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Kiser v. Reitz

United States District Court, S.D. Ohio, Eastern Division

June 12, 2018

RUSSELL KISER, Plaintiff,
v.
LILI REITZ, et al., Defendants,

          Deavers Magistrate Judge

          OPINION & ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Motion for Attorney's Fees of the Plaintiff, Dr. Russell Kiser. (ECF No. 51). For the reasons stated below, the Court DENIES the Plaintiff's motion.

         I. BACKGROUND

         A. Factual Background

         Dr. Kiser is a licensed dentist practicing in Ohio. Defendants are members of the Ohio State Dental Board (“the Board”), sued in their official capacities. The Board is a state agency, established by Ohio Revised Code Chapter 4715.01, et seq., and the regulations in the Ohio Administrative Code Chapter 4715, et seq. Under these statutes and regulations, the Board has the power to license and regulate dental professionals in the State of Ohio and to enforce the provisions of O.R.C. § 4715.01, et seq., and O.A.C. § 4715, et seq.

         In 2012, Dr. Kiser filed the underlying suit challenging two of the Board's regulations on the advertising and practice of dental services. Specifically, Dr. Kiser objected to the Board's “Exclusivity Rule” (O.A.C. §§ 4715-5-04) and “Recognition Rule” (O.A.C. §§ 4715-13-05). The Exclusivity Rule prohibits any dentist advertising as a specialist from practicing outside the scope of the advertised specialty area. The Recognition Rule prohibits dentists from advertising as a specialist in any specialty area not recognized by the American Dental Association (“ADA”).

         Dr. Kiser is specialist in endodontics (root canal work), but he provides both endodontic and general dentistry services to his patients. On August 17, 2009, Dr. Kiser received a letter from the Board, which stated that Dr. Kiser had violated the Exclusivity Rule by “perform[ing] services outside of his stated specialty of endodontics” while “holding [him]self out as a specialist.” The letter said that he must limit his practice to endodontic services if he wished to continue to advertise as a specialist in that field. According to the letter Dr. Kiser could, alternatively, advertise and perform both endodontic and general dentistry services, but if he chose to do so, he must hold himself out as a general dentist rather than a specialist. The Board did not take any further action. In May 2012, Dr. Kiser requested that the Board review and approve proposed signage outside his office that would include the terms “endodontist” as well as “general dentist” or “general dentistry.” The Board neither approved nor rejected the signage. Instead, the Board responded with a letter advising Dr. Kiser to consult legal counsel. The Board also attached copies of the relevant regulations and the Board's 2009 warning letter. The Board did not commence any formal proceeding or disciplinary action against Dr. Kiser and has not done so to date.

         B. Procedural History

         Dr. Kiser filed his Complaint on June 28, 2012, alleging that the warning and threat of formal disciplinary action was intended to have a chilling effect on his commercial speech and to induce him to forego lawful advertising. (ECF No. 2). The Complaint alleged violations of: (1) Dr. Kiser's First Amendment right to commercial speech; (2) substantive due process; (3) procedural due process; and (4) equal protection. (Id.). Dr. Kiser filed suit against the individual defendants under 42 U.S.C. § 1983 and sought a declaratory judgment establishing the unconstitutionality of the Exclusivity and Recognition Rules and injunctive relief prohibiting the Board from enforcing them. (Id.).

         In August 2013, this Court granted the Defendants' Motion to Dismiss for lack of ripeness. (ECF No. 17). On appeal, the Sixth Circuit reversed and remanded. Kiser v. Reitz, No. 2:12-CV-574, 2013 WL 4080734 (S.D. Ohio Aug. 13, 2013); (ECF No. 22). In March 2015, this Court granted Defendants' Motion to Dismiss for failure to state a claim on all counts. (ECF No. 27). On August 5, 2016, the Sixth Circuit affirmed in part and reversed in part. Kiser v. Kamdar, 831 F.3d 784 (6th Cir. 2016); (ECF No. 30). The Sixth Circuit affirmed the dismissal of Dr. Kiser's procedural due process claim but reversed the dismissal of his First Amendment and Equal Protection claims, as well as his substantive due process claim to the extent it was coextensive with his First Amendment claim. Id.

         While Dr. Kiser's second appeal was still pending, the Board began the process of rescinding the Exclusivity Rule. (ECF No. 56 at 3). In May 2016, the Board's Law and Rules Committee deliberated over the rule and made a recommendation to the Board in favor of its repeal. (Id.). After the required public notice and comment period, the Board and an oversight committee approved the recommended changes. (Id.). In November 2016, the Board directed its staff not to enforce the Exclusivity Rule during the period before the repeal became effective. (Id.). The Board's rescission of the Exclusivity Rule became effective on December 22, 2016. (Id.).

         In November 2016, Defendants moved to dismiss all of Dr. Kiser's remaining claims as moot because the Board had rescinded the Exclusivity Rule and had directed its staff not to enforce it. (ECF No. 36). The Court granted the motion on September 12, 2017. (ECF No. 49). Plaintiff appealed that dismissal. (ECF No. 52).

         On October 2, 2017, Dr. Kiser filed the present Motion for Attorney's Fees, requesting an award of $152, 057.50. (ECF No. 51 at 4). That ...


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