Opinion
3:20-cv-02143-JR
11-28-2022
MARLIN ARD, Plaintiff, v. OREGON STATE BAR, a public corporation defined in ORS 9.0102; COURTNEY DIPPLE OSB No. 022916; MERRY ANN MOORE, an individual; ROB CORRIGAN, an individual; and DOES 1100, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Defendants Merry Ann Moore and Rob Corrigan move for an award of supplemental attorney fees, in the amount of $8,142.90, that have been incurred since their dismissal on June 21, 2021, under Oregon's anti-SLAPP statute, Or. Rev. Stat. § 31.150 et seq. For the reasons that follow, Moore and Corrigan's motion should be granted in part, in the reduced sum of $1,824.30.
BACKGROUND
In December 2020, plaintiff Marlin Ard filed a Complaint in this Court against the Oregon State Bar (“OSB”) and three individual defendants, alleging claims for denial of due process and equal protection, assertion of false statements, and obstruction of justice, among others. Compl. ¶¶ 22-29 (doc. 1). In particular, plaintiff alleged that Moore and Corrigan made false statements to the OSB, causing it to initiate an ethics complaint against plaintiff. Id. at ¶¶ 24-26.
In January 2021, Moore and Corrigan moved to dismiss plaintiff's Complaint and strike the claims asserted against them. See generally Defs.' Mot. Dismiss (doc. 3); ORS 31.150 Special Mot. Strike (doc. 4). In June 2021, the Court granted Moore and Corrigan's motions. Ardv. Or.State Bar, 2021 WL 2534558, at *2 (D. Or. June 21, 2021).
Plaintiff appealed Moore and Corrigan's dismissal. See generally Notice of Appeal (doc. 31). The Ninth Circuit ordered plaintiff to show cause why the appeal should not be dismissed for lack of jurisdiction. Ard. v. Or. State Bar, Case No. 21-35535, Order (9th Cir. July 28, 2021).
On August 18, 2021, plaintiff erroneously submitted a Motion for Extension of time to this Court, wherein he argued that his appeal should not be dismissed. The following day, this Court entered a Minute Order as follows: “On August 18, 2021, Plaintiff filed with this Court a response to an Order from U.S. Court of Appeals for the Ninth Circuit directing Plaintiff to show cause in writing with the Ninth Circuit why his appeal filed in that court should not be dismissed for lack of jurisdiction. Plaintiff needs to file his response with the Ninth Circuit, in Case No. 21-35535.” Order (doc. 40). On September 10, 2021, Moore and Corrigan filed a response in the Ninth Circuit, arguing that appellate jurisdiction was lacking. The Ninth Circuit agreed and dismissed plaintiff's appeal on October 15, 2021. See generally Ard v. Or. State Bar, 2021 WL 6197133 (9th Cir. Oct. 15, 2021).
While plaintiff's appeal was pending, Moore and Corrigan moved for an award of attorney fees and costs under Or. Rev. Stat § 31.152(3), and for the imposition of sanctions. See generally Defs.' Mot. Att'y Fees & Costs (doc. 32); Defs.' Mot. Sanctions (doc. 34). On August 11, 2021, this Court recommended granting Moore and Corrigan's fee motion and denying their sanctions motion. On August 27, 2021, District Judge Simon adopted that recommendation awarding $9,976 in attorney fees and $54.22 in costs. Ard v. Or. State Bar, 2021 WL 3852191, at *4 (D. Or. Aug. 11), adopted by 2021 WL 3849706 (D. Or. Aug. 27, 2021).
On March 8, 2022, Moore and Corrigan moved for: (1) an order adopting the August 11, 2021, Findings and Recommendation; and (2) final judgment under Fed.R.Civ.P. 54(b). See generally Defs.' Mot. Reduce Order (doc. 56). Judge Simon denied the former as moot because he had already adopted the August 11, 2021, Findings and Recommendation, and denied the latter because Moore and Corrigan failed to meet Rule 54(b)'s standards. See generally Order (doc. 62).
