Muller et al v. Country Mutual Insurance Company

Filing 91

Opinion and Order: The Court GRANTS in part Plaintiffs Motion 76 for Attorney Fees and AWARDS Plaintiff attorneys fees of $8,491.00. Signed on 09/19/2016 by Judge Anna J. Brown. See attached 9 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
STEPHEN and RENA MULLER,

No. 3:14-cv-01345-BR

Plaintiff,

OPINION AND ORDER

v.
COUNTRY MUTUAL INSURANCE
COMPANY,
Defendant.
BROWN, Judge.

This matter comes before the Court on Plaintiffs’ Motion
(#76) for Attorney Fees.

For the reasons below, the Court GRANTS

in part Plaintiffs’ Motion and awards interim attorneys’ fees in
the amount of $8,491.00.

BACKGROUND
This action arises from Defendant’s denial of coverage for a
fire-loss claim submitted by Plaintiffs.

In the course of

discovery Plaintiffs noticed the deposition of a corporate
representative of Defendant pursuant to Federal Rule of Civil
Procedure 30(b)(6).

Defendant’s designated representative

appeared for deposition in August 2015.

That deposition was

suspended per the agreement of the parties and continued to
December 2015 when it was concluded.

Thereafter Plaintiffs filed

a Motion (#58) in Limine to exclude testimony or evidence at
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trial inconsistent with the corporate representative’s deposition
testimony.

Following a hearing on the Motion in Limine, the

Court denied Plaintiffs’ Motion as premature.

The Court,

however, gave Plaintiffs leave to file a motion for attorneys’
fees on the ground that Plaintiffs’ Motion in Limine “was
necessitated by Defendant’s failure to prepare its Federal Rule
of Civil Procedure 30(b)(6) witness adequately.”
Plaintiffs seek $19,990.00 in attorneys’ fees.

DISCUSSION
I.

Plaintiffs are entitled to attorneys’ fees.
Federal Rule of Civil Procedure 37 allows the Court in its

discretion to award expenses incurred regarding disputed
discovery matters.

Plaintiffs seek attorneys’ fees pursuant to

Rule 37(a)(5) and 37(d)(3).

Rule 37(a)(5) relates to payment of

expenses for bringing or defending a motion for protective order,
and Rule 37(d)(3) allows sanctions to be awarded when a party
fails to appear for a deposition or fails to provide responses to
discovery requests.

Here, as part of its Response to Plaintiffs’

Motion in Limine, Defendant sought a protective order “that does
not allow Plaintiffs to force [the corporate designee] to read
every fact deposition that has been taken in order to recite
every fact that may support the intentional act and
misrepresentation defenses in this case.”
at 8.

Def.’s Resp. (#64)

Plaintiffs filed an eight-page Reply in support of their

Motion in Limine that included only a brief response to
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Defendant’s request for a protective order.

Pls.’ Reply (#68)

at 5-6.
Although Plaintiffs did not seek attorneys’ fees in their
Motion in Limine, in their Reply, however, they requested “an
Order requiring Defendant to pay Plaintiffs’ reasonable costs and
attorney fees for opposing Defendant’s Motion for Protective
Order, or in the alternative, for the time spent in preparing and
attending the FRCP 30(b)(6) deposition of the Defendant.”

Pls.’

Reply (#68) at 8.
Following the hearing on Plaintiffs’ Motion in Limine, the
Court found the Motion was “necessitated by Defendant’s failure
to prepare its [corporate designee] adequately.”

The Court now

concludes, therefore, that Defendant’s conduct falls within the
purview of Rule 37, and Plaintiffs are entitled to an award of
attorneys’ fees.
II.

Plaintiffs are entitled to reasonable attorneys’ fees in the
amount of $8,491.00.
A.

Standards
The Supreme Court has stated under federal fee-shifting

statutes that "the lodestar approach" is "the guiding light" when
determining a reasonable fee.
551 (2010).

Perdue v. Kenny A., 559 U.S. 542,

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
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may be increased, "there is a strong presumption that the
lodestar is sufficient."

Id. at 556.

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.

Ret. Income Plan For Hourly-rated Emps. Of Asarco, Inc., 512 F.3d
555, 565 (9th Cir. 2008)(quotations omitted).

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:
(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., 307 F.3d 997,
1007 n.7 (9th Cir. 2002)(quotation omitted).

A rote recitation

of the relevant factors is unnecessary as long as the court
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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).

See also Van Gerwen v. Guar. Mut. Life Co., 214 F.3d

1041, 1047 (9th Cir. 2000)(“the district court need only provide
a ‘concise but clear explanation for its reasons’ for reducing
the number of hours included in a fee award”).
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.'"

Summers v. Carvist

Corp., 323 F. App'x 581, 582 (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."

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)).

