O'Connor v. Cnty. of Clackamas

• Decision Date: 31 May 2016
• Docket Number: Case No. 3:11-cv-01297-SI
• Parties: O'CONNOR, et al., Plaintiffs, v. COUNTY OF CLACKAMAS, et al., Defendants.
• Court: U.S. District Court — District of Oregon

O'CONNOR, et al., Plaintiffs, v. COUNTY OF CLACKAMAS, et al., Defendants.

Case No. 3:11-cv-01297-SI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

May 31, 2016

OPINION AND ORDER

Mark E. Griffin, GRIFFIN & MCCANDLISH, 1631 N.E. Broadway, # 721, Portland, Oregon 97232. Of Attorneys for Plaintiffs.

Stephen L. Madkour, County Counsel, Scott C. Ciecko and Alexander Gordon, Assistant County Counsel, CLACKAMAS COUNTY, Oregon, 2051 Kaen Road, Oregon City, Oregon 97045. Of Attorneys for Defendants Clackamas County, Steve Hanschka, and Kim Benthin.

Daniel J. Rohlf and Thomas Buchele, EARTHRISE LAW CENTER, 10015 S.W. Terwilliger Blvd., Portland, Oregon 97219. Of Attorneys for Defendants Mt. Hood Corridor CPO, Donald Mench, Dave Fulton, Roy Bellows, Donna Bellows, and Janine Bertram.

Michael H. Simon, District Judge.

On August 12, 2012, the Court dismissed with prejudice Plaintiffs' state tort claim for intentional interference with economic relations ("IIER") against Defendants Mt. Hood Corridor CPO,¹ Donald Mench, Dave Fulton, Roy Bellows, Donna Bellows, and Janine Bertram (collectively, the "CPO Defendants"). The Court dismissed this claim pursuant to a specialmotion to strike filed under Oregon's law protecting against lawsuits challenging the exercise of constitutional rights of petition or speech concerning an issue of public interest. Such a lawsuit is referred to as a "strategic lawsuit against public participation," or "SLAPP suit," and state laws protecting against such suits are referred to an as "Anti-SLAPP" laws. Oregon's Anti-SLAPP law is codified at Or. Rev. Stat. § 31.150. This law provides for expedited consideration of a motion to strike, along with mandatory attorney fees upon the success of such a motion. As explained by the Ninth Circuit, "Anti-SLAPP statutes are designed to allow the early dismissal of meritless lawsuits aimed at chilling expression through costly, time-consuming litigation." Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011), quoting Gardner v. Martino, 563 F.3d 981, 986 (9th Cir. 2009). After considering the CPO Defendants' motion to strike Plaintiffs' IIER claim, the Court found that Plaintiffs had not established a probability that they would prevail on that claim, after Plaintiffs failed to present substantial evidence to support a prima facie case. O'Connor v. County of Clackamas, 2012 WL 3756321 (D. Or. Aug. 28, 2012).

In addition to dismissing Plaintiffs' IIER claim under Oregon's Anti-SLAPP law, the Court dismissed Plaintiffs' federal civil rights due process claim, under 42 U.S.C. § 1983, against all CPO Defendants except Mr. Mench and the CPO itself. Id. The Court later dismissed those claims by summary judgment. O'Connor v. County of Clackamas, 2013 WL 3818143 (D. Or. July 22, 2013). Plaintiffs appealed to the Ninth Circuit, which summarily affirmed. O'Connor v. County of Clackamas, 627 Fed. Appx. 670 (9th Cir. 2015).

Before the Court is the CPO Defendants' motion for attorney's fees. Dkt. 166. The CPO Defendants seek only their fees relating to defending against Plaintiffs' IIER claim and do not seek fees relating to their successful defense against Plaintiffs' federal civil rights claim. For thereasons discussed below, the CPO Defendants' motion is granted in part. The CPO Defendants are awarded $77,352.50 in attorney's fees.

STANDARDS

"In an action where a federal district court exercises subject matter jurisdiction over a state law claim, so long as state law does not contradict a valid federal statute, 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." Avery v. First Resolution Mgmt. Corp., 568 F.3d 1018, 1023 (9th Cir. 2009) (citation and quotation marks omitted). Oregon law provides for attorney's fees for a prevailing party on a special motion to strike a SLAPP complaint, as follows:

A defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to a plaintiff who prevails on a special motion to strike.

Or. Rev. Stat. § 31.152(3).

