Opinion
3:18-cv-00452-YY
04-07-2023
HOSPITALITY MANAGEMENT, INC., an Oregon corporation, Plaintiff, v. PREFERRED CONTRACTORS INSURANCE COMPANY RISK RETENTION GROUP LLC, a Montana corporation, Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff Hospitality Management, Inc. (“HMI”) has prevailed against defendant Preferred Contractors Insurance Company Risk Retention Group LLC (“PCIC”) on summary judgment on its claims for breach of contract and bad-faith breach of the duty to settle. Order 8, ECF 101. A detailed factual background underlying the case is set forth in the court's prior order. Id. at 1-3. In short, plaintiff installed and repaired windows, siding, and roof vents for general contractor KeyWay Corp. (“KeyWay”) at a large apartment complex owned by Commons at Cedar Mill (“Commons”). Commons sued KeyWay, and KeyWay brought third-party claims against six subcontractors, including a common law indemnity claim against plaintiff. Plaintiff tendered the claim to defendant, its insurer, who defended under a reservation of rights. Defendant rebuffed plaintiff's demands to settle and settlement offers from Commons and Keyway. Twelve days before trial, plaintiff stipulated to a $2.5 million judgment with KeyWay in exchange for KeyWay's covenant not to execute on plaintiff's non-insurance assets. Plaintiff then brought this coverage action. This court found that defendant was obligated to pay plaintiff the greater of $2 million for the breach of contract claim or $2.5 million on the claim for bad-faith breach of the duty to settle.
Judgment in the amount of $2.5 million plus post-judgment interest was entered against defendant on July 6, 2021. Judgment, ECF 102. A supplemental judgment for prejudgment interest in the amount of $887,054.79 was entered on August 30, 2022. On that date, the court also issued an opinion and order denying PCIC's Motion to Dismiss or Remand for Lack of Subject Matter Jurisdiction and Motion for Relief from Summary Judgment (ECF 163) and granted in part HMI's Motion for Sanctions (ECF 160), including reasonable attorney's fees and costs.
The remaining matters to be resolved in this case pertain to HMI's motions for attorney's fees and costs, which should be decided as follows:
Description
Requested
Recommended
Motion for Award of Attorney Fees (ECF 110)
$334,916.75 x multiplier of 2.0
$334,646.75
First Supplemental Motion for Attorney Fees (ECF 131)
Preparing motion for fees (ECF 110)
$49,739.50
$24,869.75
Preparing motion for prejudgment interest (ECF 106)
$12,855.00
$12,855.00
Enforcement and collections efforts
$4,110.00
$4,110.00
Expert fees
$9,600.00
$9,600.00
Second Supplemental Motion for Attorney Fees (ECF 176)
Preparing response to motion to inquire/motion for reconsideration and dismiss (ECF 163)
$95,493.07
$95,493.07
Preparing motion for sanctions (ECF 160)
$63,857.13
$31,928.56
Preparing response to objections prejudgment interest (ECF 157)
$7,873.80
$7,873.80
Minus miscellaneous deductions
-$207.50
First Bill of Costs (ECF 113)
$14,300.45
$11,586.01
Second Bill of Costs (ECF 180)
$7,510.74
$7,510.74
I. Motion for Award of Attorney Fees (ECF 110)
Plaintiff seeks $334,916.75 in attorney's fees under the lodestar method, with a 2.0 multiplier, for a total of $669,833.50. Mot. Attorney Fees 1, ECF 110. The parties agree that plaintiff is entitled to a fee award under O.R.S. 742.061 and that O.R.S. 20.075(1)-(2) applies for determining what the award should be. See Mot. Attorney Fees 2, 4, ECF 110; Objs. Mot. Attorney Fees 1, ECF 121. However, defendant objects to the application of any multiplier. Defendant also cites to several instances of duplicative work by plaintiff's counsel, and “suggests a reduction in the lodestar method by between 10 and 20% of the total fees.” Objs. Mot.
In this motion, plaintiff also seeks $7,549.18 in electronic legal research expenses. As plaintiff seeks these same electronic legal research expenses in its bill of costs (ECF 113), they are considered in the analysis relating to that cost bill.
O.R.S. 742.061(1) provides in relevant part that:
. . . if settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiff's recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon.
Attorney Fees 1, 6, ECF 121.
A. Relevant Law
Where an award of attorney fees is authorized by an Oregon statute, as it is here, the court considers the factors in O.R.S. 20.075(1) in determining “whether to award” fees:
(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.
(b) The objective reasonableness of the claims and defenses asserted by the parties.
(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.
(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.
(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.
(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.
(g) The amount that the court has awarded as a prevailing party fee under ORS 20.190.
(h) Such other factors as the court may consider appropriate under the circumstances of the case.O.R.S. 20.075(1).
In “determining the amount” of fees, the court considers the factors in subsection (1) above as well as the following factors set forth in O.R.S. 20.075(2):
(a) The time and labor required in the proceeding, the novelty and difficulty of the questions involved in the proceeding and the skill needed to properly perform the legal services.
(b) The likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney from taking other cases.
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved in the controversy and the results obtained.
(e) The time limitations imposed by the client or the circumstances of the case.
(f) The nature and length of the attorney's professional relationship with the client.
(g) The experience, reputation, and ability of the attorney performing the services.
(h) Whether the fee of the attorney is fixed or contingent.
(i) Whether the attorney performed the services on a pro bono basis or the award of attorney fees otherwise promotes access to justice.O.R.S. 20.075(2).
Subsection (2)(i) was added by amendment on June 15, 2021. 2021 Oregon Laws Ch. 325 (S.B. 181).
Federal courts also apply 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). These factors are “similar to those the Oregon legislature has directed courts to consider in determining whether to award attorneys' fees, and if so, in what amount.” Graham v. Forever Young Oregon, LLC, No. 3:13-CV-01962-HU, 2014 WL 4472702, at *3 (D. Or. Sept. 10, 2014).
