Opinion
3:20-cv-02143-JR
08-11-2021
MARLIN ARD, Plaintiff, v. OREGON STATE BAR, public corporation defined in ORS 9.010 (2); COURTNEY DIPPLE, (OSB No. 022916); MERRY ANN MOORE, an individual; ROB CORRIGAN, an individual; and DOES 1-100, Defendants.
FINDINGS &RECOMMENDATION
JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE.
Defendants Merry Ann Moore and Rob Corrigan's move for Attorney Fees and Costs in the amount of $9, 976 in attorney fees and of $54.22 in costs (ECF 32) and move for Imposition of Sanctions (ECF 34). For the reasons that follow, defendants' Motion for Attorney Fees and Costs should be GRANTED, and Motion for Imposition of Sanctions should be DENIED.
DISCUSSION
I. Attorney Fees Legal Standards
Oregon law governs the award of attorney fees in this case. Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011). (“State laws awarding attorneys' fees are generally considered to be substantive laws under the Erie doctrine...”). The relevant state law governing this case is Oregon's anti-SLAPP statute, Or. Rev. Stat. § 31.150. Under Or . Rev. Stat. § 31.152(3), “[a] defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs.” Defendants prevailed on their motion, so attorney fees and costs are mandatory.
Next, the Court must analyze the reasonableness of the attorney fees and costs. “In determining a reasonable attorney fee award under Or. Rev. Stat. § 31.152(3), the trial court must consider factors enumerated in Or. Rev. Stat. § 20.075.” Biggar v. Oregon Bd. of Optometry, 2018 WL 2244704, at *1-2 (D. Or. May 16, 2018) (citing Robinson v. DeFazio, 286 Or.App. 789 (2017)). Or. Rev. Stat. § 20.075 requires a two-part inquiry.
First, the Court must consider:
(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.
(b) The objective reasonableness of the claims and defenses asserted by the parties.
(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.
(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.
(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.
(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.
(g) The amount that the court has awarded as a prevailing party fee under ORS 20.190.
(h) Such other factors as the court may consider appropriate under the circumstances of the case.
Or. Rev. Stat. § 20.075(1). Second, the Court must consider:
(a) The time and labor required in the proceeding, the novelty and difficulty of the questions involved in the proceeding and the skill needed to properly perform the legal services.
(b) The likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney from taking other cases.
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved in the controversy and the results obtained.
(e) The time limitations imposed by the client or the circumstances of the case.
(f) The nature and length of the attorney's professional relationship with the client.
(g) The experience, reputation and ability of the attorney performing the services.
(h) Whether the fee of the attorney is fixed or contingent.Or. Rev. Stat. § 20.075(2). When analyzing these factors, a “court should ‘includ[e] in its order a brief description or citation to the factor or factors on which it relies.'” O'Connor v. County of Clackamas Eyeglasses, 2016 WL 3063869, at *2 (D. Or. May 31, 2016) (citing McCarthy v. Or. Freeze Dry, Inc., 327 Or. 185, 190-91 (1998)). However, the Court “‘ordinarily has no obligation to make findings on statutory criteria that play no role in the court's decision.' ” Id. (citing Frakes v. Nay, 254 Or.App. 236, 255 (2012)).
“Under Or. Rev. Stat. § 20.075(2), factor (a) generally relates to the reasonableness of the number of hours expended by counsel for the prevailing party, factors (c) and (g) generally relate to the reasonableness of the hourly rates charged, and factor (d) generally informs whether an upward or downward adjustment might be appropriate.” Id. These factors are like the “lodestar” method for calculating reasonable attorney fees. Id. at 3. “The lodestar method yields a presumptively reasonable fee, subject to either upward or downward adjustment as appropriate.” Id. at 3 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010)). Oregon courts have accepted and applied the lodestar method to Oregon statutes including ORS. 20.075. See Strawn v. Farmers Ins. Co. of Or., 353 Or. 210, 221 (2013) (“The lodestar approach that the parties have used is at least a permissible one under the statutes involved, ” including Or. Rev. Stat. § 20.075); see also ZRZ Realty Co. v. Beneficial Fire & Cas. Ins. Co., 255 Or.App. 525, 554 (2013) (“The lodestar method that the trial court used is a commonly applied and permissible approach for determining the reasonableness of a fee award ....”).
II. Defendants' Motion for Attorney's Fees and Costs
As shown above, when analyzing the § 20.075 factors, a “court should ‘includ[e] in its order a brief description or citation to the factor or factors on which it relies.' ” O'Connor, 2016 WL 3063869, at *2. Here, the Court should find factors (a)-(f) of ORS 20.075(1) support the award of attorney fees. Primarily, under factor (b), it was unreasonable for plaintiff to file claims against these defendants under 42 U.S.C. §§ 1981 & 1983 without alleging any state action or racial discrimination, and the Court duly dismissed plaintiff's claims with prejudice under Oregon's anti-SLAPP statute. Nor would granting this motion deter others from asserting claims with merit. A fee award here would only cause those contemplating filing meritless, repetitive claims to think twice before doing so.
