Hasbrouck v. Texaco, Inc.

• Decision Date: 10 July 1989
• Docket Number: No. 86-3833,86-3833
• Citation: 879 F.2d 632
• Parties: , 1989-2 Trade Cases 68,661 Ricky HASBROUCK, d/b/a Rick's Texaco, Albert E. Allen, John W. Bevan, Alva N. Blue, Vincent Lies, Henry Rigg, Ricky A. Rigg, Molly Robinson, Gene C. Robinson, James O. Sills, Ralph O. Webber, and Harold Hardwick, Plaintiffs-Appellees, v. TEXACO, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 632

879 F.2d 632

58 USLW 2084, 1989-2 Trade Cases 68,661

Ricky HASBROUCK, d/b/a Rick's Texaco, Albert E. Allen, John W. Bevan, Alva N. Blue, Vincent Lies, Henry Rigg, Ricky A Rigg, Molly Robinson, Gene C. Robinson, James O. Sills Ralph O. Webber, and Harold Hardwick, Plaintiffs-Appellees, v. TEXACO, INC., Defendant-Appellant.

No. 86-3833.

United States Court of Appeals, Ninth Circuit.

Argued July 11, 1988.

Submitted Oct. 12, 1988.

Decided July 10, 1989.

Mark D. Litvack, Texaco, Inc., White Plains, N.Y., and William Fremming Nielsen, Paine, Hamblen, Coffin Brooke & Miller Lucinda Whaley and Robert H. Whaley, Winston & Cashatt, Spokane, Wash., and John S. Ebel, Culp, Guterson & Grader, Seattle, Washington, for plaintiffs-appellees.

Spokane, Wash., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington.

Before POOLE, CANBY and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

OVERVIEW

This appeal is from an order granting attorney's fees of $1,713,191 and costs of $173,111 in an antitrust action that has spanned ten years, required two jury trials and an appellate decision, ¹ and involved a petition for certiorari to the Supreme Court. Ultimately, the plaintiffs received a treble damage award of $1,349,700.

The district court's award of attorneys' fees is affirmed in part, reversed in part, and remanded.

BACKGROUND OF THE LITIGATION

In January 1976, twelve independent retailers of gasoline in Spokane, Washington, filed an action against Texaco, Inc. (Texaco) for price discrimination in violation of the Robinson-Patman Act, 15 U.S.C. Sec. 13(a) (West 1982), and Washington State statutes for consumer protection and unfair practices. The plaintiffs alleged that throughout the 1970's Texaco sold identical gasoline at substantially lower prices to other Texaco retail stations with whom they competed. Three and one-half years of discovery ensued.

After the first month-long trial in August 1979, the plaintiffs received a judgment for $2,551,450.92 in treble damages. However, the district court granted judgment n.o.v. for Texaco, ruling that the instructions on proof of injury and damages were in error. The plaintiffs appealed. We reversed, and remanded for a new trial on both liability and damages. Hasbrouck v. Texaco, 663 F.2d 930, 934 (9th Cir.1981). Texaco unsuccessfully petitioned for rehearing. The Supreme Court denied Texaco's petition for certiorari. 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982).

The second trial took most of June 1985 and resulted in a verdict for the plaintiffs. They were awarded $1,349,700 in treble damages. The trial involved a complicated new defense of "cost justification," which had been precluded in the first trial by Texaco's failure to timely produce supporting discovery materials. The allowance of this defense (which plaintiffs' counsel strongly objected to) required substantial additional discovery. Two years were required to complete discovery and prepare for the second trial. During that time, the plaintiffs tried unsuccessfully to settle with Texaco. The plaintiffs' counsel spent 5,000 hours on the second trial, in addition to the 6,550 hours they spent on the first trial. The plaintiffs were unable to pay their counsel for the second trial, so plaintiffs' counsel expended $124,245.25 of their law firms' funds on the action. This amount had not been reimbursed by 1986, the year attorney's fees were awarded.

Subsequent to the petition for attorney's fees, the parties stipulated that plaintiffs' counsel had spent the time claimed and expended the costs set forth, and that the time and costs claimed were reasonable.

On retrial, the district court judge spent five years on this action. He wrote a detailed twenty-eight page memorandum and order on the petition for attorney's fees. He enhanced the lodestar amount ² of $1,284,896 by one-third "solely because of the uncertainty of the recovery of any fee or compensation in this action." 631

                F.Supp. 258.    Texaco timely appealed from this order
                

STANDARD OF REVIEW

An award of attorney's fees as part of the cost of a successful antitrust suit is mandatory. Twin City Sportservice Inc. v. Charles O. Finley & Co., 676 F.2d 1291, 1312 (9th Cir.), cert. denied, 459 U.S. 1009, 103 S.Ct. 364, 74 L.Ed.2d 400 (1982). A trial court has discretion to decide the amount of a reasonable fee. Its decision will not be disturbed absent an abuse of discretion or clear error of law. Id.