Under subsection (2), “factor (a) generally relates to the reasonableness of the number of hours expended by counsel for the prevailing party, factors (c) and (g) generally relate to the reasonableness of the hourly rates charged, and factor (d) generally informs whether an upward or downward adjustment might be appropriate.” Foraker v. USAA Cas. Ins. Co., No. 3:14-CV-87-SI, 2018 WL 3873575, at *7 (D. Or. Aug. 15, 2018). “Taken together, these factors are comparable to what is often referred to as the ‘lodestar' method for calculating a reasonable attorney's fee.” Id. (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010)).
The “lodestar approach” is the “guiding light” when determining reasonable fees and yields a presumptively reasonable fee. See Perdue, 559 U.S. at 551-52 (stating that there is a “strong presumption that the lodestar is sufficient”); see also Strawn v. Farmers Ins. Co. of Oregon, 353 Or. 210, 221 (2013) (“The lodestar approach that the parties have used is at least a permissible one under the statutes involved,” including O.R.S. 20.075(1)-(2)). The lodestar is calculated by multiplying the reasonable hourly rate by the number of hours worked. Perdue, 559 U.S. at 551.
To determine the reasonable hourly rates for attorneys, the court looks 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. 1991). Courts in this district use the most recent Oregon State Bar Economic Survey as a benchmark for comparing an attorney's billing rate with the fees customarily charged in the locality. Precision Seed Cleaners v. County Mut. Ins. Co., 976 F.Supp.2d 1228, 1244 (D. Or. 2013). The Economic Survey sets forth rates charged by Oregon attorneys in the relevant year, including rates specific to certain communities, such as the Portland area.
After determining the reasonable hourly rates, the court determines the number of hours “reasonably spent on the litigation.” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009). The court excludes hours that are “excessive, redundant, or otherwise unnecessary.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The party seeking an award of attorney's fees “has the burden of submitting billing records to establish that the number of hours it has requested [is] reasonable.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); see also Strawn, 353 Or. at 225. “Ultimately, a ‘reasonable' number of hours equals the number of hours which could reasonably have been billed to a private client.” Gonzalez, 729 F.3d at 1202.
Courts use two methods to determine whether hours are excessive, redundant, or otherwise unnecessary, and thus excludable. “First, the court may conduct an ‘hour-by-hour analysis of the fee request,' and exclude those hours for which it would be unreasonable to compensate the prevailing party.” Gonzalez, 729 F.3d at 1203 (quoting McCown, 565 F.3d at 1102). “Second, ‘when faced with a massive fee application the district court has the authority to make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure. . . .'” Id. (quoting Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992) (quotation marks omitted)). “[W]hen a district court decides that a percentage cut (to either the lodestar or the number of hours) is warranted, it must ‘set forth a concise but clear explanation of its reasons for choosing a given percentage reduction.'” Id. (quoting Gates, 987 F.2d at 1400). The Ninth Circuit recognizes “one exception to this rule: ‘[T]he district court can impose a small reduction, no greater than 10 percent-a ‘haircut'-based on its exercise of discretion and without a more specific explanation.'” Id. (quotingMoreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)) (alteration in original).
Finally, “Oregon law permits an enhancement of fees when it is supported by the facts and circumstances of the case,” i.e., a multiplier. Beck v. Metro. Prop. & Cas. Ins. Co., No. 3:13-CV-00879-AC, 2016 WL 4978411, at *22 (D. Or. Sept. 16, 2016), aff'd, 727 Fed.Appx. 330 (9th Cir. 2018) (applying Oregon law and awarding 2.0 multiplier); see, e.g., Griffin v. TriMet, 112 Or.App. 575, 585 (1992) aff'd in part and rev'd in part on other grounds, 318 Or. 500 (1994) (approving award of 2.0 multiplier); Edwards v. Cincinnati Insurance Company, No. 3:19-cv-01425-BR, 2021 WL 6427817, at *7 (D. Or. 2021) (applying Oregon law and awarding 1.5 multiplier); Foraker, 2018 WL 3873575, at *7 (same). But enhanced fee awards are the exception, not the rule, and are appropriate only in “rare” and “exceptional” circumstances. Perdue, 559 U.S. at 554.
Typically, enhanced fee awards are appropriate in cases where the recovery was an “exceptional success,” even if plaintiffs did not prevail on all claims, and other
favorable factors exist, including “the difficulty and complexity of the issues involved in the case, the value of the interests at stake, as well as the skill and professional standing of lawyers involved.”VanValkenburg v. Oregon Dep't of Corr., No. 3:14-CV-00916-MO, 2017 WL 2495496, at *6 (D. Or. June 9, 2017) (quoting Strunk v. Pub. Emps. Ret. Bd., 343 Or. 226, 246 (2007)).
B. Review of Statutory Factors
When analyzing these factors, the court need only include “‘a brief description or citation to the factor or factors on which it relies'; the court ordinarily has no obligation to make findings on statutory criteria that play no role in the court's decision.” Frakes v. Nay, 254 Or.App. 236, 255 (2012) (quoting McCarthy v. Or. Freeze Dry, Inc., 327 Or. 185, 190-91 (1998)) (original alteration omitted). Still, courts must “show their work when calculating attorney's fees.” United States v. $28,000.00 in U.S. Currency, 802 F.3d 1100, 1108 (9th Cir. 2015).
A careful weighing of the statutory factors leads to the conclusion plaintiff is not entitled to a multiplier for the fees at issue in this motion. Some factors weigh in favor of a multiplier, and some weigh against it. However, taken together, the factors do not disturb the strong presumption that the lodestar is sufficient.
