# Opposition Brief — Point Reyes Seashore Lodge v. Delil (No. 07-1181)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

GS
ee. FILED

No. 07-1181 MAY 16 2008

pop OF THE CLERK
INTHE EME COURT, U.S.

Supreme Court of the United States

POINT REYES SEASHORE LODGE, et al.,
Petitioners,
v.
HOLLYNN DELIL,
Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED StaTES Court OF APPEALS
FOR THE NINTH CIRCUIT

"area AN oe Se SR RE

BRIEF IN OPPOSITION

ar acre oe AROS BONING eAGE A RE

Pau. L.REIn SIDNEY J. COHEN
Law OFFICES OF PauL L REIN Counsel of Record
200 Lakeside Drive, Suite A SipneyJ. CoHEN
Oakland CA 94612 PROFESSIONAL CORPORATION
(510) 832-5001 427 Grand Avenue
7 Oakland, CA 94610
(510) 893-6682

Counsel for Respondent

215836 g

COUNSEL PRESS
(800) 274-3321 »* (800) 359-6859

1
QUESTIONS PRESENTED

1. Whether there is a compelling reason to grant the
Petition where the District Court’s unpublished
August 9, 2005 “Order Awarding Attorneys’ Fees
And Costs” and the Ninth Circuit’s November 16,
2007 2 page unpublished and non precedent setting
Memorandum Opinion do not conflict with opinions
of other Courts Of Appeal and do not raise new or
important issues for this Court to decide.

2. Whether there is a compelling reason to grant the
Petition where the District Court in its March 24,
2004 Conditional “Order Of Dismissal Upon [Partial]
Settlement” retained jurisdiction to vacate the
Dismissal Order and to restore the case to the
calendar if either party certified within 90 days that
settlement had not occurred, where Respondent so
certified, and where the Conditional Dismissal Order
was vacated and the case restored to the calendar.

3. Whether there is a compelling reason to grant the
Petition where the District Court’s March 24, 2004
Conditional “Order Of Dismissal Upon [Partial]
Settlement” was not an appealable Order under
Federal Rule Of Civil Procedure 54(a) and case law
and where, consequently, Federal Rule Of Civil
Procedure 54(d)(2)(b) did not require that
Respondent file a motion for attorneys’ fees.

4. Whether there is a compelling reason to grant the
Petition where Petitioner did not assert at any time
during the District Court proceedings that the
March 24, 2004 Conditional Dismissal Order
required Respondent to file a motion for attorneys’
fees.

2

5. Whether there is a compelling reason to grant the
Petition where the parties’ and District Court’s July
19, 2004 “Stipulation And Order For Dismissal Of
The Injunctive Relief And Damages Aspects Of The
Lawsuit” was not an appealable Order under
Federal Rule Of Civil Procedure 54(a) and case law
and where, consequently, Federal Rule Of Civil
Procedure 54(d)(2)(b) did not require that
Respondent file a motion for attorneys’ fees within
14 days. “By

6. Whether there is a compelling reason to grant the
Petition where, under Federal Rule Of Civil
Procedure 54(d)(2)(b) and Northern District Civil
Local Rule 54-6, the District Court “otherwise
provided” that Respondent was not required to file
a motion for attorneys’ fees within 14 days from the
July 19, 2004 Stipulation and Order For Dismissal.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................

pe TE ge 3). i eer

A.

Salient Facts Relating To Partial
Settlement Of The Injunctive Relief And
Damages Aspects Of The Lawsuit ......

The District Court’s March 24, 2004
Conditional Dismissal Order ...........

Salient Facts Relating To Final
Settlement Of The Injunctive Relief And
Damages Aspects Of The Lawsuit And To
The Unsuccessful Attempt To Settle The
Attorneys’ Fees Aspect ................

The Parties’ Positions At The District
Court On The Issue Of The Timeliness Of
Bee, BO I wk Sa eke ccuetiees

The District Court’s Order Awarding
Attorney Fees To Ms. Delil ............

iv

Contents

+

F. Point Reyes’ Appeal To The Ninth
Se poner Ar oer nee ye ery Pr ere 16

1. The March 24, 2004 Conditional
TE ohio rccewdasdacauneee 16

2. The July 24, 2004 a And
Order For Dismissal ....\........... 17

REASONS FOR DENYING THE PETITION ... 17

I. Point Reyes Has Not Provided A —
Compelling Reason To Grant The Petition
Because Ms. Delil Was Not Required To
File A Motion For Attorneys’ Fees From
The District Court’s March 24, 2004
Unilateral And Conditional Dismissal
fe. gp ener er wt at Phir er ewe otra Ns 19

A. Ms. Delil Was Not Required To File
A Motion For Attorneys’ Fees
Because The District Court Retained
Jurisdiction In The March 24, 2004
Conditional Dismissal Order To
Vacate The Order And Restore The
Case To The Calendar If, As Ms. Delil
Did, A Party Certified Within 90
Days That Settlement Had Not In
PC CORIRYOG fico ic icisasics 19

Vv

Contents
Page

B. Point Reyes Has Waived The Right
To Argue That The March’24, 2004
Conditional Dismissal Order Began
The Time For Ms. Delil To File A
Motion For Attorney Fees ......... 22

C. Ms. Delil Was Not Required To File
A Motion For Attorneys’ Fees
Because The Conditional Dismissal
Was Not A Final And Appealable
RR i oss coer cee dada eek 23

D. Point Reyes’ Cited Statutes And
Cases With Respect To The March
24, 2004 Conditional Dismissal
Order Are Either Inapplicable Or
TRIAS i os ecciccedasss 24

II. Point Reyes Has Not Provided A
Compelling Reason To Grant The Petition
Because Ms. Delil Was Not Required To
File A Motion For Attorneys’ Fees Within
14 Days From The July 19, 2004
Stipulated Dismissal Order ............ 27

A. The July 19, 2004 Stipulated
Dismissal Order Is Not An Order
From Which An Appeal Lies ....... 27

vi

Contents

B. The July 19, 2004 Stipulated
Dismissal Order “Otherwise
UPR IIREER CSO aae Se mete aE NS ee 29

C. Point Reyes’ Cited Statutes And
Cases With Respect To The July 19,
2004 Stipulated Dismissal Order
Are Either Inapplicable Or
Distinguishable ................... 30

SAGE 0 6% bods Wwccdstevncdysuncswon’ 32

vil

TABLE OF CITED AUTHORITIES

Page

CASES
Bailey v. Potter,

478 F.3d 409 (D.C. Cir. 2007) ............... 25
Bank of Nova Scotia v. United States,

487 U.S. 250 (1988) .........-0e eee eee e ee. 27
Barker v. Craig,

127 US. 218, 8S. Ct. 1175 (1888) ........... 3, 23
Bender v. Freed,

eee FE CT OME OO) occ cccncwcnccse 31
Calhoun v. United States,

Ge ee SI BED oo vcs sicieccccceceses 25
Connecticut Gen. Life Ins. Co. v.

New Images of Beverly Hills,

Be br 2 ok |) 4, 22
Disabled Rights Action Committee v.

