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Hariri v. Portland State University

United States District Court, D. Oregon

July 5, 2017

MOHAMAD HARIRI, Plaintiff,
v.
PORTLAND STATE UNIVERSITY, Defendant.

          OPINION AND ORDER

          HON. PAUL PAPAK, United States Magistrate Judge

         Plaintiff Mohamad Hariri filed this action against Portland State University ("PSU") and PSU professor Gwen Shusterman on June 17, 2015. By and through his complaint as originally filed, Hariri alleged that he had been baselessly accused of academic misconduct (that is, of sending another person to take the final examination in Shusterman's Chemistry 221 class under Hariri's name on December 8, 2014), in consequence of which he had been suspended for one year from attendance at PSU and had received a lower than deserved grade in one of his classes. Arising out of the foregoing, Hariri alleged the liability of both PSU and Shusterman under 42 U.S.C. § 1983 for race, color, and/or national origin discrimination in violation of his rights under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2OOOd et seg., under Section 1983 for violation of his Fourteenth Amendment substantive due process rights, and under Oregon common law for intentional infliction of emotional distress.

         Effective July 12, 2016, following oral argument in connection with a meritorious motion for partial summary judgment filed by PSU and Shusterman, Hariri amended his complaint, abandoning his claims against Shusterman, clarifying that his discrimination claim arose under Title VI rather than Section 1983, abandoning his substantive due process claim and his intentional infliction claim, and adding new claims for violation of his procedural due process rights and for negligence. Specifically, by and through his amended complaint, Hariri alleged PSU's liability under Title VI for unlawful discrimination based on race, color, and/or national origin, under Section 1983 for the violation of his Fourteenth Amendment procedural due process rights, and under Oregon common law for negligence. On March 2, 2017, 1 granted summary judgment in PSU's favor as to all of Hariri's claims against it. On March 30, 2017, Hariri filed notice that he had appealed from judgment in this action to the Ninth Circuit Court of Appeals.

         Now before the court is PSU's motion (#70) for award of its attorney fees and costs reasonably incurred in connection with litigating its successful defense against Hariri's Title VI and Section 1983 claims, [1] I have considered the motion and all of the pleadings and papers on file. For the reasons set forth below, PSU's motion is granted, and PSU is awarded its attorney fees in the amount of $76, 727.00 and its costs in the amount of $1, 831.40.

         ANALYSIS

         I. PSU's Entitlement to Award of Attorney Fees and Costs

         PSU moves for award of its attorney fees and costs pursuant to 42 U.S.C. § 1988(b). In relevant part, Section 1988(b) provides as follows:

In any action or proceeding to enforce a provision of section[] .. . 1983,, . of.. . title [42], . .. [or] title VI of the Civil Rights Act of 1964 ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs....

42 U.S.C. sec 1988(b). Although it is the unusual case for a court to exercise its discretion under Section 1988(b) to award attorney fees in favor of a prevailing civil rights defendant, it is a well-settled matter of United States Supreme Court jurisprudence that a district court may properly so exercise its discretion "upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421 (1978); see also Fox v. Vice, 563 U.S. 826, 829 (2011) (attorney fees may be awarded to a prevailing civil rights defendant pursuant to Section 1988 "if the plaintiffs suit is frivolous").

         In connection with PSU's motion for summaiy judgment filed October 21, 2016, 1 noted that "[t]he evidence that the examination of December 8, 2014, was written by a person other than Hariri is extremely strong, and the contrary evidence that the examination was written by Hariri is both thin and highly implausible." Opinion (#63) and Order dated March 2, 2017, at 14- 15. For purposes of determining PSU's entitlement to summary judgment on Hariri's claims I nevertheless assumed arguendo, expressly without making any finding of fact to that effect, that despite the clear paucity and implausibility of Hariri's proffered evidence a jury:

could reasonably credit Hariri's testimony that he wrote the examination of December 8, 2014, could reasonably disbelieve [the] contrary testimony [of Shusterman's teaching assistant], and could reasonably disbelieve the opinion testimony of PSU's forensic expert that the dissimilarities between Hariri's handwriting and the handwriting of the person who wrote the examination of December 8, 2014, were such that there is no possibility that the same person wrote both.

Id. at 15. On that arguendo assumption I found "for purposes of PSU's motion for summary judgment only" - and in light of the mandate of Federal Civil Procedure Rule 56 that I consider the evidence in the light most favorable to the non-moving party - that Hariri wrote the examination. Id. In connection with that finding, I expressly disavowed any possible suggestion "that, in the event Hariri's claims were submitted to a jury and the jury were to find on the basis of the evidence of record that Hariri wrote the examination of December 8, 2014, 1 would decline to overturn the jury's finding pursuant to Federal Civil Procedure Rule 50(b)." Id. Even on that arguendo assumption, I found under Rule 56 that Hariri's claims against PSU were without merit.