On June 25, 2022, plaintiff filed a separate lawsuit in the Northern District of California, naming the OSB, Moore, and Corrigan as defendants, among others. Boyd Decl. Ex. 6 (doc. 766).
Moore and Corrigan filed the instant motion for attorney fees on October 20, 2022. Plaintiff has not yet filed a response, despite the deadline lapsing on November 3, 2022.
DISCUSSION
Moore and Corrigan ask this Court to award an additional $8,142.90 in attorney fees incurred in association with: (1) replying to plaintiff's response to the Ninth Circuit's order to show cause; (2) preparing their July 2021 motions for attorney fees and sanctions;(3) seeking a final judgment under Fed.R.Civ.P. 54(b); (4) defending against plaintiff's separate, out-of-district lawsuit; and (5) general case monitoring. Defs.' Suppl. Mot. Att'y Fees 2-4 (doc. 75).
As noted above, Moore and Corrigan were previously awarded $9,976 in attorney fees and $54.22 in costs for their successful motions to dismiss and strike. Moore and Corrigan now seek fees-on-fees in association with their initial fee petition, but do not request fees in connection with the instant motion. Although, as addressed herein, fees-on-fees are generally permissible, the Court is not inclined to entertain a third round of attorney fee motions at this juncture given that counsel has already received substantial compensation related to plaintiff's pro se allegations, Moore and Corrigan were dismissed as defendants more than a year ago, and an Order of Dismissal was entered as to the remaining claims/defendants on October 5, 2022 (and no appeal has been timely lodged).
Oregon law governs the award of attorney fees in this case. Northon v. Rule, 637 F.3d 937, 938-39 (9th Cir. 2011). Oregon's anti-SLAPP statute provides that “[a] defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs.” Or. Rev. Stat. § 31.152(3). “The only limitation on [an] award of attorney fees under Section 31.152(3) is that the fees must have been reasonably incurred in connection with litigating the defendant's reasonably necessary defenses.” Schwern v. Plunkett, 2017 WL 3709094, at *3 (D. Or. July 5, 2017).
Oregon applies the “lodestar” method to calculate reasonable attorney fees, wherein the number of hours reasonably expended are multiplied by a reasonable hourly rate. Roblin v. Newmar Corp., 2020 WL 2572530, at *1 (D. Or. May 21, 2020) (citations omitted). The Court must also consider the factors in Or. Rev. Stat. § 20.075, and may adjust the lodestar. Id.
Under Or. Rev. Stat. § 20.075(1), 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 (Prevailing party fees).
(h) Such other factors as the court may consider appropriate under the circumstances of the case.
Under Or. Rev. Stat. § 20.075(2), the Court must also 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.
When analyzing these factors, a “court should include in its order a brief description or citation to the factor or factors on which it relies.” O'Connor v. Cnty. of Clackamas Eyeglasses, 2016 WL 3063869, at *2 (D. Or. May 31, 2016) (internal citations, quotations, and alterations omitted). But the court “ordinarily has no obligation to make findings on statutory criteria that play no role in the court's decision.” Id. (citation omitted).
I. Reasonableness of Hours Expended
Moore and Corrigan request fees to pay their attorneys for 42.8 hours of work: 28.6 hours by Hilary Boyd, 13 hours by Kepa Zugazaga, and 1.2 hours by Jonathan Henderson. Boyd Decl. Ex. 1 (doc. 76-1). The Court finds the number of hours requested unreasonable to the extent they account for: (1) wholly or mostly redacted entries; (2) unsuccessful motions that did not advance Moore and Corrigan's defenses; (3) work done in association with plaintiff's separate lawsuit; and (4) excessive hours preparing brief filings.
