FILED
NOT FOR PUBLICATION MAR 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON ALAN CATZ, Esquire, No. 10-17714
Plaintiff - Appellant, D.C. No. 4:03-cv-00091-FRZ
v.
MEMORANDUM*
SUSAN RUTH CHALKER; et al.,
Defendants - Appellees,
FIDELITY INVESTMENTS, named as
Fidelity Investments (FMR Corporation) -
of the State of Massachusetts;
WATERHOUSE SECURITIES,
Defendants-counter-claimants
- Appellees.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted March 12, 2013**
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Jason Alan Catz appeals pro se from the district court’s order granting
attorney’s fees to Leonard Karp and Annette Everlove. We have jurisdiction under
28 U.S.C. § 1291. We review for an abuse of discretion an award of fees,
Braunstein v. Ariz. Dep’t of Transp., 683 F.3d 1177, 1184 (9th Cir. 2012), and
review de novo the underlying legal analysis, Harris v. Maricopa Cnty. Superior
Court, 631 F.3d 963, 970 (9th Cir. 2011). We vacate and remand.
In a prior appeal, we remanded for the district court to determine the amount
of fees attributable solely to the representation of Karp and Everlove. On remand,
the district court awarded all fees incurred in defending the meritless claims against
Karp and Everlove, regardless of whether the work done on behalf of Karp and
Everlove might have benefitted another defendant against whom frivolous claims
were not brought. However, Fox v. Vice, __ U.S. __, 131 S. Ct. 2205 (2011),
decided after the district court’s order, held that defendants may be awarded only
those fees requested which “would not have accrued but for the frivolous claim.”
Id. at 2216. It appears that the district court may have improperly awarded some
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Catz’s request
for oral argument is denied.
2 10-17714
costs that would have been incurred regardless of the frivolous allegations against
Karp and Everlove. Cf. id. (noting that “the ‘but-for’ standard . . . may in some
cases allow compensation to a defendant for attorney work relating to both
frivolous and non-frivolous claims”). In light of the Supreme Court’s recent
decision in Fox, we vacate the award and remand to the district court to conduct
the requisite “but for” analysis.
We reject defendants’ contention that the entire fee award can be
alternatively affirmed under 28 U.S.C. § 1927.
Robert S. Catz’s motion for leave to file an amicus brief is denied.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
3 10-17714