Summary
holding that ORS 31.152 does not contain any provision limiting fees to only those attributable to the Special Motion to Strike
Summary of this case from Accuardi v. FredericksOpinion
Civil No. 03-6327-HO.
June 22, 2004
ORDER
The court granted defendants' motion to dismiss and to strike on March 1, 2004, and entered judgment of dismissal on March 9, 2004. Defendants filed a motion for attorney fees pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, and plaintiff filed a memorandum in opposition.
Discussion
I. Costs
Defendants did not file a cost bill, but purported to document costs and expenses at page 1 of exhibit 1 to the Berry declaration, and at page 10 of exhibit A to the Wilker affidavit. Costs other than attorney fees are awarded as of course to the prevailing party. Fed.R.Civ.P. 54(d)(1). Under Oregon law, a party who prevails on a special motion to strike is entitled to reasonable costs. Or.Rev.Stat. § 30.144(3). Defendants seek to recover filing fees, Westlaw charges, courier costs, telephone and fax costs, postage and duplication expenses. Berry Decl., Ex. 1 at 1; Wilker Aff., Ex. A at 10. Plaintiff argues that defendant's failure to file a cost bill precludes recovery of costs, as does defendants' failure to verify that each item was necessarily incurred. Plaintiff further argues that none of the costs are allowed under federal and Oregon law.
The filing of a cost bill is mandatory, and costs cannot be taxed until the cost bill is verified. 28 U.S.C. § 1920; 1924. Telephone, facsimile, postage, Westlaw and courier charges are not ordinarily recoverable under federal law, and the court concludes that it would be unreasonable to award these overhead costs. See 28 U.S.C. § 1920. The court will award fees of the clerk and demonstrably necessary duplication expenses should defendants file a properly verified cost bill within a reasonable time. See 28 U.S.C. § 1920.
II. Attorney Fees
The court looks to Oregon law to determine whether to award attorney fees and if so, the amount to be awarded. See Diamond v. John Martin Co., 753 F.2d 1465, 1467 (9th Cir. 1985). A defendant who prevails on a special motion to strike is entitled to reasonable attorney fees. Or.Rev.Stat. § 30.144(3). Plaintiff advances several arguments as to why defendants should not receive their requested fees. First, plaintiff argues that defendants are not entitled to attorney fees because the court improperly granted defendants' special motion to strike. The court of appeals may consider the merits of this argument. Next, plaintiff argues that if Oregon procedural law applies, defendants failed to file an answer alleging a right to attorney fees, and failed to allege a claim for attorney fees in their Rule 12 motion to dismiss, in violation of Or.R.Civ.P. 68(C)(2)(a). See Mulier v. University of Oregon, 29 P.3d 1104 (Or. 2001). Federal procedural law applies. Feldman v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003) (citing to Erie RR Co. v. Tompkins, 304 U.S. 64 (1938)). Next, plaintiff argues that defendants violated the command of Rule 54(d)(2)(B) to state the amount or provide a fair estimate of the amount sought. The motion states the amount sought. See Defs' Motion for Attorney Fees [#40] at 2. Next, plaintiff argues that defendants impermissibly seek fees unrelated to their special motion to strike. The statute contains no such limiting provision, and the court has held that the statute does not limit defenses upon which a party may base a special motion to strike. Plaintiff's other arguments are considered in determining the reasonable amount of fees to award.
"The determination of the amount of attorney fees is within the sound discretion of the trial court." Biomass One L.P. v. S-P Construction, 799 P.2d 152, 158 (Or.App. 1990). Where a fee award is required and the court has discretion to determine the amount of the award, the court must consider the following factors: (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; (i) 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; (j) 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; (k) the fee customarily charged in the locality for similar legal services; (l) the amount involved in the controversy and the results obtained; (m) the time limitations imposed by the client or the circumstances of the case; (n) the nature and length of the attorney's professional relationship with the client; (o) the experience, reputation and ability of the attorney performing the services; and (p) whether the fee of the attorney is fixed or contingent. Or.Rev.Stat. § 20.075; Clausen v. M/V New Carissa, 171 F. Supp.2d 1138, 1140 (D.Or. 2001).
