United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before me on Defendant Dr. Joan Miller's
Motion for Attorney Fees  and Supplemental Motion for
Fees and Costs . For the reasons stated below, I GRANT in
part and DENY in part the Motions.
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and others after his optometrist license was revoked.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 , I granted Dr. Miller's Motion
to Strike . Dr. Miller now moves for attorney fees and
Entitlement to attorney fees
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).
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 . 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.
Amount of fees
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 ; Supp. Motion ; Langfitt
Decl.  at 4. Dr. Biggar does not make specific objections
to any of Dr. Miller's costs and fees.
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, ...