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Padgett v. Loventhal

United States District Court, N.D. California, San Jose Division

December 12, 2019

JOSEPH PADGETT, et al., Plaintiffs,
v.
BRIAN LOVENTHAL, et al., Defendants.

          ORDER DENYING BUSTAMANTE'S MOTION TO COMPEL A BOND FOR COSTS AND ATTORNEYS' FEES RE: DKT. NO. 1210

          EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE

         Joseph 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.

         I. BACKGROUND

         A. Factual Background

         In 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.

         In 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.

         B. Procedural History

         In 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. 2013).

         On 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. 1208.

         On 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.

         II. LEGAL STANDARD

         Federal 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. 2007).

         III. DISCUSSION

         1. Appellate ...


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