Wagda et al v. AT&T Corp. et al

Filing 76

ORDER signed by Senior Judge John A. Mendez on 12/05/2022 DENYING the 61 Motion for Attorney Fees. (Spichka, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA, ex
rel. DONALD CLOYCE WAGDA,
Plaintiff,

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v.

No.

2:19-cv-01057-JAM-AC

ORDER DENYING DEFENDANTS’ MOTION
FOR ATTORNEYS’ FEES

AT&T CORP., a corporation, et
al.

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Defendants.

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Donald Cloyce Wagda (“Realtor”) filed this qui tam case

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against AT&T Inc. and its subsidiaries (collectively referred to

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as “Defendants”) under § 3729(a)(1)(C) and (D) of the False

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Claims Act (“FCA”).

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Court dismissed Realtor’s claims with prejudice under Federal

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Rule of Civil Procedure 12(b)(7) for failing to join an

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indispensable party and Realtor appealed.

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No. 56; Notice of Appeal, ECF No. 62.

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See Compl., ECF No. 1.

On July 1, 2022, the

See Order at 6, ECF

This matter is now before the Court on Defendants’ motion for

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attorney’s fees.

See Def.’s Mot. for Attorney’s Fees (“Mot.”),

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ECF No. 61.

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Defendants replied.

Plaintiff opposes the motion.

See Opp’n, ECF No. 70.

See Reply, ECF No. 71.
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For the reasons set

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forth below, Defendants’ motion is denied1

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I.

OPINION

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A.

Jurisdiction

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“The effective filing of a notice of appeal transfers

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jurisdiction from the district court to the court of appeals

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with respect to all matters involved in the appeal.”

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by Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956 (9th Cir.

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1983).

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attorneys' fees after the notice of appeal from the decision on

Masalosalo

“The district court retain[s] the power to award

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the merits has been filed.”

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decide the motion for fees despite Relator's pending appeal.

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B.

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Id. at 957.

Thus, this Court can

Attorneys’ Feed Under the FCA

Under the “American Rule,” each party in a lawsuit

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“ordinarily bears its own attorney’s fees unless there is express

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statutory authorization to the contrary.”

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461 U.S. 424, 429 (1983).

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Government does not proceed with the action and the person

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bringing the action conducts the action, the court may award to

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the defendant its reasonable attorneys' fees and expenses if the

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defendant prevails in the action and the court finds that the

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claim of the person bringing the action was clearly frivolous,

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clearly vexatious, or brought primarily for purposes of

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harassment.”

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declined to intervene.

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whether Plaintiff’s action was “clearly frivolous, clearly

Hensley v. Eckerhart,

The FCA provides that “[i]f the

31 U.S.C. § 3730(d)(4).

Here, the Government

As a result, the Court must determine

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for October 18, 2022.
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vexatious, or brought primarily for purposes of harassment” to

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entitle Defendants to the requested attorneys’ fees as §

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3730(d)(4) prescribes.

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Defendants argue this Court should grant attorneys’ fees

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because Realtor’s claims were frivolous.

See Mot. at 2-3, 6-8.

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Courts have found an FCA “claim is frivolous when, viewed

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objectively, it may be said to have no reasonable chance of

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success, and present no valid argument to modify present law.”

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Mikes v. Straus, 274 F.3d 687, 705 (2d Cir. 2001) (abrogated on

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other grounds by Universal Health Services, Inc. v. U.S., 136 S.

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Ct. 1989 (2016)).

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[FCA] is reserved for rare and special circumstances,” Pfingston

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v. Ronan Eng'g Co., 284 F.3d 999, 1006-07 (9th Cir. 2002), and

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subject to “exacting standards” that are difficult to fulfill.

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See U.S. ex re. Madden v. General Dynamics Corp., 4 F.3d 827, 831

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(9th Cir. 1993)

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attorneys’ fees under the FCA.

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Ninth Circuit’s reasoning that 42 U.S.C. § 1988 “cases are

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instructive in deciding whether fees are appropriate under the

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[FCA]” because the award of attorneys’ fees under the FCA “tracks

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the formulation as to when fees are appropriate under []

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§ 1988 . . . .”

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Accordingly, “[t]he award of fees under the

Nonetheless, there are few decisions awarding
In turn, this Court follows the

When analyzing a § 1988 attorneys’ fees claim, this

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jurisdiction applies the Christianburg standard that only awards

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attorneys’ fees when “the plaintiff's action was frivolous,

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unreasonable, or without foundation, even though not brought in

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subjective bad faith.”

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U.S. 412, 421 (1978).

Christianburg Garment Co. v. EEOC, 434
“In determining whether this standard has
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been met, a district court must assess the claim at the time the

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complaint was filed, and must avoid post hoc reasoning by

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concluding that, because a plaintiff did not ultimately prevail,

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his action must have been unreasonable or without foundation.”

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Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th

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Cir. 2006) (internal citations omitted).

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Christianburg, attorneys’ fees are not awarded routinely or

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simply because a defendant succeeds.

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421.

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As a result, under

Christianburg, 434 U.S. at

After review, the Court finds that Defendants failed to

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satisfy the strict governing standard for fee awards to

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prevailing defendants in a FCA case.

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were unsuccessful, they were not “frivolous, unreasonable, or

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without foundation” when filed.

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exceptional circumstances exist warranting a fee award.2

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Accordingly, the Court declines to exercise its discretion to

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award attorney’s fees under the § 3730(d)(4) of the FCA .

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II.

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Defendants did not prove

ORDER

For the reasons set forth above, the Court DENIES
Defendants’ Motion for Attorneys’ Fees.

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Id.

Although Realtor’s claims

IT IS SO ORDERED.
Dated: December 5, 2022

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Even if attorney’s fees were recoverable, the Court notes that
Defendants’ request for $100,247.61 for a motion to dismiss is
grossly excessive and any award would have been significantly
reduced.

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