Appendix — Kriger v. Bowen (No. 08-1565)

Suprem# Court, U.S.

FILED

081565 MAR 27 2009

Nos. 07-35361, 07-353621, 0P 85485, O7-SEuGGt ERK

IN THE

Supreme Court of the United States

IVAN KRIGER, ANDREY SAMOLOVOV, JOSEPH

ESPOSITO

Petitioners

V.

BOWEN PROPERTY MANAGEMENT, JOHN

BALLAS

Respondents

On Petition For Writ Of Certiorari

To The Ninth Circuit Court Of Appeals

APPENDIX

Lawrence A. Weiser

Counsel of Record

Alan L. McNeil

University Legal Assistance

721 North Cincinnati Street

P.O. Box 3528

Spokane, WA 99220-3528

(509)313-5791 Telephone

APPENDIX A

2a

FILED

DEC. 29 2008

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH ESPOSITO: et al., | No. 07-35361

1 D.C. No.

Plaintiff — Appelless, | CV-03-00250 -

| EFS

Vv. |

ORDER

BOWEN PROPERTY MGMT? et al.,

Defendants — Appellatns,

KERREY LEMONS,

Defendant.

|

|

|

|

and |

|

|

|

JOSEPH ESPOSITO: et al., | No. 07-35621

| D.C. No.

Plaintiff — Appelless, | CV-03-00250 -

| [EFS

V.

BOWEN PROPERTY MGMT; et al.. |

3a

Defendants — Appellatns,

and

KERREY LEMONS,

Defendant.

JOSEPH ESPOSITO: et al.,

Plaintiff — Appelless,

V.

BOWEN PROPERTY MGMT; et al.,

Defendants — Appellatns,

and

KERREY LEMONS,

Defendant.

| No. 07-35966

| D.C. No.

| CV-03-00250 -

\EFS

Before: RYMER and KLEINFELD, Circuit Judges.

and HURLEY** District Judge.

The panel has voted unanimously to deny the

petition for rehearing. Judges Rymer and Kleinfeld

4a

have boted to deny the petition for rehearing en

banc, and Judge Hurley has reconmended the same.

The full court has been advised of the petition

for rehearing en banc, and no judge of the court has

requested a voted on the petition for rehearing en

banc. Fed.R.App.P. 35(b).

The petition for rehearing and the petition for

rehearing en banc are DENIED.

** The Honorable Denis R. Hurley, Senior United

States District Judge for the Eastern District of New

York, sitting by designation.

5a

FILED

DEC. 29 2008

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH ESPOSITO: et al.,

Plaintiff — Appelless,

¥.

BOWEN PROPERTY MGMT; et al.,

Defendants — Appellatns,

and

KERREY LEMONS,

Defendant.

JOSEPH ESPOSITO: et al.,

Plaintiff — Appelless,

V.

BOWEN PROPERTY MGMT; et al.,

| No. 07-35361

|D.C. No.

| CV-03-00250 -

[EFS

|

| MEMORAN-

| DUM

| No. 07-35621

{D.C. No.

| CV-03-00250 -

|EFS

|

6a

Defendants — Appellatns,

and

KERREY LEMONS,

Defendant.

JOSEPH ESPOSITO: et al., | No. 07-35966

|D.C. No.

Plaintiff — Appelless, | CV-03-00250 -

|EFS

Vv. |

BOWEN PROPERTY MGMT; et al.,

Defendants — Appellatns,

and

KERREY LEMONS,

Defendant.

Appela from the United States District Court

For the Easter District of Washington

Edward F. Shea, District Judge, Presiding

Argued and Submitted October 23, 2008

Seattle, Washignton

7a

Before: RYMER and KLEINFELD, Circuit Judges,

and HURLEY** District Judge.

It follows from Arnold v. International

Business Machines, 637 F.2d 1350 (9th Cir. 1981),

that the private actors in this case cannot be liable

because there is no evidence that Bowen or Ballas

exercised “control or power” over the police and

prosecutor, or directed their activities. Id. at 1356.

Kriger and Samolovov both testified that their

damages resulted from the criminal case against

them. Their testimony did not establish any

damages from protected activity independent of the

criminal prosecution. Accordingly, Bowen and Ballas

were entitled to judgment as a matter of law. Kriger

and Samolovov’s activities (which we assume for the

sake of this analysis were protected) did not

8a

proximately cause the adverse action, arrest and

prosecution, which resulted in their damages.

We therefore reverse and remand with

instructions to enter judgment in favor of Bowen and

Ballas. We also direct that the attorney’s fees

awards in favor of Kriger and Samolovov be vacated

as they no longer are prevailing parties.

REVERSED and REMANDED.

** The Honorable Denis R. Hurley, Senior United

States District Judge for the Eastern District of New

York, sitting by designation.

9a

APPENDIX B

10a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NATALYA PRACH, IVAN KRIGER,

ANDREY SAMOLOVOV,

ANATOLIY TSIRIBKO and

JOSEPH ESPOSITO,

Plaintiff-Intervenors,

VS.

