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1 For purposes of consistency, the court maintains the

same captioning originally used in the this matter. (See May 13,

2005 Mem. & Order Re: Motion to Enforce Settlement Agreement and

Motion For Declaratory Relief). 

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

BLUE MAGIC PRODUCTS, INC.,

(BOYD FLOTATION, INC., ALLEGED

SUCCESSOR OR ASSIGN), 

NO. CIV. S-00-1155 WBS JFM

Plaintiff, NO. CIV. S-04-2398 WBS JFM

 

v. MEMORANDUM AND ORDER

RE: MOTION FOR ATTORNEYS’ FEES

AND COSTS

BLUE MAGIC, INC., et al., (THE

RECTORSEAL CORPORATION,

SUCCESSOR),

Defendant.

______________________________

BOYD FLOTATION, INC.,

Plaintiff

v.

THE RECTORSEAL CORPORATION,

Defendant.1

----oo0oo----

On May 13, 2005 the court issued an order granting the

Rectorseal Corporation’s (“Rectorseal”) motion to enforce a

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settlement agreement against Boyd Flotation, Inc. (“Boyd

Flotation”). (May 13, 2005 Mem. & Order Re: Motion to Enforce

Settlement Agreement & Mot. for Declaratory Relief (“May 13, 2005

Mem. & Order”) at 15). In that same order, the court authorized

“Rectorseal [to] recover its reasonable attorneys’ fees,

expenses, and costs incurred in cases No. 00-1155 and 04-2398 by

proper motion pursuant to Local Rules 54-292 and 54-293.” (Id.).

Rectorseal now moves to recover $63,225.06 in attorneys’ fees and

$150.00 in costs as authorized by the court. 

On June 10, 2005, Rectorseal filed with this court a

“Bill of Costs and Motion for Award of Attorneys’ Fees.” On June

14, 2005, the clerk deemed the filing a “Motion for Attorneys’

Fees and Costs.” (See Clerk’s Notice of Correction on June 14,

2005). On June 24, 2005, Boyd Flotation filed objections to

Rectorseal’s bill of costs which Boyd Flotation amended the same

day. (See Boyd Flotation’s Objections to Rectorseal’s Bill of

Costs; Boyd Flotation’s Am. Objections to Rectorseal’s Bill of

Costs). On July 22, 2005, Boyd Flotation filed an opposition to

Rectorseal’s motion for attorneys’ fees. 

A. Bill of Costs

Rectorseal submitted its bill of costs totaling $150 on

June 10, 2005. Boyd Flotation argues that the bill of costs is

untimely. (See Boyd Flotation’s Am. Objection to Rectorseal’s

Bill of Costs at 1-2). Boyd Flotation is correct.

In its May 13, 2005 memorandum and order, the court

ordered that Rectorseal could recover its reasonable costs “by

proper motion pursuant to Local Rule[] 54-292. . . .” (May 13,

2005 Mem. & Order at 15). Local Rule 54-292 states that a party

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seeking to recover costs must “[w]ithin ten (10) days after entry

of judgment or order under which costs may be claimed . . . file

with the Clerk a bill of costs. . . .” Local Rule 54-

292(emphasis added). The May 13, 2005 memorandum and order

authorized Rectorseal to recover costs. Thus, at first glance,

it would appear that Rectorseal had only until May 23, 2005 (10

days after the order) to file its bill of costs.

 However, Federal Rule of Civil Procedure 6(a) states

that “[i]n computing any period of time prescribed . . . by the

local rules of any district court . . . the day of the act or

event shall not be included. . . .” Rule 6(a) also states that

“[w]hen the period of time prescribed or allowed is less than 11

days, intermediate Saturdays, Sundays, and legal holidays shall

be excluded in the computation.” This means that the court does

not count May 13, 2005, the day of the order, in calculating the

10-day deadline. It also means that all the intermediate

Saturdays and Sundays (May 14-15, 21-22, 2005) are excluded from

the calculation. This would make the deadline May 27, 2005. 

Further, Rule 6(e) gave Rectorseal an additional three

(3) days to file its bill of costs because the court’s order was

issued electronically. Fed. R. Civ. P. 6(e); see also Fed. R.

Civ. P. 5(b)(2)(D). This would further extend the deadline to at

least May 30, 2005, if not to June 2, 2005, should one exclude

the Saturday and Sunday of the 28th and 29th of May 2005 as well

as the Memorial Day holiday falling on May 30, 2005. 

Either way, Rectorseal did not meet the deadline for

filing its bill of costs, because it failed to file the bill of

costs until June 10, 2005, between eight to eleven (8-11) days

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too late. Therefore, Rectorseal’s bill of costs is denied as

untimely.

