Center for Biological Diversity v. Marina Point Development Associates

FILED
NOT FOR PUBLICATION AUG 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 10-55086
DIVERSITY; FRIENDS OF FAWNSKIN,
D.C. No. 2:04-cv-07036-R-RZ
Plaintiffs - Appellees,
v. MEMORANDUM *
MARINA POINT DEVELOPMENT
ASSOCIATES; OKO INVESTMENTS,
INC.; NORTHSHORE DEVELOPMENT
ASSOCIATES, L.P., Erroneously Sued As
North Shore Development Associates,
L.P.; SITE DESIGN ASSOCIATES, INC.;
KEN DISCENZA; VDLP MARINA
POINT L.P.; VENWEST MARINA
POINT, INC., Erroneously Sued As
Venture West Inc; IRVING OKOVITA;
OKON DEVELOPMENT CO.,
Defendants - Appellants,
and
ROBIN ELIASON; SCOTT ELIASON;
GENE ZIMMERMAN,
Movants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted August 4, 2011**
Pasadena, California
Before: FERNANDEZ, RYMER, and KLEINFELD, Circuit Judges.
Marina Point Development Associates, together with its co-defendants,
appeals the district court's grant of attorneys' fees and costs to the Center for
Biological Diversity and Friends of Fawnsµin (collectively, 'the Center'). We
have jurisdiction under 28 U.S.C. y 1291 and affirm.
We previously held that the Center was entitled to fees and costs for its
Endangered Species Act claim but not its Clean Water Act claim. See Ctr. for
Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 805-06 (9th Cir.
2009). We remanded so the district court could determine what portion of its
original award was based on the ESA claim and reenter judgment as to that portion
only. Id. at 806-07.
Marina Point now argues that the Center is not entitled to an award because
'special circumstances' would render such an award unjust. Due to the law of the
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
case doctrine, we decline to reconsider our original holding that the Center was
entitled to an award based on the ESA claim. See Gaudin v. Remis, 379 F.3d 631,
636 (9th Cir. 2004). Contrary to Marina Point's assertion, there has been no
intervening change in law that would compel us to deviate from our prior holding.
See Marbled Murrelet v. Babbit, 182 F.3d 1091, 1095 (9th Cir. 1999) (holding that
the ESA fee-shifting provision should be interpreted similarly to Title II of the
Civil Rights Act of 1964); Saint John's Organic Farm v. Gem County Mosquito
Abatement Dist., 574 F.3d 1054, 1061-63 (9th Cir. 2009) (expanding that holding
to CWA claims).
Marina Point also reasserts several objections to the calculation of fees that
it had raised in its prior appeal of the award. Initially, we reject the Center's
contentions that the mandate rule or a lacµ of jurisdiction prevents this court from
considering Marina Point's objections. The mandate rule only applies to matters
decided in the prior appeal, and we have not addressed Marina Point's objections
previously. See United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007). The
Center also misreads our prior opinion as holding that we lacµed jurisdiction to
consider the merits of the ESA award. We actually stated that 'when a matter
becomes moot on appeal, the court will not, and cannot, review the merits of the
3
underlying dispute for the purpose of determining whether an award of attorney
fees was proper.' Marina Point, 566 F.3d at 805 (emphasis added).
As to Marina Point's objections, they are unpersuasive. The district court's
finding that the worµ done by later-substituted attorneys was not duplicative was
not clearly erroneous. See Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).
Furthermore, there is no evidence that the Center's use of more than one attorney
at depositions or its use of in-house counsel rather than local counsel was
unreasonable.
Next, Marina Point objects to how the district court reallocated the fee
award. It argues that certain time entries should not be categorized as relating to
the ESA claim because they either lacµ sufficient detail, are inconsistent, were
improperly altered post-remand, or relate only to worµ done on the CWA claim.
These arguments are also unpersuasive. The alterations Marina Point objects to
were a mistaµe and were fixed. None of the time entries Marina Point mentions
was inconsistent with another entry or obviously related to only the CWA claim.
Overall, the district court properly exercised its discretion in determining
what portion of the fees and costs related to the ESA claim. See Entm't Research
Group, Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1230-31 (9th Cir. 1997)
(noting that in determining fees only on the allowable claims, the 'district court
4
may attempt to identify specific hours that should be eliminated, or it may simply
reduce the award to account for the limited success') (quoting Hensley v.
Ecµerhart, 461 U.S. 424, 436-37 (1983)). On remand, the attorneys for the Center
filed declarations and listed all the entries they believed related to the ESA claim.
The Center's counsel eliminated ü586,459.15 in fees and ü54,835.40 in costs as
being unrelated to ESA worµ. The district court further reduced the award where
the entries lacµed sufficient detail. As a result, the Center's total fees and costs
were reduced from ü1,693,436.12 to ü1,117,368.56 before interest. Cf. Tutor-
Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1064-65 (9th Cir. 2006).
Finally, Marina Point argues the district court erred in calculating post-
judgment interest under 28 U.S.C. y 1961. However, the post-judgment interest
properly ran from the date of the first judgment, because the legal and evidentiary
bases of the original award, even if subsequently reduced, were preserved. See
Planned Parenthood of Columbia/Willamette Inc. v. Am. Coal. of Life Activists,
518 F.3d 1013, 1017-18 (9th Cir. 2008); Perµins v. Standard Oil Co. of Cal., 487
F.2d 672, 676 (9th Cir. 1973). There also was no mathematical error in the district
court's calculation. Marina Point ignores the fact that y 1961 requires annual
compounding. See 28 U.S.C. y 1961(b).
AFFIRMED.
5
FILED
Center for Biological Diversity v. Marina Point, No. 10-55086 AUG 08 2011
MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
KLEINFELD, Circuit Judge:
I respectfully dissent for the reasons stated in my earlier dissent at 566 F.3d
794, 808 (9th Cir. 2009) (Kleinfeld, J., dissenting).