                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 24 2012

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DAREL HARDENBROOK, an individual,                Nos. 11-35309; 11-35353

               Plaintiff - Appellant/Cross-      D.C. No. 1:07-cv-00509-EJL-
            Appellee,                            CWD

  and
                                                 MEMORANDUM *
PAUL GOOCH, an individual

                Plaintiff,

  and

ROBERT ORLOFF, an individual,

               Plaintiff/Contingent Cross-
            Appellee,

  v.

UNITED PARCEL SERVICE, INC., a
Delaware corporation doing business in
the State of Idaho,

                Defendant - Appellee/Cross-
                Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                        Argued and Submitted May 7, 2012
                               Seattle, Washington

Before: GOULD, BYBEE, and BEA, Circuit Judges.

      Darel Hardenbrook, Paul Gooch, and Robert Orloff brought suit against

United Parcel Service (“UPS”) alleging claims for breach of contract, breach of the

implied covenant of good faith and fair dealing, and wrongful termination in

violation of public policy. The district court granted UPS’s motion for summary

judgment on all of Orloff’s claims. Only Hardenbrook’s wrongful termination

claim proceeded to trial, at which he won a judgment against UPS. After entry of

the judgment, the district court denied Hardenbrook’s and UPS’s petitions for

attorney’s fees, finding that there was no prevailing party. We have jurisdiction

under 28 U.S.C. § 1291, and we reverse and remand.

      Pursuant to Idaho Code § 12-120(3), the prevailing party in any civil action

to recover on a commercial transaction “shall be allowed a reasonable attorney’s

fee to be set by the court.” Idaho Code Ann. § 12-120(3) (emphasis added). The

statute applies in actions brought pursuant to an employment contract and for




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claims related to the employment relationship. See Jenkins v. Boise Cascade

Corp., 108 P.3d 380, 391 (Idaho 2005).

      The Idaho Court of Appeals has articulated three factors that a trial court

must consider when determining who is the prevailing party: (1) the final judgment

or result, (2) whether there were multiple claims or issues between the parties, and

(3) the extent to which each party prevailed on each claim or issue. See Nguyen v.

Bui, 191 P.3d 1107, 1112 (Idaho Ct. App. 2008); see also id. at 1113 (explaining

that a trial judge should not split a “single ‘claim’ upon which the plaintiffs had

prevailed into prevailing and nonprevailing ‘theories’”). Even if there are multiple

claims, a trial judge is not required to apportion the attorney’s fees, but must only

take that into consideration. Id.

      The magistrate judge looked at the “overall action” and found that UPS

would have been declared the prevailing party against Orloff, and Hardenbrook

would have been the prevailing party against UPS; the court concluded that the two

were basically a wash. Unlike the cases cited by UPS and the lower courts,

however, this is not a case where there were multiple claims and counterclaims

between the same parties. See Eighteen Mile Ranch, LLC v. Nord Excavating &

Paving, Inc., 117 P.3d 130, 133 (Idaho 2005); Int’l Eng’g Co. v. Daum Indus., 630

P.2d 155, 158–59 (Idaho 1981). The magistrate judge found that Hardenbrook had


                                           3
only one claim under alternate theories. UPS filed no counterclaims. Instead, this

case involves one claim between Hardenbrook and UPS and a similar claim

between Orloff and UPS. The magistrate judge explicitly found that “Hardenbrook

basically prevailed on the principal complaint he and the other two Plaintiffs

pursued against UPS,” and that UPS prevailed against Orloff. We agree. Thus,

Hardenbrook is entitled to reasonable attorney’s fees because he is the prevailing

party in his case against UPS, and UPS is entitled to reasonable attorney’s fees

because it is the prevailing party in its case against Orloff. The district court

abused its discretion by finding otherwise.

      The district court has discretion to determine a reasonable attorney’s fee to

award to Hardenbrook, for his prevailing claim against UPS, and to UPS, for its

prevailing claim against Orloff. See Schroeder v. Partin, 259 P.3d 617, 624 (Idaho

2011). In this calculation, “the court [has] a duty to apportion to each of the parties

only the attorney fees related to the claims upon which each party prevailed.” Id.

Thus, Hardenbrook is entitled to an award against UPS only for the time his

attorneys spent on his prevailing claim. The calculation should take into

consideration that during the early stages of the litigation, before the other parties

were dismissed, there was overlapping representation between Hardenbrook,

Orloff, and Gooch. The attorney time for the joint representation should be


                                            4
reduced accordingly. Likewise, UPS is entitled to an award of attorney’s fees

related only to defending against Orloff. Fees which may be attributed to

defending on overlapping claims by Hardenbrook, Orloff, and Gooch should be

apportioned and reduced accordingly. This case is remanded to the district court

for an award of reasonable attorney’s fees in accordance with this decision.

      REVERSED and REMANDED.




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