BOWEN PROPERTY MANAGEMENT,

JOHN BALLAS,

and

KERREY LEMONS,

Defendants.

CASE NO. CV-03-250-EFS

JUDGMENT IN A CIVIL CASE

Jury Verdict: This action came before the Court for a

trial by jury. The issues have been tried and the jury

has rendered its verdict.

ITIS ORDERED AND ADJUDGED that Judgment

is entered in favor of Plaintiffs pursuant to

lla

a Jury Verdict returned on March 23, 2007 as

follows:

the plaintiff NATALYA PRACH recover of the

defendant KERREY LEMONS as agent of Bowen

Property Management, the sum of $3001.00, and her

costs of action, both with interest at the rate of

4.93% as provided by 28 U.S.C.§ 1961; that she

recover of the defendant JOHN BALLAS as agent of

Bowen Property Management, the sum of $2001.00,

and her costs of action, both with interest at the rate

of 4.93% as provided by 28 U.S.C.§ 1961; and that

she recover of the defendant BOWEN PROPERTY

MANAGEMENT the sum of $24,998.00, and her

costs of action, both with interest at the rate of 4.93%

as provided by 28 U.S.C.§ 1961.

12a

The plaintiff IVAN KRIGER/JOSEPH ESPOSITO

recover of the defendant KERREY LEMONS as

agent of Bowen Property Management, the sum of

$1.00 and his costs of action, both with interest at

the rate of 4.93% as provided by 28 U.S.C.§ 1961;

that he recover of the defendant JOHN BALLAS as

agent of Bowen Property Management, the sum of

$1.00, and his costs of action, both with interest at

the rate of 4.93% as provided by 28 U.S.C.§ 1961;

and that he recover of the defendant BOWEN

PROPERTY MANAGEMENT the sum of $79,998.00,

and his costs of action, both with interest at the rate

of 4.93% as provided by 28 U.S.C § 1961.

The plaintiff ANDREY SAMOLOVOYV recover of the

defendant KERREY LEMONS as agent of

Bowen Property Management, the sum of $1.00, and

his costs of action, both with interest at the

rate of 4.93% as provided by 28 U.S.C.§ 1961; that he

recover of the defendant JOHN BALLAS as agent of

Bowen Property Management, the sum of $1.00, and

his costs of action, both with interest at the rate of

4.93% as provided by 28 U.S.C.§ 1961; and that he

recover of the defendant BOWEN PROPERTY

MANAGEMENT the sum oft $4,998.00, and his costs

of action, both with interest at the rate of 4.938% as

provided by 28 U.S.C.§ 1961.

The plaintiff ANATOLIY TSIRIBKO recover of the

defendant KERREY LEMONS as agent of Bowen

Property Management, the sum of $1.00, and his

costs of action, both with interest at the rate of 4.93%

as provided by 28 U.S.C.§ 1961; that he recover cf

l4a

the defendant JOHN BALLAS as agent of Bowen

Property Management, the sum of $1.00, and his

costs of action, buth with interest at the rate of 4.93%

as provided by 28 U.S.C.§ 1961; and that he recover

of the defendant BOWEN PROPERTY

MANAGEMENT the sum of $4,998.00, and his costs

of action, both with interest at the rate of 4.93% as

provided by 28 U.S.C.§ 1961.

March 28, 2007

Date

JAMES R. LARSEN

Clerk

s/Debbie Brase]

(By) Deputy Clerk

Debbie Brasel

APPENDIX C

16a

Filed in the

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

MAR 23 2007

JAMES R. LARSEN, CLERK

SPOKANE, WASHINGTON

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NATALYA PRACH, IVAN KRIGER,

ANDREY SAMOLOVOV, ANATOLIY

TSIRIBKO AND JOSEPH

ESPOSITO, as TRUSTEE FOR

IVAN KRIGER,

Plaintiffs,

VS.

BOWEN PROPERTY MANAGEMENT,

L.r., JOHN BALLAS, and KERRY

LEMONS,

Defendants.

NO. CV-03-0250-EFS

VERDICT FORM

We, the jury, answer the questions submitted by the

Court as follows:

17a

Question 1: has Plaintiff Natalya Prach proved that

she was coerced, intimidated, threatened, or

interfered with on account of that plaintiff having

aided or encouraged any other person in the exercise

or enjoyment of their housing rights under Section

3604

a. by Defendant Kerrey Lemons? Yes

b. by Defendant John Ballas? Yes

c. by Defendant Bowen Property Management?

Yes

If you answered “No” to each defendant then sign

and date the Verdict Form. If you answered “Yes” to

any defendant, answer the remaining questions only

with respect to those defendants to which you

answered “Yes” in Question lL.

18a

ECONOMIC DAMAGES

Question 2: What amount of damages, if any, is

necessary to compensate Plaintiff Natalya Prach for

the value of wages, earnings, employment, other

business opportunities, or other economic damages

up to the present and in the future, that she lost asa

result of

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management? _ $1

a(2). Defendant Kerrey Lemons; for her actions not

as agent of Bowen Property Management? _ $0___

b. Defendant John Ballas’ actions? $1 |

c. Defendant Bowen Property Managemznt’s actions?