1. O.R.S. 20.075(1)(a): Conduct of Parties in Transactions Giving Rise to Litigation, Including Conduct that was Reckless, Willful, Malicious, in Bad Faith or Illegal
Despite having all the necessary information to evaluate the underlying settlement offers, defendant conducted virtually no claims investigation, and even misappropriated defense counsel's file in the process. See Findings and Recommendations (“F&R”) 41, ECF 90, adopted by Order, ECF 101. Defendant argues its conduct was merely negligent, not reckless, because it had accepted and paid for plaintiff's defense and underlying defense counsel predicted only a 30% chance of an adverse verdict. Objs. Mot. Attorney Fees 21, ECF 121. This argument falls flat for two reasons. First, defendant erroneously conflates an insurer's contractual duty to fund its insured's defense with the insurer's fiduciary duty to protect its insured's interests. Second, defendant was reckless in failing to investigate its insured's claim or conduct a coverage analysis for 16 months after tender. F&R 37, ECF 90. Defendant apparently claims it could not reasonably respond to a settlement demand 12 days before trial. Although defendant's actions are distinguishable in multiple respects from the insurers' conduct in Beck and Edwards, at least the insurers in those cases investigated the insured's claim and conducted a coverage analysis. See Beck, 2016 WL 4978411, at *13 (finding insurer was reckless for not offering its insured more than its initial offer despite its adjusters estimating higher and higher replacement cost values and actual cash values); Edwards, 2021 WL 6427817, at *10 (finding insurer was “reckless at the very least” in part for repeatedly insisting coverage was limited to ten percent based on a provision that the insurer's adjusters agreed did not apply). This factor, thus, supports a multiplier.
When plaintiff stipulated to settlement just 12 days before trial, defendant had not paid plaintiff's expert witness and there was a chance plaintiff would be precluded from using the other parties' expert testimony at trial. See F&R 41, 43, ECF 90.
2. O.R.S. 20.075(1)(b): Reasonableness of Claims and Defenses Asserted in Litigation
Though not egregious, many of defendant's defenses and arguments were unsupported by facts or law, and some assertions were contradicted by the facts and law supplied. See, e.g., F&R 30 n.6, ECF 90 (noting that one of defendant's response briefs was remarkable in that it did “not invoke any case law”); Order 7, ECF 101 (noting defendant's failure to identify “a single piece of evidence” of collusive activity). This factor supports a multiplier.
3. O.R.S. 20.075(1)(c)-(d): Deterrence of Good Faith and Meritless Claims and Defenses
Neither party addresses whether an award would deter the assertion of good faith or meritless claims or defenses by other parties. This factor is neutral.
4. O.R.S. 20.075(1)(e): Reasonableness and Diligence of Parties and Attorneys During Litigation
This court twice sanctioned defendant during the litigation. Minutes of Proceedings, ECF 33; Order, ECF 61. Additionally, the court was forced to compel defendant to abide by one of its sanctions orders because defendant did not pay what the court had ordered within a reasonable time, Order, ECF 73, and the court was forced to hold a hearing when notified that defendant had failed to abide by an order to compel payment-only to learn that defendant had made the payment “a day before the hearing, without providing an explanation for the delay.” F&R 5, ECF 90. Defendant objects that plaintiff would secure a double recovery if a multiplier were applied to fees for previously sanctioned conduct, which defendant ultimately paid. But plaintiff has omitted from its fee petition the attorney's fees it received under those sanctions orders. Bonaparte Decl.¶ 19 n.1, ECF 112. Additionally, defendant filed a duplicate motion for summary judgment, exceeded the scope of supplemental briefing, and disregarded a handful of local rules briefing the cross-motions for summary judgment. See F&R 10, 13, ECF 90. In sum, this factor favors a multiplier.
5. O.R.S. 20.075(1)(f): Reasonableness and Diligence of Parties and Attorneys Pursuing Settlement
“The purpose of ORS 743.144 [renumbered to O.R.S. 742.061] allowing recovery of attorney fees by claimants under insurance policies is to encourage the settlement of such claims without litigation and to reimburse successful plaintiffs reasonably for moneys expended for attorney fees in suits to enforce insurance contracts.” Accord Chalmers v. Oregon Auto. Ins. Co., 263 Or. 449, 452 (1972).
Defendant never offered to settle this case and rebuffed plaintiff's attempts at settlement. See Farnell Decl. ¶¶ 2, 6, ECF 111. Underscoring its refusal to pursue settlement reasonably and diligently, defendant does not even acknowledge this factor in its objections to plaintiff's motion for attorney fees. See Objs. Mot. Attorney Fees, ECF 121. This factor favors a multiplier.
6. O.R.S. 20.075(1)(g)-(h): Prevailing Party Fee Award Under and Other Factors
Subsection (1)(g) does not apply in this case, and neither party asserts that subsection (1)(h) is appropriate for consideration.
7. O.R.S. 20.075(2)(a): Time and Labor Required, Novelty and Difficulty, Skill Required
Plaintiff asserts a multiplier is justified because the coverage questions were complex, the bad-faith claim presented a novel question whether a plaintiff can prevail on a bad-faith breach of the duty to settle on summary judgment (it can), and defendant raised spurious arguments without supporting facts or legal authority. See Mot. Attorney Fees 8-9, ECF 110. Plaintiff's expert witness represents this was a “hard-fought” dispute that required skill to navigate. Bonaparte Decl. ¶ 20, ECF 112. However, “this factor is subsumed in the lodestar.” Foraker, 2018 WL 3873575, at *7.
8. O.R.S. 20.075(2)(b): Likelihood that Acceptance Would Preclude Taking Other Cases
Subsection (2)(b) turns on “[t]he likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney from taking other cases.” O.R.S. 20.075(2)(b) (emphasis added). This language “clearly contemplates a prospective assessment, not one informed by hindsight.” Zweizig v. Nw. Direct Teleservices, Inc., No. 3:15-CV-02401-HZ, 2019 WL 5889296, at *3 (D. Or. Nov. 11, 2019) (quoting Beck 2016 WL 4978411, at *20).
