*1 Simoes; Anselup Smith; Shirley G. Stacy; Tegado; Michael Louis Teitel ris; Valencia; Vega; Jeff Victor Steve Abeyta; Wright; Ben W. D. Richard TRANSPORTATION UNION UNITED Adams; Ames; T. Eric Priscilla Ar Gutierrez, 1745; Robert C. LOCAL chuleta; Larry Baca; Betty Jo Chairman; Hunter, John D. Presi Brooks; Chavez; Augustine E. H. An Barnes; Anthony Chavez; dent; John thony Chavez; Mary Griego; Lou Don Lovato; Montano; David Dorothea Maxey; Montoya; Joseph Rueben E. Padilla; Leroy Romero; Dale J. Jacob Ortiz; Cheryl Parrett; A. I. Rumaldo Saavedra; Sandoval; Patricia Motor Ramirez; Ruiz; Jerry Sanchez; Alex Antilion; Operators; Erlinda coach Sisneros; Santiago; Aldrina Jesus Armijo; Baca; Angelo Peter John Soltero; Margarita Victor D. D. Trevi Baca; Bazan; John Robert John Bot no; Armijo; Olympia Juan J. J. Es Bouldin; Brady; tyliso; John Carol C. Garcia; quivel; A. Gilbert Lawrence Shelly Burlingame; Alexis Samuel Johnson; Mary Schall; H. M. Michael Castillo; Chavez; August Dennis C. Toya; Vargas; Ernest M. Robert M. Chavez; Chavez; T. Victor Sandra Whalen; Johnny Aguilar; Lucero; Concini; Edward R. Frank M. Clark Debeulieu; Raymond Chavez; Roy Freitag; Richard L. L. W. Willie D. Dimas; Dubriel; Gomez; Richard Orlando S. Giles; Mickey Lawrence B. Duran; Fernandez; Eric Charles Maez; Griego; Angelo Daniel M. Gandy; Garcia; Earl Ernestine Gar Reyes; Buddy Rivera; Silva; L. Juan cia; Garcia; Frederick Gene R. Gar Taylor; Torres; L. Orlando Edward cia; Johnny Garcia; Joseph R. Gar Zamora; Johnny Montoya; Dennis cia; Garcia; Garcia; Manuel Pete Martinez; Perea; Epimenio Eugene Garduno; Gaytan; Rosie I. Ruben R. Merewyn Ramirez; Slag; Nick B. Johnny Gonzales; Ginan; John E. Andy Torres; Swanson; Rog Scott S. Johnny Gaylene Gonzales; B. S. Grie Tapia; Villavicencio; er A. Delvin Hernandez; go; James David A. Herr Zemek; Leroy Hugh Aragon; Max J. era; Mary Herrera; Herrera; Tim Archuleta; Bachicha; Jessica Todd Philip Howard; L. Precilla M. Jaram Bartlett; Booker; George Nick E. D. illo; Viera; Joseph Frank J. La Lin Candelaria; Chavez; Curtis Dion R. ton; Lopez; Lucero; Elmer D. Isaac Coney; Tony Corriz; Phillip J. Galle Lucero; Marquez; A. Diana M. Leo Garcia; Gomez, gos; Angel M. Luis Martinez; McAfree; Frank Charlie Hernandez; Gomez; Iii; Robert Mike Mejias; Mcdonough; Mark Jaun A. Sanchez; Michael A. Lawrence J. Pa Jr.; Anthony Miller, Glenn Don Mil checo; Otero; Ortiz; Daniel Sam Montanez; let; Ismael F. Alex S. Leroy Martinez; Ortega, Paul A. Montoya; Montoya; Jose R. Sadie C. Plaintiffs, Nickelson; Mora, Jr.; Douglas Jeff M. Nuanez; Nunez; Osman; Pete Charles Otero; Otero; Edward T. Joann A. ALBUQUERQUE; Martin CITY OF Pacheco; Otero;
Ronald Atanacio M. Mayor; Rael, Chavez, Lawrence Chief Padilla; Cynthia Perea; Joe S. Officer, Rodarte; Sanchez; Administrative Defendants Trin A. David A. Silva; Anthony Sanchez; Appellees, nie Antonio *2 Attorney-Appellant. Livingston, Paul
No. 08-2103. Appeals, States Court
United
Tenth Circuit. 21, 2009.
