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4:10-cv-01564 #128

4:10-cv-01564 #128

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Published by Equality Case Files
Doc #128 - Plaintiffs' Motion to extend deadline
Doc #128 - Plaintiffs' Motion to extend deadline

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Published by: Equality Case Files on Jun 20, 2012
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 12345678910111213141516171819202122232425262728William C. McNeill, III, State Bar No. 64392Claudia Center, State Bar No. 158255Elizabeth Kristen, State Bar No. 218227LEGAL AID SOCIETY-EMPLOYMENT LAW CENTER180 Montgomery Street, Suite 600San Francisco, CA 94104Telephone: (415) 864-8848Facsimile: (415) 593-0096Email: wmcneill@las-elc.orgccenter@las-elc.orgekristen@las-elc.orgDaniel S. Mason, State Bar No. 54065Patrick Clayton, State Bar No. 240191Zelle Hofmann Voelbel & Mason LLP44 Montgomery St Ste 3400San Francisco, CA 94104Telephone: (415) 693-0700Facsimile: (415) 693-0770Email: pclayton@zelle.comAttorneys for Plaintiffs
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION)
MICHAEL DRAGOVICH, MICHAELGAITLEY, ELIZABETH LITTERAL,PATRICIA FITZSIMMONS, CAROLYNLIGHT, CHERYL LIGHT, DAVID BEERS,CHARLES COLE, RAFAEL V. DOMINGUEZ,and JOSE G. HERMOSILLO, on behalf of themselves and all others similarly situated,Plaintiffs,v.UNITED STATES DEPARTMENT OF THETREASURY, TIMOTHY GEITHNER, in hisofficial capacity as Secretary of the Treasury,United States Department of the Treasury,INTERNAL REVENUE SERVICE, DOUGLASSHULMAN, in his official capacity asCommissioner of the Internal Revenue Service,BOARD OF ADMINISTRATION OF
CALIFORNIA PUBLIC EMPLOYEES’
RETIREMENT SYSTEM, and ANNESTAUSBOLL, in her official capacity as Chief Executive Officer, CalPERS,Defendants.Case No. CV 4:10-01564-CWP
LAINTIFFS
 
A
DMINISTRATIVE
M
OTIONAND
M
EMORANDUM IN
S
UPPORT OF
M
OTION TO
E
XTEND
T
IME TO
F
ILE
M
OTIONFOR
R
EASONABLE
A
TTORNEYS
 
F
EES
,
 
C
OSTS AND
E
XPENSES AS TO
I
NTERVENERTHE
B
ILATERAL
L
EGAL
A
DVISORY
G
ROUPOF THE
U
NITED
S
TATES
H
OUSE AND
[P
ROPOSED
]
 
O
RDER
 [Local Rules 6-3][Hon. Claudia Wilken]
Case4:10-cv-01564-CW Document128 Filed06/07/12 Page1 of 5
 
 
M
OTION FOR
A
DDITIONAL
T
IME
 A
ND
[P
ROPOSED
]
 
