Opinion
No. C02-2225P
March 16, 2004
ORDER DENYING DEFENDANT WASHINGTON FIRM'S MOTION FOR ATTORNEYS' FEES
This matter comes before the Court on the Washington Firm Defendants' Motion for Attorneys' Fees. (Dkt. No. 137). Having reviewed the pleadings and supporting documents, the Court DENIES the Washington Firm Defendants' motion with leave to amend. Defendants are entitled to reasonable attorneys' fees incurred in establishing the immunity defense under RCW 4.24.510. However, Defendants have failed to segregate their fees as required into those incurred for establishing this defense and those incurred in relation to other issues. Furthermore, Defendants have failed to show that their paralegal fees are reasonable. Therefore, Defendants are given leave to amend their fee request.
BACKGROUND
On January 23, 2004, the Court issued an order granting the Washington Firm Defendants' Motion for Summary Judgment. The Court held that the Washington Firm Defendants were immune under RCW 4.24.510 from civil liability arising out of a communication to the City of Seattle on a matter of reasonable concern to the City. The Court has recently denied Plaintiff's Motion for Reconsideration of that order. The Washington Firm Defendants have now moved for attorneys' fees as allowed under RCW 4.24.510.
ANALYSIS
At the time Plaintiff filed this suit naming the Washington Firm and its employees as Defendants, the statute read:
A person prevailing upon the defense provided for in this section shall be entitled to recover costs and reasonable attorneys' fees incurred in establishing the defense.
Former RCW 4.24.510 (1999).
The awarding of attorneys' fees pursuant to RCW 4.24.510 is not discretionary. Rather, it automatically follows when a party prevails on RCW 4.24.510's immunity defense. Loeffelholz v. Citizens for Leaders With Ethics and Accountability Now, 82 P.3d 1199 (Mar. 2, 2004) (publication pending), Kauzarich v. Yarbrough, 105 Wn. App. 632, 652 (2001), Gilman v. MacDonald, 74 Wn. App. 733, 738-40 (1994). However, it only entitles the prevailing party to reasonable fees incurred in establishing the immunity defense. It does not entitle the prevailing party to fees incurred in the case that have to do with other issues, such as advancing alternative legal theories. Consequently, the prevailing party's fee request must segregate the time spent on the immunity defense from time spent on other issues.Loeffelholz, 1213-14. The party requesting fees has the burden to show that it has segregated its fees properly as well as that its fee request is reasonable. Id. Further, the court must create an adequate record for review of fee award decisions. Therefore, the court's order on the fee request must "include, on the record, a segregation of the time allowed for the separate legal theories." Id. at 1213 (quotations and citation omitted). In Loeffelholz, the appellate court directed the trial court to require the defendants segregate the fees. It was inappropriate for the court to determine the appropriate fees when the defendants had not done so adequately. Failure or refusal to segregate warrants denying the fee request. Id.
The Washington Firm Defendants' supporting materials indicate that they failed to segregate adequately their fees. They requested fees of $47,059.50. They maintain that this is less than the total fees incurred of $72,645.00. As Plaintiff points out, however, various entries are not necessarily related to establishing the RCW 4.24.510 immunity defense. For example, the Washington Firm Defendants claim that defending against Plaintiff's motion to compel and motion to remand were necessary because they risked having the Court remand the case or ordering them to perform certain discovery if they did not reply while their summary judgment motion was pending. However, even if true, this is not necessarily a part of the establishing the immunity defense. Similarly, they advanced other legal theories in their summary judgment motion besides an immunity defense under RCW 4.24.510. Their timesheets do not segregate these issues. Additionally, Plaintiff's medical condition was not related to the immunity defense. Therefore, the portion of Plaintiff's deposition devoted to that topic, the deposition of Plaintiff's physician, and other timesheets entries that relate to Plaintiff's medical condition should not be included in this fee request.
The Washington Firm Defendants' reply fails to address the issue of segregation of their fees. They assert in a conclusory, general fashion that Plaintiff's deposition was necessary to establish the immunity defense. They claim that they were required to respond to Plaintiff's various motions, but fail to identify how the issues in these motions were related to their immunity defense. Because of the Washington Firm Defendants' failure to segregate their fees, and in light of Loeffelholz, the Court DENIES their motion with leave to amend with proper documentation of which fees were necessary to establish the immunity defense and which were not.
Plaintiff argues that the paralegal hourly rate is unreasonable. The Court agrees. The Washington Firm Defendants have failed to put forth evidence of the paralegals' particular qualifications or experience. Defendants merely state that they "have over forty years of combined paralegal experience." Additionally, reviewing the timesheets, it appears that some of the work performed by the paralegals was not necessarily legal in nature, or at least it is ambiguous whether the work was legal or clerical (e.g. telephone calls regarding upcoming depositions). In amended fee request, the Washington Firm Defendants should include proper documentation regarding these paralegals' experience and qualification, and clarification concerning the nature of the work they performed. The Washington Firm will not be paid for clerical work or work that does not require particular legal experience.
Lastly, Plaintiff's contention that the fee award provision of RCW 4.24.510 is unconstitutional is without merit. Plaintiff argues that the fee award provision has a disparate impact on people with limited financial resources and thereby inhibits their right to use the judicial system to vindicate their rights. The First Amendment right to petition the government for redress of grievances includes "meaningful access to the courts." Gig Harbor Marina, Inc. v. City of Gig Harbor, 94 Wa.App. 789, 799 (1999). According to Plaintiff, this constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment. However, because people of limited financial resources are not a protected class, the statute is constitutional so long as it is rationally related to an important government interest. Tucker v. United States Department of Commerce, 958 F.2d 1411, 1414 (7th Cir. 1992) (citing San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). The government interest here is deterring lawsuits arising out of a communication to government officials or agencies about a matter of public concern. See RCW 4.24.510, Statutory Notes accompanying 2002 Amendments. Plaintiff does not, nor could she reasonably, contend that this is not an important interest. Allowing the prevailing party to recover attorneys' fees incurred in establishing this defense is rationally related to that interest because it can serve as an effective deterrent. Additionally, Plaintiff's due process claim also fails. Plaintiffs fails to identify how she has been or is being denied due process in the awarding of attorneys' fees. Nor could she; she has been provided with ample opportunity to respond to the Washington Firm Defendants' motion for summary judgment and motion for attorneys' fees.
CONCLUSION
The Court DENIES the Washington Firm Defendants' Motion for Attorneys' Fees with leave to amend. Defendants are entitled to reasonable attorneys' fees incurred in establishing the immunity defense under RCW 4.24.510. However, Defendants have failed to segregate their fees as required into those incurred for establishing this defense and those incurred in relation to other issues. Furthermore, Defendants have failed to show that their paralegal fees are reasonable.The clerk is directed to provide copies of this order to all counsel of record.