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Kearney v. Foley and Lardner

March 14, 2008

JOAN BROWN KEARNEY, PLAINTIFF,
v.
FOLEY AND LARDNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING IN PART AND DENYING IN PART WITHOUT PREJUDICE DEFENDANTS' MOTION FOR ATTORNEYS' FEES [doc. #50]

Defendants Foley and Lardner, LLC, and two individuals, Gregory V. Moser and Larry L. Marshall (collectively "Foley" or "defendants")*fn1 seek attorneys' fees in the amount of $118,331.25 as the prevailing parties in the above-captioned case. Plaintiff opposes the motion contending it is untimely, seeks excessive fees, and attempts to obtain attorneys' fees for the entire action rather than just that portion of fees associated with the motion to strike brought under the anti-SLAPP*fn2 statute. For the reasons set forth below, the Court enters the following decision.

FACTUAL AND PROCEDURAL BACKGROUND

On January 20, 2006, plaintiff filed a First Amended Complaint ("FAC") in this Court alleging violations of RICO, conspiracy to violate RICO and constitutional rights under 42 U.S.C. § 1983, and state law claims for fraud, fraud and deceit by suppression of fact, spoliation of evidence, and prima facie tort against the Foley defendants. In response to the FAC, defendants filed a motion to dismiss the federal causes of action under Federal Rule of Civil Procedure 12(b)(6) [doc. #16], and a special motion to strike the state law causes of action as being subject to the anti-SLAPP statute [doc. #18].

After full briefing, the Court granted defendants' motion to dismiss the federal causes of action finding that the Noerr-Pennington doctrine*fn3 was applicable. The Court also granted defendants' motion to strike the state law causes of action finding that the state law claims were based on conduct in furtherance of the underlying eminent domain proceeding and therefore, were subject to the anti-SLAPP statute. The Court further found plaintiff had failed to make a showing of legally sufficient claims to sustain a favorable judgment even if the evidence submitted by plaintiff was credited. (Order filed March 28, 2007 [doc. #40]).

ATTORNEYS' FEES UNDER ANTI-SLAPP STATUTE

California's anti-SLAPP statute provides a mechanism for a defendant to strike civil actions or claims brought primarily to chill the exercise of free speech. CODE CIV. P. § 425.16(b)(1). In order to deter such chilling, "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." CODE CIV. P. § 425.16(c).

Thus, it is well-settled that an award of attorney's fees and costs to a successful anti-SLAPP movant is mandatory. Ketchum v. Moses, 24 Cal. 4th 1122, 1131, 104 Cal. Rptr.2d 377 (2001). "[A]bsent circumstances rendering an award unjust, the fee should ordinarily include compensation for all hours reasonably spent, including those relating solely to [obtaining] the fee [award]." Serrano v. Unruh, 32 Cal. 3d 621, 624, 186 Cal. Rptr. 754 (1982) (applying AL.CODE CIV. P. § 1021.5) (cited in Ketchum, 24 Cal. 4th at 1141). An award of attorney fees and costs must be reasonable. CODE CIV. P. § 425.16.

The fee provision of the anti-SLAPP statute is applied in federal court. Metabolife Intern., Inc. v. Wornick, 213 F. Supp.2d 1220 (S.D. Cal.2002); see also United States v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-73 (9th Cir. 1999)(the California anti-SLAPP statute should be applied in federal court as it is in state court.).

DISCUSSION

1. Timeliness of the Motion

Plaintiff first contends that defendants' motion for attorneys' fees should be denied as untimely, i.e., the motion was filed after the time required under Federal Rule of Civil Procedure 54. Defendants argue that Rule 54 is not applicable here. Because attorneys' fees are mandatory and therefore, a substantive right under the anti-SLAPP statute, the time for filing a fee application is governed by California law rather than federal procedural law based on Erie R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938). Under Rule 54(d), a motion for attorneys' fees must be filed "no later than 14 days after entry of judgment." California law provides that a fee application must be filed before the earlier of 60 days after service of entry of judgment or 180 days after entry of judgment. CIV. RULES 3.1700(b)(1); 8.104*fn4

The Court notes that whether Rule 54 or the California rule is applicable concerning the time in which a motion for attorneys' fees is due, the Court granted defendants' motion for an extension of time in which to file their motion for attorneys' fees. See Order filed June 21, 2007 [doc. #69]. In that Order, the Court determined that Rule 54 was applicable and therefore, the filing of defendants' motion for attorneys' fees was late. But the Court further found, relying on and applying the analysis set forth in Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004)(en banc), that defendants had demonstrated excusable neglect under Federal Rule of Civil Procedure 6(b)(2), and plaintiff would suffer no prejudice if an extension of time was granted. Thus, the Court granted ...


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