Kip O'Connor v. Clackamas County ( 2018 )

FILED
NOT FOR PUBLICATION
JUN 29 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIP O’CONNOR, et al., No. 16-35526
Plaintiffs - Appellants, D.C. No. 3:11-CV-01297-SI
v.
MEMORANDUM*
COUNTY OF CLACKAMAS, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted May 7, 2018
Portland, Oregon
Before: RAWLINSON and NGUYEN, Circuit Judges, and SILVER,** Senior
District Judge.
Appellants appeal the district court’s award of attorney’s fees and costs in
favor of Appellees, who were members of a now-defunct Community Planning
Organization (“CPO”). The CPO was a volunteer organization that addressed
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roslyn O. Silver, United States Senior District Judge
for the District of Arizona, sitting by designation.
concerns over land use in Clackamas County, Oregon. Appellees and the CPO
prevailed on all claims, including an Oregon state tort claim for Intentional
Interference with Economic Relations (“IIER”). We affirmed. O’Connor v.
County of Clackamas, 627 Fed. App’x. 670 (9th Cir. 2015). For the IIER claim,
Appellees were entitled to attorney’s fees and costs per Oregon’s Anti-SLAPP
statute.1 Or. Rev. Stat. § 31.152(3). We granted Appellees’ unopposed motion for
transfer of fees to the district court. The district court awarded $77,352.50 in fees
to the “CPO Defendants.” This appeal followed. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
1. We reject Appellants’ attempt to relitigate the merits of their IIER claim.
Appellants argue that new case law dictates a different outcome, but Handy v. Lane
County is easily distinguishable. 362 P.3d 867 (Or. App. 2015), aff’d in part, rev’d
in part on other grounds, 385 P.3d 1016 (Or. 2016). In Handy, the court held that
Oregon’s Anti-SLAPP statute did not apply to claims based on alleged violations
of public meeting laws because the alleged violations were not “protected
activities” under the Anti-SLAPP statute. Id. at 882. Here, unlike in Handy,
Appellants failed to show any violation of public meeting laws. Indeed, the district
1
“SLAPP” stands for “Strategic Lawsuits Against Public Participation.”
Or. Rev. Stat. § 31.150(1); Mullen v. Meredith Corp., 353 P.3d 598, 600 (Or. App.
2015).
2
court had dismissed the IIER claim because Appellants failed to show a prima facie
case for this claim.
For this reason, too, we reject Appellants’ contention that the district court’s
fees award contravenes the public policy underlying Oregon’s Anti-SLAPP statute.
This statute allows litigants “to expeditiously terminate unfounded claims that
threaten constitutional free speech rights, not to deprive litigants of the benefit of a
jury determination that a claim is meritorious.” Staten v. Steel, 191 P.3d 778, 789
(Or. App. 2008) (emphasis in original). This issue was conclusively decided when
we previously affirmed the dismissal of Appellants’ IIER claim.
2. We review the district court’s award of fees for abuse of discretion.
Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 898–99 (9th Cir.
2006). The district court did not abuse its discretion.
First, the district court did not fail to account for non-compensable time; its
ruling explicitly identified and deducted claims for non-compensable work.
Second, the district court reasonably found that Appellants’ conduct in pursuing
settlement did not impact the fee award. Or. Rev. Stat. § 20.075(1)(f). Given the
contentious and lengthy nature of the litigation, it was reasonable to reject
Appellants’ paltry settlement offers. Erwin v. Tetreault, 964 P.2d 277, 282 (Or.
App. 1998) (finding that “[a] plaintiff with a contractually-based entitlement to
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prevailing party attorney fees should not be penalized for an objectively reasonable
rejection of a proposed settlement”); CKH Family Ltd. P’ship v. Holt Homes, Inc.,
No. 17-441, 2018 WL 1536479, at *4 (D. Or. Mar. 29, 2018) (rejecting argument
that fees should be reduced based on defendant’s “refusal to engage in settlement
discussions” given prospect of successful defense). Even assuming that Appellees
failed to disclose the settlement offers to the CPO membership itself, the district
court did not err in refusing to reduce further the fee award based on such failure.
Finally, we decline to reverse the judgment on the ground that it referenced
the “CPO Defendants” rather than distinguishing between the individual
defendants who brought the fee motion and the now-defunct CPO itself. On the
IIER claim that supports the award, the allegations against the CPO were
coextensive with the allegations against Appellees. Appellants fail to show why an
award of fees for Appellees would not then satisfy any obligation to the CPO itself.
AFFIRMED.
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