The suit filed by JAP Home Solutions against Jose Gallego (a journalist working for El Espanol) and other defendants produced a flurry of motions and cross motions, including special motions to dismiss under the DC anti-SLAPP act, 12(b)(6) motions, motions to strike, objections to motions, and a motion for targeted discovery. The Superior Court resolved most of these motions in a November 29, 2017 Opinion and Order. Now the dispute over attorneys’ fees is again generating a blizzard of paper.

In mid-December 2017, Gallego moved for fees under the DC anti-SLAPP statute (the other defendants separately moved to recover their fees). Instead of opposing the fee motions on the merits, the plaintiffs argued both motions were untimely, and moved to strike them. That argument led to many briefs over whether the Court’s November Opinion and Order was a “judgment” that triggered the clock for filing an attorneys’ fees motion; whether the defendants’ fee petitions were timely; whether the Court had implicitly rejected the attorneys’ fees request (by not awarding fees in its November 29 Order); and whether, if the attorneys’ fees motions were late, they should still be accepted by the Court.

The Superior Court resolved these disputes in a January 26, 2018 Order. It first held that a Rule 12(f) motion to strike was not the appropriate procedural vehicle to attack the defendants’ fee motions. Next, the Court held that, because the November 29 Opinion and Order was not a “judgment” (because it did not resolve all the pending claims), it did not trigger the 14-day deadline for filing an attorneys’ fees motion under Superior Court Rule 54, so that Gallego’s motion was timely. The Court also rejected the plaintiffs’ argument that, because the Court did not award fees in its November 29 Order, the defendants were barred from seeking them now.

Turning to the defendants’ fee motions, the Court noted the plaintiffs had never opposed them on the merits, and that the defendants had asked the court to consider the motions as unopposed. The Court held that, while this request had a “substantial basis,” it was going to allow the plaintiffs to file an opposition. It explained that this was the fairest result, because it would allow a resolution on the merits, and any prejudice to the defendants was mitigated by their ability to supplement their fee requests to include the additional fees they incurred opposing the plaintiffs’ motion to strike.

After Gallego filed an amended fee petition, the plaintiffs filed their opposition brief, arguing that Gallego’s request should be denied in its entirety, or curtailed, because: (1) the number of hours Gallego’s counsel spent was unreasonable, “not proportional to their expected benefit,” and were part of a “litigation strategy to overwhelm counsel with an avalanche of unnecessary motions”; (2) Gallego was only entitled to recover the fees he incurred litigating the claims dismissed under the DC anti-SLAPP statute (and not the fees incurred on the claims the court dismissed under Superior Court Rule 12(b)(6)); (3) many of the time entries were impermissible block billing; (4) defendants were using the LSI matrix, instead of the USAO Laffey matrix used by the DC Court of Appeals; and (5) there is no presumption in the DC anti-SLAPP statute that a prevailing defendant should recover his fees (because the DC Court of Appeals’ Burke II decision involved only a special motion to quash, and not a special motion to dismiss).

Plaintiffs then moved to alter or amend the Court’s January 26, 2018 Order, repackaging and reasserting the arguments they made in their motion to strike. The Superior Court dispensed of that request in an Order issued on March, 22, 2018. The most interesting part of the March 22 Order was the Court’s discussion of whether Gallego had a right to recover all of his fees, or just the fees incurred on the causes of action dismissed under the DC anti-SLAPP statute:

[W]hen a plaintiff asserts claims that are dismissed under the Anti-SLAPP Act and also claims that are resolved on other grounds, the defendant may recover attorney fees that it would not have incurred but for the claim dismissed under the Anti-SLAPP Act. In other words, §16-5504(a) allows a defendant to recover reasonable attorney fees incurred because of, but only because of, a SLAPP claim, and if the defendant would have incurred those fees anyway to defend against non-SLAPP claims, then a court has no basis for transferring the expense to the plaintiff.

