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DISMISSAL OF SJ / NOW TO RECOVER THE FEES?


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I received the order granting my MTC and dismissing w/o prejudice the plaintiff's SJ. I want to recover my fees and wonder what I need to file with court to do this. Some type of motion I expect.

1. The RCP below spells out what I can and can't recover. Since there was a hearing and the Plaintiff sought recovery of money am I entitled to file for the amounts listed? (1A&B, 2A&B below)

2. And, sorry if this seems obvious, was the hearing the same as a trial of an issue of law or fact?

3. As for the ADR fees I paid: #7 below states I cannot seek recovery of the $550 awarded to me by ADR but could I get compensated through #3.

4. I am not sure I really understand #5.

After the 8 months of stress and strain I want to make them get out their checkbooks.

Thanks to any and all who respond.

20.190 Prevailing party fees. (1) Except as provided in subsections (2) to (5) of this section, a prevailing party in a civil action or proceeding who has a right to recover costs and disbursements in the following cases also has a right to recover, as a part of the costs and disbursements, the following additional amounts:

(a) In the Supreme Court or Court of Appeals, on an appeal, $100.

(B) In a circuit court:

(A) When judgment is given without trial of an issue of law or fact or on an appeal, $60; or

(B)When judgment is given after trial of an issue of law or fact, $85.

© In a small claims department, a county court or justice court, one-half of the amount provided for in paragraph (B) of this subsection.

(2) In lieu of the prevailing party fee provided for in subsection (1) of this section, in any civil action or proceeding in which recovery of money or damages is sought, a prevailing party who has a right to recover costs and disbursements also has a right to recover, as a part of the costs and disbursements, the following additional amounts:

(a) In a circuit court:

(A) When judgment is given without trial of an issue of law or fact, $275; or

(B)When judgment is given after trial of an issue of law or fact, $550.

(B) In a small claims department, a county court or justice court:

(A) When judgment is given without trial of an issue of law or fact, $85; or

(B) When judgment is given after trial of an issue of law or fact, $100.

(3) In addition to the amounts provided for in subsection (2) of this section, in any civil action or proceeding in a circuit court in which recovery of money or damages is sought, the court may award to the prevailing party up to an additional $5,000 as a prevailing party fee. The court shall consider the following factors in making an award under the provisions of this subsection:

(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.

(B) The objective reasonableness of the claims and defenses asserted by the parties.

© The extent to which an award of a larger prevailing party fee in the case would deter others from asserting good faith claims or defenses in similar cases.

(d) The extent to which an award of a larger prevailing party fee in the case would deter others from asserting meritless claims and defenses.

(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.

(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.

(g) Any award of attorney fees made to the prevailing party as part of the judgment.

(h) Such other factors as the court may consider appropriate under the circumstances of the case.

(4) Nonprevailing parties are jointly liable for the prevailing party fees provided for in this section. A court may not award more than one prevailing party fee to a prevailing party under this section, or more than one prevailing party fee against a nonprevailing party regardless of the number of parties in the action, and, upon being paid the amount of the award, the prevailing party may not seek recovery of any additional amounts under the provisions of this section from any other nonprevailing party.

(5) In any appeal from the award or denial of a prevailing party fee under subsection (2) of this section, the court reviewing the award may not modify the decision of the court in making or denying an award, or the decision of the court as to the amount of the award, except upon a finding of an abuse of discretion.

(6) The prevailing party fees provided for in this section may not be awarded in the following proceedings:

(a) A class action proceeding under ORCP 32.

(B) A condemnation proceeding.

© Proceedings under the provisions of ORS chapters 25, 107, 108, 109 and 110.

(7) Mandatory arbitration under ORS 36.400 to 36.425 does not constitute a trial of an issue of law or fact for the purposes of this section. [1981 c.898 §18a; 1987 c.725 §6; 1989 c.1007 §1; 1995 c.618 §7; 1997 c.249 §13; 1997 c.801 §§56,56a; 2005 c.702 §93; 2007 c.860 §16]

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Anyone willing to give me an opinion on this motion?

I need to file a motion for costs but there is no example so I drafted this one.

MOTION

On XXTH December, 2011 the COURT granted Defendant's Motion to Compel Private Arbitration and dismissed Plaintiff's Complaint and Motion for Summary Judgment. Pursuant to OR 20.190 which allows a prevailing party in a civil action to recover costs and disbursements, Defendant now seeks compensation for costs per Memorandum as follows:

MEMORANDUM OF COSTS

1. Filing and motion fees: $207

2. ADR fee: $375

4. Prevailing party fee: $275.00

5 Postage and copy fees: $36.33

Total: $893.00

Wherefore, Defendant requests that her petition be granted and she be awarded the total of her Memorandum of Costs.

Dated:______________________

I have until next week to file.

Thanks.

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