Summary
applying Or. Rev. Stat. § 20.075 and reducing fees by twenty-five percent for vague entries
Summary of this case from Alexander Mfg., Inc. v. Illinois Union Ins. Co.Opinion
CV 99-492-BR.
September 10, 2001
TIM A. QUENELLE, TIMOTHY C. BENNETT, Moore Associates, P.C. Lake Oswego, OR., Attorneys for Plaintiff.
SHARON L. TONCRAY, Miller Nash LLP, Portland, OR., Attorney for Defendent.
JAMES R. DICKENS, Miller Nash LLP, Seattle, WA., Attorney for Defendent.
BRENT T. JOHNSON, Fairfield Woods, P.C., Denver, CO., Attorney for Defendent.
OPINION AND ORDER
This matter comes before the Court on Plaintiff's Petition for Attorney Fees and Costs (#133) and Plaintiffs' Bill of Costs (#138). Plaintiff brought this diversity action alleging Defendant terminated him from his employment in violation of Or. Rev. Stat. § 659.550 in retaliation for Plaintiff's good-faith cooperation with a law-enforcement investigation of Defendant's alleged unlawful sale of used and damaged jewelry. Plaintiff prevailed following a jury trial. The jury awarded Plaintiff $30,000 economic damages, $93,750 non-economic damages, and $250,000 punitive damages.
For the reasons that follow, the Court GRANTS Plaintiff's Petition for Attorney Fees and Costs and Plaintiffs' Bill of Costs. Plaintiff is awarded attorneys' fees of $317,430 and costs of $11,255.12.
PLAINTIFF'S PETITION FOR AWARD OF ATTORNEYS' FEES
Plaintiff requests an award of $372,817.50 in attorneys' fees. Defendant argues no attorneys' fees should be granted and, alternatively, no more than $120,000 should be awarded.
STANDARDS
The parties agree a court looks to state law for the purpose of evaluating a request to award attorneys' fees in an action based on diversity jurisdiction. See Diamond v. John Martin Co., 753 F.2d 1465, 1467 (9th Cir. 1985) (federal courts apply state law concerning the allowance or disallowance of attorneys' fees in diversity actions). The parties also agree any such award of fees must be based on the factors codified in Or. Rev. Stat. § 20.075 (Factors to be considered by court in awarding attorney fees). A decision to award attorneys' fees is within the court's discretion. Ashley v. Garrison, 162 Or. App. 585, 592 n. 3, 986 P.2d 654 (1999). See also Or. Rev. Stat. § 20.075(3). The court is only authorized, however, to award reasonable attorneys' fees to a party. Or. Rev. Stat. § 20.075(4).
Section 20.075 mandates a two-step inquiry. First, under § 20.075 (1), a court must consider eight nonexclusive factors when deciding whether an award of attorneys' fees is warranted. See Preble v. Department of Revenue, 331 Or. 599, 602, 19 P.3d 335 (2001). If the court elects to award attorneys' fees pursuant to § 20.075(1), § 20.075(2) then requires the court to consider the factors identified in subsection (1) together with the eight factors set forth in subsection (2) when deciding the amount of any such award. McCarthy v. Oregon Freeze Dry, Inc., 327 Or. 185, 188, 957 P.2d 1200 (1998). A court satisfies the requirements of § 20.075 by including in its order a brief description of or citation to the factor or factors on which it relies when granting or denying an award of attorneys' fees. Id. A court is under no obligation to make findings about irrelevant or immaterial factual matters or legal criteria. Id.
DISCUSSION
1. In the Exercise of its Discretion, the Court Concludes Plaintiff Is Entitled to an Award of Attorneys' Fees Pursuant to Or. Rev. Stat. § 20.075(1) .
Plaintiff seeks an award of attorneys' fees because he prevailed at trial and because, according to Plaintiff, Defendant did not act in an objectively reasonable manner when it mounted and sustained an aggressive defense to Plaintiff's claims. Plaintiff argues Defendant initially determined it had no risk of being found liable; stated through counsel it would not settle; and then failed to re-evaluate the strengths and weaknesses of Plaintiff's claims in an objectively reasonable fashion even after pre-trial discovery developed evidence favorable to Plaintiff's case. Plaintiff further asserts Defendant was slow to produce documents and other required discovery, which caused extra and costly efforts by Plaintiff's counsel to obtain that to which Plaintiff was entitled.
Defendant correctly notes prevailing at trial is not sufficient by itself to justify an award of attorneys' fees. Moreover, Defendant contends it invited Plaintiff to make a reasonable settlement offer, Defendant considered and rejected Plaintiff's unreasonable settlement demand, and Defendant plainly explained the theory and basis of its defense to Plaintiff in the course of settlement discussions. Defendant argues Plaintiff's claims lacked merit under an objectively reasonable standard, and Plaintiff's March 27, 2000, pre-trial settlement demand of $720,000 was objectively unreasonable; therefore, Plaintiff has not established he is entitled to an award of attorneys' fees pursuant to § 20.075(1).
