Piccini v. Wells Fargo Auto Finance et al

Filing 33

ORDER denying 28 Motion for Attorney Fees. Signed by Judge David G Campbell on 4/6/2009.(NVO)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Wells Fargo Auto Finance, Inc., a California corporation; and Transunion ) ) LLC, a business entity domiciled in ) Delaware, ) ) Defendants. ) ) John R. Piccini, an individual,

No. CV-08-8125-PCT-DGC ORDER

Defendant Wells Fargo Auto Finance, Inc. has filed a motion for attorney's fees and costs. Dkt. #28. The motion has been fully briefed. Dkt. ##30, 32. The Court will deny the motion. Plaintiff's complaint asserts claims for violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and defamation. Dkt. #1. Plaintiff claims that Defendants published false credit information about him after he entered a truck lease agreement with Wells Fargo. Id. Wells Fargo invoked an arbitration clause in the lease agreement to prevail on its motion to compel arbitration. Dkt. ##21, 25. Wells Fargo now moves for attorney's fees and costs incurred in enforcing its right to arbitration. Under Arizona law, "[i]n any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees." A.R.S. § 12-

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341.01(A). "This statute allows attorney's fees only in the case of breach of contract, express or implied." Ford v. Revlon, Inc., 734 P.2d 580, 587-88 (Ariz. 1987). Plaintiff's complaint does not allege a breach of contract, nor can it be said that the statutory and tort claims alleged in the complaint would not have arisen but for breach of the lease agreement. Wells Fargo argues that its arbitration motion (Dkt. #21) was based on the lease agreement, but that is not the test under A.R.S. § 12-341.01(A). The question is whether the claims in this lawsuit arose out of contract. Because they did not, attorney's fees are not available under the statute. IT IS ORDERED that Defendant Wells Fargo's motion for attorney's fees (Dkt. #28) is denied. DATED this 6th day of April, 2009.

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