DISCUSSION

Jurisdiction

The appellees challenge the timeliness of Texaco's notice of appeal. A timely notice of appeal is mandatory and jurisdictional. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978).

The district court's order granting attorney's fees and costs was filed on March 21, 1986. Texaco timely filed its notice of appeal on March 27, 1986. However, on March 31, 1986, the appellees moved to clarify the judgment under Federal Rule of Civil Procedure 52(b). ³ The appellees sought clarification of what specific costs the court had awarded, and a determination of what rate of interest should apply to the fee award.

Federal Rule of Appellate Procedure 4(a)(4) applies to a Rule 52(b) motion. Rule 4(a)(4) provides (emphasis added):

If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: ... (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; ... the time for appeal for all parties shall run from the entry of the order ... granting or denying ... such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

Texaco did not file another notice of appeal after the court clarified its March 21, 1986 order. If the appellees' motion for clarification is properly characterized as a Rule 52(b) motion, we lack jurisdiction over the appeal. Texaco, however, contends that Rule 4(a)(4) is inapplicable because the appellees' motion was really a Rule 60(a) motion, ⁴ even though the appellees brought it under Rule 52(b).

The nomenclature the movant uses is not controlling. Sea Ranch Ass'n v. California Coastal Zone Conservation Comm'ns, 537 F.2d 1058, 1061 (9th Cir.1976). This court must decide whether a motion, however styled, is appropriate for the relief requested. Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir.1983).

With this in mind, we consider the relief sought by the March 31, 1986 motion. The fee petition had requested costs from both trials; however, the March 21, 1986 order allowed costs substantially less than those requested. In their motion, the appellees sought to clarify whether the court awarded costs from the second trial only. Further, although the fee petition requested interest at the statutory rate from the date of the judgment of June 25, 1985 (which had specified that interest was to run at 7.7%), the order on the fee petition was silent on this matter. The appellees stated in their motion: "[p]laintiffs by this Motion are not necessarily seeking any reconsideration of the amount awarded, but only a clarification of the Court's opinion."

On May 12, 1986, the district court issued an order clarifying its previous order. The order stated in part:

On March 21, 1986, this court filed its Memorandum Opinion and Order Re: Plaintiffs' Motion for Attorney Fees. In that opinion ... the court stated that the plaintiffs' total costs were $182,895.14. The court disallowed $9,784 of plaintiffs' requested costs and therefore awarded costs of $173,000. This computation was in error in that the figure of $182,895.14 represented only the costs incurred from 1979 through 1985. The court inadvertently omitted to allow the plaintiffs' their costs from 1975 to 1979 in the amount of $125,487.44. If this court now had jurisdiction to amend its award of costs it would do so and include the 1975-1979 costs of $125,487.44.

Plaintiffs further seek clarification of the amount of interest on the costs and attorney fees. It was the intent of the court that interest thereon should be at the rate of 7.7% from June 25, 1985.

A court's failure to memorialize part of its decision is a clerical error. Miller, 709 F.2d at 527. The May 12, 1986 order shows the court inadvertently failed to memorialize part of its decision regarding the costs of the first trial and the rate of interest. The appellees did not request the court to alter or amend the judgment, an action requiring a substantive change, Bordallo v. Reyes, 763 F.2d 1098, 1102 (9th Cir.1985), and the court's clarification does not reflect that a substantive change is necessary. See Miller, 709 F.2d at 527 (contrasting clerical errors with substantive changes that are required by alterations or amendments under Rule 59(e) (motions to alter or amend a judgment)). See also Buchanan v. Stanships, Inc., 485 U.S. 265, ----, 108 S.Ct. 1130, 1131-32, 99 L.Ed.2d 289 (1988) (a motion to alter or amend a judgment to award costs under Rule 54(d) does not come within the meaning of Rule 59(e), because costs do not relate to substantive issues; accordingly, Rule 4(a)(4) is inapplicable) and Durham v. Kelly, 810 F.2d 1500, 1502-03 (9th Cir.1987) (same).

The power to correct clerical errors of omission derives from Rule 60. Miller, 709 F.2d at 527. Therefore, the motion of May 31, 1986, requesting clarification is construed properly under Rule 60(a). Because a Rule 60 motion does not affect the validity of a previously filed notice of appeal, id., Rule 4(a)(4) is inapplicable, and this court has jurisdiction.

Whether Enhancement of the Fee Is Proper After Delaware Valley II

The district court applied a multiplier to the attorneys' fees solely for the...