WILLNERD v. SYBASE, INC.

Filing 158

MEMORANDUM DECISION AND ORDER granting in part and denying in part 145 Motion for Attorney Fees. Defendant shall therefore be awarded $669,248.50 in attorney fees. An Amended Bill of Costs shall be due 3 weeks from the date of this order. Plai ntiffs Objections shall be due 3 weeks from receipt of the Amended Bill of Costs and shall include only those objections not already identified in Plaintiffs Initial Objecitons 150 . Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARK WILLNERD,

Case No. 1:09-cv-00500-BLW

Plaintiff / Counterclaimant,
v.

MEMORANDUM DECISION AND
ORDER

SYBASE, INC.,
Defendant / Counterdefendant.

Before the Court is a Motion for Attorneys’ Fees (Dkt. 145) by Defendant /
Counterclaimant Sybase, Inc. Also pending is Plaintiff Willnerd’s Objection (Dkt. 150)
to Sybase’s Bill of Costs (Dkt. 144). The matters are fully briefed and at issue. The
Court has determined that oral argument would not significantly assist the decisional
process and will therefore consider the matters without a hearing. Being familiar with the
record and having considered the parties’ briefing, the Court will grant the Motion (Dkt.
145) in part and deny in part, and order further briefing concerning the Bill of Costs (Dkt.
144), as more fully expressed below.
BACKGROUND
Plaintiff Mark Willnerd sued his former employer, Defendant Sybase, Inc.,
alleging wrongful discharge, retaliation, breaches of contract and the covenant of good

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faith and fair dealing, and defamation. Sec. Am. Compl., Dkt. 98. In its initial Answer,
Sybase filed a counterclaim for breach of contract. Answer & Ctrclm., Dkt. 9. The
parties engaged in extensive discovery, and multiple, contentious discovery disputes.
Although the Court attempted to mediate the disputes to avoid the costs and delays
involved with formal motions, these attempts were largely unsuccessful.
The parties filed competing motions for summary judgment, and presented oral
argument on May 2, 2011. Upon thorough review of the record and arguments of
counsel, the Court granted summary judgment to Sybase. Mem. Dec. & Ord., Dkt. 137.
Defendant now moves for attorney fees (Dkt. 145).
LEGAL STANDARD
The issue of attorney fees in diversity actions is governed by the law of the
applicable state. Interform Co. v. Mitchell, 575 F.2d 1270 (9th Cir. 1978). Jurisdiction
here is based in part on diversity of citizenship under 28 U.S.C. § 1332. Sec. Am.
Compl., Dkt. 98 ¶ 3. Sybase seeks attorney fees under Idaho Code §§ 12-120(3) and 12121. Under either provision, Sybase must demonstrate that it prevailed. I.C. §§ 12120(3), 12-121. Sybase must also show that its requested fees are reasonable. Id.
1.

Prevailing Party
To determine which party prevailed on each issue or claim, the courts in Idaho

look to (1) the final result or judgment with respect to relief sought, (2) whether there
were multiple claims or issues, and (3) the extent to which the parties prevailed on each
issue or claim. Wheaton Equip. Co. v. Franmar, Inc., 2007 WL 576450 at *1 (D. Idaho

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2007) citing Sanders v. Lankford, 1 P.3d 823, 826 (Idaho Ct. App. 2000). Here there is
no question that Sybase was the over-all prevailing party on the claims for which the
parties sought relief. See Mem. Dec. & Ord., Dkt. 137. At issue is the extent to which
Sybase prevailed on each of the issues, and whether its success on any given claim
entitled it to attorney fees by statute or otherwise.
2.

