United States District Court, D. Kansas
GWENDOLYN G. CARANCHINI, Plaintiff,
v.
LOLA PECK, et al., Defendants.
MEMORANDUM AND ORDER
CARLOS
MURGUIA UNITED STATES DISTRICT JUDGE.
This
matter is before the court on defendants Lola Peck and Rick
Peck's Joint Motion for Attorney Fees and Sanctions
Pursuant to K.S.A. 2016 Supp. 60-5320 (anti-SLAPP statute)
(Doc. 131). Defendants filed a motion to strike pursuant to
K.S.A. § 60-5320, the Public Speech Protection Act
(“the Act”), which this court granted in part and
denied in part. (Doc. 121.) Defendants now seek attorney fees
and sanctions they claim they are entitled to under the Act.
For the reasons set forth below, the court grants
defendants' motion in part and denies it in part.
I.
Background
Plaintiff
Gwendolyn G. Caranchini, a former attorney[1], and defendant
Rick Peck were involved in an extra-marital affair. At some
point Rick and his wife, defendant Lola Peck, filed for a
Temporary Restraining Order (“TRO”) against
plaintiff. At the time the TRO was filed, defendants were
divorced but apparently still living together.
On
February 9, 2017, plaintiff appeared in front of a Johnson
County District Court magistrate judge for a hearing on the
TRO. At the conclusion of the hearing, deputies from the
Johnson County Sheriff's Department arrived to arrest
plaintiff on telephone harassment charges. These charges
involved defendants. Plaintiff was taken to the Johnson
County Jail, where she was held until she was released the
following evening on bond. She was incarcerated for
approximately 36 hours. The telephone harassment charges were
eventually dismissed.
Plaintiff
filed a 147-page complaint on May 14, 2018, naming the Pecks,
Johnson County Sheriff Calvin Hayden and individuals at the
Johnson County Detention Center, and various individuals from
the Johnson County District Court and District Attorney's
Office as defendants. Specifically, against the Pecks,
plaintiff claimed:
• Libel/slander against Rick and Lola Peck for the false
filing of the TRO and false testimony by Rick Peck during the
TRO hearing,
• Libel/slander against Lola Peck for filing false
paperwork on the telephone harassment charge and for making
false statements to Assistant District Attorneys John Fritz
and Michael McElhinney,
• Harassment/threat of bodily harm against Lola Peck,
• Conspiracy to incarcerate against Lola Peck,
• Libel/slander against Lola Peck for claiming plaintiff
was “in need of a mental examination” in
documents filed in the telephone harassment case.
Defendants
moved to strike the claims against them under the Act,
arguing plaintiff's claims arose from the class of
privileged communications defined by and protected by the
Act. This court granted defendants' motion in part,
finding claims against them for libel and slander in regard
to their conduct surrounding the filing of the TRO and the
telephone harassment charges were protected under the Act.
The court did not extend the Act's protections to
plaintiff's claims against Lola Peck for
harassment/threat of bodily harm or for claims that Lola Peck
paid money to an Assistant District Attorney in order to
secure criminal charges and plaintiff's arrest and
incarceration. These claims were later dismissed for failure
to state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. In its order dismissing the claims, this
court directed defendants to file a motion detailing their
request for fees and/or sanctions as provided by K.S.A.
§ 60-5320. This motion is now before the court.
II.
Analysis
Enacted
in 2016, the Act-also known as an “anti-SLAPP”
statute-was passed to protect against “meritless
lawsuits that chill free speech, ” known as SLAPPs, or
“strategic lawsuits against public
participation.” See Eric Weslander, The
First Amendment Slapps Back: An Overview of the Free-Speech
Protections of Kansas' New Anti-SLAPP Statute, J.
Kan. B. Ass'n, January 2018, at 30, 31. The stated
purpose of the statute is to “encourage and safeguard
the constitutional rights of a person to petition, and speak
freely and associate freely, in connection with a public
issue or issues of public interest . . . while, at the same
time, protecting the rights of a person to file meritorious
lawsuits for demonstrable injury.” K.S.A. §
60-5320(b). Under the Act, a party may bring a motion to
strike the claim if it is “based on, relates to or is
in response to a party's exercise of the right of free
speech, right to petition or right of association.”
K.S.A. § 60-5320(d).
A party
prevailing on its motion to strike may seek attorney fees and
sanctions. See K.S.A. § 60-5320(g).
Specifically, this provision states that a court shall award,
without regard to any limits under state law:
(1) Costs of litigation and reasonable attorney fees; and (2)
such additional relief, including sanctions upon the
responding party and its attorneys and law firms, as the
court determines necessary to deter repetition of the conduct
by others similarly situated.
K.S.A. § 60-5320(g). The Act goes on to state that
“[t]he provisions of the public speech protection act
shall be applied and construed liberally to effectuate its
general purposes.” K.S.A. § 60-5329(k). Beyond
these statutory provisions, there is little guidance or
precedent to help the court determine what costs, fees, or
sanctions are appropriate after claims have been stricken
under the Act.
Defendants,
citing the “applied and construed liberally”
provision of the Act, argue that they are entitled to
recovery of all attorney fees associated with the litigation
of this case and request “additional relief” in
order to deter plaintiff from filing future claims that are
covered under the Act. Defendants request $95, 576 in
attorney fees, and for additional relief, defendants suggest
the court could monetarily sanction plaintiff, require
plaintiff to appear and produce financial records, or order
plaintiff to pay attorney fees for another case she filed
against defendants in Missouri.
In
response, plaintiff argues defendants' requested attorney
fees are unreasonable, particularly because their attorney
did not attempt to mitigate his costs because he refused to
meet with or talk to plaintiff. She also claims that the fees
are unreasonable because the reported hours spent are
excessive.
a.
Reasonable Attorney Fees and Costs
“When
state law governs whether to award attorney fees . . . that
state law also governs how to calculate the amount.”
Okla. Instrastate Transmission, LLC v. 25 Foot Wide
Easement, 908 F.3d 1241, 1246 (10th Cir. 2018). In
Kansas, “a lawyer's fee shall be reasonable.”
KRPC 1.5(a). Kansas courts look to the eight factors in Rule
1.5 of the Kansas Rules of Professional Conduct when
determining whether a request for attorney fees is
reasonable, “including the reasonableness of a fee
allowed to a prevailing party by statute.” Snider
v. Am. Family Mut. Ins. Co., 298 P.3d 1120, 1129 (Kan.
2013). These eight factors are:
(1) the time and labor required, the novelty and difficulty
of the questions involved, and the skill requisite to perform
the legal service properly;
(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude other
employment by the lawyer;
(3) the fee customarily charged in the locality for similar
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