Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Solinvest Group, Ltd., No. 02-2641-PHX-ROS
l0 Plaintiff, i ORDER
l l vs.
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13 ialiechnology Systems International, Inc., et
14 Defendant.
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16 On September 9, 2005, the Court signed an order denying Plaintiff Solinvest Group,
17 Ltd.'s request for attorneys' fees. The denial was based on the Court's conclusion that the
18 request was untimely. Pending before the Court is Plaintiffs Motion for Reconsideration of
19 that order. Having evaluated Plaintiffs motion in light of the record, the Court concludes
20 Plaintiffs request for fees was timely filed. Accordingly, the Court grants Plaintiffs Motion
21 for Reconsideration.
22 , BACKGROUND
23 Default judgment was entered against Defendant Technology Systems International,
24 Inc. ("TSI") on May 29, 2003. TSI was only one of the defendants involved in the lawsuit,
25 but TSI was the only defendant against which the default judgment was entered. That
26 judgment stated Plaintiff had to submit all claims for its costs and expenses "[w]ithin thirty
27 (30) calendar days of a final judgement or resolution of all claims in this matter." (Doc. #
28 l2) On September 9, 2003, Plaintiff filed an Expedited Motion for Turnover Order. (Doc.
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l # 23) That motion sought to have Defendant turn over shares of stock to satisfy the default
2 judgment. On October 3, 2003, the Court granted that motion, directing Defendant to turn
3 over the shares of stock. (Doc. # 28) The same day the Court granted the motion, Defendant
4 filed a response to the Motion for Turnover Order. (Doc. #30) The Court ordered Plaintiff
5 to file a reply by October 20, 2003. On October 6, 2003, while waiting for Plaintiffs reply,
6 all claims against the defendants other than TSI were resolved when those parties were
7 dismissed. (Doc. # 29) Plaintiff filed its reply on October 20, 2003. (Doc. #34) The Court
8 issued a revised turnover order on October 22, 2003. (Doc. # 3 5) Just under one month later,
9 on November 19, 2003, Plaintiff filed a Motion for Order of Contempt. (Doc. #36)
10 According to that motion, Defendant had refused to comply with the Cou1t's turnover order.
11 TSI filed notice on December 10, 2003 that it had tiled a bankruptcy petition. (Doc. #37)
12 The Court issued a stay on January 9, 2004. (Doc. #38) The bankruptcy petition was
13 resolved and the stay was lifted by a court order tiled on December 21, 2004. (Doc. #42)
14 Plaintiff then sought to withdraw the motion for contempt, claiming that the bankruptcy
15 proceedings provided for Defendant to fully satisfy its debts to Plaintiff. (Doc. #43) The
l 6 Court granted the request to withdraw the motion for contempt on December 22, 2004. (Doc.
17 #44) Plaintiff filed its motion for attomeys' fees on January 12, 2005.
18 ANALYSIS
19 Defendant believes that Plaintiffs fee request was not timely filed because it was
20 filed beyond thirty days after the default judgment on May 29, 2003 and dismissal of all other
21 defendants on October 6, 2003. (Doc. # 48 @ 4) The Court does not agree. The default
22 judgment entered against Defendant stated that Plaintiff had to request attomeys' fees
23 "[wjithin thirty (30) calendar days of a final judgement or resolution of all claims in this
24 matter." (Emphasis added.) The Clerk of the Court never entered final judgment and "all
25 claims in this matter" were not resolved until the Court granted the request to withdraw the
26 motion for contempt on December 22, 2004. Until that date, Plaintiffs claim seeking
27 satisfaction of the default judgment was not resolved. Thus, when Plaintiff filed his
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1 attorncys' fccs rcqucst on January 12, 2005 thc rcqucst was within thirty days of thc
2 "rcsolution of all claims."
3 Bccausc thc fcc rcqucst was timcly filcd, thc Court must addrcss thc mcrits of
4 Plaintiffs rcqucst. Thc currcnt rcqucst by Plaintiff includcs a substantial amount of timc
5 spcnt on rnattcrs rclatcd to Dcfcndants' bankruptcy procccdings. Thc Court acknowlcdgcs
6 statcmcnts by thc Bankruptcy Court that thc issuc of fccs should bc addrcsscd by this Court.
7 Thc Bankruptcy Court statcd that it would "dcfcr to who Judgc Silvcr thinks ought to dccidc
8 what parts of thc fcc application." (Doc. #53 Ex. A) Thc Court concludcs that thc
9 Bankruptcy Court should addrcss thc issuc of fccs for work donc in conncction with thc
10 bankruptcy. Plaintiff argucs that thc fccs should not bc rcfcrrcd to thc Bankruptcy Court
ll bccausc Plaintiff might not bc cntitlcd to fccs pursuant to thc bankruptcy statutcs. Plaintiff
12 would, howcvcr, bc cntitlcd to fccs if it madc a "substantial contribution" to thc bankruptcy
13 procccdings. ll U.S.C. § 503(b)(3)(D) (allowing fccs whcn crcditor makcs a "substantial
14 contribution" to bankruptcy procccding). Thc Court bclicvcs thc issuc of "substantial
15 contribution" is bcst lcft to thc bankruptcy court to dccidc. As thc Ninth Circuit obscrvcd in
16 anothcr casc whcrc a substantial amount of work was pcrformcd in Bankruptcy Court,
17 "[a]llowing thc bankruptcy court to rcsolvc thc attomcys' fccs issuc makcs common scnsc.
18 lt is thc bankruptcy court who is most familiar with thc casc and thc work of thc attorncys
19 involvcd." In rc Yochum, 89 F.3d 661, 670 (9th Cir. 1996).
20 Plaintiff is instructcd to submit to this Court a rcviscd rcqucst for fccs containing only
21 work donc in this Court. Dcfcndant will bc afforded timc to rcspond to that rcqucst pursuant
22 to thc Fcdcral Rulcs of Civil Proccdurc and thc Local Rules.
23 Accordingly,
24 IT IS ORDERED that.
25 (1) Plaintiffs Motion for Rcconsidcration is GRANTED.
26 (2) Plaintiff shall submit a rcviscd rcqucst for attorncys' fccs by /§ [gi /0,5 .
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Case 2:02-cv-02641-ROS

Document 65

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