Sells v. Oracle Corporations et al
Filing
52
Opinion and Order: The Court GRANTS in part and DENIES in part Plaintiff's Supplemental Motion 44 for Attorney Fees. The Court AWARDS attorneys' fees to Plaintiff in the amount of $1,250.00. Defendants shall issue payment to Plaintiff's counsel no later than June 19, 2015. The Court will not consider any further motions for attorneys' fees absent extraordinary circumstances. Signed on 06/05/2015 by Judge Anna J. Brown. See attached 11 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARYE. SELLS,
Plaintiff,
v.
ORACLE CORPORATIONS and ORACLE
AMERICA, INC., also known as
Oracle USA, Inc.,
Defendants.
BETH ANN CREIGHTON
JESSICA ASHLEE ALBIES
Creighton & Rose, P.C.
815 S.W. Second Avenue, Suite 500
Portland, OR 97204
(503) 221-1792
Attorneys for Plaintiff
VICTOR JOSEPH KISCH
KAREN L. O'CONNOR
Stoel Rives, LLP
900 S.W. Fifth Avenue, Suite 2600
Portland, OR 97204
(503) 294-9291
Attorneys for Defendants
1 - OPINION AND ORDER
3:12-cv-01288-BR
OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on Plaintiff's
Supplemental Motion (#44) for Attorney Fees.
that follow,
For the reasons
the Court GRANTS in part and DENIES in part
Plaintiff's Motion and AWARDS to Plaintiff attorneys' fees in the
amount of $1,250.00.
BACKGROUND
On January 29, 2015, an arbitrator issued an award to
Plaintiff in the amount of $247,466.16 (plus interest) on
Plaintiff's employment-discrimination claims.
The following
Monday, February 2, 2015, Plaintiff's counsel emailed Defendants'
counsel to advise Defendants that Plaintiff would move to convert
the arbitration award into a judgment if Plaintiff did not
receive payment by Friday, February 6, 2015.
Defendants' counsel
did not immediately respond to that email.
On Thursday, February 5, 2015, Plaintiff's counsel called
counsel for Defendants to inquire about payment.
The parties
dispute whether and when Defendants' counsel responded to this
inquiry.
Defendants contend their counsel informed Plaintiff's
counsel that payment was forthcoming and that it was not
necessary to file a motion to convert the arbitration award to a
judgment.
Plaintiff contends, in turn, that Defendants' counsel
did not, in fact, assure her that payment was forthcoming.
2 - OPINION AND ORDER
On February 9, 2015, Plaintiff filed a Motion (#35) for
Judgment Confirming Arbitration Award .
That same day
Defendants' counsel emailed Plaintiff's counsel to advise that
even though Defendants did not find a motion to convert the
arbitration award to a judgment was necessary, Defendants did not
object to such a motion.
The next day (February 10, 2015),
Plaintiff's counsel emailed to inquire why Defendants did not
think the motion was necessary in light of the fact that
Defendants had not advised Plaintiff when she would receive
payment.
On February 11, 2015, Defendants' counsel requested
Plaintiff's counsel to complete a W-9 form in preparation for
Defendants making their payment to Plaintiff.
On February 18, 2015, Defendants tendered full payment of
the amount owed under the arbitration award.
On February 25, 2015, the Court entered a Judgment and Order
(#41) Confirming Arbitration Award that included the sums awarded
under the arbitration award as well as $800 in attorneys' fees
for preparation and filing of the Motion for Judgment Confirming
Arbitration Award.
That same day Defendants' counsel emailed the
Court to request removal of the $800 in attorneys' fees from the
Order and Judgment.
Plaintiff objected to Defendants' request.
The Court held a hearing on March 16, 2015, at which the
Court concluded the $800 would remain part of the Judgment unless
3 - OPINION AND ORDER
and until any party elected to file a formal motion to amend the
Judgment.
On March 24, 2015, Defendants sent to Plaintiff's counsel a
check for $800 purporting to be for "final attorneys' fees and
costs."
Because Plaintiff's counsel believed she incurred an
additional $400 in attorneys' fees as a result of attending the
March 16, 2015, hearing, however, Plaintiff's counsel returned
the check out of a concern that accepting the payment would
foreclose Plaintiff's ability to seek additional attorneys' fees.
