Opinion
3:21-cv-00448-AC
02-03-2022
COOS BAY RV INVESTMENTS, LLC, a Delaware Limited Liability Company, Plaintiff, v. WHEELHAUS INC., Wyoming Corporation, and JAMIE MACKAY, an individual, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Presently before the court is Plaintiff Coos Bay RV Investments, LLC's ("Coos Bay") Motion for Attorney Fees (ECF No. 28) and Bill of Costs (ECF No. 29). For the following reasons, Coos Bay's motion for attorney fees should be granted in part and denied in part, and its cost bill should be awarded in full. \\\\\
Background
The procedural history of this case is brief. On October 14, 2021, the court issued a Findings and Recommendation granting Coos Bay's Motion for Default Judgment, which included recommending an award of attorney fees and costs. (F&R, ECF No. 24.) On November 4, 2021, U.S. District Judge Michael H. Simon adopted the court's F&R and entered a Judgment in favor of Coos Bay awarding the following: (1) $1,538,444.58 in compensatory damages; (2) $378,541.67 in prejudgment interest; (3) reasonable attorney fees and costs to be determined by the court; and (4) post-judgment simple interest at the annual rate of 0.17 percent. (Judgment, ECF No. 27; Order, ECF No. 26.)
Coos Bay seeks a total of $83,728.50 in attorney fees, in addition to $864.50 in costs. Coos Bay seeks fees for the work performed by attorneys J. Matthew Donohue, Shannon Armstrong, Heidi Nadel, Alex Hadduck, and paralegal assistant Maddison Hughes. Contrary to the practice in this district, Plaintiffs fee request initially was not supported by the underlying timekeeper records, prompting the court to reach out to Plaintiffs attorneys for the information. See Message from the Court Regarding Fee Petitions, last updated Mar. 2, 2017 (reminding counsel that the court has an independent obligation to review fee requests for reasonableness, and to "support their fee petitions with a level of documentation that allows the Court... to adequately review the reasonableness of the time spent on a single task"), available at https://ord.uscourts.gov/index.php/rules-orders-and-notices/notices/fee-petitions. Mr. Hadduck submitted a Supplemental Declaration. (Supp. Deck Alex Hadduck ("Hadduck Supp. Deck"), ECF No. 32.) The total hours requested in Coos Bay's motion for attorney fees and initial declaration submitted by Mr. Hadduck does not align with the underlying timekeeper data submitted with Mr. Hadduck's Supplemental Declaration. (Compare Declaration of Alex Hadduck f 7, ECF No. 30, with Hadduck Supp. Deck Ex. 1.) The supplemental information was not organized by timekeeper, but by date, and by the court's calculation shows Mr. Donohue billed 12.2 hours, Ms. Nadel billed 87.8, and Mr. Hadduck billed 60.6 hours. The court uses its numbers throughout this Findings and Recommendation based on the timekeeper entries for calculating the lodestar.
As of today, Defendants have not appeared in this action or filed any objection to the requested fees and costs.
Legal Standards
As the prevailing party in this breach of contract action, Coos Bay is entitled to recover its attorney fees and costs. See Meyer v. Hatto, 198 P.3d 552, 557-58 (Wy. 2008) (providing that prevailing party is entitled to fees and costs where expressly authorized by contract); Or. Rev. Stat. § 20.096 (same); Fed.R.Civ.P. 54(d)(2) (providing prevailing entitled to costs and attorney fees if provided by judgment and statute, rule, or other grounds); LR 54-1 & 54-3 (same). See Olsson Deck Ex. A at 13 at J, ECF No. 17-1 at 13) (Vendor Contract Agreement providing for attorney fees).
The Ninth Circuit has adopted the "lodestar" method for calculating attorney fees. Fischer v. SJB-P. D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). That calculation multiplies a reasonable hourly rate by the number of hours reasonably expended in the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986). The court must then decide whether to enhance or reduce the lodestar figure by evaluating a number of factors. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008); Hensley, 461 U.S. at 434. There is a "strong presumption" that the lodestar method produces a reasonable figure and should only be enhanced or reduced in exceptional circumstances. Del. Valley Citizens, 478 U.S. at 565; Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); Fischer, 214 F.3d at 1119 n.4. The court has an independent duty to scrutinize a fee request to determine its reasonableness, even in the absence of objections. Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir.1993). The court has "considerable discretion" in determining the reasonableness of a fee award. Webb v. Ada Cnty., Idaho, 195 F.3d 524, 526 (9th Cir. 1999).