Plaintiff's fee expert opines that plaintiff's counsel “deprived themselves and their firm of their services for other clients, actual or potential, for a significant period of time.” Bonaparte Decl. ¶ 22(i), ECF 112. But that is the opportunity cost of taking any case. In a subsequent declaration, plaintiff's expert attests that it was “apparent to the client” that counsel would be precluded from taking other cases due to defendant's pattern of behavior. Bonaparte Decl. ¶ 3, ECF 128. Arguably, a statement from the client would be more persuasive on this point. Nevertheless, this factor does not support a multiplier. While the litigation in this case was protracted, the lodestar accounts for the additional hours that were necessary for plaintiff's counsel to resolve the case.
9. O.R.S. 20.075(2)(c): Fee Customarily Charged in the Locality for Similar Legal Services
This factor is subsumed in the lodestar. See Foraker, 2018 WL 3873575, at *7.
10. O.R.S. 20.075(2)(d): Amount Involved and Results Obtained
The purpose behind subsection (2)(d) is to “allow those who bring relatively small claims to obtain the entire amount of the fees expended, so that insurers cannot simply make such claims too expensive to be worth pursuing.” Axis Surplus Ins. Co. v. Lebanon Hardboard, LLC, No. 07-CV-292-MO, 2009 WL 490008, at *6 (D. Or. Feb. 26, 2009) (citing Barbara Parmenter Living Trust v. Lemon, 345 Or. 334 (2008)).
Plaintiff secured a $2.5 million judgment-all of the damages it sought. The loadstar is sufficient to compensate plaintiff for this result. Thus, this factor does not weigh in favor of a multiplier. See Foraker, 2018 WL 3873575, at *8.
11. O.R.S. 20.075(2)(e)-(g): Time Limitations, Relationship with Client, and Attorney Experience
Neither party invokes subsections (2)(e) or (2)(f), and subsection (2)(g) is subsumed in the lodestar. See Foraker, 2018 WL 3873575, at *7.
12. O.R.S. 20.075(2)(h): Fixed or Contingent Fee
One of the most important factors in determining whether to enhance a fee award is whether counsel assumed the risk of going “entirely uncompensated.” Wattenbarger v. Boise Cascade Corp., 301 Or. 12, 16 (1986); see also Strawn, 233 Or.App. at 414, 416 (discussing Wattenbarger and emphasizing risk inherent in taking a case on a contingent fee basis). Indeed, “the Oregon Supreme Court has based a fee multiplier on contingency-fee status alone.” Foraker, 2018 WL 3873575, at *8 (discussing Moro v. State, 360 Or. 467, 491 (2016)). Recent cases in this district enhancing attorney fee awards have been in cases taken on a contingency fee basis. E.g., Edwards, 2021 WL 6427817; Zweizig, 2019 WL 5889296, at *4; Beck, 2016 WL 4978411, at *22; Foraker, 2018 WL 3873575, at *8-9. This is not a contingency fee case; therefore, this factor does not favor a multiplier.
13. O.R.S. 20.075(2)(i): Pro Bono Basis and Access to Justice
This factor is inapplicable to this case.
C. Multiplier
In summary, some factors weigh in favor of a multiplier and some do not. However, the factors that weigh in favor of a multiplier do not overcome the remaining factors or the strong presumption that the lodestar is sufficient. Plaintiff's counsel obtained an excellent result, and plaintiff will be compensated by the size of the award, as well as reimbursed for its fees. True, defendant's conduct giving rise to this litigation, its lack of diligence before and during the litigation, and its refusal to reasonably pursue settlement weigh toward application of a multiplier. But the lodestar accounts for the time and skill required by counsel to navigate those difficulties. Importantly, there was no risk that plaintiff's counsel would go uncompensated. The result here aligns with the intent of O.R.S. 742.061 without permitting a windfall. See Chalmers, 263 Or. at 452 (observing that the purpose of allowing recovery under O.R.S. 742.061 is to “encourage the settlement of [insurance] claims without litigation and to reimburse successful plaintiffs reasonably for moneys expended for attorney fees in suits to enforce insurance contracts”) (emphasis added).
D. Review of Hourly Rates
Plaintiff seeks fees for five attorneys whose hourly rates and years of experience during the relevant time period were as follows:
(1) Michael E. Farnell, $450.00 per hour, 29 years of practice;
(2) Kristopher L. Kolta, $260.00 to $270.00 per hour, 11 years of practice;
(3) Paul A. Mockford, $260.00 to $290.00 per hour, 11 years of practice;
(4) W. Blake Mikkelsen, $230 to $260 per hour, 14 years of practice; and
(5) Ryan M. DesJardins, $230 per hour, 8 years of practice;Bonaparte Decl. ¶¶ 10, 13-17, ECF 112; Farnell Decl., Ex. 1, at 36, ECF 111-1.
Kolta and Mockford both had attorney rate changes beginning in August 2019. Kolta Decl., Ex. A, at 4, ECF 35-1.
According to the Oregon State Bar's 2017 Economic Survey, the hourly rates suggested by plaintiff fall within the range of attorneys with similar years of experience in the Portland area. 2017 Oregon State Bar Economic Survey 39, Table 36, ECF 112-2. Most of the work was performed by Kolta and Mockford, who were senior associates at Parsons Farnell & Grein, LLP (“PFG”). See Kolta Decl. ¶¶ 8-9, ECF 35; Farnell Decl., Ex. 1, at 36, ECF 111-1. Kolta and Mockford each had approximately 11 years of experience in civil litigation, with a primary focus on insurance coverage. See Kolta Decl. ¶¶ 8-9, ECF 35; Bonaparte Decl. ¶¶ 14, 16, 22(a), ECF 112. Farnell is a named partner at PFG and has significant experience in insurance litigation. Kolta Decl. ¶ 7, ECF 35; Bonaparte Decl. ¶ 13, ECF 112. Farnell and Mockford recently coauthored a chapter in the Oregon State Bar's 2020 insurance law treatise. Bonaparte Decl. ¶ 22(a), ECF 112. Based on the attorneys' years of practice and breadth of experience, the hourly rates are reasonable for this community. Moreover, defendant agrees the hourly rates are reasonable. Objs. Mot. Attorney Fees 5, ECF 121.
