United States District Court, S.D. Ohio, Eastern Division
Deavers Magistrate Judge
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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.
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.).
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).
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 ...