Idaho’s Mandatory Fee Statute
Under Idaho’s mandatory attorney fee statute, the prevailing party in an action to

recover on a contract relating to services or in any “commercial transaction . . . shall be
allowed a reasonable attorney fee to be set by the court, to be taxed and collected as
costs.” I.C. § 12-120(3). Whether this provision applies is determined by examining the
gravamen of the claim on which relief was sought. Lettunich v. Key Bank Nat’l Ass’n,
109 P.3d 1104, 1110-11 (Idaho 2005); Thomas v. Med. Ctr. Physicians, P.A., 61 P.3d
557, 568 (Idaho 2002) (because employment relationship is contractual, mandatory
attorney fee statute applies to claim for wrongful termination in violation of public
policy).
Where a claim is based in contract, it is explicitly subject to the mandatory
attorney fee statute. Jenkins v. Boise Cascade Corp., 108 P.3d 380, 391 (Idaho 2005).
Tort claims arising in the same “commercial context” as a contractual claim also fall
within Idaho’s mandatory attorney fees statute, I.C. § 12-120(3). Lettunich, 109 P.3d at
1110-11. However, Idaho’s mandatory fee statute does not apply where the substance of
a claim on which the moving party prevailed sounds in tort. Northwest Bec-Corp. v.

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Home Living Serv., 41 P.3d 263, 270 (Idaho 2002). Nor does it apply where a claim’s
essence is a statutory violation. Atwood v. Western Const., Inc., 923 P.2d 479, 486
(Idaho Ct. App. 1996).
A.

Claims Regarding Education Assistance Agreement

Here, the only claims explicitly based in contract were the parties’ respective
claims regarding the Education Assistance Agreement. On these claims, the Court found
in favor of Sybase and against Willnerd. As prevailing party, Sybase is entitled to
reasonable attorney fees incurred in defending and pursuing the breach of Education
Assistance Agreement claims.
B.

Wrongful Discharge and Violation of the Implied Covenant of Good
Faith and Fair Dealing Claims

Less explicit, but still grounded in contract, are Willnerd’s claims for wrongful
discharge and breach of the implied covenant of good faith and fair dealing. In opposing
Sybase’s requested attorney fees, Willnerd contends that the Court did not permit him to
pursue these claims in contract; thus, the claims cannot be deemed as contractual in
nature. This conclusion misconstrues the Court’s decision.
Willnerd is correct that this Court rejected his argument, in support of the
wrongful discharge claim, that his employment was converted from at-will to for-cause.
Mem. Dec. & Ord., Dkt. 137 at 6-7. The Court also found that Willnerd’s argument
regarding the implied covenant was an effort to avoid the legal consequences of his atwill employment status. Id. at 8. But the fact that Willnerd’s employment was at-will
rather than for-cause does not imply that the relationship was not contractual; it simply

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means that Sybase could terminate the contract at any time, without a prescribed basis.
At the foundation of the implied covenant is a requirement that parties perform in good
faith, those obligations existing under a negotiated contract. Cantwell v. City of Boise,
191 P.3d 205, 213 (Idaho 2008).
Thus, Willnerd cannot use the Court’s finding that he was employed at-will to
avoid mandatory attorney fees under § 12-120(3). Sybase prevailed on the claims of
wrongful discharge and violation of the covenant of good faith and fair dealing. Because
those claims are contractual in nature, Sybase is entitled to fees under § 12-120(3).
As to Willnerd’s claims for retaliation and defamation, the Court finds that they
are rooted in Willnerd’s employment, but not in contract or a commercial transaction.
The Court therefore looks to the applicable discretionary attorney fee provisions.
3.

Discretionary Fees: Where Action Is Frivolous And Unreasonable
The courts in Idaho may award reasonable attorney fees to a prevailing party, so

long as it does not alter, amend, or repeal any statute otherwise providing for the award of
fees. I.C. § 12-121. A discretionary award of fees under this section is appropriate where
the court finds the action was frivolous, unreasonable, or without basis. BHA Invs., Inc.
v. State, 138 Idaho 348, 355 (2003).
A.

Retaliation Claims

Federal law also provides for reasonable attorney fees, at the court’s discretion, to
the prevailing party in an action brought under Title VII of the Civil Rights Act of 1964.
42 U.S.C. § 2000e-5(k); Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 420-22

