United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATION
V. ACOSTA, United States Magistrate Judge
Megan Vance (“Vance”) moves for an award of
attorney fees in the amount of $6, 650.00 following the
dismissal of the claim asserted against her by plaintiff
Benjamin Barber (“Barber”). In granting
Vance's motion to dismiss, the court found the claim
against Vance arose out of statements she made that were
authorized by law and protected under Or. Rev. STAT. 31.150,
and that Barber failed to offer evidence sufficient to
support a prima facie case against her.
Additionally, the court found Vance is entitled to attorney
fees and costs under Or. Rev. STAT. 31.152(3), leaving
only the amount of attorney fees to be determined.
court finds Vance's attorney fees request is reasonable
under the factors delineated in Or. Rev. Stat. 20.075(1) and
(2). Accordingly, Vance is entitled to recover attorney fees
in the full amount requested and her motion for attorney fees
should be granted.
who is appearing pro se in this action, filed a
lawsuit in this court on November 1, 2016, seeking a stay of
a state criminal proceeding against him and damages resulting
from injury to his career, copyright infringement, and
incarceration (the “Complaint”). Barber alleged
the prosecution against him under a new statute which created
the crime of unlawful dissemination of an intimate image,
violated his First Amendment rights as well as his rights
under the federal copyright act. Barber named the State of
Oregon (the “State”) and Vance, Barber's
ex-wife, as defendants in the caption of the Complaint, but
in the body of the Complaint identified Vance, Oregon, Marie
Atwood, and Melanie Kebler as defendants.
November 7, 2016, Barber filed a motion for temporary
restraining order in this case asking the court to stay his
state criminal trial scheduled for November 9, 2016. Judge
Simon denied the motion the same day, finding Barber's
claim barred by the Younger doctrine. Barber's
trial proceeded and he was found guilty of five counts of
Unlawful Dissemination of an Intimate Image under Or. Rev.
Stat. 163.472. At the December 1, 2016 sentencing hearing,
the court sentenced Barber to six months in county jail and a
five-year probation period. The court directed Barber to
report to the county jail by 7:00 p.m. on December 2, 2016.
Barber filed a motion in this case to renew his motion for
temporary restraining order and did not report to the county
jail. On December 5, 2016, Judge Simon denied
Barber's motion to renew, again finding his claim barred
February 21, 2017, Barber filed an amended complaint (the
“Amended Complaint”) eliminating the State, Marie
Atwood, and Melanie Kebler as defendants, continuing to name
Vance as a defendant, and adding Ellen Rosenblum, Brad
Avakian, Kate Brown, Ben Cannon, and Lynne Saxton
(collectively the “State Defendants”) as new
defendants. (Am. Compl., ECF No. 38, ¶¶ 10-15.)
There, Barber alleged he produced consensual pornographic
audio and visual images of himself and Vance for commercial
purposes while the two were in a romantic relationship. (Am.
Compl. ¶¶ 18-19.) Barber and Vance's
relationship deteriorated and Vance filed for divorce. (Am.
Compl. ¶ 37.) In April of 2016, Barber was homeless and
unable to pay for online computer services. (Am. Compl.
¶ 42.) In an attempt to preserve his creative product,
he uploaded everything on his computer, including his
intimate images and videos, to the Internet. (Am. Compl.
¶¶ 42-43.) Vance reported Barber's publication
of still pictures and videos containing intimate images of
her to the Oregon Crimes Victims Law Center and the
Washington County District Attorney. (Am. Compl. ¶¶
44, 46.) The Washington County District Attorney subsequently
charged Barber with nine criminal counts of Unlawful
Dissemination of an Intimate Image under Or. Rev. Stat.
163.472. (Davis Decl. ECF No. 62, Ex. 2 at 1.) Barber alleged
Vance offered false testimony at his trial. (Am. Compl.
First Claim for Relief,  Barber again asked the court to stay
state criminal proceedings, but also to overturn his criminal
conviction as an unconstitutional restriction of his free
speech and an infringement of his copyrights. (Am. Compl.