The court may adjust the lodestar to account for factors such as: (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) 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 Actors Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); Fischer, 214 F.3d at 1119. The court need only address those factors not already subsumed in its lodestar analysis. Hensley, 461 U.S. at 436.
Discussion
I. Reasonable Hourly Rate
The court looks to prevailing market rates to determine a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 895 (1984); Gonzalez, 729 F.3d at 1205. Prevailing market rates are those that the local legal market would pay for a case of this nature to a lawyer of comparable skill, experience, and reputation to a plaintiffs counsel of record. Blum, 465 U.S. at 897. This court has a long-standing directive, known to lawyers who practice in this district, that the judges in the District of Oregon will evaluate fee petitions against the most recent Oregon State Bar Economic Survey. See Local Rule 54-3 Practice Tip ("[T]he Court requests that fee petitions address the Economic Survey and provide justification for requested hourly rates higher than reported by the Survey."); Roberts v. Interstate Distrib. Co., 242 F.Supp.2d 850, 857 (D. Or. 2002) (in determining the reasonable hourly rate, the District of Oregon uses the OSB Economic Survey "as an initial benchmark" and attorneys should "provide ample justification" for deviating from the Survey rates). Typically, this court limits the hourly rate requested to the 75th percentile of the OSB Economic Survey. See, e.g., Brady Mktg. Co. Inc. v. Kai U.S.A. Ltd., No. 3:16-cv-1878-MO, 2018 WL 3377083, at *3 (D. Or. July 11, 2018) (noting that awarding "the 75th percentile rate ... is the usual practice of this district"), McElmurry v. U.S. Bank Nat. Ass'n, Case No. 04-642-HA, 2008 WL 1925119, at *3 (D. Or. April 30, 2008) (recognizing that "[experienced senior attorneys who are specialists in wage and hour law will receive an hourly rate at the 75th percentile rate for their level of experience"). Courts may also consider "the novelty and difficulty of the issues, the skill required to try the case, whether or not the fee is contingent, the experience held by counsel and fee awards in similar cases." Moreno v. City of Sacramento, 534 F.3d 1106, 1114 (9th Cir. 2008).
The economic survey is available at: https://www.osbar.org/ docs/resources/Econsurvevs/17EconomicSurvey.pdf.
A. J. Matthew Donohue
Coos Bay's counsel, J. Matthew Donohue, seeks $625 per hour for time spent 12.2 on this action. (Hadduck Supp. Deck ¶ 7.) Donohue has been practicing law since 1999, primarily focusing on complex commercial litigation and has served as lead trial counsel in dozens of cases, including multidistrict litigation and class actions. (Id. ¶ 2.) Coos Bay attests that Mr. Donohue's standard billing rate is $925 per hour. (Id.) Coos Bay argues that the court should apply the Morones Survey of Commercial Litigation Fees, updated as of January 1, 2018 ("2018 Morones Survey"). Coos Bay argues that its requested rate of $625 is reasonable when accounting for Mr. Donohue's significant litigation experience and the rising rates of commercial litigators, as reflected in the Morones Survey. The court disagrees.
As this court previously observed, the Morones Survey "does not meet the Ninth Circuit's or this district's requirements to serve as evidence of prevailing market rates." Sturgis v. Asset Acceptance, LLC, Civ. No. 3:15-cv-00122-AC, 2016 WL 3769750, at *4 (D. Or. July 14, 2016); accord Sponer v. Wells Fargo Bank N.A., Case No. 3:17-cv-02035-HZ, 2020 WL 2061829, at *6 (D. Or. Apr. 28, 2020) (rejecting use of Morones 2018 Survey to set reasonable hourly rates). For the reasons set forth in Sturgis, the court declines to use the Morones 2018 Survey and finds the 2017 OSB Survey the appropriate benchmark.
