My wife and I are defendants in lawsuit. Plaintiff has filed notice to dismiss 2 (out of 3) claims. Can we seek prevailing party fees separately?

[pmd oregon]

My wife and I are defendants in lawsuit (Oregon). Plaintiff has filed notice to dismiss 2 (out of 3) claims. Can we seek prevailing party fees separately? Can we sue for malicious prosecution in small claims court?

 

[LdiJ]

My wife and I are defendants in lawsuit (Oregon). Plaintiff has filed notice to dismiss 2 (out of 3) claims. Can we seek prevailing party fees separately? Can we sue for malicious prosecution in small claims court?

Without knowing the details of the case it would be nearly impossible to comment. The disposition of the 3rd claim might make a difference as well. Even if this is a small claims court case you might want to speak to a local attorney, with whom you can be more candid, to see what options may be available to you.

 

[FlyingRon]

Technically, yes, the judge may award the prevailing party fee, but as LdiJ points out, depending on what the remaining claim is, he may reserve doing so.

Malicious prosecution is harder. All you have to do is win (get a dismissal or judgment) to get the prevailing party fee. To get malicious prosecution, you not only have to have a favorable termination of the action, but you have to show that the plaintiff brought the suit without a reasonable grounds to believe the basis and had a purpose in the outcome other than the judgment requested. Ther's also abuse of process, which says the suit or part of the action involved, was brought for reasons other than what the process was intended.

Absent knowing just what is going on, we can't tell you your likelihood of success, but the chances are slim without an attorney involved.

 

[Litigator22]

My wife and I are defendants in lawsuit (Oregon). Plaintiff has filed notice to dismiss 2 (out of 3) claims. Can we seek prevailing party fees separately? Can we sue for malicious prosecution in small claims court?

As you undoubtedly know Section 20.190 the Oregon Revised Statutes * covers the subject matter of your question and in an unusually broad and liberal manner. What in particular is it that you don't understand?

And wouldn't Subsection (3) provide you the same relief as would be allowed as damages in a successful separate action for malicious prosecution or abuse of process?

Also, didn't your attorney talk to you regarding filing a counterclaim for these post-judgment remedies?

Additionally, as I read subsection (4) any relief obtained under (3) would relinquish your right to seek damages under a cause of action for malicious prosecution or abuse of process?

But aren't you being premature inasmuch as there has been no final disposition of the case? And suppose you don't prevail in defending the remaining count/claim? What then? An offset?

I can't say whether you and the spouse would be separately entitled to costs of suit. For one we aren't given to know the nature of the claims or whether the plaintiff's claims allege joint or independent civil liability. My guess is that if the plaintiff were to obtain a judgment it would be jointly. But again your questions are untimely as the court will not consider the issue until the case has been concluded.

[*] https://www.oregonlaws.org/ors/20.190