B. Motion For Attorneys’ Fees

i. Timeliness

Boyd Flotation argues that Rectorseal’s motion for

attorneys’ fees is also untimely because it was filed after the

deadline established by Federal Rule of Civil Procedure 54(d). 

This argument misconstrues the intent of the court’s May 13, 2005

memorandum and order. 

In that memorandum and order, the court ordered that

“Rectorseal [could] recover its reasonable attorneys’ fees . . .

incurred in case[] No[s]. 00-115 and 04-2398 by proper motion

pursuant to Local Rule[] . . . 54-293.” (May 13, 2005 Mem. &

Order at 15). Local Rule 54-293 allows “[m]otions for awards of

attorneys’ fees to prevailing parties pursuant to statute to be

filed not later than thirty (30) days after entry of final

judgment.” Because Local Rule 54-293 generally governs only

attorneys’ fees motions brought pursuant to statute, Boyd

Flotation argues that Federal Rule of Civil Procedure 54(d)’s

deadline for filing attorneys’ fees motions should apply.

Rule 54(d)(2)(B) states that “[u]nless otherwise

provided by statute or order of the court, the motion must be

filed no later than 14 days after entry of judgment. . .

.”(emphasis added). Boyd Flotation would have the court

interpret Rule 54(d) to require Rectorseal to file its attorneys’

fees motion within 14 days after entry of judgment. However, the

court specifically extended the 14-day deadline when it

authorized Rectorseal to file its attorneys’ fees motion

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“pursuant to Local Rule 54-293.” (May 13, 2005 Mem. & Order at

15). Therefore, the deadline for filing attorneys’ fees motions

set by Local Rule 54-293, as opposed to that set by Rule 54(d),

governs this motion. 

The appropriate deadline for filing Rectorseal’s motion

for attorneys’ fees was thus 30 days after entry of final

judgment. See Local Rule 54-293. Final judgment has not even

been entered in this case. The deadline has thus not passed.

Boyd Flotation argues that the court’s May 13, 2005

memorandum and order constituted a final judgment because the

order “invited Rectorseal to file a postjudgment motion for

attorneys’ fees.” (See Boyd Flotation’s Opp’n to Rectorseal’s

Mot. for Attnys’ Fees at 3 n.2). Even if the court accepted the

argument, Rectorseal’s motion for attorneys’ fees would still be

timely filed. Rectorseal filed its motion for attorneys’ fees on

June 10, 2005, within 30 calendar days of the May 13, 2005

memorandum and order. Therefore, the motion is timely. 

ii. The Court Need Not Reconsider the Merits of its May 13,

2005 Memorandum and Order to Resolve This Motion

In its opposition to Rectorseal’s motion for attorneys’

fees, Boyd Flotation devotes approximately four-pages to an illconsidered attack on the merits of the court’s May 13, 2005

memorandum and order. (See Boyd Flotation’s Opp’n to

Rectorseal’s Mot. For Award of Attnys’ Fees at 3-7). This motion

is not the appropriate vehicle for such a challenge.

“[A] motion for attorney fees is unlike a motion to

alter or amend a judgment. It does not imply a change in the

judgment, but merely seeks what is due because of the judgment.”

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United States v. Eleven Vehicles, 200 F.3d 203, 208 (3d Cir.

2000)(citation omitted). A motion for attorneys’ fees is meant

to determine the reasonableness of the fees sought to be

recovered and “. . . should not result in a second major

litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

Rightly or wrongly, this court resolved the issue of

whether Rectorseal was entitled to recover its reasonable

attorneys’ fees incurred in cases Nos. 00-1155 and 04-2398 from

Boyd Flotation in its May 13, 2005 memorandum and order. (See

May 13, 2005 Mem. & Order at 15). The court need not revisit the

issue here. Had Boyd Flotation wanted the court to reconsider

the merits of its May 13, 2005 memorandum and order, Boyd

Flotation was free to bring a motion to alter or amend the

judgment pursuant to Federal Rule of Civil Procedure 59. It

could also have brought a motion to reconsider under Federal Rule

of Civil Procedure 60(b). If it is still dissatisfied with the

court’s decision after judgment is entered, it can appeal to the

Court of Appeals. However, since this court has already

determined that Rectorseal may recover attorneys’ fees from Boyd

Flotation, Boyd Flotation may not transform its opposition to

Rectorseal’s motion for attorneys’ fees into either a Rule 59 or

Rule 60(b) motion simply by arguing as if it were such a motion. 

See Eleven Vehicles, 200 F.3d at 208. 

iii. Objections to Attorneys’ Fees Claimed

Aside from attacking the merits of the court’s May 13,

2005 memorandum and order, Boyd Flotation makes three main

arguments as to why the court should not award Rectorseal its

requested attorneys’ fees. First, Boyd Flotation contends that

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the court should exercise its discretion to deny Rectorseal any

fees award because such an award would be “inequitable and

unreasonable” considering that Boyd Flotation never consented to

the contractual provision under which the court authorized an

award of fees against Boyd Flotation in the May 13, 2005

memorandum and order. 

