Samuelu Masalosalo, a Minor, by Paepae Masalosalo, His Mother and Guardian Ad Litem, and Paepae Masalosalo v. Stonewall Insurance Company

Two principal issues are presented by this appeal. First, does the filing of a notice of appeal from an entry of summary judgment divest the district court of jurisdiction to award attorneys’ fees? Second, was the assessment of attorneys’ fees here an abuse of discretion?

FACTS

In the underlying diversity suit, the Masalosalos sued Stonewall Insurance for damages based on unfair claims settlement practices following an accident involving Samuelu Masalosalo. The district court granted summary judgment for the defendant. That judgment was affirmed by this court by unpublished decision. Masalosalo v. Stonewall Insurance Co., 703 F.2d 576 (9th Cir.1983).

Following notice of appeal from the summary judgment, Stonewall moved for assessment of attorneys’ fees and costs against Ryan, the Masalosalos’ attorney. The motion was granted on November 17, 1982 and fees of $4,586.06 were allowed. Ryan appeals from that order.

DISTRICT COURT JURISDICTION

The effective filing of a notice of appeal transfers jurisdiction from the district court to the court of appeals with respect to all matters involved in the appeal. Griggs v. Provident Consumer Discount Co., - U.S. -, 103 S.Ct. 400, 402 , 74…

dissenting:

While there is considerable support for the majority’s position that the district court had jurisdiction to make the fee award in this case, I believe that Judge Aldrich’s opinion for the Fourth Circuit in Wright v. Jackson, 522 F.2d 955 (4th Cir.1975), better addresses the specific question of jurisdiction to make disciplinary fee awards. The contrary cases cited by the majority all concern, or follow cases concerning, fee awards under. 42 U.S.C. § 1988 or 42 U.S.C. § 2000e-5(k). In fee requests under either statute, the merits of the underlying action are no longer in question. Instead, the question is simply, “How much?” 1 In cases such as this one, however, the question is essentially the same one as presented by the substantive action, namely, “Does the action have any merit?” Once again, we are asked to consider the merits of Ryan’s action. I would agree with the Fourth Circuit that “insofar as a court’s measure of a party’s obstinacy depends on the merits of the case, it must make that assessment while the merits are before it, either prior to an appeal, or on remand after they have been settled.” 522 F.2d at 958 .

The correctness of this approach is supported…

718 F.2d 955 Samuelu MASALOSALO, a minor, By Paepae MASALOSALO, his mother and Guardian Ad Litem, and Paepae Masalosalo, Plaintiffs-Appellants, v. STONEWALL INSURANCE COMPANY, Defendant-Appellee. No. 82-4696. United States Court of Appeals, Ninth Circuit. Submitted Sept. 19, 1983. Decided Oct. 20, 1983. John R. Lacy, Goodsill, Anderson & Quinn, Honolulu, Hawaii, for defendant-appellee. Joseph A. Ryan, Ryan & Ryan, Honolulu, Hawaii, for plaintiffs-appellants. Appeal from the United States District Court for the District of hawaii. Before MERRILL, WRIGHT, and CHOY, Circuit Judges. EUGENE A. WRIGHT, Senior Circuit Judge: 1 Two principal issues are presented by this appeal. First, does the filing of a notice of appeal from an entry of summary judgment divest the district court of jurisdiction to award attorneys' fees? Second, was the assessment of attorneys' fees here an abuse of discretion? FACTS 2 In the underlying diversity suit, the Masalosalos sued Stonewall Insurance for damages based on unfair claims settlement practices following an accident involving Samuelu Masalosalo. The district court granted summary judgment for the defendant. That judgment was affirmed by this…