VanValkenburg v. Oregon Department of Corrections

Filing 240

OPINION AND ORDER Signed on 06/09/2017 by Judge Michael W. Mosman. (rs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DAVID D. VANVALKENBURG,
No. 3:14-cv-00916-MO
Plaintiff,
OPINION AND ORDER
v.
OREGON DEPARTMENT OF CORRECTIONS,
Defendant.
MOSMAN, J.,
Plaintiff David VanValkenburg brought this suit against the Oregon Department of
Corrections (“ODOC”), alleging violations of federal and state anti-discrimination laws while he
was in custody. Mr. VanValkenburg’s state-law claim was tried by a jury, beginning on
November 1, 2016. The jury returned a verdict in favor of Mr. VanValkenburg, awarding him
$400,000 in noneconomic damages [183]. On February 8, 2017, I DENIED Defendant’s
Motions for Judgment as a Matter of Law, New Trial, and Remittitur [210]. Mr. VanValkenburg
now moves for attorney fees and costs [215].
BACKGROUND
Mr. VanValkenburg is a hearing-impaired individual who was housed at multiple prisons
run by ODOC from 2000 to 2014. In 2014, he brought this case based on allegations that ODOC
violated state and federal anti-discrimination laws when it failed to provide him with
accommodations for his hearing disability that would allow him to meaningfully participate in

1 – OPINION AND ORDER

prison programs and services provided to inmates. After a three-day trial in November, 2016,
the jury found in favor of Mr. VanValkenburg and awarded him $400,000 in noneconomic
damages. Mr. VanValkenburg has now moved to recover his attorney fees, costs, and litigation
expenses as the prevailing party on his state-law claim.1
DISCUSSION
Mr. VanValkenburg is seeking to recover a total of $911,062.21 in attorney fees, costs,
and litigation expenses as the prevailing party on his state-law disability discrimination claim.
That amount includes a fee multiplier to compensate Mr. VanValkenburg’s attorneys for their
performance in this case and the risk they undertook in representing Mr. VanValkenburg on a
contingency fee basis. Mr. VanValkenburg also seeks additional attorney fees to cover the cost
of litigating his fee award.
ODOC objects to Mr. VanValkenburg’s motion on several grounds. First, ODOC argues
that I should decline to award any fees in this case because (1) doing so is discretionary and (2)
Mr. VanValkenburg was not the prevailing party on any of his claims. Alternatively, ODOC
suggests that I should implement “an across-the-board percentage cut” to reflect Mr.
VanValkenburg’s “partial success” on the claims overall. In addition, ODOC objects to the
award of any fee multiplier in this case, as well as a prevailing party fee that Mr. VanValkenburg
seeks by statute. Finally, ODOC objects to some of the costs and litigation expenses that Mr.
VanValkenburg seeks to recover.
As explained below, I find that Mr. VanValkenburg is the prevailing party on his statelaw disability discrimination claim. As such, he is entitled to recover his attorney fees, costs, and
litigation expenses. I also award his requested attorney fees for the cost of litigating this attorney

1

Only the state-law claim went to trial. Mr. VanValkenburg’s ADA claim was dismissed before the jury trial for
failure to exhaust his administrative remedies.