This “but for” standard is consistent with the language of §16-5504(a), which states, “The court may award a moving party who prevails, in whole or in part, on a motion brought under §16-5502 or §16-5503 the costs of litigation, including reasonable attorney fees.” If the Council intended to restrict the recovery of costs only to the costs of successful special motions to dismiss or quash, it could have so provided. The broader language indicates that the Court has authority to award litigation costs incurred by the party who prevails on the special motion to dismiss only because the plaintiff included the SLAPP claim in its complaint. (emphasis in original)

The Court’s March 22 Order also rejected plaintiffs’ argument that, because Burke II involved an anti-SLAPP special motion to quash, the Court of Appeals’ ruling (about fees being presumptively available to a prevailing party) was somehow not relevant where the party prevailed on an anti-SLAPP special motion to dismiss. It explained that “[b]oth types of special motions provide a remedy for the same problem, and the costs of each motion when successful are equally compensable,” so that “[t]he reasoning of Burke applies equally to special motions to dismiss and to quash.”

Gallego then filed a supplemental brief in which he argued he was entitled to recover substantially all the requested fees because:

all (or substantially all) of the time spent by Mr. Gallego’s attorneys in this matter was spent successfully defending their client against Plaintiffs’ defamation claim, which was dismissed primarily under the Anti-SLAPP Act. And Mr. Gallego’s defeat of Plaintiff’s defamation claim (Count I) necessarily defeated Plaintiff’s contingent “conspiracy to defame” claim (Count II). Put simply, both of Plaintiffs’ claims against Mr. Gallego, Plaintiffs’ allegations purporting to support those claims, and Mr. Gallego’s defense against those claims, were inextricably intertwined. Mr. Gallego sought dismissal of both claims in their entirety under the Anti-SLAPP Act, and none of the hours spent by his attorneys would have been spent but for Plaintiffs’ SLAPP claim. Accordingly, Mr. Gallego is entitled to an award of all costs and attorneys’ fees in connection with this matter.

I believe that, to date, only one other court has confronted a similar issue. In Washington Travel Clinic, PLLC v. Kandrac, No. 2013 CA 003233 B, Superior Court Judge Cordero granted Kandrac’s anti-SLAPP special motion to dismiss five (out of six) statements alleged to be false and defamatory, as well as the plaintiff’s claim for tortious interference, and his request for sanctions. Kandrac then sought fees for its successful anti-SLAPP special motion to dismiss, as well as for the fees he incurred in successfully unsealing the original complaint. In response, the plaintiffs argued that, because Kandrac also moved to dismiss the suit under Superior Court Rule 12(b)(6), he should not recover all of his fees. The court rejected this argument:

Section 16-5504 of D.C. Code states, “The court may award a moving party who prevails, in whole or in part, on a motion sought under § 16-5502 . . . the costs of litigation, including reasonable attorney fees.” In Metabolife Int’l, the California federal court held, “the entire lawsuit is subject to the anti-SLAPP motion because all causes of action . . . relate to free speech and all of the activity . . . occurred in the context of, and are inextricably intertwined with, the anti-SLAPP motion,” and thus that the moving party was entitled to recover fees and costs incurred “in connection with” the anti-SLAPP motion. Similarly, Defendant incurred the costs and fees referred to in his Motion for Fees as a result of the Anti-SLAPP proceedings, and therefore Plaintiffs’ argument that Defendant is only entitled to fees stemming directly from the Anti-SLAPP motion itself is without merit. (emphasis added).

(The Kandrac court ultimately awarded no fees because it found that Kandrac did not provide the Court with sufficient information to allow the Court to assess the necessity or reasonableness of the attorneys’ fees).

One more thing: plaintiffs’ argument that the Court of Appeals’ Burke II “presumption of fees” decision did not apply to an anti-SLAPP special motion to dismiss had already been rejected by Superior Court Judge Wellner in the Moore v. Costa opinion: “this Court finds that the Court of Appeals’ decision in Doe giving successful defendants on a special motion to quash a presumption of attorney’s fees applies with equal force to defendants who are successful on a special motion to dismiss.”

As always, stay tuned.

Update: The plaintiffs and Gallego have filed a “Notice of Settlement” with the Superior Court in which they jointly give “notice of settlement of the above-entitled matter with regards to Mr. Gallego’s Motion for an Award of Costs of Litigation, Including an Award of Reasonable Attorneys’ Fees. In light of said settlement, the parties deem the above-captioned matter resolved as it pertains to Mr. Gallego.”