The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Motion for Attorney's Fees and Costs filed by Plaintiffs La Jolla Friends of the Seals and James H. N. Hudnall, Jr. (ECF No. 90).
On October 9, 2008, Plaintiffs filed a Complaint against the Defendant City of San Diego, and Defendants National Oceanic and Atmospheric Administration National Fisheries Service (NOAA) and other federal officials ("Federal Defendants"). The Complaint asserted that this Court had jurisdiction over this action pursuant to 28 U.S.C. § 1331, federal question, and alleged the following two claims for relief: (1) a writ of mandate against Defendant City of San Diego requiring resolution of a substantial question of federal law; and (2) judicial review of agency action under 5 USC § 702 against the Federal Defendants to prevent NOAA from ceding its authority to the City to interpret and apply the Marine Mammal Protection Act ("MMPA").
On October 10, 2008, Plaintiffs filed an application for a temporary restraining order and a preliminary injunction. (ECF No. 3).
On October 22, 2008, this Court held a hearing and Counsel for the Defendant City of San Diego agreed to the injunction stating: "we don't see how there is any irreparable harm to any of the parties if there is a temporary restraining order preserving the status quo because it's just a matter of giving the court an opportunity to look into the merits; whereas, if the seals were immediately removed, there would be irreparable harm." (Transcript at page 7-8).
On October 22, 2008, the Court entered an Order "to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing may be held." (ECF No. 11 at 2). The Court did not comment on its jurisdiction over the case.
On November 4, 2008, the Defendant City of San Diego filed a "Statement of Non-Opposition to Plaintiffs' Motion for a Preliminary Injunction" regarding Plaintiffs' October 10, 2008 motion. (ECF No. 18). Defendant City of San Diego again agreed to the injunction stating that there "is sufficient evidence of a threat of irreparable injury sufficient to authorize a preliminary injunction to preserve the status quo." Id. at 5.
On December 2, 2008, Plaintiffs filed an application for a temporary restraining order to require the Defendant City of San Diego to enforce its existing resolutions to install a pupping season guideline rope at the Children's Pool Beach. (ECF No. 27). On December 8, 2002, filed a response identifying certain "historical facts" including a prior adverse ruling in a state court action which prohibited the City from installing a rope barrier on the beach, the City's unsuccessful attempts to appeal the ruling, the City Council's passage of two resolutions authorizing the installation of a rope barrier on the beach, the City's attempt to receive clarification from the state court that it could install the rope barrier as approved by the City Council's resolutions, and the state court's denial of the City's request for clarification. (ECF No. 30). The City of San Diego did not state that it opposed Plaintiffs' application for temporary restraining order.
On December 18, 2008, this Court granted Plaintiffs' unopposed motion for a temporary restraining order stating: "in order to maintain the status quo until the issues presented in this case can be fully addressed in the Plaintiffs' motion for preliminary injunction." (ECF No. 34 at 15).
On April 28, 2009, this Court granted the motion to dismiss filed by Federal Defendants finding that it had no jurisdiction to proceed against the Federal Defendants. (ECF No. 53). The Court ordered Plaintiffs and Defendant City of San Diego "to file briefs addressing the jurisdiction of this Court to proceed on the merits of the first claim for relief." Id. at 14.
On May 14, 2009, Defendant City of San Diego filed a Motion to Confirm Continuance of the Court's Order Prohibiting Harassment of Dispersal of the Seal Colony. (ECF No. 56). Defendant sought confirmation that the temporary restraining order issued by the Court prohibiting harassment or dispersal of the seal colony remained in effect during the pendency of the action. On May 28, 2009, Plaintiffs filed a Non-Opposition to Defendant City of San Diego's Motion to Confirm Continuance of the Court's Order. (ECF No. 63). On June 1, 2009, the Court granted Defendant City of San Diego's Motion to Confirm Continuance of the Court's Order stating: "Consent to extend a temporary restraining order until hearing upon the motion for preliminary injunction is authorized by Rule 65(b)(2) of the Federal Rules of Civil Procedure....[However, t]he issue of jurisdiction must be decided prior to any determination on the merits of Plaintiffs' motion for preliminary injunction." (ECF No. 67 at 3-4).
On June 29, 2009, this Court found that subject matter jurisdiction was lacking over Plaintiffs' writ of mandate claim against Defendant City of San Diego stating:
In order for a state law claim to provide a basis for federal jurisdiction, the state law claim must 'turn on substantial questions of federal law,' and 'really and substantially involv[e] a dispute or controversy respecting the validity, construction or effect of [federal law].' [Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 312-13 (2005)]. In Grable, the Supreme Court determined it had federal jurisdiction over a state claim where 'the meaning of the federal statute' was an essential element of a state quiet title action, 'and the meaning of the federal statute [wa]s actually in dispute.' Id. at 315. In this case, a review of the facts alleged in the Complaint shows that Plaintiffs' state law claim does not require the Court to resolve a substantial issue of federal law, and that there is no disputed issue of federal law between Plaintiffs and Defendant City of San Diego. The allegation in the Complaint that federal officials informed the Defendant City of San Diego that they view 'the rope as a needed step in the right direction' in order to 'inform humans when they are more likely to be found in violation of the MMPA and potentially cited' ([ECF No.] 1 at 5) does not support any inference that 'the federal ...