On Friday, Judge Liman granted Blake Lively’s motion for attorneys’ fees and costs, but denied her request for damages (including treble and punitive damages), following the court’s dismissal of a lawsuit filed by Justin Baldoni and his production company accusing Lively of defamation arising from the filming of It Ends With Us (see our prior coverage of the cases here).
Last month, the parties settled their disputes, including Lively’s related lawsuit alleging sexual harassment and retaliation, but left for the Court to decide Lively’s request for fees, costs, and damages under California Civil Code Section 47.1.
Enacted in 2023 in response to the #MeToo movement, Section 47.1 establishes a qualified privilege for communications made without malice concerning sexual harassment, assault, or discrimination, and it permits a prevailing defamation defendant to recover attorneys’ fees, costs and damages.
Lively did not pursue a substantive claim (or counterclaim) for damages under Section 47.1 but sought to recover them via a mere post-judgment motion under Federal Rule of Civil Procedure 54(d). Rule 54(d) allows the prevailing party to recover costs and to pursue, if the underlying law allows it, a “claim for attorney’s fees” by a motion after judgment.
Judge Liman rejected Lively’s request for damages because Rule 54(d)’s text simply does not contemplate recovery beyond costs and fees, and because it would upend the overall structure of procedural protections in the Federal Rules for defendants to be exposed to “damages” by a post-trial motion only:
Rule 54(d) is titled “Costs; Attorney’s Fees,” and it discusses certain procedures for the award of those two categories of expenses. Fed. R. Civ. P. 54(d). It does not mention “damages”—compensatory, treble, punitive, or otherwise ….
By seeking damages through Rule 54(d), Lively circumvents th[e] web of procedures and processes designed for the orderly, just, and fair determination of civil claims in federal court. In essence, she seeks to pursue a kind of malicious prosecution or abuse of process claim . . . all without the benefit of formal pleading, discovery, and dispositive motion practice in line with Rules 12(b) and 56. Also lurking in the background is a potential conflict with the Seventh Amendment, which guarantees in federal court the right to a jury trial “in Suits at common law.” U.S. Const. amend. VII
….
It is understandable that Lively might attempt to shoehorn her damages claim into a Rule 54(d) motion. Litigation is costly, time consuming, and risky, and to the extent Section 47.1 is intended to remedy harms to defamation defendants as quickly, efficiently, and easily as possible, Rule 54(d)’s procedures—which permit fee liability and award determinations based upon mere motion and evidentiary hearing, see Fed. R. Civ. P. 54(d)(2)(C)–(D)—present an alluring alternative to the normal arc of litigation. But those benefits cannot come at the expense of the rights of the defamation plaintiff. By its own terms, and especially when viewed in the context of the Federal Rules as a whole, Rule 54(d) does not sweep so broadly. It does not create an end run around the entire set of carefully crafted federal procedural rules designed to protect the rights of the parties.