Accordingly, on March 26, 2015, Plaintiff filed the
Supplemental Motion for Attorney Fees in which she initially
sought $2,280.00 in attorneys' fees that included $400 in
attorneys' fees incurred for the one hour that Plaintiff's
counsel spent attending the March 16, 2015, hearing (including
$240.00 for 0.6 hours expended walking to and from the hearing);
$1,080 in attorneys' fees to compensate Plaintiff's counsel for
2.7 hours expended for initial preparation of this Motion;
$640.00 for 1.6 hours expended researching the principles of
"accord and satisfaction" and drafting a letter to Defendants'
counsel to accompany rejection of the check; and $160.00 for 0.4
hours expended revising this Motion.
Defendants oppose this Motion on the ground that it was
unnecessary for Plaintiff to file the Motion for Judgment
Confirming Arbitration Award because Defendants were in the
4 - OPINION AND ORDER
process of paying and ultimately timely paid the award in full
with interest.
In her optional Reply Memorandum Plaintiff restates many of
the same background facts included in her original memorandum and
argues the attorneys' fees are reasonable to provide an adequate
remedy for employment-discrimination plaintiffs.
Plaintiff also
requests an additional $680.00 for 1.7 hours of attorney time
preparing Plaintiff's Reply Memorandum.
In total, therefore,
Plaintiff seeks $2,960.00 for 7.4 hours of attorney time.
DISCUSSION
In her Complaint Plaintiff brought claims for disability
discrimination under the Americans with Disabilities Act, 42
U.S.C. § 12101, et seq., and Oregon Revised Statute§ 659A.112,
and for gender discrimination under Title VII of the Civil Rights
Act of 1991, 42 U.S.C. § 2000e, and Oregon Revised Statute
§ 659.030.
Plaintiff does not specify which claims were
successful before the arbitrator or which statutory provision
entitles Plaintiff to attorneys' fees.
1
Accordingly, the Court
analyzes Plaintiff's Motion under both the federal and state
standards.
1
In her Memorandum in support of her Supplemental Motion
for Attorney Fees, Plaintiff notes she is entitled to attorneys'
fees pursuant to "ORS 659A.885 and ORS 20.107," but subsequently
Plaintiff cites federal case law to support her request for an
award of attorneys' fees.
5 - OPINION AND ORDER
I.
Federal Standard
Under federal fee-shifting statutes "the lodestar approach"
is "the guiding light" when determining a reasonable fee.
Perdue
v. Kenny A., 130 S. Ct. 1662, 1671-73 (2010) (internal quotation
omitted).
Under the lodestar method the court first determines
the appropriate hourly rate for the work performed and then
multiplies that amount by the number of hours properly expended
in doing the work.
Id.
Although "in extraordinary
circumstances" the amount produced by the lodestar calculation
may be increased, "there is a strong presumption that the
lodestar is sufficient."
Id. at 1669.
The party seeking an
award of 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. Retirement Income Plan For Hourly-rated Emps. of
Asarco, Inc.,
omitted).
512 F.3d 555, 565 (9th Cir. 2008) (quotations
When "determining the appropriate number of hours to
be included in a lodestar calculation, the district court should
exclude 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)).
To determine the lodestar amount, the court may consider the
following factors:
6 - OPINION AND ORDER
(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.
Fischel v. Equitable Life Assur. Soc'y of U.S.,
1007 n. 7 (9th Cir. 2002) (quotation omitted).
307 F.3d 997,
A rote recitation
of the relevant factors is unnecessary as long as the court
adequately explains the basis for the award of attorneys' fees.
McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 809
(9th Cir. 1995).
The lodestar amount is presumed to be the reasonable fee,
and, therefore, "'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.'"
F. App' x 581, 582
Summers v. Carvist Corp., 323
(9th Cir. 2009) (quoting Van Gerwen v. Guarantee
Mut. Life. Co., 214 F.3d 1041, 1045 (9th Cir. 2000)).
"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."
of Rory Clark,
603 F. 3d 699, 704
7 - OPINION AND ORDER
Rouse v. Law Offices
(9th Cir. 2009) (citing Camacho
v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008)).
