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Barber v. Vance

United States District Court, D. Oregon, Portland Division

February 7, 2018

MEAGAN VANCE in her personal capacity and ELLEN ROSENBLUM, BRAD AVAKIAN, KATE BROWN, BEN CANNON, LYNNE SAXTON in their official capacity, Defendants.


          JOHN V. ACOSTA, United States Magistrate Judge


         Defendant 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[1] under Or. Rev. STAT. 31.152(3), leaving only the amount of attorney fees to be determined.

         The 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.


         Barber, 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.

         On 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.[2] On December 5, 2016, Judge Simon denied Barber's motion to renew, again finding his claim barred by Younger.

         On 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. ¶ 47.)

         In his First Claim for Relief, [3] 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.)

         Barber 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 complaint.

         Legal Standard

         Vance 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)).

         Under 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).


         The 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.[4] 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 ...

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