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Schultz v. Ichimoto


November 8, 2010


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge


(Doc. 189)


Before the Court for decision is Defendant Margaret Jamison's motion for attorney fees. (Doc. 189.) Plaintiffs Rodney and Patricia Schultz oppose the motion on grounds that it was untimely under Federal Rule of Civil Procedure Rule 54(d)(2).


The background of this case is summarized in the Court's previous Memorandum Decision in this case, filed on September 7, 2010, in brief:*fn1 On April 16, 2008, Plaintiffs commenced this action against Defendants Margaret Jamison, Sakaye Ichimoto, and William and Cinda Jamison to recover costs/damages resulting from environmental contamination of real property located in Oakhurst, California.*fn2 (Doc. 1.) On April 1, 2009, Defendant M.B.L., Inc., moved to dismiss Plaintiffs' second cause of action on grounds that Plaintiffs lacked standing.*fn3 (Doc. 117.) Defendant Margaret Jamison joined the motion on September 13, 2009.*fn4 (Doc. 130.) The second cause of action was dismissed with prejudice on September 16, 2009. (Doc. 138.)

On January 25, 2010, Defendants George and Frances Wolfe filed a motion for judgment on the pleadings or for summary judgment on Plaintiffs' first claim for cost recovery under CERCLA § 107, second claim for declaratory relief under CERCLA § 113, and fourth claim for relief under California Health and Safety Code § 25363(e).*fn5 (Doc. 142.) Defendant Margaret Jamison joined the motion on February 25, 2010. (Doc. 156.) On March 18, 2010, the motion was granted. (Doc. 166.) Plaintiffs' claims under CERCLA §§ 107, § 113, and California Health and Safety Code § 25363(e) were dismissed for lack of subject matter jurisdiction. (Id.) The state law claims were dismissed pursuant to 28 U.S.C. § 1367(c)(3).


Final judgment was entered on April 16, 2010. (Doc. 182.) On April 30, 2010, Defendants Sakaye Ichimoto and William and Cinda Jamison separately moved for attorney fees.*fn6 (Docs. 183 and 187.) Defendant Margaret Jamison filed her motion for fees on May 14, 2010. (Doc. 189.) She requests $22,200.25 in fees based on her "prevailing party" status. (Id.)


A. Supplemental Briefing

In their opposition to this motion, filed on June 28, 2010, Plaintiffs argued that because Ms. Jamison filed her motion more than 14 days after the entry of final judgment, her motion was untimely. Defendant Margaret Jamison did not respond to Plaintiffs' timeliness arguments via written reply. At oral argument, however, Ms. Jamison's counsel argued that her client was "the prevailing party under CERCLA based on Federal Rule of Civil Procedure 54(d)." Counsel further stated:


The motion

Code for of attorney's

Civil Procedure fees Section is brought under

should that's based on the 1033.5. And brought contract.

Margaret Jamison's motion is timely. be under California

And time law, frame

30 days, for filing hence

(Reporter's Transcript, July 14, 2010, 23:2-23:7.)

On August 10, 2010, the Court requested additional briefing on the issue of timeliness:

reply Normally, brief arguments or raised disregarded. the hearing for the first See at on a motion time in area

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an properly raised via written opposition. opportunity to support their arguments, deprived which were of

Schultz v. Ichimoto, No. 1:08-CV-526-OWW-SMS, 2010 WL 3210764 (E.D. Cal. Aug. 10, 2010).

The parties filed their supplemental briefs on September 18 and 25, 2010. (Docs. 206 and 208.)

B. Merits Plaintiffs argue that Ms. Jamison's motion for attorneys' fees

should be denied as untimely, i.e., the motion was filed after the time required under Federal Rule of Civil Procedure 54.

Under Rule 54 of the Federal Rules of Civil Procedure, a motion for attorney's fees must be filed "no later than 14 days after entry of judgment." Fed. R. Civ. P. 54(d)(2)(B)(I). In this case, final judgment was entered on April 16, 2010. (Doc. 182.) Defendant Margaret Jamison's motion for attorney's fees was not filed until May 14, 2010, twenty-eight (28) days after judgment was entered. Accordingly, Defendant's May 14, 2010 motion for fees was untimely filed.

