(Green Building Initiative, Inc. v. Stephen R. Peacock, et al., No. 24-298, D. Ore., 2025 U.S. Dist. LEXIS 211010)
(Opinion available. Document #46-251105-094Z.)
Green Building Initiative Inc. sued Stephen Peacock and Green Globe Limited, alleging trademark infringement, unfair competition, breach of contract and deceptive trade practices.
Prevailing Party
The defendants filed counterclaims and in February GBI moved to dismiss them. The court granted the motion without prejudice in May. GBI moved for interim attorney fees of $29,061.50 under Oregon Revised Statute Section 31.152(3), ORS § 31.152(3).
GBI argued that it prevailed on its motion to strike and therefore could move for attorney fees before final judgment. The defendants urged the court to delay any ruling on attorney fees pending a determination of the case’s merits.
U.S. Judge Michael H. Simon of the District of Oregon denied the motion for attorney fees. He noted that GBI cites two cases in support but that there are problems with those cites.
‘Almost Real’
One of the cases on which GBI relies is simply not real, Judge Simon said.
As to the second one, “Page v. Parsons is almost real. There is a case titled Page v. Parsons that discusses the Oregon anti-SLAPP statute, but it is not a federal case from the District of Oregon. See Page v. Parsons, 249 Or. App. 445 (2012). Page, however, does not discuss when fees are due or may be advanced under the statute. And as a matter of logic, that Oregon Court of Appeals decision cannot support the proposition that GBI cited it for — that federal courts applying Oregon’s anti-SLAPP statute have consistently held that fee awards are appropriate immediately following resolution of the special motion to strike. Indeed, a basic internet search easily reveals both the real citation for Page v. Parsons, and the real case listed at 249 F. Supp. 3d 998 (a death penalty habeas decision from the Eighth Circuit),” Judge Simon said.
The fake precedent appears to be the work of AI, which is well known to hallucinate case citations, Judge Simon said. Equally well known, however, is an attorney’s obligations under Federal Rule of Civil Procedure 11, Fed. R. Civ. P. 11. The Oregon State Bar recently warned attorneys that the use of AI could lead them to submit fake cites to courts and that lawyers must review AI outputs for accuracy, Judge Simon said.
Judge Simon ordered GBI to show cause why it and its counsel should not be sanctioned and what sanctions it thinks would be appropriate if they were to be imposed.
Premature
Judge Simon then said the fee motion was premature. Rule 54(2)(B)(i), Fed. R. Civ. P. 54(2)(B)(i), permits motions for attorney fees within 14 days of entry of judgment unless otherwise provided for by statute or court order. GBI argues that state law governs attorney fees. But nothing in Section 31 dictates the timing of the fee award, and GBI points to no other authority allowing attorney fee awards before final judgment, Judge Simon said.
Further, because the court struck the counterclaims without prejudice, an award of attorney fees would be “especially imprudent here.” The defendants are free to replead their counterclaims. It would be a waste of court resources to calculate attorney fees only to have the defendants successfully replead their counterclaims, Judge Simon said.
Counsel
GBI is represented by Daniel P. Larsen and David A. Bernstein of Buchalter PC in Portland and Thomas J. Speiss of Snell & Wilmer LLP in Los Angeles.
The defendants are represented by Julie Engbloom and Vera Warren of Tadjedin, Thomas & Engbloom Law Group LLP in Portland.
(Additional documents available: GBI’s motion. Document #46-251105-095M. Defendants’ response. Document #46-251105-096B. GBI’s reply. Document #46-251105-097B.)