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Orr v. Nevada State Board of Osteopathic Medicine

United States District Court, D. Nevada

December 2, 2016

MARIAN ORR, D.O., Plaintiff,
v.
NEVADA STATE BOARD OF OSTEOPATHIC MEDICINE; et. al., Defendants.

          ORDER & REPORT AND RECOMMENDATION

          CAM FERENBACH, UNITED STATES MAGISTRATE JUDGE

         Before the court is the Nevada State Board of Osteopathic Medicine's (Board) motion for reconsideration (ECF No. 48). The Board asks this court to reconsider its previous decision regarding the Board's attorney's fees. In light of the Ninth Circuit's affirmation of the court's order dismissing the action, this court reconsiders the Board's motion for attorney's fees (ECF No. 40), Orr's response (ECF No. 43), and the Board's reply (ECF No. 44). For the reasons stated below, the Board's motion to reconsider (ECF No. 48) is granted. Upon reconsideration, the Board's motion for attorney's fees (ECF No. 40) should be granted.

         I. Discussion

         1. Orr's Claims Against the Board Were Meritless

         “In any action or proceeding to enforce [42 U.S.C.] section … 1983… the court, in its discretion may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of costs.” 42 U.S.C. § 1988. “The mere fact that a defendant prevails does not automatically support an award of fees.” Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988). “A prevailing civil rights defendant should be awarded attorney's fees not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.” Id.

         Here, Orr's conduct in this action demonstrates that her claims against the Board were meritless. In light of the order dismissing all defendants except the Board (ECF No. 20), this court permitted the parties to exchange discovery regarding Orr's claims against the Board (ECF No. 29). The discovery deadline passed and no extensions were sought. Shortly thereafter, the Board moved to submit its second motion to dismiss (ECF No. 33). In its motion, the Board represented that “Dr. Orr has not filed the amended complaint allowed by the Court. Additionally, the March 10, 2014 discovery cut-off by Magistrate [Judge] Ferenbach in his Order (ECF No. 29) has come and gone and Dr. Orr sought no discovery.” (ECF No. 33) Orr does not dispute either contention. (ECF No. 43 at 8)(“Dr. Orr did not conduct discovery, because after considering the matter further, it was determined that discovery was not needed at the time.”)

         In its order granting the Board's second motion to dismiss, the court noted that Orr “had taken no further action to pursue her litigation” and she “failed to provide any substantive argument in response to Defendant's motion requesting dismissal.” (ECF No. 34) The court specifically found that Orr “failed to provide any substantive grounds supporting the maintenance of her claims, and has failed to show any merit to her claims against the Board.” (Id.) In plain language, the court informed Orr that her claims against the Board lacked merit. (Id.)

         Orr attempts to explain her lack of diligence. She claims that she was awaiting resolution of her motion for clarification (ECF No. 21) before she expended additional resources on this action. Orr's motion takes issue with two portions of the court's September 13 order (ECF No. 20). The first segment concerns the court's ruling on Orr's motion for summary judgment:

Drawing all justifiable inferences in Defendants' favor, the Court cannot find that Plaintiff would be entitled to a directed verdict because Defendants' fine could reasonably be considered a “condition, limitation, or restriction” on Plaintiff's license, pursuant to a determination that such action was “necessary to protect the public health, safety or welfare.” Accordingly, a genuine dispute of material facts exists as to whether Plaintiff's due process right were violated.

(ECF No. 20 at 8)

         The second segment addresses the Board's first motion to dismiss:

Here, based upon the facts alleged, the Court cannot find that Plaintiff has made out a violation of a constitutional right in her Complaint, as applied to the individual defendants, and correspondingly, cannot find that Plaintiff has shown facts making out such a violation.

(Id. at 9)

         Orr asked the court to “elaborate on these issues, ” but did not identify her confusion or explain her misunderstanding of the order. Instead, for the first time in her response to the Board's motion for attorney's fees, Orr explains that she was ...


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