The OSB 2017 Economic Survey provides hourly billing rate information by area of practice, location, and years of experience. For Portland, the OSB 2017 Economic Survey provides that the median rate for Portland attorneys with Mr. Donohue's experience is $415 per hour, the 75th percentile is $475, and the 95th percentile is $525. (OSB 2017 Economic Survey at 39.) Adjusted for inflation, the median rate is $485 per hour, the 75th percentile is $555, and the 95th is $612. The court concludes that given Mr. Donohue's total years of practice, his experience and skill, and the demands of the case, compensation at $555 per hour is a reasonable hourly rate, which reflects the 75th percentile adjusted for inflation.
Judges in this District have permitted adjustments for inflation when based on the U.S. Department of Labor's CPI Inflation Calculator, www.bls.gov/data/inflation calulator.htm. Bergen v. Tualatin Hills Swim Club, Inc., Case No. 3:16-cv-00052-HZ, 2016 WL 2736105, at *4 (D. Or. May 11, 2016).
B. Shannon Armstrong
Coos Bay's counsel requests compensation for 12.2 billable hours for attorney Shannon Armstrong at an hourly rate of $525. (Hadduck Decl. ¶ 7.) Ms. Armstrong has been practicing law since 2006 and likewise focuses her practice on complex commercial litigation. (Id. ¶ 3.) Ms. Armstrong has extensive experience as trial counsel, routinely engages in multi-state lawsuits, and her standard billing rate is $810 per hour. (Id.)
The OSB 2017 Economic Survey provides that Portland attorneys with thirteen to fifteen years of experience, the median hourly rate is $288, the 75th percentile is $375, and the 95th percentile is $460. (OSB 2017 Survey at 39.) The court finds an hourly rate of $400 reasonable, or the equivalent of the 75th percentile adjusted for inflation, based on Ms. Armstrong's years of practice, her experience and skill, and the demands of the case.
C. Heidi Nadel
Coos Bay's counsel requests compensation for 87.8 billable hours for attorney Heidi Nadel at an hourly rate of $425. (Hadduck Decl. ¶ 7.) Ms. Nadel has been practicing law for over twenty years, focusing her practice on complex commercial litigation, including multi-state litigation. (Id. ¶ 4.) Ms. Nadel left Holland & Knight LLP in June 2021, and thus does not have a standard billing rate. (Id.) The OSB 2017 Economic Survey provides that for Portland attorneys with similar years of experience, the median hourly rate is $415, and the 75th percentile is $475. The court finds the requested rate of $425 is reasonable based on Ms. Nadel's experience and skill, and that it reflects an amount just above the median rate in the OSB 2017 Survey.
D. Alex Hadduck
Coos Bay's counsel requests compensation for 60.6 billable hours for attorney Alex Hadduck at an hourly rate of $350. (Hadduck Deck ¶ 7.) Mr. Hadduck has been practicing law since 2016 and focuses primarily on complex commercial litigation in Oregon and California. (Id. ¶5.) Mr. Hadduck's standard billing rate is $525 per hour. (Id.)
The OSB 2017 Economic Survey provides that the median rate for Portland attorneys with four-to-six years of experience, the median billing rate is $250 per hour, the 75th percentile is $300, and the 95th percentile is $350. (OSB 2017 Economic Survey at 38.) Adjusted for inflation, these rates are approximately $292 (median), $350 (75th percentile), and $409 (95th percentile). The court finds the requested hourly rate of $350 is reasonable given Mr. Hadduck's years of practice, experience, and skill specializing in commercial litigation.
E. Maddison Hughes
Coos Bay's counsel requests fees at a variable rate of $150 to $170 for 20.5 billable hours performed by paralegal assistant Maddison Hughes. Ms. Hughes has over four years' experience performing paralegal-level tasks under the supervision and management of full paralegals. (Hadduck Deck ¶ 6.) Coos Bay's counsel provides that Ms. Hughes' standard billing rate is $175, and that full paralegals in their office bill at $350 per hour.
