Davidson v. Deschutes County et al
Filing
46
ORDER: Adopting Magistrate Coffin's Findings and Recommendation 41 allowing defendants John and Caren Burton's motion for attorney's fees 38 in the amount of $4,185. Plaintiff's request of this Court to deny defendants' petition for attorney's fees is DENIED. See formal ORDER. Signed on 12/10/2015 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARTIE DAVIDSON,
Case No. 6:15-cv-00052-TC
ORDER
Plaintiff,
v.
DESCHUTES COUNTY, JOHN AND
CAREN BURTON, CHRIS KABER,
and JENNIFER GASPARD,
Defendants.
Mikel R. Miller
Law Office of Mikel R. Miller, P.C.
26 N.W. Hawthorne Avenue
Bend, Oregon 97703
Attorney for Plaintiff
Geordie Duckler
The Animal Law Practice
9397 S.W. Locust Street
Tigard, Oregon 97223
Attorney for Defendants John and Caren Burton
Page 1 - ORDER
AIKEN, Chief Judge:
Magistrate Judge Coffin filed his Findings and Recommendation
on February 13, 2013. The matter is now before me pursuant to 28
U.S.C.
§
objects
636(b) (1) (B)
to
any
Recommendation,
and Fed.
portion
the
of
district
R.
Civ.
a
P.
72 (b).
Magistrate's
court
must
When a party
Findings
make
a
de
and
novo
determination of that portion of the Magistrate's report. 28 U.S.C.
§
636(b) (1) (B); McDonnell Douglas Corp. v. Commodore Bus. Mach.,
656 F.2d 1309, 1313 (9th Cir. 1981).
Plaintiff brought this action asserting state law claims of
malicious prosecution and defamation against defendants John and
Caren
Burton
claims
("the
against
Burtons") .
defendants
Plaintiff
Deschutes
also
County,
asserted
Chris
various
Kaber,
and
Jennifer Gaspard, including a claim for false arrest pursuant to 42
U.S.C.
§
1983. Compl.
~~
37-72. On June 24, 2014, Magistrate Coffin
dismissed plaintiff's defamation claim against the
Burtons and
granted summary judgment for the Burtons on plaintiff's malicious
prosecution claim.
(doc. 31 at 7, 12)
(doc. 33, adopting Findings
and Recommendation) . The court also dismissed all claims against
the other defendants.
(doc. 31 at 1). Plaintiff declined to amend
the complaint.
Plaintiff now objects
to Magistrate Coffin's
Findings
and
Recommendation awarding $4,185 in attorney's fees to the Burtons
for time billed regarding plaintiff's malicious prosecution claim.
Page 2 - ORDER
Obj. to Findings and Recommendation 1. Because plaintiff asserted
no federal claims against the Burtons,
attorney's fees under 42 U.S.C.
plaintiff's federal
§
the Burtons can recover
1988 only if they demonstrate
false arrest claim and her state malicious
prosecution claim share a common core of facts. See, e.g., Maher v.
Gagne,
448 U.S.
122, 132
(1980)
(awarding attorney's fees for a
state law claim pendent to a substantial constitutional claim);
Carreras v. City of Anaheim,
(where
a
common
nucleus
of
768 F.2d 1039, 1050 (9th Cir. 1985)
operative
facts
exists
substantial federal claim and a pendent state claim,
between
a
attorney's
fees may be awarded pursuant to Section 1988).
Plaintiff asserts Magistrate Coffin erred in holding a common
core
of
facts
exists
prosecution claims.
between
Obj .
to
her
false
Findings
and
arrest
and
malicious
Recommendation
2.
In
support of her malicious prosecution claim, plaintiff alleged the
Burtons "pushed the Deschutes County District Attorney to charge
someone" and "pushed for prosecution of [plaintiff] with no reason
to believe she had done anything to deserve prosecution." Compl.
55,
57.
'J['J[
In support of her false arrest claim, plaintiff alleged
defendants Kaber and Gaspard "refused to investigate whether the
facts admitted to by [p]laintiff could have caused the injuries
they sought to blame on [p]laintiff" and were "more interested in
pacifying the Burton[s than] they were interested in pursuing the
truth." Id.
at
Page 3 - ORDER
'J[
63.
The complaint confirms Magistrate Coffin's
conclusion:
plaintiff's
claims
for
false
arrest
and malicious
prosecution arise out of a common core of facts because both claims
involve
facts
leading up to
and motivating the prosecution of
plaintiff.
Plaintiff
further
objects
to
Magistrate
Coffin's
award
because, though plaintiff "could have amended her claim," she was
unable
to
do
so
due
to
"the
emotional
[p] laintiff, and her own personality,
damage
[which]
inflicted
on
prevented her from
being able to see the matter through to the end." Obj. to Findings
and
Recommendation
deciding
not
to
2.
amend
Plaintiff's
her
subjective
defamation
claim
motivation
is
irrelevant
for
to
determining whether the Burtons are entitled to attorney's fees in
connection with the malicious prosecution claim.
I have given the file of this case a de novo review. I ADOPT
Magistrate Coffin's Findings and Recommendation (doc. 41) allowing
defendants John and Caren Burton's motion for attorney's fees (doc.
38) in the amount of $4,185. Plaintiff's request of this Court to
deny defendants' petition for attorney's fees is DENIED.
IT IS SO ORDERED.
Dated this
December 2015.
Ann Aiken
United States District Judge
Page 4 - ORDER
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