Aug. Elliott, III, Cleveland, OH,
Daniel Placitas, NM, Livingston, for Plain- tiff. Bergmann, Seyfarth
Edward W. Shaw IL, LLP, Garcia, I. Chicago, City Michael Office, Attorney’s Kolberg, Charles W. NM, Albuquerque, Albuquerque, Defendant-Appellee. O’BRIEN, McCONNELL, Before TYMKOVICH, Judges. Circuit AND ORDER JUDGMENT* O’Brien, Judge. Terrence L. Circuit dispute pay- involves a over This proceedings ment for this * record, Livingston ining appellate Only Attorney-Appellant ac- his brief and the has unanimously tively participated panel determined that oral in this After exam- has recovery case. A the tran- prepared damages Plaintiffs and/or attorney’s scripts originals to de- fees [available delivered in FLSA actions *3 216(b) ],” of under 29 City Albuquerque, paid pay- fendant which U.S.C. to secure any the ment of attorney for them. An ob- reasonable fee owed to Ms. pursuant Bean to tained of the its order. Id. at copies transcripts through a public-records request. district The court At that point, the amount of the decided the was entitled to be (and it) er’s fee securing hence the lien paid copies for City the obtained from the (1) was left open-ended respects: in two of It Albuquerque. erred. (2) “reasonable,” the fee had to be it applied only “copies transcripts to
A thorough complex recitation of the [plaintiffs] desired use of’ the procedural history of this would case serve course of litigation the the against City. more to obscure than to inform our discus- Thus, when lien imposed the was to cover sion of the insular matter us. before We fee, reporter’s the it was not known what will narrowly therefore focus on those transcripts be would involved or what the immediately facts our disposi- relevant to court approve would as a fee reasonable tion. The appellant, attorney Living- for important them. This is an procedural ston, represented plaintiffs in an action point, in imposing liability that orders for against City Albuquerque, Mayor the of fees, sanctions, and the like are not final Chavez, Martin and Chief Administrative until the amount of the liability is deter- Officer Lawrence Rael for unpaid overtime See, Soda, mined. Am. e.g., LLP v. U.S. under the Fair Labor Standards Act Inc., Filter Group, Wastewater 428 F.3d (FLSA). appointed district The court (10th Cir.2005); 924-25 Turnbull v. Special hearings, Master to conduct Wilcken, (10th Cir.1990). 893 F.2d which Bean Jennifer served as court re- porter. the City paid After ordered and parties The eventually the settled FLSA for original hearing prepared transcripts suit, attorney but left issue the of fees for Bean, plaintiffs Ms. the Special asked negotiation. further Ms. Bean did not City Master to copies direct to file with to her against pro- seek enforce lien clerk, the court so plaintiffs could plaintiffs ceeds obtained in settlement access having them without to obtain cop- their FLSA claims. The of the fee amount ies from Ms. Bean at cost. higher When (and owed to her henee the value of the refused, the Special Master plaintiffs lien) used remained undetermined.
New Inspection Mexico’s Public Rec- Later, attorney fee claim settled was Act, 14-2-12, ords N.M. Stat. 14-2-1 to $175,000-made payable directly to Mr. copies directly obtain the City. from Livingston rather than to plaintiffs. Ms. City
Ms. Bean and the complained to the Bean sought against to enforce her lien court, plaintiffs district which ordered to that award. The was directed to “pay reporter’s reasonable court fees for deposit portion proceeds into the any copies they desire registry, Living- court and both Bean and ApltApp. the use of.” at 18. The court ston moved for release of the funds to imposed also a lien “on any subsequent them. The ultimately pay- ordered argument materially binding precedent, not except would assist the de- under the doctrines case, R.App. judicata, termination this Fed. See of law of the res and collateral 34(a)(2); 34.1(G). cited, however, estoppel. P. Cir. 10th The case is It be for its persuasive R.App. therefore ordered submitted without oral ar- value consistent with Fed. gument. judgment order This is not P. 32.1 and Cir. R. 10th 32.1. interlocutory rulings prior $4,159.02 Livingston then under which to Bean.
