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A.D. v. State, California Highway Patrol

United States District Court, Ninth Circuit

November 27, 2013

A.D., a minor, et al., Plaintiffs,
v.
STATE OF CALIFORNIA HIGHWAY PATROL, et al., Defendants.

ORDER GRANTING PLAINTIFFS' SUPPLEMENTAL MOTION FOR ATTORNEYS' FEES AND COSTS

SUSAN ILLSTON, District Judge.

Now before the Court is plaintiffs' supplemental motion for attorneys' fees and expenses. For the reasons set forth below, the Court GRANTS plaintiffs' motion. Docket No. 173.

BACKGROUND

A jury trial was held in this wrongful death case from April 27 2013 May 7, 2009. The jury found in favor of plaintiffs A.D. and J.E. on their claim that defendant Markgraf violated their Fourteenth Amendment rights by unlawfully depriving them of their liberty interest in their family relationship with their mother, Karen Eklund. In a bifurcated damages phase, the jury awarded $30, 000 to each plaintiff. The Court entered final judgment on May 8, 2009, and by order filed June 23, 2009, denied defendant's renewed motion for judgment as a matter of law and motion for a new trial. On July 9, 2009, defendant filed a notice of appeal.

In an order filed November 10, 2009, the Court granted plaintiffs' motion for attorneys' fees and costs. The Court rejected defendant's argument that the fee award should be reduced because plaintiffs had achieved "limited success" at trial:

Although plaintiffs did not obtain substantial monetary damages, they received much more than the nominal damages urged by defendant. Moreover, "[s]uccess is measured not only by the amount of the recovery but also in terms of the significance of the legal issue on which the plaintiff prevailed and the public purpose the litigation served." Morales v. City of San Rafael, 96 F.3d 357, 365 (9th Cir. 1996). Plaintiffs fully prevailed on their claims at trial, and in so doing vindicated their constitutional rights. Wrongful death cases such as the instant one present questions of vital importance to the public. In addition to obtaining relatively modest damages, plaintiffs achieved "significant nonmonetary results" in that the jury's verdict will likely deter defendant Markgraf from engaging in future unconstitutional conduct. See id. at 365. Because of the significance of the legal issues and the deterrent effect of this case, the Court rejects defendant's contention that the lodestar should be reduced due to the discrepancy between the damages claimed in the litigation and the damages awarded. Defendant also asserts that "the low verdict amount is not explained by the difficulty or complexity of the case, " and that the lodestar should be reduced because this was "a straightforward police shooting case." Defendant's current position that this case was simple is belied by the vigorous defense of this case; defendants moved to dismiss, moved for summary judgment, contested liability at trial, and filed post-trial motions seeking judgment as a matter of law and a new trial. Contrary to defendant's assertions, this case was factually and legally complicated, and posed numerous challenges for plaintiffs. Plaintiffs had to overcome defendants' assertion of qualified immunity, and had to establish that defendant Markgraf acted with a purpose to harm unrelated to a legitimate law enforcement objective, a very high standard. The only witnesses to the incident were law enforcement officers, and there were factual disputes about whether Eklund was attempting to run over officers when she was shot. The complexity of the case is illustrated by the fact that defendants retained several experts and prepared sophisticated and complicated video and computerized reconstructions of the car chase and events leading up to the shooting.

Docket No. 144 at 3-4 (footnote omitted). Citing McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009), the Court also held that it could not consider the parties' settlement negotiations in determining a reasonable fee. See id. at 4. The Court awarded plaintiffs their lodestar and denied plaintiffs' request for a multiplier. Defendant appealed the fee order.

The merits and fees appeals were briefed, and on November 30, 2010, the Ninth Circuit held oral argument. On April 6, 2011, the Ninth Circuit issued its first opinion in this case. Docket No. 157. In a published opinion, the Ninth Circuit reversed the judgment and held that defendant was entitled to qualified immunity, and vacated the fee order in light of the disposition on the merits. A.D. v. Markgraf, 636 F.3d 555 (9th Cir. 2011). On April 20, 2011, plaintiffs filed a petition for rehearing en banc. On May 10, 2011, the Ninth Circuit directed defendant to file a response. Docket No. 158. The Ninth Circuit granted plaintiffs leave to file a reply, which plaintiffs filed on June 12, 2011. Docket No. 160.

On April 11, 2012, the Ninth Circuit withdrew its original opinion and issued an order directing supplemental briefing. Docket No. 161. The Ninth Circuit directed the parties to answer two questions: (1) "How should the qualified immunity framework be applied based on the jury's finding that Defendant-Appellant violated Plaintiffs-Appellees' Fourteenth Amendment right to a familial relationship?"; and (2) "Does the subjective requirement in this case that the Defendant-Appellant act with a purpose to harm unrelated to a legitimate law enforcement objective in order to violate the Plaintiffs-Appellees' Fourteenth Amendment right to familial association affect the qualified immunity inquiry?" Id. The parties filed supplemental briefs, and on September 18, 2012, the Ninth Circuit held a second argument on the appeals.

On April 3, 2013, the Ninth Circuit issued a new published opinion affirming this Court's denial of defendant's motion for judgment as a matter of law. See A.D. v. California Highway Patrol, 712 F.3d 446 (9th Cir. 2013). The Court of Appeals held that there was sufficient evidence to support the jury's verdict that defendant shot Karen Eklund with a purpose to harm unrelated to a legitimate law enforcement objectives, and therefore that defendant was not entitled to qualified immunity.

The Ninth Circuit also reversed and remanded the fee award "so that the district court may consider the amounts of Markgraf's settlement offers in determining a reasonable fee... in light of an intervening change in Ninth Circuit law holding that Federal Rule of Evidence 408 does not bar district courts in the Ninth Circuit from considering amounts discussed in settlement negotiations as evidence of the extent of the plaintiff's success." Id. at 460-61 (citing In re Kekauoha-Alisa, 674 F.3d 1083, 1093-94 (9th Cir. 2012); Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011)). The court further instructed:

On remand, the district court has the discretion (1) to consider the amounts discussed in settlement negotiations, or not; and (2) to give those amounts as much or as little weight as it sees fit. See Lohman v. Duryea Borough, 574 F.3d 163, 169 (3d Cir.2009) (acknowledging that settlement offers are "clearly only one factor to be considered in the award of fees, " and that the district court "is also free to reject such evidence as not bearing on success"); cf. In re Kekauoha-Alisa, 674 F.3d at 1093-94; Ingram, 647 F.3d 925 (adopting Lohman 's holding that Federal Rule of Evidence 408 does not bar consideration of settlement offers when making attorneys' fee awards). It is not our place to opine as to how that discretion should be exercised.

Id. at 461.

The plaintiffs filed a motion to transfer consideration of attorneys' fees for the appeal to this Court. The Ninth Circuit granted the motion as to the merits appeal, but ruled that plaintiffs are ...


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