United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
AIKEN, UNITED STATES DISTRICT JUDGE
dispute over attorney fees arises out of a factually and
procedurally complicated case involving plaintiff James
Burt's ("plaintiff) claims against judgment
defendants Key Trading LLC, Rafael deNoyo, David Sullivan,
and Peter Larkin ("judgment defendants").
2005-2006, plaintiff entered into an investment agreement
with judgment defendants for two million dollars. PL's
Compl. ¶¶ 13-15 (doc. 1); Burt v. Key Trading
LLC, 2014 WL 5437070, *1 (D.N.J. 2014). After plaintiff
learned the investment scheme was fraudulent, he sought
counsel and demanded restitution. PL's Compl. ¶ 19;
Burt, 2014 WL 5437070, at *1. In 2010, the parties
entered into a settlement agreement in which judgment
defendants agreed to repay plaintiff most of his two million
dollars. First Am. Compl., Ex. 2 at 26 (doc. 32-2). In 2012,
plaintiff filed suit against judgment defendants in the
United States District Court for the District of New Jersey
for breach of contract, alleging that judgment defendants had
failed to make the agreed-to payments. PL's Compl. ¶
44; Burt, 2014 WL 5437070, at *1. In October 2013,
the parties again entered into a settlement agreement.
PL's Compl. ¶ 45, Ex. 3; Burt, 2014 WL
5437070, at *1. Judgment defendants again defaulted. PL's
Compl. ¶ 46; Burt, 2014 WL 5437070, at *2. In
June 2014, the New Jersey District Court entered judgment
against judgment defendants for $1, 800, 000. PL's Compl.
¶ 47; Burt, 2014 WL 5437070, at *2.
2014, plaintiff filed this action against defendant Christine
deNoyo ("Mrs. Jordan"), the ex-wife of judgment
defendant Rafael deNoyo ("Mr. deNoyo"); plaintiff
generally accused Mrs. Jordan of aiding and abetting Mr.
deNoyo in both the initial fraud and in his attempts to evade
his responsibilities under the settlement agreements.
PL's Compl. 1. Mrs. Jordan and Mr. deNoyo divorced in
2000, and Mrs. Jordan remarried in 2003. Jordan Decl.
¶¶ 3, 4 Jul. 31 2014 (doc. 19). Mrs. Jordan had,
however, maintained a joint Wells Fargo bank account with Mr.
deNoyo during the time period relevant to judgment
defendants' fraudulent activities and their breach of
multiple settlement agreements with plaintiff. PL's
Compl. ¶ 36, Ex. 5; Def.'s Mem. Opp'n Emergency
Order Show Cause 1 (doc. 18); Jordan Decl.¶¶ 3, 4
Jul. 31, 2014. Mr. deNoyo regularly deposited money from his
Key Trading account into Mrs. Jordan's account, and many
of the deposits were contemporaneous with the 2005-2006
investment fraud and obligations under the 2010 and 2013
settlement agreements. PL's Compl. ¶ 36, Ex. 5.
Based on these undisputed facts, plaintiff accused Mrs.
Jordan of engaging in fraudulent conveyance, securities
fraud, civil RICO, and conversion. First. Am. Compl.
¶¶ 66, 76, 78, 113, 120 (doc. 32). Mrs. Jordan
responded to plaintiffs claims by asserting that the purpose
of the Wells Fargo account she shared with Mr. deNoyo was to
make it easier for him to pay his court-ordered child and
spousal support payments, and to pay those of Mr.
deNoyo's bills that directly impacted their two children,
such as the mortgage. Jordan Decl. ¶¶ 7, 8, 9 Jul.
multi-year discovery battle, I entered summary judgment on
December 5, 2016, in Mrs. Jordan's favor. Order Grant.
PL's Mot. Summ. J. (doc. 88). While I certainly
sympathized with plaintiffs plight as a fraud victim, did not
approve of judgment defendants' repeated breach of their
contractual agreements, and wanted to honor the New Jersey
District Court's 2014 judgment for plaintiff, there was
insufficient evidence against Mrs. Jordan regarding her
knowledge of her ex-husband's activities to survive
summary judgment. Id. Mrs. Jordan now moves for
attorney fees. For the reasons set forth below, Mrs.
Jordan's motion is denied.
diversity action in federal court, state law governs the
availability and amount of attorney fees. In re
Larry's Apartment, LLC, 249 F.3d 832, 838 (9th Cir.
2001); Kern Oil & Refining Co. v. Tenneco Oil
Co., 792 F.2d 1380, 1388-89 (9th Cir. 1986).
Rev. Stat. §59.115(10) ("59.115") provides
that Oregon courts "may award reasonable attorney fees
to the prevailing party in a [securities fraud] action under
determining whether to award fees under a discretionary
statute like 59.115, Oregon courts must first consider the
eight non-exclusive factors listed in Or. Rev. Stat. §
20.075(1) ("20.075(1)"). McCarthy v. Or. Freeze
Dry, Inc., 957 P.2d 1200, 1204-05 (Or. 1998). 20.075(1)
A court shall consider the following factors in determining
whether to award attorney fees in any case in which an award
of attorney fees is authorized by statute and in which the
court has discretion to decide whether to award attorney
(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