ment of final order merge appeal from the challenging Bean’s into appeal, commenced culminate, copies Supply see Med. fee for entitlement Inc., Chain, Neoforma, Inc. v. prepare. not she did (10th Cir.2007); Steinert Winn Standing Appeal Livingston’s Inc., n. Group, (10th Cir.2006), Livingston’s from appeal standing have “Counsel claim encom- disposition the final Bean’s them, directly against but issued orders *4 holding earlier Bean passed the orders their applicable from to not orders to a fee reporter’s and would be entitled Lovelace Uselton v. Commercial clients.” a obligation imposing lien securing that 849, (10th Inc., Freight, 9 F.3d 854 Motor damages award of or attor- any on future (citation omitted). Cir.1993) In ac FLSA in It is there- ney obtained the case. fees tions, held that order this court has “[a]n objec- Livingston’s fore to consider proper attorney or fees is an awarding denying rulings. antecedent tions to these client, the not the applicable order to Indep. v. Sch. client’s counsel.” Weeks Livingston’s Appeal Merits of (10th 1-89, 1201, No. 230 F.3d 1213 Dist. Cir.2000); v. Brew see also Bennett Coors jus to authority have found no We (10th Co., 1221, 1238 189 F.3d Cir. ing tify requiring plaintiffs, derivatively and 1999) 216(b) (noting “expressly provides to attorney, Livingston, pay their Mr. a fees”). attorneys’ plaintiff a to recover reporter transcript fee a court for a to matter, Thus, general a lacks as counsel but, rath copy the did not make standing regarding to orders such er, they legally from another that obtained Weeks, 1213, at also fees. 230 F.3d see by independent source means. On the 1246, Astrue, Manning v. 1252 principle particu broad and contrary, both Cir.2007) (10th (noting only client has holdings lar undermine the notion that EAJS). standing to for fees under apply may a reporters court demand “missed But, the party after a asserts secures copy fee” someone a of a whenever obtains award, a fee he the right assign to that can be traced back an transcript counsel, v. right Pony County Los original transcript had the (9th Cir.2006) 1138, 1144 Angeles, 433 F.3d paid making made—and was —for Mitchell, (discussing Venegas 495 U.S. someone else. 87-88, 1679, 82, 109 110 L.Ed.2d 74 S.Ct. terms, In fee claim broad Ms. Bean’s (1990)); at Manning, see also premise tacit that court re- rests on the acquires legally cogniza who then legal in own the con- porters some sense proceeds. in the collecting ble interest transcripts they prepare, tent such are to remuneration
By they time Ms. Bean’s claim entitled the copy transcript of a is made finally paid out whenever a was resolved ordered (even City, making no the attorney-fee they played the award the if role premise copy). accept To would effec- property that award had become Undeniably, tively reporters “copyright” re Livingston. give order Mr. statements, transcription Bean’s fee a mere others’ satisfaction of out of quiring directly Livingston contrary copyright to black letter law. payable to was sum him, Patry Copy- F. on directly against Patry, from See 2 order issued William Material, right, Noncopyrightable standing he has More Ch. 2008) (court over, rule,” (Updated 4.88 “merger under the familiar Inspection not “authors of what tran- der New Mexico’s of Public ers are if copyright cannot be Records Act.2 And she was not scribe and therefore entitled compensation, she not proceed- owners of the of court was entitled to a plaintiffs’ (ultimately lien on Livingston’s) ings”). attorney recovery fee payment to secure holding there is a line of cases And compensation.3 such (such independently accessed Accordingly, the district court’s order by simply requesting as the case file from directing registry distribution of funds to clerk1) may cop the court be viewed and Ms. Bean is and the REVERSED matter purchasing copy an alternative to ied as is REMANDED for further proceedings reporter. from the court See Kinan v. consistent with judgment. this order and Brockton, 112 F.R.D. (D.Mass.1986); Hall, Hawley