Caranchini v. Peck

          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 ...