2 – OPINION AND ORDER

fee motion. Additionally, I agree a fee multiplier is appropriate in this case based on the risk
involved in this case and the performance of Mr. VanValkenburg’s attorneys. That said, I find
the requested fee multiplier to be excessive and thus, I adopt a smaller multiplier. Finally, some
of the litigation expenses are not reimbursable under state law, resuling in a reduction to Mr.
VanValkenburg’s requested expense award. In total, I award Mr. VanValkenburg $683,873.13
in attorney fees, $18,155.19 in costs, and $3,924.79 in litigation expenses.
I. Attorney Fee Award
Mr. VanValkenburg is seeking to recover attorney fees for over 1300 hours that his
attorneys claim they spent on this case. Specifically, Mr. VanValkenburg seeks to recover (1)
attorney fees based on the number of hours spent on the case, (2) extra attorney fees pursuant to
a discretionary fee multiplier, and (3) attorney fees for the time spent litigating this motion for
attorney fees. For the reasons discussed below, I find that Mr. VanValkenburg is entitled to
attorney fees and that the standard lodestar calculation of those fees based on his attorneys’
hourly rate and the number of hours spent litigating this case is the proper method for calculating
those fees. I also find that a fee multiplier is appropriate in this case. Finally, I grant Mr.
VanValkenburg’s request to recover attorney fees for the time spent litigating this attorney fee
memo. In total, Mr. VanValkenbug is entitled to recover $683,873.13 in attorney fees.
A. Calculation of Attorney Fees
Mr. VanValkenburg argues that he is entitled to recover reasonable attorney fees because
he is the prevailing party in this case. Specifically, he argues that he is entitled to recover
attorney fees based on his attorneys’ reasonable billing rate and the hours his attorneys spent
litigating his state-law antidiscrimination claim. ODOC argues that Mr. VanValkenburg is not
entitled to any attorney fees because he is not the prevailing party on any of his claims. And, in

3 – OPINION AND ORDER

any event, ODOC argues that the award should be reduced to reflect what it argues was a narrow
victory.
For the following reasons, I have determined that an award of attorney fees to Mr.
VanValkenburg is mandatory under Oregon statutory law. Because the state and federal claims
in this case have common issues of law and fact, Mr. VanValkenburg’s attorneys’ time was
reasonably spent litigating both claims, and they are not required to apportion their time by
claim. Accordingly, I do not reduce the hours spent on the case to reflect Mr. VanValkenburg’s
loss on the federal claim, except to the extent that Mr. VanValkenburg is not entitled to attorney
fees for the time spent on litigating whether he exhausted his administrative remedies under his
federal claim. I also find the hourly rates requested by Mr. VanValkenburg’s attorneys to be
reasonable. In sum, Mr. VanValkenburg is entitled to an attorney fee award of 385,217.50 based
on calculations under the lodestar method.2
1. An Attorney Fee Award is Mandatory Because Mr. VanValkenburg is
the Prevailing Party on the State-Law Claim
Oregon law governs whether an attorney fee is available in a case that is based on state
law. Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011) (“State laws awarding attorneys’ fees
are generally considered to be substantive laws under the Erie doctrine . . .”). In Oregon,
severeal statutes govern the award of attorney fees. Specifically, Oregon Revised Statute §
20.107 states:
(1) In any civil judicial proceeding . . . based on a claim of unlawful
discrimination, the court shall award to the prevailing plaintiff attorney and expert
witness fees reasonably and necessarily incurred in connection with the
discrimination claim, at the trial court . . .
2

This fee award is calculated as follows:
Mr. Ellis: (517.50 hours) x ($325.00 per hour) = $168,187.50
Ms. Payne: (672.10 hours) x ($300.00 per hour) = $201,630.00
Paralegal and Law Clerk: (88.8 hours) x ($175.00 per hour) = $15,400.00

4 – OPINION AND ORDER

(2) In making an award under this section, the court shall calculate attorney and
expert witness fees on the basis of a reasonable hourly rate at the time the award
is made, multiplied by the amount of time actually and reasonably spent in
connection with the discrimination claim.
In addition, Oregon Revised Statute § 659A.885(1) states: “[i]n any action under this subsection,
the court may allow the prevailing party costs and reasonable attorney fees at trial and on
appeal.” In fact, “Oregon courts have construed [§ 659A.885(1)] as mandatory and highly
favorable to plaintiffs, holding that prevailing plaintiffs are entitled to recover their attorney
fees.” Hamlin v. Hampton Lumber Mills, Inc., 205 P.3d 70 (Or. App. 2009). Accordingly, given
the text of Oregon Revised Statute 20.107, explaining that I shall award fees to the prevailing
plaintiff’s attorney, and Hamlin, making such an award mandatory under Oregon Revised Statute
§ 659A.885(1), I am required to award attorney fees to Mr. VanValkenburg so long as he was the
prevailing plaintiff.
To determine whether Mr. VanValkenburg was the prevailing party in this case, I again
look to Oregon law. Oregon Revised Statute § 20.077 defines the prevailing party “[f]or the
purposes of making an award of attorney fees on a claim,” as “the party who receives a favorable
judgment . . . on the claim.” Or. Rev. Stat. § 20.077(2). The text of the statute makes clear that I
must look at each claim to determine who the prevailing party was on that claim. Eagles Five,
LLC. v. Lawton, 280 P.3d 1017, 1026 (Or. App. 2012)
ODOC argues that Mr. VanValkenburg was not the prevailing party in this case because
his federal claim was dismissed and on his state-law claim was limited to a smaller time period
than he initially sought in his Complaint. Mr. VanValkenburg concedes that he was not the
prevailing party on his Section 1983 claim alleging violations of the ADA. But he argues he was

