Darla ELWOOD; Terri Elwood; Edward Elwood; Anthony Delaplane; Amy Meinke, Plaintiffs-Appellants, v. Robert DRESCHER; Robert W. Zakon; Valerie Skeba; John P. Farrell; Haig Kehiayan; William A. MacLaughlin; Judy Hutchinson, in her individual capacity; California Department of Justice, Defendants-Appellees.
No. 04-55635
United States Court of Appeals, Ninth Circuit
Filed July 28, 2006
Argued and Submitted June 5, 2006.
456 F.3d 943
Patricia J. Barry, Los Angeles, CA, for the appellants.
Robert E. Drescher, Newhall, CA, for appellee Drescher.
Anita Susan Brenner, Law Offices of Torres & Brenner, Pasadena, CA, for appellee Hutchinson.
Before SIDNEY R. THOMAS and RONALD M. GOULD, Circuit Judges, and WILLIAM W SCHWARZER,* Senior District Judge.
SCHWARZER, Senior District Judge.
These appeals arise out of litigation initiated by Darla Elwood over custody of two of her children. Elwood brought two
FACTUAL AND PROCEDURAL HISTORY
In Elwood v. Drescher, (Appeal No. 04-55635, D.C. No. 02-04656), Elwood appeals the award of attorneys’ fees to defendants. This action was brought by Elwood, her son Anthony, her parents Terri and Edward, and her friend Amy Meinke (collectively, “Elwood“). The complaint named fourteen defendants, but only the following sought and were awarded fees: Robert Drescher, an attorney who represented Elwood‘s ex-husband Morin; Commissioner Robert W. Zakon of the Los Angeles Superior Court; Referee Valerie Skeba of the Juvenile Court; Superior Court Judges John P. Farrell, Haig Kehiayan, and William MacLaughlin; the California Department of Justice (“California DOJ“); and Judy Hutchinson, a child support enforcement attorney for Los Angeles county.1 The complaint alleged a variety of conspiracy theories involving the defendants, including that the “[j]udges and commissioners of Superior Court of Los Angeles County have declared war on Darla Elwood and anyone associated with her.”
The defendants moved to dismiss on several grounds. The district court dismissed the claims against Drescher for failure to allege the deprivation of a constitutional right and any meeting of the minds between Drescher and the other defendants. It dismissed the claims against the state court commissioner, referee, and judges as barred by either Younger abstention2 or the Rooker-Feldman doctrine,3 and the claim against the California DOJ on the basis of the Eleventh Amendment.
After the dismissal was affirmed, the district court ruled on defendants’
DISCUSSION
The district court‘s award of fees is reviewed for abuse of discretion. See Sea Coast Foods, Inc. v. Lu-Mar Lobster & Shrimp, Inc., 260 F.3d 1054, 1058 (9th Cir.2001). If an exercise of discretion is based on an erroneous interpretation of the law, the ruling should be overturned. In re Arden, 176 F.3d 1226, 1228 (9th Cir.1999). We consider two issues: (1) whether Drescher, as a pro se attorney-defendant, is entitled to a fee award, and (2) whether the state defendants are entitled to a fee award when the claims against them were dismissed based on Younger abstention, the Rooker-Feldman doctrine, or the Eleventh Amendment. While the district court found Elwood‘s
I. ATTORNEYS’ FEES AWARD TO DRESCHER
Elwood argues that Drescher, as a pro se attorney-defendant, is not entitled to an award of attorneys’ fees under
In Kay, a pro se attorney-plaintiff sought attorney‘s fees under
The Court turned to the purpose of the statute, and found that “the overriding statutory concern” of
Here, the district court distinguished Kay, noting that the facts in that case dealt with a pro se attorney-plaintiff, while Drescher was a pro se attorney-defendant, stating:
The [Supreme] Court‘s analysis centered around the policy reasons for providing attorney‘s fees to a prevailing plaintiff—i.e. an interest in obtaining independent counsel for victims of civil rights violations. The Court found that “Congress was interested in ensuring the effective prosecution of meritorious claims.” These same policy considerations do not exist when the pro per attorney litigant is a prevailing defendant rather than a prevailing plaintiff. Ensuring that a defendant-attorney obtains counsel does [not]4 help to filter meritless claims nor
ensure vigorous prosecution of meritorious ones. In contrast, awarding attorneys fees to prevailing defendants protects them from burdensome litigation with no legal or factual basis.
While we recognize that the policy considerations affecting a pro se attorney-defendant differ from those relevant to a pro se attorney-plaintiff, we find Kay to be controlling here for several reasons. First, although the facts of Kay involved a pro se attorney-plaintiff, the decision sweeps broadly, appearing to apply to pro se litigants generally. See, e.g., id. at 435, 111 S.Ct. 1435 (“We granted certiorari to resolve ... whether a pro se litigant who is also a lawyer may be awarded attorney‘s fees under
Second, this broad reading is consistent with the decisions we have found on this issue. While there are no published appellate decisions applying Kay to deny
Courts have also viewed Kay as precluding the award of fees to pro se attorney-defendants under other fee shifting statutes. See Bond v. Blum, 317 F.3d 385, 398-400 (4th Cir.2003) (applying Kay to
Finally, we note that some of the policy considerations discussed in Kay would be served by encouraging independent counsel for defendants. Kay described the disadvantages present when a lawyer represents himself in litigation.