O
RDER
 Case No. CV 4:10-01564-CW Page 1
12345678910111213141516171819202122232425262728Pursuant to Civil Local Rule 6-3, the Plaintiffs move the Court for an order extending the
time for them to file a motion for statutory attorneys’ fees and for litigation costs and expenses
.While the Federal Defendants and the State Defendants have graciously signed a joint stipulationto this effect, filed herewith, BLAG has been unwilling to sign such a stipulation. Therefore,plaintiffs have filed this motion
with respect to any motion for reasonable attorneys’ fees, costsand expenses that they may file against BLAG. Assuming the Court grants plaintiffs’ extension
requ
ested via stipulation, any motion for attorneys’ fees, costs and expenses would be filed
regarding all defendants and BLAG on the same day: August 22, 2012.Reasons for RequestThis successful action involved entities from whom prevailing plaintiffs may seek 
reasonable attorneys’ fees, costs and expenses (“attorneys’ fees”) via different sta
tutes such as the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412
and 42 U.S.C.
§ 1988 (“Section 1988”).
However, EAJA and Section 1988 provide for two very different time frames within which to
file an attorneys’ fee motion. EAJA provides that such a motion be filed “within thirty days of final judgment….” 28 U.S.C. § 2412(d)(1)(B). Under Ninth Circuit authority, the judgment is
final on the date that a petition for certiorari becomes untimely.
 Zheng v. Ashcroft 
, 383 F.3d 919,920 (9th Cir. 2004), citing
 Al-Harbi v. INS
, 284 F.3d 1080, 1083-1085 (9th Cir. 2002).However, Section 1988 fee motions are governed by the general rule that motions for feesbe
filed “no later than 14 days after the entry of judgment.” Fed. R. Civ. P. 54(d)(2)(B).
Because
 plaintiffs’ fee motion under section 1988 and
their motion under EAJA will necessarily involvevery similar considerations, such as determinations regarding rates and hours, it is efficient tohave plaintiffs file one motion regarding reasonable fees, costs and expenses sought from allother parties. However, because of the complexity of the fee motion and the involvement of multiple entities and at least two
separate fee statutes, it has not been possible for plaintiffs’
counsel to prepare and file their fee motion within the short time frame provided by the FederalRules of Civil Procedure. Moreover, as explained further below, and it the attached Declarationof Elizabeth Kristen,
 plaintiffs’ counsel diligently sought a stipulation from all parties beginningon the day after the Court’s final judgment was entered
and continuing through June 5, 2012.
Case4:10-cv-01564-CW Document128 Filed06/07/12 Page2 of 5
 
 
M
OTION FOR
A
DDITIONAL
T
IME
 A
ND
[P
ROPOSED
]
 
O
RDER
 Case No. CV 4:10-01564-CW Page 2
12345678910111213141516171819202122232425262728
See
Kristen Decl. ¶¶ 4-14 and Exhs. A-H thereto. It was only on June 5, 2012, that it becameclear that BLAG would not stipulate to additional time. Kristen Decl. ¶14.
Plaintiffs’ counselreasonably expected that all parties would agree to stipulate to more time for plaintiffs’ motion.
 Kristen Decl. 15. Th
erefore, by the time BLAG informed plaintiffs’ counsel that it would not
stipulate, it was too late to draft and complete an entire fee petition.
 Id.
 
Plaintiffs’ Efforts to Obtain a Stipulation to Relief Sought
 Beginning on the day after this Cour
t entered judgment, plaintiffs’ counsel diligently
sought to have all parties stipulate to additional time. As detailed in the Declaration of Elizabeth
Kristen, plaintiffs’ counsel emailed defendants’ and interveners’ counsel numerous times
overtwelve days from May 25, 2012 through June 5, 2012. Kristen Decl. ¶¶4-14 & Exhs. A-H.While the federal defendants and the state defendants agreed to a joint stipulation (filedherewith), counsel for BLAG ultimately refused.
 Id.
Plaintiffs will Suffer Substantial Prejudice if this Motion is Denied Whereas there is no Prejudiceto BLAG (or the other Defendants) if this Motion is Granted
BLAG cannot be prejudiced by the Court’s granting this motion for additional time.
While BLAG asserts it has no liability for
 plaintiffs’ fees, costs and expenses, the merits of  plaintiffs’ claim are not at issue here.
The other defendants have stipulated to more time asdescribed above and in the joint stipulation filed herewith. Therefore, there is no prejudice to thedefendants. Plaintiffs would be substantially and severely prejudiced if this Court were to denytheir motion as they would be prevented from presenting a full and complete application for
attorneys’ fees, costs and expenses.
In another case, this Court gra
nted plaintiffs’ counsel’s administrative motion for additional time in which to file an attorneys’ fee motion.
 Muniz v. United Parcel Serv., Inc.
,Case No. C-09-01987-CW, Docket No. 151 (Oct. 28, 2010).
Case4:10-cv-01564-CW Document128 Filed06/07/12 Page3 of 5

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