award attorneys’ fees

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notwithstanding an appeal. See Masalosalo by Masalosalo v. Stonewall Ins. Co., 718 F.2d

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955, 957 (9th Cir. 1983) (“The district court retained the power to award attorneys’ fees after

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the notice of appeal from the decision on the merits had been filed.”); Fed. R, Civ. P.

United States District Court
For the Northern District of California

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54(d)(2), Notes of Advisory Committee on Rules-1993 Amendment (“If an appeal on the

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merits is taken, the court may rule on the claim for fees, may defer its ruling on the motion,

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or may deny the motion without prejudice. . . .”). The Court therefore will not postpone the

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hearing until after an appeal.2 Nonetheless, to give Plaintiff some additional time to prepare

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an opposition, and in light of the Court’s own scheduling conflicts, the Court will re-set the

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hearing on the Fees Motion for Friday, February 26, 2016. Plaintiff’s opposition to the Fees

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Motion will be due on Friday, February 5, 2016, and FASIC’s reply will be due on Friday,

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February 12, 2016.

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IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: January 22, 2016

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Plaintiff also notes that he “intends to ask this court to reconsider its decision in the name of
substantial justice and fairness, by taking a closer look at Mr. Fallay’s responses to the Defendants’
motions and to draw inferences from them.” Application at 2. The Court does not understand the
Application itself to be a request for leave to file a motion for reconsideration pursuant to Civil Local
Rule 7-9, and the Court will not rule on a request that is not before it. Nonetheless, the Court notes that
(1) the Application does not speak to any of the Rule 7-9(b) factors that would warrant reconsideration,
and (2) the Application also does not identify any rule requiring the Court to postpone ruling on a fees
motion while a reconsideration motion is being contemplated.
G:\CRBALL\2008\2261\order moving motion for fees.wpd

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