Nash v. Matanuska Susitna Borough

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CHARLES E. NASH,
Plaintiff,
vs.
MATANUSKA-SUSITNA
BOROUGH,
Defendant.
Case No. 3:19-cv-00235-JMK
ORDER GRANTING IN PART
MOTION FOR ATTORNEY FEES
Before the Court at Docket 45 is Defendant Matanuska-Susitna Borough’s
(“the Borough”) Motion for Attorney Fees. Plaintiff Charles Nash did not file a response.
For the reasons set forth below, Defendant’s Motion is GRANTED IN PART.
Mr. Nash alleged that the Borough destroyed his property in violation of the
Fifth and Fourteenth Amendments of the United States Constitution, and Article I and
Article VIII of the Alaska Constitution.1 	The Court granted summary judgment in favor
of the Borough, finding that Mr. Nash’s claims were barred by the Parties’ 2013 Settlement
Agreement.2 	The Borough now moves the Court to award full attorney fees because
Mr. Nash 	acted 	in 	bad 	faith, 	or, 	in 	the 	alternative, 	under 	Alaska 	Civil 	Rule 	of
1 Docket 1 at 5.
2 See generally Docket 42.
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Nash v. Matanuska-Susitna Borough 	Case No. 3:19-cv-00235-JMK
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Procedure 82.3 The Court declines to award attorney fees under its inherent power, but it
does award adjusted fees pursuant to Rule 82.
A federal court has inherent power to award attorney fees to a prevailing
party if the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive
reasons.4 	Here, the Court is not convinced that Mr. Nash acted in bad faith or for an
improper purpose. 	As the Borough notes, “the ‘mere fact that an action is without merit
does not amount to bad faith . . . the court must find something more than a party knowingly
pursued a meritless claim or action. . . .’”5 Mr. Nash, acting pro se, provided little evidence
for his claim and did not appear to understand his role in this litigation.6 While the Court
understands the Borough’s frustration with Mr. Nash’s “fail[ure] to exert any modicum of
effort,” it cannot identify specific conduct that shows anything more than a deep
misunderstanding of the law and the judicial process.7
However, attorney fees are authorized by Alaska law even absent a finding
of bad faith. 	This Court exercised federal question jurisdiction over Mr. Nash’s federal
3 Docket 45 at 1.
4 Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991); Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 269–71 (1975) (explaining that, absent a statutory command,
federal courts generally apply the American Rule in which each side pays its own attorney fees).
5 Docket 45 at 6 (quoting BDT Prods., Inc. v. Lexmark Intern., Inc., 602 F.3d. 742, 753
(6th Cir. 2010) (emphasis in original)); see also Fink v. Gomez, 239 F.3d 989, 993 (9th Cir. 2001).
6 See, e.g., Docket 34 at 2 (Mr. Nash stating that he is not required to submit evidence
with his motion for summary judgment because he plans to present it at trial).
7 Docket 45 at 8 (arguing that Mr. Nash’s conduct, taken as a whole, is commensurate to
bad faith because his claim was meritless, he failed to meet deadlines, and he did not provide
evidence for his claim). In the specific instance where Mr. Nash refused to abide by the Court’s
Order, he was sanctioned for that conduct. See generally Docket 29.
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Nash v. Matanuska-Susitna Borough 	Case No. 3:19-cv-00235-JMK
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constitutional claims and supplemental jurisdiction over his Alaska constitutional claims.8
In this situation, the Court applies Alaska law to award attorney fees for the state-law
claim.9 Under Rule 82(a) of the Alaska Rules of Civil Procedure, “the prevailing party in
a civil case shall be awarded attorney’s fees.” The Rule authorizes the Borough to receive
twenty percent (20%) of the actual attorney fees necessarily incurred.10 Understanding that
the attorneys’ work cannot be cataloged by federal or state claims,11 the Borough billed
685.30 hours working on this matter at $250 per hour, setting its presumptive fee award at
$34,265.12
The Borough requests the full amount of actually incurred attorney fees
(totaling $171,325) alleging that Mr. Nash acted in bad faith. 	Under Rule 82, the Court
may vary the presumptive award based on:
(A) 	the complexity of the litigation;
8 See 28 U.S.C. § 1367(a); Docket 1 at 3 (explaining that the action arises under both the
United States and Alaska Constitutions). The Borough argues that the Court exercised diversity
jurisdiction over Mr. Nash’s claims, but the result is the same. See In re Exxon Valdez, 484 F.3d
1098, 1100 (9th Cir. 2007) (explaining that the basis of a federal court’s jurisdiction over a state
law claim is irrelevant for Erie purposes; where state law supplies the rule of the decision, the
courts apply that law).