Las Vegas Events, Inc.,

Be 8 8) a> | | 26
Dream Palace v. County Of Maricopa,

384 F3d 990 (9 Cir. 2004) ................. 22

Flood v. Harrington,
Gee Poa 1266 (8 Cie 1976) ... 2... cc cccees 24

vill

Cited Authorities

Page

Glick v Ballentine Produce, Inc.,

SOT Fe Oe GR A 6 ck ccc ccccccecns 24
Hagestead v. Tragesser,

29 F:3d 1480 (9" Cir. 1995) ........... 3, 16, 19, 24
IPXL Holdings, LLC v. Amazon.Com, Inc.

430 F.3d 1377 (Fed. Cir. 2005) .............. 31
Keeling v. Sheet Metal Workers

International Assn.,

937 Fa 408 ( Cir, 19081). 5... cece ceca 26
Knevelbaard Dairies v. Kraft Foods,

232 F.3d 979 (9* Cir 2000) ............2.00- 26
Kokkonen v. Guardian Life Ins. Co.

of America,

fa E R : , | ERI a nae erennrs Crenanrreear aio 16
Krull v. Celotex,

Be ad & ae | 5 rn a 24
Mendoza v. Block,

Di FG 1967S” Cle 19004) 2. ww cece canees 26
Montes v. United States,

Be es Oe MI oe be kk eevee nis dacds 26

Muze, Inc. v. Digital on Demand, Inc.,
SEG FAG 402 (26 Cie, ZOO) voc vk ewkccnscncns 3, 19

ix

Cited Authorities
Page

National Distrib. Agency v. Nationwide

Mut. Ins. Co.,

REP GD CO” Ge EOE) occcccccccccccece 25-26
Schwarz v. Folloder,

TPE He BE GA TOGO) occ cccccccccceces 24
Seidman v. City of Beverly Hills,

786 F.2d 1447 (9 Cir. 1986) .......ccccccees 4, 28
Shaffer v. GTE North, Inc.,

284 F'3d 500 (3d Cir. 2002) ................. 3, 19
Singleton v. Wulff,

428 U.S. 106, 96 S. Ct. 2868 (1976) .......... 4, 22
Slaven v. American Trading Transp. Co., Inc.,

146 F.3d 1066 (9" Cir. 1998) ................ 4, 28
Tancredi v. Metropolitan Life Ins. Co.,

- 378 F.3d 220 (2d Cir. 2004), cert. denied,

DP ME PSE kde cceccccccesceveccces 31
Weldon v. United States,

196 F.2d 874 (9 Cir. 1952) ...............4.. 25
Whittaker Corp. v. Execuair Corp.,

953 F.2d 610 (9® Cir. 1992) ...........cceee. 22

Zucker v. Maxicare Health Plans, Inc.,
14 F3d 477 (9™ Cir. 1994) .................. 3, 23

x

Cited Authorities

Page
RULES

* Federal Rules Of Civil Procedure
Fed. Rules Civ. Proc. § 6(b) ................ 14
Fed. Rules Civ. Proc. § 54(a) ............. passim
Fed. Rules Civ. Proc. § 54(d) ......... cine 13, 30

Fed. Rules Civ. Proc. § 54(d)(2)(B) ........ passim a

Fed. Rules Civ. Proc. § 58(a) .............. 25, 27
Fed. Rules Civ, Proc. § 60(b) ........... 14, 26, 27
Fed. Rules Civ. Proc. § 60(b)(1)-(6) ......... 14, 26
Fed. Rules Civ. Proc. § 79(a) .............. 25, 27

l
INTRODUCTION

Respondent Hollynn Delil is a person with a
disability who requires the use of a-wheelchair for
mobility.

The underlying civil rights lawsuit which is the
subject of Point Reyes Seashore Lodge’s Petition
involves Ms. Delil’s ultimately successful four (4) year
odyssey as a “private attorney general” to require that
Point Reyes make their upscale California Resort Lodge
accessible to persons with disabilities and to recover both
the damages she suffered and reasonable statutory
attorneys’ fees, litigations expenses, and costs. (R 02)

After 30 months of litigation the parties finally were
able to settle the injunctive relief and damages aspects
of the lawsuit, but not the attorneys’ fees aspect, by a
Court enforceable “Mutual Release And Settlement
Agreement For Injunctive Relief and Damages.” Shortly
thereafter, the parties submitted to the District Court
a “Stipulation And Order For Dismissal Of The Injunctive
Relief And Damages Aspects Of The Lawsuit”which also
incorporated the court enforceable Mutual Release and
Settlement Agreement. The District Court promptly
signed the Order in the Stipulated Dismissal as
submitted, and it was filed on July 19, 2004.

The parties thereafter were not able to settle the
attorneys’ fee aspect of the case by negotiation, and
consequently Ms. Delil made an attorneys’ fee motion
to the District Court, which it granted and which the
Ninth Circuit affirmed.

2

Point Reyes argued in the District Court that
Ms. Delil’s attorneys’ fee motion was not timely because
not filed within 14 days from the July 19, 2004 Stipulated
Dismissal Order .

The District Court rejected Point Reyes’ argument.

Point Reyes argued for the first time in its appeal
to the Ninth Court that a prior, March 24, 2004 District
Court unilateral Conditional Dismissal was the
operative Order governing the time for Ms. Delil to file
her motion for attorneys’ fees and that Ms. Delil was
not entitled to her attorneys’ fees because she did not
file her motion for fees within 14 days of the March 24,
2004 Conditional Dismissal.

In an unpublished and non precedent setting two
(2) page opinion, the Ninth Circuit rejected Point Reyes’
arguments and affirmed the District Court’s fee award
to Ms. Delil.

No matter which Dismissal Order Point Reyes
argues, Ms. Delil was not required to file her attorneys’
fee motion within fourteen 14 days from either, and
consequently there is no compelling reason for this
Court to grant Point Reyes’ Petition.

Ms. Delil was not required to file a motion for
attorneys’ fees within 14 days from the District Court’s
March 24, 2004 conditional dismissal order for several
alternative reasons:

3

First, the District Court retained jurisdiction in the
March 24, 2004 conditional dismissal order for a 90 day
period by reason of the following provision in the order:

“... if any party certifies to this court...
within ninety days from the date hereof that
settlement has not in fact occurred, the
foregoing order shall be vacated and this cause
shall forthwith be restored to the calendar for
further proceedings.” (Pet. App. 16; see also, e.g,
Hagestead v. Tragesser, 29 F.3d 1430, FN1 and
FN4 (9% Cir. 1995); Muze, Inc. v. Digital on
Demand, Inc., 356 F.3d 492, 494 (2d Cir. 2004);
Shaffer v. GTE North, Inc., 284 F.3d 500, 503-
504 (3d Cir. 2002))

Because Ms. Delil did so certify within 90 days, the order
was vacated and the cause was restored to the calendar.
Consequently, Ms. Delil was not required to file a motion
for attorneys’ fees.