         Here, in connection with PSU's motion (#70) for award of its attorney fees and costs, I am not required to interpret the evidence of record in the light most favorable to Hariri, but rather enjoy discretion to make logical, plausible factual determinations supported by the evidence. See Rodriguez v. Disner, 688 F.3d 645, 653 (9th Cir. 2012); see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Under the legal standard governing motions for attorney fees, I find that Hariri's Title VI and Section 1983 claims asserted herein were uniformly frivolous, unreasonable, and without foundation from the very inception of this action. Above all else, the evidence is overwhelming that Hariri did in fact commit the serious act of academic misconduct for which he received the complained-of discipline, namely sending another student to write his final examination in Shusterman's Chemistry 221 class. That evidence includes, but is not limited to, (i) the unequivocal deposition testimony of Shusterman's teaching assistant Dillon Willis, who assisted Shusterman in proctoring the exam, that a man who did not physically resemble Hariri attempted to hand in an exam bearing Hariri's name, claimed to be Hariri when challenged, and departed the exam room rather than discuss his identity with Shusterman after being requested to do so, (ii) the unequivocal opinion testimony of a forensic document examiner and handwriting specialist that the possibility that the examination at issue had been written by Hariri was entirely eliminated due to the complete absence of forensic similarities between Hariri's handwriting and the hand in which the exam was written, (iii) the absence of any plausible evidence to contradict the testimony of either Willis or the forensic expert, and (iv) various inconsistencies in Hariri's assertions regarding the incident.[2] In the absence of any plausible evidence to support the conclusion that Hariri might have written the examination he was accused of sending another student to write in his name, I cannot find for purposes of PSU's fee petition that there is any possibility that Hariri was unaware at any material time that his Title VI and Section 1983 claims herein lacked any grounding in fact. Because I cannot avoid the conclusion that Hariri was at all times aware that he had committed the infraction for which he received the complained-of discipline, I find that his Title VI and Section 1983 claims herein were necessarily frivolous for purposes of Section 1988(b). As such, under Section 1988(b), I may properly exercise discretion to award PSU its fees.

         I further find that it is in the interests of justice so to exercise my discretion. PSU is a public institution, and Hariri's election to pursue his frivolous claims against it caused it to expend public funds that could better be spent toward the maintenance of PSU's educational programs and services. Moreover, to permit Hariri to go unsanctioned for seeking a monetary recovery from a public institution of higher learning on the basis of patently frivolous claims would be tantamount to encouraging further such claims and further waste of public resources to no just, beneficial, or otherwise desirable end. I therefore find that PSU is entitled to award of its attorney fees and costs reasonably incurred in connection with defending Hariri's Title VI and Section 1983 claims.

         II. Attorney Fees

         A. The Lodestar

         Determination of a reasonable attorney's fee begins with the "lodestar, " which is the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S, 546, 563-64 (1986). Here, PSU requests award of $82, 415.00 from Hariri. PSU was initially represented for purposes of this dispute by the law firm Slinde Nelson Stanford (principally by attorney Darian A. Stanford), and later by the law firm Miller Nash Graham & Dunn (principally by attorney P.K. Runkles-Pearson). PSU requests $48, 580.00 in fees incurred by the Slinde Nelson legal team, and $33, 835.00 in fees incurred by the Miller Nash legal team, or a total of $82, 415.00.

         As to fees incurred by the Slinde Nelson legal team, PSU specifically seeks compensation for 167.1 hours of attorney Stanford's time at an hourly rate of $225 (or $37, 597.50), 23.9 hours of time expended by a timekeeper named Selma Williams (presumably a paralegal, but PSU provides no evidence as to Williams' qualifications or credentials) at an hourly rate of $125 (or $2, 987.50), 1.4 hours of time expended by a timekeeper identified only as "STR" at an hourly rate of $250, 9.7 hours of time expended by a timekeeper named David Hutchinson (I take judicial notice that the Oregon State Bar lists an attorney named David Blake Hutchinson as having been a member of the bar since 2015 and as being employed by Slinde Nelson, see Fed. R. Evid. 201) at an hourly rate of $200 (or $1, 940.00), 28.9 hours of time expended by a timekeeper named Daniel Lerner (I take judicial notice that the Oregon State Bar lists an attorney named Daniel H. Lemer as having been a member of the bar since 2007 and as being employed by Slinde Nelson, see id.) at an hourly rate of $200 (or $5, 780, 00), and 0, 2 hours of time expended by a timekeeper named Rehan Harrach (presumably a paralegal, but PSU provides no evidence as to Harrach's qualifications or credentials) at an hourly rate of $ 125 (or $25, 00), [3] As to fees incurred by the Miller Nash legal team, PSU specifically seeks compensation for 79.0 hours of attorney Runkles-Pearson's time at an hourly rate of $365 (or $28, 835.00), 8.1 hours of attorney Sharae M. Wheeler's time at an hourly rate of $305 (or $2, 470.50), 1.5 hours of attorney John Clarke's time at an hourly rate of $270 (or $405.00), 5.7 hours of attorney Ivan Resendiz Gutierrez' time at an hourly rate of $270 and 2.5 hours of Gutierrez' time at an hourly rate of $200 (characterized as a "paralegal" rate) (or $2, 039.00), and 3.3 hours of paralegal Faustina Ash's time at an hourly rate of $195 (or $643.50).[4] In support of its fee petition, PSU offers declaration testimony regarding the number of years attorneys Stanford and Runkles-Pearson have practiced law, declaration testimony indicating that Miller Nash customarily charges a higher rate for each of its timekeepers than is requested here, and relevant portions of the Oregon State Bar 2012 Economic Survey (the "2012 OSB Economic Survey") providing information as to the hourly rates charged by Portland-area attorneys in 2011 broken down by years spent in the practice of law.

         1. Hours Reasonably Expended

         Hariri does not challenge the reasonableness of any of the time expenditures in connection with which PSU requests compensation. Nevertheless, this court is obliged to scrutinize PSU's fee petition independently to determine its reasonableness. ...


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