Plaintiff also seeks fees incurred by paralegal Leanne Astheimer, who has four years of experience as a discovery specialist. Bonaparte Decl. ¶ 18, ECF 112. To determine the reasonable hourly rate for paralegal services, the court again looks to the prevailing market rate. Gonzalez, 729 F.3d at 1205. In other cases, this court has relied on the National Utilization and Compensation Survey Report (“NALA Report”), which is prepared biannually by the National Association of Legal Assistants and Paralegals and sets forth the average hourly billable rate for paralegals based on location and experience. See, e.g., Anderson v. Ross Island Sand & Gravel Co., No. 3:18-CV-00898-SB, 2018 WL 5993581, at *4 (D. Or. Oct. 24, 2018), report and recommendation adopted, 2018 WL 5985671 (D. Or. Nov. 12, 2018) (citing Aichele v. Blue Elephant Holding, LLC, No. 3:16-CV-2204-BR, 2018 WL 2357533, at *4 (D. Or. May 24, 2018)). The requested $75 rate for the work performed by Astheimer is reasonable. In 2020, the average hourly billing rate for the Far West, which includes Oregon, was $140 and the average hourly rate for a paralegal with one to five years of experience was $124. National Association Legal Assistants, National Utilization and Compensation Survey Report (“NALA Report”) 10, figs.29, 30 (2020).
E. Review of Time Expended
Plaintiff seeks fees for 1,208.11 hours of attorney time. Counsel worked a total of 1,938.96 hours, but have deducted 287.05 hours they were previously compensated as a result of the sanctions orders. Bonaparte Decl. 7 n.1, ECF 112. Of the remaining 1,651.9 hours, counsel have exercised billing judgment and voluntarily omitted 444.8 hours (i.e., $120,967.25 in fees). Id. Counsel's records are well-documented in a billing statement, which includes a brief summary of the work performed, who performed it, how long it took, and the amount billed. See Farnell Decl., Ex. 1, ECF 111-1 (billing statement); ECF 119 (sealed, unredacted copy).
Although defendant agrees that plaintiff's counsel's hourly rates are reasonable, defendant asserts the total hours billed are excessive and suggests reducing the total number of hours requested by between 10% to 20%. Objs. Mot. Attorney Fees 5-6, ECF 121. In support of this argument, defendant cites two instances of duplicative effort and many entries where attorneys met and conferred about the case. See Bixby v. KBR, Inc., No. 3:09-CV-632-PK, 2013 WL 12319909, at *6 (D. Or. Feb. 12, 2013) (recognizing that “[t]he courts of this district routinely exclude from the lodestar calculation any time entries indicating that more than one lawyer performed the same task”) (citation omitted).
In one instance, Farnell and Kolta billed for time to prepare and participate in the same hearing. Farnell Decl., Ex. 1 at 27-28, ECF 111-1. As this court previously explained in a different order awarding attorney fees, hours expended in connection with preparing for and attending oral argument when only one attorney argues the matter are duplicative, and the duplicative hours with the lower hourly rate should be excluded. Order 6, ECF 61 (quoting Bixby, 2013 WL 12319909, at *6). Plaintiff has omitted some duplicative hours but should have omitted one more hour billed by Kolta on July 24, 2020, to attend a hearing that only Farnell argued. See Farnell Decl., Ex. 1, at 27, 27 nn.3-7, ECF 111-1.
Defendant also asserts that Kolta, Farnell, and Mockford appear to have duplicated their efforts preparing supplemental briefing in late 2020 and early 2021. However, these entries show counsel worked together to answer the difficult questions presented by the court in its request for supplemental briefing, not that multiple attorneys performed the same task. See Farnell Decl., Ex. 1, at 28-31, ECF 111-1. This work was not duplicative or excessive. See League of Wilderness Defs./Blue Mountains Biodiversity Project v. Turner, 305 F.Supp.3d 1156, 1172 (D. Or. 2018) (holding it may be “reasonable for two attorneys to work together and to double-bill for some of that work”).
Similarly, defendant asserts there are instances on nearly every page of the billing statement where attorneys billed for time to attend the same intra-office meeting. Objs. Mot. Attorney Fees 5-6, ECF 121. Counsel billed between 0.05 and 0.40 hours for these types of meetings, with most of the entries trending toward the lower end of the spectrum. See Farnell Decl., Ex. 1, at 1-40, ECF 111-1. Plaintiff's fee expert opines this coordinated work between partner and associate helped reduce bills by reducing the amount of time spent and billed by the partner. Bonaparte Decl. ¶ 4, ECF 128. Additionally, given that most of these entries are for 12 minutes or less, they are not excessive. E.g., Turner, 305 F.Supp.3d at 1172 (“Time spent in the same conference is not necessarily duplicative.”); League of Wilderness Defs./Blue Mountains Biodiversity Project v. U.S. Forest Serv., No. 3:10-CV-01397-SI, 2014 WL 3546858, at *10 (D. Or. July 15, 2014) (finding it was not excessive for attorneys litigating a complex environmental dispute to bill for tasks “such as emailing one another”).
Defendant does not flag any other suspect billing entries, and thus provides no justification for a 10% to 20% reduction of the lodestar calculation. See Gonzalez, 729 F.3d at 1203. Also, in Gonzalez, the Ninth Circuit reserved across-the-board percentage cuts to “massive” fee petitions. Id. This is not one of those cases.
Thus, one hour billed at $270 is unjustified. The remaining lodestar amount of $334,646.75 is reasonable.
II. First Supplemental Motion for Attorney Fees (ECF 131)
Plaintiff seeks a supplemental award of $66,704.50 in attorney's fees and $9,600 in expert costs that were incurred in preparing:
(1) The Motion for Award of Attorney Fees (ECF 110) ($49,739.50 for 183.95 hours);
(2) The Motion for Award of Prejudgment Interest and Amendment of Judgment (ECF 106) ($12,855 for 45.3 hours); and
(3) Collection and enforcement efforts ($4,110 for 14.6 hours).
