Marchand
Marchand v. Detrolio
Opinion
Dissenting Opinion
Ikuta, J.
dissenting:
Pursuant to Rule 68, Moses Lake offered to “have judgment taken against it for the sum of $7,000, plus reasonable attorney[’]s fees and costs incurred by the plaintiff for the claims against Moses Lake,” and Marchand accepted this offer. In interpreting the terms of such an agreement, a district court applies the “usual rules of contract construction.” Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th Cir.1995).
Therefore, the district court had to construe the Rule 68 agreement, make findings identifying “the claims against Moses Lake,” and specify which attorneys’ fees and costs were associated with such claims. Instead of doing so, the district court awarded attorneys’ fees to Marchand based on principles developed for making fee awards under 42 U.S.C. § 1988 . Specifically, the district court said it was: (1) looking to the relative strengths and weaknesses of the merits of Marchand’s action; (2) apportioning fees between successful and unsuccessful claims; (3) evaluating the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on litigation; and (4) considering whether results were excellent or limited. In other…
Lead Opinion
MEMORANDUM **
Plaintiff Marchand sued Moses Lake, Grant County, and other defendants. He recovered $7,000 from Moses Lake, “plus reasonable attorney s[sic] fees and costs incurred by the plaintiff for the claims against Moses Lake,” (emphasis added) pursuant to an offer of judgment. He nevertheless sought all of his attorney’s fees from Moses Lake, amounting to $100,203.68. Marchand admits that the *321 “lion’s share” of the fees were incurred to prove Grant County’s alleged medical negligence. The district court did not abuse its discretion in assessing $18,500 in attorney’s fees against Defendant City of Moses Lake.
“[A] court abuse[s] its discretion in not apportioning fees ‘when the time expended by the plaintiff in pursuing each defendant [is] grossly unequal.’ ” El-Hakem v. BJY, Inc., 415 F.3d 1068, 1075 (9th Cir.2005) (quoting Corder v. Gates, 947 F.2d 374, 383 (9th Cir.1991)). “Apportionment is mandated in these situations in order to ensure that a defendant is not liable for a fee award greater than the actual fees incurred against that defendant.” Jones v. Espy, 10 F.3d 690, 691 (9th Cir.1993).