United States District Court, D. Alaska
MARK N. WAYSON, Plaintiff,
v.
CHADWICK P. MCGRADY, Defendant.
ORDER REGARDING ATTORNEY FEES AND TAXABLE
COSTS
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 57 is defendant Chadwick P. McGrady's
Motion for Rule 82 Attorney Fees Pursuant to FRCP 54(b)(2)
and Local Rule 54.2.[1] Plaintiff Mark N. Wayson responded in
opposition at Docket 67. Mr. McGrady replied to the response
at Docket 69.
Also
before the Court, at Docket 63, is Mr. McGrady's Motion
for Review of Clerk's Order Dated July 23,
2019.[2] Mr. Wayson responded in opposition at
Docket 64. Mr. McGrady replied to the response at Docket 65.
I.
Background
In
2017, Mr. McGrady, who is an attorney, was representing a
plaintiff in a suit against Mr. Wayson that was filed in
Alaska state court.[3] The suit alleged that that Mr. Wayson was
interfering with access to an easement used by Mr.
McGrady's client that crossed Mr. Wayson's
property.[4] On December 22, 2017, Mr. Wayson filed a
complaint against Mr. McGrady in Alaska state court alleging
defamation based on email statements of Mr. McGrady regarding
the easement case that were published in the Alaska Dispatch
News.[5] On July 12, 2018, Mr. McGrady removed the
defamation case to federal court.[6]On June 25, 2019, the Court
granted summary judgment to Mr. McGrady and issued a judgment
dismissing this case.[7]
II.
Motion for attorney fees
On July
8, 2019, after entry of the final judgment in this case, Mr.
McGrady filed a motion for attorney fees requesting $12,
575.40.[8] After finding an accounting error in his
first request, Mr. McGrady amended his attorney fee request
to $12, 280.60.[9] After reviewing Mr. Wayson's
challenges to the attorney fees, Mr. McGrady further amended
his attorney fee request to $11, 972.60.[10]
Alaska
Rule of Civil Procedure 82 governs the calculation of
recoverable attorney fees in this case and provides that
“the prevailing party in a civil case shall be awarded
attorney's fees calculated under this
rule.”[11] The fee calculation in a case such as
this, where the prevailing party recovered no money judgment
and the case did not go to trial, is “20 percent of
[the prevailing party's] actual attorney's fees which
were necessarily incurred. The actual fees shall include fees
for legal work customarily performed by an attorney but which
was delegated to and performed by an investigator, paralegal
or law clerk.”[12]
In his
opposition to the motion for attorney fees, Mr. Wayson first
asserts that Mr. McGrady is not the prevailing party in this
matter because Mr. McGrady “did not prevail in the
[easement] interference case as was his stated intent in the
Complaint. Therefore he did not prevail with his gratuitous
defamation since it was never offered with the intent to
destroy a reputation.”[13] “The prevailing party is
the one who has successfully prosecuted or defended against
the action, the one who is successful on the ‘main
issue' of the action and ‘in whose favor the
decision or verdict is rendered and the judgment
entered.'”[14] The main issue in this case was
“whether Mr. McGrady's comments in [his May 1,
2017] email are subject to the fair report
privilege.”[15] This Court found that Mr. McGrady's
comments in the May 1, 2017 email to the Alaska Dispatch News
“are protected by the privilege of fair report. Because
‘there is no genuine dispute as to any material
fact,' Mr. McGrady is entitled to judgment as a matter of
law.”[16] Accordingly, Mr. McGrady successfully
defended against the main issue in this action.
The
Court has reviewed Mr. Wayson's other contentions in his
opposition and finds that they are not valid legal arguments
and are not relevant to the motion for attorney fees.
However, for clarification, this Court did not grant summary
judgment to Mr. McGrady under an “absolute
privilege.”[17] Summary judgment was granted because Mr.
McGrady's email comments were protected by the privilege
of fair report, which contemplates that “[t]he
publication of defamatory matter concerning another in a
report of an official action or proceeding . . . that deals
with a matter of public concern is privileged if the report
is accurate and complete or a fair abridgement of the
occurrence reported.”[18]
Mr.
McGrady has submitted billing records supporting a total
attorney cost of $59, 863.00. Twenty percent of that amount
is $11, 972.60, the amount requested by Mr. McGrady. The
Court will order attorney fees to Mr. McGrady in the amount
of $11, 972.60.
III.
Motion for review of the Clerk of Court's notice
regarding taxable costs
On July
8, 2019, after entry of the final judgment in this case, Mr.
McGrady timely filed a Bill of Costs totaling
$505.26.[19] The Bill of Costs was not submitted on
an AO 133 form nor was it supported by invoices or other
documents.[20] The Clerk of Court then filed a notice
awarding zero dollars in taxable costs to Mr. McGrady, noting
that “[t]here were no supporting documents, invoices or
Bill of Cost Form AO 133 filed as required by L. Civ. R.
54.1(b).”[21] Mr. McGrady timely filed a motion for
review of the Clerk of Court's notice.[22]
Mr.
McGrady asserts that the Clerk of Court misinterpreted Local
Civil Rule 54.1 when the Clerk denied costs because of the
lack of supporting documents and AO 133 form.[23] Mr. Wayson
responds that the Clerk of Court correctly interpreted and
applied Local Civil Rule 54.1.[24] The Local Rule states that
that “[a] bill of costs must be supported by invoices
and other materials available for inspection by other parties
and presented to the Clerk upon
request.”[25] The Rules also direct parties to
“[s]ee Bill of Cost Form AO
133.”[26] The Rules do not require a party to
submit any invoices or materials, only that they be made
available at the request of the Clerk of Court and that they
be available for inspection by other parties. The record does
not indicate that the Clerk of Court ever requested that Mr.
McGrady provide invoices or other materials to ...