First Suppl. Mot. Attorney Fees 1-2, 5, EF 131. Generally, fees and expenses incurred in preparing a motion to recover fees are permitted. Emerald People's Util. Dist. v. Pacificorp, 104 Or.App. 504, 507 (1990) (finding no error in fee award for “services provided in conjunction with the recovery of the underlying fees”); Muller v. CountryMut. Ins. Co., No. 3:14-CV-01345-MO, 2017 WL 6209701, at *9 (D. Or. Dec. 8, 2017) (awarding $7,000 for the work of attorneyfee experts); VanValkenburg, 2017 WL 532950, at *23 (allowing expert fees in conjunction with a “fees on fees” petition). Unlike in the first motion for attorney fees (ECF 110), plaintiff does not seek a multiplier for this award. First Suppl. Mot. Attorney Fees 4, EF 131.
A. Timeliness of Motion
Defendant objects that the supplemental motion is untimely under Federal Rule of Civil Procedure 54(d)(2)(ii). Objs. First Suppl. Mot. 2-3, ECF 138. That rule requires a motion for attorney's fees and related nontaxable expenses to be filed no later than 14 days after the entry of judgment unless a statute or a court order provides otherwise. FED. R. CIV. P. 54(d)(2)(B)(ii). This argument would have merit, but plaintiff's pending Rule 59(e) motion tolled the Rule 54(d) deadline. A fee petition “is timely if filed no later than 14 days after the resolution of a Rule 50(b), Rule 52(b), or Rule 59 motion.” Bailey v. Cnty. of Riverside, 414 F.3d 1023, 1025 (9th Cir. 2005) (emphasis added); see Radtke v. Caschetta, 822 F.3d 571, 573-74 (D.C. Cir. 2016) (following Bailey and noting the Second, Sixth, Tenth, and Eleventh Circuits have adopted the same tolling principle). Plaintiff's supplemental motion is timely because its Rule 59(e) motion to amend the judgment (ECF 106) was pending when the supplemental motion was filed. See, e.g., Alvarado v. Fed. Exp. Corp., No. C 04-0098 SI, 2008 WL 2340211, at *3 (N.D. Cal. June 5, 2008) (applying Bailey, tolling the Rule 54(d) deadline, and finding prevailing parties' fee petitions to be timely filed when post-trial Rule 50(b) and Rule 59 motions were still pending).
“Although the 14-day period is not jurisdictional, the failure to comply with Rule 54 should be sufficient reason to deny the fee motion, absent some compelling showing of good cause.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 676 (9th Cir. 2017).
B. Review of Hourly Rates and Time Expended
For purposes of this motion, plaintiff requests the same hourly rate for Farnell ($450) and Mockford ($290), and an increase in Astheimer's hourly rate to $110, which is still within the range for paralegals in the community with Astheimer's years of experience. See 2020 NALA Report 10, figs.29, 30. Additionally, plaintiff seeks $230 per hour for attorney Carson Riley. This hourly rate is within the range of attorneys with Riley's years of experience. See 2017 Oregon State Bar Economic Survey 38, Table 36, ECF 112-2.
Plaintiff's counsel spent 183.95 hours preparing the fee petition, 45.3 hours preparing the motion to award prejudgment interest and amend the judgment, and 14.6 hours on collection and enforcement efforts. Defendant objects that the fees are “blatantly excessive” and lack any plausible basis. Obj. First Suppl. Mot. 2, ECF 138.
Indeed, it should not have taken over a month of attorney time to prepare the fee petition. See O.R.S. 20.075(2)(a) (requiring court to consider the reasonableness of the “time and labor required”). Plaintiff faults defendant for filing a response that was unsupported by expert testimony, vague, speculative, and devoid of specifics. Reply First Suppl. Mot. 6-8, ECF 139. But under Oregon law, the party seeking the fee award has the burden of establishing the reasonableness of the fee amount. Strawn, 353 Or. at 225. Nothing in plaintiffs supplemental motion or reply brief, including plaintiff's expert's perfunctory conclusion that the time spent was “reasonable and necessary,” justifies such an award. Bonaparte Decl. ¶ 4(b)-(c), ECF 133. Based on the discussion of the statutory factors above, the length and complexity of the briefing, the preparation of declarations and exhibits, the number of billing entries and the necessary redactions, preparing the fee petition should have taken no more than half the requested time. Goldingay v. Progressive Cas. Ins. Co., No. 3:17-CV-1491-SI, 2019 WL 852992, at *7 (D. Or. Feb. 22, 2019) (“District courts have wide discretion to determine the number of hours reasonably expected to complete a task.”) (citing Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 484-85 (9th Cir. 1988)). Therefore, plaintiff is entitled to half its requested amount, i.e., $24,869.75.
The hours expended preparing the motion for prejudgment interest (45.3 hours), however, are reasonable. The detailed time entries related to this motion show that the attorneys spent time reviewing the nuances of the relevant law in light of the context of the case and preparing their briefing. None of the time entries are excessive or unreasonable. The prejudgment interest amount ($887,054.79) is significant; therefore, counsel certainly needed to be thorough in their research and analysis. Additionally, the 14.6 hours requested for collection and enforcement efforts is well documented and reasonable.
Defendant also objects to plaintiff's expert witness fee of $9,600. Objs. First Suppl. Mot. 7, ECF 138. Defendant contends that the expert's time was largely spent working on undisputed issues, (e.g., counsel's rates), and the expert provided only a cursory review of potentially disputed issues (e.g., number of hours billed).
Plaintiff's expert bills at $375 per hour, which is a reasonable rate, considering his 30+ years of experience and expertise in the area of insurance law. Moreover, while his declaration is not particularly lengthy, the 25.6 hours he spent reviewing the case materials, court decisions, billing statements, and credentials of the attorneys is well documented, and none of the entries could be considered excessive or unreasonable. Therefore, plaintiff is entitled to $9,600 in expert fees.