The court concludes that a rate of $125 is reasonable given Ms. Hughes experience level. See Topness v. Cascadia Behavioral Healthcare, Case No. 3:16-cv-02026-AC, 2018 WL 1015536, at *5 (D. Or. Feb. 22, 2018) (awarding $150 hourly rate to paralegal with ten years of experience in addition to prior experience as a paralegal assistant). That rate is below $250, the rate of a Portland first-year associate at the 25th percentile with similar levels of experience as provided in the OSB 2017 Survey, yet substantially higher than other legal assistant hourly rates awarded by judges in this district. Precision Seed Cleaners v. Country Mut. Ins. Co., 976 F.Supp.2d 1228, 1248-49 (D. Or. 2013) (stating that a reasonable paralegal rate should not exceed that of a first-year associate); SPF' Brewery Blocks, LLC v. Art Inst, of Portland, LLC, Case No. 3:18-cv-1749-MO, 2019 WL 1497029, at *3 (D. Or. Apr. 4, 2019) (same); see also Berglund v. Boeing Co., Case No. 3:02-cv-193-AC, 2012 WL 1902599, at *9 (D. Or. May 24, 2012) (awarding $72 hourly rate for paralegal assistant); Hamrick v. Aqua Glass, Inc., Case No. 07-3089-CL, 2010 WL 935478 at *7 (D. Or. Mar. 12, 2010) (awarding $95 hourly rate for legal assistants).
II. Reasonable Number of Hours
The court is responsible for determining the reasonableness of a fee petition. See Gates, 987 F.2d at 1398. The party seeking the fee award bears the burden of demonstrating the number of hours spent was reasonably necessary to the litigation and that counsel made "a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434; Gonzalez, 729 F.3d at 1202. This burden can be satisfied by submitting documentary evidence supporting the hours worked and fees claimed. Hensley, 461 U.S. at 433; U.S. v. $28,000in U.S. Currency, 802 F.3d 1100, 1105 (9th Cir. 2015). Fee petitions that include inadequate detail or that fail to separate time for individual tasks may be totally or partially denied, or apportioned accordingly. See Fischer, 214 F.3d at 1121 (noting district court has authority to deny fee requests that are "poorly documented"). Reasonable time spent in preparing a fee petition generally is recoverable. Guerrero v. Cummings, 70 F.3d 1111, 1112 (9th Cir. 1995). Ultimately, a reasonable number of hours is the number of hours that '"reasonably could have been billed to a private client.'" Gonzalez, 729 F.3d at 1202 (quoting Moreno, 534 F.3d at 1111).
A. Duplication of Effort
In general, "[w]hen attorneys hold a telephone or personal conference, good 'billing judgment' mandates that only one attorney should bill that conference to the client, not both attorneys." Nat'l Warranty Ins. Co. v. Greenfield, No. CV-97-01654-ST, 2001 WL 34045734, at *5 (D. Or. Feb.8, 2001); Arnold v. Pfizer, Case No. 3:10-cv-01025-AC, 2015 WL 4603326, at *9 (D. Or. July 29, 2015). Reviewing the entries, Coos Bay seeks fees for multiple attorneys' communications with the clients during the same video or phone call. The court finds this practice of double-billing unreasonably duplicative and recommends that the following entries be eliminated from the junior attorneys' time:
3/7/2020 S. Armstrong .9 Attend call with client and M. Donohue
4/5/2020 S. Armstrong .4 Call with S. Noecker and M. Donohue
1/28/2020 H. Nadel 1.6 Meet with client and M. Donohue
This results in a 1.3 hour reduction from Ms. Armstrong's time, and 1.6 hour reduction in Ms. Nadel's time.
Additionally, Coos Bay seeks fees for time its attorneys spent conferencing with each other.
The court finds this practice excessive and redundant. "In general, two attorneys cannot bill for communicating with each other, as such time is duplicative and unnecessary." Midler v. Country Mut. Ins. Co., Case No. 3:14-cv-01345-MO, 2017 WL 6209701, at *5 (D. Or. Dec. 8, 2017) (internal quotation marks and citation omitted); see also West Linn Corporate Park, LLC v. City of West Linn, No. 3:01-cv-01787-HZ, 2011 WL 4708774, at *12 (D. Or. Oct.4, 2011) (reducing fees for duplicative efforts among counsel such as conferencing with each other). Where both attorneys have billed for the same conference, the court recommends eliminating the junior attorney's time. In those instances where Mr. Donohue billed for time spent "coordinating with the team" and does not specify the length of time conferencing with co-counsel, the court recommends reducing Mr. Donohue's time by half. Thus, the following entries are eliminated or halved:
The court does not reduce the time spent by senior attorneys giving instructions to Alex Hadduck, an associate, because Hadduck's time does not reflect that he billed for meeting with partners.
