Quesnoy v. State of Oregon, Department of Corrections et al
Filing
163
OPINION AND ORDER. Plaintiff's Motion for Supplemental Award of Attorney's Fees and Award of Additional Interest (ECF # 153 ) is granted in the amount of $112,422.36. IT IS SO ORDERED. Signed on 10/17/2018 by Magistrate Judge Youlee Yim You. (pvh)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
SANDRA QUESNOY,
Plaintiff,
Case No. 3:10-CV-01538-YY
v.
OPINION AND ORDER
STATE OF OREGON, DEPARTMENT
OFCORRECTIONS; CAPT. HELPER, in his
individual capacity; MARY RAINES, in her
individual capacity; and ELIZABETH
SUZANNE SAZIE, M.D., in her individual
capacity,
Defendant.
YOU, Magistrate Judge:
Before the court is plaintiff Sandra Quesnoy’s Motion for Supplemental Award of
Attorney’s Fees and Award of Additional Interest. For the reasons set forth below, plaintiff’s
motion is granted in the amount of $112,422.36.
BACKGROUND
Plaintiff suffered a violation of her civil rights while incarcerated for a property crime at
Coffee Creek Correctional Institution in 2009. She attained partial victory at trial in February
2012 on claims under 42 USC § 1983, the Americans with Disabilities Act, and Oregon
disability laws, and the jury awarded her $50,000. Judgment, ECF #120. The court then
1 – OPINION AND ORDER
awarded plaintiff’s attorney, Katelyn S. Oldham (Oldham), $121,970.20 in attorney’s fees and
costs, compensating Oldham at an hourly rate of $275 per hour. Opinion and Order 16, 21, ECF
#136; Supplemental Judgment, ECF #137.
Because plaintiff owed the State of Oregon substantial restitution on her criminal
conviction, the Oregon Department of Revenue (ODR) filed a writ of garnishment for the
Judgment. ODR also issued a writ of garnishment for the Supplemental Judgment, against
Oldham’s objection. Oldham filed a notice of attorney-fee lien with this court and challenged
both writs through a state administrative proceeding.
An administrative law judge (ALJ) rejected plaintiff’s challenges and entered a Final
Order in ODR’s favor. Plaintiff appealed the Final Order to the Oregon Court of Appeals. The
American Civil Liberties Union (ACLU) and the Oregon Trial Lawyers Association (OTLA)
filed amicus briefs in her support. Several months later, the ALJ sua sponte withdrew the Final
Order. The ALJ thereafter issued a Final Order on Reconsideration, finding that the prior order
was partly in error and that ODR’s attempt to garnish the Supplemental Judgment violated the
Supremacy Clause of the United States Constitution.
Plaintiff continued to challenge the garnishment against the Judgment in the Oregon
Court of Appeals. On June 28, 2017, the Oregon Court of Appeals issued an opinion in Quesnoy
v. Department of Revenue, 286 Or. App. 359 (2017), affirming that garnishment.
In September 2017, plaintiff filed a fee petition and bill of costs with the Oregon Court of
Appeals seeking attorney’s fees and costs related to the garnishment of the Supplemental
Judgment. She also filed a “Motion to Reopen Case to File Supplemental Fee Petition and Cost
Bill and to Address Interest Rate Owed” in this case. ECF #140. The state filed an opposition to
2 – OPINION AND ORDER
the fee petition, asserting that no statutory or other legal basis allowed for such an award. On
February 22, 2018, the Oregon Court of Appeals denied plaintiff=s request for attorney’s fees.
This court granted plaintiff’s motion and re-opened this case in May 2018, finding that an
award for attorney’s fees expended in collecting a judgment for fees awarded under § 1983 was
proper. Order 5-6, ECF #150; see also Spain v. Mountanos, 690 F.2d 742, 746 (9th Cir. 1982)
(“We agree with the Fifth Circuit that a state cannot frustrate the intent of section 1988 by setting
up state law barriers to block enforcement of an attorney’s fees award.”). As this court
previously held, time spent by counsel in establishing the right to attorneys’ fees is compensable.
See Order 5-7, ECF #150. Plaintiff subsequently filed a supplemental fee petition relating to
recovery of the Supplemental Judgment and seeking additional interest for the time that ODR
withheld the Supplemental Judgment. ECF #153.
DISCUSSION
I.
Postjudgment Interest on the Supplemental Judgment
Defendants remitted $121,970.20, the entirety of the Supplemental Judgment, and
$2,895.48 in interest,1 on April 3, 2014, 728 days after the court awarded the Supplemental
Judgment. Plaintiff claims she is owed additional interest for the nearly two-year delay.