5 – OPINION AND ORDER

the prevailing party on his state-law claim because the jury returned a verdict in his favor on that
claim and awarded him $400,000 in damages.
I agree that Mr. VanValkenburg was the prevailing party on his state-law claim. ODOC
does not cite any legal authority to support its proposition that Mr. VanValkenburg was not the
prevailing party on the state-law claim simply because he did not recover all of the relief he
sought. In fact, the text of the statute only calls for “a favorable judgment” on the claim; it does
not require all of the relief sought. See Or. Rev. Stat. § 20.077(2); see also Eagles Five, 280 P.3d
at 1026 (explaining that the “prevailing party” is the one that received a “favorable judgment”
and that “it does not necessarily follow that, merely because a party does not obtain all the relief
sought, a party is not a prevailing party” (citation omitted)). Accordingly, because Mr.
VanValkenburg received a favorable judgment on his state-law claim, he is entitled to recover
attorney fees for prevailing on that claim.
2. Calculating the Attorney Fee Award
Mr. VanValkenburg seeks to recover for 528.50 hours spent on the case by Mr. Ellis at a
rate of $325.00 per hour; 683.80 hours spent on the case by Ms. Payne3, at a rate of $300 per
hour; and 88.8 hours spent on the case by a paralegal and a law clerk at a rate of $175.00 per
hour. In total, Mr. VanValkenburg seeks to recover $392,232.50 in attorney fees based on the
lodestar calculation.
ODOC does not dispute the total number of hours Mr. VanValkenburg’s attorneys claim
they spent on the case, nor does ODOC argue the hourly rates requested are unreasonable.
Rather, ODOC objects to an award for all of the hours the attorneys spent on the case, given that
Mr. VanValkenburg only prevailed on his state-law claim, and even then, only for a narrow time

3

Ms. Payne’s hours include 423.10 hours as an associate at Haglund Kelley LLP and an additional 260.70 as a solo
practitioner.

6 – OPINION AND ORDER

period. ODOC argues that Mr. VanValkenburg’s billing records should be broken out by claim,
and that he should only receive attorney fees for the hours spent litigating the state-law claim.
Because the billing records do not break out the attorney’s time on a claim-by-claim basis,
ODOC argues that I should reduce the fee request by 65% and only award 35% of the amount
requested by Mr. VanValkenburg, or $137,281.38.
Oregon courts generally award attorney fees based on the lodestar method, although there
is room for adjustment based on the factors set forth in Oregon Revised Statute § 20.075. See
generally Strawn v. Farmers Ins. Co. of Or., 297 P.3d 439, 447-48 (Or. 2013) (“Strawn I”).
Under the lodestar method, courts multiply the reasonable hourly rate for each timekeeper by the
reasonable number of hours the timekeeper worked on the case. Or. Rev. Stat. § 20.107(2).
a. Reasonable Number of Hours Spent on the Case
Although ODOC does not object to the overall number of hours Mr. VanValkenburg’s
attorneys claim they spent on the case, it argues that he should only recover attorney fees for the
hours spent litigating the state-law claim. Mr. VanValkenburg argues that the number of hours
spent on each claim cannot be apportioned because there were common issues between the state
and federal claims.
While it is true that a prevailing plaintiff is only entitled to recover attorney fees for the
claim upon which he prevailed, time spent on other claims is recoverable when “there are
common issues among the claims.” Freedland v. Trebes, 986 P.2d 630, 632 (Or. App. 1999)
(citation omitted). This is so because courts recognize it may take “roughly the same amount of
time to litigate a case in which the successful claim was the sole claim as it took to litigate the
case in which it was one among several claims.” Id. Accordingly, when common issues prevail

