Swartz, et al v. Turner, et al

Filing 20

ORDER: Granting Motion to Dismiss as to the forum selection clause and this action is dismissed without prejudice 9 ; Adopting in part Findings and Recommendation 16 . Defendants may file a motion for attorney's fees andcosts within 14 days, with supporting documents. Plaintiffs mayfile a response brief within 10 days. (See attached PDF for complete details). Signed on 11/19/2014 by Judge Owen M. Panner. (jkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
WILLIAM H. SWARTZ and DIANE C.
PACE, as Trustees o£ the WILLIAM
H. SWARTZ and DIANE C. PACE TRUST,
No. 1:14-cv-597-CL
Plaintiffs,

v.
!

KAREN FORD TURNER and MONTY
TURNER,

ORDER

Defendants.

PANNER, District Judge:

Magistrate Judge Mark D. Clarke filed a Report and
Recommendation (R&R), and the matte'r is now before this court.
See 28 U.S.C.

§

636(b) (1) (B),

Fed. R. Civ. P. 72(b).

When a

party objects to any portion of a Magistrate.Judge's R&R, the
district court makes a de novo determination of that portion of
the Magistrate Judge's report.

28 U.S.C.

§

636(b) (1) (C);

McDonnell Douglas Corp. v. Commodore Bus. Mach.,
1 - ORDER

Inc.,

656 F. 2d

1309, 1313 (9th Cir. 1981).
Here, the patties object to the R&R,

so I have reviewed this

I adopt the R&R except as to Defendants' request
for attorney's fees.
BACKGROUND

Plaintiffs leased real property to Defendants under a written
agreement.

Plaintiffs now bring a claim for waste against

Defendants, alleging Defendants caused about $30,000 in damage to
the leased property.
The R&R recommends dismissing this action without prejudice
based on the forum selection clause in the lease.

The R&R also

recommends denying Defendants' request for attorney's fees because
the dismissal is not on the merits and is without prejudice.
DISCUSSION
I.

Plaintiffs' Objections

Plaintiffs object to the R&R's recommendation that this
action be dismissed without prejudice because of the forum
selection clause in the lease.

I agree with the R&R that forum

selection clause applies here.
II. · Defendants' Objections

Defendants object to the R&R's conclusion that they are not
entitled to attorney's fees.

Defendants rely on the lease

provision governing attorney's fees:
If suit or action is instituted in connection with any
.controversy arising out of this Agreement, the
prevailing party in that suit or action or any appeal
therefrom shall be entitled to recover, in addition to
2 -

ORDER

any other relief, the sum which the court may judge to
be reasonable attorney fees.
Defendants argue they are entitled to attorney's fees because
Plaintiffs "instituted" this action "in connection with [a]
controversy arising out of" the lease, and Defendants "prevailed
by successfully enforcing the terms of the lease and specifically
.the forum selection clause."

Defs' Objection 2.

The R&R concludes that under Oregon law, Defendants are not
entitled to fees because they did not succeed on the merits.

I

agree that Defendants have not prevailed on the merits because
dismissal is without prejudice.

See Offshore Sportswear, Inc. v.

Vuarnet Int'l, B.V., 114 F.3d 848, 851

(9th Cir. 1997)

("Because a

dismissal to enforce a forum selection clause is not a
determination on the merits of any cause of action, it is
appropriately 'without prejudice' so that the merits can be
litigated elsewhere.").

But the attorney's fees provision at

issue does not require that a party prevail on the merits, only
that a party prevail in an action "instituted ·in connection with
any controversy arising out of this Agreement."

Defendants here

prevailed in this action by obtaining dismissal based on the forum
selection clause, even though dismissal is without prejudice.
Under the terms of the lease, Defendants are entitled to
attorney's fees

~ncurred

enforcing the forum selection clause.

See also Ricciardi v. Frink, 133 Or. App. 436, 447, 891 P.2d 1336,
1342

(1995)

(upholding award of attorney's fees to party who

obtained dismissal of .action without prejudice based on forum
3 -

ORDER

selection clause).
CONCLUSION ·

Magistrate Judge Clarke's Report and Recommendation (#16)
adopted in part.

Defendants' motion to dismiss

(#9)

is

is granted as

to the forum selection clause and this action is dismissed without
prejudice.· Defendants may file a motion for attorney's fees and
costs within 14 days, with supporting documents.

lPlaintiffs may

file a response brief within 10 days.
IT IS SO ORDERED.
DATED this

~day

of November, 2014.

~~

OWEN M. PANNER
U.S. DISTRICT JUDGE

4 - ORDER