Defendants agree, but dispute which interest rate applies. Plaintiff argues that the Oregon state
law interest rate of 9% applies and that she is owed an additional $18,995.48. See ORS
82.010(2). Alternatively, she argues that if the federal interest rate of 1.8% applies, then she is
still owed an additional $1,483.42.
1
Defendants do not try to explain how they came up with this amount, but as discussed below,
applying the federal interest rate under 28 USC § 1961 results in a larger amount than was
remitted.
3 – OPINION AND ORDER
Plaintiff contends that the state interest rate applies because (1) ODR initiated
garnishment under state laws and procedures and no federal court was involved in those
proceedings, and (2) the nature of the garnishment is congruent with cases analyzing interest
under ORS 80.010(1)(a), (b). These arguments are inapposite.
Under federal law, “[i]nterest shall be allowed on any money judgment in a civil case
recovered in a district court. . . . Such interest shall be calculated from the date of the entry of the
judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield . . . for
the calendar week preceding.” 28 USC § 1961(a) (emphasis added). “Interest shall be computed
daily to the date of payment . . . and shall be compounded annually.” 28 USC § 1961(b)
(emphasis added).
Here, the Supplemental Judgment is clearly a “money judgment in a civil case recovered
from a district court.” Thus, the federal interest rate applies. The court entered judgment on
April 6, 2012. Opinion and Order, ECF #136; Oldham Decl. ¶ 15, ECF #155. The applicable
rate at the time was 1.8% per annum. See Board of Governors of the Federal Reserve System,
Selected Interest Rates (Weekly) – H.15, at 1 (April 2, 2012), https://www.federalreserve.gov/
releases/h15/20120402/h15.pdf. Plaintiff is therefore entitled to recovery of interest at a rate of
1.8%, computed daily to the date of payment, and compounded annually.
Plaintiff’s reliance on In re Nucorp Energy, Inc., 902 F.2d 729, 734 (9th Cir. 1990), and
its progeny is misplaced, as those cases concern the selection of interest rates relating to
prejudgment interest, not postjudgment interest. E.g., id. (“The correct rate of prejudgment
interest in federal court depends on the nature of the claims.”); In re Zenovic v. Malcolm Crump,
No. AP 13-90218-LT, 2017 WL 431400, at *7 (B.A.P. 9th Cir. Jan. 31, 2017), aff’d, 727 F.
App’x 369 (9th Cir. 2018) (discussing prejudgment interest); S.E.C. v. Platforms Wireless Int’l
4 – OPINION AND ORDER
Corp., 617 F.3d 1072, 1099 (9th Cir. 2010) (same). The mandatory nature of § 1961(a) requires
this court to apply the 1.8% interest rate to postjudgment interest. See Kaiser Aluminum &
Chem. Corp. v. Bonjorno, 494 U.S. 827, 840 (1990) (“Where Congress has not seen fit to
provide for a higher rate of interest with respect to antitrust suits and has set a definite interest
rate that governs this litigation, the courts may not legislate to the contrary.”).
Plaintiff contends that applying the federal interest rate is like giving Oregon an interestfree loan or common-law conversion. This argument, however, has already been foreclosed by
the Ninth Circuit in Van Asdale v. Int’l Game Tech., 763 F.3d 1089, 1093 (9th Cir. 2014). There,
the Ninth Circuit “held that the § 1961 rate does reflect market rates and thereby ‘fully
compensates’ aggrieved parties. Thus, the postjudgment interest rate established in § 1961 is
sufficient to make the [plaintiff] ‘whole.’” Id. (quotation and alteration omitted) (emphasis in
original).
Plaintiff argues she is owed $1,483.422 in additional interest. ECF #154, at 13.
However, she short-changes herself because this amount does not account for compounding
interest annually, as required by 28 USC § 1961(b). The formula for computing compound
interest is P(1+r)t. Here, P = $121,970.20, r = 0.018, and t=728/365, and compound interest
equals $4,418.09. Defendants have paid $2,895.48 in interest already. Thus, they owe the
remainder of $1,522.61 in postjudgment interest.3
///
2
It appears plaintiff computed simple interest using the formula P(rt), where P = $121,970.20, r
= 0.018, t = 728/365. Simple interest equals $4,378.90. When the $2,895.48 in interest that
defendants have paid is subtracted from $4,378.90, it equals what plaintiff claims she is owed,
$1,483.42.
3
$4,418.09 – $2,895.48 = $1,522.61
5 – OPINION AND ORDER
II.
Attorney’s Fees for Work Related to Collections
A.
