United States District Court, N.D. California
ORDER DENYING WITHOUT PREJUDICE MOTION FOR
ATTORNEYS' FEES RE: DKT., 213
MARIA-ELENA JAMES United States Magistrate Judge
November 11, 2015, the Court granted in part and denied in
part Counter-Defendants' Motion to Strike
Counter-Claimants' claims under California Code of Civil
Procedure section 425.16, California's
"Anti-SLAPP" statute. Dkt. No. 191.
Counter-Defendants now move for attorney fees and costs under
section 425.16(c)(1), which provides that a prevailing
defendant on a special motion to strike is entitled to
recover attorney's fees and costs. Mot., Dkt. No. 213;
see Cal. Civ. Proc. Code 425.16(c)(1).
reviewed the parties' papers, the record in this case,
and the relevant legal authority, the Court finds it
premature to rule on this matter at this time. While the
Court granted in part Counter-Defendants' Anti-SLAPP
Motion, it has not yet entered a judgment related to that
Order. This matters because the Court generally cannot award
attorneys' fees and costs until entering judgment.
Fed.R.Civ.P. 54(d)(2)(B)(i)-(ii) (motion for attorney's
fees "must . . . be filed no later than 14 days after
the entry of judgment; [and] specify the judgment. . .
entitling the movant to the award."); see Fed.
R. Civ. P. 54(a) ("'Judgment' as used in these
rules includes . . . any order from which an appeal
lies."); J.P. Hyan v. Rosslyn Beth Hummer,
Esq., ____ F.3d____, 2016 WL 3254701, at *2 (9th Cir.
June 14, 2016) (an appeal lies following the issuance of
"final decisions" on the merits entered by the
district courts; "[a] decision is final when it
'ends the litigation on the merits and leaves nothing for
the court to do but execute the
judgment.'"). "The Federal Rules of Civil
Procedure clearly state that 'any order or other
decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than
all the parties' is not final." J.P.
Hyan, 2016 WL 3254701, at *2 (quoting Fed. R. Civ. Pro.
54(b)) (emphasis in cited case, not in rule); see also
New Show Studios LLC v. Needle, 2015 WL 5567744, at *5
(C.D. Cal. Sept. 21, 2015) (awarding attorney's fees
under the anti-SLAPP statute but ultimately finding
defendants were not entitled to a Rule 54(b) judgment at that
time, and that "the notion that defendants need[ed] to
recover these costs . . . [before they were unrecoverable],
d[id] not constitute an unusual case justifying entry of
partial final judgment.").
several of Counter-Claimant's claims still remain, the
only way by which the Court could enter a judgment under
these circumstances is pursuant to Rule 54(b), which provides
that "[w]hen an action presents more than one claim for
relief . . . the court may direct entry of a final judgment
as to one or more, but fewer than all, claims or parties only
if the court expressly determines that there is no just
reason for delay." Fed.R.Civ.P. 54(b). In considering
whether there is just reason for delay, the Court considers
administrative concerns and "such factors as the
interrelationship of the claims so as to prevent piecemeal
appeals." AmerisourceBergen Corp. v. Dialysist W.,
Inc., 465 F.3d 946, 954 (9th Cir. 2006) (citation
omitted). In this sense, the district court acts as a
"dispatcher" to determine the "appropriate
time" when each final decision in a multiple claims
action is ready for appeal, among other things.
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1,
10 (1980). It is left to the sound judicial discretion of the
district court to determine the appropriate time to issue a
Rule 54(b) judgment. Id. at 10.
the foregoing, the Court exercises its discretion to postpone
entering judgment related to its Order granting in part
Counter-Defendants' Anti-SLAPP motion- there are multiple
claims still being litigated and entering judgment at this
time would risk unnecessary piecemeal appeals. Without such a
judgment, the Court likewise finds ruling on
Counter-Defendants' Motion for Attorney's Fees and
Costs premature-these matters are better litigated at the
conclusion of the litigation along with issues related to the
other claims. See Kolodrivskiy v. Wachovia Bank,
Mortg., 2011 WL 4101223, at *1 (E.D. Cal. Sept. 13,
2011) (denying fee motion prior to entry of final judgment
and declining to enter partial final judgment); RD Legal
Funding, LLC v. Erwin & Balingit, LLP, 2010 WL 1416968,
at *1-2 (S.D. Cal. Apr. 8, 2010) (same); Camellia Park
Homeowners Assoc. v. Greenbriar Homes Co., 882 F.Supp.
150, 150-51 (N.D. Cal. 1995) (same).
these reasons, Counter-Defendants' Motion for
Attorney's Fees and Costs is DENIED WITHOUT PREJUDICE.
Counter-Defendants may re-file their motion after the entry
of final judgment in this action.
SLAPP is an acronym for Strategic
Lawsuits Against Public Participation. See Makaeff v.
Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir.
The Ninth Circuit further noted in
J.P. Hyan that while the grant of an anti-SLAPP motion to
strike is treated as final in California courts, see Cal.
Civ. Proc. Code § 425.16(i), under the Erie doctrine,
federal courts sitting in diversity apply state substantive
law and federal procedural law; thus, the Federal ...