Opinion
Case No. 3:18-cv-01806-YY
11-06-2019
COLD STONE CREAMERY LEASING COMPANY, INC., an Arizona Corporation, Plaintiff, v. FW OR-GREENWAY TOWN CENTER, LLC, a Delaware Limited Liability Company, Defendant.
FINDINGS AND RECOMMENDATIONS :
On August 12, 2019, this court entered judgment in favor of defendant. Judgment, ECF #29. Defendant has filed a timely Motion for Attorney Fees and Costs in the amount of $49,521.80. ECF #30. Defendant contends that, pursuant to Section 25.25 of the Lease Agreement, it is entitled to reasonable attorney fees and costs as the prevailing party in this action. Plaintiff has filed no response.
The court has reviewed the motion, time entries, and supporting documents. The time entries do not appear excessive, given the nature of the case and the work described. The attorneys' hourly rates also fall within the parameters set forth in the 2017 Oregon State Bar Economic Survey. Accordingly, defendant's motion should be granted.
FINDINGS
I. Attorneys' Fees
A. Relevant Law Regarding Lodestar Method
The court calculates attorneys' fees using the lodestar method, i.e., multiplying the number of hours worked by the reasonable hourly rate. See Perdue v. Kenny A., 559 U.S. 542, 551 (2010) (holding "the lodestar approach" is "the guiding light" when determining reasonable fees). In determining the "reasonable hourly rate to use for attorneys and paralegals[,]" the court looks to the "prevailing market rates in the relevant community." Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013) (citations and internal quotation marks omitted). The court excludes hours "that are excessive, redundant, or otherwise unnecessary." McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
"[T]here is a strong presumption that the lodestar is sufficient." Perdue, 559 U.S. at 556. "[A] multiplier may be used to adjust the lodestar amount upward or downward only in rare and exceptional cases, supported by both specific evidence on the record and detailed findings by the lower courts that the lodestar amount is unreasonably low or unreasonably high." Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (quotations and citations omitted). "Adjustments [to the lodestar amount] must be carefully tailored . . . and [made] only to the extent a factor has not been subsumed within the lodestar calculation." Rouse v. Law Offices of Rory Clark, 603 F.3d 699, 704 (9th Cir. 2009) (citing Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 983 (9th Cir. 2008)). The party seeking fees bears "the burden of documenting the appropriate hours expended in the litigation, and [is] required to submit evidence in support of those hours worked." United Steelworkers of Am. v. Ret. Income Plan For Hourly-rated Emps. Of Asarco, Inc., 512 F.3d 555, 565 (9th Cir. 2008) (quotations omitted).
The court may adjust the lodestar calculation by considering the following factors, known as the Kerr factors:
(1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) any time limitations imposed by the client or the circumstances;(8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 (1992).
To determine the reasonable hourly rate, this court must look to the "prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The relevant community "is one in which the district court sits." Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir.), cert den., 502 U.S. 899 (1991). This court uses the most recent Oregon State Bar Economic Survey as a benchmark for comparing an attorney's billing rate with the fee customarily charged in the locality. Precision Seed Cleaners v. County Mut. Ins. Co., 976 F.Supp.2d 1228, 1244 (D. Or. 2013).
B. Analysis
Plaintiff brought this action for declaratory judgment against defendant to enforce the terms of the Lease Agreement. Compl., ECF #1. Pursuant to Section 25.25 of the Lease Agreement, "[i]n the event of any action or proceeding at law or in equity . . . between the Landlord and Tenant to enforce any provision of this Lease or to protect or establish any right or remedy of either Landlord or Tenant hereunder, the unsuccessful party to such action or proceeding . . . shall pay the costs, expenses, and reasonably attorneys' fees incurred in the action or proceeding by such prevailing party." ECF #35-2, at 16. Thus, under the Lease Agreement, defendant is entitled to attorneys' fees and costs as the prevailing party in this action.
Defendant seeks fees for four attorneys whose hourly rates and years of experience are as follows:
(1) Elizabeth C. Knight, $400.00 per hour, 20 years of experience;
(2) Timothy B. Hering, $360.00 to $385.00 per hour, 14 years of practice;
(3) Lauren J. Russell, $290.00 to $310.00 per hour, four years of practice; and
Hering and Russell both had attorney rate changes from 2018 to 2019. Mot. 2, ECF #30.
(4) Conner C. Bottomly, $280.00, one year of practice. Mot. 2, ECF #30.
According to the Oregon State Bar's 2017 Economic Survey, the hourly rate for Portland-area attorneys with 16-20 years of experience in private practice ranges from $293 to $450. 2017 Oregon State Bar Economic Survey, Table 36, ECF #31-3, at 39. For attorneys with 13-15 years of experience, the hourly rate ranges from $273 to $460, for attorneys with 4-6 years of experience, it ranges from $231 to $330 per hour, and for attorneys with 0-3 years of experience, it ranges from $210 to $300 per hour. Id.
The hourly rates suggested by defendant fall within the 75th to 95th percentile for attorneys with similar years of experience in the Portland area. Most of the work on this case was performed by Knight and Hering who are partners at Dunn Carney. Knight Decl. ¶¶ 4, 8, ECF #31. Knight has significant experience in federal court, specializing in commercial litigation. Id. ¶ 4. Hering's area of expertise is in real estate transactions and real estate litigation. Id. ¶ 8. Russell is an associate and has significant experience litigating in state and federal court. Id. ¶ 9. Based on the attorneys' years of practice and breadth of experience, the hourly rates are reasonable.
Moreover, the hours that were billed are reasonable and appropriate for the work that was performed. In support of the motion, defendant has submitted a time and expense report that details the time spent on each task, in addition to a description of the services rendered. ECF #31-1. All of the entries pertain to the defense of this action that plaintiff brought against defendant. Plaintiff has filed no objection to the hourly rates, the hours worked, or the nature of the work performed. Defendants do not seek an adjustment to the Lodestar method. Thus, it is unnecessary to address the Kerr factors, and the Lodestar method is sufficient to calculate the attorneys' fees in this case. Applying the Lodestar method, the attorneys' fees total $49,510.
II. Costs
Defendant seeks $11.80 in costs for online research and delivery charges. Those costs are reasonable and should be awarded.
RECOMMENDATION
Defendant's Motion for Attorney Fees and Costs in the amount of $49,521.80 (ECF #30) should be granted.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, November 20, 2019. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. // // //
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
DATED November 6, 2019.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge