Lobatz v. U.S. W. Cellular

• Decision Date: 02 May 2000
• Docket Number: No. 99-55385,99-55385
• Citation: 222 F.3d 1142
• Parties: (9th Cir. 2000) MICHAEL A. LOBATZ, MD, individually; WILLIAM FOSTER; DEBORAH FOSTER, individually, and on behalf of all others similarly situated, Plaintiffs, PAMELA HAVIRD, Objector-Appellant, v. U.S. WEST CELLULAR OF CALIFORNIA, INC., a California corporation; AIRTOUCH CELLULAR, Airtouch Cellular Company, a California Corporation, DefendantsAppellees. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1142

222 F.3d 1142 (9th Cir. 2000)

MICHAEL A. LOBATZ, MD, individually; WILLIAM FOSTER; DEBORAH FOSTER, individually, and on behalf of all others similarly situated, Plaintiffs, PAMELA HAVIRD, Objector-Appellant, v. U.S. WEST CELLULAR OF CALIFORNIA, INC., a California corporation; AIRTOUCH CELLULAR, Airtouch Cellular Company, a California Corporation, DefendantsAppellees.

No. 99-55385

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted May 2, 2000--Pasadena, California

Filed August 25, 2000

[Copyrighted Material Omitted]

J. Dennis Faucher, San Diego, California, for the objectors-appellants.

J. David Franklin and Richard Segal, San Diego, California, for the defendants-appellees.

Appeal from the United States District Court for the Southern District of California, D.C. No. CV-94-01311-BTM; Barry T. Moskowitz, District Judge, Presiding

Before: David R. Thompson, William A. Fletcher, and Raymond C. Fisher, Circuit Judges.

THOMPSON, Circuit Judge:

OVERVIEW

The district court approved a class action settlement in a suit brought by the class plaintiffs against U.S. West Cellular of California, Inc. and AirTouch Cellular. In two separate fee awards, the court awarded class counsel attorney fees of $923,390.97 and $1,000,000, in addition to costs. Pamela Havird, a member of the class, appeals the district court's approval of the settlement and the final award of fees and costs.

Because Havird's notice of appeal from the judgment approving the settlement was untimely, and the "unique circumstances" doctrine does not apply to save the appeal, see Thompson v. INS, 375 U.S. 384 (1964), we lack jurisdiction to consider Havird's appeal from the judgment approving the settlement. However, Havird's notice of appeal from the final $1,000,000 attorney fee and cost award was timely, and she has standing to prosecute that appeal even though the attorney fees and costs were payable by the defendants independent of the class settlement. We hold the district court did not err in denying Havird's requested discovery, nor in the method it employed to review class counsel's request for attorney fees and costs, and we affirm that award by the district court.

FACTS AND PROCEEDINGS

In 1994, Michael A. Lobatz filed a class action against AirTouch Cellular ("AirTouch") and U.S. West Cellular of California, Inc. ("U.S. West") (collectively referred to as "the defendants") alleging that they violated state and federal law by conspiring to fix prices for cellular phone service in the San Diego, California market. The class (sometimes hereafter referred to as "the plaintiffs") was certified, and Kolodny & Pressman A.P.C., Miller Faucher Cafferty and Wexler LLP, and Hagens & Berman, S.P. (collectively "class counsel") were appointed class counsel.

In 1997, the district court approved a settlement between the plaintiffs and U.S. West ("U.S. West settlement"). U.S. West agreed to pay the plaintiffs $4 million in cash but had the option to convert the cash settlement to an in-kind settlement if the plaintiffs reached an in-kind settlement with AirTouch. At that time, the district court awarded class counsel costs and $923,390.97 in attorney fees.¹ In 1998, the plaintiffs reached an in-kind settlement with AirTouch ("AirTouch settlement") worth approximately $4.3 million. The parties moved for approval of the settlement, class counsel filed their request for attorney fees and costs, and U.S. West moved to convert its cash settlement to an in-kind settlement. Class member Pamela Havird objected to the settlement and to class counsel's fee and cost request. She sought discovery of the settlement negotiations and class counsel's contemporaneous time records, requests the district court denied.

On October 22, 1998, the district court approved the AirTouch settlement and the conversion of the U.S. West settlement to an in-kind settlement similar to the AirTouch settlement. On October 30, 1998, the district court issued its final order approving the settlement. The court stated that while it maintained jurisdiction over the issue of attorney fees and costs, its order approving the settlement was a final judgment.