In the Ninth Circuit, [t]he general rule is that a

court ‘abuses its discretion if it awards contractuallyauthorized attorneys’ fees under circumstances that make the

award inequitable or unreasonable or fails to award such fees in

a situation where inequity will not result.’” Andersen v.

Melswani, 179 F.3d 763, 766 (9th Cir. 1999); see also DeBlasio

Constr. Co. v. Mountain States Constr. Co., 588 F.2d 259, 263

(9th Cir. 1978)(noting that “court[s] in [their] discretion could

conclude that allowing attorneys’ fees when both parties ha[ve]

acted improperly would be inequitable and unreasonable.”). 

However, Boyd Flotation already had an opportunity to argue

against an award of attorneys’ fees, and did in fact argue

against the award, when it responded to Rectorseal’s earlier

motion to enforce the settlement agreement. After considering

Boyd Flotation’s arguments, the court rejected them and

determined that, pursuant to the settlement agreement at issue,

Rectorseal was entitled to recover from Boyd Flotation all

reasonable attorneys’ fees Rectorseal incurred in cases No. 00-

1155 and 04-2398. (See May 123, 2005 Mem. & Order at 15). For

reasons, stated in the previous section, this motion is not a

suitable forum to relitigate this issue. Therefore, this

argument is rejected. 

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Second, Boyd Flotation argues that Rectorseal’s motion

for attorneys’ fees should be denied because Rectorseal fails to

request attorneys’ fees incurred in Case No. 00-1155, and fails

to distinguish the fees incurred in Case No. 00-1155 from those

incurred in Case No. 04-2398. 

The argument centers on the fact that Rectorseal

omitted to include Case No. 00-1155 in the caption of its motion

for attorneys’ fees. True enough, the caption to the motion only

lists Case No. 04-2398. (See Rectorseal’s Bill of Costs and Mot.

For Award of Attorneys’ Fees at 1). However, the motion

specifically references the order line from the court’s May 13,

2005 order authorizing Rectorseal to recover “its reasonable

attorneys’ fees . . . incurred in Case Nos. 00-1155 and 04-

2398.”) (See id. at 2))(citing May 13, 2005 Mem. & Order at 15). 

The motion also moves the court for attorneys’ fees in the total

amount of “Sixty-Three Thousand Two Hundred and Twenty-Five

Dollars and Six Cents ($63,225.06), as set forth in Exhibit ‘B’

attached [to the motion].” (Id.). Boyd Flotation concedes in

its opposition to Rectorseal’s motion that the fees set forth in

“Exhibit B” to the motion include fees Rectorseal incurred in

working on Case No. 00-1155. (See Boyd Flotation’s Opp’n to

Rectorseal’s Mot. For Award of Attnys’ Fees at 8-10). Under the

circumstances, Boyd Flotation cannot reasonably contend that

Rectorseal’s clerical error amounts to a waiver of Rectorseal’s

right recover any fees incurred in Case No. 00-1155. Therefore,

this objection is overruled. Cf. In re Equity Funding Corp. Sec.

Litig., 438 F.Supp. 1303, 1340 n.56 (N.D. Cal. 1977)(correcting

clerical error by a party in order to award correct amount of

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2 These factors include, among other things, (1) the

nature of the litigation, (2) its difficulty, (3) the amount of

money involved, (4) the skill required in its handling, (5) the

skill employed, (6) the attention given, (7) the success or

failure, and (8) whether the fee is fixed or contingent. PLCM

Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1096 (2000). 

9

fees). 

Third, Boyd Flotation challenges the reasonableness of

some of the fees requested by Rectorseal. The settlement

agreement authorizing Rectorseal to recover fees is, by its own

terms, governed by California law. (See May 13, 2005 Mem. &

Order at 5)(citing settlement agreement). Therefore, the

relevant standard to be applied in determining the appropriate

amount of fees recoverable is that established by California law. 

See In re Sheldon Baroff v. Baroff, 105 F.3d 439, 441 (9th Cir.

1997)(noting that state law governs claims for attorneys’ fees

awards authorized by contract).

Under California law, courts determine the amount of an

attorneys’ fees award by using the lodestar calculation - the

number of hours reasonably expended on the litigation justifying

the award multiplied by a reasonable hourly rate. Ketchum v.

Moses, 24 Cal. 4th 1122, 1134 (2001). The lodestar figure serves

as a base from which the court may augment or diminish the

attorneys’ fee amount in accordance with other relevant factors. 

See Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1173

(1998).2 However, such an adjustment is discretionary. Ketchum,

24 Cal. 4th at 1138. In general, “[the] amount to be awarded as

attorneys’ fees is left to the sound discretion of the trial

court.” Glendora Cmty. Redevelopment Agency v. Demeter, 155 Cal.

App. 3d 465, 474 (1984)(citation omitted). 

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To determine the reasonableness of hourly rates claimed

under California law, the court looks to the prevailing market

rates in the relevant community for similar work performed by

attorneys of comparable skill, experience, and reputation. PCLM

Group, 22 Cal. 4th at 1095. 

 Rectorseal has submitted affidavits and accompanying

billing statements itemizing the rates its various counsel

charged for time spent on this matter. The rates range from $125

to $385 per hour, with the majority of them falling around $225

per hour. (See Rectorseal’s Mot. For Award of Attnys’ Fees Ex. B

(Invoices)). Boyd Flotation does not challenge the rates

charged. Nor are these rates exceptionally high for the nature

of the work performed in this matter. Therefore, the court

accepts the rates submitted by Rectorseal.

Boyd Flotation does contend that some of the hours

expended by Rectorseal’s counsel are unreasonable in that they

are either unrelated to the underlying litigation or are

unsupported by sufficient documentation. 

Rectorseal’s invoice 483208 (dated 11/9/04) includes an

entry for 09/15/04 charging $112.50 for a “Letter to Gary R.

Farrar with check in the amount of $18,141.55 constituting final

payment pursuant to the Settlement and Release Agreement.” (See

Rectorseal’s Mot. For Award of Attnys’ Fees Ex. B (Invoice

483208)). Boyd Flotation rightly objects to these fees as having

been incurred in connection with the performance of Rectorseal’s

obligations under the settlement agreement, rather than in

connection with the subject litigation. Therefore, the court

will reduce Rectorseal’s fee award by $112.50.

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Boyd Flotation also objects to three invoices from

Locke Liddell & Sapp, from March 2004 (No. 475082, for $322.51),

May 2004 (No. 485920, for $962.50), and August 2004 (No. 501032,

for $167) on the ground that they have no connection with Case

No. 24398. This general argument has already been addressed and

rejected. Further, Rectorseal’s counsel, Kenneth B. Baker,

clarifies in his affidavit that the these fees were charged for

legal research regarding Boyd Flotation’s position as to the

enforceability of the settlement agreement at issue in the

underlying litigation. (See id. Ex. B (Baker Affidavit) ¶¶ 7-8). 

Therefore, the fees were reasonably incurred, and the court

rejects this argument for reducing Rectorseal’s fee award.

Finally, Boyd Flotation objects to three vague time

entries on invoice 508095 (12/6/04, 12/7/04, and 12/8/04)

totaling 18.5 hours and $2,312.50. The entries state only that

time was spent doing “research for memorandum” and “drafting

memorandum.” (See id. Ex. B (Invoice 508095)). However, they

directly follow another entry indicating that the two attorneys

who billed the challenged hours had previously met to discuss the

issues that needed to be addressed in the memorandum. (See id.

(12/06/2004 entry)). The context of the entries suggests that

the hours were appropriately expended researching legal issues

pertinent to the litigation. 

Further, Kenneth Baker makes this clear in his sworn

affidavit wherein he states that he “prepared the . . . Motion

for Award of Attorneys’ Fees . . . [and that] the costs set forth

therein . . . are correctly stated, were necessarily incurred

during [the] litigation, and represent fees for services that

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were actually and necessarily performed.” (See id. Ex. B (Fagan

Affidavit) ¶ 4). Under California law, “[t]estimony of an

attorney as to the number of hours worked on a particular case is

sufficient evidence to support an award of attorney fees, even in

the absence of detailed time records.” Martino v. Denevi, 182

Cal. App. 3d 553, 558 (1986); see also Demeter, 155 Cal. App. 3d

at 470-471, 478(accepting counsel’s testimony regarding number of

hours expended); Margolin v. Reg. Planning Comm., 134 Cal. App.

3d 999, 1006 (1982)(awarding attorneys’ fees unsupported by

records where attorney attested to them under oath). Mr. Fagan’s

sworn affidavit, in conjunction with the billing records, is

sufficient to justify an award for these charges. Thus, the

court will deny Boyd Flotation’s objection to these fees.

Because only one of Boyd Flotation’s objections is

meritorious, Rectorseal’s attorneys’ fees award need only be

reduced by $112.50. This brings the total amount of the fee 

award to $63,112.56. 

 IT IS THEREFORE ORDERED that:

(1) defendant Rectorseal’s bill of costs be, and the

same hereby is, DENIED; and

(2) defendant Rectorseal’s motion for attorneys’ fees

be, and the same hereby is, GRANTED in the amount of $63,112.56.

DATED: August 11, 2005

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