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Miller v. City of Portland

United States District Court, D. Oregon, Portland Division

April 27, 2018





         On August 28, 2013, plaintiff Roberta F. Miller (“Miller”) accepted an offer of judgment propounded by defendants City of Portland (the “City”), Officer John Scruggs (“Scruggs”), Officer Timothy Manzella (“Manzella”), and Michael Reese (“Reese”) (collectively “Defendants”), in the amount of $1, 000, plus reasonable attorney fees. Presently before the court is Miller's motion for attorney fees.

         For the reasons set forth below, the court recommends Miller's motion for attorney fees be granted in part and denied in part. Specifically, the court recommends Miller be awarded $6, 000 in attorney fees.[1]


         On July 12, 2010, Portland Police Officers Scruggs and Manzella confronted Miller, who was seven-and-a-half months pregnant, and questioned her about her tenancy at 7633 S.E. Henderson Street, Portland, Oregon. (Compl., ECF No. 1, ¶¶ 1, 8.) Scruggs “proceeded to throw Ms. Miller and her pregnant abdomen over the roll bar and grill of his vehicle with force” while “Manzella grabbed her hair and forced her head down hard on the hood of the vehicle with force.” (Compl. ¶¶ 9, 10.) The officers then performed a “semi-nude search” of Miller. (Compl. ¶ 11.) As a result of these actions, Miller “suffered four days of intense pain and discomfort and an ultimate hospitalization at Portland Adventist Hospital and aborted pregnancy.” (Compl. ¶ 12.) Miller, concerned the State of Oregon would interfere in her maintaining custody of her unborn child, identified herself as Toni Marie Smith” (“Smith”) to the admitting staff at Portland Adventist Hospital (the “Hospital”). (Compl. ¶ 14.) Miller's previous children had been taken away from Miller and remained in the custody of the State of Oregon at the time of the incident. (Compl. ¶ 14.)

         On February 28, 2011, Miller filed a Petition for Administration of Intestate Estate and Appointment of Personal Representative (the “Petition”) in the Circuit Court for the State of Oregon for the County of Multnomah (“State Court”) seeking to appoint herself as personal representative of the estate of her unborn child. (Moede Aff., ECF No. 50, Ex. 3 at 15-16.) On May 9, 2011, the State Court entered a General Judgment denying the Petition, finding Miller's unborn child did not die and, therefore, does not qualify as a decedent[3] under Oregon probate law. (Moede Aff. Ex. 3 at 6.)

         On March 29, 2012, Miller filed a Petition to Obtain Discovery and Perpetuate Evidence under Or. R. Civ. P. 37 (the “Discovery Petition”). (Moede Aff. Ex. 4 at 8.) In the Discovery Petition, Miller sought medical records from the Hospital to establish the nature, extent, and source of injuries she sustained in the July 12, 2010 incident, for use in filing an unlawful use of force claim against the City and unidentified police officers. (Moede Aff. Ex. 4 at 8-9.) Miller was previously unable to obtain the discovery due to her use of an alias. (Moede Aff. Ex. 4 at 6.) The State Court authorized such discovery by order dated March 29, 2012 (the “Order”). (Moede Aff. Ex. 4 at 4-5.)

         On the same date, Miller filed a Motion to Re-Open Case based on an attached Amended Petition for Administration of Intestate Estate and Appointment of Personal Representative. (Moede Aff. Ex. 3 at 2-3, 5.) The State Court denied the Motion to Re-Open Case in a Supplemental Judgment dated April 16, 2012 (the “Judgment”). (Moede Aff. Ex. 4 at 1.)

         Miller filed a complaint in this court on July 8, 2012, alleging Section 1983 claims for wrongful arrest/excessive force, unreasonable/arbitrary conduct that shocks the conscience, and municipal liability under Monell in violation of the Fourth and Eighth Amendments, as well as state law claims for negligence, intentional infliction of severe emotional distress, wrongful death, and battery (the “Complaint”). (Compl. ¶¶ 18-45.) Miller sought damages of $1, 000, 000 related to the death of her unborn child, economic and punitive damages in an amount to be determined at trial, and costs and attorney fees. (Compl. at 7.)

         Despite the Judgment, which affirmed the denial of Miller's request to be appointed personal representative of the estate of her unborn child, Miller asserted the claims alleged in the Complaint both individually and as the “Personal Representative of the Estate of Baby Miller.” (Compl. at 1.) However, after discussions in which Defendants mentioned the Judgment, on December 7, 2012, Miller filed an Amended Complaint solely on her own behalf and omitting any reference to her pregnancy, her unborn child, the wrongful death claim, and the damages of $1, 000, 000 related to the death of her unborn child (the “Amended Complaint”). (Moede Aff. ¶ 4, Am. Compl., ECF No. 17.)

