Orr v. Nevada State Board of Osteopathic Medicine et al

Filing 45

ORDER Denying without prejudice 40 Motion for Attorney Fees. Signed by Magistrate Judge Cam Ferenbach on 9/5/2014. (Copies have been distributed pursuant to the NEF - SLR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***
4
5

MARIAN ORR, D.O.,
Plaintiff,

6

Case No. 2:12–cv–2119–GMN–VCF

vs.
7
8
9

NEVADA STATE BOARD OF OSTEOPATHIC
MEDICINE, et al.,

ORDER

Defendants.

10

This matter involves Plaintiff Marian Orr’s civil rights action against, inter alia, the Nevada
11
12
13
14
15

State Board of Osteopathic Medicine (hereinafter “the Board”). Before the court is the Board’s Motion
for Attorney’s Fees (#40). Orr filed an opposition (#43); and the Board replied (#44). For the reasons
stated below, Orr’s motion is denied without prejudice.
LEGAL STANDARD

16

Federal Rule of Civil Procedure 54(d) provides that a prevailing party is entitled to costs unless

17

the court rules otherwise. In certain circumstances prevailing defendants in a section 1983 action, like

18

the Board, may be awarded their attorney’s fees pursuant to 42 U.S.C. § 1988. See, e.g., Saman

19
20

v. Robbins, 173 F.3d 1150, 1157 (9th Cir. 1999). However, an award of attorney’s fees to the prevailing
defendant is a matter within the court’s discretion. See, e.g., Saman, 173 F.3d at 1157; see also Mendez

21

v. Cnyt. of San Bernardino, 540 F.3d 1109 (9th Cir. 2008) (stating that an abuse of discretion occurs if
22

the court fails to apply the proper legal standard or makes findings of fact that are clearly erroneous).
23

Additionally, Rule 54’s Advisory Committee Notes state that “[i]f an appeal on the merits of the case is
24
25

taken, the court may . . . defer its ruling on the motion, or may deny the motion without prejudice.”
See Fed. R. Civ. P. 54(d), Advisory Comm. Notes (1993).

DISCUSSION

1
2

The Board’s Motion for Attorney’s fees is denied without prejudice. On July 25, 2014, judgment

3

was entered in favor of the Board. (Doc. #35). Orr subsequently filed a notice of appeal, (see Doc. #36),

4

followed by the Board’s motion for attorney’s fees (see Doc. #40). Federal Rule of Civil Procedure 1

5

instructs the court to administer the rules “to secure the just, speedy, and inexpensive determination of

6

every action and proceeding.” Rule 54 affects Rule 1’s goals by permitting the court to defer ruling on

7

motions for attorney’s fee until an appeal is decided. See Fed. R. Civ. P. 54(d), Advisory Comm. Notes

8

(1993). In light of the fact that Orr’s appeal could moot the Board’s motion for attorney’s fees, the court

9

exercises its discretion in favor of denying the motion without prejudice.

10

ACCORDINGLY, and for good cause shown,
11

IT IS ORDERED that the Board’s Motion for Attorney’s Fees (#40) is DENIED without
12

prejudice.
13
14
15

IT IS FURTHER ORDERED that the Board is granted LEAVE to refile the motion after the
Ninth Circuit resolves Orr’s appeal.

16

IT IS SO ORDERED.

17

DATED this 5th day of September, 2014.
_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25

2