McCain v. Kindred Healthcare, Inc., No. 6:2010cv06212 - Document 59 (D. Or. 2012)

Court Description: OPINION and ORDER - Defendant's Motion for Attorney Fees 53 is DENIED. The bill of costs 55 is GRANTED. Defendant is awarded $1,922.40 in costs. Signed on 2/3/12 by Judge Michael H. Simon. (mja)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION LAURIE KATHLEEN MCCAIN, Case No.: 6:10-cv-6212-SI Plaintiff, OPINION AND ORDER v. KINDRED HEALTHCARE, INC., Defendant. Glenn Solomon 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Of Attorneys for Plaintiff Scott Oborne Mark A. Crabtree JACKSON LEWIS, LLP 1001 SW Fifth Avenue, Suite 120S Portland, OR 97204 Of Attorneys for Defendant SIMON, District Judge. On December 7, 2012, the court granted Defendant Kindred Healthcare, Inc.'s motion for summary judgment. Dkt. #Sl. Defendant now moves the court for an award of attorneys' fees pursuant to Or. Rev. Stat. § 20.10S. Dkt. #S3. Defendant contends that an award of fees is appropriate because Plaintiff Laurie McCain had no objectively reasonable basis for her complaint. Defendant also submits a bill of costs. Dkt. #55. STANDARDS AND DISCUSSION State law governs the award of attorneys' fees in diversity actions when the fee award is "'connected to the substance ofthe case.'" Northon v. Rule, 637 F.3d 937,938 (9th Cir. 2011) (per curiam order) (quoting Price v. Seydel, 961 F.2d 1470, 1475 (9th Cir.1992)). Defendant's attorneys' fees were incurred defending against Plaintiff's claim for wrongful discharge; they were, therefore, "connected to the substance of the case." Under Oregon law, the court shall award reasonable attorneys' fees to the prevailing party if "there was no objectively reasonable basis for asserting the claim[.]" Or. Rev. Stat. § 20.105(1). To determine whether there was an objectively reasonable basis for asserting a claim, "the primary issue is whether there is evidence in the record to support the claim-that is, whether the party's claim is entirely devoid of legal or factual support at the time it was made." Lenn v. Bottem, 221 Or. App. 241, 248 (2008) (internal quotation marks and citations omitted). "The fact that a claim is ultimately unsuccessful does not necessarily mean that the party's position was objectively unreasonable." Morasch v. Hood, 232 Or. App. 392, 404 (2009). Although Plaintiff s wrongful discharge claim against Defendant was weak, it was not "entirely devoid of legal or factual support at the time it was made." Plaintiffs motion for attorneys' fees is, therefore, denied. In addition, Defendant seeks $1,922.40 in costs. The prevailing party may recover the types of costs specified in 28 U.S.C. § 1920; see Fed. R. Civ. P. 54(d)(1). The court has reviewed Defendant's costs and finds that they are reasonable and recoverable under § 1920. Page 2 - OPINION AND ORDER CONCLUSION Defendant's motion for attorneys' fees, Dkt. #53, is DENIED. The bill of costs, Dkt. #55, is GRANTED. Defendant is awarded $1,922.40 in costs. IT IS SO ORDERED. Dated this 3~ay of February, 2012. ~? Michael H. Simon United States District Judge Page 3 - OPINION AND ORDER

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