Professional Firefighters Association of Omaha et al v. City of Omaha et al
MEMORANDUM AND ORDER denying 470 the motion for new trial/alter or amend judgment under Fed. R. Civ. P. 59; The motion in opposition, Filing No. 476 is granted as set forth herein. Ordered by Chief Judge Joseph F. Bataillon. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ASSOCIATION OF OMAHA, LOCAL
385, et al.,
RICK BERGHOLZ, et al.,
CITY OF OMAHA, et al.,
MEMORANDUM AND ORDER
This matter is before the court on the intervenor-plaintiffs’ motion for new trial/alter
or amend judgment under Fed. R. Civ. P. 59 and relief from the order under Fed. R. Civ.
P. 60(b), Filing No. 470, and the motion in opposition filed by the plaintiffs and unions,
Filing No. 476. The court conducted a hearing in this matter and listened to argument from
all parties. The court finds the motion for a new trial is denied.
The intervenor-plaintiffs argue that pursuant to Fed. R. Civ. P. 23(h)(I), notice must
be given to all class members regarding the request for attorney fees. The defendants
argue that no such notice is required. Rule 23(h)(i) states:
A claim for an award must be made by motion under Rule 54(d)(2), subject
to the provisions of this subdivision (h), at a time the court sets. Notice of the
motion must be served on all parties and, for motions by class counsel,
directed to class members in a reasonable manner.
Fed. R. Civ. P. 23(h)(I). The plaintiffs make a number of arguments in support of their
contention that the award of attorney fees and costs in this case should remain as
previously ordered by the court. First, argue plaintiffs, in previous class notices, the class
members were notified that the plaintiffs and intervenor-plaintiffs would seek attorney fees.
Accordingly, the parties did in fact receive notice. Plaintiffs argue that this notice is
appropriate under the Rules. Second, this is not a “common fund” case wherein the class
members would be responsible for any of their attorney fees. On the contrary, this court
specifically ordered the City of Omaha to pay the attorney fees. Third, the plaintiffs note
that no objection was made by the intervenor-plaintiffs at the time of the submission that
further notification was needed. The intervenor-plaintiffs waited until after all briefing was
finalized and then made the request. Fourth, the plaintiffs note it is arguable whether the
intervenor-plaintiffs even have standing to pursue this argument under Fed. R. Civ. P.
60(b). The City of Omaha is in basic agreement with the plaintiffs that appropriate notice
has been given and that this is not a common fund case that would merit further notice to
the class members.
The court has carefully considered the argument of counsel, reviewed all submitted
briefs, and read the relevant case law. The court agrees with the plaintiffs and the City of
Omaha. First, notice was given in the class action and proposed settlements that the
plaintiffs would seek attorney fees and costs. See Filing No. 148-1. Second, plaintiffs are
correct that there is no common fund issue, as the City of Omaha is paying all the attorney
fees and costs. The plaintiffs will not incur such fees. For the reasons outlined by the
plaintiffs as stated herein, the court finds the motion of the intervenor-plaintiffs is denied.
THEREFORE, IT IS ORDERED:
1. The motion for new trial/alter or amend judgment under Fed. R. Civ. P. 59, Filing
No. 470, is denied.
2. The motion in opposition, Filing No. 476, is granted as set forth herein.
DATED this 6th day of October, 2010.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge
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