7 – OPINION AND ORDER

among the claims, it is not “necessary to apportion the fees to reflect the lack of success on the
other claims.” Id.
This case is precisely the case where, as a general matter, it would not make sense to try
to apportion the time spent on litigating the state-law claim and the federal-law claim. The
issues of fact and the issues of law were largely the same between both claims. The claims are
grounded in the same legal theory—that the same discriminatory acts violated federal and state
law. And Oregon’s antidiscrimination law largely incorporates federal law under the ADA. As
such, it would have been nearly impossible for Mr. VanValkenburg’s attorneys to apportion their
time. Furthermore, ODOC’s suggestion that I should award only 35% of the requested fees is
completely arbitrary. Accordingly, because there were common issues of law and fact between
both claims, I decline to reduce the fee award on the basis that Mr. VanValkenburg did not
prevail on his federal claim.
That said, the time that Mr. VanValkenburg’s attorneys spent litigating the issue of
whether he exhausted his administrative remedies, as required to pursue his federal claim, can be
separated from the total number of hours spent litigating the case. While some of the evidence
and testimony at that bench trial may have been helpful for the jury trial, in my view the
exhaustion trial was too tangential to the underlying substantive merits of the state-law
discrimination claim to conclude that the prevailing issues at the trial were common to the statelaw claim. Accordingly, Mr. VanValkenburg is not entitled to recover attorney fees for the time
spent on litigating the issue of whether he exhausted his administrative remedies. I, therefore,
reduce the attorney fee request by 11.7 hours for Ms. Payne and 9 hours for Mr. Ellis, which
reflects the amount of time they claim they spent on litigating the exhaustion issue.

8 – OPINION AND ORDER

b. Reasonable Hourly Rate
Mr. Ellis reports that he typically bills $315 an hour and Ms. Payne reports that she
typically bills $300 an hour. ODOC does not object to the hourly rates provided by Mr.
VanValkenburg for his attorneys.
Courts determine the reasonable hourly rate by looking at the fee customarily charged in
the locality and the experience, reputation, and ability of the lawyers involved. Precision Seed
Cleaners v. Country Mut. Ins. Co., 976 F. Supp. 2d 1228, 1243 (D. Or. 2013). In fact, it is wellsettled law that:
The prevailing market rate in the community is indicative of a reasonable hourly
rate . . . The fee applicant has the burden of producing satisfactory evidence, in
addition to the affidavits of its counsel, that the requested rates are in line with
those prevailing in the community for similar services of lawyers of reasonably
comparable skill and reputation.
Orme v. Burlington Coat Factory of Or., LLC, No. CV 07-859-MO, 2010 WL 1838740, at *1
(D. Or. May 3, 2010) (quoting Jordan v. Multnomah Cty., 815 F.2d 1258, 1262-63 (9th Cir.
1987)).
In support of the attorney fees motion, Mr. VanValkenburg provided declarations from
practitioners in the community who attested to their belief that his attorneys’ hourly rates are
reasonable, given their reputation, experience, and level of expertise. The hourly rates are also
within the range of what other attorneys charge in Portland according to the 2012 OSBAR report.
For example, the average billing rate for personal injury Plaintiffs’ lawyers in Portland is
between $239 per hour at the 25th percentile and $385 per hour at the 95th percentile. Given the
specialty area within which Ms. Payne and Mr. Ellis practice, and their experience and
reputation, I find that their billing rates are reasonable even though they are slightly higher than
average for other attorneys with the same number of years of experience.