A district court may, however, "for good cause, extend the time [...] on motion made after the time has expired if the party failed to act because of excusable neglect." Fed. R. Civ. P. 6(b)(1)(B). In determining whether a party's neglect is excusable, Courts consider: 1) the danger of prejudice to the opposing party,

2) the length of delay caused by the neglect and its impact on judicial proceedings, 3) the reason for delay, and whether it was in the reasonable control of the moving party, and 4) the existence of good faith on the part of the moving party. See, e.g., United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004). Here, Ms. Jamison does not provide a single reason for failing to comply with 54(d)(2) in this case. More problematic is that she did not request an extension of the deadline despite three other parties timely moving for fees and costs; she also filed the motion without seeking leave of Court. Ms. Jamison does not provide a sufficient basis on which the Court may permit a late filing.

In her supplemental briefing, Ms. Jamison argues Rule 54 is not applicable here. Citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938), Ms. Jamison suggests that state procedural rules apply in this case because her motion for fees is "substantively and procedurally based on California law."*fn7 According to her, the fee motion was timely because "state procedural rules that are intimately bound with substantive law may apply in federal actions where they in fact serve substantive state policies and more properly rules of substantive law within the meaning of Erie." (Doc. 206 at 3:12-3:16.)

Erie and its progeny, however, do not support Ms. Jamison's arguments in this case. Pursuant to the Erie principles, "federal courts sitting in diversity apply state substantive law and federal procedural law." In re Larry's Apartment, L.L.C., 249 F.3d 832, 837 (9th Cir. 2001). The Ninth Circuit has made clear that "Rule 54 establishes the procedure to obtain attorney's fees, and a party seeking attorney's fees must provide another source for the award of fees such as a rule, statute, or contract." Drake v. Lowe's Cos., Inc., No. 04-0142-FCD-JFM, 2005 WL 2562653, at *2 (E.D. Cal. Oct. 11, 2005) citing MRO Commc'ns, Inc. v. AT & T Co., 197 F.3d 1276, 1282 (9th Cir. 1999)(emphasis added)). The California statutes cited by Ms. Jamison provide the "source" or "substance" to recover fees, they do not, however, provide the procedural mechanism to perfect that alleged right in this case, which falls within the exclusive ambit of Rule 54(d)(2). See Reudy v. Clear Channel Outdoors, Inc., 693 F. Supp. 2d 1091, 1098-99 (applying Rule 54(d)(2)'s 14-day timing requirement to award attorney fees under fee provision in parties' agreement, California Civil Code § 1717 and Code of Civil Procedure §§ 1021 & 1033.5.).

Ms. Jamison cites no authority for the proposition that a state statute providing for recovery of attorney's fees as "costs" preempts or otherwise supplants Rule 54(d)(2)'s procedural requirements. This is especially true given that Ms. Jamison seeks fees based on her "prevailing party" status.*fn8 Compare Bianco v. Erkins, 341 F. App'x 329, 331-32 (9th Cir. 2009) (motion for an award of attorneys' fees was not time-barred under Rule 54(d)(2) because Plaintiff "sought an award for postjudgment attorneys' fees and costs incurred in attempting to collect on a judgment, not an award of fees as a prevailing party that would be subject to the federal or local rules requiring that requests be made within fourteen days.") with Kearney v. Foley and Lardner, 553 F. Supp. 2d 1178, 1182 (S.D. Cal. 2008) (determining that Rule 54(d)(2)'s 14-day timing requirement applied to the prevailing party's motion for fees).*fn9

Since Plaintiff did not file her motion for fees by May 1, 2010, the relevant time-frame under Rule 54(d)(2), her motion is untimely and is DENIED. Because the motion is resolved on the basis of federal procedural law, it is unnecessary to resolve whether Ms. Jamison can pursue a claim for legal fees in state court.


For the above reasons:

1. Defendant Margaret Jamison's motion for attorney's fees is DENIED.


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