         In an Offer of Judgment dated April 16, 2013 (the “April Offer”), the City offered:

to allow judgment in the above-captioned matter to be taken against it by plaintiff for the sum of One Thousand and no/100 Dollars ($1, 000.00) plus costs (excluding any prevailing fee), and including reasonable attorney's fees to be determined by the Court, incurred as of date of this offer, and for the dismissal with prejudice of defendants Officer John Scruggs, Officer Timothy Manzella, and Chief Michael Reese.
This Offer of Judgment is made for the purposes specified in Rule 68, Federal Rules of Civil Procedure, and is not to be construed either as an admission that the defendants are liable in this action, or that the plaintiff has suffered damage.

(Moede Aff. Ex. 7 at 1.)

         Notwithstanding Miller's removal of allegations relating to her pregnancy and unborn child in the Amended Complaint, Miller continued to maintain she was pregnant at the time of the incident. (Miller Dep.[4] 51:14-52:11.) Consequently, Defendants requested Miller produce the medical records obtained from the Hospital relating to her pregnancy and injuries; when Miller failed to produce those records after Defendants' repeated attempts to convince her to do so, Defendants filed a motion to compel their production. (Mem. of Law in Supp. of Defs.' Mot. to Compel Produc. of Docs., ECF No. 24, at 2.) In response, Miller represented she had “already told defendant in writing and verbally that responsive medical documents do not exist, and no other documents are in plaintiff or her counsel's possession.” (Pl.'s Resp. to Mot. to Compel, ECF No. 26, at 2.) In any event, Miller “never produced any medical records of any kind at any time in this case.” (Moede Aff. ¶ 12.) On May 23, 2013, the court issued the following Minute Order addressing Defendants' motion to compel:

ORDER: GRANTING in part Defendants motion to compel [23] as follows: Plaintiff has until 8/2/13 to produce medical records and documents relating to lost income, as requested by defendants. (2) If plaintiff does not produce the documents requested by 8/2/13, the court will entertain a motion by defendants to strike plaintiffs claims for economic damages. (3) Further ORDERED, if the documents requested are not produced by 8/2/13 and plaintiff subsequently produces them, plaintiff will not be permitted to amend her complaint to replead any economic damage claims the court previously ordered stricken for failure to make discovery. (4) Defendants request for fees and costs incurred with the filing of this motion are denied, without prejudice. (5) Plaintiff is hereby notified that if she fails to appear for her scheduled deposition or for a rescheduled deposition before the 8/2/13 discovery close date, the court may impose sanctions, including preclusive sanctions and dismissal of her lawsuit.

         (Minutes of Proceedings, ECF No. 33.)

         Miller failed to produce any documents before the August 2, 2013 discovery deadline. On August 28, 2013, just twelve days prior to the September 9, 2013 dispositive motion deadline, the City again offered to settle this lawsuit on the terms set forth in the April Offer, specifically limiting recoverable attorney fees to those incurred before April 16, 2013, and determined to be reasonable by the court (the “August Offer”). Miller accepted the August Offer in a document filed August 28, 2013. (Acceptance of Offer of J., ECF No. 34.)

         On October 24, 2013, Miller filed a Motion for Attorney Fees (the “Motion”) seeking $16, 575 in attorney fees. (Pl.'s Mot. for Att'ys Fees, ECF No. 40.) The City opposed the Motion, arguing the nominal damages gained from the August Offer award did not justify an award of attorney fees. In a Findings and Recommendation filed June 10, 2014, and adopted over Miller's objections by Order dated August 18, 2014, this court agreed, applying the standards relevant to a Section 1983 action and denying the Motion. Miller v. City of Portland, No. 3:12-cv-01222-AC, 2014 WL 4162533, at *6 (D. Or. Aug. 18, 2014) (“Miller I”)(The court must recognize both the directive of § 1988, and subsequent case law requiring a reasoned consideration of the entitlement to fees in each case.”)

