United States District Court, N.D. California, San Jose Division
ORDER DENYING BUSTAMANTE'S MOTION TO COMPEL A
BOND FOR COSTS AND ATTORNEYS' FEES RE: DKT. NO.
J. DAVILA UNITED STATES DISTRICT JUDGE
Padgett's (“Padgett”) former attorneys,
Bustamante & Gagliasso (“Bustamante”), seek
an order compelling Padgett to post a bond on appeal. Having
considered the Parties' briefs and having had the benefit
of oral argument on December 12, 2019, the Court
DENIES Bustamante's Motion to Compel a
Bond on Appeal.
2004, Padgett sued eight defendants alleging they violated
his civil rights. After a jury trial, Padgett received $1 in
nominal damages and $200, 000 in punitive damages, which the
Court reduced to $10, 000. Padgett only prevailed on one
claim: retaliation under the First Amendment.
2006, Padgett's original counsel, attorneys from the law
firm McManis Faulkner, withdrew as counsel. Order Granting
Motion to Withdraw as Attorney, Dkt. 275. Padgett was pro se
for two years. Then, in September 2008, Bustamante and Kallis
& Associates (another firm not present in this motion)
became Padgett's counsel of record. See Dkt.
552. These law firms served as Padgett's counsel for
about five years until this Court relieved them as counsel.
See Dkt. 1039.
2010, Judge Ware, the judge who presided over this case
before he retired, awarded Padgett $500, 000 in
attorneys' fees pursuant to 42 U.S.C. § 1988. Dkt.
995 at 8. After an appeal, the Ninth Circuit vacated and
remanded this award because Judge Ware's order did not
provide an explanation of the fees. Padgett v. Loventhal
(“Padgett I”), 706 F.3d 1205, 1208 (9th Cir.
remand, in March 2015, this Court awarded attorney fees of
$471, 056.64 and $100, 000 in litigation costs to Bustamante
and Kallis. Dkt. 1087 at 14. Padgett appealed this order on
April 28, 2015. Dkt. 1090. He contested this Court's
decision to grant fees directly to the law firms. Padgett
v. City of Monte Sereno (“Padgett II”), 722
Fed.Appx. 608, 610 (9th Cir. 2018). The Ninth Circuit vacated
this Court's 2015 award of attorney fees because this
Court's order did not analyze whether a valid contractual
provision existed to support the decision to award fees
directly to the attorneys. See Id.
(“[A]ttorney fees belong to the plaintiff absent
contractual provisions to the contrary or an attorney
lien.”). On October 7, 2019, this Court reinstated its
2015 award of fees and costs after findings that the
Parties' “fee agreement dictates that the
disbursement of . . . fees and litigation costs go to . . .
Bustamante.” Order Granting Award of Fees and Costs to
Law Firms at 6, Dkt. 1201. Padgett then filed a Motion for
Reconsideration arguing this Court failed to consider
material facts and/or dispositive legal arguments. Dkt. 1206.
This Court denied this motion. Dkt. 1207. Subsequently,
Padgett appealed this Court's October 2019 order. Dkt.
November 22, 2019, Bustamante filed a motion to compel
Padgett to file a bond for costs and attorney fees pursuant
to FRAP 7. Motion to Compel Joseph Padgett to File a Bond for
Costs and Attorney Fees (“Mot.”), Dkt. 1210.
Padgett filed an opposition to this motion on December 5,
2019. Opposition/Response re Motion to Compel
(“Opp.”), Dkt. 1216. On December 9, 2019,
Bustamante filed a reply brief. Reply to Opposition to Motion
Under FRAP 7 (“Reply”), Dkt. 1218.
Rule of Appellate Procedure (“FRAP”) 7 provides
that “the district court may require an appellant to
file a bond or provide other security in any form and amount
necessary to ensure payment of costs on
appeal.” (emphasis added). “Cost on
appeal” may include attorney's fees if the
underlying fee-shifting statute allows the prevailing party
to recover attorney's fees. Azizian v. Federated
Dep't Stores, Inc., 499 F.3d 950, 955 (9th Cir.