Second, Fed. Rule Civ. Proc. 54(d)(2)(B) states in
relevant part that “Unless otherwise provided by statute
or order of the court, the motion [for attorney fees] must
be filed no later than 14 days after entry of judgment. Fed.
Rule Civ. Proc. 54(a) in turn defines “Judgment” as
including “. . . a decree and any order from which an
appeal lies.” (Emphasis added) In this regard, a
conditional dismissal order only becomes final and
appealable upon the occurrence of the specified event, in
this case the passage of 90 days without a certification by
either Point Reyes or Ms. Delil that settlement had not
occurred. ( see, e.g., Barker v. Craig, 127 U.S. 213, 215-
216, 8S. Ct. 1175 (1888); Zucker v. Maxicare Health Plans,
Inc., 14 F:3d 477, 481-482 (9 Cir. 1994). Because Ms. Delil

4

in this case certified within 90 days that settlement had
not occurred, the conditional dismissal order did not
become a final, appealable order. Consequently Ms. Delil
was not required to file a fee motion.

Third, by never raising the March 24, 2004 dismissal
order issue in the District Court, Point Reyes waived
the issue of whether the March 24, 2004 conditional
Dismissal Order governs Ms. Delil’s right to attorneys’
fees. (See. e.g., Singleton v. Wulff, 428 U.S. 106, 120, 96
S. Ct. 2868 (1976) and Connecticut Gen. Life Ins. Co. v.
New Images of Beverly Hills, 321 F.3d 878, 882-883
(9 Cir. 2003)

Ms. Delil was not required to file her motion for
attorneys’ fees within 14 days from the July 19, 2004
“Stipulation And Order For Dismissal Of The Injunctive
Relief And Damages Aspect Of The Lawsuit” and its
incorporated, court enforceable settlement agreement
for several alternative reasons:

First, Fed. Rule Civ. Proc. 54(d)(2)(B)states in
relevant part that “Unless otherwise provided by statute
_ or order of the court, the motion [for attorney fees] must
be filed no later than 14 days after entry of judgment.
Fed. Rule Civ. Proc. 54(a) in turn defines “Judgment”
as including “. . . a decree and any order from which
an appeal lies.” (Emphasis added) In this regard, a
Stipulation And Order For Dismissal is not an Order
from which an appeal lies. (See, e.g, Seidman v. City of
Beverly Hills, 785 F.2d 1447, 1448 (9 Cir. 1986)-no
appeal from judgment entered pursuant to stipulation;
and Slaven v. American Trading Transp. Co., Inc., 146
F3d 1066, 1070 (9" Cir. 1998)—a party cannot appeal

5

the approval of a settlement to which it stipulated and
did not reserve the right to appeal. Because the July
19, 2004 Stipulated Dismissal Order in this case is not
an appealable order, Ms. Delil was not required to file a
motion for attorneys’ fees within 14 days thereafter.

Second, Ms. Delil was not required to file her motion
for attorneys’ fees within 14 days from the July 19, 2004
Stipulation And Order For Dismissal because the
District Court “otherwise ordered” pursuant to Fed.
Rules Civ. Proc. 54(d)(2)(B), which states in relevant part
that “Unless otherwise provided by statute or order
of the court, the motion [for attorney fees] must be filed
no later than 14 days after entry of judgment. Fed. Rules
Civ. Proc. 54(a) in turn defines “Judgment” as including
“|... a decree and any order from which an appeal
lies.” (Emphasis added) In this regard, the July 19, 2004
Stipulation And Order For Dismissal and its
incorporated court enforceable “Mutual Release And
Settlement Agreement” vested the Court with
jurisdiction to interpret and enforce the negotiation of,
and timing for, any attorneys’ fee motion, and the
District Court held in its August, 2005 Order Granting
Attorney’s fees that it had “otherwise provided.”
(Pet. App. 20; Pet. App. 7-8)

Petitioner Point Reyes has not sustained its burden
to provide compelling reasons for this Court to grant
its Petition: neither the District Court’s unpublished
Order granting an award of attorneys’ fees nor the
Ninth Circuit’s unpublished and non precedent setting
2 page memorandum opinion conflict, as Point Reyes
erroneously argues, with federal procedural rules or
with existing case law from other circuits. Unlike the

6

cases Point Reyes cites, in this case the District Court’s
March 24, 2004 Conditional Dismissal Order did retain
jurisdiction over the parties’ partial settlement for a
90 day period, and the Dismissal Order was vacated and
the case restored to the calendar when Ms. Delil certified
within the 90 day period that settlement had not
occurred. Unlike the cases Point Reyes cites, in this case
the Court’s July 19, 2004 Stipulation And Order
“otherwise provided” under Fed. Rules Civ. Proc.
54(d)(2)(B). Unlike the “final and appealable” judgment
cases Point Reyes cites, neither the March 24, 2004
Conditional Dismissal Order nor the July 19, 2004
Stipulation And Order For Dismissal in this case were
“final and appealable”, which is a condition precedent
to the requirement of Fed. Rules Civ. Proc. 54(d)(2)(B)
and 54(a) to file a fee motion within 14 days.

STATEMENT OF THE CASE

Ms. Delil’s January, 2002 lawsuit in the District Court
sought injunctive relief to require that Point Reyes
make their upscale Lodge accessible to disabled persons,
for damages for denial of her civil rights, and for
reasonable attorneys’ fees, litigation expenses, and
costs. (R1; ER 02)

A. Salient Facts Relating To Partial Settlement Of
The Injunctive Relief And Damages Aspects Of
The Lawsuit

Subject to negotiation and agreement on the terms
and provisions of a formal, written Settlement
Agreement, at a court settlement conference on March
12, 2004 the parties reached a partial settlement of the

7

injunctive relief and damages aspects of the lawsuit only.
(R36; ER343). As part of the settlement, the parties
placed on the record that it was a court enforceable
settlement agreement and that the District Court would
retain jurisdiction.

B. The District Court’s March 24, 2004 Conditional
Dismissal Order

After the Magistrate Judge who presided at the
settlement conference informed the court of a partial
settlement, on March 24, 2004, the District Court filed
an Order Of Dismissal of the Action, which stated in
relevant part:

“IT IS HEREBY ORDERED that this matter
is DISMISSED WITH PREJUDICE.
However, that if any party hereto certifies to
this court ... within ninety days from the date
hereof, that settlement has not in fact
occurred, the foregoing order shall be vacated
and this cause shall forthwith be restored
to the calendar for further proceedings.”
(Pet. App.16; R37; ER14)

C. Salient Facts Relating To Final Settlement Of
_ The Injunctive Relief And Damages Aspects Of
The Lawsuit And To The Unsuccessful Attempt

To Settle The Attorneys’ Fees Aspect

During the four (4) months from March 13, 2004 to
July 12, 2004 counsel for the parties engaged in
substantial discussions and negotiations regarding

8

differences of opinion on numerous injunctive relief
scope of work items that remained unresolved following
the March 12, 2004 settlement conference, certain terms
and provisions of the Settlement Agreement that had
not been discussed at the March 12, 2004 settlement
conference, and the Stipulation for Dismissal Of The
Injunctive Relief And Damages Aspects Of The Lawsuit
to be filed with the court. (R64; ER 60, 121-128).