         On appeal, the Ninth Circuit reversed this court because the August Offer, once accepted, became a contract and was to be construed as such, and its terms provided that Miller “would receive her reasonable attorney's fees without referencing § 1988 or otherwise reserving to the district court the antecedent question of whether Miller was entitled to a fee award.” Miller v. City of Portland, 868 F.3d 846, 848 (9th Cir. 2017) (“Miller II”). The court explained “[t]he district court engaged in the wrong analysis when it applied principles governing § 1988 awards, rather than principles governing contract construction, to decide Miller's fee motion. We have repeatedly emphasized that Rule 68 offers of judgment are ‘analyzed in the same manner as any contract.'” Id. at 851 (quoting Erdman v. Cochise Cty., 926 F.2d 877, 880 (9th Cir. 1991)). Accordingly, the Ninth Circuit concluded, the only issue before this court was the reasonableness of the requested attorney fees, not Miller's right to recover fees under Section 1988. Miller II, 868 F.3d at 852 (“In short, because the settlement provided that [Miller] would be awarded reasonable fees, the district court did not need to determine whether fees should have been awarded.”)(internal quotation and citation omitted)(emphasis in original). The Ninth Circuit remanded Miller I to this court for the calculation and award of attorney fees. Id.

         Preliminary Legal Matter

         The parties offer differing opinions on the proper construction of the August Offer and the legal standard to be applied when considering the reasonableness of Miller's fee request. The Ninth Circuit found “considerations that govern the decision to award fees under §§ 1983 and 1988 are not applicable to this case, as those considerations were not incorporated into the Offer.” Miller II, 868 F.3d at 851. Rather, “Miller was entitled to rely on the plain language of the offer, which expressly provided for fees without referencing § 1988.” Id. at 852 (internal quotation marks and citation omitted). But the Ninth Circuit also specifically noted that “[t]he question of whether a $0.00 or nominal award, such as $1.00, could constitute a reasonable fee award under a Rule 68 Offer is not before us and we need not decide it. We neither encourage nor dissuade the district court on remand from inquiring into whether, under a contract principle analysis, an award of $0.00, or a nominal amount, could constitute a reasonable fee award in this case.” Id. at 850 n.2. Thus, the Ninth Circuit's opinion does not foreclose this court from considering whether a reasonable fee is the full amount Miller requests, no amount as the City urges, or any amount in between the parties' respective positions.

         Turning to the August Offer itself, when a plaintiff accepts a Rule 68 offer of judgment, the “usual rules of contract construction” apply to the interpretation of the terms of the offer of judgment. Guerrero v. Cummings, 70 F.3d 111, 1113 (9th Cir. 1995). Those rules dictate that “ambiguities will be construed against the offeror as the drafting party and, where such ambiguities are found to exist, extrinsic evidence of the parties' actual intentions will be examined to clarify those ambiguities and arrive at the meaning of the offer's material terms.” Herrington v. County of Sonoma, 12 F.3d 901, 907 (9th Cir. 1993). A waiver or limitation on attorney fees found in a Rule 68 offer of judgment must be clear and unambiguous. Nucom v. Comh Woodburn, Inc., 122 F.3d 830, 832 (9th Cir. 1997).

         In the August Offer, the City expressly agreed to pay “reasonable attorney's fees, to be determined by the Court, incurred as of April 16, 2013.” (Acceptance of Offer of J.) The Ninth Circuit considered similar language in Guerrero v. Cummings, 70 F.3d 1111, 1113-14 (9th Cir. 1995), and concluded the express limitation found in the offer of judgment to “reasonable attorney fees and costs incurred . . . prior to the date of [the] offer”[5] constituted a clear and unambiguous waiver of the plaintiffs' right to attorney fees for hours billed after they signed the offer of judgment. Applying this conclusion here, Miller is limited to recovery of attorney fees incurred as of April 16, 2013.

         Next, with regard to the construction of the term “reasonable” and the applicable standard, the Ninth Circuit has held the “lodestar” method should be used to calculate a reasonable attorney fee award when a Rule 68 Offer of Judgment provides for such award. Giovanni v. Bidna & Keys, 255 Fed.Appx. 124, 125 (9th Cir. 2007)(court concluded “that the district court used the proper legal standard in calculating the fee award by implicitly using the ‘lodestar' method” in addressing amount of attorney fees awarded in a case resolved by a Rule 68 offer of judgment.) Additionally, in a Findings and Recommendation adopted by Judge Mosman, Judge Paul Papak of this district utilized the “lodestar” method to determine reasonable attorney fees where the parties did not contest such attorney fees were authorized pursuant to a Rule 68 offer of judgment. Harrison v. Portfolio Recovery Assocs., LLC, 3:15-CV-454-PK, 2016 WL 872545, at *1-*2 (D. Or. March 3, 2016).

         Finally, both parties have cited and utilized the “lodestar” method in their briefing to argue the reasonable fee. Thus, both parties implicitly concede, at least to some degree, that application of the lodestar method is appropriate here. Accordingly, the court considers what amount of attorney fees is “reasonable” using the lodestar method.

         Legal ...

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