United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR ATTORNEYS' FEES [DKT. #S 56
B. LEIGHTON, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant Belbadi and
Vandevco's Motion for Attorneys' Fees [Dkt. #s 56
& 59], following this Court's Order dismissing
Cerner's claims against them without prejudice for lack
of jurisdiction [Dkt. #45].
(and Vandevco) argue they are the prevailing party and that
they are entitled to their fees under RCW 4, 84.330. They
seek $67, 064 [Dkt. # 56] and a supplemental award
of $53, 092 [Dkt. #59], and costs of $400.
and Vandevco argue that Cerner sued to enforce the Belbadi
Guarantees, which included a provision allowing Cerner to
recover its fees in the event of a lawsuit. Cerner sued in
Washington, and under Washington law, they claim, a
contractual fee-shifting provision is bilateral, even if the
contract only provides that one of the parties is entitled to
In any action on a contract or lease entered into after
September 21, 1977, where such contract or lease specifically
provides that attorneys' fees and costs, which are
incurred to enforce the provisions of such contract or lease,
shall be awarded to one of the parties, the prevailing party,
whether he or she is the party specified in the contract or
lease or not, shall be entitled to reasonable attorneys'
fees in addition to costs and necessary disbursements.
Attorneys' fees provided for by this section shall not be
subject to waiver by the parties to any contract or lease
which is entered into after September 21, 1977. Any provision
in any such contract or lease which provides for a waiver of
attorneys' fees is void.
As used in this section "prevailing party" means
the party in whose favor final judgment is rendered.
Rev. Code Ann. § 4.84.330 (2011) (emphasis added). They
prevailed, they claim, and the Washington statute thus
entitles them to recover their fees.
argues that Belbadi and Vandevco did not
"prevail" in the "final" sense required
for fee-shifting under the Washington statute. The case was
dismissed without prejudice, leaving it free to pursue its
claim elsewhere. Indeed, defendants' primary and
successful argument for dismissal was that it should do so.
Cerner argues that under RCW 4.84.330, even
"bilateral" contract fees are available only when a
party obtains a "final judgment" in its favor.
relies on Wachovia SBA Lending v. Kraft, 138 Wn.App.
854 (2007), which held that a defendant is not
entitled to his fees when the plaintiff takes a voluntary
nonsuit. A final judgment, it held, is one that has
preclusive effect. A dismissal without prejudice for want of
jurisdiction does not have preclusive effect.
and Vandevco argue that a defendant who succeeds in obtaining
dismissal on jurisdictional grounds has "prevailed"
for purposes of the statute. It argues that "final"
does not mean "on the merits." But the authorities
upon which it relies do not interpret or apply the Washington
statute, or any analogous statute or situation. Citizens
for a Better Environment v. Steel Co., 230 F.3d 923
(7th Cir. 2000), for example, involved Montana
law, a § 1983 claim and Rule 11 sanctions. It did not
involve a unilateral fee provision in a contract, made
bilateral by statute in the event of a final judgment. It did
not hold that a judgment can be "final" even if it
is without prejudice.
judgment's "finality" does not necessarily
depend on it being "on the merits;" it depends on
whether, unlike Cerner (and the plaintiff in
Wachovia), the plaintiff is "free to file a new
file a new action against the defendant, leaving final
judgment on their dispute for a future day." See
Wachovia at 138 Wash.App. at 862; Dkt. # 62 at 3. A
voluntary dismissal, like a dismissal for want of
jurisdiction, leaves the parties as if the suit had never
been filed. Belbadi and Vandevco did not obtain a final
judgment for purposes of RCW 4.84.330.
conclusion is bolstered by another fact, not addressed by the
parties. Cerner did not bring a Washington contract action,
and it did not dispute that the contract at issue was
enforceable (only) under the law of the U.A.E. It did seek
judgment, and fees, but it did not put into play any contract
governed by Washington law. The Court does not know whether
the U.A.E. has a similar "unilateral is bilateral"
contractual fee-shifting mechanism, or whether a court there
would enforce any contractual attorney fee provision. Belbadi
and Vandevco addressed this issue only in a footnote, but it
is far from clear that RCW 4.84.330 applies to this U.A.E.
contract dispute, at all. The ...