Ethical considerations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case ... and in making sure that reason, rather than emotion,
dictates the proper tactical response.... The adage that “a lawyer who represents himself has a fool for a client” is the product of years of experience by seasoned litigators.
Kay, 499 U.S. at 437-38, 111 S.Ct. 1435. We think that resort to independent counsel for defendants, as well as plaintiffs, serves the statutory policy of ensuring effective prosecution of meritorious civil rights cases. Effective prosecution could suffer where a pro se attorney-defendant is too emotionally and personally involved in contested litigation to respond rationally. Such a defendant could be incapable of exercising independent judgment and could needlessly engage in dilatory or obstructionist litigation tactics.
We conclude that the award of attorneys’ fees to Drescher must be vacated.
II. ATTORNEYS’ FEES AWARD TO THE STATE DEFENDANTS
While not raised by the parties, we must sua sponte consider whether the district court lacked jurisdiction to award attorneys’ fees to the state defendants. Branson v. Nott, 62 F.3d 287, 293 n. 9 (9th Cir.1995). Where a claim is dismissed for lack of subject matter jurisdiction, the defendant is not a prevailing party within the meaning of
The claims against the state defendants were dismissed on various grounds.5 The claim against Judge Kehiayan was dismissed under Rooker-Feldman, which is a jurisdictional ground for dismissal and precludes the awarding of attorneys’ fees. Branson, 62 F.3d at 292-93. This Court affirmed the dismissal of the claims against Judge MacLaughlin on the ground of judicial immunity and in the alternative on the basis of Rooker-Feldman. Because Rooker-Feldman provides a jurisdictional ground for dismissal, and federal courts must generally address jurisdictional issues first, we treat this dismissal as one under Rooker-Feldman, and Judge MacLaughlin is therefore not entitled to fees.
The dismissal of claims against Commissioner Zakon and Judge Farrell was affirmed on the ground of Younger abstention. This Court has explained that “in cases in which Younger applies, the federal courts have jurisdiction over the parties’ claims; Younger abstention concerns whether they should exercise that jurisdiction.” Meredith v. Oregon, 321 F.3d 807, 816 (9th Cir.2003). A dismissal based on Younger abstention signifies that the court declined to exercise jurisdiction; it makes no comment on the merits of the case, and does not “materially alter[] the legal relationship between the parties.” Farrar v. Hobby, 506 U.S. 103, 111, 113, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Therefore, neither Commissioner Zakon nor Judge Farrell prevailed within the meaning of
In affirming the dismissal of Elwood‘s claim against Juvenile Court Referee Skeba, we noted that “it is not entirely clear whether the matter handled by the referee is ongoing or concluded,” but that the claim was barred by either Younger or Rooker-Feldman. As discussed above, attorneys’ fees cannot be awarded based on a dismissal on either of those grounds.
We reject Elwood‘s other arguments in support of her contention that the award to the California DOJ was an abuse of discretion. The district court‘s finding of frivolousness was not an abuse of discretion, given that Elwood continued to press her claim against the California DOJ even after the court warned her that it appeared to be frivolous, and failed to amend her complaint or provide any basis for overcoming the Eleventh Amendment defense. The fee request submitted by the attorney for the state defendants (including the California DOJ) for 152.5 hours was not excessive. The attorney represented six parties, and spent time reviewing the complaint, defending against two motions for declaratory judgment, preparing and bringing two motions to dismiss, and making several court appearances.
The district court did not err when it allowed the state defendants to refile their motion for attorneys’ fees after the initial motion was stricken for failure to comply with Local Rule 7-3 requiring parties to meet and confer before filing a motion. Rule 54(d)(2)(B) allows a district court to extend the time for filing a motion for attorneys’ fees, and the striking of the initial motion had no preclusive effect on the second motion. Finally, Elwood offered no evidence in the district court showing inability to pay the fee awards; her tax returns, of which she asks this Court to take judicial notice, would show only her income and not whether she has assets with which to satisfy the fee awards.
We affirm the award of attorneys’ fees to the California DOJ. However, because the same attorney represented all of the state defendants, the award must be recalculated to include only those hours spent on the claim against the California DOJ.
CONCLUSION
For the foregoing reasons, we VACATE the fee awards to attorney Drescher and to Commissioner Zakon, Referee Skeba, Judge Farrell, Judge Kehiayan, and Judge MacLaughlin. We AFFIRM the fee awards to attorney Hutchinson and to the California DOJ but REMAND the latter to the district court for recalculation in conformity with this opinion.