Wells Fargo Bank, N.A., v. Willoughby, et al

Filing 36

ORDER: Plaintiff's Motion for Attorney's Fees and Costs 33 is granted. Plaintiff is awarded $15,622.50 in attorney's fees and $560 in costs. See formal ORDER. Signed on 2/23/2016 by Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
WELLS FARGO BANK, N.A.,
Plaintiff,

Case 1:15-cv-129-AA

vs.
ORDER
LEROY WILLOUGHBY, et al.,
Defendants.
AIKEN, Chief Judge:
Plaintiff Wells Fargo Bank brings this action against Defendant LeRoy
Willoughby to recover money lost because of a check-cashing scam. This court granted
Plaintiffs motion for summaty judgment on three of its claims, including its claim for
breach of contract, and entered judgment awarding Plaintiff $97,448.99 in damages.
Plaintiff now moves for an award of attorney's fees and costs. I grant the motion
and award Plaintiff$15,622.50 in attorney's fees and $560 in costs.

1 - ORDER

BACKGROUND

When Defendant opened an account with Plaintiff, he entered into a contract with
Plaintiff that provided, "You agree to reimburse us for our costs and expenses (including
attorney's fees) incmTed in any action that we bring against you concerning your account
and in any lawsuit instituted by you against us where we are the prevailing party."
Sheffield Deel., Ex. 1, at 19 (copy of agreement), ECF No. 20.
DISCUSSION
I. State Law Applies to the Award of Attorney's Fees

In its motion for attorney's fees, Plaintiff cites Voltage Pictures, LLC v. Smith,
No. 6:14-cv-1193-AA, ECF No. 22 (D. Or. Feb. 15, 2015). But Voltage Pictures was a
copyright infringement action arising under federal question jurisdiction, so this court
applied federal law in calculating the amount ofreasonable attorney's fees. See id at 4
(citing 17 U.S.C. § 505 as authorizing an award of fees). Here, because Plaintiffs state
law breach of contract claim is under this court's diversity jurisdiction, state law applies
to the determining entitlement to attorney's fees and to the calculation of a reasonable
attorney's fee. See Alaska Rent-A-Car v. Avis Budget Group, Inc., 738 F.3d 960, 973 (9th
Cir. 2013).
II. Colorado Law Applies

In an action arising under diversity jurisdiction, the federal comt applies "the
choice-of-law rules of the forum state." Coneff v. AT & T Corp., 673 F.3d 1155, 1161
(9th Cir. 2012). Under Oregon choice-of-law provisions, the state law chosen by the
pmties to control the substantive issue under dispute also controls the issue of attorney's

2 - ORDER

fees, unless doing so would circumvent a fundamental public policy of Oregon law.

Fiedler v. Bowler, 117 Or. App. 162, 166, 843 P .2d 961, 963 (1992).
Here, Defendant opened the account and executed the contract with Plaintiff at a
bank in Pueblo, Colorado. The contract provides that Colorado law applies. See
Sheffield Deel., Ex. 1, at 20 ("To the extent state law applies to our deposit relationship,
the applicable law is the law of the state where your account was opened"). I see no
conflict with any fundamental policy of Oregon law, so I will apply Colorado law.

III. Plaintiff Is Entitled to Reasonable Attorney's Fees
Colorado law provides that if parties to a contract agree to a fee-shifting
provision, the prevailing party is entitled to recover its attorney fees and costs. Morris v.

Bel/or USA Grp., Inc., 201P.3d1253, 1259 (Colo. App. 2008). Here, Plaintiff prevailed,
so it is entitled to attorney's fees incurred.
Defendant has not responded to Plaintiffs motion for attorney's fees and costs.
Nonetheless, this court must ensure that any award of attorney's fees is reasonable. See

Agritrack, Inc. v. DeJohn Housemoving, Inc., 25 P.3d 1187, 1191-92 (Colo. 2001)
(affirming award of "reasonable" attorney's fees when fee-shifting provision provided that
the liable party would be "responsible for all attorney's fees, costs, and interest").