9 – OPINION AND ORDER

c. Other Statutory Factors
In determining the amount of attorney fees to award a prevailing plaintiff, I must consider
the sixteen factors listed by statute. Or. Rev. Stat. § 20.075(1)-(2); Strawn I, 297 P.3d at 448-49.
ODOC does not argue that Mr. VanValkenburg’s requested attorney fee award should be
reduced based on any of these factors. Indeed, after reviewing these factors, I do not find any of
them to be prejudicial to Mr. VanValkenburg, and thus, they do not require me to reduce the
attorney fee award in this case.
B. Fee Multiplier
In addition to an attorney fee award based on the hourly rate and number of hours
expended, Mr. VanValkenburg argues I should award a fee multiplier to compensate his
attorneys for the high degree of risk involved in this case. Specifically, Mr. VanValkenburg
seeks a multiplier of x2.25. ODOC objects to the award of a fee multiplier. It argues there is no
statutory support for doing so, and that there is no “common benefit” or “common fund”
involved in this case. Although the argument is unclear, ODOC also suggests that a fee
enhancement award is not available here because this is not a classic contingency fee case,
whereby Mr. VanValkenburg’s attorneys only receive a portion of his recovery.
First, it is clear under Oregon case law that I have discretion to award an enhancement to
Mr. VanValkenburg’s requested regular attorney fees in the form of a fee multiplier. See Griffin
By & Through Stanley v. Tri-Cty. Metro. Transp. Dist. of Or., 831 P.2d 42, 48 (Or. App. 1992),
aff’d in part and rev’d in part on other grounds 870 P.2d 808 (Or. 1994). “Oregon law permits
an enhancement of fees when it is supported by the facts and circumstances of the case.” Beck v.
Metro. Prop. and Cas. Ins. Co., 3:13-cv-00879-AC, 2016 WL 4978411, at *22 (D. Or. Sept. 16,
2016). In some contingent fee cases, “attorneys may be compensated at a higher rate than what

10 – OPINION AND ORDER

would be charged in a noncontingent fee setting.” Tanner v. Or. Health Scis. Univ., 980 P.2d
186, 189 (Or. App. 1999) (citation omitted); see also Moro v. Oregon, 384 P.3d 504, 519 (Or.
2016) (“[A] fee multiplier may be justified when the attorney’s payment is based on a
contingency-fee arrangement or there is otherwise a delay in getting paid.”).
Second, while an Oregon court has approved the award of an attorney fee enhancement in
a case where the proceeds were to be paid from a common fund, see Moro, 384 P.3d at 510,
there is no support in that case or any other for ODOC’s proposition that fee enhancements are
only available when they are to be paid out of a common fund. Further, there is no support for
ODOC’s apparent proposition that fee enhancements are only available in classic contingency
fee cases where attorney fee awards are based on a set percentage of the client’s recovery. In
fact, Oregon cases support the proposition that fee enhancements are available under the
contingency fee arrangement at issue in this case—one where statutory attorney fees are only
available if the client is the prevailing party.4 See, e.g., Tanner, 980 P.2d at 189-90 (concerning
a contingency fee case where the plaintiff could recover fees as the prevailing party based on the
attorney’s hourly billing rate). Accordingly, ODOC’s argument that a fee multiplier is not
available in this case is unavailing.
Having determined that I have the discretion to award a fee multiplier, I must now
determine whether this is one of the cases where the award of a fee multiplier is appropriate, and
if so, whether Mr. VanValkenburg’s requested multiplier of x2.25 is the appropriate amount.
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,
4

For further explanation, see Mariam-Webster’s Collegiate Dictionary 270 (11th ed. 2005), which defines
“contingency fee” as “a fee for services (as of a lawyer) paid upon successful completion of the services.” While
that fee is “usu[ally] calculated as a percentage of the gain realized for the client,” id., such a calculation is not the
only way to arrive at the fee award under a contingency fee agreement, as the contingent nature of receiving the fee
at all is the necessary element under the term.