Applicable Law
The court calculates attorney’s fees using the lodestar method, i.e., multiplying the
number of hours worked by a reasonable hourly rate. See Perdue v. Kenny A., 559 U.S. 542, 551
(2010) (holding “the lodestar approach” is “the guiding light” when determining reasonable
fees). In determining the “reasonable hourly rate to use for attorneys and paralegals[,]” the court
looks to the “prevailing market rates in the relevant community.” Gonzalez v. City of Maywood,
729 F.3d 1196, 1205 (9th Cir. 2013) (citations and internal quotation marks omitted). The court
excludes hours “that are excessive, redundant, or otherwise unnecessary.” McCown v. City of
Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
(1983)).
“[T]here is a strong presumption that the lodestar is sufficient.” Perdue, 559 U.S. at 556.
“[A] multiplier may be used to adjust the lodestar amount upward or downward only in rare and
exceptional cases, supported by both specific evidence on the record and detailed findings by the
lower courts that the lodestar amount is unreasonably low or unreasonably high.” Van Gerwen v.
Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (quotations and citations omitted).
“Adjustments [to the lodestar amount] must be carefully tailored . . . and [made] only to the
extent a factor has not been subsumed within the lodestar calculation.” Rouse v. Law Offices of
Rory Clark, 603 F.3d 699, 704 (9th Cir. 2009) (citing Camacho v. Bridgeport Fin., Inc., 523 F.3d
973, 982 (9th Cir. 2008)). The party seeking fees bears “the burden of documenting the
appropriate hours expended in the litigation, and [is] required to submit evidence in support of
those hours worked.” United Steelworkers of Am. v. Ret. Income Plan For Hourly-rated Emps.
Of Asarco, Inc., 512 F.3d 555, 565 (9th Cir. 2008) (quotations omitted).
6 – OPINION AND ORDER
B.
Application
1.
Reasonable Hourly Rate
To determine the reasonable hourly rate, this court must look to the “prevailing market
rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The relevant
community “is one in which the district court sits.” Davis v. Mason County, 927 F.2d 1473,
1488 (9th Cir), cert den., 502 U.S. 899 (1991). This court uses the most recent Oregon State Bar
Economic Survey as a benchmark for comparing an attorney’s billing rate with the fee
customarily charged in the locality. Precision Seed Cleaners v. Country Mut. Ins. Co., 976
F.Supp.2d 1228, 1244 (D. Or. 2013).
Oldham seeks an hourly rate of $325 per hour. She was admitted to the Oregon State Bar
in 2002. Oldham Decl. ¶ 7. According to the Oregon State Bar’s 2017 Economic Survey, the
median hourly rate for Portland-area attorneys with 16–20 years of experience is $325 per hour.
2017 Oregon State Bar Economic Survey, Table 36, ECF #155-1. The mean hourly rate of $334
per hour is only $9 dollars more than the median rate. Id. Attorneys in the 25th percentile earn
$250 per hour and attorneys in the 75th percentile earn $400 per hour. Id.
Oldham’s requested hourly rate falls squarely within the range for attorneys with similar
years of experience. Moreover, two experienced attorneys who litigate civil-rights cases in
Portland have submitted declarations attesting that the requested rate is reasonable. See
Steinman Decl. ¶¶ 7-9; Walsh Decl. ¶¶ 9-11. Further still, Oldham has tried numerous cases, has
litigated cases against state agencies, and regularly works on and argues appeals. See Oldham
Decl. ¶¶ 3-10, 12-14. Oldham makes presentations and speaks at lawyer and non-lawyer
conferences and meetings, is an equity partner at the Tedesco Law Group, and has considerable
expertise in agency law, constitutional law, and other complex areas of law. Considering
7 – OPINION AND ORDER
Oldham’s qualifications, skill, experience, and the prevailing market rates of comparable
Portland-area attorneys, $325 per hour is a reasonable rate.
Defendants contend that the reasonable hourly rate for Oldham’s work in this case has
already been decided—at $275 per hour—because the court’s prior order awarded attorney’s fees
at that rate. Defendants assert that, while some time has passed since that decision issued, the
legal issues have narrowed, and the administrative and appellate issues addressed are less
demanding than trying a case before a jury. ECF #160, at 2.
Defendants provide no support for their contention that Oldham’s work in the
administrative and appellate proceedings, which attracted amicus briefs from both the ACLU and
OTLA, was less demanding and somehow deserves a lower hourly rate. Time is time—whether
speaking with a client, researching an issue, or trying a case to a jury. Further, this argument
discounts the fact that Oldham has gained six more years of experience since the court’s previous
order was issued. Thus, the requested $325 per hour is a reasonably hourly rate for Oldham’s
work in this litigation.