IV. Amount of Attorney's Fees
Under Colorado law, the court first calculates the lodestar amount, that is, the
"number of hours reasonably expended on the case, multiplied by a reasonable hourly
rate." S. Colo. Orthopaedic Clinic Sports Medicine and Arthritis Surgeons, P.C. v.

Weinstein, 343 P.3d 1044, 1049 (Colo. App. 2014) (quotation marks and citation
3 - ORDER

omitted). Here, Plaintiff requests $16,890 for attorney's fees, the lodestar amount
without adjustments. The comt "has discretion to make upward or downward
adjustments to the lodestar amount" based on the factors listed in Colorado Rule of
Professional Conduct (RPC) 1.5(a). Id. Those factors are:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
paiticular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the ainount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
RPC 1.5.

A. Hourly Rates
Plaintiff was represented by three attorneys based in Medford, Oregon. Joseph
Kellerman, with 23 years' experience, billed at $275 per hour; Charles Bolen, with 19
years' experience, billed at $225 per hour; and Eric Mitton, with 9 years' experience,
billed at $200 per hour. I find that the hourly rates billed by the three Oregon attorneys
are reasonable in light of their experience and location. See Mitton Deel., Ex. 2 (Or. St.
Bar 2012 Economic Survey).
Plaintiff was also represented by two attorneys based in Pasadena, California.
Robert Bailey, with 17 years' experience, billed at $340 per hour; and Christopher Can,
billed at $320 per hour. Plaintiff seeks fees for Juana Mirguia, appai·ently a paralegal,
billed at $110 per hour.

4 - ORDER

Plaintiff states that Bailey worked with Bolen in drafting the motion for summaty
judgment. Plaintiff describes the summaty judgment motion as "involv[ing] complex
considerations regarding attributing blame for financial fraud when the primary
perpetrator is unknown and not a party to the case." But I do not see this as a particularly
difficult breach of contract action, and the opposing party was not an attorney. It is not
clear on this record why Plaintiff l'equired the services of out-of-state attorneys. Plaintiff
has not "provide[d] sufficient evidence that this case involved such uniquely complex or
esoteric issues to justify ... a significant upward deviation from the fees customarily
charged in this locality for similar legal services." Home Loan Inv. Co. v. St. Paul

Mercury Ins., 78 F. Supp. 3d 1307, 1317 (D. Colo. 2014) (applying Colorado law). I
find that a reasonable hourly rate for Bailey, given his experience, is the rate billed by
Kellerman, $275. Carr, who is a partner in the same firm as Bailey, seeks an hourly rate
$20 less than Bailey's, so I find that $255 is a reasonable rate for Carr. I also find that
$115 is reasonable for Mirguia, the paralegal.

B. Number of Hours
Plaintiff succeeded on its claims. I agree with Plaintiff that its attorneys "quickly
and efficiently resolved" this action. I find that the number of hours requested by
Plaintiff is reasonable.
I also agree with Plaintiff that there is no reason to adjust the lodestar amount in
either direction. I award of a total of$15,622.50 in attorney's fees, reflecting the
reduction in hourly rates for Bailey and Carr.

5 - ORDER

V. Costs
Costs "should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(l). Rule
54 creates a presumption in favor of awarding costs to the prevailing party. Kaufinan v.
Geico Indem. Co., No. 3:13-cv-01932-HZ, 2015 WL 5167248, at *1 (D. Or. 2015).
Costs taxable under Rule 54(d) must be authorized by 28 U.S.C. §§ 1920 and 1821. Id
"The district court retains broad discretion to decide how much to award, if anything."
Id
I find that Plaintiffs total requested costs of $560 for filing fees and process
serving fees is reasonable and authorized.

CONCLUSION
Plaintiffs Motion for Attorney's Fees and Costs (#33) is granted. Plaintiff is
awarded $15,622.50 in attorney's fees and $560 in costs.
IT IS SO ORDERED.

pD

DATED thisnday ofFebrmuy, 2016.

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1(/1/V)

AnnAiken
United States District Judge

6 - ORDER