As noted, Or. Rev. Stat. § 20.075(1) requires the Court to consider eight nonexclusive factors in the exercise of its discretion to award attorneys' fees. The Court has evaluated all the statutory factors in the circumstances of this litigation as follows:
a. Factor (a) weighs in favor of an award.
Section 20.075(1)(a) requires a court to consider:
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.
In this matter, the jury found Defendant retaliated against Plaintiff for his good-faith cooperation with a law enforcement investigation and Defendant's conduct was sufficiently egregious to support an award of punitive damages. This factor weighs significantly in favor of an award not merely because Plaintiff prevailed on the merits, but because the jury found Defendant affirmatively culpable of misconduct in violation of Oregon public policy.
b. Factor (b) is neutral.
Section 20.075(1)(b) requires a court to consider:
The objective reasonableness of the claims and defenses asserted by the parties.
In this matter, Plaintiff's claim to recover under Oregon's Whistleblower statute, Or. Rev. Stat. § 659.550, was based on circumstantial evidence and required the trier-of-fact to evaluate Defendant's motives for discharging Plaintiff. While Plaintiff asserted he was discharged for making reports to and cooperating with the Oregon Attorney General's Office in its investigation of Defendant's business practices, Defendant contended Plaintiff's role in the investigation had no bearing on Defendant's termination of Plaintiff. The Court finds there was evidence to support the parties' opposing claims and defenses, and it was objectively reasonable for the litigants to proceed as they did. This factor, therefore, is neutral.
c. Factor (c) weighs in favor of an award.
Section 20.075(1)(c) requires a court to consider:
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.
There is no risk an attorneys' fee award to Plaintiff would deter others from pursuing good faith claims in similar circumstances; indeed, an award would promote the remedial purposes of the Oregon Whistleblower statute. The Court perceives, moreover, there is little risk that an award of attorneys' fees to a prevailing plaintiff would deter employer-defendants from asserting good faith defenses in similar cases. This factor, therefore, weighs in favor of an award.
d. Factor (d) does not apply.
Section 20.705(1)(d) requires a court to consider:
The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.
This factor does not apply in this matter because, as noted, neither party asserted meritless claims or defenses.
e. Factor (e) is neutral.
Section 20.705(1)(e) requires a court to consider:
The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.
Plaintiff and his attorneys went to extensive effort to discover and to assess the facts and applicable law. Likewise, Defendant conducted a tireless and thorough defense against Plaintiff's claims. The Court finds the parties and their attorneys acted in an objectively reasonable and diligent fashion during the proceedings and, therefore, nothing in their conduct tips the balance in favor of or against an attorneys' fee award. See Smith v. Lenches, No. 00-16582, slip op. 11905, 11918 (9th Cir. Aug. 30, 2001).
f. Factor (f) weighs in favor of an award.
Section 20.705(1)(f) provides:
The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.
Plaintiff made an itemized settlement demand of $720,000 in March 2000 and was willing to negotiate further. Plaintiff regularly pointed out to Defendant the risk of a large attorneys' fee award in the event of a verdict in Plaintiff's favor. Defendant made no pre-trial settlement offer, as was its right. While reasonable minds may differ as to the wisdom of Defendant's strategy in light of the jury's assessment of Defendant's conduct, Plaintiff's efforts in pursuing settlement weighs in favor of an award.
g. Factors (g) and (h) do not apply.
Sections 20.075(1)(g) and (h) require a court to consider:
(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.
Plaintiff did not request and the Court has not awarded a "prevailing party fee" pursuant to Or. Rev. Stat. § 20.190. The parties did not raise additional factors as appropriate for the Court to consider pursuant to § 20.075(1). These factors, therefore, do not apply.
Of the requisite factors, three weigh in favor of an attorneys' fee award, two are neutral, and three do not apply. Under the circumstances and in the exercise of its discretion, the Court concludes Plaintiff is entitled to an award of attorneys' fees pursuant to Or. Rev. Stat. § 20.275(1).
2. Plaintiff Is Entitled to an Award of $317,430 in Attorneys' Fees Pursuant to § 20.075(1) and (2)
To determine the amount of attorneys' fees to award under Oregon law, a court considers the factors in § 20.075(2) as well as the factors stated in § 20.075(1). Section 20.075(2) provides:
A court shall consider the factors specified in subsection (1) of this section in determining the amount of an award of attorney fees in any case in which attorney fees are authorized by statute and in which the court has discretion to decide whether to award attorney fees. In addition, the court shall consider the following factors in determining the amount of an award of attorney fees in those cases:
(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.
The amount Plaintiff seeks in attorneys' fees reflects 2,437.9 billable hours of work by his attorneys and 63.6 hours of work by legal assistants to prosecute this action from its inception through trial and entry of judgment. Plaintiff requests an award of fees based upon the following: Attorney John C. Moore, 52.5 hours at $195 per hour; Attorney Timothy C. Bennett, 1869.4 hours at $150 per hour; Attorney Tim Quennelle, 516 hours at $150 per hour; and Legal Assistants Judy Moore and Holly Lucas, 63.6 hours at $75 per hour.
