Lind v. Fidelity National Title Insurance Co., 072010 FED9, 09-35727

• Docket Nº: 09-35727
• Party Name: NORMAN AND PHYLLIS LIND, Plaintiffs - Appellees, v. FIDELITY NATIONAL TITLE INSURANCE COMPANY, Defendant-Appellant.
• Judge Panel: Before: PREGERSON, WARDLAW and RAWLINSON, Circuit Judges.
• Case Date: July 20, 2010
• Court: United States Courts of Appeals, Court of Appeals for the Ninth Circuit

NORMAN AND PHYLLIS LIND, Plaintiffs - Appellees,

v.

FIDELITY NATIONAL TITLE INSURANCE COMPANY, Defendant-Appellant.

No. 09-35727

United States Court of Appeals, Ninth Circuit

July 20, 2010

NOT FOR PUBLICATION

Submitted July 16, 2010 Portland, Oregon.

Appeal from the United States District Court No. 6:08-cv-06133-AA for the District of Oregon Ann L. Aiken, Chief Judge, Presiding.

Before: PREGERSON, WARDLAW and RAWLINSON, Circuit Judges.

MEMORANDUM^[*]

Fidelity National Title Insurance Company ("Fidelity") appeals the district court's denial of its request for sanctions, under Oregon Revised Statutes § 20.105, against Norman and Phyllis Lind.

The district court denied Fidelity's request for § 20.105 sanctions on the ground that the Linds had not acted in "bad faith." Prior to 1995, § 20.105 contained a "bad faith" requirement, but that requirement was removed by amendment in 1995. See 1995 Or. Laws Ch. 618, § 2.

Section 20.105 now requires a prevailing party to show that the losing party had "no objectively reasonable basis" for its claim. See 1995 Or. Laws Ch. 618, § 2. Fidelity cannot make that showing. When the Linds filed their complaint against Fidelity, they possessed three documents which provided factual support for their claims. Therefore, the Linds' claims were not entirely devoid of factual support, and the Linds had an objectively reasonable basis for their claims. See Dimeo v. Gesik, 98 P.3d 397, 402 (2004) (citing Mattiza v. Foster, 311 Or. 1, 8 (1990)). Accordingly, we affirm the judgment of the district court denying Fidelity's request for sanctions.

AFFIRMED.

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Notes:

^[*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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