II.
State Standard
Under Oregon law the factors provided by Oregon Revised
Statute§ 20.075 guide the court's analysis as to whether the
amount of attorneys' fees is reasonable.
Lumber Mills, Inc.,
See Hamlin v. Hampton
227 Or. App. 165, 167-68 (2009).
The court
shall consider:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
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.
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.
The fee customarily charged in the locality for
similar legal services.
The amount involved in the controversy and the
results obtained.
The time limitations imposed by the client or the
circumstances of the case.
The nature and length of the attorney's
professional relationship with the client.
The experience, reputation and ability of the
attorney performing the services.
Whether the fee of the attorney is fixed or
contingent.
Or. Rev. Stat. § 20.075(2).
Notably, many of the state factors
are similar to those considered in the federal lodestar analysis.
III. Analysis
To determine the reasonable hourly rate, this Court uses the
most recent Oregon State Bar Economic Survey published in 2012
(Oregon 2012 Survey) as its initial benchmark.
Attorneys may
argue for higher rates based on inflation, specialty, or any
8 - OPINION AND ORDER
number of other factors.
The median billing rate in Oregon for
an attorney in private practice is $225.00 per hour.
As noted, Plaintiff seeks a rate of $400.00 per hour for the
attendance of Plaintiff's counsel at the March 16, 2015, hearing;
communication with Defendants' counsel regarding attorneys' fees;
and preparation of this Motion.
The Court finds $400.00 per hour
is unreasonable for the attorneys' fees sought in this Motion.
The only issues Plaintiff's counsel has litigated relevant
to this Motion are the unopposed Motion for Order Confirming
Arbitration Award and this Motion.
Although Plaintiff's counsel
are experienced and qualified, neither Motion has required
analysis of complex legal or factual issues.
F.3d at 1007 n.7.
See Fischel, 307
See also Or. Rev. Stat. § 20.075(2) (a).
Thus,
because the rate of $400.00 per hour is well in excess of the
median hourly rate for private-practice attorneys in Oregon and
because Plaintiff's counsel only performed simple tasks before
this Court, the Court finds the $400.00 hourly rate is
unreasonable.
Accordingly, after considering all of the factors
under both the federal and state standards described above, the
Court, therefore, reduces the hourly rate for attorneys' fees to
$250.00 per hour.
The Court also reduces the hours reasonably expended by
Plaintiff's counsel in pursuing these matters.
Poor
communication between counsel was a substantial cause of the
9 - OPINION AND ORDER
attorneys' fees incurred by Plaintiff.
The Court notes even
though poor communication by Defendants' counsel contributed to
the complication of this matter, the three-month process of
confirming the arbitration award and litigating Plaintiff's
Supplemental Motion for Attorney Fees would have been unnecessary
if Plaintiff's counsel had exercised some patience.
Indeed,
Defendants timely made payment of the arbitration award to
Plaintiff, and there is not any evidence in the record that
Plaintiff needed to proceed with such urgency (especially in
light of the interest to which Plaintiff was entitled under the
arbitration award) or that Defendants' forthcoming payment was
caused or expedited by Plaintiff's filing of the Motion for
Judgment Confirming Arbitration Award.
Thus, it would be unreasonable to require Defendants to bear
the full amount of the attorneys' fees that Plaintiff seeks in
this Motion in light of the fact that Plaintiff's counsel was
partially responsible for creating the work for which those fees
were incurred.
Accordingly, the Court reduces the hours
reasonably expended by approximately one-third to 5.0 hours.
On this record, therefore, the Court awards to Plaintiff
$1,250.00 ($250.00 per hour x 5 hours) in attorneys' fees.
CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in
10- OPINION AND ORDER
part Plaintiff's Supplemental Motion (iF44) for Attorney Fees.
The Court AWARDS attorneys' fees to Plaintiff in the amount of
$1,250.00.
Defendants shall issue payment to Plaintiff's counsel
no later than June 19, 2015.
The Court will not consider any
further motions for attorneys' fees absent extraordinary
circumstances.
IT IS SO ORDERED.
DATED this
5
M
day of June, 2015.
United States District Judge
11- OPINION AND ORDER
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