With respect to the attorneys’ fees aspect of the
lawsuit, On May 31, 2004 Ms. Delil’s counsel and Point
Reyes’ counsel Michael Brown entered into a
“Stipulation For Review And Return Of Plaintiff’s

7)

Counsels’ Time Sheets And Billing Statements”.
(R 44; ER 353-355). It states in part:

“B. Although the parties were not able to
settle the amount of attorneys’ fees, litigation
expenses, and costs to be paid to plaintiff, [at
the March 12, 2004 Settlement Conference, ]
they wish to continue the negotiation process
for this last remaining aspect of the lawsuit
to be resolved.” (R 44; ER353)

Four days later, On June 3, 2004 (shortly before the
90 day period in the March 24, 2004 Conditional
Dismissal Order would have run), Ms. Delil’s counsel

1. Ms. Delil had previously entered into a similar
Stipulation with Point Reyes prior counsel, Martin Orlick.
However, Ms. Delil’s counsel and Mr. Orlick did not engage in
negotiations to resolve the attorneys’ fees aspect of the lawsuit
prior to the substitution of Mr. Brown for Mr. Orlick.

9

filed a “Certification That Settlement of All Aspects of
the Lawsuit Have Not Occurred.” (R 45 ER 15).?

On June 9, 2004 the Court reopened the case and
scheduled a case management conference for July 2,
2004. (R46; ER17)

On June 17, 2004 Ms. Delil’s counsel and Point
Reye’s counsel filed their “Updated Joint Case
Management Conference Statement.” (R 49; ER 18-19)
It states in part:

“I. STATUS: INJUNCTIVE RELIEF AND
DAMAGES ASPECT OF THE CASE

“The parties have resolved the injunctive
relief and damages aspects of the lawsuit by
Settlement Agreement and expect that they
will e file a dismissal of these aspects of the
lawsuit either prior-to or shortly after the
[July 2, 2004] Case Management Conference.”
(R 49; ER 19)

II, STATUS: DAMAGES AND ATTORNEYS’
FEES, LITIGATION EXPENSES, AND
COSTS

Plaintiff has made a written demand for her
attorneys’ fees and has provided plaintiff’s
counsels’ billing statements and daily time

2. At the time of the Certification, Point Reyes’ counsel
had not provided Ms. Delil’s counsel with the Mutual Release
And Settlement Agreement signed by all parties and by him.

10

sheets to... defendants recently substituted
in counsel, Michael E. Brown. The parties
expect to discuss whether the amount of
attorneys’ fees, litigation expenses, and costs
can be resolved without the need for further
involvement by the court. If the parties
cannot reach agreement without further
involvement, they expect to request that your
Honor refer the matter to Judge Chen for a
further settlement conference. If the parties
cannot reach agreement at such a further
settlement conference, plaintiff thereafter
will make her motion to the court for
attorneys’ fees, litigation expenses, and
costs.” (Emphasis added; R 49; ER 19)°

On July 13, 2004 the parties filed their “Stipulation
and Order [Proposed] For Dismissal of the Injunctive
Relief and Damages Aspects of the Lawsuit” with the
Court. (Pet. App. 17-20; R 54; ER 22-46). The Court
signed the Stipulation and Order as presented, and it
was filed on July 19, 2004. (Pet. App. 17-20; R 54 ER22-
46). It both incorporates the parties’ “Mutual Release
And Settlement Agreement For Injunctive Relief And
Damages Only” (R 54 ER 22-23) and states in part:

“The attorneys’ fees... aspects of the lawsuit
shall be resolved by negotiation or, if

3. Contrary to Point Reyes assertion that “The parties had
been negotiating the issue of attorneys’ fees since March 12,
2004 (Pet.@31), there were virtually no substantive negotiations
on the amount of fees prior to July, 2004. In this regard, in its
July 6, 2004 Order to Show Cause (R 52), the Court ordered
Point Reyes to respond in writing to Ms. Delil’s demand for
fees. (ER 21; See, also R 80, ER 391-393).

11

unsuccessful, by subsequent motion to the
Court”

XXX

“The Court shall retain jurisdiction to
interpret and enforce the “Mutual Release
And Settlement Agreement For Injunctive
Relief And Damages Only” . . . and to render
a decision on any motion made to the Court
for attorneys’ fees. ...” ( Emphasis added; Pet.
App. 20; R54; ER 24).

The Settlement Agreement incorporated into the
July 19, 2004 Stipulation And Order states in part:

“U. The attorneys’ fees . .. aspects of this
Lawsuit ... are the subject of continuing
negotiation and litigation. .. . If the parties
are not able to resolve the amount of
attorneys’ fees ... by negotiation, Plaintiff
will make a motion to the Court for attorneys’
fees, litigation expenses, and costs.”
(Emphasis added; R 54 ER 34-35)

Because the Court administratively had “closed” the
case, on August 12, 2004, Ms. Delil’s counsel filed a
“Certification That Settlement of All Aspects of the
Lawsuit Have Not Occurred, Request to Re-open the
Case, and Request for the Court to Follow up on its
July 6, 2004 Order to Show Cause to Defendants.”
(R 56 ER 47-49). Ms. Delil’s counsel certified “... that a

12

settlement of the attorneys’ fees, litigation expenses,
and costs aspects of this lawsuit have not occurred”
(R56; ER47) and requested “. . . that the Court:

A. Reopen and restore the case to the
calendar.

XXXX

C. Set a further Case Management
Conference for the purpose of
determining the future conduct of the
remaining attorneys’ fees, litigation
expenses, and costs aspect of the lawsuit.
(Emphasis added R56; ER48-49)

On August 25, 2004 the District Court issued its
“ORDER” in response to the request, stating in part
that “. . . the Court orders that if plaintiff seeks to be
awarded fees and costs, she may apply for same by a
regularly scheduled motion, which the Court will hear
and decide.” (Pet. App. 21-22; R57; ER50; Emphasis
added)

The parties thereafter were not able to negotiate a
resolution of the attorneys’ fee aspect of the lawsuit,
and Ms. Delil filed her Motion for attorneys’ fees on
November 23, 2004. (R 59, 60, 61, 62, 69, 70, 71, 83,
and 85).

13

D. The Parties’ Positions At The District Court On The
Issue Of The Timeliness Of Ms. Delil’s Motion

In their opposition to Ms. Delil’s Motion, Point
Reyes argued that the Motion was not timely filed “. . .
as required by Federal Rule Of Civil Proc. 54(d) and Civil
Rule 54-6... .” on grounds that Ms. Delil “. . . was
required to file her motion within 14 days after the entry
of the July 19, 2004" Order of Dismissal or, in the
alternative, “no later than 14 days after the entry of the
Order of August 25, 2004.” (Emphasis added; R 73 ER
150-151)

Point Reyes did not raise the District Court’s March
24, 2004 Conditional Dismissal at any time at the District
Court level.

In her Reply to Point Reyes’ opposition, Ms. Delil
argued she was not required to file her attorneys’ fee
motion within 14 days of the July 19, 2004 dismissal on
alternative grounds, as follows:

1. The July 19, 2004 Stipulation and Order
for Dismissal of the Injunctive Relief and
Damages Aspects of the Lawsuit Was Not
an Order from Which an Appeal Lies.
(R 79 ER284-285)

2. Pursuant to statutory authority, the
Court “Otherwise Ordered.” (R 79 ER
374-375)

3. The Parties’ Settlement Agreement and
Stipulation and Order for Dismissal

14

Vested the Court with Jurisdiction to
Interpret and Enforce the Negotiation
Of, and Timing For, Any Attorneys’ Fees
Motion. (R 79 ER 376-377)

4. Pursuant to Fed. Rules Civ. Proc. 60(b)
(1)-(6), the Court may relieve Ms. Delil
from any Order that may have started the
running of the 14 day time period
(R79 ER 376, fn.4).

