Anderson v. Thompson Creek Mining Co. et al
Filing
70
MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that the motion for attorney fees 57 is GRANTED, and that defendant Thompson Creek be awarded $41,324.76 in attorney fees from plaintiff Sherman Anderson. IT IS FURTHER ORDERED , that the motion for reconsideration 59 and the motion to amend complaint 66 are DENIED. 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 (st)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SHERMAN ANDERSON,
Plaintiff,
Case No. 4:11-CV-639-BLW
v.
MEMORANDUM DECISION AND
ORDER
THOMPSON CREEK MINING CO., a
Colorado Corporation doing business in Idaho;
and PSYCHEMEDICS CORPORATION, a
Delaware Corporation doing business in Idaho,
Defendants.
INTRODUCTION
The Court has before it Thompson Creek’s motion for attorney fees seeking
$128,916 in fees. The Court also has before it plaintiff Anderson’s motion for
reconsideration and motion to amend complaint. The motions are fully briefed and at
issue. For the reasons set forth below, the Court will grant in part the motion for fees,
awarding $41,324.76, and will deny both of Anderson’s motions.
ANALYSIS
Thompson Creek’s Motion for Attorney Fees
This case was filed on December 16, 2011. Plaintiff Anderson claimed he was
fired by defendant Thompson Creek following a positive drug test. The gravamen of the
case as originally pled was divided equally between tort allegations and breach of
contract allegations. In his original complaint, Anderson alleged that defendant
Thompson Creek breached his contract of employment by firing him for the positive drug
Memorandum Decision & Order – page 1
test, and he also alleged that Thompson Creek and co-defendant Psychemedics
Corporation were negligent in the way they conducted the drug test.
The case remained in that posture for about a year, until January 18, 2013, when
Anderson filed a motion to amend his complaint. His proposed Second Amended
Complaint dropped nine claims and focusing almost exclusively on allegations that
Thompson Creek violated a statute – the Idaho Private Employer Alcohol and Drug-Free
Workplace Act (the Act) – when it fired him. Thompson Creek stipulated that Anderson
could amend his complaint. After the Second Amendment Complaint was filed,
Thompson Creek filed its motion for summary judgment. The Court granted that motion
on the ground that the Act did not provide for a private right of action under the
circumstances of this case. Thompson Creek is now seeking to recover its attorney fees.
Thompson Creek is clearly the prevailing party. Under Idaho Code § 12-120(3),
the prevailing party recovers its attorney fees “in any civil action to recover on a . . .
contract relating to . . . any commercial transaction.” Actions brought for breach of an
employment contract are considered commercial transactions and are subject to the
attorney fee provisions of § 12-120(3). Mackay v. Four Rivers Packing Co., 257 P.3d
755 (Id.Sup.Ct. 2011). In determining whether to award fees under § 12–120(3), “the
critical test is whether the commercial transaction comprises the gravamen of the lawsuit;
the commercial transaction must be integral to the claim and constitute a basis on which
the party is attempting to recover.” Clayson v. Zebe, 280 P.3d 731, 739 (Id.Sup.Ct. 2012)
(internal quotations omitted).
Memorandum Decision & Order – page 2
The central issue here is whether all of the fees Thompson Creek incurred –
$128,916 – related to a contract action that qualifies for a fee award under § 12-120(3), or
whether a portion was incurred in defending tort and statutory violation charges that do
not so qualify. See Northwest Bec-Corp v. Home Living Service, 41 P.3d 263, 270
(Id.Sup.Ct. 2002) (holding that claims based on tort or statutory violations do not qualify
for a fee award under § 12-120(3)). For example, in a case where the underlying action
was for breach of an employment contract, attorney fees incurred litigating a claim of
breach of fiduciary duty – a tort claim – were not recoverable under § 12-120(3). See
Prop. Mgmt. West, Inc. v. Hunt, 126 Idaho 897, 894 P.2d 130 (1995).
