Opinion · Court of Appeals for the Ninth Circuit

Koch v. Hankins

Koch v. Hankins, 8 F.3d 650 (9th Cir. 1993)

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1993-10-15
Topic
general

How later courts describe this case

  • adopting eases of other circuits holding that a defendant is entitled to recover attorneys fees or costs for work not useful in continuing litigation between the parties
  • noting 27 “work product rendered useless by the dismissal should be awarded as a condition 28 of the voluntary dismissal”
  • reversing attorneys' fees award based on fee application in chart form with only general descriptions
  • “Only those costs incurred for the preparation of work product rendered useless 5 by the dismissal should be awarded as a condition of the voluntary dismissal.”
  • a defendant is only entitled to recover, as a condition of dismissal under Rule 41(a)(2), attorneys fees or costs for work which is not useful in continuing litigation between the parties

Citator

UpLaw has not yet analyzed Koch v. Hankins. The absence of a flag is not a finding that it is good law.

Cited by
31 opinions
KOCH v. HANKINS,8 F.3d 650(9th Cir. 1993)
FLOYD KOCH; JANICE KOCH; WILLIAM LOWE; PHYLLIS LOWE; COLIN WONG; MARK BURR;
SUZANNE BORGES; HERMAN DURAN; WALTER HASHIMOTO; SHOGE KIMURA; HERCULES FINI;
DAMIEN CHANG; KEN TAKEDA; BILL PARRISH; KEN KEMP; JAMES FONG; YUI LEE FONG;
F. ALLEN WHITAKER; BOB LUGG; JOE KIMURA; BEVERLY CHINN; HAROLD CHEW; KEN
LEE; CHARLES DI BARI; RUSSELL DI BARI; RICHARD PLASCH; EDDON DURAN; ROCK
KOCH; WILLIAM J. BACE; DON NUSBAUM; WARREN J. DAVIS; LARRY PETERSON; BARBARA
PETERSON; GEORGE RILEY; HAROLD HESTER; PATRICIA HESTER; JACK ISAACS; ROBERT
CHISHOLM; FORREST CIOPPA; ROY FONG; ALAN JOE; VIRGINIA JOE; HENRY NIGRO;
JAMES FORD; JAMES CHEN; ROBERT LEE; JAMES LAU; MORRIS FOWLER; KALVIN HARA;
KAY HARA; CHRIS HARA; FRANK DUCATO; WINSTON YEE; ALLEN TUSTING; MARCIA
TUSTING; ENRIQUE AGORIO; INGER AGORIO; LILIA BUCK; STEPHEN BUCK; UE CHING
OW; PAT OW; EDWARD CHAN; PAT CHAN; PAK TONG YEE; MARSHALL I. ROTHSTEIN;
FRANCOISE ROTHSTEIN; TOM DRAKE; F.K. CHIN; SANDRA CHIN; HAYDEN EVANS; ARLENE
EVANS; PHILLIP LUCAS; WILLIAM JAGGER; DELORES JAGGER; HOWARD SCHWAT; ROBERT
I. LONGSTRETH; BARBARA J. LONGSTRETH; JERRY VONDER AHE; WILLIAM WONG; DOREEN
WONG; CARL CHEN; BEN HARA; HELEN HARA; BLAIR ANDERSON; JOHN DAILLEY; SARAH
DAILLEY; FRED DREW; RUTH DREW; TERRY KESSLER; LELAND SMITH; HELENE SMITH,
PLAINTIFFS-APPELLANTS, v. EDWARD J. HANKINS; ROBERT CHEW; BEVERLY A. CHEW;
RODNEY CHEW; LINDA A. CHEW; AUDREY A. HANKINS; CARLA PATTERSON; TERRY J.
HANKINS; BRADLEY L. HANKINS; KERDIE J. HAWKS; DEAN K. HAWKS; RODLIN
ENTERPRISES, INC.; CARLON PROPERTIES INC.; KEAN FINANCIAL CORP.; BUCKINGHAM
FINANCIAL CORP.; SENTINEL FINANCIAL CORP.; CITADEL FINANCIAL CORP.; JOHNSON,
HANKINS, MacDONALD, KIMBALL CO.; GLENN MacDONALD; RICHARD CLEWS; DON
KIMBALL; MAXUS MANAGEMENT GROUP, DEFENDANTS-APPELLEES.
No. 92-15302.
United States Court of Appeals, Ninth Circuit.
Submitted July 12, 1993fn*.
Decided October 15, 1993.
Page 651
Edward S. Zusman, Wilson, Ryan Campilongo, San Francisco, CA, for plaintiffs-appellants.

Montie S. Day and Christine Papanicolaou, Day Law Corp., Oakland, CA, for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before: CHOY, HUG, and LEAVY, Circuit Judges.
LEAVY, Circuit Judge:
[1] Appellants voluntarily dismissed this action in the district court pursuant to Fed.R.Civ.P.41(a)(2). They appeal the district court's order taxing $32,440.95 in costs against them. We reverse the district court's judgment and remand for findings as to which costs arose from the preparation of work product rendered useless by the dismissal of this action, and which resulted from the preparation of work product which may be useful in pending state court litigation between the parties.
[2] BACKGROUND
[3] Appellants filed five actions, one in federal court and four in state court, arising from the allegedly fraudulent land transaction in Arizona. After remand from this court,see Kochv. Hankins,928 F.2d 1471(9th Cir. 1991), defendants moved for summary judgment. Appellants then moved for voluntary dismissalwithoutprejudice. The district court did not grant appellants' motion. Instead, it gave them the option of receiving a ruling on the defendants' pending motion for summary judgment (which it indicated it would grant thereby subjecting plaintiffs to attorneys fees and costs), or accepting a voluntary dismissalwithprejudice to their federal claim andwithoutprejudice to their state court litigation. The district court conditioned the latter option on the payment of costs.

[4] The district court gave appellants one week to consider their options. At that time, two of plaintiffs' four state court cases were pending. After considering the district court's offer, appellants chose to seek voluntary dismissal as conditioned by the court. Defendants then filed the following bill of costs:
1. Fees for Service of Process (Deposition $ 28.00 Service) 2. Fees for Depositions and Reporters 31,291.80 3. Fees for Witnesses 500.00 4. Fees for exemplifications and copies 334.30 of Court Pleadings (certified) necessarily obtained for use in this case 5. Costs for one copy each of certain 621.15 depositions and exhibits __________ TOTAL TAXABLE COSTS $32,775.25
Page 652

[5] (CR 404) (Citations omitted.) After a hearing, the district court allowed all of defendants' costs with the exception of costs for exemplifications and copies of court pleadings, resulting in an award of $32,440.95.
[6] DISCUSSION
[7] I.Standard of Review

[8] Fed.R.Civ.P.41(a)(2) provides in relevant part:
[A]n action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper.


[9] The district court's determination of the terms and conditions of dismissal under Fed.R.Civ.P.41(a)(2) is reviewed for abuse of discretion.Stevedoring Servs. of America v. Armilla Int'l,889 F.2d 919,921(9th Cir. 1989).

[10] II.Analysis

[11] Appellants contend that, where a plaintiff seeks voluntary dismissal in one forum to pursue pending litigation against the defendant in another forum, this circuit, "looking to the District of Columbia Circuit," requires that the district court review evidence, including documentation, showing that an award of costs consists of those expenses incurred solely on account of the federal action. In support of this proposition, appellants rely upon Judge Reinhardt's concurrence inLau v. GlendoraUnified Sch. Dist.,792 F.2d 929(9th Cir. 1986).

[12] In his concurrence, Judge Reinhardt opined that
[w]here a plaintiff is granted a voluntary dismissal without prejudice to pursue a related action against the defendant in another forum, the defendant is not entitled to reimbursement of costs and legal fees incurred in preparing work product that may be useful in the continuing litigation.


[13]Id.at 932. In support of this statement, Judge Reinhardt cited two D.C. Circuit opinions,GAF Corp. v. Transamerica Ins. Co.,665 F.2d 364,365,369-70(D.C. Cir. 1981) andMcLaughlin v.Cheshire,676 F.2d 855,856-57(D.C. Cir. 1982). These are the cases to which according to appellants, this circuit "looks."

[14] BothGAFandMcLaughlinstand for the proposition that a defendant is entitled only to recover, as a condition of dismissal under Fed.R.Civ.P.41(a)(2), attorneys fees or costs for work which is not useful in continuing litigation between the parties.McLaughlin,676 F.2d at 857;GAF,665 F.2d at 369-70.See Taragan v. Eli Lilly and Co.,838 F.2d 1337,1340(D.C. Cir. 1988). This rule has also been adopted by the Seventh Circuit.See Cauley v. Wilson,754 F.2d 769,771-73(7th Cir. 1985). Our circuit has not expressly adopted the rule inGAF, McLaughlin,orCauley.We now do so.

[15] The district court did not determine which costs arose from the preparation of work product which might be useful in the continuing litigation between the parties, and which costs arose from the preparation of work product rendered useless by the dismissal of appellants' federal action. Appellees' bill of costs sets forth lump sum amounts for such things as "Depositions and Reporters." It provides no basis for a finding as to whether the depositions were useful in the parties' continuing litigation. During the hearing on appellees' bill of costs, the district court specifically asked defense counsel whether the depositions were usable in appellants' state court actions. The response of appellees' counsel was equivocal, at best. The district court did not pursue the issue, choosing instead to award all of appellees' deposition costs "for the reasons" cited by appellants' counsel. While counsel's reasons were not necessarily irrelevant to the conditioning of the voluntary dismissal of appellants' action, none related to whether the depositions would be useful in the parties' continuing litigation.
[16] CONCLUSION
[17] The district court abused its discretion in finding the amount of costs without differentiating between work product which was rendered useless and that which might be of use in the state litigation. Only those costs incurred for the preparation of work product rendered useless by the dismissal should be awarded as a condition of the voluntary dismissal.Page 653We therefore REVERSE and REMAND.
  1. The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P.34(a) and Ninth Circuit Rule 34-4. ↩