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(1978). In exercising its discretion, the court assesses whether the plaintiff’s action was
“unreasonable, frivolous, meritless or vexatious,” or clearly became so, but plaintiff
continued to litigate. Christiansburg Garment Co., 434 U.S. at 421-22. For this
assessment, the court considers whether plaintiff’s position was without foundation or
hope of success, or brought “to embarrass or annoy the defendant.” United States v.
Manchester Farming P’ship, 315 F.3d 1176, 1183 (9th Cir. 2003) (citation omitted).
Here, the Court found that Willnerd’s retaliation claims failed under Ninth Circuit
precedent holding that the participation clause did not encompass internal investigations.
Mem. Dec. & Ord., Dkt. 137 at 12-14. The Court also noted Willnerd’s acknowledgment
that there was no existing legal basis for his position, and that Willnerd’s position was
unsupported by any apparent policy considerations. Id. at 14. The Idaho Human Rights
Commission (IHRC) similarly concluded, in light of controlling precedent, that Willnerd
did not engage in protected activity, and thus failed to establish a prima facie case of
retaliation. IHRC Dec., Ex. C to Durgan Dec., Dkt. 145-9.
However, Willnerd maintains that the reach of Title VII’s participation clause is in
flux, given the Supreme Court’s ruling – addressing the opposition clause – in Crawford
v. Metropolitan Gov’t of Nashville, 555 U.S. 271 (2009). As this Court discussed in
rejecting Willnerd’s argument, the very basis for the supposed broadening in Crawford
was the character of the protected activity. In Crawford, the plaintiff’s activity was
opposition; here, Willnerd’s activity was participation. The factual distinction between
Crawford and this case makes Crawford inapplicable.

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Despite the Court’s ultimate conclusion that Willnerd’s arguments failed, the
Court does not find that they rose to the level of being unreasonable or frivolous. That
Willnerd’s retaliation claims were legally unsupported under Ninth Circuit law does not
necessarily support an award of fees. Because his proposed broadening of Ninth Circuit
law arguably presented some hope of success, the Court will exercise its discretion to
deny fees on the federal retaliation claim. Willnerd correctly notes that attorney fees are
unavailable to a prevailing party on a claim under the IHRA, in light of the Idaho
Supreme Court’s holding in Stout v. Key Training Corp., 158 P.3d 971, 974 (Idaho 2007).
Thus, as to Willnerd’s state retaliation claim, the Court will also deny attorney fees.
B.

Defamation

Regarding Willnerd’s defamation claim, Willnerd failed to adequately allege a
false statement of fact, or implication of privileged information. Mem. Dec. & Ord. at
28-29. Willnerd cited a single allegedly defamatory statement – which the Court deemed
to be opinion. Sec. Am. Compl., Dkt. 98 at 25-26. Willnerd also implied, without
specificity, that there were others. As this Court previously noted, when a plaintiff seeks
to add a claim in an amended complaint – as here with Willnerd’s defamation claim – he
must be able to state a plausible claim. Order, Dkt. 89 (referencing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)). After
extensive discovery, including multiple depositions and broad electronic discovery of
Sybase’s e-mail server, and also permission to amend late in litigation, Willnerd’s Second
Amended Complaint raised only vague and conclusory allegations of defamation.

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The purpose of discovery is to seek evidence to support claims for which
plausibility pre-exists. Where a claim lacks any foundation, it is implausible, and
likewise, hope for its success is not reasonably present. That Willnerd hoped to stumble
upon evidence of a defamatory statement was an insufficient basis for a defamation
claim. Given the circumstances, the Court finds that the claim was frivolous, without
merit, and without hope for success, from its introduction in the First Amended
Complaint, to its ultimate dismissal. As to this claim, the Court will award Sybase
attorney fees.
4.

Reasonableness of Fees
The Court must next determine the reasonableness of Sybase’s requested fees. For

this, the Court considers the hours reasonably spent on the litigation, and multiplies it by
a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The product
of this calculation is the “lodestar” amount. Id.
A.

Attorney And Paralegal Rates

Based on the affidavits of counsel, the Court finds the requested attorney fee rates
appropriate for the Boise area, and will approve their use. See Schwarz v. Sec’y of Health
& Human Servs., 73 F.3d 895, 906 (9th Cir. 1995); Mot., Dkt. 145-1 at 21-22; Squyres
Dec., Dkt. 145-4; Curiale Dec., Dkt. 145-2; Reid Dec., Dkt. 145-3; Durgan Dec., Dkt.
145-5.
B.