III. Second Supplemental Motion for Attorney's Fees (ECF 176) and Second Bill of Costs (ECF 180)
A. Fees Related to Motion to Inquire (ECF 143) and Motion for Reconsideration and to Dismiss (ECF 163)
The court has issued an order awarding plaintiff “reasonable attorney's fees and costs related to litigating [defendant's] motion to inquire and motion for reconsideration and to dismiss.” O&O, ECF 174. Plaintiff claims it incurred $95,493.07 related to litigating these motions.
The requested hourly rates are reasonable. For Mockford, plaintiff seeks an increased rate of $325 per hour. This rate is still below the 75th percentile of attorneys within the range of Portland attorneys with Mockford's years of experience. 2017 Oregon State Bar Economic Survey 39, Table 36, ECF 122-2. Plaintiff asks to increase Riley's rate from $230 per hour to $250 per hour. This rate is at the 75th percentile of attorneys with his years of experience, and is also reasonable.
Two new attorneys were added to the case at this point: Ryan DesJardins, an associate, and Josh Smentek, a contract attorney. Plaintiff seeks an hourly rate of $280 for DesJardins, who has more than six years of experience. This falls under the 75th percentile for attorneys with DesJardins' years of experience, and is reasonable. 2017 Oregon State Bar Economic Survey 39, Table 36, ECF 122-2. The same is the case for the $280 hourly rate requested for Smentek, who also has been practicing for six years.
Plaintiff's attorneys billed 366.4 hours litigating defendant's motion to inquire and motion for reconsideration and to dismiss (ECF 163). Defendant contends this amount is unreasonable and plaintiff's “research into this topic was unreasonably time consuming.” Obj. Second Suppl. Mot. 6, ECF 181. But defendant's motion not only presented novel and complicated questions of law, it also involved an extensive factual and legal investigation into defendant's numerous other cases in federal court. As plaintiff's expert explains, the time spent was reasonable and necessary because defendant's “factual assertions and legal arguments required HMI's attorneys to review PCIC's litigation history over more than a decade and analyze and brief the application of the law of judicial admissions[.]” Bonaparte Decl. ¶ 3(e), ECF 177. Indeed, the work was necessary to achieve the “exceptional results obtained from HMI's attorneys,” including preserving the $2.5 million judgment. Id. Defendant should not be surprised that, when it ambitiously raised this issue so late in the litigation, after judgment had already been entered, plaintiff would fight to preserve its hard-won victory.
A review of the billing entries shows that time was well spent in strategizing about how to deal with defendant's unexpected change in position, responding to the court's March 30, 2022 Opinion and Order, conducting legal research on complex areas of law, and meaningfully responding to defendant's motion. Plaintiff is entitled to $95,493.07 in fees related to litigating this motion.
B. Fees Related to Motion for Sanctions (ECF 160)
Plaintiff seeks $63,857.13 for the 248.6 hours its attorneys billed to litigate its Motion for Sanctions (ECF 160). In response, defendant points to the language of the court's August 30, 2022 Opinion and Order, in which the court “GRANT[ED] IN PART HMI's Motion for Sanctions, ECF 160,” and “award[ed] to HMI as sanctions against PCIC HMI's reasonable attorney's fees and costs related to litigating PCIC's motion to inquire and motion for reconsideration and to dismiss.” O&O 21, ECF 173. Defendant argues this language shows the court “did not grant defendant's Motion for Fees related to the Motion for Sanctions.” Obj. Second Suppl. Mot. 3, ECF 181 (emphasis in original). Defendant contends that “a failure to grant a motion is a denial of that motion.” Id.
In its motion for sanctions, plaintiff sought sanctions for defendant's conduct related to defendant's changed position on jurisdiction. See O&O 14, ECF 173. Plaintiff requested sanctions of: (1) a fee multiplier of three for its pending fee petitions; (2) attorney's fees for responding to defendant's motion to inquire and motion to reconsider and dismiss with a multiplier of 3; and (3) punitive damages of $5 million. Id. The court observed that punitive sanctions are generally “intended to vindicate the court's authority and the integrity of the judicial process,” and found that punitive sanctions were not appropriate here because defendant's motion to reconsider was being denied. Id. at 15. On this basis, the court denied plaintiff's request for a fee multiplier on its fee requests, as well as $5 million in punitive sanctions. This left open the question of whether the court could otherwise impose a multiplier on plaintiff's requests for fees based on other grounds. However, as discussed above, the O.R.S. 20.075(1)-(2) factors do not support deviating from the lodestar.
But while the court denied plaintiff's request for punitive sanctions, it granted, as a compensatory or remedial sanction, plaintiff's motion for attorney's fees for having to respond to defendant's motion to inquire and motion to reconsider and dismiss. In doing so, the court made the troubling observation that “PCIC has not provided a credible or reasonable purpose for its Motion to Inquire and motion to reconsider and dismiss this case other than the manipulation of jurisdiction to eradicate the signification judgment against PCIC,” and found “this conduct warrants compensatory sanctions to HMI in having to defend these motions.” O&O 17, ECF 173. Plaintiff thus prevailed in part on its motion for sanctions. Accordingly, to the extent plaintiff incurred fees with respect to this portion of its motion for sanctions, it is entitled to those fees under Federal Rule of Civil Procedure 11(c)(2).
Much of plaintiff's motion for sanctions was focused on its request for punitive sanctions. See Mot. Sanctions, ECF 160; Reply, ECF 168. But much of plaintiff's motion pertained to defendant's conduct in relation to the filing of its motion to inquire and motion to reconsider and dismiss, which is what ultimately warranted a compensatory or remedial sanction. Therefore, it is reasonable to award plaintiff half of the expenses it incurred in preparing the motion for sanctions, i.e., $31,928.56.