After concluding that a prevailing party shall recover reasonable attorney's fees, a court applying Oregon law must then consider the specific factors set forth in Or. Rev. Stat. § 20.075 to determine the amount of attorney's fees to be awarded. The specific factors set forth in Or. Rev. Stat. § 20.075(1) are:

(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, malicious, in bad faith or illegal.

(b) The objective reasonableness of the claims and defenses asserted by the parties.

(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.

(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.

(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.

(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.

(g) The amount that the court has awarded as a prevailing party fee under ORS 20.190.

(h) Such other factors as the court may consider appropriate under the circumstances of the case.

Or. Rev. Stat. § 20.075(1).² After considering these eight factors, Or. Rev. Stat. § 20.075(2) then directs the court to consider the following additional eight factors:

(a) The time and labor required in the proceeding, the novelty and difficulty of the questions involved in the proceeding and the skill needed to properly perform the legal services.

(b) The likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney from taking other cases.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the results obtained.

(e) The time limitations imposed by the client or the circumstances of the case.

(f) The nature and length of the attorney's professional relationship with the client.

(g) The experience, reputation and ability of the attorney performing the services.

(h) Whether the fee of the attorney is fixed or contingent.

Or. Rev. Stat. § 20.075(2). Oregon law further directs that when analyzing these factors, a court should "includ[e] in its order a brief description or citation to the factor or factors on which it relies." McCarthy v. Or. Freeze Dry, Inc., 327 Or. 185, 190-91 (1998). The court, however, "ordinarily has no obligation to make findings on statutory criteria that play no role in the court's decision." Frakes v. Nay, 254 Or. App. 236, 255 (2012).

Under Or. Rev. Stat. § 20.075(2), factor (a) generally relates to the reasonableness of the number of hours expended by counsel for the prevailing party, factors (c) and (g) generally relate to the reasonableness of the hourly rates charged, and factor (d) generally informs whether an upward or downward adjustment might be appropriate. Taken together, these factors are comparable to what is often referred to as the "lodestar" method for calculating a reasonable attorney's fee. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010) (holding that the lodestar method yields a presumptively reasonable fee, subject to either upward or downward adjustment as appropriate); see also Strawn v. Farmers Ins. Co. of Or., 353 Or. 210, 221 (2013) ("The lodestar approach that the parties have used is at least a permissible one under the statutes involved," including Or. Rev. Stat. § 20.075); ZRZ Realty Co. v. Beneficial Fire & Cas. Ins. Co., 255 Or. App. 525, 554 (2013) ("The lodestar method that the trial court used is a commonly applied and permissible approach for determining the reasonableness of a fee award . . . .").

DISCUSSION

A. Or. Rev. Stat. § 20.075(1) Factors

In considering the eight factors identified in Or. Rev. Stat. § 20.075(1), the Court concludes that factors (a) through (e) support the award of a reasonable attorney's fee in this case. Factors (f), (g), and (h) do not specifically inform the Court's decision on the proper amount of a reasonable attorney's fee.

The Court declines Plaintiffs' invitation to relitigate the merits of Plaintiffs' IIER claim in considering the factors relating to the pending motion for a fee award. The Court and the Ninth Circuit have rejected Plaintiffs' arguments that their IIER claim had merit. The Court does not read the two recent Oregon Court of Appeals cases cited by Plaintiffs as calling into question either the Court's or the Ninth Circuit's analyses. See Tri-Met v. Amalgamated Transit Union Local 757, 276 Or. App. 513 (2016); Handy v. Lane Cnty., 274 Or. App. 644 (2015). These cases involved claims for relief based on alleged violations of specific Oregon statutes relating to proper procedures for public meetings. No such claims were asserted in this case. Further, these cases are not relevant to the Court's analysis of the objective reasonableness of Plaintiffs' IIER claim. The Court correctly found that Plaintiffs presented nothing other than unsubstantiated allegations.

B. Or. Rev. Stat. § 20.075(2) Factors

In considering the eight factors identified in Or. Rev. Stat. § 20.075(2), the Court concludes that factors (a), (c), (d), and (g), the "lodestar" factors, are most relevant, with the remaining factors being either neutral or inapplicable.

1. Factor (a)—Reasonableness of the hours expended by counsel

The District of Oregon expressly cautions against block-billing, i.e., including more than one task in the description of work performed. This practice hinders a court's ability to assess thereasonableness of...