Seattle Times Company v. LeatherCare, Inc.
Filing
288
MINUTE ORDER denying third-party defendants' 274 Motion for Clarification treated as a Motion to Amend Court's Findings of Fact and Conclusions of Law; striking third-party defendant Touchstone's 281 Motion for Attorney Fees for Prejudgment Interest and Costs. Authorized by Judge Thomas S. Zilly. (SWT) (cc: Ninth Circuit via ad hoc)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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SEATTLE TIMES COMPANY,
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Plaintiff,
v.
LEATHERCARE, INC.; STEVEN RITT;
and the marital community composed of
STEVEN RITT and LAURIE ROSENRITT,
Defendants/Third-Party
Plaintiffs,
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C15-1901 TSZ
MINUTE ORDER
v.
TOUCHSTONE SLU LLC; and
TB TS/RELP LLC,
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Third-Party Defendants.
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The following Minute Order is made by direction of the Court, the Honorable
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(1)
The motion for clarification, docket no. 274, brought by third-party
defendants Touchstone SLU LLC and TB TS/RELP LLC (collectively, “Touchstone”), is
treated as a timely motion, made pursuant to Federal Rule of Civil Procedure 52(b), to
amend the Court’s findings of fact and conclusions of law, docket no. 270, and it is
DENIED. Touchstone challenges the following language in the Court’s Order entered
August 15, 2018: “Because Seattle Times has already paid Touchstone more than what it
has been determined to owe after allocation under MTCA [Washington’s Model Toxics
Control Act], Touchstone’s request for prejudgment interest is denied as moot.” Order at
118 n.77 (docket no. 270). Touchstone contends that this footnote lacks clarity as to
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MINUTE ORDER - 1
1 whether Touchstone is entitled to prejudgment interest from plaintiff Seattle Times
Company (“Seattle Times”) under the Environmental Remediation and Indemnity
2 Agreement (“ERIA”) between the parties. The footnote, however, is unequivocal that
Touchstone’s request for prejudgment interest is denied and, as acknowledged in its
3 Rule 52(b) motion, Touchstone sought prejudgment interest only under the ERIA, and
not pursuant to MTCA. The Court remains persuaded that Touchstone is not entitled to
4 prejudgment interest in connection with the amount awarded pursuant to the ERIA.
Under Washington law, which governs as to Touchstone’s contract claim, prejudgment
5 interest is permitted only when the amount claimed is “liquidated.” See Hansen v.
Rothaus, 107 Wn.2d 468, 472, 730 P.2d 662 (1986). A claim is “liquidated” when the
6 evidence furnishes data that, if believed, makes computation of the exact amount of
damages possible, without reliance on opinion or discretion. Id. (citing Prier v.
7 Refrigeration Eng’g Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968)). An “unliquidated”
claim is one that depends “upon the opinion or discretion of the judge or jury.” Id. at
8 473; see also Car Wash Enters., Inc. v. Kampanos, 74 Wn. App. 537, 549, 874 P.2d 868
(1994) (“if the factfinder must exercise discretion to determine the measure of damages,
9 the claim is unliquidated”). In Kampanos, the Washington Court of Appeals affirmed the
denial of prejudgment interest, explaining that, although the amount that the plaintiff
10 expended to clean up the contamination at issue was a sum certain, the defendant’s share
of those costs was not. 74 Wn. App. at 549. This case is in a similar posture. In
11 calculating the amount owed by Seattle Times to Touchstone under the ERIA, the Court
was required to devote 28 of the 55 pages (over 50%) of the discussion section of a
12 121-page order to the tasks of construing the contract, determining whether particular
expenses qualified as “incremental costs” and/or related to third-party claims, and
13 assessing whether various amounts claimed by Touchstone pursuant to its contract with
Seattle Times were supported by the law and the evidence. To suggest that the resulting
14 award to Touchstone was a “liquidated” amount simply ignores the many weeks of trial
in this matter and the several months of effort expended by the Court in crafting findings
15 of fact and conclusions of law.
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(2)
In its motion for attorney’s fees, docket no. 281, Touchstone has sought
both prejudgment interest and costs. The request for prejudgment interest is STRICKEN
as moot for the reasons set forth in Paragraph 1, above. By Order entered August 15,
2018, Touchstone was directed to tax costs in the manner set forth in Local Civil
Rule 54(d), which requires that a bill of costs be filed within twenty-one (21) days after
the entry of judgment. See Order at 119 (docket no. 270). The Court did not extend the
deadline for taxing costs. See id.; see also Minute Order at ¶ 2 (docket no. 273) (setting
a due date for only an attorney’s fees motion). Touchstone did not timely tax costs. The
Court will treat Touchstone’s pending motion as seeking an extension of time to file a
separate tax bill to be considered by the Clerk pursuant to Local Civil Rule 54(d). Any
response to such request for extension shall be incorporated into any response concerning
Touchstone’s motion for attorney’s fees.
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MINUTE ORDER - 2
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(3)
The Clerk is directed to send a copy of this Minute Order to all counsel of
record and to the United States Court of Appeals for the Ninth Circuit.
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Dated this 16th day of October, 2018.
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William M. McCool
Clerk
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s/Karen Dews
Deputy Clerk
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MINUTE ORDER - 3
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