¶ 49.) He additionally sought money damages for
copyright infringement, diminished wages as a result of the
conviction, and punitive damages for intentional infliction
of emotional distress. (Am. Compl. ¶ 49.) Barber appears
to identify Vance and most of the State Defendants as liable
in the First Claim for Relief. (Am. Compl. ¶ at 4.)
filed a Motion for Declaratory Judgment on his First Claim
for Relief (“Declaratory Judgment Motion”). Vance
and the State Defendants opposed Barber's motion.
Additionally, the State Defendants moved to dismiss the
Amended Complaint and Vance moved to strike the claims
asserted against her pursuant to Oregon's Anti-SLAAP
statute. In a Findings and Recommendation filed August 25,
2017 (the “F&R”), this court found
Barber's First Claim for Relief alleging the
unconstitutionality of Or. Rev. Stat. 163.472 was an improper
collateral attack on a state criminal proceeding, and the
allegations relating to Vance were based on communications
protected by Or. Rev. Stat. 31.150. Barber v. Vance,
Case No. 3:16-cv-2105-AC, Findings and Recommendation, ECF
No. 131 (“F&R”) (D. Or. 2017). Judge Michael
H. Simon adopted the F&R, in pertinent part, on September
26, 2017, and dismissed Barber's claim against Vance
without prejudice, as required by Or. Rev. Stat. 31.150(1).
Vance filed her motion for attorney fees on October 9, 2017.
Barber responded to Vance's motion contesting Vance's
right to attorney fees, but he did not object to the amount
of attorney fees requested and he did not file an amended
is entitled to recover attorney fees pursuant to Or. Rev.
Stat. 31.152(3), which provides, in pertinent part: “A
defendant who prevails on a special motion to strike under
ORS 31.150 shall be awarded reasonable attorney fees and
costs.” Or. Rev. Stat. 31.152(3) (2017). “In an
action where a district court is exercising its subject
matter jurisdiction over a state law claim, so long as
‘state law does not run counter to a valid federal
statute or rule of court, and usually it will not, state law
denying the right to attorney's fees or giving a right
thereto, which reflects a substantial policy of the state,
should be followed.'” MRO Commc'ns., Inc.
v. AT&T Co., 197 F.3d 1276, 1281 (9th Cir. 1999)
(quoting Alyeska Pipeline Serv. Co. v. Wilderness
Society, 421 U.S. 240, 259 (1975)).
Oregon law, attorney fee awards are governed by Or. Rev.
Stat. 20.075, which sets forth several factors the court
“shall consider” in determining both whether fees
should be awarded and the reasonable amount of those fees.
“While courts need not make lengthy or complex findings
under ORS 20.075, courts still ‘must describe the
relevant facts and legal criteria for the court's
decision to award or deny attorney fees in any terms that are
sufficiently clear to permit meaningful appellate
review.'” In re Marriage of Boyd, 226
Or.App. 292, 303 (2009)(quoting McCarthy v. Oregon Freeze
Dry, Inc., 327 Or. 185, 190-91 (1998)(on
reconsideration)). The court satisfies this obligation by
“including in its order a brief description or citation
to the factor or factors on which it relies.”
McCarthy, 327 Or. at 188. “Those findings need
not be complex or lengthy; they need not include criteria
immaterial to the decision and not used by the trial
court.” Kovac v. Crooked River Ranch Club and
Maint. Ass'n, 186 Or.App. 545, 553 (2003)(citing
McCarthy, 327 Or. at 188; Wright v. Jones,
155 Or.App. 249, 252-53 (1998). Although an “opposing
party's objections to the attorney fee award ‘play
an important role' in framing the issues relevant to the
court's decision . . . [even in the absence] of
objections from the opposing party, the court has an
independent duty to review a fee petition for
reasonableness.” Kraft v. Arden, No. CV.
07-487-PK, 2009 WL 602971, at *2 (D. Or. March 9, 2009)
(quoting McCarthy, 327 Or. at 189).
court has determined Or. Rev. Stat. 31.152(3) mandates an
award of attorney fees to Vance. Accordingly, the factors set
forth in Or. Rev. Stat. 20.075 will be considered with regard
to the reasonableness of the attorney fees requested by
Vance. Or. Rev. Stat. 20.075 provides, in
pertinent part, that:
(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 ...