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Drucker v. O'Brien 'S Moving and Storage

filed: April 13, 1992.

FRED DRUCKER AND JACQUELINE DRUCKER, PLAINTIFFS-APPELLEES,
v.
O'BRIEN'S MOVING AND STORAGE INC., BEKINS VAN LINES CO., DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the District of Nevada. (BRT). D.C. No. CV-N-88-487. Bruce R. Thompson, District Judge, Presiding.

Before: William A. Norris and Robert Boochever, Circuit Judges, and Earl B. Gilliam, District Judge.*fn* Opinion by District Judge Gilliam.

Author: Gilliam

GILLIAM, District Judge:

Bekins Van Lines ("Bekins") appeals the district court's award of attorney's fees to Fred and Jacqueline Drucker ("the Druckers") pursuant to 49 U.S.C. § 11711(d) ("§ 11711(d)") and Nevada Revised Statute ("N.R.S.") § 18.010(2). We hold that the court did not abuse its discretion in awarding the fees. We also award fees to the Druckers for this appeal pursuant to 49 U.S.C. § 11711(d).

I

On September 12, 1988, the Druckers sued O'Brien's Moving and Storage ("O'Brien's") and Bekins. The Druckers claimed damages arising out of defendants' shipping of the Druckers' 1931 baby grand piano. The complaint alleged violations of 49 U.S.C. § 11707 and certain state and common law counts for relief. The complaint also prayed for attorney's fees.

The court tried the matter and awarded judgment of $16,419.87 to the Druckers on June 28, 1990. Attorney's fees were not granted at the time judgment was entered nor were they included in the Druckers' Bill of Costs.

On or about July 26, 1990, the Druckers moved for attorney's fees which defendants opposed. The motion was granted only against Bekins on August 23, 1990 in the amount of $25,000. Bekins filed its Notice of Appeal of the district court's order granting attorney's fees on September 21, 1990.

II

An appeal from a district court's award of attorney's fees is reviewed for abuse of discretion. See, e.g., Lange v. Penn Mutual Life Ins. Co., 843 F.2d 1175 (9th Cir. 1988). The court abuses its discretion when it bases the award on clearly erroneous legal or factual findings. See Andrew v. Bowen, 837 F.2d 875 (9th Cir. 1988).

III

We first address whether the district court had authority to grant attorney's fees, which may not ordinarily be recovered in the absence of express statutory authority. Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 54 L. Ed. 2d 648 , 98 S. Ct. 694 (1978). The district court awarded attorney's fees pursuant to § 11711(d) and N.R.S. § 18.010(2).

Bekins' argument that the Carmack Amendment, 49 U.S.C. § 11707, does not authorize recovery of attorney's fees fails. The supporting cases to which Bekins cites were decided before the enactment of § 11711(d), which specifically provides for an award of attorney's fees:

In any court action to resolve a dispute between a shipper of household goods and a motor common carrier providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title concerning the transportation of household goods by ...


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