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Zabasky v. American International Group, Inc.

United States District Court, Ninth Circuit

December 18, 2013

JOHN T. ZABASKY, an individual, Plaintiff,
v.
AMERICAN INTERNATIONAL GROUP, INC., a Delaware corporation; AMERICAN HOME ASSURANCE CO., a New York corporation; LOS ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE, A Public Entity; Defendants.

SANFORD L. MICHELMAN, (SBN 255816), MONA Z. HANNA, ESQ. (SBN 131439), MICHELMAN & ROBINSON, LLP, Attorneys for Defendants AMERICAN INTERNATIONAL GROUP, INC. Dand AMERICAN HOME ASSURANCE CO.

AMENDED JUDGMENT TO ADD APPELLATE ATTORNEY FEES AWARDED TO DEFENDANTS AMERICAN INTERNATIONAL GROUP, INC. AND AMERICAN HOME ASSURANCE COMPANY

GEORGE H. WU, District Judge.

This Court hereby amends the Judgment entered in this action against plaintiff JOHN T. ZABASKY and in favor of defendants AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY on December 1, 2011 (as reflected in Document No. 43 on this District Court's PACER electronic docket, a copy of which is attached as Exhibit 1 below), based on the following facts:

1. Plaintiff JOHN T. ZABASKY appealed the December 21, 2011 Judgment to the United States Court of Appeals for the 9th Circuit ("9th Circuit"), 9th Circuit appeal no. 11-57111;
2. The 9th Circuit denied JOHN ZABASKY's petition for rehearing en banc (as reflected in Document No. 53 on this District Court's PACER electronic docket, a copy of which is attached as Exhibit 3 below);
3. On June 17, 2013, the 9th Circuit affirmed this District Court's Judgment and issued its mandate to this District Court (as reflected in Document No. 54 on this District Court's PACER electronic docket, a copy of which is attached as Exhibit 2 below);
4. AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY thereafter timely submitted an application for appellate attorney fees in the 9th Circuit;
5. The 9th Circuit granted the application for attorney fees and ordered an award of One Hundred Nine Thousand Four Hundred Eighty-Five Dollars ($109, 485.00) to AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY for legal services their counsel performed to defend them on appeal (as reflected in Document No. 55 of this District Court's PACER electronic docket, a copy of which is attached as Exhibit 4 below); and
6. On October 24, 2013, this District Court confirmed receipt of the 9th Circuit's attorney fee order and amendment of the 9th Circuit's mandate and filed said order/amendment as Document No. 55 on this District Court's PACER electronic docket.

Based on these facts, the Amended Judgment in favor of defendants AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY and against plaintiff JOHN ZABASKY reads as follows:

The Court having entered an order granting the Motion to Strike [F.R.Civ. P. Rule 12(f) and C.C.P. §425.16] of defendants AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY as to the malicious prosecution claim brought against said defendants and the plaintiff having waived the above-mentioned defendants' compliance with the provisions of F.R.Civ. P. Rule 54(d)(2), and the plaintiff and said defendants having reached agreement regarding the amount of the ancillary award of attorney's fees for said defendants' counsel's legal services performed in the District Court phase of this case;

The Judgment in favor of defendant Los Angeles County District Attorney's Office having been granted and Judgment on plaintiff's civil rights action [42 U.S.C. §1983] against said defendant having been entered on November 14, 2011, leaving only plaintiff's Malicious Prosecution claim against defendants AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY (the subject of said defendants' above-mentioned Motion to Strike);

The appeal of plaintiff JOHN T. ZABASKY having concluded; the 9th Circuit having mandated the case to this Court; the 9th Circuit having ordered plaintiff/appellant JOHN T. ZABASKY to pay $109, 485 in attorney fees to defendants/respondents AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY for the legal services their counsel performed to defend them on appeal; and the 9th Circuit's amendment of its mandate to this Court to reflect the 9th Circuit's attorney fee order:

IT IS HEREBY ORDERED AND ADJUDGED that the judgment as to JOHN ZABASKY'S claim against AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY remains in favor of AMERICAN INTERNATIONAL GROUP, INC. and HOME ASSURANCE COMPANY and against JOHN T. ZABASKY.

IT IS HEREBY FURTHER ORDERED AND ADJUDGED, as provided for in the original judgment, that AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY shall be entitled to costs of suit incurred herein pursuant to F.R.Civ.P. Rule 54(d)(1).

IT IS HEREBY FURTHER ORDERED AND ADJUDGED that defendants AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY are entitled to recover attorneys' fees in the amount of One Hundred Thirty Nine Thousand Four Hundred Eighty-Five Dollars ($139, 485), calculated as follows:

a. FOR ATTORNEY FEES IN THE DISTRICT COURT PHASE OF THIS CASE: Pursuant to the parties' stipulation and as provided for in the original judgment, defendants AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY are entitled to recover reasonable attorneys' fees, for work that defendants' counsel performed in the District Court phase of this lawsuit, in the amount of Thirty Thousand Dollars ($30, 000), which amount has not been reversed or modified by the appeal; and
b. FOR ATTORNEY FEES IN THE APPEAL PHASE OF THIS CASE: Pursuant to the 9th Circuit's order awarding One Hundred Nine Thousand Four Hundred Eighty-Five Dollars ($109, 485) to AMERICAN INTERNATIONAL GROUP, INC. and AMERICAN HOME ASSURANCE COMPANY for legal services their counsel rendered to defend these defendants/respondents on appeal.

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