Under Or. Rev. Stat. § 20.075(2), the Court should find factors (a), (c), (d), and (g), the “lodestar” factors, support the amount of attorney fees. Under factor (a)-reasonableness of time and labor-the Court should find defendants' counsel spent a reasonable amount of time defending these claims based on a review of the invoices attached to defendants' motion. Under factors (c) and (g)-fees customarily charged and experience of attorneys-the Court should find the hourly rate of $180.00 for shareholder Hillary Boyd and $150.00 for Pedro Zugazaga are reasonable as below the average and customary litigation rate for comparable attorneys in the Portland metropolitan area. And finally, under factor (d)- the amount involved in the controversy and the results obtained-the Court should find defendants' early, expedited dismissal with prejudice of plaintiff's claim favors finding the attorney fees reasonable.
Under Or. Rev. Stat. § 31.152(3), defendants may also seek reasonable costs. Here, defendants paid $54.22 for the transcript of plaintiff's Oregon State Bar disciplinary hearing, a necessary cost of litigation premised on defendants' statements made in connection with this disciplinary matter. The Court should find these costs reasonable and grant the motion.
III. Defendants' Motion for Imposition of Sanctions
Defendants have also filed a scattershot motion for sanctions, basing their request on plaintiff's “pattern and practice of bad faith and vexatious actions, including commencing repeated, meritless litigation.” ECF 34 at 2. Defendants argue sanctions are appropriate, in essence, because plaintiff tried to re-litigate issues in this Court that were already decided in a prior action. See ECF 34 at 3-5. The sanctions motion cites variously to Rules 11 and 37 of the Federal Rules of Civil Procedure, “statutory provisions such as 28 U.S.C. § 1927, ” the All Writs Act, and this Court's inherent authority “to protect the integrity of the judicial system and prevent abuses of the judicial process.” Id. at 5. Because none of these provides a basis for sanctions in this case, the Court should deny defendants' motion.
First, defendants do not justify sanctions under Rule 11, the most typical avenue for sanctions against vexatious litigation. As the Ninth Circuit and courts in this district have repeatedly held, the “safe harbor” provision of Rule 11(c)(1)(A) requires a party seeking sanctions under the Rule to serve their motion on the opposing party at least 21 days before filing with the Court. Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998); Perez v. Peters, No. 2:14-CV-380-PK, 2017 WL 507624, at *12 (D. Or. Feb. 7, 2017) (“[T]his court is without authority to impose sanctions pursuant to Rule 11(c) absent the moving party's full compliance with the “safe harbor” provisions of the rule.”). Defendants have not attached proof of service or addressed their failure to comply with the “safe harbor” provision in their motion. See generally ECF 34. The Court should therefore deny defendants' motion to the extent it seeks sanctions under Rule 11.
The Court should find defendants likewise fail to make the required showing entitling them to sanctions under 28 U.S.C. § 1927, the All-Writs Act, or the Court's inherent authority. “An award of sanctions under 28 U.S.C. § 1927 or the district court's inherent authority requires a finding of recklessness or bad faith.” Barber, 146 F.3d at 711; Brooks v. Caswell, No. 3:14-CV-1232-AC, 2017 WL 2323264, at *7 (D. Or. May 25, 2017). Defendants point to the frivolousness of plaintiff's claims, and the fact that he has previously pursued them in state court as evidence sanctions are appropriate. ECF 34 at 4-5. But the fact that plaintiff filed meritless federal claims against these defendants does not mean his lawsuit was brought in bad faith, just misguided. And because this is the first such lawsuit in this court, the “serial litigator” danger defendants raise is not sufficiently established to warrant sanctions under either § 1927, the AllWrits Act, or the Court's inherent authority. The Court should therefore deny defendants' motion on these grounds as well.
Finally, defendants tangentially cite Rule 37 as an additional possible basis for sanctions. As with defendants' other purported bases for sanctions, the Court should find the shoe does not fit. Rule 37(b) empowers the court to take remedial action (i.e. order sanctions) if a party “fails to obey an order to provide or permit discovery, including an order under Rule ... 37(a).” Fed.R.Civ.P. 37(b)(2)(A); Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1222 (9th Cir. 2018). As the text makes clear, Rule 37 concerns discovery, and defendants' motion for sanctions has nothing whatsoever to do with plaintiff's discovery practice. Because defendants do not request relief on any discovery-related basis, and Rule 37 sanctions are limited to discovery disputes, the Court should not grant defendants' motion on Rule 37 grounds.
Because defendants do not present an actionable basis for sanctions under any federal rule, statute, or the Court's inherent authority, the Court should deny defendants' motion for sanctions.
CONCLUSION
For these reasons, defendants' Motion for Attorney Fees and Costs (ECF 32) should be GRANTED. Defendants should be awarded $9, 976 for attorney fees and $54.22 for costs. Defendants' Motion for Imposition of Sanctions (ECF 34) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.