9 Disability L. Ctr. of Alaska, Inc. v. Anchorage Sch. Dist., 581 F.3d 936, 941 (9th Cir.
2009). 10 Alaska R. Civ. P. 82(b)(2).
11 Normally, the Court would award attorney fees only for the time spent litigating the
state-law claim. 	However, when state and federal claims are so intertwined that segregation is
impossible, the Court is not required to apportion its award. United States for use and benefit of
Midstate Equip., Inc. v. Ahtna Constr. & Primary Prod., LLC, No. 4:19-CV-00010-JWS, 2021
WL 6845543, at *2–3 (D. Alaska Oct. 25, 2021). Here, Mr. Nash’s state and federal constitutional
claims share an identical factual basis such that the Borough’s legal defense was indistinguishable,
and the attorneys’ work on the state claims cannot be isolated.
12 See Docket 45-7; Docket 45-8; Docket 45-9; Docket 45-40. 	At times, the Borough’s
motion references a rate of $225 per hour, but its requested relief, calculations, and affidavits all
claim a rate of $250 per hour.
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(B) 	the length of trial;
(C) 	the reasonableness of the attorneys’ hourly rates
and the number of hours expended;
(D) 	the reasonableness of the number of attorneys
used;
(E) 	the attorneys’ efforts to minimize fees;
(F) 	the reasonableness of the claims and defenses
pursued by each side;
(G) 	vexatious or bad faith conduct;
(H) 	the relationship between the amount of work
performed and the significance of the matters at stake;
(I) 	the extent to which a given fee award may be so
onerous to the non-prevailing party that it would deter similarly
situated litigants from the voluntary use of the courts;
(J) 	the extent to which the fees incurred by the
prevailing party suggest that they had been influenced by
considerations apart from the case at bar, such as a desire to
discourage claims by others against the prevailing party or its
insurer; and
(K) 	other equitable factors deemed relevant.13
In addition to Mr. Nash’s alleged bad-faith conduct, the Borough argues that its rate and
hours expended are reasonable, it took efforts to minimize fees, the litigation was both
complex and important, and an award of full fees would not deter future litigants from
voluntary use of the courts.14
13 Alaska R. Civ. P. 82(b)(3).
14 Docket 45 at 19–21.
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These factors do not counsel an increased award. 	As discussed, the Court
does not find Mr. Nash to have acted vexatiously or in bad faith. The difficulty in litigating
against a pro se party and the unreasonableness of Mr. Nash’s claims are neutralized by
the relatively high number of hours billed by the Borough. Most importantly, an enhanced
award is unwarranted given the straightforward resolution of this case and Mr. Nash’s
status as a pro se litigant.15
The Court is especially wary of an award being so onerous as to discourage
use of the courts by other litigants and be unjust to Mr. Nash. 	The record indicates that
Mr. Nash held a sincere belief in his claims, and the Borough has not presented evidence
that 	he 	is 	a 	frequent 	or 	otherwise 	vexatious 	litigant. 	This 	Court 	previously 	has
acknowledged Mr. Nash’s age and financial status in awarding reduced fees.16 That said,
Mr. Nash has yet to pay the Borough the $272.50 in attorney fees previously levied against
him.17 Given the totality of the circumstances, the Court feels it would be unjust to award
tens of thousands of dollars in attorney fees against a pro se litigant for a relatively
straightforward case. Therefore, the Court reduces the fee award and orders that Mr. Nash
pay the Borough five percent (5%) of the actual attorney fees necessarily incurred, totaling
$8,566.25.
15 Mr. Nash’s pro se status, by itself, does not insulate him from sanctions or attorney fees.
Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994). However, it cautions this Court against
enhancing an award due to conduct that is to be expected from a pro se litigant. See id.
16 Docket 29 at 5.
17 Docket 45-2 at ¶ 5.
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Nash v. Matanuska-Susitna Borough 	Case No. 3:19-cv-00235-JMK
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Defendant’s Motion for Attorney Fees is GRANTED IN PART. Plaintiff is
ordered to pay attorney fees in the amount of $8,566.25 to Defendant within 30 days of
this Order.
IT IS SO ORDERED this 7th day of October, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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