XL Marketing Corp. et al v. Kirby

Filing 83

ORDER by Judge Hamilton denying 74 Motion for Attorney Fees (pjhlc2, COURT STAFF) (Filed on 8/8/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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XL MARKETING CORP., et al.,
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Plaintiffs,

No. C 11-5107 PJH

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v.
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ORDER DENYING MOTION FOR
ATTORNEY’S FEES

KRISTINA KIRBY,
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Defendant.
_______________________________/

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For the Northern District of California

United States District Court

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Before the court is defendant Kristina Kirby’s motion for attorney’s fees. Having read

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the papers filed in conjunction with the motion and carefully considered the arguments and

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the relevant legal authority, and good cause appearing, the court DENIES defendant’s

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motion.

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As an initial matter, defendant’s motion was not timely brought. This court’s local
rules provide as follows:
Unless otherwise ordered by the Court after a stipulation to enlarge time
under Civil L.R. 6-2, or a motion under Civil L.R. 6-3, motions for awards of
attorney’s fees by the Court must be served and filed within 14 days of entry
of judgment by the District Court.

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Civil Local Rule 54-5(a) (emphasis added).
Judgment was entered in this case on February 28, 2014, but defendant’s motion

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was not filed until April 30, 2014. While defendant explains that plaintiffs’ counsel “agreed

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to extend Kirby’s time to file this amended motion to April 30, 2014,” defendant never

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submitted a stipulation or a motion to the court, and thus never received a court order. On

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that basis alone, the court finds that defendant’s motion must be DENIED.

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Even if the court were to address the merits of defendant’s motion, it would still find
that the motion must be denied. As the parties note, this case was stayed on June 29,

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2012, pending the resolution of Davison v. Riley (11-2970). After Davison was resolved,

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defendant filed a motion for partial summary judgment regarding her counterclaims in this

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case. The court denied defendant’s motion, concluding that defendant sought an advisory

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opinion regarding the scope of federal CAN-SPAM preemption in the abstract, and noting

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that she presented no actual facts in her motion. See Dkt. 61. In the same order, the

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court, sua sponte, ordered plaintiffs to show cause as to why the case should not be

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dismissed for lack of subject matter jurisdiction. After receiving the parties’ responses, the

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court found that the court lacked subject matter jurisdiction over both plaintiffs’ claims and

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defendant’s counterclaims.
Defendant now argues that she is entitled to attorney’s fees, either as a “prevailing

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For the Northern District of California

United States District Court

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party” or because plaintiffs acted in “bad faith.” The court notes that, under either theory,

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an award of fees would be discretionary. However, more importantly, the court finds that

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defendant is not a prevailing party. While the claims against defendant were dismissed, the

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court notes that those claims were declaratory judgment claims that were brought after

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plaintiffs received demand letters from defendant’s counsel. Thus, the gravamen of this

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suit was defendant’s claim that she was entitled to thousands of dollars for receiving spam

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emails, and plaintiffs simply filed their declaratory judgment claims before defendant filed

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her counterclaims under California’s anti-spam law. On these facts, the court cannot find

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that defendant is the prevailing party. Moreover, even if defendant were considered a

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prevailing party, the court exercises its discretion not to award fees. Similarly, even if the

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court were to find that plaintiffs acted in bad faith, the court exercises its discretion not to

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award fees on that basis.

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Accordingly, defendant’s motion for attorney’s fees is DENIED.

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IT IS SO ORDERED.

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Dated: August 8, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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