__ $4,998.00

19a

NON-ECONOMIC DAMAGES

Question 3: What amount of damages, if any, is

necessary to compensate Plaintiff Natalya Prach for

mental and emotional pain and suffering experienced

and which with reasonable probability will be

experienced n the future as a result of

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management? __$3,000.00_

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management? __$0___

b. Defendant John Ballas’ actions? _$2,000.00____

c. Defendant Bowen Property Management’s actions?

_.$20,000.00_

If, but only if, you answered “Yes” to Question l(a) or

(b) or (c), but did not award any damages against

that defendant in Questions 2 and 3, answer

20a

Question 4 as to that defendant. If you awarded any

damages against a defendant in Questions 2 or 3,

and that defendant is Kerrey Lemons and/or Bowen

Property Management, proceed directly to Question

5.

Question 4; Please assess nominal damages to be

paid Plaintiff Natalya Prach in accordance with the

provisions of Instruction Number 19.

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management?

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management?

b. Defendant John Ballas”?

c. Defendant Bowen Property Management? _ a

2la

Question 5a: Do you find that Kerrey Lemons’

conduct was malicious, oppressive, or in reckless

disregard of Plaintiff Natalya Prach’s rights? NO

Question 5b: Do you find that Bowen Property

Managements’ conduct was malicious, oppressive, or

in reckless disregard of Plaintiff Natalya Prach’s

rights? NO

Question 6: If you answered “Yes” to Question 5a or

5b, please assess punitive damages to be paid to

Natalya Prach by that defendant:

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management”

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management? __

b. Defendant Bowen Property Management?

22a

DATE: 3-23-07 PRESIDING JUROR __

23a

Filed in the

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

MAR 23 2007

JAMES R. LARSEN, CLERK

SPOKANE, WASHINGTON

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NATALYA PRACH, IVAN KRIGER,

ANDREY SAMOLOVOV, ANATOLIY

TSIRIBKO AND JOSEPH

ESPOSITO, as TRUSTEE FOR

IVAN KRIGER,

Plaintiffs,

VS.

BOWEN PROPERTY MANAGEMENT,

L.P., JOHN BALLAS, and KERRY

LEMONS,

Defendants,

NO. CV-03:0250-EFS

VERDICT FORM

We, the jury, answer the questions submitted by the

Court.as follows:

24a

Question 1: has Plaintiff Ivan Kriger/Joseph Esposito

proved that he was coerced, intimidated, threatened,

or interfered with on account of that plaintiff having

aided or encouraged any other person in the exercise

or enjoyment of their housing rights under Section

3604

d. by Defendant Kerrey Lemons? Yes

e. by Defendant John Ballas? Yes

f. by Defendant Bowen Property Management?

Yes

If vou answered “No” to each defendant then sign

and date the Verdict Form. 'f you answered “Yes” to

any defendant, answer the remaining questions only

with respect to those defendants to which you

answered “Yes in Question 1

ECONOMIC DAMAGES

Question 2: What amount of damages, if any, is

necessary to compensate Plaintiff Ivan Kriger/Joseph

“sposito for the value of wages, earnings

employment, other business opportunities, or other

economic damages up to the present and in the

future, that he lost as a result of

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management? _ $1.

a(2). 1 efendant Kerrey Lemons; for her actions not

as agent of Bowen Property Management? _ $0

b. Defendant John Ballas’ actions? >]

c. Defendant Bowen Property Management's actions’?

__ $79,998.00

NON-ECONOMIC DAMAGE

26a

Question 3: What amount of damages, if any, is

necessary to compensate Plaintiff lvan Kriger/Joseph

Esposito for mental and emotional pain and suffering

experienced and which with reasonable probability

will be experienced in the future as a result of

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management? __ $0_

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management? $0__

b. Defendant John Ballas’ actions? _ $0___

c. Defendant Bowen Property Management's actions?

SO

If, but only if, you answered “Yes” to Question 1(a) or

(b) or (c), but did not award any damages against

that defendant in Questions 2 and 3, answer

Question 4 as to that defendant. If you awarded any

27a

damages against a defendant in Questions 2 or 3,

and that defendant is Kerrey Lemons and/or Bowen

Property Management, proceed directly to Question

3.

Question 4: Please assess nominal damages to be

paid Plaintiff Ivan Kriger/Joseph Esposito in

accordance with the provisions of Instruction

Number 19.

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management”? ms

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management?

b. Defendant John Ballas? ___

c. Defendant Bowen Property Management? __

28a

Question 5a: Do you find that Kerrey Lemons’

conduct was malicious, oppressive, or in reckless

disregard of Plaintiff Ivan Kriger’s/Joseph Esposito’s

rights? NO

Question 5b: Do you find that Bowen Property

Managements’ conduct was malictous, oppressive, or

in reckless disregard of Plaintiff Ivan Kriger’s/Joseph

Espesito’s rights? NO

Question 6: [f you answered “Yes” to Question 5a or

5b, please assess punitive damages to be paid to Ivan

Kriger/Joseph Esposito by that defendant:

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management?