The court has considered these factors, as well as the parties' memoranda and defendants' itemizations in support of their fee request in the amount of $58,712.90 for 265.1 hours of attorney time expended by six different attorneys, and 3.5 hours of legal librarian time. The amount of time claimed is not reasonable. The complaint alleged a two count defamation claim and a claim for intentional infliction of emotional distress (IIED). Defendants argued and the court agreed that the only portion of the complaint with potential to state a claim was time barred, even if the court were not to hold as it did that plaintiffs did not properly serve defendants. Counsel for defendants achieved dismissal by filing a motion to dismiss and a motion to strike, as well as supporting memoranda and affidavits. Not counting the notice of removal, motions for extension of time and supporting documents, limited documentary evidence, and papers related to the fee request, defendants' filings totaled approximately 53 pages. While defense counsel achieved an excellent result for defendants, defense counsel was assisted by the fact that only count one of plaintiff's first claim stated a claim, and that count was clearly barred by the statute of limitations.
According to defendants, Dechert, LLP, defendants' Philadelphia counsel, participated in the defense of this action on behalf of defendants on a pro bono basis. Defendants claim 90.8 hours expended by Dechert attorneys. Tonkon Torp LLP represented defendants at 75% of the standard hourly rates, for the stated reason that defendants were sued for actions they took on behalf of a non-profit organization. Plaintiff notes that he did not sue a non-profit entity; he sued individual defendants. Steven Wilker of Tonkon Torp LLP is lead attorney of record for defendants. No Dechert attorney is admitted pro hac vice in this case.
According to attorney Wilker, "[t]he case raised unusual issues involving the intersection between Oregon and federal civil procedure relating to service and statutes of limitation, the availability of a special motion to strike, and the First Amendment, and called for the retention of sophisticated and experienced legal counsel." Any unusual issues involving the intersection of Oregon and federal civil procedure arose by virtue of defendants' removal of this action. The service and limitations issues were somewhat complex, but not truly unusual. The First Amendment issue was simply whether a particular statement is capable of defamatory meaning, or whether it is properly construed as opinion, and therefore protected by the First Amendment. This issue often arises in defamation cases. The availability of the special motion to strike was an unusual legal issue, although the application of the special motion to strike involved fairly straight forward issues of statutory interpretation.
As this case was resolved on defendants' motions to dismiss, the parties generated only a small amount of documentary evidence. The bulk of the fee request is for time expended in preparing the briefing. Time expended by Dechert attorneys appears mostly duplicative of time expended by Tonkon Torp attorneys.
The limited documentary evidence in the case establishes that defendants published statements that plaintiff, a professor, made anti-Israel statements in the classroom. The statements first appeared in a New York Post article, and later on the Campus Watch website of the Middle East Forum, an organization with which defendants are associated. If false, some of the statements are defamatory. The documentary evidence also establishes that defendants refused plaintiff's "campaign to have [defendants] retract our statement," defendants dismissed plaintiff's character evidence as irrelevant to what occurred in the classroom, and defendants offered to retract their statement if plaintiff would agree to write an essay condemning political bias in the classroom. See Order [#35] dated March 1, 2004 at 12. Only plaintiff and his students know whether plaintiff uttered the statements alleged by defendants. What is known is that defendants published the damaging and potentially defamatory statements based on hearsay, while rejecting plaintiff's proffered character evidence, and that plaintiff refused defendants' request for a class list of students to interview and a copy of the final exam assigned by plaintiff. Aside from whether plaintiff made the alleged statements, defendants' conduct has the potential to chill academic speech.
The fees requested are based on rates near the high end of the range of rates reported in the 2002 Oregon State Bar Economic Survey for corporate litigation attorneys in Portland with experience similar to defense counsel.
The court is cognizant that a large award my discourage others from filing meritorious claims, while a small award may encourage meritless claims and/or frustrate the purposes of the anti-SLAPP statute.
Based on the foregoing discussion and considering all of the factors enumerated in Or.Rev.Stat. § 20.075, the court concludes that $5,000 is a reasonable attorney fee award for defendants in this case.
Conclusion
For the foregoing reasons, defendants' motion for attorney fees (#40) is granted to the extent that defendants are awarded $5,000 in attorney fees.
IT IS SO ORDERED.