11 – OPINION AND ORDER

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.” Strunk v.
Pub. Emps. Ret. Bd., 169 P.3d 1242, 1254 (Or. 2007); see also Strawn v. Farmers Ins. Co.,
MCCC Case No. 9908-09080 (J. Labarre) (“Farmers”), aff’d, 226 P.3d 86 (Or. App. 2010)
(“Strawn II”) (awarding a fee multiplier based on counsel’s skill and “superb” performance, the
“remarkable” results of the case, the enormous risk involved in litigating the case, the high
damages award, and the fact that Oregon courts wanted to encourage litigation of consumer
protection cases). I also consider the factors set out by statute for determining the amount of
attorney fees to award in order to determine if an enhanced fee is appropriate. Or. Rev. Stat. §
20.075(1)-(2); Strawn II, 226 P.3d at 95 (explaining that a Court must consider the criteria set
out in Or. Rev. Stat. 20.075(2) in determining whether to grant a fee enhancement, and if so, the
amount).
In my view, most of the factors identified in Section 20.075 are neutral—they do not
favor one party more than the other. For example, the conduct of the parties appeared to be
reasonable, and their actions and diligence in litigating the case are in line with what I would
expect in litigating a contentious case on difficult legal issues. The claims and defenses that both
parties made appeared to be reasonable. Although ODOC conceded some of the elements of the
state-law claim on the brink of trial, the information in the record does not persuade me that the
timing was a result of bad faith or of wanting to drag out the litigation. In my experience, cases
are often narrowed as the trial approaches because the parties focus on the issues more closely.
Several § 20.075 factors, however, weigh in favor of an attorney fee multiplier in this
case. First, as ODOC concedes, Mr. VanValkenburg’s attorneys clearly attained an
extraordinary result in this case. This is not simply reflected by the high damages award. It is

12 – OPINION AND ORDER

also reflective of the high level of skill of Mr. VanValkenburg’s attorneys. For example, the
merits of this case involved complex legal issues of first impression in antidiscrimination law,
requiring Mr. VanValkenburg’s attorneys to make novel arguments of law and develop original
jury instructions where no uniform instructions were available.
Second, this case involved a high degree of risk for Mr. VanValkenburg’s attorneys,
given that they agreed to represent him on a contingency fee basis. The complex legal issues
involved in the case and Mr. VanValkenburg’s sex offender conviction both increased the risk of
loss beyond the risk associated with many civil rights cases. Given these challenges, Mr.
VanValkenburg’s attorneys took on the case with great risk of no recovery at all.
Finally, an enhanced fee award in this case will serve to encourage other attorneys in
Oregon to represent inmates in risky, complex, and difficult civil rights cases. In contrast,
refusing to award an enhancement might deter attorneys from representing clients in these types
of cases.
Under the above analysis, I find that a fee enhancement is appropriate in this case. I
believe, however, that an enhancement of x2.25 is excessive. In my view, such an incredible
amount should be reserved for the most unusual cases. In fact, awarding an extremely high fee
enhancement may serve too much of a deterrent effect, in that it could deter defendants like
ODOC from properly litigating close-call cases. Accordingly, after considering cases where
courts have awarded a fee enhancement and the factors under Section 20.075, I find a fee
multiplier of x1.75 to be appropriate in this case. Accordingly, I award $675,268.13 in attorney
fees to Mr. VanValkenburg, which is an additional $290,050.63 above their usual fees based on
their typical billing rate.

