Bailey v. County of Riverside , 414 F.3d 1023 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD O. BAILEY, M.D., 
Plaintiff-Appellee,
v.
Nos. 03-56545
COUNTY OF RIVERSIDE; LARRY 03-57107
SMITH, Riverside County Sheriff,
an individual; FRANK TIBURZIO,  D.C. No.
Riverside County Sheriff’s CV-01-00403-VAP
Deputy, an individual; GARY OPINION
COLBERT, Riverside County
Sheriff’s Deputy, an individual,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
April 7, 2005—Pasadena, California
Filed July 8, 2005
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
and Stephen S. Trott, Circuit Judges.
Opinion by Chief Judge Schroeder
8013
BAILEY v. COUNTY OF RIVERSIDE 8015
COUNSEL
Christopher D. Lockwood, Arias, Lockwood & Gray, San
Bernardino, California, and Bruce E. Disenhouse, Kinkle,
Rodiger & Spriggs, Riverside, California, for the defendants-
appellants.
William S. Hulsy, Santa Ana, California, for the plaintiff-
appellee.
OPINION
SCHROEDER, Chief Judge:
This is an appeal from a verdict and an award of attorneys’
fees in an action for excessive force under 42 U.S.C. § 1983
and for negligence under California state law. The case arises
from an episode in which the defendants, County of Riverside
deputy sheriffs Frank Tiburzio and Gary Colbert, forcibly
8016 BAILEY v. COUNTY OF RIVERSIDE
ejected the plaintiff, Ronald O. Bailey, from an adult book-
store and arrested him.
The principal issue on the merits relates to the sufficiency
of the evidence supporting the jury’s negligence verdict in
favor of the plaintiff. The defendants also contend the motion
for attorneys’ fees was untimely. We affirm both the judg-
ment and award of fees.
[1] The jury found that the defendants violated the plain-
tiff’s civil rights by using excessive force during his arrest,
and that the defendants were negligent. The jury awarded sep-
arate damages on each of the claims. The defendants argue
that there was not substantial evidence to support the award
of damages on a negligence theory, over and above damages
already awarded for excessive force. A jury’s verdict must be
upheld if supported by “substantial evidence.” See Pavao v.
Pagay, 307 F.3d 915, 918 (9th Cir. 2002). Substantial evi-
dence is evidence adequate to support the jury’s conclusion,
even if it is possible to draw a contrary conclusion from the
same evidence. Id. Although the evidence was thin with
respect to the defendants’ negligent conduct, the evidence was
sufficient to support the jury’s negligence conclusion. The
amount of the jury verdict was far less than the amount
requested by the plaintiff and was substantially reduced for
the contributory negligence of the plaintiff. We must affirm
the judgment.
[2] We issue our disposition as an opinion for publication
because of the need to address the issue of the timeliness of
the plaintiff’s post-judgment request for attorneys’ fees. Fed-
eral Rule of Civil Procedure 54(d)(2)(B) states: “Unless other-
wise provided by statute or order of the court, the motion [for
attorneys’ fees] must be filed no later than 14 days after entry
of judgment.” The plaintiff filed his motion for attorneys’ fees
more than 14 days after the judgment on the special verdict,
but within 14 days after the district court’s order denying the
defendants’ motion for partial judgment pursuant to Rule
BAILEY v. COUNTY OF RIVERSIDE 8017
50(b) and for a new trial pursuant to Rule 59. The issue is
whether the Rule 54(d)(2)(B) time limit is tolled pending the
outcome of post-trial motions under Rule 50 or Rule 59. This
is an issue that has not yet been expressly resolved in this Cir-
cuit, although it has been addressed in others. We agree with
their holdings.
[3] The other circuits to reach this question have held that
the requirement that the motion for attorneys’ fees “must be
filed no later than 14 days after entry of judgment” is tolled
pending the outcome of post-trial motions under Rule 50 or
Rule 59. See Members First Fed. Credit Union v. Members
First Credit Union of Fla., 244 F.3d 806, 807 (11th Cir. 2001)
(per curiam); Weyant v. Okst, 198 F.3d 311, 314 (2d Cir.
1999). This is because those motions operate to suspend the
finality of the district court’s judgment. A “judgment” for pur-
poses of the Federal Rules of Civil Procedure includes a
decree or order “from which an appeal lies.” Fed. R. Civ. P.
54(a); see also Weyant, 198 F.3d at 314. The judgment was
not appealable during the pendency of the post trial motions
in this case. See Weyant, 198 F.3d at 314. Therefore, the Rule
54(d)(2)(B) motion for fees is timely if filed no later than 14
days after the resolution of a Rule 50(b), Rule 52(b), or Rule
59 motion. This petition for fees was timely. The district court
did not err in granting the timely motion for fees.
AFFIRMED