Attorney and Paralegal Hours

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The Court has also reviewed the spreadsheet of hours and professional services
rendered. Sybase seeks fees for the work of four attorneys and two paralegals. Sybase is
not seeking fees for work of local counsel, or any attorneys who provided time and
services but were not regularly assigned to the matter, and who billed less than 40 hours
to the case in total. Durgan Dec. ¶ 10, Dkt. 145-5. In addition, Sybase reduced its hours
by 40% in a good faith effort to account for “perceived inefficiencies or duplication in the
work performed” and to account for Willnerd’s limited financial condition. Id. ¶ 14.
Despite these reductions, Willnerd notes that his attorneys’ fees total roughly half
those of Sybase. Resp., Dkt. 149 at 19; Dempsey Dec., Dkt. 149-1 at ¶ 6 (attorney and
paralegal time spent on behalf of Willnerd totaled 1,849.35 hours, compared to 3,882.43
spent on behalf of Sybase). Willnerd argues that Sybase’s total hours should be reduced
by an additional 50%.
Counsel for Sybase asserts that, in their experience, they expended far more hours
than in any similar case involving a single plaintiff, and that this was due to the “scorched
earth” approach taken by Willnerd in pursuit of his claims. Mot., Dkt. 145-1 at 19.
Sybase contends that the hours requested here are reasonable given the circumstances
which it confronted, i.e., the extent of discovery and discovery disputes.
Counsel for both parties pursued representation of their clients zealously.
Counsel’s aggressiveness in this matter is reflected in the Court’s docket entry orders
from attempts to informally mediate discovery disputes, as well as the Court’s
memorandum decisions. With increased legal jousting comes the price of attorney fees to

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the prevailing party. Having reviewed Sybase’s spreadsheet of hours and services
rendered (less those hours related to Willnerd’s retaliation claims) the Court finds them
reasonable. Willnerd makes no claim that any particular services or hours are
unreasonable. Absent a specific showing that claimed hours or services were
inappropriate or unreasonable, the Court finds that a 50% – or other percentage –
reduction of the claimed total hours is unwarranted. Accordingly, the Court will not
adopt Willnerd’s proposed reduction, based on counsel’s total comparative hours.
Willnerd asserts that a further reduction is appropriate, given Willnerd’s dire
financial straits. Resp. at 19. In support, Willnerd cites to a number of cases in which
reductions were applied based on respondents’ financial circumstances. Id. (citing
Sullivan v. Sullivan, 2010 WL 1651994 (D. Idaho April 21, 2010); Rydder v. Rydder, 49
F.3d 369 (8th Cir. 1995); Berendsen v. Nichols, 938 F.Supp. 737 (D. Kan. 1996)).
However, Willnerd makes no showing why a reduction beyond that already taken by
Sybase, is necessary given his financial circumstances. Thus, the Court will not apply
this proposed reduction.
Willnerd suggests that Sybase’s ability to pay its own way is a factor that should
be considered on Sybase’s motion for fees. Resp. at 19-20. However, the Ninth Circuit
case cited by Willnerd, Silver v. KCA, Inc., 586 F.2d 138, 143 (9th Cir. 1978), only
referenced a prior Circuit decision in which it had noted that a litigant’s ability to pay its
own attorney fees does not necessarily bar an award of fees. Id. (citing Van Hoomissen
v. Xerox Corp., 503 F.2d 1131 (9th Cir. 1974)). Moreover, in that case, the Circuit

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considered the prevailing defendant’s ability to pay along with other factors, including
whether plaintiff’s Title VII action was in good faith. Silver, 586 F.2d at 143. There,
following a bench trial, the trial court concluded that the plaintiff had brought the action
in good faith. Here, although the Court does not find that Willnerd acted in bad faith, it
concludes that the facts and procedural circumstances are distinguishable from Silver.
The Court declines to find, as the court did in Silver, that defendant should bear its own
fees. The Court will approve Sybase’s proposed hours – less those related to Willnerd’s
retaliation claims – as well.
According to Sybase, fees incurred in defending against the retaliation claims
totaled $17,157. Durgan Dec., Dkt. 145-5 at 6-7. The total fees incurred by Sybase was
$686,405.50. Mem. in Support of Mot., Dkt. 145-1 at 23. The Court will therefore
approve an award of attorney fees to Sybase in the amount of $669,248.50.
5.