In addition, at the April 8, 2005 hearing on her
Motion, Ms. Delil advised the Court that “. . . while we
believe that the motion was timely filed, . . . if for some
reason you don’t think it was and rule otherwise, we
would be intending to file a Rule 6(b) and/or a 60(b)
motion. In response, the Court stated that “I am not
going to deny it on the basis of timeliness.” (Transcript
of Hearing on 4/8/05 at ER 320)

E. The District Court’s Order Awarding Attorney
Fees To Ms. Delil

In its August 8, 2005 “Order Awarding Attorney’s
Fees And Costs” of $168,879 (R 86 ER 307-314), the
Court rejected Point Reyes position that Ms. Delil was
required to file her attorneys’ fee motion within 14 days
from July 19, 2004:

“Defendants presented a_ thorough,
painstaking and often contentious defense,
which required the parties to engage in
multiple mediations and other settlement
negotiations and substantially extended the

\

15

time required to complete the case. (Pet. App.
12; R86; ER312)

XXXX

“Even if Rule 54 applies to the
circumstances of this case, the Court finds
that plaintiff’s motion was timely. The rule
provides that the motion for fees must be filed
within 14 days of entry of judgment, “unless
otherwise provided by statute or order of the
court.” The Court’s Order of July 19, 2004
stated that it would retain jurisdiction over
rendering a decision on any fees motion. The
Order also stated that the parties were to
resolve the fees issue by negotiation if
possible. Finally, the Court’s August 25, 2004
Order stated that plaintiff could seek fees and
costs through a regularly scheduled motion.

The Court finds that the August 25, 2004
Order provided that plaintiff was not required
to file her motion for attorneys fees and costs
within 14 days of the stipulated dismissal,
given that the Order was issued more than
one month after the dismissal order.”
(Pet. App. 7-8; R 86 ER 309)

16
F. Point Reyes’ Appeal To The Ninth Circuit

1. The March 24, 2004 Conditional Dismissal

Point Reyes devoted virtually all of its appellate
brief in the Ninth Circuit to the proposition, for the first
time, that Ms. Delil’s right to an award of attorneys’
fees is governed by the District Court’s unilateral
March 24, 2004 conditional dismissal order. (Point Reyes
opening brief @ pages 2-3 [Issues Presented] and 16-
30 [Argument)).

In its unpublished and non precedent setting 2 page
Memorandum opinion affirming the District Court’s
award, the Ninth Circuit determined that the March
24, 2004 Dismissal Order was conditional and that
“When Delil certified that not all aspects of the case had
settled, the Order was automatically vacated and the
case reopened. (Pet. App. 2).

The Ninth Circuit also found that Point Reyes
reliance on Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375 (1994), and Hagestaad v.
Tragesar, 49 F.3d 1430, was misplaced : Kokkonen did
not involve a conditional order and has no application
to this case, and in Hagestaad the condition for vacating
the dismissal was never met because the 90 day deadline
had passed. (Pet. App. 2-3)

17

2. The July 24, 2004 Stipulation And Order For
Dismissal

In its unpublished and non precedent setting 2 page
Memorandum Opinion affirming the District Court’s
award, the Ninth Circuit determined that the July 24,
2004 Stipulation And Order did not require that
Ms. Delil file a motion by August 2, 2004 because the
parties’ agreement in the Stipulation And Order left the
matter of attorneys’ fees-for resolution by negotiation
or subsequent motion to the Court and because the
Court’s order retained jurisdiction to interpret and to
enforce the terms of the settlement agreement and to
render a decision on any motion made to the Court for
attorneys’ fees. Thus, the Court found it “...
disingenuous for the Lodge to contend that Delil had a
duty to file a separate and superfluous motion for fees
by August 2, 2004.”

REASONS FOR DENYING THE PETITION

Point Reyes has not sustained its burden of
providing a compelling reason for this Court to grant
its Petition: neither the District Court Order granting
an award of attorneys’ fees nor the Ninth Circuit Court’s
unpublished and non precedent setting 2 page
memorandum opinion conflict, as Point Reyes
erroneously argues, with federal procedural rules or
with existing case law from other circuits.

4. Such a separate fee motion within this time frame would
have been superfluous because 1) it would not have had to be
made if the parties were able to negotiate a settlement of the
attorney fee issue and because 2) it would have to be redone or
amended following any unsuccessful negotiation.

18

Unlike the cases Point Reyes cites, in this case the
District Court’s March 24, 2004 Conditional Dismissal
Order did retain jurisdiction over the parties’ partial
settlement for a 90 day period, and the Dismissal Order
was vacated and the case restored to the calendar when
Ms. Delil certified within the 90 day period that
settlement had not occurred.

Unlike the cases Point Reyes cites, by its conduct
and by not asserting in the District Court proceeding
in this case that the March 24, 2004 Conditional
Dismissal Order required that Ms. Delil file a motion
for attorneys’ fees, Point Reyes has waived the right to
assert the issue on appeal.

Unlike the cases Point Reyes cites, the March 24,
2004 Conditional Dismissal Order in this case was not a
final and appealable order, which is a condition precedent
to the requirement of Fed. Rules Civ. Proc. 54(d)(2)(B)
and 54(a) to file a fee motion within 14 days.

Unlike the cases Point Reyes cites, in this case the
Court’s July 19, 2004 Stipulation And Order “otherwise
provided” in accord with Fed. Rules Civ. Proc. 54(d)(2)(B)
and Local Rule 54-6.

Unlike the cases Point Reyes cites, the July 19, 2004
Stipulated Dismissal Order in this case was not a final
and appealable order, which is a condition precedent to
the requirement of Fed. Rules Civ. Proc. 54(d)(2)(B) and
54(a) to file a fee motion within 14 days.

19

I. Point Reyes Has Not Provided A Compelling Reason
To Grant The Petition Because Ms. Delil Was Not
Required To File A Motion For Attorneys’ Fees From
The District Court’s March 24, 2004 Unilateral And
Conditional Dismissal Order

A. Ms. Delil Was Not Required To File A Motion
For Attorneys’ Fees Because The District Court
Retained Jurisdiction In The March 24, 2004
Conditional Dismissal Order To Vacate The
Order And Restore The Case To The Calendar
If, As Ms. Delil Did, A Party Certified Within 90
Days That Settlement Had Not In Fact
Occurred

A District Court may retain jurisdiction to set
aside or vacate a Conditional Dismissal Order.
(see, e.g., Hagestead v. Tragesser, 29 F.3d 1430, FN4
(9 Cir. 1995) In Hagestaad, the district court unilaterally
dismissed the case upon being advised of a settlement with
the condition it would be set aside for good cause shown if
the settlement was not consummated within 90 days. In
Hagestead the Ninth Circuit determined that the Court
had retained jurisdiction over the 90 day reservation to
set aside the dismissal if the settlement was not
consummated (@ FN1 and F'N4). (See also, Muze, Inc. v.
Digital on Demand, Inc., supra, and Shaffer v. GTE
North, Inc., supra, each discussing conditional dismissals
in which the court retained jurisdiction to reinstate the
case).

