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Biggar v. Oregon Board of Optometry

United States District Court, D. Oregon, Portland Division

May 16, 2018

DAVID BIGGAR, Plaintiff,
v.
OREGON BOARD OF OPTOMETRY, et al., Defendants.

          OPINION AND ORDER

          MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before me on Defendant Dr. Joan Miller's Motion for Attorney Fees [76] and Supplemental Motion for Fees and Costs [89]. For the reasons stated below, I GRANT in part and DENY in part the Motions.

         BACKGROUND

         Pro se Plaintiff Dr. David Biggar sued the Oregon Board of Optometry and others after his optometrist license was revoked. Dr. Biggar added Dr. Joan Miller as a defendant in his Third Amended Complaint. She moved to strike under Oregon's anti-SLAPP statute, O.R.S. § 31.150. After oral argument on February 26, 2018 [74], I granted Dr. Miller's Motion to Strike [54]. Dr. Miller now moves for attorney fees and costs.

         DISCUSSION

         I. Attorney Fees

         A. Entitlement to attorney fees

         Oregon law governs whether attorney fees are available in this case. Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011) ("State laws awarding attorneys' fees are generally considered to be substantive laws under the Erie doctrine ... ."). The governing state law in this case is O.R.S. § 31.152, which states that "[a] defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs." O.R.S. § 31.152(3).

         Dr. Biggar argues that the Court should deny Dr. Miller's Motions because she was dismissed as a defendant without prejudice and other evidence may shed light on Dr. Miller's involvement in his case. Response [92]. But Dr. Biggar's arguments are unavailing. Oregon's anti-SLAPP law requires dismissal without prejudice. O.R.S. § 31.150(1) ("Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice."). And O.R.S. § 31.152(3) mandates the award of fees and costs in all cases where a defendant prevails on a special motion to strike. O.R.S. § 31.152(3); see Schwern v. Plunkett, No. 3:14-CV-146-PK, 2017 WL 3709094, at *2 (D. Or. July 5, 2017), report and recommendation adopted, No. 3:14-CV-146-PK, 2017 WL 3707399 (D. Or. Aug. 27, 2017) ("Under Section 31.152(3), therefore, this court is without discretion to determine that the prevailing defendant herein is not entitled to award of attorney fees."). Dr. Miller prevailed on such a motion and is therefore entitled to fees and costs, even though she was dismissed as a defendant without prejudice and further discovery could bring to light additional facts.

         B. Amount of fees

         Dr. Miller seeks $18, 248.50 in fees and $22.20 in costs for the work performed by Davis Rothwell Earle & X6chihua P.C., and $9, 726 in fees for the work performed by Miller Nash Graham & Dunn, for a total of $27, 974.50 in fees and $22.20 in costs. Motion [76]; Supp. Motion [89]; Langfitt Decl. [91] at 4. Dr. Biggar does not make specific objections to any of Dr. Miller's costs and fees.

         "In determining a reasonable attorney fee award under ORS 31.152(3), the trial court must consider factors enumerated in ORS 20.075." Robinson v. DeFazio, 392 P.3d 781, 784, opinion adhered to as modified on reconsideration, 399 P.3d 1095 (Or. Ct. App. 2017), review denied, 406 P.3d 608 (Or. 2017). O.R.S. § 20.075 requires courts to undertake a two-part inquiry when assessing the amount of attorney fees to be awarded in a case such as this one where attorney fees are required by statute. First, the Court must consider:

(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, ...

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