3/25/2020 M. Donohue .8 Review materials re: background and coordinate with team
5/1/2020 M. Donohoue 1.0 Coordinate recommended strategy with team and review email to client
5/12/2020 M. Donohue .4 Review [redacted] forwarded by client and coordinate with team re: same
6/15/2020 M. Donohue 1.0 Revise arbitration demand and coordinate with team re: same
2/8/2021 M. Donohue .6 Attention to filing strategy and coordinate with team re: same
2/12/2021 H. Nadel .8 Telephone call with M. Donohue and revise arbitration demand
2/21/2021 M. Donohue 1.0 Revise complaint and coordinate with team re: same
2/22/2021 H. Nadel .5 Conference with M. Donohue
3/11/2021 M. Donohue .5 Attention to revised complaint and damages calculation and coordinate with team re: same
3/23/2001 M. Donohue .3 Revise complaint and coordinate with team re: same
5/14/2021 M. Donohue .3 Revise request for entry of default and coordinate with team re: same
5/17/2021 M. Donohue .4 Attention to default judgment and coordinate with team re: same
7/26/2021 M. Donohue 1.0 Review motion for default and supporting papers and coordinate with team re: same
This results in a 1.3 hour reduction in Ms. Nadel's time, and a 3.65 hour (7.3 + 2 = 3.65) reduction in Mr. Donohue's time.
B. Clerical Tasks and Paralegal Time
It is well-settled that the court may reduce an attorney's hours for time spent performing clerical work. Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992), vacated on other grounds, 984 F.2d 345 (1993); see Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989) (noting the dollar value of non-legal work "is not enhanced" because it is performed by a lawyer); Sterling Savings Bank v. Sequoia Crossing, LLC, Civ. No. 09-555-AC, 2010 WL 3210855, at *7 (D. Or. Aug. 11, 2010) ("Tasks considered clerical include, but are not limited to, filing motions with the court, filling out and printing documents, preparing affidavits and drafting certificates of service, organizing files, calendaring dates, rescheduling depositions, and sending documents.") Costs associated with clerical tasks are generally considered overhead expenses reflected in an attorney's billing rate. Ash Grove Cement Co. v. Liberty Mut. Ins. Co., No. 3:09-cv-00239-HZ, 2014 WL 837389, at *8 (D. Or. Mar. 3, 2014); see also Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (reducing fees for clerical tasks such as filing and organization).
With respect to work performed by Ms. Hughes, the court must distinguish between clerical work, which is not recoverable, and the more substantive tasks that justify the employment of a paralegal. Precision Seed, 976 F.Supp.2d at 1248-49, 1251 (allowing paralegal time for reviewing and analyzing documents rather than organizing and filing). The court observes that many of the entries for Ms. Hughes's time do not differ in their explanation, making it near-impossible for the court to assess how much time was spent organizing information, which is clerical, versus substantive tasks. Nearly all entries for Ms. Hughes state the following: "Organize, prepare and assemble key factual material for attorney review and team reference" which describes predominantly clerical tasks. (See, e.g., Hadduck Decl. at Ex. 1 at 1, ECF No. 22-1 at 2 (3/30/2020 entry).) Given the lack of detail in Ms. Hughes's entries, the court concludes that entries with this language are clerical in nature. (Id. at 1-10 (Hughes's entries dated 3/26/2020 (.5), 3/27/2020 (2.6), 3/30/2020 (3.4), 4/8/2020 (.4), 4/9/2020 (1.2), 4/10/2020 (.8), 5/13/2020 (.6), 5/19/2020 (.4), 2/3/2021 (1.1), 3/16/2021 (.2), 3/24/2021 (.6), 4/1/2021 (.3), 4/6/2021 (.8), 4/7/2021 (.3), 4/13/2021 (.3).) Additionally, Ms. Hughes's July 29, 2021 entry for .9 hours for assembling and preparing documents for filing with the court, and the March 23, 2021 entry for 1.8 hours for proofreading are clerical and eliminated. See Frevach Land Co. v. Multnomah Cnty. Dep't of Env't Servs., Case No. CV-99-1295-HU, 2001 WL 34039133, at *12 (D. Or. Dec. 18, 2001) (stating tasks such as proofreading, indexing, or assembling documents are not compensable because they are overhead and thus already "reflected in the hourly billing rate.").