13 – OPINION AND ORDER

C. Fees For Litigating Attorney Fees Motion
In Mr. VanValkenburg’s response to ODOC’s objections to his attorney fees, he seeks
reimbursement for the costs associated with litigating his attorney fee request. Specifically, he is
seeking fees for the 18 hours Ms. Payne and 9.4 hours Mr. Ellis spent litigating the fee request.
Courts may award fees for services provided in conjunction with the recovery of attorney
fees. Emerald People’s Util. Dist. v Pacificorp, 801 P.2d 141, 143 (Or. 1990). “[T]he recovery
of attorney fees, costs and expenses to which a prevailing party is entitled by statute is related to
the prosecution or defense of the action.” Id. And, attorney fees for an attorney fee petition are
related to the prosecution of the action. Id.
Given Pacificorp, it is clear that I may award attorney fees to Mr. VanValkenburg for the
costs associated with litigating their attorney fee petition. The time spent by Ms. Payne and Mr.
Ellis is reasonable, and thus, I award the full fees requested, for a total amount of $8,605.00.5
The fee multiplier is not applied to this award.
II. Costs and Disbursements
Mr. VanValkenburg also seeks reimbursement for his costs in this case. ODOC objects
to some of the costs on the grounds that they are not recoverable under federal law. For the
following reasons, Mr. VanValkenburg may recover $18,155.19 in costs and disbursements.
The Ninth Circuit applies “state law in determining not only the right to fees, but also []
the method of calculating the fees,” when the fees are based on state law claims. Mangold v.
Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995) (explaining that “calculation of the
amount of the fee is bound up in the substantive state right”). ODOC relies on Hunt v. City of
Portland, CV 08-802-AC, 2011 WL 3555772 (D. Or. Aug. 11, 2011), to argue that federal law
5

Ms. Payne spent 18.5 hours on the attorney fee petition and response. At her hourly rate of $300 per hour, her
attorney fees total $5,550. Mr. Ellis spent 9.4 hours on the attorney fee petition and response. At $325 per hour, his
attorney fees total $3,055.

14 – OPINION AND ORDER

governs the award of costs in this case. There, Judge Acosta applied Federal Rule of Civil
Procedure 54 and federal statutory law to determine the award of costs in a case where the party
prevailed on both federal and state-law claims. Id. at *5-6. But Judge Acosta did not analyze
whether state or federal law governed the award of costs, so it is not clear why he applied federal
law. It is possible that federal law governed in that case because the party prevailed on a mix of
federal and state law claims. The Ninth Circuit clearly explained, however, in Mangold that state
law governs in diversity cases where the plaintiff prevails on a state law claim, and thus, state
law governs Mr. VanValkenburg’s petition for costs and disbursements.
Having determined that state law governs the award of costs in this case, I turn to the
Oregon Rules of Civil Procedure to analyze what costs may be recovered by Mr.
VanValkenburg. Oregon Rule of Civil Procedure 68 provides:
[C]osts and disbursements shall be allowed to the prevailing party unless these
rules or any other rule or state direct that in the particular case costs and
disbursements shall not be allowed to the prevailing party . . ., or unless the court
otherwise directs. If, under a special provision of these rules or any other rule or
statute, a party has a right to recover costs, that party shall also have a right to
recover disbursements.
Or. R. Civ. Pro. 68(B). Costs and disbursements are defined as:
[R]easonable and necessary expenses incurred in the prosecution or defense of an
action, other than for legal services, and include the fees of officers and witnesses;
the expense of publication of summonses or notices, and the postage where the
same are served by mail; . . . the expense of copying of any public record, book, or
document admitted into evidence at trial; . . . ; and any other expense specifically
allowed by agreement, by these rules, or by any other rule or statute.
Or. R. Civ. Pro. 68(A)(2). In addition, courts have the discretion to award reasonable costs for
interpreter services. Id. But the expense of depositions is not recoverable even if they were used
at trial. Id.

