Free Response to Motion - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Barbara J. Dawson (#012104) Matthew P. Fischer (#019770) Jason S. Vanacour (#022738) SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, Arizona 85004-2202 Telephone: 602-382-6000 Facsimile: 602-382-6070 Attorneys for Plaintiff DIRECTV, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA DIRECTV, Inc., a California corporation, Plaintiff, v. Celia and Alfredo Trevino, husband and wife, Defendants. Plaintiff, DIRECTV, Inc. ("DIRECTV") responds in opposition to Defendants Celia and Alfredo Trevino's ("the Trevinos") Motion for New Trial; Motion for Reconsideration and Motion for Rehearing dated August 23, 2005 ("the Motion"). The Trevinos' Motion should be denied as it is without merit and untimely. I. INTRODUCTION The Trevinos request in essence that the Court reconsider or amend the August 3, 2005 judgment awarding DIRECTV its attorneys' fees against the Trevinos. Specifically, the Trevinos seek to have the Court reduce the award of attorneys' fees pursuant to Rule 59. The Trevinos have not and cannot establish the required elements for a new trial under Rule 59(a) or the elements to amend or alter the judgment under Rule 59(e). The Trevino's motion is also untimely under Rule 59 and may be denied solely for that reason. Likewise, the Trevinos cannot establish a basis for relief from the judgment of attorneys'
Case 2:03-cv-02182-HRH Document 49 Filed 09/12/2005 Page 1 of 6

No. CV-03-2182-PHX-HRH DIRECTV'S RESPONSE TO DEFENDANTS' MOTION FOR NEW TRIAL (IN PART); MOTION FOR RECONSIDERATION (IN PART); MOTION FOR REHEARING (IN PART)

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

fees under Rule 60. Throughout this litigation the Trevinos repeatedly ignored their responsibilities and the Court's orders. Ultimately, the Trevinos' conduct caused the Court to enter default judgment against them, including an award of attorneys' fees. They should not now be relieved of the consequences of their failure to defend. II. LEGAL ARGUMENT. A. Trevino's Motion is Untimely.

Rule 59 requires that a motion for a new trial or a motion to alter or amend a judgment "shall be filed no later than 10 days after entry of the judgment." Fed. R. Civ. P. 59(b) and (e). Judgment was entered on August 3, 2005; thus, the Trevinos had until August 17, 2005 to file a timely motion under Rule 59. 1 The Trevinos filed this motion on August 23, 2005. As such, the motion is untimely and may be denied for this reason alone. B. The Trevinos Are Not Entitled to Relief Under Rule 59.

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Under Fed. R. Civ. P. 59(a), the court may grant a new trial where the verdict is: (1) against the weight of the evidence; (2) where probative evidence is newly discovered; (3) where conduct by the court, counsel, or the jury improperly influenced the deliberative process; or (4) if the judgment is either excessive or inadequate. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940); Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 207-08 (3rd Cir. 1992); Washington v. United States, 214 F.2d 33, 47 (9th Cir. 1954). A similar standard applies to motions brought under Fed. R. Civ. P. 59(e).2 A judgment may be altered or amended only upon a showing of: (1) a manifest error of law Similarly, L.R. Civ. 7.2(g) requires that motions for reconsideration be filed within 10 days after the entry of judgment. 2 It is doubtful, however, whether Rule 59(e) provides relief from an award of attorneys' fees because "[a]n award of attorneys' fees is uniquely separable from the cause of action that is settled by a court's judgment on the merits." White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 452 (1982). "A post-judgment request for attorneys' fees is not considered a motion to amend or alter the judgment under Rule 59(e) of the Federal Rules of Civil Procedure. Id.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