2.
Number of Hours Worked
Oldham seeks fees for 347.9 hours of work. Reply 9, ECF #161. While not the model of
clarity, Oldham’s records sufficiently document hours expended and establish entitlement to a
fee award. Hensley, 461 U.S. at 437.
Defendants contend the records are inadequate because (1) the invoice and due dates are
inaccurate, (2) Oldham did not send plaintiff invoices, (3) the descriptions in some entries are
identical and the entries thus appear to be duplicative, (4) Oldham used different billing systems,
(5) there are hand-written notes and modifications to billing entries, (6) some records contain no
running totals, (7) it is unclear who performed the work, and (8) the records appear in are variety
8 – OPINION AND ORDER
of formats. Defs’ Response at 5-6. Defendants conclude that “[n]o client would ever pay a bill
so lacking in clarity.” Id. at 6. However true, that is not the relevant standard. None of these
objections pertain to Oldham’s substantive work.
This was a contingency-fee case for an indigent prisoner; plaintiff was not billed for
Oldham’s work. As such, invoices and due dates are inapplicable. Moreover, the descriptions
for each entry contain the date the work was performed. Oldham was the only attorney to work
on this case, and she tracked her time contemporaneously throughout the litigation regardless of
where she was employed. Oldham Decl. ¶ 16. She used Quickbooks when employed at Crispin
Law Offices and then Excel at Tedesco Law Group until Tedesco adopted another billing
system. Oldham Reply Decl. ¶¶ 4-7. In preparing her fee petition, Oldham “scrutinized [her]
time records and zeroed out time claimed that related to stand-alone theories, was unsuccessful,
or that that did not advance the case or issues related to the recovery of fees in the case.”
Oldham Decl. ¶ 18. Oldham did this manually (with a pen) because she did not have access to
prior billing software and it would have been more time consuming to recreate the records.
Oldham Reply Decl. ¶ 3. Each entry contains the date, a short description of the work
completed, and the amount of time spent in six-minute (0.1 hour) increments. The records
contain billing entries for tasks pertinent to the case and in increments that are not excessive for
the tasks involved. As such, Oldham’s records sufficiently support an award of attorney’s fees.
Moreover, Oldham originally sought fees for 288.80 hours of work before remittal, but
after considering the few substantive objections raised by defendants, struck an additional 44
hours of work that did not lead to successful outcomes from her request, and now seeks fees for
244.30 hours. Reply 7; Oldham Reply Decl. ¶ 8. For this reason, this court can confidently
conclude Oldham has exercised billing judgment in that she has made “a good faith effort to
9 – OPINION AND ORDER
exclude from a fee request hours that are excessive, redundant or otherwise unnecessary[.]”
Hensley, 461 U.S. at 424.
Additionally, Oldham seeks compensation for 26.7 hours spent preparing her fee petition.
Oldham Decl. ¶ 28. About half of that briefing relates to the argument that the Oregon interest
rate should apply to the fee award—an unsuccessful theory. Thus, some reduction is necessary
to account for her limited success. However, about half of that discussion also relates to
defendants’ failure to calculate the federal interest rate correctly. Thus, only a 25% reduction of
these hours is appropriate. See Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 905
(9th Cir. 1995) (holding that resorting to a crude mathematical formula “to reduce the fee award
to account for limited success” is appropriate). A 25% reduction of 26.7 hours (6.67 hours)
results in a total of 20.3 hours to prepare the fee petition.
For the reasons discussed above, plaintiff is entitled to attorney’s fees for 341.23 hours of
work. The lodestar is calculated by multiplying the number of hours worked by a reasonable
hourly rate of $325. Thus, the lodestar is $110,899.75.4
The final question is whether either party has overcome the strong presumption that the
lodestar is sufficient, and if so, whether the court should enhance or reduce the lodestar amount.
Neither party argues that this is a rare or exceptional case where the lodestar should be modified.
See Van Gerwen, 214 F.3d at 1045. As such, the court finds that the lodestar is sufficient.
III.
Total Award
Plaintiff is entitled to $110,899.75 in attorney’s fees and $1,522.61 in interest, for a total
award of $112,422.36.
///
4
341.23hrs*$325/hr = $110,899.75.
10 – OPINION AND ORDER
ORDER
For the reasons set forth above, plaintiff’s Motion for Supplemental Award of Attorney’s
Fees and Award of Additional Interest (ECF #153) is granted in the amount of $112,422.36.
IT IS SO ORDERED.
DATED October 17, 2018.
/s/Youlee Yim You
Youlee Yim You
United States Magistrate Judge
11 – OPINION AND ORDER
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