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management? _

b. Defendant Bowen Property Management? _

29a

DATE: 3-23-07 PRESIDING JUROR__

30a

Filed in the

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

MAR 23 2007

JAMES R. LARSEN, CLERK

SPOKANE, WASHINGTON

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NATALYA PRACH, IVAN KRIGER,

ANDREY SAMOLOVOV, ANATOLIY

TSIRIBKO AND JOSEPH

ESPOSITO, as TRUSTEE FOR

IVAN KRIGER,

Plaintiffs,

Vs.

BOWEN PROPERTY MANAGEMENT,

L.P., JOHN BALLAS, and KERRY

LEMONS,

Defendants.

NO. CV-03-0250-EFS

VERDICT FORM

We, the jury, answer the questions submitted by the

Court as follows

3la

Question 1: has Plaintiff Andrey Samolovov proved

that he was coerced, intimidated, threatened, or

interfered with on account of that plaintiff having

aided or encouraged any other person in the exercise

or enjoyment of their housing rights under Section

3604

g. by Defendant Kerrey Lemons? Yes

h. by Defendant John Ballas? Yes

i. by Defendant Bowen Property Management?

Yes

If you answered “No” to each defendant then sign

and date the Verdict Form. If you answered “Yes” to

any defendant, answer the remaining questions only

with respect to those defendants to which you

answered “Yes” in Question 1.

32a

ECONOMIC DAMAGES

Question 2: What amount of damages, if any, is

necessary to compensate Plaintiff Andrey Samolovov

for the value of wages, earnings, employment, other

business opportunities, or other economic damages

up to the present and in the future, that he lost asa

result of

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management? _ $1.

a(2). Defendant Kerrey Lemons; for her actions not

as agent of Bowen Property Management? $0___

b. Defendant John Ballas’ actions? $1

c. Defendant Bowen Property Management’s actions?

___ $4,998.00 ;

33a

NON-ECONOMIC DAMAGES

Question 3: What amount of damages, if any, is

necessary to compensate Plaintiff Andrey Samolovov

for mental and emotional pain and suffering

experienced and which with reasonable probability

will be experienced in the future as a result of

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management? __$0_

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management? _ $0___

b. Defendant John Ballas’ actions? $0 __

c. Defendant Bowen Property Management’s actions?

oe | ee

If, but only if, you answered “Yes” to Question I(a) or

(b) or (c), but did not award any damages against

that defendant in Questions 2 and 3, answer

34a

Question 4 as to that defendant. If you awarded any

damages against a defendant in Questions 2 or 3,

and that defendant is Kerrey Lemons and/or Bowen

Property Management, proceed directly to Question

5.

Question 4; Please assess nominal damages to be

paid Plaintiff Andrey Samolovov in accordance with

the provisions of Instruction Number 19.

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management?

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management? -

b. Defendant John Ballas?

c. Defendant Bowen Property Management? _

35a

Question 5a: Do you find that Kerrey Lemons’

conduct was malicious, oppressive, or in reckless

disregard of Plaintiff Andrey Samolovov’s rights? NO

Question 5b: Do you find that Bowen Property

Managements’ conduct was malicious, oppressive, or

in reckless disregard of Plaintiff Andrey Samolovov’s

rights? NO

Question 6: If you answered “Yes” to Question 5a or

5b, please assess punitive damages to be paid to

Andrey Samolovov by that defendant:

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management?

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management?

b. Defendant Bowen Property Management?

36a

DATE: 3-23-07 PRESIDING JUROR_

37a

Filed in the

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

MAR 23 2007

JAMES R. LARSEN, CLERK

SPOKANE, WASHINGTON

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NATALYA PRACH, IVAN KRIGER,

ANDREY SAMOLOVOV, ANATOLIY

TSIRIBKO AND JOSEPH

ESPOSITO, as TRUSTEE FOR

IVAN KRIGER,

Plaintiffs,

vs.

BOWEN PROPERTY MANAGEMENT,

L.P., JOHN BALLAS, and KERRY

LEMONS,

Defendants.

NO. CV-03-0250-°E}'S

VERDICT FORM

We, the jury, answer the questions submitted by the

Court as follows:

38a

Question 1: has Plaintiff Anatoliy Tsiribko proved

that he was coerced, intimidated, threatened, or

interfered with on account of that plaintiff having

aided or encouraged any other person in the exercise

or enjoyment of their housing rights under Section

3604

j. by Defendant Kerrey Lemons? Yes

k. by Defendant John Ballas? Yes

|. by Defendant Bowen Property Management?