C. Fees Related to Objections to Findings and Recommendations re: Prejudgment Interest (ECF 157)
Plaintiff's attorneys billed 29.7 hours in relation to defendant's objections to the Findings and Recommendations regarding the Motion for Prejudgment Interest. Defendant contends that plaintiff's response to the objections was not complex and should have taken no more than 15 hours. Again, however, the issue of prejudgment interest was no trivial matter-the prejudgment interest amount was $887,054.79. Moreover, the billing entries reflect that counsel spent their time analyzing the findings and recommendations, assessing defendant's objections, developing arguments, conferring, and preparing the response. The time spent is not excessive or unreasonable. Therefore, plaintiff is entitled to $7,873.80 in fees they incurred in preparing and filing a response to defendant's objections.
D. Miscellaneous Objections
Defendant objects to .3 hours of fees because the entry references “ [REDACTED].” Obj. Second Suppl. Mot. 6, ECF 182; see ECF 179, at 21. Plaintiff's counsel explains this was merely a clerical error, and the context of the billing entry makes clear that it pertained to the pending motions. Reply Second Suppl. Mot. 10, ECF 184.
Defendant also objects to 5.2 hours of block billing by Farnell on March 7, 2022. Obj. Second Suppl. Mot. 6, ECF 182. Farnell has since satisfactorily provided additional details regarding the entry in a supplemental billing record. Farnell Decl., Ex. 1, at 3, ECF 186.
Defendant further objects to .1 hours in fees for [REDACTED] on April 8, 2022, and .1 hours for “[REDACTED]” on April 11, 2022. Obj. Second Suppl. Mot. 6, ECF 182; see ECF 179, at 19-20. O.R.S. 742.061(1) provides the authority for fees in this action, and communications [REDACTED] are not “part of the costs of the action.” For the same reason, plaintiff is not entitled to the .4 hours of time on June 1, 2022, that was spent analyzing [REDACTED] . See ECF 179, at 30.
Thus, these entries-$45 for the .1 hours by Farnell on April 8, 2022, $32.50 for the .1 hours by Mockford on April 11, 2022, and $130 for the .4 hours by Mockford on June 1, 2022-is excluded in the amount of $207.50.
Finally, defendant objects to a February 12, 2022 entry where Riley billed .3 hours for reviewing an email that he received from Farnell, see ECF 179, at 9, and 0.8 hours billed on May 9, 2022, where Riley proofread the briefing and worked with a legal assistant in preparation of filing. ECF 179, at 29. Plaintiff explains that it has already written off this time. Reply Second Suppl. Mot. 10, ECF 184. Thus, there is nothing more for the court to do with respect to this objection.
IV. First Bill of Costs (ECF 113)
“Unless a federal statute, [the Federal Rules of Civil Procedure], 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). Plaintiff seeks $14,300.45 for a variety of costs. See Bill Costs, ECF 113; Memo. Supp. Bill Costs 1, ECF 115. Defendant concedes that plaintiff is entitled to costs as the prevailing party, but objects to the cost of videotaping two depositions. See Objs. Bill Costs ECF 122. Plaintiff paid $2,714.44 to videotape the depositions of Dana Keir and Scott Struble. Farnell Decl., Ex. 1, at 37, ECF 111-1.
Plaintiff cites a handful of cases awarding costs for videotaping depositions. Reply Mem. Supp. Bill Costs 1, ECF 129. However, “a party seeking costs for the video recording of a deposition must explain why the deponent's deposition demeanor was such an important issue that the video version, in addition to the written version, of his deposition was necessary.” Murphy v. Precision Castparts Corp., No. 3:16-CV-00521-SB, 2021 WL 4524153, at *5 (D. Or. Oct. 4, 2021) (internal citation and alterations omitted) (denying cost of videotaping depositions when prevailing party failed to establish importance of deponent demeanor); Simons v. Costco Wholesale Corp., No. 3:18-CV-00755-SB, 2021 WL 1244309, at *5 (D. Or. Feb. 22, 2021), report and recommendation adopted, No. 3:18-CV-755-SB, 2021 WL 1240629 (D. Or. Apr. 2, 2021) (same); see also Rhodehouse v. Ford Motor Co., No. 2:16-cv-01892-JAM-DMC, 2019 WL 699947, at *2 (E.D. Cal. Feb. 20, 2019) (excluding the cost of videotaping a deposition from a cost bill where the defendant had “not explained why it needed to videotape the depositions”). Plaintiff has not done that here.
Defendant does not otherwise object to plaintiff's costs, which include fees of the Clerk, fees for service of summons and subpoena, fees for transcripts, electronic research fees, postage, and delivery fees. Many of these costs are either recoverable under 28 U.S.C. § 1920 or they are otherwise recoverable as part of an award of attorney's fees because “it is the prevailing practice in a given community for lawyers to bill those costs separately from their hourly rates.” Trustees of the Constr. Indus. & Laborers Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1256, 1258-59 (9th Cir. 2006). Plaintiff has established that here. See Bonaparte Decl. 11, ECF 112 (“It is the prevailing practice in the Oregon Bar to bill electronic research, service fees, and delivery fees separately from hour rates.”). Therefore, plaintiff is entitled to its requested costs minus the costs of videotaping the depositions, i.e., $11,586.01.
V. Second Bill of Costs (ECF 180)
Plaintiff seeks costs in the amount of $7,510.74 for electronic research, postage, and document (PACER) fees. Defendant argues, without much explanation, that the costs should be reduced by at least half. Obj. Second Suppl. Mot. 10, ECF 182.
But the PACER fees related to the investigation that plaintiff had to conduct regarding defendant's other cases. See, e.g., ECF 178, at 7. Moreover, the electronic legal research fees largely pertained to subject matter jurisdiction, judicial admissions, and sanctions, issues on which plaintiff ultimately prevailed in large part. Given the complexity of the legal issues involved, $7,408.50 in electronic research fees are not excessive or unreasonable.
RECOMMENDATIONS
The Motion for Award of Attorney Fees (ECF 110), First Supplemental Motion for Attorney Fees (ECF 131), and Second Supplemental Motion for Attorney Fees (ECF 176) should be granted in part, the First Bill of Costs should be awarded in part, and the Second Bill of Costs should be awarded in full.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, April 06, 2023. 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.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.