Bill of Costs
Federal Rule of Civil Procedure 54(d)(1) “creates a presumption in favor of

awarding costs to a prevailing party, but vests in the district court discretion to refuse to
award costs.” Assoc. of Mexican-Amer. Educators v. State of Calif., 231 F.3d 572, 591
(9th Cir. 2000). A losing party bears the burden of demonstrating why costs should not
be awarded. Stanley v. Univ. of S. Calif., 178 F.3d 1069. 1079 (9th Cir. 1999) (citation
omitted).
The Ninth Circuit has found an abuse of discretion where a district court, in
imposing costs, failed to consider the fact of plaintiff’s unemployment as “persuasive

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evidence of the possibility [the plaintiff] would be rendered indigent should she be forced
to pay $46,710.97 – the total amount that the district court awarded against her.” Id. at
1080. Also, the trial court in that case failed to consider the chilling effect on future civil
rights litigants, of such a high cost to pursue their actions. Id. at 1079.
Applied here, the Court finds it appropriate to reduce costs awarded against
Willnerd, to the extent that they are attributable to Willnerd’s claim under Title VII.
Where costs for Willnerd’s remaining claims are distinguishable, a reduction in
consideration of the potential chilling effect on civil rights claims is not warranted.
Willnerd challenges as unnecessary the following specific expenses: $800 for
Sybase’s pro hac vice fees for four out-of-state attorneys; $3,733 for videotaping
depositions of Willnerd; $3,458.31 for expedited and duplicative transcript of videotaped
deposition; $7,905.91 for paper and electronic copies of transcripts from depositions of
Willnerd and Juli Ann Reynolds; $3,318.18 to scan and convert documents to electronic
format for counsel’s convenience; other charges for organizing and sorting documents for
counsel’s convenience. Objection, Dkt. 150.
Court fees, such as those for pro hac vice appearances, are allowable under Local
Rule 54.1(c)(1) and 28 U.S.C. § 1920(1). Accordingly, these costs incurred by Sybase
will be allowed. Local Rule 54.1(c)(3) provides that a prevailing party is entitled to the
cost of video-taped depositions, plus one copy. Thus, the Court will allow Sybase’s costs
for videotaping depositions. The Court agrees that Willnerd should not be charged for
the costs of expediting transcripts, for those copies beyond the one transcript of

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depositions allowed in the rules, or for charges to organize and sort documents for the
convenience of counsel. However, it is difficult to extract these costs from the
documentation provided by Sybase.
Sybase shall be ordered to submit an Amended Bill of Costs in keeping with this
order that: identifies those costs reasonably attributable to Willnerd’s federal and state
retaliation claims; omits duplicative transcripts from depositions beyond the original and
one copy allowed under the rules; omits costs incurred for expediting services, organizing
or sorting documents for the convenience of counsel. Willnerd will have 3 weeks to
submit objections to the amended Bill of Costs not already addressed in his initial
objections (Dkt. 150). The Court will issue its final determination on consideration of the
parties’ submissions.
ORDER
IT IS ORDERED THAT:
1.

Defendant’s Motion for Attorney Fees (Dkt. 154) is GRANTED in part,

DENIED in part. Defendant shall be awarded fees at its proposed rate for its proposed
hours, less those hours spent in defending against Plaintiff’s federal and state retaliation
claims. Defendant shall therefore be awarded $669,248.50 in attorney fees.
2.

Defendant shall submit an Amended Bill of Costs, consistent with the

Court’s analysis above: identifying costs attributable to Willnerd’s retaliation claims;
identifying and omitting costs for deposition transcripts exceeding the original and one
copy; and identifying and omitting costs incurred for expediting services, organizing or

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sorting documents for counsel’s convenience. This Amended Bill of Costs shall be due 3
weeks from the date of this order.
3.

Plaintiff’s Objections shall be due 3 weeks from receipt of the Amended

Bill of Costs and shall include only those objections not already identified in Plaintiff’s
Initial Objecitons (Dkt. 150). The Court’s final determination as to costs shall be
determined thereafter, on consideration of the parties’ pleadings.

DATED: January 20, 2012 

_________________________  
B. Lynn Winmill 
Chief Judge 
United States District Court 

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