Yes

If you answered “No” to each defendant then sign

and date the Verdict Form. If you answered “Yes” to

any defendant, answer the remaining questions only

with respect to those defendants to which you

answered “Yes” in Question 1

39a

ECONOMIC DAMAGES

Question 2: What amount of damages, if any, is

necessary to compensate Plaintiff Anatoliy Tsiribko

for the value of wages, earnings, employment, other

business opportunities, or other economic damages

up to the present and in the future, that he lost as a

result of

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management? _ $1.

a(2). Defendant Kerrey Lemons; for her actions not

as agent of Bowen Property Management? __ $0_

b. Defendant John Ballas’ actions? —_—_ $1

c. Defendant Bowen Property Management's actions?

$4,998.00 __

A0a

NON-ECONOMIC DAMAGES

Question 3: What amount of damages, if any, is

necessary to compensate Plaintiff Anatoliy Tsiribko

for mental and emotional pain and suffering

experienced and which with reasonab!‘e probability

will be experienced in the future as a result of

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management? __ $0_

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management? _$0___

b. Defendant John Ballas’ actions? _ $0___

c. Defendant Bowen Property Management’s actions?

50

If, but only if, you answered “Yes to Question l(a) or

(b) or (c), but did not award any damages against

that defendant in Questions 2 and 3, answer

4la

Question 4 as to that defendant. If you awarded any

damages against a defendant in Questions 2 or 3,

and that defendant is Kerrey Lemons and/or Bowen

Property Management, proceed directly to Question

Question 4; Please assess nominal damages to be

paid Plaintiff Anatoliy Tsiribko in accordance with

the provisions of Instruction Number 19.

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management?

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Propertv Management?

b. Defendant John Ballas? _

c. Defendant Bowen Property Management?

Question 5a: Do you find that Kerrey Lemons’

conduct was malicious, oppressive, or in reckless

disregard of Plaintiff Anatoliy Tsiribko’s rights? NO

Question 5b: Do you find that Bowen Property

Managements’ conduct was malicious, oppressive, or

in reckless disregard of Plaintiff Anatoliy Tsiribko’s

rights? NO

Question 6: If you answered “Yes” to Question 5a or

Sb, please assess punitive damages to be paid to

Anatoliy Tsiribko by that defendant:

a(1). Defendant Kerrey Lemons’ for her actions as an

agent of Bowen Property Management? Tone

a(2). Defendant Kerrey Lemons’ for her actions not

as agent of Bowen Property Management? any

b. Defendant Bowen Property Management? ___

43a

DATE: 3-23-07 PRESIDING JUROR

APPENDIX D

Filed in the

U.S. District Court

Eastern District of Washington

AUG 30 2004

JAMES R. LARSEN, CLERK

RICHLAND, WASHINGTON

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NATALYA PRACH, IVAN KRIGER,

ANDREY SAMOLOVOV, ANATOLIY

TSIRIBKO AND JOSEPH

ESPOSITO, as TRUSTEE FOR

IVAN KRIGER,

Plaintiffs,

YS.

BOWEN PROPERTY MANAGEMENT,

L.P., JOHN BALLAS, and KERRY

LEMONS,

Defendants.

NO. CV-03-0250-EFS

ORDER GRANTING IN PART PLAINTIFFS’

MOTIONS FOR ATTORNEYS FEES AND

APPORTIONING INTERPRETER COSTS

On June 12, 2007, a telephonic hearing was held in

the above captioned matter. Plaintiffs Natalya Prach

and Anatoliy Tsiribko were represented by Jeffry

Finer and Leigh Talley. Plaintiffs Andrey Samolovov

and Joseph Esposito, as trustee for Ivan Kriger, were

represented by University Legal Assistance

(hereinafter “ULA”). Eric M. Steven and Aaron M.

Naccarato appeared on behalf of Defendants Bowen

Property Management, John Ballas, and Kerry

Lemons.

Before the Court were Plaintiffs’ Motions for

Attorneys Fees (Ct. Recs. 545, 546, 515, and 495) and

Christopher M. Grimes’ motion to Strike Declaration

of Ivan Kriger (Ct. Rec. 562). On behalf of Plaintiffs

Prach and Tsiribko, Jeffry K. Finer requests

$78,390.00 in fees (Ct. Rec. 545). On behalf of the

same Plaintiffs, Leigh N. Talley requests $17,300.00

in fees (Ct. Rec. 546-3). ULA seeks $75,472.25 in fees

on behalf of Plaintift-Intervenors Kriger, Samolovov,

47a

and Esposito (Ct. Rec. 586 at 2). Christopher M.

Grimes, former counsel! for Plaintiffs Tsiribko,

Samolovov, Kriger, and Prach, seeks $42,000.00 in

fees and $1,473.28 in costs for a total of $43,473.28

(Ct. Rec. 496-3).

Defendants oppose all of the motions, and specifically

in response to Mr. Grimes’ motion, they argue he has

no standing to recover attorneys fees on his own

behalf because he is not a “prevailing party.”

In connection with the other motions, Defendants

argue the rates of ULA are unreasonable, that Mr.

