United States District Court, N.D. California
ORDER DENYING OBJECTOR LINDBERG'S MOTION FOR
ATTORNEYS' FEES, EXPENSES, AND AN INCENTIVE AWARD RE:
DKT. NO. 377
HAYWOOD S. GILLIAM, JR. United States District Judge
September 29, 2016, the Court granted final approval of
settlement in this class action filed by Plaintiff Patrick
Hendricks against Defendant Starkist Co.
(“Starkist”). Dkt. No. 373. The Court approved a
settlement amount of $12 million ($8 million in cash and $4
million in vouchers), an award of $3, 445, 012.35 in
attorneys' fees, a reimbursement of $155, 779.96 for
class counsel's expenses, and a service award of $5, 000
to Plaintiff. Id. at 3, 27-28. The Court also
granted Objectors Colin Moore and Kathy Durand Gore's
motion for attorneys' fees and costs, and ordered that
the award of $154, 987.65 be deducted directly from class
counsel's original fee award of $3.6 million.
Id. at 26-27. That same day, the Court entered
judgment consistent with the final approval order. Dkt. No.
October 13, 2016, Objector Eric Lindberg filed the pending
motion for attorneys' fees, expenses, and an incentive
award. Dkt. No. 377 (“Mot.”). He seeks $102, 000
in attorneys' fees for his Florida and California
counsel, $2, 845.30 in costs for his California counsel, and
a $1, 000 incentive award for himself. Id. at 1.
Objector Lindberg proposes that these sums “be paid
from the total common settlement fund and . . . be deducted
from the fees and costs set aside for Class Counsel in this
Court's [final approval order].” Id. On
October 27, 2016, Plaintiff filed his opposition to Objector
Lindberg's motion. Dkt. No. 380. That same day, Defendant
filed a joinder in Plaintiff's opposition. Dkt. No. 382.
On November 3, 2016, Objector Lindberg filed his reply. Dkt.
No. 392. The Court took Objector Lindberg's pending
motion under submission on December 14, 2016. Dkt. No.
Objector Lindberg's motion was still being briefed,
several objectors (including him) filed notices of appeal of
the Court's final approval order and judgment. Dkt. Nos.
379, 381, 383, 384, 386 (filed between October 25 and October
31, 2016). On November 4, 2016, Plaintiff did the
same. Dkt. No. 393.
Lindberg's motion for attorneys' fees, costs, and an
incentive award is denied on two alternate grounds. First,
the motion effectively asks the Court to reconsider what it
already decided in its final approval order: the allocation
of the common settlement fund and the amount of fees awarded
to class counsel. See Mot. at 1; Dkt. No. 373 at
27-28. Therefore, while not styled as such, it is a motion
for reconsideration subject to Civil Local Rule 7-9(a). The
motion was filed in violation of Rule 7-9(a) because Objector
Lindberg did not obtain leave to file from the Court.
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 motion at issue here
was filed after judgment was entered. Lastly, the
Court's final approval order 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 motion does not comply with
the Local Rules, and is therefore denied.
the Court lacks jurisdiction to grant the motion. The filing
of a notice of appeal “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). Typically, a motion for
attorneys' fees is considered “collateral” to
a decision on the merits. See Budinich v. Becton
Dickinson & Co., 486 U.S. 196, 200 (1988). This is
because a question that remains undecided after a final order
on the merits does not prevent finality if the resolution of
that question will not alter or amend the decisions embodied
by the order. Id. at 199. An attorneys' fees
determination generally fits this description. Id.
at 199-200. However, if “the order from which the
appeal is taken is the very order” that a party
“seeks to augment, ” then the district court
cannot retain control of the aspects of the case on appeal.
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 fees on remand, where the court had
already issued a prior order regarding fees and costs and the
appeal of that order remained pending); see also
Budinich, 486 U.S. at 200 (“If one were to regard
the demand for attorney's fees as itself part of
the merits, the analysis would not apply.” (emphasis in
Objector Lindberg's motion effectively seeks to
reallocate the distribution of the common settlement fund and
revise the fees and costs award to class counsel, both of
which were issues decided in the order currently on appeal.
Thus, Objector Lindberg's motion is not collateral
because granting it would by definition require
“altering or amending” the final approval order.
See Budinich, 486 U.S. at 200. To the contrary, the
notices of appeal (including Objector Lindberg's notice)
divested the Court of jurisdiction over the matters decided
by the final approval order. See Griggs, 459 U.S. at
58. As long as that order remains on appeal, the Court lacks
jurisdiction to “augment” the fees, costs, and
settlement allocation issues decided therein. See
Kowalski, 2010 WL 475357, at *1.
a federal court may deny a timely motion for relief that the
court lacks authority to grant because an appeal is pending.
See Fed. R. Civ. P. 62.1; Gilsulate Int'l,
Inc. v. Dritherm Int'l, Inc., No. CV1301012RSWLJPRX,
2016 WL 844790, at *2 (CD. Cal. Mar. 1, 2016) (“As
Defendants have appealed this Court's Fee Order to the
Ninth Circuit for review, this Court is divested of its
jurisdiction over the matter pending resolution of the appeal
and may summarily deny the Motion.”) The Court
exercises its discretion to do so here.
foregoing reasons, the Court DENIES Objector Lindberg's
 The Court finds this matter
appropriate for disposition without oral argument and the
matter is deemed submitted. See N.D. Civ. L.R.
 Two of the objectors appealed only the
final approval order, not the judgment. See Dkt.