Here, the District Court’s Dismissal Order likewise
retained jurisdiction by stating in the Order that it “. . .
shall be vacated and this cause . . . restored to the
calendar for further proceedings” if any party certifies
to the court within 90 days that the settlement has not

20

occurred. Ms. Delil having so certified, the Order was
vacated and the case restored to the calendar.

Not only is Point Reyes’ position that the District
Court’s March 24, 2004 conditional dismissal was a final
order which terminated the litigation and divested the
court of jurisdiction at odds with the District Court’s
conditional dismissal order itself retaining jurisdiction,
it also is at odds with Point Reyes’ conduct during the
entire District Court proceedings during the 17 months
from the March 24, 2004 dismissal order through the
August 9, 2005 District Court decision on Ms. Delil’s
motion for attorneys’ fees.

¢ On May 31, 2004, more than two months
after the March 24, 2004 Conditional
Dismissal Order, Ms. Delil’s counsel and
defendant Point Reyes Seashore Lodge’s
counsel, Michael Brown, entered into a
Stipulation for review of plaintiff’s
counsels time sheets as part of the agreed
upon of process of attempting to
negotiate and agreement on the amount
of attorneys’ fees to be paid by Point
Reyes.

¢ QnJune 17, 2004, Ms. Delil’s counsel and
Point Reyes’ counsel Mr. Brown advised
the Court in their Joint Case
Management Statement that they
expected to discuss whether the amount

of attorneys’ fees could be resolved
without further involvement by the
Court; that they expected to ask the

21

Court to refer the matter of attorneys’
fees to Judge Chen for a further
settlement conference if they could not
reach an agreement without further
Court assistance; and that if they could
not reach agreement at a further
settlement conference that Ms. Delil
thereafter would make her motion to the
Court for attorneys’ fees.

e The July 19, 2004 “Stipulation And Order
For Dismissal of the Injunctive Relief And
Damages Aspects Of The Lawsuit” filed
with Court on July 13, 2004°, which Order
the Court signed unchanged, states that
“The attorneys’ fees, litigation expenses,
and costs aspects of the lawsuit shall be
resolved by negotiation or, if unsuccessful,
by subsequent motion to the Court.”

¢ Point Reyes did not assert in its
opposition to Ms. Delil’s attorney fee
motion in the District Court that the
March 24, 2004 Dismissal Order began
the time running for Ms. Delil to file her
fee motion.

Point Reyes’ conduct leaves no doubt but that it did
not consider that the March 24, 2004 conditional

5. Defendants’ counsel Michael Brown did not sign and
provide Ms. Delil’s counsel the Stipulation And Proposed Order
For Dismissal until July 12, 2004, and that is why neither it nor its
incorporated Mutual Release And Settlement Agreement was filed
with the District Court at an earlier date (R 54 ER 22-23)

22

dismissal order began the running of a time period for
Ms. Delil to file a motion for attorneys’ fees.

B. Point Reyes Has Waived the Right to Argue
That the March 24, 2004 Conditional Dismissal
Order Began The Time For Ms. Delil To File
a Motion for Attorney Fees

Federal appellate courts generally will not consider
an issue that was not raised or passed upon at the district
court level (Singleton v. Wulff, 428 U.S. 106, 120, 96 S.
Ct. 2868 (1976); Connecticut Gen. Life Ins. Co. v. New
Images of Beverly Hills, 321 F.3d 878, 882-883 (9 Cir
2003). The basic reason for the appellate court’s
unwillingness to consider an issue for the first time on
appeal is “. . . to ensure that legal arguments are
considered with the benefit of a fully developed factual
record, offer appellate courts the benefit of the district
court’s prior analysis, and prevent parties from
sandbagging their opponents with new arguments on
appeal.” (Dream Palace v. County Of Maricopa, 384 F.3d
990, 1005 (9 Cir. 2004)

While it does not appear that there is a hard and
fast rule to determine whether a matter has been
properly raised in the district court, “A workable
standard ... is that the argument must be raised
sufficiently for the trial court to rule on it.” (Whittaker
Corp. v. Execuair Corp., 953 F.2d 510, 515 (9" Cir. 1992)

Because Point Reyes never took the position at the
district court level that the March 24, 2004 conditional
dismissal order began the time running for Ms. Delil to
file a fee motion, it has waived the right to make the
argument to this Court.

23

C. Ms. Delil Was Not Required To File A Motion
For Attorneys’ Fees Because The Conditional
Dismissal Was Not A Final And Appealable
Order

Fed. Rules Civ. Proc. 54(d)(2)(B) states in relevant
part that “Unless otherwise provided by statute or
order of the court, the motion [for attorney fees] must
be filed no later than 14 days after entry of judgment.”
Fed. Rules Civ. Proc. 54(a) in turn defines “Judgment”
as including “. .. a decree and any order from which
an appeal lies.” (Emphasis added) A dismissal order
that is conditioned on the occurrence or nonoccurrence
of a future event becomes final and appealable only upon
occurrence or nonoccurrence of the specified event
(Barker v. Craig, 127 U.S. 218, 215-216, 8 S. Ct. 1175
(1888); Zucker v. Maxicare Health Plans, Inc., 14 F.3d
477, 481-482 (9 Cir. 1994).

Here, the District Court’s unilateral March 24, 2004
dismissal order was a conditional dismissal order. This
conditional dismissal stated that “... if any party hereto
certifies to this court . . . within ninety days from the
date hereof, that settlement has not in fact occurred,
the foregoing order shall be vacated and this cause shall
forthwith be restored to the calendar for further
proceedings.”( Pet. App. 16; R37; ER 14)

Ms. Delil’s counsel certified prior to the expiration
of the ninety day period that settlement of all aspects of
the case had not occurred (R 64; ER60, 121-128; R45);

24

ER15).° Prior to the expiration of the ninety day period,
on June 9, 2004, the March 24, 2004 conditional
Dismissal Order was vacated by the reopening of the
case and scheduling a case management conference for
July 2, 2004 (R46; ER 15; page 16.)

Because the March 24, 2004 Conditional Dismissal
Order never became a final, appealable order, Ms. Delil

was not required to bring a motion for attorneys’ from
the March 24, 2004 Conditional Dismissal Order.

D. Point Reyes’ Cited Statutes And Cases with
Respect to the March 24, 2004 Conditional
Dismissal Order Are Either Inapplicable or
Distinguishable

Citing numerous statutes and cases, Point Reyes’
erroneously argues that every dismissal with prejudice
is a final and appealable order that terminates
the litigation and divests the court of jurisdiction
(Pet. @ 22-23, citing Glick v. Ballentine Produce, Inc.,
397 F.2d 590 (8 Cir. 1968), dismissal based on pleading
failing to state a cause of action; Schwarz v. Folloder,
767 F.2d 125 (5" Cir. 1985), dismissal at plaintiff’s
request pursuant to 41(a)(2); Flood v. Harrington, 532
F.2d 1248 (9 Cir. 1976), dismissal for summary
judgment; and Krull v. Celotex, 827 F.2d 80 (7 Cir. 1987),
dismissal for summary judgment).