On January 6, 1999, the district court granted class counsel's request for attorney fees and costs and denied Havird's request for attorney fees and costs. The court found that class counsel was entitled to attorney fees of $1,777,449.50 for the entire litigation. Because the district court had previously awarded class counsel $923,390.97 in attorney fees at the time it approved the U.S. West settlement, it awarded class counsel the balance of $854,058.60. On May 4, 1999, the district court reconsidered the attorney fee award, and applied a multiplier of 1.082 to get a cumulative lodestar amount of $1,923,395.80. After subtracting the previous award, the remaining balance was $1,000,004.90. AirTouch had agreed that it would not contest a request of $1,000,000 in fees and $296,938.54 in costs, and that it would pay class counsel those fees and costs separately from the class settlement. Pursuant to this agreement, class counsel requested these amounts and they were approved by the court².

On February 4, 1999, Havird filed her notice of appeal. After the district court issued its May 4, 1999 order applying the multiplier to the attorney fee award, she amended her notice of appeal. In her briefs on appeal, Havird argues the district court (1) should not have approved the settlement because it was not fair, reasonable, and adequate; (2) erred by refusing to allow discovery; (3) should not have awarded class counsel any attorney fees because they intentionally and substantially overstated the hours they spent prosecuting the case; and (4) awarded class counsel excessive attorney fees and costs.

DISCUSSION

I. Jurisdiction

Rule 4(a) of the Federal Rules of Appellate Procedure requires that an appellant file her notice of appeal "within 30 days after the judgment or order appealed from is entered." The Supreme Court has adopted a "bright-line rule. . . that a decision on the merits is a `final decision' for purposes of S1291 whether or not there remains for adjudication a request for attorney's fees attributable to the case." Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03 (1988); see also Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir. 1988) ("Where an appellant fails to file a notice of appeal within the initial 30-day period set forth in rule 4(a)(1), and likewise fails effectively to move for an extension of time within the 30-day grace period set forth in rule 4(a)(5), this court must dismiss the appeal for lack of appellate jurisdiction.").

Here, the district court entered its final judgment approving the class settlement on October 30, 1998. Havird did not file her notice of appeal until February 4, 1999 -more than three months later. Therefore, pursuant to Budinich, Havird's appeal of the district court's approval of the settlement is untimely.

To save her untimely appeal, Havird urges us to apply the "unique circumstances" doctrine. We decline to do so. The Supreme Court has held that the "unique circumstances" doctrine applies "only where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done." Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989); see also Thompson v. INS, 375 U.S. 384 (1964); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962). In Thompson, the petitioners filed a post-trial motion two days late, which the district court mistakenly said was timely. As a result, the petitioners did not file their notice of appeal until after the district court ruled on the untimely post-trial motion. Consequently, the notice of appeal was filed after the deadline when it should have been filed. The Court reasoned that because the post-trial motion, if timely filed, would have postponed the deadline for filing the notice of appeal and the district court had stated that the post-trial motion was timely, the unique circumstances doctrine applied. See Thompson, 375 U.S. at 387. Therefore, the Court held that "petitioner's appeal may be heard on the merits." Id.

By contrast, in Osterneck, after the district court entered its final judgment, the petitioners filed a timely motion for prejudgment interest and then filed a notice of appeal. The district court granted the petitioners' request for prejudgment interest, and amended its previous judgment, but the petitioners did not file a new notice of appeal. The district court's amended judgment rendered petitioners' earlier notice of appeal ineffective. The Court held that the unique circumstances doctrine did not apply because the district court had not assured the petitioners that their earlier notice of appeal was sufficient. See Osterneck, 489 U.S. at 178-79.

Here, Havird did not file a motion that would have delayed the time to file a notice of appeal. Even if the district court stated it would notify her counsel if it entered final judgment, the district court did not tell Havird her appeal would be timely or represent to her that the time to file a notice of appeal would be extended. Cf. In re Mouradick , 13 F.3d 326, 329 (9th Cir. 1994) ("Under the doctrine of unique circumstances, an appellate court may consider an untimely appeal where `a court has affirmatively assured a party that its appeal will be timely.' " (citations omitted)); see also Fed. R. Civ. P. 77(d) ("Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure.").

The unique circumstances doctrine does not apply in this case. We do not have jurisdiction to entertain Havird's appeal...