Southwest Marine, Inc., a Corporation v. Campbell Industries ( 1986 )

PER CURIAM:

In an earlier opinion we held that Southwest Marine was entitled to recover attorneys fees against National Steel and Shipbuilding Company and Triple “A” Machine Shop, Inc., 732 F.2d 744, 746-47 (9th Cir.1984). We held that Southwest Marine was the prevailing party because of the practical result it had obtained as a result of prosecuting its antitrust action — the right to use a dry dock facility to which it had previously been denied access. This right was afforded to Southwest Marine after the litigation was instituted but prior to trial. The trial resulted in a jury verdict in Southwest Marine’s favor but the district judge entered a judgment n.o.v. for defendants. Southwest Marine appealed and we reversed. After deciding that Southwest Marine was entitled to attorney’s fees because of the practical result it had obtained prior to the actual trial, we remanded the case for a possible retrial and noted that because a new trial was possible the “amount of fees” should await final disposition of the suit.

Upon remand, as a result of the emergence of new case law affecting the underlying claim, the district court awarded judgment to Triple “A” Machine Shop.¹ (By this time National Steel and Shipbuilding Company had settled with Southwest Marine.) The district judge believed that our decision did not unequivocally resolve the question of Southwest Marine’s entitlement to attorneys’ fees but that it was conditioned on Southwest Marine’s ultimately prevailing in the litigation. That construction of our opinion is erroneous. Our decision constituted a final and unconditional determination with respect to the attorney fee issue. We held unequivocally that Southwest Marine was entitled to recover fees against the defendants. Only the amount of the fees was left unresolved.

We have considered all the other objections raised by Triple “A” and reject them. We note that Southwest Marine’s decision to institute litigation was neither frivolous nor unreasonable. To the contrary, its legal position at the time it filed its complaint, as well as at the time it accomplished the practical result that underlay our attorneys’ fees determination, was supported by the weight of legal authority.

We express no view as to the amount of legal fees Southwest Marine is entitled to recover or which particular portions of the legal services rendered by its attorneys during the litigation are compensable under our prior decision. Such matters should be considered initially by the district court.

REVERSED AND REMANDED

1 . The district court’s decision regarding attorney’s fees is contained in a published opinion that deals with other issues, including the court’s disposition of the case on the merits. Southwest Marine, Inc. v. Campbell Industries, 616 F.Supp. 253 (S.D.Cal.1985). Because the attorney’s fees decision was published, we are required to publish our reversal of that decision. 9th Cir.R. 21(b)(5). Otherwise we would have issued a memorandum disposition in this case.