Talley’s “block billing” at $1,400.00 a day for trial

time is unreasonable, and that Mr. Finer should not

be awarded fees for time spent on a criminal matter

for Ms. Prach. Presumably in an effort to shield the

individual Defendants from financial harm.

Defendants argue Ms. Lemons and Mr. Ballas should

48a

not be liable for attorneys’ fees because they were

only liable to Plaintiffs Tsiribko, Esposito and Kriger

for $1.00 in economic damages.

After hearing oral argument and considering the

submitted material and relevant authority, the Court

was fully informed. This Order serves to memorialize

and supplement the Court’s oral ruling granting in

part Plaintiffs’ Motions for Attorneys Fees, while

holding in abeyance Mr. Grimes’ motions. In

addition, the Court apportions the trial interpreter

costs.

While a de minimis victory is not a bar to the

determination of a plaintiff's prevailing party status,

it is part of the reasonable fee analysis under Farrar.

Accordingly, the Court will analyze Defendants’ "de-

minimis" arguments below

A. Attorneys Fees

49a

Plaintiffs prevailed in an action under the Fair

Housing Act (hereinafter "FHA") and therefore seek

attorneys’ fees from Defendants under Federal Rule

of Civil Procedure 54(d) and 42 U.S.C. § 38613(c)(2).

Rule 54(d) states:

Except when express provision therefore is

made either in a statute of the United States

or in these rules, costs shall be allowed as of

course to the prevailing party unless the court

otherwise directs, but costs against the United

States, its officers, and agencies shall be

imposed only to the extent permitted by law

Costs may be taxed by the clerk on one day’s

notice. On motion served within 5 days

thereafter, the action of the clerk may be

reviewed by the court. (emphasis added).

50a

Under 42 U.S.C. § 3613(c)(2), the court, in its

discretion, may allow the prevailing party in an FHA

action a reasonable attorneys fee and costs. To

become a prevailing party under Farrar v. Hobby,

506 U.S. 103 (1992), a plaintiff must obtain actual

relief on the merits of the claim and such relief must

affect the behavior of the defendant towards the

plaintiff. Plaintiffs in this case qualify as "prevailing

parties" because they received actual relief on the

merits and obtained a monetary judgment which

affects the behavior of the Defendants towards the

Plaintiff (2.e., Defendant must pay Plaintiff).

The starting point to determine reasonable attorney

fees tor the prevailing party in an FHA suit is “the

number of hours reasonably expended on the

litigation multiphed by a reasonable hourly rate.’

Henslev V. Eckerhart. 46] U.S. 424 433 (1983)

(setting standard for fee award under 42 U.S.C. §

1988); see also Thorne v. City of El Segundo, 802

F.2d 1131, 1141 n.10 (9th Cir. 1986) (finding Hens/ey

applicable “in all cases in which Congress has

authorized an award of fees to a ‘prevailing party.”

(citations omitted). After the product of reasonable

hours times reasonable rate is determined (the

lodestar figure), the court next may “adjust the fee

upward or downward, including the important factor

of the ‘results obtained.” Hensley, 461 U.S. 424 at

434.

[n making any adjustments, two questions must be

asked and answered. First, “did the plaintiff fail to

prevail on claims that were unrelated to the claims

on which he succeeded?” /d. If so, then work on the

unsuccessful claim which cannot be attributed to the

ultimate result achieved should not be part of the

reasonable attorney fees. Jd. Second, “did the

plaintiff achieve a level of success that makes the

hours reasonably expended a satisfactory basis for

making a fee award?” Jd. A court may award the

entire fee requested, limited to cases with “excellent

results,” if it would be unjust to reduce the fee

“simply because the plaintiff failed to prevail on

every contention raised.” Jd. at 435. On the other

hand, if success is partial or limited, awarding fees

for the entire litigation is likely excessive. /d. at 436.

For partial or limited success, the “court may

attempt to identify specific hours that should be

eliminated, or it may simply reduce the award to

account for the limited success.” /d. at 436-437.

Where success 1s minor or technical, the reasonable

attorney fees may be extremely limited. /d. at 440

n.14. 2 Johnson v. Georgia Highway Express, Ln

448 F.2d 714 (5th Cir. 1974) (adopted by the Ninth

Circuit in Kerr v. Screen Extras Gutld, Inc., 526 F.2d

67, 70 (9th Cir. 1975)). The Court recognizes that

consideration of some of the JoAnson factors is

forbidden or cast into doubt. See, e.g. Davis v. City

and County of San Francisco, 976 F.2d 1536, 1546

(9th Cir. 1992) (citations omitted) (consideration of

contingent fee not appropriate and doubtful that

desirability” of the case is appropriate for

consideration). Further, some of the J/JoAnson factors

uch as time and labor, novelty o1 difficulty

necessary skill, preclusion of other employment,

by the Hens/ey analysis. See Pennsv/vania v. Del

| lley Citizens Council for Clean Aiur, 478 U.S. 546

966 (1986) ('the lodestar figure includes most, 1f not

1} "

all f the relevant factors constituting a ‘reasonable

54a

attorney's fee,”) but see McGinnis v. Kentucky Fried

Chicken, 51 F.3d 805, 809 (9th Cir. 1995) (suggesting

that Aerrremains good law, although rote recitation

of factors is unnecessary).