First, Moore and Corrigan's attorneys redacted the description of 4.7 hours of work in their billing records. Id. at 8, 14. Billing records in attorney fees motions should contain “enough information for a court to form a judgment on whether [the] fees were legitimate[.]” Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1286 (9th Cir. 2004). Attorneys are entitled to “considerable secrecy” over internal affairs, but redactions from billing records should “not impair the ability of the court to judge whether the work was an appropriate basis for fees.” Id. If an entire entry is redacted, it may be appropriate to subtract that entry. See Biggar v. Or. Bd. of Optometry, 2018 WL 2244704, at *2 (D. Or. May 16, 2018). Here, counsel provides no description for redacted items totaling 4.5 hours and refers to a nondescript “e-mail” and “question” for an additional .2 hours. This is insufficient information for the Court to find this time was reasonably expended on this litigation. Accordingly, 4.7 hours are omitted.
Boyd notes that “[r]edactions have been made as necessary to preserve attorney-client privilege and to ensure that no fees accounted for in the prior award are included.” Boyd Decl. ¶ 2 (doc. 76). While several pages are entirely redacted, other entries include redactions but seek the amount of time spent. Boyd Decl. Ex. 1, at 1-8 (doc. 76-1).
Second, counsel billed 20.1 hours on unsuccessful motions-9.2 hours related to Moore and Corrigan's motion for sanctions, and 10.9 hours related to their motion for adoption and entry of final judgment. Boyd Decl. Ex. 1, at 9-13 (doc. 76-1). Because these motions were denied, they are only compensable if they were related to successful claims and “excellent results” overall were obtained. Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986). This Court found that Moore and Corrigan failed to establish that sanctions were appropriate, and their “scattershot” request was legally and factually distinct from their successful anti-SLAPP motion. Findings & Recommendation 5-6 (doc. 37); see also Heath v. Peoria Unified Sch. Dist. No. 11, 2008 WL 5274571, at *3 (D. Ariz. Dec. 18, 2008) (“fees should not be awarded for time spent on unsuccessful motions for sanctions”).
Similarly, the Court found that Moore and Corrigan's motion for adoption was moot because Judge Simon “previously adopted Judge Russo's Findings and Recommendation and granted attorney fees and costs to Moore and Corrigan in the total amount of $10,030.22 on August 27, 2021, which was just 16 days after Judge Russo filed her [decision.]” Order 1-2 (doc. 62). The Court also found the request for final judgment not warranted under Rule 54(b). Id. These motions were filed well after Moore and Corrigan were dismissed as defendants and did not in any way advance the relief sought. Cf.O'Neal v. City of Seattle, 66 F.3d 1064, 1069 (9th Cir. 1995) (allowing fees for unsuccessful class certification motion because it was “a method of pursuing [plaintiff's] ultimately successful claims”). This Court excludes the 20.1 hours spent on the unsuccessful motions for sanctions, adoption, and entry of final judgment.
Third, counsel billed 1.7 hours to review and communicate about plaintiff's decision to file a new lawsuit in the Northern District of California. Boyd Decl. Ex. 1, at 12-14 (doc. 76-1). These fees are not recoverable via this lawsuit, but may be compensable in plaintiff's new case if they were “reasonably incurred to achieve [any] success.” See Armstrong v. Davis, 318 F.3d 965, 971 (9th Cir. 2003) (“the award of fees should cover every item of service which, at the time rendered, would have been undertaken by a reasonably prudent lawyer to advance or protect his client's interest in the case at bar”) (internal citation and quotation marks omitted; emphasis added); see also Fadel v. El-Togby, 245 Or.App. 696, 709, 264 P.3d 150 (2011) (court may “award fees associated with attorneys' reasonable prefiling activities”).
