                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 25 2010

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




                             FOR THE NINTH CIRCUIT



STEVEN RICHARDSON, on behalf of                  No. 09-56604
himself and all others similarly situated,
                                                 D.C. No. 2:07-cv-00979-DSF-RC
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

BROTHER INTERNATIONAL
CORPORATION, a Delaware corporation,

              Defendant - Appellee.



In re: STEVEN RICHARDSON; et al.,                No. 09-73177

                                                 D.C. No. 2:07-cv-00979-DSF-RC
STEVEN RICHARDSON; et al.,

              Petitioners,

  v.

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA, LOS ANGELES,

              Respondent,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BROTHER INTERNATIONAL
CORPORATION,

              Real Party in Interest.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                       Argued and Submitted October 5, 2010
                               Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

      We lack subject matter jurisdiction to consider Steven Richardson’s appeal

of the district court’s order of conditional voluntary dismissal without prejudice.

See Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 556 (9th Cir. 1987),

abrogated on other grounds by Townsend v. Holman Consulting Corp., 929 F.2d

1358 (9th Cir. 1990) (en banc). The dismissal was consensual because Richardson

expressly declined to withdraw his motion, and the conditions imposed by the

order were limited to costs and attorneys’ fees. See id. Because a condition

imposing costs and attorneys’ fees alone is per se not legal prejudice, id., the order

would not be appealable even if Richardson were correct that the fees awarded in

this case were unreasonably high. As we stated in Unioil, “review of clearly

unreasonable [costs and attorneys’ fees] conditions could be obtained through a


                                           2
writ of mandamus” rather than through direct appeal. Id. We also reject

Richardson’s argument that Koch v. Hankins, 8 F.3d 650 (9th Cir. 1993), should

affect our reading of Unioil, because Koch did not discuss jurisdiction and “the

exercise of jurisdiction in a case is not precedent for the existence of jurisdiction.”

Indian Oasis-Baboquivari Unified Sch. Dist. No. 40 of Pima Cnty., Ariz. v. Kirk, 91

F.3d 1240, 1243 (9th Cir. 1996).

      Because the district court’s order imposed a joint and several obligation on

Richardson and his attorneys, the order is not appealable as a de facto sanction of

counsel. Cf. Heckethorn v. Sunan Corp., 992 F.2d 240, 241–42 (9th Cir. 1993).

Finally, because the district court expressly gave Richardson the option to

withdraw his motion upon notice that the condition would be between $100,000

and $110,000, we reject Richardson’s argument that the court erred in not giving

him a reasonable amount of time to withdraw his motion. See Lau v. Glendora

Unified Sch. Dist., 792 F.2d 929 (9th Cir. 1986); see also Beard v. Sheet Metal

Workers Union, Local 150, 908 F.2d 474, 476–77 (9th Cir. 1990).

      Richardson does not meet the criteria for the issuance of a writ of mandate,

because he has not demonstrated that the district court’s order was clear error as a

matter of law. See Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir.

1977); see also Exec. Software N. Am., Inc. v. U.S. Dist. Court for the Cent. Dist. of


                                           3
Cal., 24 F.3d 1545, 1551 (9th Cir. 1994), overruled on other grounds by Cal. Dep’t

of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008). Although the

district court used different phrases in referring to the fees properly chargeable to

Richardson under the Koch standard (fees “not likely to be useful” to Brother

International Corporation (“BIC”) and fees “not useful” to BIC), this was not clear

error because Koch itself used different formulations of the standard at different

times, including formulations similar to those used by the district court. See Koch,

8 F.3d at 652 (stating that only fees for work that “might [not] be useful” and

“might [not] be of use” are chargeable to the plaintiff). In addition, the district

court’s application of the Koch standard to fees incurred by BIC for work that

might have been useful in defending against other class actions raising similar

issues could not have been clear error because Koch did not define “litigation

between the parties” to include such third-party class actions. Koch, 8 F.3d at 652.

Richardson has not established that the court’s approval of BIC’s attorney’s fees

calculation, BIC’s inclusion in its calculation of work done in opposing

Richardson’s motion for voluntary dismissal, or the court’s decision not to conduct

an evidentiary hearing were inconsistent with our precedent.




                                           4
      Because Richardson’s appeal was not frivolous, to the extent BIC’s motion

for Rule 38 sanctions was properly made, see Higgins v. Vortex Fishing Sys., Inc.,

379 F.3d 701, 709 (9th Cir. 2004), it is denied.

      DISMISSED IN PART AND DENIED IN PART.




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