In determining whether the hours charged are

reasonable, the court should consider the Johnson?

factors and whether the hours are “excessive,

redundant, or otherwise unnecessary." Hensley, 461

U.S. 424. If counsel's time records are insufficient to

distinguish the time spent on particular claims, then

the fee may be reduced. Id. at 437 n,12

In deciding whether the charged rate 1s reasonable,

the court is to rely upon affidavits submitted by the

parties and by the judges’ own experience regarding

what 1s a reasonable rate in the district. B/um v

Stenson, 465 US. 866 (1984). The quality of counsel!

and novelty and complexity of the case should

ordinarily be reflected in the lodestar rate, not in an

upward adjustment of the fee, which poses the risk of

double counting. See Pennsylvania v. Del. Valley

Citizens’ Council for Clean Air, 478 U.S. 546, 566

(1986). Non-monetary gain may also be taken into

account. Arbor Hill Concerned Citizens

Neighborhood Ass'n v. County of Albany, 484 F.3d

162 (2nd Cir. 2007)(acknowledging a reasonable,

paying client might consider whether an attorney is

willing to offer services at a lower rate or even pro

bono to promote the attorney’s reputation or other

societal goals}. Finally, the overall purpose of

awarding costs to the prevailing party 1s to

encourage the individual to act as a “private attorney

general.”

Attorneys may ‘recover more than the benefit to

their client would make reasonable. because (such

actions) also confer benefits on others throughout

society...” McGinnis v. Kentucky Fried Chicken, 51

F.3d 805, 809 (9th Cir. 1995) at 810. “But the benefit

is not infinite. What the lawyers do for their actual

client is an important measure of ‘extent of success.”

Id. Thus, the degree of success is relevant to a fee

award, but strict proportionality between relief

obtained and attorney fees is not required. Aiverside

v. Riviera, 477 U.S. 561, 574 (1986).

1) Plaintiff-Intervenors Kriger, Samolovov, and

Esposito's Motion for Attorneys Fees (ULA)

ULA represented Plaintiff-Intervenors Kriger,

Samolovov, and Esposito. Their fees are calculated so

that one legal intern and one supervising attorney

collectively are billed at the rate of one experienced

attorney (Ct. Rec. 517 at 3). Two interns worked on

the case at trial. For pre-trial work, the supervising

attorney billed at $100/hour while the intern billed at

$75/hour, totaling $175/hr. For trial work, the

supervising attorneys billed at $225/hour while the

interns billed at $75/hour, totaling $300/hr each for

trial work ($600/hr total for the two attorney/intern

teams).

After the hearing, ULA reconsidered the

reasonableness of the amount requested and

retracted its bill for fees for one of the supervising

attorneys at trial, reducing the total amount of fees

to $75,472.25 (Ct. Rec. 586 at 2). ULA also reduced

its copying charges to a rate of $0.09 (instead of

$0.50), which reduces its total copy charge request to

$154.08.

Defendants primarily seek denial of the Plaintiffs’

Motion for Attorneys Fees on the grounds that such

fees are unreasonable under Farrar v. Hobby, 506

58a

U.S. 103, 115 (1992), because Plaintiffs Kriger,

Samolovov, and Tsiribko were merely awarded

nominal damages ($1.00) (Ct. Rec. 482, 484 and 486).

Under Hens/ey, where one party obtains “relief of

significant import” rather than nominal relief, an

award of reasonable fees is proper. The Court finds

the $1.00 award was not nominal in the same sense

as the damages were in Farrar. Defendants Lemons

and Ballas were ruled against as “agent(s) of Bowen

Property Management” (Ct. Rec 448 at 1) and were

integrally involved in the

events which led to the instant litigation. There were

no nominal damages awarded on any of the jury

verdict forms (see Ct. Rec. 480 at 4, Ct. Rec. 482 at 4,

Ct. Rec. 484 at 4, and Ct. Rec. 486 at 4: see also Ct.

Rec. 471 at 24). Furthermore, there is a note from

the jury inquiring whether an amount comes directly

59a

out of the individual’s pocket (Ct. Rec. 475),

indicating the jury found actual, compensable

damages but chose to place the burden of payment on

Bowen Property Management. Plaintiffs Kriger,

Samolovov, and Tsiribko's victory was neither

technical nor de minimis; therefore, it is not unjust to

award reasonable attorneys fees against all

Defendants. See Corder v. Gates, 947 F.2d 374, 376

(9th Cir. 1991) (citing Sab/e Comm. Inc v. Pacific,

890 F.2d 184 at 194 (9th Cir. 1989)). The Court finds

the jury award was an effort to spare the individual

Defendants financial hardship while still deciding

that Plaintiffs were entitled to relief on the merit of

their claims; thus the attorney fees shall be shared

equally by all Defendants.