Fourth, counsel billed 11.4 hours to review, research, prepare, and communicate regarding plaintiff's appeal and the Ninth Circuit's order to show cause. Boyd Decl. Ex. 1, at 8-12 (doc. 76-1). Moore and Corrigan's response was five pages long and two pages in substance, with a very brief argument section, and included a declaration with nearly 100 pages of pre-existing exhibits that could not have required significant time to compile. The Court finds it unreasonable that counsel billed 7.8 hours to draft their very short response, and instead compensates 1.5 hours associated with this task. SeeSuzuki v. Yuen, 678 F.2d 761, 762 (9th Cir. 1982) (“Generally, the district court grants appellate attorneys' fees after hearing evidence as to the worth of the services.”). But the 3.6 hours counsel spent reviewing filings and communicating about the appeal are reasonable. Thus, 5.1 hours are appropriate in association with plaintiff's appeal.
The Ninth Circuit's order required plaintiff to “move for voluntary dismissal of this appeal or show cause why it should not be dismissed for lack of jurisdiction,” and noted that “a response may be filed within 10 days” of plaintiff's memorandum. Ard. v. Or. State Bar, Case No. 2135535, Order (9th Cir. July 28, 2021). Because the appeal concerned Moore and Corrigan's dismissal, these hours fall within the ambit of Oregon's anti-SLAPP statute.
The remaining hours appear well documented and reasonable. Counsel devoted 3.5 hours to follow-up communications with plaintiff and others over a six-month period (including case monitoring to ensure Moore and Corrigan were no longer implicated in this litigation), as well as 1.3 hours to prepare their initial fee petition. Boyd Decl. Ex. 1, at 12-13 (doc. 76-1). The Court therefore allows these 4.8 hours. See Wentz v. Progressive Direct Ins. Co., 2021 WL 5798048, at *2 (D. Or. Dec. 6, 2021) (“Oregon law clearly allows the recovery of fees for services provided in conjunction with the recovery of underlying fees.”) (citation omitted).
In sum, this Court finds that Moore and Corrigan's attorneys reasonably expended 9.9 hours preparing their first motion for attorney fees, drafting their response to the Ninth Circuit's show cause order, and communicating with plaintiff and other parties as needed. Of those, 7.8 hours were worked by Boyd, 1.1 hours by Henderson, and 1 hour by Zugazaga.
II. Reasonableness of Hourly Rates
This Court previously found hourly rates of $180 for Boyd and $150 for Zugazaga reasonable, and awarded attorney fees on that basis. Findings & Recommendation 4 (doc. 37). Here, counsel requests slightly higher rates-$187 for Boyd and Henderson, and $160 for Zugazaga-which are in line with the most recent Oregon State Bar Economic Survey and therefore also reasonable. See, e.g., Sanchez v. MFJ Facility Sols., Inc., 2022 WL 1645656, at *1 (D. Or. May 23, 2022) (citing Oregon State Bar 2017 Economic Survey, available at http://www.osbar.org/ docs/resources/Econsurveys/17EconomicSurvey.pdf).
Accordingly, the Court calculates a lodestar amount of $1,824.30 (the sum of 9.9 hours- 7.8 by Boyd and 1.1 by Henderson-at $187 per hour, plus 1 hour by Zugazaga at $160 per hour).
III. Factors in Or. Rev. Stat. § 20.075(1) -(2)
This Court has considered the factors provided in Or. Rev. Stat. § 20.075(1)-(2), and finds they weigh in favor of the lodestar figure.
Under § 20.075(1), factors (a), (b), and (e) support the Court's award calculation. None of the parties' conduct appears malicious or in bad faith under factor (a). Under factors (b) and (e), plaintiff's appeal was misplaced, and the Ninth Circuit expressly afforded Moore and Corrigan an opportunity to respond to the show cause order.
Under § 20.075(2), factors (a), (c), (d), and (g) weigh in favor of the Court's decision here. The Court considered factor (a) in determining the reasonable hours expended, as described above. Factors (c) and (g) were also relevant in finding the hourly rates charged by counsel to be reasonable. Finally, the Court considered factor (d) when deciding not to compensate counsel for their unsuccessful motions.
RECOMMENDATION
For the foregoing reasons, Moore and Corrigan's Supplemental Motion for Attorney Fees (doc. 75) should be GRANTED in part in the amount of $1,824.30.
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.