United States District Court, E.D. California
TIMOTHY P. DEMARTINI, et al., Plaintiffs,
MICHAEL J. DEMARTINI, et al., Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR ATTORNEY
A. MENSEZ UNITED STATES DISTRICT JUDGE.
10, 2019, Plaintiffs Margie and Timothy Martini filed a
motion for attorney fees. ECF No. 414. In a
procedurally-improper series of filings, pro se Defendants
Michael and Renate Martini, filed an “ex parte
application/preliminary opposition” to Plaintiffs'
motion and a “counter-motion for separation; for
extension of time.” See Prelim. Opp'n, ECF No. 420;
Counter-mot. for Separation, ECF No. 421.
Defendants' filings urged the Court to extend the
briefing schedule and allow separate briefing on
Defendants' procedural and substantive challenges to
Plaintiffs' motion. See generally Prelim. Mot. (raising
procedural challenges to the propriety of Plaintiffs'
motion); Counter-mot. for Separation at 3-5. The Court denied
this request by minute order, ECF No. 423, and the parties
proceeded with the original briefing schedule. See Opp'n
to Plfs.' Mot. (“Opp'n”), ECF No. 425;
Reply ISO Plfs.' Mot. (“Reply”), ECF No.
For the reasons discussed below, the Court DENIES
Plaintiffs' motion for attorney fees as untimely.
parties are familiar with the years of litigation leading up
to Plaintiffs' requested apportionment of attorney fees.
For purposes of this motion, the relevant starting point is
the Court's June 1, 2017 Order adopting in full
Magistrate Judge Delaney's recommendation to (1) allow a
second amended complaint, and (2) sever and remand
Plaintiffs' Accounting and Dissolution of Partnership
claim to state court. ECF No. 224; see also Findings and
Recommendations at 4, ECF No. 214. The Court's order
narrowed the scope of Plaintiffs' suit to two claims: a
breach of contract claim and a partition claim. See Pretrial
Conference Order at 2, ECF No. 284.
April 2018, the Court held a jury trial on Plaintiffs'
breach of contract claim. The jury returned a verdict in
favor of Plaintiffs. ECF No. 335. The Court entered a
judgment, ECF No. 347, and Defendants appealed, ECF No. 350.
A month later, the Court issued findings of fact and
conclusions of law on the partition claim, ordering the
property at issue to be partitioned in kind according to
Plaintiffs' and Defendants' fifty percent interest.
Findings of Fact and Conclusions of Law at 15, ECF No. 361.
The parties were unable to agree on how to partition the
land, so the Court appointed a referee to carry out its
judgment. See Minutes for September 19, 2018 hearing, ECF No.
motion for attorney fees, filed nearly a year after the
Court's resolution of the partition claim, is untimely.
Under the local rules, “[m]otions for awards of
attorneys' fees to prevailing parties pursuant to statute
shall be filed not later than twenty-eight (28) days after
entry of final judgment.” E.D. Cal. L. R. 293(a).
Courts interpret “final judgment” in Local Rule
293(a) to have the same meaning as “final
decision” in 28 U.S.C. § 1291. See, e.g., Jones v.
Bradshaw Bar Group, Inc., 735 Fed.Appx. 233, 234 (9th Cir.
2017). Accordingly, a “final judgment” is a
decision that “ends the litigation on the merits and
leaves nothing for the court to do but execute the
judgment.” Caitlin v. United States, 324 U.S. 229, 233
(1945). It is “typically” a decision “by
which a district court disassociates itself from a
case.” Mohawk Industries, Inc. v. Carpenter, 558 U.S.
100, 106 (2009). But the fact that the district court retains
jurisdiction over a case does mean it has not issued a final
judgment. See Ray Haluch Gravel Co. v. Central Pension Fund
of Int'l Union of Operating Engineers & Participating
Employers, 571 U.S. 177, 183-84 (2014).
do not dispute that Local Rule 293 sets out the relevant
timeline for requesting attorney fees. Rather, they propose
the Court's May 30, 2018 Order did not amount to a final
judgment. Reply at 6. In response to Defendants' claims
of untimeliness, Plaintiffs argue:
How can Defendants protest the fees incurred in this action
at the same time as claiming that this Court has somehow
disassociated itself from the case by issuing a final
judgment for partition? Not only does the Court receive
status reports from the Referee, the Court has been
unequivocal in its expression [of] how partition will
proceed, and that the case remains open.
Id. Nothing in Plaintiffs' argument identifies a
claim that has yet to be resolved. The issue of costs is
“collateral” to the merits of the suit and may
therefore be resolved after a court enters its final
judgment. See Ray Haluch Gravel Co., 571 U.S. at 185, 189-90.
Moreover, the court-appointed referee is doing nothing more
than “execut[ing] the judgment.” Caitlin, 324
U.S. at 233.
the Court remanded Plaintiffs' accounting claim, two
claims remained. A jury resolved the breach of contract claim
on April 18, 2018. Following the Court's resolution of
the partition claim on May 30, 2018, there was nothing left
for the Court to adjudicate. Consequently, the Court's
May 30 order amounted to a final judgment. Plaintiffs'
motion for attorney fees was due 28 days later. Instead,
Plaintiffs waited eleven months after this deadline to file
their motion. The motion is therefore DENIED as untimely.
Johnson v. Wells Fargo Bank N.A., No. 2:10-cv-2839-GEB-CKD,
2013 WL 4854790, at *1 (E.D. Cal. Sept. 11, 2013)
(“Failure to comply with the local rule governing the
filing of motions for attorney's fees is a reason for
denial of the motion.”).
reasons set forth above, the Court DENIES Plaintiffs'