Because the Court finds an awar< of attorneys fees is

just, the Court conducted a Hens/ey analysis to

60a

determine what fees were reasonable. After

reviewing the hours submitted by ULA, the Court

finds the supervising pre-trial attorneys’ hours

(148.8) are reasonable, however the following entries

have been reduced:

Requested Awarded

legal intern pre-trial hours: 507.5 300

supervising attorney trial hours: 156.8 100

legal intern trial hours: 152.5 118

Accordingly, the Court awards ULA $68,730.00 in

attorneys fees to be paid equally by all Defendants;

Plaintiff-Intervenors' Motion for Attorneys Fees is

granted in part.

(2) Plaintiffs Prach and Tsiribko’s Motion for

Attorneys Fees (Leigh N. Talley)

Mr. Talley seeks $17,300.00 in fees. Defendants

object to Mr. Talley’s flat rate of $1,400.00 per trial

6la

day instead of specifying an hourly rate, which is

$150 per hour for all other work (Ct. Rec. 546-3).

With respect to both motions brought by Plaintiffs

Prach and Tsiribko, Defendants object to the

reasonableness of any fee on the grounds that these

plaintiffs were only awarded by the jury 30% of what

they sought, thereby diminishing the “results

obtained” factor of the reasonableness analysis.

While the amount awarded was smaller than what

Plaintiffs were seeking, it was still a substantial

amount (over $80,000.00). As prevailing parties,

Plaintiffs are entitled to reasonable witeeeans fees.

The Court finds a reasonable amount is $1,350.00

per day (or approximately $150 per hour) for Mr.

Talley’s trial time. Furthermore, the Court awards

Mr. Talley half the amount he requested on March 7

and February 28, 2001 respectively. Accordingly, the

62a

Court awards Plaintiffs Prach and Tsiribko

$16,525.00 for attorneys fees of Leigh Talley to be

paid equally by all Defendants; the motion is granted

in part.

(3) Plaintiffs Prach and Tsiribko’s Motion for

Attorneys Fees (Jeffry K. Finer)

Jeffry K. Finer seeks $78,390.00 in fees. Defendants

object to portions of Mr. Finer’s bill, which includes

time spent on a criminal matter for Ms. Prach. The

number of hours spent on the criminal matter is

10.3, which amounts to $2,060.00 at the attorney’s

$200 per hour rate. The Court finds the inclusion of

time spent on the criminal matter is unreasonable

and should be subtracted. The Court awards the

adjusted amount, which 1s $76,330.00 to be paid by

all Defendants equally

63a

(4) Plaintiffs Kriger, Samolovov, and Tsiribko’s

Motion for Attorneys Fees (Christopher M. Grimes)

and Motion to Strike Declaration

As the Court explained at the hearing, the Court

finds an evidentiary hearing is necessary to resolve

these motions. Accordingly, these motions will be

held in abeyance until the evidentiary hearing set

for August 22, 2007, at 10:00 a.m. in Spokane. The

parties are directed to the Court’s June 15, 2007,

Order (Ct. Rec. 587).

B. Interpreter Costs

On November 15, 2005, the Court entered an Order

finding that appointment of an interpreter for trial

was appropriate and noting that such expenses were

to be apportioned under 18 U.S.C. § 1828(c). (Ct. Rec

265.) The interpreter fees at trial totaled $6,390.00;

however, the parties are also responsible for the

64a

interpreter cancellation fees of $1,420. Therefore, the

total interpreter costs to be apportioned is $7,810.

Accordingly, IT IS ORDERED:

(1) Plaintiffs Prach and Tsiribko’s Motion for

Attorneys Fees (Ct. Rec. 545) is GRANTED IN

PART. Defendants shall pay Plaintiffs Prach and

Tsiribko $76,330.00 for Mr. Finer plus costs.

(2) Plaintiffs Prach and Tsiribko’s Motion for

Attorneys Fees (Ct. Rec. 546) is GRANTED IN

PART. Defendants shall pay Plaintiffs Prach and

Tsiribko $16,525.00 for Mr. Talley plus costs

(3) Plaintiff-Intervenors Kriger, Samolovov, and

Esposito’s Motion for Attorneys Fees (Ct. Rec. 515) is

GRANTED IN PART.

65a

Defendants shall pay Plaintiff-Intervenors Kriger,

Samolovov, and Esposito $68,730.00 for ULA plus

costs.

(4) Christopher M. Grimes’ Motion to Strike

Declaration is HELD IN ABEYANCE until August

22, 2007, at 10 a.m. in Spokane.

(5) The cost of the interpreters ($7,810) is

proportioned between the parties

IT IS SO ORDERED. The District Court Executive is

directed to enter this Order and furnish copies to

counsel and the Financial Administrator

DATED this 3rd day of July 2007

S/ Edward F. Shea

EDWARD F. SHEA

UNITED STATES DISTRICT JUDGE