The court also finds it appropriate to eliminate the following entries for clerical work performed by Mr. Hadduck and Ms. Nadel:
7/29/2021 A. Hadduck 1.8 Finalize and coordinate filing of motion for default judgment and supporting papers
7/30/2021 A. Hadduck .8 Coordinate filing and delivery of chambers copies of motion for default judgment and supporting papers
4/5/2021 H. Nadel .4 Follow up on service issues, emails with S. Foos re: same
4/6/2021 H. Nadel .2 Emails re: service of process
4/12/2021 H. Nadel .1 Emails re: service and related issues
4152021 H. Nadel .3 Emails re: service and filing proofs of service
Clerical work is not compensable simply because an attorney performs it. Precision Seed, 976 F.Supp.2d at 1251. This results in a 16.2 hour reduction of Ms. Hughes's time, a reduction of 2.6 hours of Mr. Hadduck's time, and a 1.0 hour reduction of Ms. Nadel's time.
The court finds Ms. Hughes's July 29, 2021 entry for 4.3 hours stating that she cite- and fact-checked documents prior to filing in federal court adequately describes substantive tasks that are compensable as paralegal time.
C. Excessive Hours
Coos Bay contends that it pursued this action as efficiently and expeditiously as possible, that it conducted a thorough pretrial investigation, and that its damages claim required extensive detail. Coos Bay further contends that it effectively delegated tasks to the most junior members of the legal team. While the court agrees that Coos Bay generally appears to have used Mr. Donohue and Ms. Armstrong effectively, the court nevertheless finds many of the hours for which fees are sought to be excessive.
Coos Bay prevailed on entry of a default judgment, which result required it to prepare and file a complaint, prepare and file a motion for entry of default, prepare and file a motion for default judgment, and prepare for and attend a hearing on the same. For this work in a case in which the defendants made no appearance and Coos Bay's efforts thus were uncontested throughout the case, Ms. Nadel and Mr. Hadduck seek awards of 87.8 hours and 60.6 hours respectively.
Contrary to Coos Bay's contention, this case is a relatively straight-forward breach of contract action. In it, however, Mr. Hadduck spent 14.1 hours researching potential claims and then 20.9 hours drafting an arbitration demand, on which Ms. Armstrong spent 7.8 hours reviewing and revising, for 42.8 hours total. At that point, Ms. Armstrong's participation in the case appears to have ended and Ms. Nadel stepped in, spending approximately 28.1 additional hours researching and revising the very same arbitration demand that Mr. Hadduck and Ms. Armstrong already had spent more than 42 hours crafting, and exploring other issues, bringing the total hours spent by Mr. Hadduck and Ms. Nadel to 70.9 hours. The court finds 70.9 hours excessive and unreasonable. Given Ms. Nadel's 20 years of experience in complex commercial litigation, spending 28.1 hours preparing and revising an arbitration demand stands out as exceptionally unwarranted and inefficient.
Furthermore, lacking from the Complaint is any mention that the arbitration demand was ever served, and the submitted time entries provide no help here. Given the relatively straightforward contractual provisions, that the arbitration demand appears to have been abandoned or unsuccessful, and that Coos Bay instead opted to pursue litigation in federal court, the court finds the 28.1 hours sought by Ms. Nadel and 42.8 hours sought by Mr. Hadduck for researching and preparing the arbitration demand unreasonable and not compensable. See Baggaley v. Wells Fargo Bank, N.A., Case No. CV 18-03605-AB (FFMx), 2018 WL 8804575, at *6 (CD. Cal. Nov. 8, 2018) (finding 71.4 hours to prepare and complete a disputed motion to compel arbitration unreasonable). For these same reasons, the court finds the 4.8 hours spent by Ms. Armstrong reviewing and revising the arbitration demand not compensable.
