Peiker Acustic, Inc. et al v. Kennedy

Filing 171

ORDER denying 168 Motion for Attorney Fees by Judge John L. Kane on 05/31/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane

Civil Action No. 10-cv-02083-JLK
PEIKER ACUSTIC, INC. and
PEIKER ACUSTIC GMBH & CO. KG,
Plaintiffs/Counterclaim Defendants,
v.
PATRICK KENNEDY,
Defendant/Counterclaimant.

ORDER DENYING DEFENDANT’S MOTION FOR ATTORNEY FEES
RELATING TO DEFAMATION CLAIM (Doc. 168)
Kane, J.
This action was originally brought by the Plaintiff Peiker entities against Defendant
Patrick Kennedy alleging defamation based on Defendant’s publication of a book critical of their
business practices. Defendant countersued for abuse of process, alleging the lawsuit was filed to
intimidate and harass him rather than for any bona fide purpose of vindicating the things said.
After a preliminary ruling that the statements in Kennedy’s book concerned matters of “public
concern” implicating a higher standard of proof for defamation, Plaintiffs moved voluntarily to
dismiss the defamation claim with prejudice. I granted the Motion (Doc. 112), indicating that
issues related to the allocation of attorney fees and costs “would be reserved pending resolution of
Kennedy’s counterclaims for abuse of process and exemplary damages.” See Order (Doc.
159)(nunc pro tunc). Kennedy’s counterclaims were tried to a jury over a period of ten days in

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April 2012, resulting in a verdict in Plaintiffs’ favor and against Mr. Kennedy. Mr. Kennedy now
moves for an award of his attorney fees related to the voluntarily dismissed defamation claim.
Kennedy seeks an award of fees under Fed. R. Civ. P. 41(a)(2) and C.R.S. § 13-17-210,
arguing both that Plaintiffs’ “aggressive two-year pursuit of their baseless defamation claim[]”
constitutes “exceptional circumstances” warranting fee shifting under Rule 41(a)(2) and that the
claim was “substantially frivolous.” I disagree. The claim was neither baseless nor frivolous.
Mr. Kennedy could have filed pretrial motions as to choice of law and for summary judgment
based on the “matters of public concern” standard but did not do so. The only dispositive motion
filed in this case was the Peiker entities’ Motion to Dismiss Mr. Kennedy’s ultimately failed
counterclaim. (Doc. 14.) Despite an eleventh hour reassignment of this case to me, I quickly
familiarized myself with the substance of the claim and counterclaims, the case’s pretrial history,
the parties, and their counsel. Having seen the case through pretrial ruling on the defamation
claim standards, negotiations surrounding the dismissal of that claim, the preparation of jury
instructions and ten days of trial (a trial that resulted in a complete defense verdict in favor of
Peiker and against Mr. Kennedy), I decline to find Plaintiffs’ litigation conduct with regard to the
defamation claim such as would justify an award of fees to Mr. Kennedy.
The Motion for Attorney Fees is DENIED.
DATED: May 31, 2012.
/s/ John L. Kane
Senior U.S. District Court Judge

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