Plaintiff asserts the hourly rates charged by his attorneys and their legal assistants are reasonable, and the effort expended by his attorneys and staff to prosecute this action was reasonable and necessary. Plaintiff acknowledges the amount of time his attorneys spent in pursuing this case is significant and his attorneys' fees are large; however, he argues the requested amount should be awarded because of the onerous burden of establishing sufficient proof of his whistleblower claim through circumstantial evidence, the need for extensive depositions and highly intensive document discovery, the aggressive defense mounted by Defendant, Defendant's refusal to extend a pre-trial offer of settlement, and the fact that Plaintiff prevailed at trial.
Defendant, however, contends Plaintiff's request for attorneys' fees is "per-se unreasonable" under the circumstances. Defendant argues this action involved a single, private plaintiff who sued a single, private defendant for no more than three "straightforward" state law claims, two of which were ultimately dismissed and were not submitted to the jury. If any amount is awarded, Defendant contends the attorneys' fees sought by Plaintiff should be reduced significantly "to bring them within the realm of reasonableness." Defendant maintains the hours billed by Plaintiff's counsel reflect "gross inefficiencies" and duplicative work by the lawyers working for Plaintiff. Additionally, Defendant asserts Plaintiff's lawyers billed for wholly ministerial acts for which no recovery should be allowed, such as transmitting correspondence by facsimile and personally hand-delivering filings to the Court.
Plaintiff submitted the Affidavit of Judy Danelle Snyder in Support of Motion for Attorneys' Fees, Costs, and Expenses. Snyder states the hours for which Plaintiff seeks recovery for work performed by Plaintiff's legal counsel and staff on Plaintiff's behalf are reasonable. Defendant submitted the Declaration of Paula A. Barran in support of Defendant's contention that Plaintiff's request for attorneys' fees is excessive. Barran states the time billed by Plaintiff's lawyers and staff constitutes "considerably more time than should have been spent on the case." The Court acknowledges Snyder and Barran are both seasoned, knowledgeable, and well-respected attorneys with significant experience in employment litigation in this community. Nevertheless, the Court must exercise its independent judgment when deciding the amount of a reasonable award of attorneys' fees to Plaintiff.
a. Factors under § 20.075(2)(a),(e), and (g)
After a thorough review of the record, the Court concludes, subject to the reductions noted below, the time and labor required of Plaintiff's counsel to conduct discovery, to participate in discovery motions, to craft a circumstantial case of liability against Defendant under Oregon's Whistleblower statute, to respond to Defendant's Motion for Summary Judgment, to prepare and to present evidence at trial in support of Plaintiff's whistleblower claim for retaliatory discharge, and to take part in post-verdict motion practice was generally reasonable and necessary under the circumstances. Barran states this action "does not appear . . . to be the kind of complicated case that would require the attorneys to spend so many hours." Snyder notes in her experience, however, whistleblower employment actions often require the review and evaluation by Plaintiff's counsel of "thousands of pages" of documentary evidence and the expenditure of substantial amounts of time in deposing the defendant's witnesses. She states this large amount of time is required both to establish the facts necessary to prove the plaintiff's claim and also to overcome the defendant's evidence in support of a legitimate, nondiscriminatory reason for the termination of plaintiff. In Snyder's view, this action "had all the elements that make these cases complex, time-consuming, and costly."
Defendant has presented a summary of hours billed by its Oregon and Washington attorneys for defending this action and maintains Plaintiff should only be awarded fees for the same amount of hours that Defendant's counsel spent in defending against this action. Defendant's hourly billing summary apparently does not include time billed by legal assistants and does not include time billed by Defendant's Colorado counsel. Defendant's summary also does not disclose the hourly rate charged by Defendant's lawyers. Given the incomplete information Defendant provided, the Court gives no weight to Defendant's argument that Plaintiff's attorneys' fee recovery should be limited to the amount of hours billed by Defendant's lawyers to defend this action.
The Court observes, moreover, it is ordinarily a more daunting task for a plaintiff to investigate, to evaluate, to assemble, and to present a circumstantial case of retaliatory discharge and then to satisfy the burden of proof than it is for a defendant to point out the insufficiencies of a plaintiff's claims and to defend against them. Defendant makes no suggestion that Plaintiff's counsel did not actually work the hours claimed, and the Court is satisfied that Plaintiff's Petition represents less hours than counsel actually worked.
The Court finds persuasive Plaintiff's contention that this action was challenging and difficult to prosecute. For example, attorney Tim Bennett asserts in his Affidavit that certain aspects of Defendant's litigation strategy precipitated "artificially and unexpectedly imposed" time limitations involving the production of documents and scheduling of depositions. Plaintiff also points out it was necessary for his attorneys to investigate, to discover, to evaluate, and to piece together disparate and seemingly unrelated evidence from numerous depositions and documents concerning the circumstances of Plaintiff's discharge; Defendant's personnel policies and their application; Defendant's business practices regarding merchandise exchanges and trade-ins; and Defendant's use of one or more document shredders at its Tigard, Oregon, facility. Plaintiff contends most of this relevant evidence and information was under Defendant's control. Defendant's defense that Plaintiff was discharged due to his long documented history of displaying a "negative and hostile attitude" also complicated the case and required significant effort for Plaintiff's counsel to defend against that attack.