or fact upon which judgment is based; (2) newly discovered or previously unavailable evidence; (3) manifest injustice; or (4) an intervening change in the controlling law. Benjamin Moore & Co. v. Bordin, 318 F.3d 626, 629 (5th Cir. 2002). The Trevinos have failed to establish that the award of attorneys' fees was against the weight of the evidence or an intervening change in the applicable law. Indeed, the award is based on well-settled federal law. It is undisputed that DIRECTV was the successful party in this lawsuit as the Court granted DIRECTV a default judgment against the Trevinos. As addressed in DIRECTV's motion for entry of default judgment and its application for attorneys' fees and costs, 47 U.S.C. § 605(e)(3)(B)(iii) provides for a mandatory award of reasonable attorneys' fees to a successful party. DIRECTV's application for attorneys' fees established that the amount of the attorneys' fees requested was reasonable under the circumstances and based on the actual amount of attorneys' fees DIRECTV incurred in prosecuting this matter. Thus, the award of attorneys' fees was proper under the circumstances. Further, there is no manifest injustice in upholding the Court's judgment. DIRECTV's Complaint and initial disclosures made clear its intent to seek attorneys' fees and costs if successful. Further, DIRECTV's motion for default judgment and its application for attorneys' fees, both of which were served on the Trevinos, made clear that DIRECTV sought to recover an award of its attorneys' fee. Thus, the Trevinos have had ample notice that if they failed to defend this action, they risked entry of judgment against them for both statutory damages and attorneys' fees. Because the Trevinos had notice of DIRECTV's motion and application for fees, they also had an opportunity to challenge them. Indeed, on May 27, 2005, the Trevinos filed a response to DIRECTV's motion for entry of default judgment and an objection to the proposed form of judgment. The Court granted DIRECTV's motion and entered judgment over the Trevinos' objection. The Trevinos suggest that "they will likely have to file bankruptcy to avoid paying the fees." (See Motion at 2.) It is unclear whether the Trevinos are simply seeking to avoid paying the fees by running to the bankruptcy court (a tactic that will not be
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

successful as the judgment will be nondischargeable) or are inartfully attempting to claim financial hardship. Neither approach provides a basis under Rule 59 for setting aside a valid judgment. The thrust of the Trevinos' motion appears to be their contention that the award of attorneys' fees is excessive. This contention is without merit. Unlike many default judgments, DIRECTV was required to expend a considerable amount of time prosecuting this case before default was entered as a result of the Trevinos' repeated non-compliance with their discovery obligations. Indeed, the Trevinos' conduct contributed to an increase of the costs to litigate this action. For example, the Trevinos failed to provide DIRECTV with their initial disclosure statement and failed to participate in written discovery. Thus, DIRECTV's attorneys were forced to move to compel. As explained in DIRECTV's application for attorneys' fees, the rates charged by the attorneys and paraprofessionals and the time spent for the work undertaken was reasonable. Thus, the judgment awarding DIRECTV its attorneys' fees is not excessive and Rule 59 does not provide a basis for granting a new trial or reducing the judgment. C. The Holding in Warner is Irrelevant.

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In support of their Motion, the Trevinos cite Assoc. Indem. Corp. v. Warner, 143 Ariz. 567, 694 F.2d 1181 (App. 1985). Warner, however, is wholly inapposite to the issue here. Warner focuses on the discretionary power of the court in awarding attorneys' fees in a contract case pursuant to A.R.S. § 12-341.01. That is not the issue here. Attorneys' fees in this matter were granted pursuant to 47 U.S.C. § 605(e)(3)(B)(iii) and are mandatory for a successful plaintiff. Int'l Cablevision, Inc. v. Sykes, 997 F.2d 998, 1009 (2nd Cir. 1993). Accordingly, Warner provides no support for Trevino's position. D. Relief Under Rule 60 is Not Appropriate.

If the Court is inclined to view the Trevinos' motion as one requesting relief under Fed. R. Civ. P. 60, the motion should still be denied. Under Rule 60, the Court may relieve a party from final judgment for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. None of these factors apply here. There is no mistake, surprise or excusable neglect. As discussed above, the Trevinos had notice and ample opportunity to challenge DIRECTV's application for fees before entry of judgment. Further, there is no newly discovered evidence or any other circumstances that warrant granting the Trevinos relief from the judgment granting DIRECTV's its attorneys' fees. III. CONCLUSION. Based on the foregoing, DIRECTV respectfully requests the Court deny Trevino's Motion for New Trial; Motion for Reconsideration; Motion for Rehearing. DATED this 12th day of September, 2005. SNELL & WILMER L.L.P.

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By s/Melissa Krueger (#021176) for Barbara J. Dawson Matthew P. Fischer Jason S. Vanacour One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Plaintiff DIRECTV, Inc.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CERTIFICATE OF SERVICE I hereby certify that on September 13th, 2005, I served the attached documents by U.S. mail on the following, who are not registered participants of the CM/ECF System: Celia and Alfredo Trevino 5249 North 86th Drive Glendale, Arizona 85305 Defendants Pro Se I hereby certify that on September 13th, 2005, I served a complete duplicate copy of the attached document via overnight mail on the following: The Hon. H. Russel Holland United States District Court 222 West 7th Avenue, #54 Anchorage, Alaska 99513

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