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Wayson v. McGrady

United States District Court, D. Alaska

October 21, 2019

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 ...


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