Based on her review of file materials provided by Plaintiff's counsel, Snyder summarized the complexity of the action from Plaintiff's perspective as follows:
[T] here were numerous discovery disputes which required the assistance of the court to obtain resolution, defendant produced large quantities of documentary evidence, some of which were not produced until the eve of significant depositions; witnesses resided outside of the State of Oregon, thus requiring plaintiff's counsel to incur substantial costs and expenses to procure the testimony of those witnesses through deposition and requiring that plaintiff's counsel's time be invested in traveling to and from depositions; defendant was represented by two separate law firms . . each of whom have substantial experience in defending employment cases.
Snyder also stated Plaintiff's lawyers are experienced litigators with "demonstrated experience in employment litigation." The Court agrees Plaintiff's counsel demonstrated the requisite skill necessary to properly perform required legal services in the prosecution of Plaintiff's action consistent with the skill level of an attorney with about eight years of practice experience. Accordingly, based on the foregoing, the Court finds the factors set forth in § 20.075(2)(a), (e), and (g) support the Court's award of attorneys' fees to Plaintiff in the amount set out below.
b. Factor under § 20.075(2)(b)
Frequent meetings and conferences with Plaintiff and the general prosecution of Plaintiff's case consumed significant amounts of time by Plaintiff's counsel and precluded Plaintiff's lawyers from accepting other potential cases. Attorney Moore testified in his Affidavit that the law firm resources of Plaintiff's attorneys were "substantially stretched by this case-both financially and time wise." Indeed, during the course of the litigation, Defendant's counsel warned the "substantial factual and legal hurdles" facing Plaintiff would require "a great devotion of time, effort and expense" by Plaintiff's lawyers. The Court concludes, therefore, the factor set-forth in § 20.075(2)(b) supports the Court's award of attorneys' fees in the amount set out below.
c. Factor under § 20.075(2)(c)
Snyder stated the rates charged by Plaintiff's lawyers and legal assistants are reasonable. She also stated the rates charged by attorneys Tim Bennett and Tim Quenelle are "well under market." The Court agrees. According to his Affidavit, Attorney Bennett charges clients $150.00 per hour. Attorney Quenelle stated in his Affidavit about one-half of his caseload includes work for long-term clients billed at $150.00 per hour, with the remainder of his practice involving contingency-fee work related to personal injury and employment issues. Additionally, Attorney John Moore affirmed ninety-five percent of his professional work over the past three years was for clients who paid an hourly rate of $195.
Based on her knowledge of the skills and experience of Plaintiff's lawyers and the rates charged in the Portland, Oregon, area, Snyder opined an attorney with the skill, experience, and reputation comparable to Plaintiff's counsel would "command an hourly rate of $175.00 to $225 per hour." Barran expressed no opinion concerning whether the hourly rates charged by Plaintiff's counsel and staff are reasonable.
The Court finds the hourly rates charged by Plaintiff's attorneys properly reflect their experience level and years of practice and are at the low end of the range of fees customarily charged in this locality for similar legal services. The factor set forth in § 20.075(2)(c), therefore, supports the Court's award of attorneys' fees in the amount set out below.
d. Factors under § 20.075(2)(d)
Plaintiff initially sought to recover in excess of $2,000,000 in this action and the jury ultimately awarded him compensatory and punitive damages totaling $373,750. In Snyder's experience, the amount of damages the jury awarded Plaintiff is "in the upper 5 to 10% of plaintiff's employment verdicts in the State of Oregon." Snyder opined, "[P]laintiff's counsel achieved a substantial victory on behalf of plaintiff by not only prevailing on [Plaintiff's] whistle-blower claim but by receiving a substantial award of damages." The Court finds the amount involved and the results obtained in this litigation support the Court's award of attorneys' fees in the amount set out below. See § 20.075 (2)(d)
e. Factors under § 20.075(2)(f)
Attorney Tim Quenelle was contacted by Plaintiff shortly after his discharge. Quenelle developed and maintained a supportive relationship with Plaintiff throughout the litigation which, according to Quenelle, "played a significant role in Plaintiff's overall success," particularly in light of Plaintiff's stress level during the action, Plaintiff's generalized suspicion of the legal system, and Defendant's unrelenting defense effort. Since April 1999, Plaintiff has reportedly developed a strong relationship of trust with his attorneys. Accordingly, the Court finds the factors codified in § 20.075(f) support the court's award of attorneys' fees in the amount set out below.
f. Factors under § 20.075(2)(h)
Plaintiff states his attorneys are representing him in this matter on a contingency-fee basis. In his Affidavit, Attorney Tim Bennett asserts Defendant took into account that this was a contingency-fee case when it mounted and sustained a vigorous defense against Plaintiff's action.
Snyder opines "whistle-blower and civil rights cases require the investment of hundreds of hours of the plaintiff's attorney's time, for which the attorneys customarily are not compensated until the conclusion of the litigation." Snyder points out such claimants are usually unemployed and are "only able to hire a lawyer on a contingency basis." Moreover, she notes there is ordinarily "no way to obtain a remedy for the client until all of the discovery has been concluded and a substantial amount of time and costs has been invested in the evaluation of the case." Snyder also observes, "Although the amount of damages which may be awarded to the plaintiff is often unpredictable, the attorney, nevertheless, has to perform virtually all of the same services regardless of the amount of the anticipated verdict." Furthermore, with respect to the characteristics of an employment-law practice, Snyder states substantial time "is customarily uncompensated, such as engaging in numerous consultations with potential clients, few of whom can afford to pay an attorney for the consultation at an hourly rate, in order to identify those cases which have merit and justify initiating litigation with the knowledge that years may pass, hundreds of hours of attorneys' time will be invested and thousands of dollars of out-of-pocket costs will be incurred before there is any possibility of compensation." Plaintiff argues Barran, in contrast, fails to address "the billing practices of small firms representing a mixture of contingent and hourly work with staffing resources and billing rates not comparable to" mid-size and large defense firms when she states Plaintiff's counsel devoted too much time to this case.
The Court concludes Plaintiff's attorneys undertook a significant risk of recovering nothing when they accepted this matter on a contingency-fee basis; on the other hand, Plaintiff's attorneys must have calculated the prospects for a recovery by Plaintiff were favorable enough to proceed anyway. Although existence of a contingency-fee arrangement is an element to consider, "[i]t would be anomalous for courts to discourage contingent fee arrangements by allowing the recovery of fees when such arrangements are absent and denying recovery when they are present." Buxton v. Patel, 595 F.2d 1182, 1185 n. 3 (9th Cir. 1979). Moreover, Plaintiff's counsel deferred payment, if any, pending the resolution of this matter through trial and appeal. Accordingly, the Court finds the factor contained in § 20.075(h) supports the amount of Plaintiff's request for attorneys' fees subject to reductions itemized below.
g. § 20.075(1) Factors Revisited
Revisiting § 20.075(1), the Court finds the factors set forth in § 20.075(1)(a), (c), and (f) support the Court's award of attorneys' fees to Plaintiff in the amount set out below for reasons previously discussed. Also as noted above, the Court views the factors in § 20.075(1)(b) and (e) as neutral. Finally, the Court considered but did not rely on the inapplicable factors that are contained in § 20.075 (1)(d) and (g).
h. Additional Factors under § 20.075(1)(h)
When determining the amount of attorneys' fees to award, pursuant to § 20.075(1)(h) the court also may take into account such other factors as the court may consider appropriate. Accordingly, the Court considers the following factors:
(1) Voluntary Reductions
Plaintiff's counsel voluntarily reduced Plaintiff's attorney's fee claim; therefore, Plaintiff's petition for attorneys' fees reflects an amount less than the fees actually generated in prosecuting this action. For instance, Attorney Tim Quenelle excluded 48.4 hours of time he worked on the case, and Attorney Tim Bennett reduced his fee request by "approximately 105" hours of time he worked on the case. Such time was reduced because it was "either inefficient and duplicative, purely administrative, or exclusively devoted to the good faith and fair dealing claim which was dismissed." Additionally, Plaintiff has not submitted a request to be awarded "fees on fees" for his attorneys' time in preparing Plaintiff's Petition for Attorney Fees and Costs and Bill of Costs. Plaintiff estimates his attorneys spent approximately 40 hours preparing Plaintiff's application for fees and costs. Thus, on their own initiative, Plaintiff and his counsel excluded approximately 193.4 hours of time and fees. At the rate of $150 per hour, Plaintiff's voluntary reductions are valued at $29,010.00.
(2) In-house Conferences and File Reviews
Defendant asserts there are at least 298 redundant and inefficient billing entries for in-house conferences simply to talk about the case. Defendant also asserts there are at least 86 enigmatic billing entries by various legal professionals for "reviewing the file" without a stated reason. Defendant has not tallied the dollar amount or hourly figure such entries represent nor has Defendant requested a specific reduction to correct such allegedly questionable entries. The Court concludes Defendant could easily have identified the dates of the disputed entries and the gross amounts billed in blocks of time for such entry dates. Accordingly, the Court declines to deduct any amount for such entries because Defendant has not sufficiently identified the in-house conference or file review entries to which its critical comments are directed.
(3) General Research
Defendant also challenges the amount of time Plaintiff's attorneys devoted to general research on substantive issues and claims. Defendant contends the general research time must be reduced because it is excessive or duplicative. The Court has considered Defendant's argument and reviewed the relevant time entries. The Court concludes the following time entries were appropriately descriptive, and no reduction is warranted: 6.2 hours on 04/08/99, 3.2 hours on 04/29/99, and 1.8 hours on 08/26/99.