B.

Time Incurred in Connection with Plaintiffs’ Motion in
Limine
Plaintiffs seek to recover attorneys’ fees for time

expended by counsel in the handling of Plaintiffs’ Motion in
Limine.

The hourly billing records for these services were

submitted with the Declaration of Andrew C. Lauersdorf (#77).
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The billing records reflect a total of 55 hours expended by
Plaintiffs’ three attorneys:

Andrew Lauersdorf, FJ Maloney, and

Scott MacLaren.
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)).

The district court may determine whether hours are

excessive, redundant, or otherwise unnecessary, and thus
excludable, by conducting an hour-by-hour analysis of the fee
request.

Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th

Cir. 2013).
Lauersdorf expended a total of 15.8 hours, Maloney
expended a total of 12 hours, and MacLaren expended a total of
27.2 hours related to the Motion in Limine.

Between January 8,

2016, and March 4, 2016, MacLaren and Maloney together spent
20.1 hours in the preparation of the initial 28-page Motion in
Limine they filed on March 4, 2016.

Between March 21, 2016, and

April 4, 2016, all three counsel spent a total of 27.5 hours in
the preparation of Plaintiffs’ nine-page Reply in further support
of Plaintiffs’ Motion in Limine.

Between

April 5, 2016, and May 16, 2016, Lauersdorf spent 7.4 hours in
preparation for and his appearance at the court hearing on
Plaintiffs’ Motion in Limine.
In particular, on March 21, 2016, MacLaren spent 1.20
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hours analyzing Defendant’s Response and preparing an outline of
arguments.

On March 22, 2016, Maloney spent 4.10 hours also

reviewing and analyzing Defendant’s Response and drafting
Plaintiffs’ Reply, and MacLaren spent an additional 1.10 hours
that same day drafting the Reply.

On April 4, 2016, all three

counsel spent a total of 17.4 hours reviewing, supplementing, and
revising Plaintiffs’ Reply in support of the Motion in Limine
(MacLaren:

5.30 hours, Maloney:

3.70 hours, and Lauersdorf:

8.40 hours).
On this record the Court concludes the hours spent by
Plaintiffs’ attorneys were excessive, redundant, or otherwise
unnecessary, and, accordingly, the Court, in the exercise of its
discretion to reach a “reasonable” attorneys’ fee calculation,
reduces the number of hours to be included in the lodestar
calculation as follows:
Attorney

Requested
Hours

Reasonable
Hours

Andrew Lauersdorf

15.8

9.1

FJ Maloney

12.0

5.2

Scott MacLaren

27.2

16.6

55

30.9

TOTAL
C.

Counsels’ Requested Hourly Rate
Counsel request an hourly rate of $450.00 for

Lauersdorf and Maloney and $275.00 for MacLaren.
To determine the reasonable hourly rate of an attorney,
this Court uses the most recent Oregon State Bar Economic Survey

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published in 2013 as its initial benchmark.

Attorneys may argue

for higher rates based on inflation, specialty, or a number of
other factors.
In 2009 Maloney and Lauersdorf formed their law firm,
which currently has five attorneys and represents both insurance
companies and insureds.

According to the Lauersdorf Declaration

(#77), Maloney was admitted to the Oregon State Bar in 1995 and
has approximately 17 years of experience litigating insurance
coverage disputes; Lauersdorf was admitted to the Oregon State
Bar in 1998 and has 16 years of experience litigating insurance
coverage disputes; and MacLaren was admitted to the Oregon State
Bar in 2012 and has 4 years of litigation experience as an
associate.

All counsel have primarily handled the defense of

civil insurance litigation.
The Oregon State Bar Economic Survey indicates an
average hourly billing rate for attorneys in the Portland area of
$284.

For an attorney in the Portland area with 16-20 years

experience, the hourly billing rate is between $200 and $380 per
hour with an average of $256 per hour.

For attorneys with 4-6

years experience, the hourly billing rate is between $160 and
$295 per hour with an average of $210 per hour.

As noted, the

rate sought by Plaintiffs’ counsel is $450 per hour for Maloney
and Lauersdorf and $275 for MacLaren.
On this record the Court concludes a reasonable hourly

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rate for Maloney and Lauersdorf is $350 and a reasonable hourly
rate for MacLaren is $210.
Attorney

Hours

Rate

Fees

Andy Lauersdorf

9.1

$350

$3,185

FJ Maloney

5.2

$350

$1,820

Scott MacLaren

16.6

$210

$3,486

TOTAL

30.9

$8,491

CONCLUSION
For these reasons, the Court GRANTS in part Plaintiffs’
Motion (#76) for Attorney Fees and AWARDS Plaintiff attorneys’
fees of $8,491.00.
IT IS SO ORDERED.
DATED this 19th day of September, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

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