6. See, e.g., Hagestead v. Tragesser, 29 F3d 1430 ( 9* Cir.
1995) for a case with a similar conditional dismissal order with
a 90 day set aside time frame which, unlike here, became final
after 90 days because the condition which would have prevented
finality within the prescribed time frame did not occcur.

25

None of Point Reyes cited cases deal as here, with a
conditional dismissal order in which the Court retained
jurisdiction to vacate the dismissal order and restore
the case to the calendar, and none of the Point Reyes’
cited cases deal, as here, with a conditional dismissal
whose finality, by it terms, is dependent on the
occurrence or non occurrence of a condition (See I A
and C, supra.)

Citing Weldon v. United States, 196 F.2d 874, 875-
876 (9 Cir. 1952), Calhoun v. United States, 647 F:2d 6
(9" Cir. 1981), and Bazley v. Potter, 478 F:3d 409, 412
(D.C. Cir. 2007), Pt. Reyes erroneously argues, for the
first time to this Court, that the March 24, 2004
dismissal order complied with the requirements of Fed.
R. Civ. Proc. 58(a) and consequently was a “final order”
when entered on the docket under Fed. R. Civ. Proc.
79(a). (Pet. @23, 26-27) However, Weldon, Calhoun, and
Bailey only deal with whether an appeal was taken from
an order which met the requirements of Fed. R. Civ.
Proc. 58(a)and 79(a): those cases do not hold that every
order that complies with Fed. R. Civ. Proc. 58(a)and 79(a)
is final and appealable or that the court lacks the power
to retain jurisdiction to vacate the order if a condition
specified in the order does, or does not, occur.

Moreover, in determining whether a dismissal order
is final and appealable or whether it terminates the
litigation and divests the court of jurisdiction, it is
important to ascertain the District Court’s intent.
A dismissal order is final and appealable only if it is a
full adjudication of the issues and clearly evidences the
judge’s intention that it be the court’s final act in the
matter (National Distrib. Agency v Nationwide Mur.

26

Ins. Co., 117 F.3d 432, 483 (9% Cir. 1997). A District
Court’s dismissal order is not a final, appealable order
unless the circumstances clearly indicate that the court
intended to terminate the litigation. (Knevelbaard
Dairies v. Kraft Foods, 232 F.3d 979, 983 (9" Cir. 2000).
In evaluating the District Court’s intent, “We [the
appellate court] look beyond the dismissal order and
read the entire record, including the District Court’s
action subsequent to filing of the order, to determine
what effect the court intended its order to have.”
(Disabled Rights Action Committee v. Las Vegas
Events, Inc., 375 F.3d 861, 870 (9 Cir. 2004); Montes v.
United States, 37 F.3d 20, 22 (9 Cir. 1996)). Here, a
record review reveals that the Court’s intent, as stated
in the dismissal order itself and confirmed by the Court’s
subsequent conduct, was for the March 24, 2008 Order
to be vacated and the cause restored to the calendar if
either party, as here occurred, certified within 90 days
that settlement had not occurred and for the order to
be final and appealable only if 90 days passed without a
certification such as Ms. Delil made.

Citing Keeling v. Sheet Metal Workers
International Assn., 937 F.2d 408 (9" Cir. 1991), Point
Reyes erroneously argues that the March 24, 2004
conditional dismissal “... was merely placing all parties
on notice .. . that the Court would consider the failure
to consummate the settlement within 90 days “good
cause” to vacate the dismissal pursuant to a motion filed
in accordance with Fed. R. Civ. Proc. 60(b) . . .”(Pet. @24).
There is nothing in Keeling, a case in which the Sheet
Metal Union made a Rule 60(b)(6) motion, that provides
“notice” or otherwise suggests that a party such as
Ms. Delil must make a Rule 60 (b)(6) motion rather than

27

follow the specific instructions in the conditional dismissal
order within 90 days to have the order vacated and the
case to restored the active calendar. To the contrary, the
March 24, 2004 dismissal order unequivocally states that
upon happening of the condition the “. . . order shall be
vacated .” Moreover, Fed. R. Civ. Proc. 60(b) applies only
to final judgments or orders, which the March 24, 2004
conditional order was not.’ Consequently, Ms. Delil not only
was not on “notice” to make a Fed. R. Civ. Proc. 60(b)
motion, she was precluded from doing so. Even if one were
to construe the March 24, 2004 dismissal as a final,
appealable order, the “shall be vacated” and “restored to
the calendar” language upon the certification that
settlement has not occurred, together with restoring the
case to the calendar upon the certification, is sufficient to
comply with Fed. Rule Civ. Proc. 58(a) and 79(a).

II. Point Reyes Has Not Provided A Compelling
Reason To Grant The Petition Because Ms. Delil
Was Not Required To File A Motion For
Attorneys’ Fees Within 14 Days From The July
19, 2004 Stipulated Dismissal Order

A. The July 19, 2004 Stipulated Dismissal Order
Is Not An Order From Which An Appeal Lies

Fed. Rule Civ. Proc. 54(d)(2)(B) states in relevant
part that “Unless otherwise provided by statute or

7. Point Reyes also argues that Bank of Nova Scotia v.
United States, 487 U.S. 250, 254-255 (1988) supports its position
that the March 24, 2004 dismissal cannot be vacated because it
is contrary to the application and construction of Fed. R. Civ.
Proc. 60(b).(Pet.@ 27) Bank Of Nova Scotia has nothing to do
with Fed. R. Civ. Proc. 60(b) or the issues in this case.

28

order of the court, the motion [for attorney fees] must
be filed no later than 14 days after entry of judgment.
Fed. Rules Civ. Proc. 54(a) defines “Judgment” as
including “. . . a decree and any order from which an
appeal lies.”

Here, the July 19, 2004 “Stipulation And Order For
Dismissal Of The Injunctive Relief And Damages
Aspects Of The Lawsuit” does not fall within the
“Judgment” definition of an “order from which an appeal
lies.” Neither Ms. Delil nor Point Reyes could take an
appeal from their Stipulation and Order and the
Settlement Agreement incorporated by reference in the
Stipulation as if set forth in full (see, e.g., Seidman v.
City of Beverly Hills, 785 F.2d 1447, 1448 (9" Cir. 1986)-
no appeal from judgment entered pursuant. to
stipulation; Slaven v. American Trading Transp. Co.,
Inc., 146 R8d 1066, 1070 (9 Cir. 1998)—a party cannot
appeal the approval of a settlement to which it stipulated
and did not reserve the right to appeal; and Mendoza v.
Block, 27 F.3d 1357, 1360 (9" Cir. 1994)-unequivocal
agreement with trial court’s procedure precluded
objection on appeal).