The Court determines, moreover, an across-the-board reduction of twenty-five percent is justified on the following block-billing entries because they are insufficiently descriptive and they do not break down the time spent on each task nor account for the potential of inefficiencies and duplication: 3.5 hours on 04/06/99, 2.5 hours on 04/07/99, 1.9 hours on 04/08/99, 2.5 hours on 04/13/99, 1.4 hours on 04/19/99, 5.5 hours on 04/30/99, 4.5 hours on 05/17/99, 2.7 hours on 05/21/99, 1.3 hours on 05/25/99, 7.5 hours on 05/26/99, 5.9 hours on 06/01/99, 4.8 hours on 06/10/99, 1.2 hours on 07/02/99, 1.3 hours on 07/08/99, 7.0 hours on 07/09/99, 1.8 hours on 07/22/99, 3.2 hours on 08/19/99, 3.1 hours on 08/23/99, 1.6 hours on 08/26/99, and 2.7 hours on 03/13/00. The Court, therefore, reduces Plaintiff's requested attorneys' fees by the amount of $2,475.00 (i.e., 65.9 hours multiplied by .25 percent equals 16.5 hours at $150 per hour)
(4) Response to Defendant's Motion for Summary Judgment
Defendant contends Plaintiff's counsel spent the following excessive number of hours preparing a response to Defendant's July 28, 2000, Motion for Summary Judgment in addition to general research up to that point: Attorney Bennett, 139.7 hours, and Attorney Quenelle, 25.7 hours. In his Reply, Plaintiff did not address this issue. The Court agrees billings by Plaintiff's attorneys that reflect 165.4 hours devoted to preparing a response to Defendant's Motion appear excessive. Without any specific justification for such excess, the Court reduces Plaintiff's requested attorneys' fees in this category by twenty-five percent or $6,210.00 (i.e., 165.4 multiplied by .25 equals 41.4 at $150 per hour).
(5) Depositions
Defendant asserts Plaintiff's attorneys were excessively inefficient when preparing for, researching, and completing work related to depositions. The Court has reviewed the billing entries identified by Defendant and finds the following time entries are not overly duplicative: 6.9 hours on 02/24/00 and 9.6 hours on 02/25/00. The Court, however, reduces the following time entries due to apparently unnecessary, duplicative work by Plaintiff's attorneys: 1.0 hour on 06/04/99, 1.0 hour on 06/09/99, 2.0 hours on 07/14/99, 1.0 hour on 07/29/99, 2.0 hours on 08/05/99, 1.0 hour on 08/19/99, 1.0 hour on 08/23/99, 12.4 hours on 08/24/99, 11.2 hours on 08/25/99, 3.8 hours on 03/02/00, 2.8 hours on 03/06/00, 1.5 hours on 03/30/00, and 1.0 hour on 04/04/00. Such reductions equal $6,255.00 (i.e., 41.7 hours multiplied by $150 per hour).
Attorney Tim Quenelle billed 13.4 hours on 08/24/99 and 12.2 hours on 08/25/99 primarily to "[p]repare for and attend defendant witness depositions," tasks for which attorney Tim Bennett also charged. The Court concludes it was not reasonable or necessary for both of Plaintiff's attorneys to charge for attending these depositions; therefore, a reduction is made for those billings.
In addition, Defendant maintains Plaintiff's lawyers were extremely inefficient in spending 523.6 hours to complete depositions and related work. The Court agrees there is an appearance of inefficiency. The Court, therefore, concludes an additional across-the-board reduction of twenty percent is appropriate, for a total of $14,460.00 (i.e., 523.6 hours minus 41.7 hours equals 481.9 hours multiplied by .20 equals 96.4 hours at $150 per hour).
(6) Trial Preparation and Trial
Defendant contends Plaintiff's lawyers and their legal assistants spent an unreasonably large amount of time on trial preparation and trial work. For example, Defendant argues Plaintiff's counsel spent an inordinate number of hours preparing jury instructions and a verdict form. The Court agrees there was inefficiency and redundancy in this effort. The Court, therefore, makes the following time deductions for the entries identified by Defendant: 1.0 hour on 12/18/00, 1.0 hour on 12/19/00, 1.0 hour on 12/29/00, and 1.0 hour on 01/03/01. Accordingly, the Court reduces Plaintiff's request for attorneys' fees by $600.00 (i.e., 4 hours at $150 per hour).
Defendant also complains the legal assistants' billing entries for trial work "are incomprehensible." Specifically, Defendant notes a number of entries simply state "work for client in relation to trial preparation." Some time entries also state "work for client in relation to exhibits and trial." The Court agrees such block-billing entries are insufficiently descriptive of the work performed. Accordingly, the Court concludes the following across-the-board reduction of twenty-five percent is warranted in the time billed by the legal assistants due to the potential for inefficient work by them relating to trial: 2.4 hours on 12/18/00, 3.5 hours on 12/20/00, 4.5 hours on 12/21/00, 5.0 hours on 12/22/00, 4.0 hours on 12/26/00, 4.0 hours on 12/27/00, 2.5 hours on 12/28/00, 8.0 hours on 01/05/01, 3.5 hours on 01/06/01, and 7.5 hours on 01/08/01. The Court, therefore, reduces Plaintiff's request for legal assistants' fees by $847.50 (i.e., 44.9 hours multiplied by .25 equals 11.3 at $75 per hour).