v. McCONNELL, J., concurring. (D.Nev.1990); F.R.D. C.P.C. judgment I concur in the on the ground Plastics, P.T.R., Inc., P’ship Bardot Inc. v. Bean, appellee Jennifer did not (E.D.Pa.1982); F.R.D. *5 185 see also brief, an appellate file and therefore Henderson, 752, Stanley any arguments waives she in might have (8th Cir.1979) (noting counsel obtain response appellant Paul Livingston’s clerk); copies Mr. Livingston facially claims. makes a States, 531, Schroer v. United 250 F.R.D. plausible case that the district court lacked (D.Colo.2008) (rejecting, 535-37 under authority to enter the order him requiring (see 1), post-2000 supra party’s Rules note for the pay transcripts. Ms. Bean of- require filing effort to immediate of tran nothing fers to counter that case. with clerk script copy to enable informal ing, copying improper not because is not, but however, This decision should be party justify (even because failed to burdening interpreted precedent pure- as sort) filing as-yet-unused the court with tran ly persuasive unpublished par- scripts). These cases undercut Ms. Bean’s payment ties can avoid tran- claim to compensation transcript copies scripts involving governmental in cases a independently from the un party simply by requesting obtained those tran- 3.Reporters 1. Prior to the amendment of Federal Rules of retain considerable institutional 5(d) 30(f) 2000, advantages transcripts. They as to are as- Civil Procedure tran- fairly payment sured of a lucrative fee for the scripts were filed with the court clerk as a originals by ordering party requested an un- matter of course the court ordered unless 753(f). Copies they prepare der 28 U.S.C. procedure The otherwise. default under the certify are also official records of the amended version of the rules was for the id., 753(b), proceeding, and thus valuable as give original transcripts to the transpired, City the “best evidence” of what ordering party who filed them with the court Simmons, Pittsburgh v. 955- if and when were used at trial or in (3d Cir.1984). recently And Judicial support pretrial' generally See motions. poli- Conference of the United States issued a Schroer, at n. 250 F.R.D. days any cy prohibits period for a of 90 (from downloading copying or a court's PA- emphasize independent 2. We means system) transcripts CER filed with the plaintiffs transcript copies obtained the clerk, Proceedings Report of the Judi- here, because same authorities cited States, the United cial Conference of sanctioning above such means also hold that 11-12, at at www.uscourts. available party compel opposing party cannot gov/judconfindex.html, which affords produce copies through discovery in the same captured in need of ers market of those transcripts in which the were made. time frames. case shorter act. There public records scripts under presentation of ar- adversary been no
has
gument on issue. FOOD LOCAL 880-RETAIL
UFCW
EMPLOYERS JOINT PENSION
FUND, on behalf of itself and all oth similarly situated; Chap John
ers S. individually
man, and on behalf of all situated; Myer similarly Zoe
others
son, individually and on behalf of all similarly situated, Plaintiffs-
others
Appellees, CORP.; Wayne
NEWMONT MINING Lassonde; Murdy; Pierre Bruce D.
W. Francisco,
Hansen; David H. an indi
vidual; Enos, Thomas L. an individu
al; Ball; Gallagher, Russell Robert J. Alexander, Cough- Katina Lerach Susan individual, Defendants. LLP, & lin Stoia Geller Rudman Robbins Francisco, CA, Berens, Jeffrey San Allen Schonbrun, Lawrence Interested W. Berens, Kennedy, Dyer Kip K. Dai'by Party-Appellant. Shuman, Firm, Brian the Shuman Law No. 08-1423. Denver, CO, Daley, Henry Joseph David Rosen, Stoia Geller Rudman & Coughlin Appeals, States United Court LLP, Shingler, Robbins Arthur L. San Tenth Circuit. CA, Nobel, Schatz, Diego, Jeffrey S. No- bel, Izard, Hartford, CT, Brian Kip Shu- Boulder, CO,
man, Firm, Law the Shuman for Plaintiff. Foreman, Haddon, Morgan, D.
Lee Jordan, Foreman, Mueller, Mackey & Haddon, & Mackey, Morgan Pamela R. Denver, CO, Foreman, for Defendant. Schonbrun, CA, Berkeley, Lawrence W. pro se.