United States District Court, N.D. California
ORDER DENYING MOTIONS FOR FEES AND COSTS RE: DKT.
NOS. 996, 1003
HAYWOOD S. GILLIAM, JR. United States District Judge.
March 9, 2017, the Court issued terminating sanctions
dismissing with prejudice this action filed by Plaintiff Loop
AI Labs (“Loop”). Dkt. No. 993 (“sanctions
order”). The order stated that “[e]ach party
will bear its own fees and costs” and that “[n]o
motion for reconsideration regarding this order will be
entertained by the Court.” Id. at 30-31. On
March 21, 2017, the Court entered judgment in favor of
Defendants. Dkt. No. 995. On March 23, 2017, Defendants
Almaviva S.p.A., Almawave S.r.l., and Almawave USA, Inc.
(collectively, “Almawave Entities”) filed a
motion seeking $3.5 million in fees and $59, 000 in costs.
Dkt. No. 996. On April 3, 2017, Plaintiff filed a notice of
appeal of the judgment. Dkt. No. 1002. On April 4, 2017,
Defendants IQSystem, Inc. and IQSystem, LLC (collectively,
“IQS Entities”) filed a motion for $239, 218.73
in fees and $24, 698.30 in costs. Dkt. No. 1003. That same
day, the IQS Entities filed both a motion for joinder in the
Almawave Entities' motion for fees and costs, Dkt. No.
1004, and two bills of costs, Dkt. Nos. 1005-06. On April 5,
2017, Defendant Anna Gatti filed a joinder in the IQS
Entities' motion for fees and costs. Dkt. No. 1008. On
April 10, 2017, the Almawave Entities filed a notice of
cross-appeal “to preserve [their] right to challenge a
denial of [their] right to obtain attorneys' fees and
costs, whether this notice is deemed an appeal of the
[sanctions order or] . . . the judgment . . ., or . . . a
cross-appeal of Loop and its counsel's appeals.”
Dkt. No. 1012 at 1-2.
motions for fees and costs effectively ask the Court to
reconsider what it already decided in the sanctions order:
that each party would bear its own fees and costs.
See Dkt. No. 993 at 30. Therefore, while not styled
as such, they are motions for reconsideration, subject to the
following requirements under the Local Rules:
Before the entry of a judgment adjudicating all of the claims
and the rights and liabilities of all the parties in a case,
any party may make a motion before a Judge requesting that
the Judge grant the party leave to file a motion for
reconsideration of any interlocutory order on any ground set
forth in Civil L.R. 7-9(b). No party may notice a motion for
reconsideration without first obtaining leave of Court to
file the motion.
See Civ. L.R. 7-9(a). The motions for fees and costs
were both filed in violation of Rule 7-9(a) because the
Almawave and IQS Entities did not obtain leave to file from
the Court-perhaps because the Court had already explicitly
stated that it would not entertain any motions for
reconsideration of its sanctions order finding, inter
alia, that each party must bear its own fees and costs.
Furthermore, while Rule 7-9(a) requires that any motion for
leave to file a motion for reconsideration-and therefore, by
definition, any motion for reconsideration itself-be filed
before entry of judgment, the motions at issue here
were filed after judgment was entered. Lastly, the
Court's sanctions order finding that each party must bear
its own fees and costs was not an interlocutory order, which
may be subject to a motion for reconsideration under Rule
7-9(a), but rather a final order, which may not. For each of
these reasons, the motions did not comply with the Local
Rules, and are therefore denied.
addition, the motions must be denied for lack of
jurisdiction. As the Ninth Circuit has held, “[t]he
filing of a notice of appeal is an event of jurisdictional
significance-it confers jurisdiction on the court of appeals
and divests the district court of its control over those
aspects of the case involved in the appeal.” Griggs
v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982).
A petition for attorney fees ordinarily is
“collateral” to the decision on the merits.
See Budinich v. Becton Dickinson & Co.,
486 U.S. 196, 200 (1988) (declaring that the merits order
ends the litigation on the merits, and the remaining fees
question does not prevent finality, since it is collateral
to, and separate from, the order, and resolution of it cannot
alter or amend the order or moot any decisions that the order
embodies). But here, the order from which the appeal was
already taken is the very same order that the motions for
fees and costs seek to revisit. As all Defendants
acknowledge, their arguments are integrally intertwined with
the rest of the Court's now-appealed sanctions order.
See, e.g., Dkt. No. 996 (“[T]his Court's
factual findings . . . require that the Court exercise its
discretion in favor of awarding fees and costs
notwithstanding, and indeed because of [its sanctions
order].”); Dkt. No. 1003 (“The egregious
circumstances that led to the [Court's sanctions order]
demand that Loop and Ms. Healy pay the price for their
behavior with joint and several liability for IQS'
attorney's fees and costs.”). The Court does not
retain control over those aspects of the case subject to
appeal, see Griggs, 459 U.S. at 58, including its
determination on fees and costs, see Kowalski v. Farella,
Braun & Martel, LLP, No. C-06-3341 MMC, 2010 WL
475357, at *1 (N.D. Cal. Feb. 4, 2010) (finding that the
court lacked jurisdiction to rule on the plaintiffs motion
for award of fees after remand, where the Court had already
issued a prior order regarding fees and costs and the appeal
of that prior order was still pending, and declaring that
Griggs-not Budinich-controlled because “the
order from which the appeal is taken is the very order
petitioner seeks to augment”). In short, the parties
must raise these issues before the Ninth Circuit, given that
the Court's judgment, including its ruling on fees and
costs, has been appealed.
the Court DENIES the motions for fees and costs filed by the
Almawave and IQS Entities.
 The sanctions order also revoked the
pro hace vice admission in this case of Loop's
counsel, Valeria Healy. Dkt. No. 993 at 30.
 Four days earlier, Ms. Healy had filed
in propria persona a notice of appeal of the
judgment to the Ninth Circuit. See Dkt. No. 1001 at
2. No representative of Loop signed that notice of appeal.
Id. The second notice of appeal, however, was signed
by both Loop's CEO and Ms. Healy (who signed as
“Appellate Counsel for Plaintiff-Appellant”).
Dkt. No. 1002 at 2.
As a result, this order also
TERMINATES Dkt. Nos. 1004 and ...