Defendant further asserts Plaintiff was not justified in having two attorneys from one law firm prepare for and participate at trial. The fact that two attorneys prepare a case for trial does not mean unnecessary work is being performed. Indeed, it may have taken one attorney just as many hours as it took two combined to perform the tasks at hand. The Court agrees, however, it was not reasonably necessary for two attorneys to attend and to bill for being present at the entire trial on Plaintiff's behalf.
Attorneys Bennett and Quenelle both were present throughout the trial. Attorney Bennett presented Plaintiff's case; however, Attorney Quenelle did not sit at counsel table and did not examine witnesses. The Court, therefore, reduces Plaintiff's request for attorneys' fees by $5,400.00 for the following time entries by Attorney Quenelle: 9.0 hours on 01/09/01, 9.0 hours on 01/10/01, 9.0 hours on 01/11/01, and 9.0 hours on 01/12/01 (i.e., 36 hours at $150 per hour). In addition, Defendant contends Plaintiff's lawyers over-billed for trial preparation. Defendant argues 590.2 hours of attorney time for trial preparation and trial is excessive for this action. The Court agrees this is an apparently excessive sum that probably resulted from duplicative and inefficient work. The Court concludes an across-the-board reduction of twenty percent in the time entries relating to trial and trial preparation is warranted (after the reductions in attorney time for trial and trial preparation noted above are taken into account). The Court, therefore, reduces Plaintiff's request for attorneys' fees by $16,515.00 (i.e., 590.2 hours less 40 hours equals 550.2 hours multiplied by .20 equals 110.1 at $150 per hour).
(7) Administrative Tasks
Defendant also maintains there are inappropriate "administrative billings" by Plaintiff's attorneys. For instance, Defendant contends Plaintiff billed for clerical tasks such as hand-delivering filings to the court, organizing the file, preparing cost reports regarding out-of-state trips, and corresponding with process servers and a copier service.
The Court finds no reduction is warranted in the following time entries identified by Defendant: 1.4 hours on 04/19/99, 4.1 hours on 02/23/00, 5.7 hours on 03/27/00, and 5.3 hours on 03/30/00. Nevertheless, the Court finds the following time reductions for traveling to the federal courthouse and filing pleadings are appropriate: 1.5 hours on 04/12/99, 1.5 hours on 06/10/99, 1.5 hours on 08/18/99, 1.5 hours on 03/23/00, 1.5 hours on 08/07/00, 1.5 hours on 08/18/00, and 1.5 on 09/29/00. The following time spent by Plaintiff's attorneys to organize files is also deducted: .3 hour on 05/07/99, .3 hour on 06/21/99, .3 hour on 08/17/99, and .3 hour on 08/27/99. The Court also finds the following reductions are appropriate for time billed by Plaintiff's attorneys for administrative tasks relating to out-of-state travel: .3 hour on 03/27/00, and .6 hour on 08/08/00. Such reductions total $1,890.00 (i.e., 12.6 hours at $150).
(8) Review of Other Case Files
Defendant also argues Plaintiff's attorneys spent an unreasonable amount of time reviewing other cases with issues similar to those raised by Plaintiff. Defendant asserts the heightened efficiency expected in the preparation and presentation of Plaintiff's claims from such extensive review was conspicuously absent. Having reviewed the disputed time entries Defendant identified, the Court finds an across-the-board time reduction of twenty percent is justified due to the probability of inefficiency and excessive file review: 2.8 hours on 06/15/99, 5.0 hours on 07/30/99, 6.5 hours on 10/02/00, and 10 hours on 10/17/00. Accordingly, the Court reduces Plaintiff's request for attorneys' fees by $735.00 (i.e., 24.3 hours multiplied by .20 equals 4.9 at $150 per hour).
In summary, the Court reduces Plaintiff's request for attorneys' fees by the following amounts: $2,475 incurred for preliminary general research; $6,210 generated in responding to Defendant's Motion for Summary Judgment; $20,715 for deposition-related work; $23,362.50 for trial preparation and trial; $1,890 for administrative billings; and $735 for review of other case files.
The Court, therefore, awards attorneys' fees to Plaintiff in the amount of $317,430. The Court concludes a fee in this sum, although significant, nevertheless is reasonable under all the circumstances. As it happened, the primary consequence of Defendant's very diligent defense was even more effort on the part of Plaintiff's counsel for which the Court now permits Plaintiff to recover. This does not mean, however, counsel for either side did anything wrong. As the Ninth Circuit recently observed:
All parties' counsel in this case have taken actions that were appropriate in light of their responsibility zealously to represent their clients' interests. All of this conduct by all counsel involved to us shows good lawyering on both sides and not bad faith on either side.Smith v. Lenches, No. 00-16582, slip op. 11905, 11918 (9th Cir. Aug. 30, 2001)
PLAINTIFF'S BILL OF COSTS
Costs generally are awarded to the prevailing party in a civil action as a matter of course unless the Court directs otherwise. Fed.R.Civ.P. 54(d). The Court must limit an award of costs to those defined in 28 U.S.C. § 1920. Haagen-Dazs Co., Inc. v. Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987)). See also In re Melridge, Inc. Securities Litigation, 154 F.R.D. 260, 261 (D. Or. 1994). Nevertheless, courts are free to construe the meaning and scope of the items enumerated as taxable costs under § 1920. Frederick v. City of Portland, 162 F.R.D. 139, 142 (D. Or. 1995) (citations omitted).
