Morgan v. Jim Sigel Enterprises, Inc.

Filing 90

ORDER: Denying Motion for Attorney Fees 87 ; Denying Taxation of Costs. 88 . Signed on 9/30/2014 by Judge Owen M. Panner. (jkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
RAY MORGAN,
No. 1:13-cv-1509-PA
Plaintiff,
ORDER

v.

JIM SIGEL ENTERPRISES,

INC.,

Defendant.
PANNER, District Judge:
Plaintiff brought employment discrimination claims under the
Americans with Disabilities Act
statute.

(ADA) and the analogous Oregon

At trial, this court and the jury found against

Plaintiff on all of his,claims.
Defendant now moves for an award of attorney's fees and
costs.

1 -

I deny fees and costs.

ORDER

DISCUSSION
I.

Attorney's Fees Under the ADA

Defendant argues it is entitled to attorney's fees under the
ADA because it is the prevailing party.

This court has

discretion under the ADA to award attorney's fees to the
prevailing party.

See, e.g., Hubbard v. SoBreck, LLC, 554 F.3d

. 742, 743 (9th Cir. 2009)

(citing 42 U.S.C. § 12205).

But when

the prevailing party is the defendant, as here, this court may
~

award attorney's fees only if the plaintiff's ADA claims were
"'frivolous, unreasonable, or without foundation.'"
Teichert & Son, Inc., 127 F.3d 1150, 1154

(9th

Cir~

Summers v.
1997)

(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978)).

The prevailing defendant "bears the burden of

establishing that the fees for which it is asking are in fact
incurred solely by the need to defend against those frivolous
claims."
971

Harris v. Maricopa Cnty. Superior Court, 631 F.3d 963,

(9th Cir. 2011).
In its brief, Defendant makes no attempt to show Plaintiff's

ADA claims were frivolous.

I denied Defendant's motion for

summary judgment, which is "evidence that the claim is not
without merit."
F. 3d 63 6,

Herb Hallman Chevrolet, Inc.

~.

Nash-Holmes, 169

64 5 (9th Cir. ·19 9 9) . . Merely losing at trial does not

show a civil rights claim is frivolous.·· See EEOC v. Bruno's
Rest., 13 F. 3d 285, 287

2

ORDER

(9th Cir. 1993).

I deny Defendant's

request for attorney's fees under the ADA.
II.

Costs and Litigation Expenses Under the ADA

Defendant seeks costs and "litigation expenses," which under
the ADA include items not generally allowed as costs such as
travel expenses.

The same standard that limits this cdurt's

discretion·to award attorney's fees to prevailing civil rights
defendants also applies to costs and litigation expenses under
the ADA.

See Brown v. Lucky Stores,

(9th Cir. 2001).

Inc., 246 F.3d 1182, 1190

Because Plaintiff's claims were not frivolous,

unreasonable, or without foundation,

I deny Defendant's request

for costs and litigation expenses under the ADA.
III.

Attorney's Fees Under the Oregon Statutes

Defendant seeks attorney's fees under Oregon law, citing Or.
Rev. Stat.

§

659A.885(1), which authorizes the court to "allow

the prevailing party costs and reasonable attorney fees at trial
and on appeal."

But under Oregon law, just as under federal law,

"prevailing defendants generally cannot recover attorney fees
unless they can show that the plaintiff brought a claim in bad
faith or asserted a frivolous, unfounded, or objectively
unreasonable claim."

Hamlin v. Hampton Lumber Mills,

Or. App. 165, 168, 205 P.3d 70, 72

(2009)

Inc., 227

(original emphasis).

I deny Defendant's request for attorney's fees under Oregon
law for the same reasons I deny attorney's fees under federal
law.

3

I also deny Defendant's request for $200 in compensatory

ORDER

damages under Oregon law.
IV.

Costs Under the Oregon Statutes

Oregon requires that its disability discrimination statutes
be construed

consis~ently

with the ADA "to the extent possible."

Or. Rev. Stat. § 659A.139.
costs here,

Because federal law does not allow

I conclude Oregon law also does not allow costs.

Even assuming, for purposes of this motion, Oregon would
allow costS to a prevailing defendant under these facts,
deny costs.

I would

The Ninth Circuit has concluded preemption barred an

award of attorney's fees under California law to a prevailing
defendant because the ADA would not allow such an award on a
parallel federal claim brought by the same plaintiffs.

See

Hubbard v. SoBreck, LLC, 554 F.3d 742

In

(9th Cir. 2009).

Hubbard, the Ninth Circuit concluded, "to the extent that [the
California statute] does authorize the award of fees to a
prevailing defendant on nonfrivolous [state disability
discrimination claims] that parallel nonfrivolous ADA claims,
there is a conflict and the ADA preempts [the California
statute]."

Id. at 747.

Because the ADA links awards of

attorney's fees with awards of costs, Hubbard's reasoning applies
here.

Defendant is not entitled to c6sts under either state or

federal law.
CONCLUSION

Defendant's Motion for Award of Attorney's Fees (#87) and

4

ORDER

Bill of Costs (#88) are denied.
IT IS SO ORDERED.

DATED this

3tJ

day of September, 2014.

OWEN M. PANNER
U.S. DISTRICT JUDGE

5 - ORDER