15 – OPINION AND ORDER

Based on Rule 68, Mr. VanValkenburg is entitled to recover his costs for witness
subpoena fees ($93.59), copies of documents admitted into evidence ($421.40), and fees for
service of summons ($226.75). I also find that Mr. VanValkenburg may recover costs for the
use of interpreter services ($6,940.00). ODOC does not object to the cost for interpreter
services, and given the nature of this case, such services were clearly a reasonable expense.
Mr. VanValkenburg also seeks to recover costs for several expert witnesses. First, he
seeks to recover $5,080.95 in witness fees for Dr. Jean Andrews, who testified on his behalf at
trial. In addition, he seeks to recover $4,817.50 in fees for three expert opinions he provided in
support of his fee petition. Dr. Andrews’s expert witness fees are recoverable under Oregon
Rule of Civil Procedure 68 as a cost incurred in the litigation. In addition, under Pacificorp, the
fees for the expert opinions in support of Mr. VanValkenburg’s fee petition are also recoverable.
801 P.2d at 143 (explaining that courts may award “fees for services provided in conjunction
with the recovery of the underlying [attorney] fees.”); see also Or., By and Through Dept. of
Transp. v. Gonzales, 703 P.2d 271, 273 (Or. App. 1985). Accordingly, Mr. VanValkenburg is
entitled to recover $9,898.45 in expert witness expenses for all four experts.
Finally, Mr. VanValkenburg is also entitled to recover a $575.00 prevailing party fee
under Oregon Law. Or. Rev. Stat. § 20.190(2)(a)(B) (explaining that a party that has the right to
recover costs and disbursements also has the right to recover the prevailing party fee). Although
I have discretion to award an enhanced prevailing party fee under Oregon Law, see Or. Rev. Stat.
§ 20.190(3), I decline to do so here. I believe the fee multiplier already awarded is sufficient to
compensate for the Section 20.190 factors that I already found weighed in favor of Mr.
VanValkenburg. Those factors do not justify an additional prevailing party fee in this case.

16 – OPINION AND ORDER

III. Litigation Expenses
Finally, Mr. VanValkenburg seeks to recover $5,383.89 in litigation expenses.
Specifically, Ms. Payne incurred out-of-pocket litigation expenses totaling $294.99 for copying
costs, travel reimbursement, and parking expenses. She claims those expenses are not included
in her hourly fee, as she typically bills clients for those expenses. Mr. Ellis’s litigation expenses
total $2,098.92 and include expenses for postage, messenger charges, travel reimbursement, and
focus group costs. He also states that these expenses are not included in his hourly rate and that
he typically bills his clients separately for these expenses. Finally, Haglund Kelley LLP’s
litigation expenses total $2,989.98 and they include expenses for filing fees, deposition costs,
messenger service costs, and mileage costs. ODOC did not object to these expenses. Regardless
of whether ODOC objected to the litigation expenses, Mr. VanValkenburg’s ability to recover
the expenses is governed by state law, so I must review the itemized expenses to ensure they
comport with what is allowed under the law.
Under Oregon law, courts should “include expenses specially billed to the client in the
attorney fees award when they are properly documented and are reasonable.” Willamette Prod.
Credit Ass’n v. Borg-Warner Acceptance Corp., 706 P.2d 577, 580 (Or. App. 1985). These
expenses are separate from an attorney’s hourly rate. Id.; see also Strawn II, 266 P.3d at 96.
Here, Haglund Kelly LLP seeks to recover $1,459.10 in deposition costs as litigation
expenses even though those costs are not recoverable under Oregon Rule of Civil Procedure 68.
I do not believe circumventing Rule 68 by charging such costs as litigation expenses is
appropriate. See Robinowitz v. Pozzi, 872 P.2d 993, 997 (Or. App. 1994) (explaining that the
“trial court had no authority to circumvent the distinction in ORCP 68 between attorney fees and

17 – OPINION AND ORDER

costs by including what are unrecoverable costs as attorney fees”). Accordingly, I decline to
award deposition costs as part of the litigation expenses.
All other litigation expenses are reasonable, and thus, Mr. VanValkenburg is entitled to
recover a total of $3,924.79 in litigation expenses. This includes $294.99 in litigation expenses
for Ms. Payne, $2,098.92 in litigation expenses for Mr. Ellis, and $1,530.88 in litigation
expenses for Hanglund Kelly LLP.
CONCLUSION
Pursuant to the above analysis, Mr. VanValkenburg is entitled to recover attorney fees,
costs, and litigation expenses. Specifically, I award Mr. VanValkenburg $683,873.13 in attorney
fees, $18,155.19 in costs, and $3,924.79 in litigation expenses.
IT IS SO ORDERED.
9th
DATED this _____ day of June, 2017.

/s/ Michael W. Mosman
____________________________
MICHAEL W. MOSMAN
Chief United States District Judge

18 – OPINION AND ORDER