1. "Federal Costs"
Plaintiff seeks $9,642.65 as "federal costs." Defendant objects only to Plaintiff's request for the cost of deposition transcripts of the following witnesses: John Wegman, $177.40; Noel Suhlman, $423.10; and Price Blanchard, $516.30. Defendant argues these witnesses provided no relevant information, and their depositions were not used at trial. In his Reply, Plaintiff did not comment on Defendant's objections. Costs are allowable for "all or any part of the stenographic transcript necessarily obtained for use in the case." 28 U.S.C. § 1920 (2). If a deposition was taken for discovery purposes and was reasonably necessary when taken, the costs of that deposition may be taxed even though it was not introduced at trial. Frederick, 162 F.R.D. at 143 (citation omitted). The Court finds Plaintiff's counsel conducted the depositions of these witnesses with a good faith belief that such depositions were necessary. The Court concludes, therefore, Plaintiff reasonably and necessarily incurred the costs of obtaining these deposition transcripts "for use in the case." Accordingly, Plaintiff is awarded $9,642.65 on its Bill of Costs.
2. "State Costs"
Plaintiff also requests an additional award of $3,757.46 for "state costs and disbursements" incurred but not included in the hourly rates of Plaintiff's attorneys. Plaintiff's supplemental cost requests are comprised of the following expenses: $267.87 for in-house photocopies, $86.05 for retrieving medical records to produce to Defendant, $1,481.42 for the cost charged by Defendant for photocopying and shipping copies of Defendant's business documents, $1691.12 for travel expenses relating to out-of-state depositions, $125.00 for parking expenses while in trial, $45.00 for trial subpoenas, $45.00 for expedited process service, and $16.00 for witness location fees. Defendant disputes the following supplemental requests by Plaintiff: reimbursement for Defendant's charge for photocopying and providing business documents to Plaintiff, expedited delivery of subpoenas, and witness-location fees.
Plaintiff contends it should be awarded costs under general state law in addition to costs requested under § 1920. Defendant does not address the issue. As noted, however, the Court must limit cost awards to the costs defined in § 1920. See In re Melridge, 154 F.R.D. at 261.
Photocopying costs are recoverable to the extent such copies were "necessarily obtained for use in the case." 28 U.S.C. § 1920 (4). See also Frederick, 162 F.R.D. at 144 (citation omitted). The Court finds Plaintiff is entitled to recover $1,481.42 incurred to obtain copies of Defendant's business records and $86.05 to retrieve medical records. Such print-related costs were reasonable and necessary "for use in the case." In-house photocopies made for the convenience of counsel, however, are not generally taxable as costs. 162 F.R.D. at 144. The Court, therefore, concludes an award of $267.87 for in-house photocopying by Plaintiff's counsel is not justified.
Attorneys' travel expenses incurred in attending depositions and trial are not recoverable as costs. See Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. 415, 418 (N.D. Tex. 1997) (citations omitted). Plaintiff's request for $1,816.12 in attorneys' travel and parking costs, therefore, is disallowed.
Private process-servers fees are "properly taxed as costs" pursuant to § 1920(1). Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 178 (9th Cir. 1990), cert. denied, 502 U.S. 812 (1991). Accordingly, the Court allows Plaintiff's request for $45.00 for the cost of service of a trial subpoena. Plaintiff has provided no reason for incurring an expedited service charge, however, and that request is disallowed.
Although the Court has discretion to award fees for witnesses pursuant to § 1920(3), Plaintiff has not established the need for a witness-location fee of $16.00 nor given a reason for incurring that cost; therefore, it is disallowed.
In summary, the Court reduces Plaintiff's request for extra expenses under state law by the following amounts: $267.87 for in-house photocopying; $1,816.12 for attorneys' travel and parking costs; $45 for expedited service of a trial subpoena; and $16 for a witness location fee. Accordingly, the Court allows Plaintiff's supplemental request for state costs and disbursements pursuant to 28 U.S.C. § 1920 in the amount of $1,612.47.
CONCLUSION
Based on the foregoing, Plaintiff's Petition for Attorney Fees and Costs (#133) is GRANTED. Plaintiff is awarded attorneys' fees of $317,430. Plaintiff's Bill of Costs (#138) is also GRANTED. Plaintiff is awarded costs of $11,255.12. A supplemental judgment shall issue forthwith.
IT IS SO ORDERED.