8. Local Civil Rule 54-6 likewise provides for the 14 day
period after entry of judgment. The reason for the 14 day
requirement is because the losing party has only 30 days to file
a notice of appeal, and an attorneys’ fees motion may influence
the decision of the losing party as to whether it wishes to appeal
the judgment. Here, Point Reyes knew the amount of attorneys’
fees that Ms. Delil was seeking at the time of the July 19, 2004
Stipulated Dismissal Order and knew that Ms. Delil would file
a fee motion if the parties could not otherwise agree on an
amount through the negotiation process or through mediaiton.

29

Here, the July 19, 2004 Stipulated Dismissal Order
and incorporated Settlement Agreement recite
precisely what injunctive relief work has to be
performed and exactly the amount of damages that has
to be paid (R 54 ER 26-30). Moreover, the incorporated
settlement agreement provides that “The attorneys’
fees ... are the subject of continuing negotiation ... in
the lawsuit .. .” and that “If the parties are not able to
resolve the amount of attorneys’ fees by negotiation,
... Plaintiff will make a motion to the court for attorneys’
fees.” The parties having so agreed in their settlement
agreement, the parties have so stipulated, and the
Court having so Ordered, there simply is nothing that
Point Reyes could appeal. Consequently, the 14 day time
period to file a motion for attorneys’ fees did not begin
to run.

B. The July 19, 2004 Stipulated Dismissal Order
“Otherwise Provides”

Fed. Rules Civ. Proc. 54(d)(2)(B) states in relevant
part that “Unless otherwise provided by . . . order of
the court, the motion [for attorney fees] must be filed

no later than 14 days after entry of judgment.”
(Emphasis added)

Here, the District Court in its July 19, 2004 Order
of Dismissal “otherwise provided by Order.” It states in
part:

“The attorneys’ fees, litigation expenses,
and costs aspects of the lawsuit shall be
resolved by negotiation or, if unsuccessful, by
subsequent motion to the Court.

30

The Court shall retain jurisdiction to
interpret and to enforce the terms of the
“Mutual Release And Settlement Agreement
For Injunctive Relief And Damages Only’
incorporated by reference herein and to
render a decision on any motion made to the
Court for attorneys’ fees, litigation expenses,
and costs.”°®

The District Court’s subsequent August 25, 2004
Order and August 8, 2005 Order awarding attorneys’
fees confirms that the Court did “otherwise order.”
(Statement Of The Case, C, D, and E, supra)
Consequently Ms. Delil was not required to file a fee
motion within 14 days from the July 1 2004 Stipulated
Dismissal Order.”

C. Point Reyes’ Cited Statutes And Cases with
Respect to the July 19, 2004 Stipulated
Dismissal Order Are Eithez Inapplicable or
Distinguishable

Point Reyes erroneously argues that the District
Court decision in this case is contrary to the 14 day time

9. This language was in the Order provided to the Court
by the parties and was adopted by the Court without change.

10. Nor would Ms. Delil have only 14 days from August 25,
2004 to file her motion. The August 25, 2004 Order is not subject
to the 14 day time requirement of Fed. Rules Civ. Proc. 54(d)
for the same reasons that the July 19, 2004 Order is not so
subject: because it is an order in which the Court “provided
otherwise” and because it is not an Order from which an appeal
can be taken.

31

period decisions in Bender v. Freed, 486 F.3d 747
(7 Cir. 2006), IPXL Holdings, LLC v. Amazon.Com,
Inc., 480 F.3d 1877 (Fed. Cir. 2005) and Tancredi v.
Metropolitan Life Ins. Co., 378 F.3d 220 (2d Cir. 2004),
cert. denied, 539 U.S. 942 (2003) (Pet. @ 30, 34, 36, and
37, footnote 11, 38, and 39).

First, the 14 day time period began to run in the
summary judgment cases of Bender and J/PXL and the
dismissal for failure to state a claim case of Tancredi
because they were final judgments and orders from
which an appeal lies. In this Stipulated Dismissal Order
case, the July 19, 2004 Dismissal Order is not a final
Order from which an appeal lies and consequently did
not begin the 14 day time period. (IIA, supra)

Second, the 14 day time period did not begin to run
in this case because, unlike Bender, IXPL, and Tancredi,
the July 19, 2004 Stipulated Dismissal Order in this case
“otherwise provided.” (II B, supra).

Point Reyes also erroneously argues that Ms. Delil
did not fulfill her “duty” to comply with Local Rule 54-6,
which states that “Unless otherwise ordered by the
Court after a stipulation to enlarge time under Civil L.R.
6-2 ..., motions for awards of attorneys’ fees by the
Court must be served and filed within 14 days after
judgment. .. .” (Pet. @35-36)

First, the July 2004 Stipulated Dismissal Order is
not a final Order from which an appeal lies and
consequently Civil Local Rule 54-6 does not apply and
its 14 day time period did not begin to run. (IIA, supra)

32

Second, assuming arguendo that Civil Local Rule
56-4 does apply, the District Court held that it had
“otherwise ordered” in the parties’ Stipulated Dismissal
Order which the District Court signed (IIB, supra.)
Moreover, with respect to the fact that a declaration
prescribed under Local Rule 6-2 did not accompany the
July 19, 2004 Stipulation And Order, Fed. Rule Civ. Proc.
83 states in part:

Rule 83. Rules by District Courts; Judge’s
Directives

(a)(2) A local rule imposing a requirement of
form shall not be enforced in a manner that
causes a party to lose rights because of a
-nonwillful failure to comply with the
requirement.” (Emphasis added).

Here, local rule 6-2(a) upon which Point Reyes relies
is entitled form and content and is subject to Fed. Rule
Civ. Proc. 83, and any failure to file a declaration was
merely one of form that was not willful.

CONCLUSION

Because the District Court’s March 24, 2004
unilateral Conditional Dismissal was not a final,
appealable order, and because the District Court
retained jurisdiction to vacate the Order upon either
parties’ certification within 90 days that the settlement
had not occurred, Ms. Delil was not required to file a
motion for attorneys’ fees. In any event, Point Reyes
waived the issue of whether the March 24, 2004
Conditional Dismissal Order governs whether Ms. Delil

33

timely filed her motion for attorneys’ fees both by its
conduct and its failure to raise the issue at the District
Court level.

Pursuant to the parties’ July 19, 2004 Stipulated
Dismissal Order and applicable law, Ms. Delil’s was not
required to file her attorneys’ fee motion within 14 days
1) because the Stipulated Dismissal Order was not an
order from which an appeal lies and 2) because the
Stipulated Dismissal Order “otherwise provided.”

Neither the District Court Order granting an award
of attorneys’ fees nor the Ninth Circuit’s unpublished
and non precedent setting 2 page memorandum opinion
conflict with federal procedural rules or with case law
from other circuits.

Because there is no compelling reason to grant it,
Ms. Delil respectfully requests that the Court deny Point
Reyes’ Petition for Writ of Certiorari.

Respectfully submitted,

Pau. L.REIN Siwney J. COHEN

Law OFFICES OF Counsel of Record

Pau L REIN SIDNEY J. COHEN

200 Lakeside Drive PROFESSIONAL CORPORATION
Suite A 427 Grand Avenue
Oakland CA 94612 Oakland, CA 94610

(510) 832-5001 (510): 893-6682

Counsel for Respondent

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0737%3A2. Public record. Not legal advice.