During the first year of the present case, the gravamen of the action was roughly
divided equally between contract and tort claims. But when Anderson filed his motion to
amend on January 18, 2013, the gravamen of this case changed substantially. The
Second Amended Complaint focused on a statutory violation. From January 18, 2013,
onward, this case was no longer a breach of contract case and Thompson Creek is not
entitled to its fees after this point. That accounts for $46,266.48 of the total fees sought.
See Olsson Affidavit (Dkt. No. 57-2). Subtracting that sum from the total amount of fees
sought yields a new figure of $82,649.52. That sum represents the fees incurred from the
beginning of this litigation until the date Anderson proposed to change the nature of this
case.
As stated above, the fees incurred during this period were roughly divided in an
equal manner between contract and tort allegations. The tort claims alleged that the drug
test was conducted negligently, and the fees incurred by Thompson Creek in defending
Memorandum Decision & Order – page 3
those allegations cannot be recovered under § 12-120(3). This Court has the discretion to
apportion the fee award to take into account the separate nature of the claims. See Willie
v. Board of Trustees, 59 P.3d 302, 307 (Id.Sup.Ct. 2002) (affirming apportionment of
fees to include those related to employment contract claims and exclude those related to
statutory and constitutional claims). The Court will accordingly reduce the figure of
$82,649.52 by 50% and award fees of $41,324.76.
Anderson’s Motion to Reconsider
Anderson asks the Court to reconsider its ruling that the Act provides for no
private right of action. The Court considered these arguments in its ruling and can find
no reason to reconsider them at this point. As the Court held, compliance with the Act is
voluntary. If the employer complies with the Act, he reaps its benefits, including having
the fired employee be deemed guilty of misconduct. This renders the employee ineligible
for unemployment benefits, and the employer is not exposed to an increase in his
unemployment tax. It is undisputed that Anderson received unemployment benefits here,
a clear signal that Thompson Creek was not in compliance with the Act. Moreover,
Thompson Creek’s policy did not provide employees with the right to a mandatory
second test on the same sample, see Exhibit G (Dkt. No. 41-7) as required by the Act. See
I.C. § 72-1704(7). Anderson’s own expert states that Thompson Creek “failed to perform
[Anderson’s] drug test . . . in compliance with the [Act]” by failing to give him the
opportunity for a second test on the same sample and by failing to give him the notice
required by the Act. See Swotinsky Affidavit (Dkt. No. 47) at ¶¶ 9, 10. The evidence
points only in one direction – Thompson Creek did not comply with the Act.
Memorandum Decision & Order – page 4
As the Court previously held, when an employer fails to comply with the Act, the
Act simply falls out of the picture, and the employee is left to his common law remedies.
In that situation, as the Court discussed in detail, the employee cannot sue the employer
for failing to comply with the Act because the Legislature clearly made compliance
voluntary. The Court refuses to reconsider that ruling and so will deny this motion.
Anderson’s Motion to Amend Complaint
Anderson seeks to amend his complaint under Rules 15 and 16 to add a claim for
invasion of privacy. The motion was filed about two months after the Court entered
judgment dismissing the entire case. Once final judgment has been entered, “a motion to
amend the complaint can only be entertained if the judgment is first reopened under a
motion brought under Rule 59 or 60.” Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th
Cir.1996). Anderson has not filed any motion under Rule 59 or 60, and his present
motion cannot be construed as a motion under those rules because in it he argues that “[i]t
clearly is not necessary for plaintiff to establish any basis under Rule 59 or 60 to reopen
the case.” See Anderson Brief (Dkt. No. 69) at p. 3. Lindauer holds otherwise and
requires that the Court deny this motion to amend.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for attorney
fees (docket no. 57) is GRANTED, and that defendant Thompson Creek be awarded
$41,324.76 in attorney fees from plaintiff Sherman Anderson.
Memorandum Decision & Order – page 5
IT IS FURTHER ORDERED, that the motion for reconsideration (docket no. 59)
and the motion to amend complaint (docket no. 66) are DENIED.
DATED: March 12, 2014
_________________________
B. Lynn Winmill
Chief Judge
United States District Court
Memorandum Decision & Order – page 6
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