Next, Ms. Nadel spent approximately 22.5 hours preparing the Complaint, which is excessive and unreasonable in light of the extensive time Ms. Nadel already had spent preparing the arbitration demand - a demand, presumably, which contained the same claims that later appeared in the Complaint. The court finds 5 hours of Ms. Nadel's time preparing the Complaint reasonable for someone of with her experience and skill, resulting in a reduction of 17.5 hours of her time. See Masonry Indus. Trust Admin., Inc. v. Diversified Masonry, Case No. 3:18-cv-02034-JR, 2019 WL 5381818, at *2 (D. Or. Oct. 21, 2019) (approving 1.1 hours spent for preparing complaint by attorney with 15 years of experience where default judgment obtained). Finally, Ms. Nadel billed 28.2 hours and Mr. Hadduck billed 8.3 hours to prepare the motion for default judgment. Again, given Ms. Nadel's 20 years of lawyering experience in commercial litigation, this amount of time is greatly excessive. Thus, the court finds 10 hours for Ms. Nadel's time and the 4.3 hours for Mr. Hadduck reasonable, or roughly half the requested time, reducing Ms. Nadel's time by 18.2 hours and Mr. Hadduck's time by 4 hours. The motion for default judgment was successful and the documentation in support of Coos Bay's damages was well-supported. See Masonry Indus., 2019 WL 5381818, at *2 (awarding approximately 15 hours for preparing default judgment motion was reasonable where attorney "work[ed] alongside an auditor" and claims involved "extensive damage calculations for seventeen individuals, and the need to calculate wages, subsistence, contributions, liquidated damages, and interest"); Sadowski v. Shivley, Case No. 1:18-cv-01703-MC, 2019 WL 6528582, at *2 (approving attorney fees for 15 hours where default judgment entered).
The Complaint referenced the contract but not the arbitration requirement, and Coos Bay has not provided its arbitration demand, in draft or final form, to the court. The court notes that during oral argument on the instant motion, it chastised counsel for not providing the contract with the Complaint upon filing. In fact, the contract was part of the Complaint document and not listed as a separate attachment. The court apologizes to counsel for those comments.
In summary, to account for the excessive, unnecessary, and unreasonable hours requested, the court recommends Ms. Armstrong's time be reduced by 4.8 hours, Ms. Nadel's time be reduced by 63.8 hours, and Mr. Hadduck's time be reduced by 46.8 hours. The Court also has considered the factors outlined in Kerr and finds that no additional adjustment is necessary.
III. Calculation of the Lodestar
Based on the above, the court finds $20,185.25 in attorney fees reasonable and calculated as follows:
M. Donohue: $555 x 8.55 hours = $4,745.25 (12.2 hours less 3.65 for duplication of effort);
S. Armstrong: $400 x 6.1 hours = $2,440.00 (12.2 hours less 1.3 for double billing and 4.8 for arbitration demand);
H. Nadel: $425 x 20.1 hours = $8,542.50 (87.8 hours less 1.6 for double billing, less 1.3 for duplication of effort, and less 1.0 for clerical work, less 63.8 for excessive time);
A. Hadduck: $350 x 11.2 hours = $3,920.00 (60.6 hours less 2.6 for clerical work and 46.8 for excessive time);
M. Hughes: $125 x 4.3 hours = $537.50 (20.5 hours less 16.2 for clerical work).
IV. Bill of Costs
Coos Bay also requests $864.50 in costs. Or. Rev. Stat. § 646A.412(3) ("The court may award reasonable . . . costs to the prevailing party."). "Unless a federal statute, these rules, or a court order provides otherwise, costs - other than attorney's fees - should be allowed to the prevailing party." Fed.R.Civ.P. 54(d)(1). "[Rule 54(d)(1)] creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award costs." See Ass'n of Mexican-Am. Edit. v. California, 231 F.3d 572, 591 (9th Cir. 2000).
As noted above, no objection of the Bill of Costs was filed, and the court's review of the submitted materials shows they were reasonably incurred and represent reimbursement for filing fees and fees for service of summons. Accordingly, Coos Bay should be awarded $864.50 as reflected in the Bill of Costs.
Conclusion
Based on the foregoing, Plaintiffs Motion for Attorney Fees (ECF No. 28) should be GRANTED IN PART and DENIED IN PART, and Plaintiffs Bill of Costs (ECF No. 29) should be GRANTED.
Scheduling Order
The Findings and Recommendation will be referred to District Judge Michael H. Simon. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation 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 Recommendation will go under advisement. 19