Kristine Davenport v. Patricia Faller , 687 F. App'x 537 ( 2017 )

FILED
NOT FOR PUBLICATION
APR 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTTRADE, INC., No. 15-35355
Plaintiff, D.C. No. 1:11-cv-00003-SPW
and
MEMORANDUM*
KRISTINE DAVENPORT,
Defendant-cross-defendant-
Appellant,
v.
PATRICIA FALLER; ARNOLD
FALLER; SHANE M. LEFEBER,
Defendants-cross-claimants-
Appellees.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted April 6, 2017**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
Before: KOZINSKI and W. FLETCHER, Circuit Judges, and BLOCK,***
District Judge.
1. We previously remanded this case to the district court for it to determine
only the amount of attorneys’ fees and costs to be awarded to LeFeber and the
Fallers. Under the rule of mandate, the district court lacked authority to consider
Davenport’s other arguments. See United States v. Thrasher, 483 F.3d 977,
981–82 (9th Cir. 2007). Davenport repeats these other arguments to us, but we
have already decided these issues. Our prior rulings constitute the law of the case.
Id.; Gould v. Mut. Life Ins. Co. of N.Y., 790 F.2d 769, 774–75 (9th Cir. 1986).
We consider only Davenport’s arguments about the reasonableness of the fees and
costs awards.
“The party opposing the fee application has a burden of rebuttal that requires
submission of evidence to the district court challenging the accuracy and
reasonableness of the hours charged or the facts asserted by the prevailing party in
its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir.
1993) (citations omitted). The parties seeking fees and costs supported their
requests with experts, affidavits and detailed timekeeping reports. Davenport
***
The Honorable Frederic Block, United States Senior District Judge for
the Eastern District of New York, sitting by designation.
page 3
failed to show the rates were unreasonable, the tasks performed were duplicative or
excessive, or the district court otherwise abused its discretion. Therefore, we
affirm the district court’s fees and costs awards.
2. Davenport’s appeal is not frivolous because she challenged the
reasonableness of the attorneys’ fees awards. Therefore, LeFeber’s Federal Rule of
Appellate Procedure 38 motion (dkt. no. 13) is DENIED.
AFFIRMED.