Kelly v. City of Oakland

34 F. App'x 371

Opinion

MEMORANDUM

*

When this case was previously before us, we ruled out any multiplier applied on account of two factors: (1) novelty and complexity of the case, and (2) loss of other clients. We also held that the multiplier should not have been applied to hours spent on the fee application. Kelly v. City of Oakland, 198 F.3d 779, 786-87 (9th Cir. 1999). We remanded for the district court to redetermine the fee award. On remand, the district court rejected all of the factors newly proffered by the plaintiff as justifying a multiplier, and this rejection is not appealed. Rather, the plaintiff now contends on appeal, that the “undesirability” of the case justifies a multiplier. It is clear to this court that the “undesirability” of the case was subsumed in the original district court ruling on the “novelty and complexity” of the case and in our court’s rejection of that factor in the first appeal. This is because the claimed “undesirability” in this case stems from the fact that the law at the time was adverse to the plaintiffs position. This goes to the novelty and complexity of the case, not to what we term “undesirability.” Compare Guam Soc’y of Obstetricians and Gynecologists v. Ada, 100 F.3d 691, 695-99 (9th Cir.1996) (case undesirable because of extreme unpopularity of the cause within the political environment of Guam and resulting in death threats); with Harmon v. San Diego County, 736 F.2d 1329, 1331 (9th Cir. 1984) (rejecting claims of undesirability based on unpopularity of the cause because there was no danger of ridicule or condemnation).

There was no error in the district court’s reliance on federal law; plaintiff prevailed on federal claims as well as on a state claim. See Carreras v. City of Anaheim, 768 F.2d 1039, 1050 (9th Cir.1985).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.