Blakely Not Retroactive
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Section 1988(b) Fee Applications and Timeliness

Unless you do Sec. 1983 work, skip this post, as it will bore the dickens out of you.

[There is a] need to address the issue of the timeliness of the plaintiff’s post-judgment request for attorneys’ fees. Federal Rule of Civil Procedure 54(d)(2)(B) states: “Unless otherwise provided by statute or order of the court, the motion [for attorneys’ fees] must be filed no later than 14 days after entry of judgment.” The plaintiff filed his motion for attorneys’ fees more than 14 days after the judgment on the special verdict, but within 14 days after the district court’s order denying the defendants’ motion for partial judgment pursuant to Rule 50(b) and for a new trial pursuant to Rule 59. The issue is whether the Rule 54(d)(2)(B) time limit is tolled pending the outcome of post-trial motions under Rule 50 or Rule 59....

The other circuits to reach this question have held that the requirement that the motion for attorneys’ fees “must be filed no later than 14 days after entry of judgment” is tolled pending the outcome of post-trial motions under Rule 50 or Rule 59. See Members First Fed. Credit Union v. Members First Credit Union of Fla., 244 F.3d 806, 807 (11th Cir. 2001) (per curiam); Weyant v. Okst, 198 F.3d 311, 314 (2d Cir. 1999). This is because those motions operate to suspend the finality of the district court’s judgment. A “judgment” for purposes of the Federal Rules of Civil Procedure includes a decree or order “from which an appeal lies.” Fed. R. Civ. P. 54(a); see also Weyant, 198 F.3d at 314. The judgment was not appealable during the pendency of the post trial motions in this case. See Weyant, 198 F.3d at 314. Therefore, the Rule 54(d)(2)(B) motion for fees is timely if filed no later than 14 days after the resolution of a Rule 50(b), Rule 52(b), or Rule 59 motion. This petition for fees was timely. The district court did not err in granting the timely motion for fees.

Bailey v. County of Riverside, No. 03-56545 (9th Cir. July 8, 2005).

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