Zweizig v. Northwest Direct Teleservices, Inc. et al
Filing
338
OPINION & ORDER: Plaintiff's Motion for Attorney Fees and Costs 250 and Supplemental Motion for Attorney Fees and Costs 260 are GRANTED in part. Plaintiff is awarded $162,995.00 in fees and $515.80 in costs. Signed on 11/11/2019 by Judge Marco A. Hernandez. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
No. 3:15-cv--02401-HZ
MAX ZWEIZIG,
Plaintiff,
v.
NORTHWEST DIRECT TELESERVICES,
INC., et. al.,
Defendants.
Joel Christiansen
VOGELE & CHRISTIANSEN
812 NW 17th Avenue
Portland, OR 97209
Attorney for Plaintiff
Timothy Rote
24790 SW Big Fir Road
West Linn, OR 97068
Pro Se Defendant
1 – OPINION & ORDER
OPINION & ORDER
HERNÁNDEZ, District Judge:
Plaintiff Max Zweizig brought this whistleblower retaliation action under Or. Rev. Stat.
§ (“ORS”) 659A.030 against Defendants Northwest Direct Teleservices, Inc., Northwest Direct
Marketing of Oregon, Inc., Timothy Rote, Northwest Direct Marketing (Delaware), Inc.,
Northwest Direct of Iowa, Inc., Rote Enterprises, LLC, and Northwest Direct Marketing, Inc. On
March 13, 2017, an order of default was entered against all the unrepresented business entities on
Plaintiff’s claim for whistleblower retaliation. The aiding and abetting claim against Defendant
Rote (“Defendant”) was tried to a jury on January 16 and 17, 2018. The jury returned a verdict
awarding Plaintiff $1,000,000 in noneconomic damages. On July 25, 2018, the Court reduced
Plaintiff’s award of noneconomic damages to $500,000 pursuant to ORS 31.710(1).
Plaintiff now moves for $166,810.00 in attorney fees. Christiansen Decl. Ex. 1 at 18, ECF
261-1. For the reasons explained below, Plaintiff’s motion is granted in part. Plaintiff is awarded
$162,995.00 in fees and $515.80 in costs.
STANDARDS
State law governs attorney fees in diversity cases. See Riordan v. State Farm. Mut. Auto.
Ins. Co., 589 F.3d 999, 1004 (9th Cir. 2009). Under ORS 659A.885(1), the court “may allow the
prevailing party costs and reasonable attorney fees at trial and on appeal” in an action under ORS
659A.030. An award of attorney fees under Oregon law is governed by ORS 20.075 and is
within the court's discretion. Ashley v. Garrison, 162 Or. App. 585, 592 n.3, 986 P.2d 654
(1999); see also ORS 20.075(3). The Court, however, is only authorized to award reasonable
attorney fees. ORS 20.075(4).
2 – OPINION & ORDER
ORS 20.075(1) lists eight factors that a court “shall consider . . . in determining whether
to award attorney fees in any case in which an award of attorney fees is authorized by statute and
in which the court has discretion to decide whether to award attorney fees”:
(a) The conduct of the parties in the transactions or occurrences that gave rise to
the litigation, including any conduct of a party that was reckless, willful,
malicious, in bad faith or illegal.
(b) The objective reasonableness of the claims and defenses asserted by the parties.
(c) The extent to which an award of an attorney fee in the case would deter others
from asserting good faith claims or defenses in similar cases.
(d) The extent to which an award of an attorney fee in the case would deter others
from asserting meritless claims and defenses.
(e) The objective reasonableness of the parties and the diligence of the parties and
their attorneys during the proceedings.
(f) The objective reasonableness of the parties and the diligence of the parties in
pursuing settlement of the dispute.
(g) The amount that the court has awarded as a prevailing party fee under ORS
20.190.
(h) Such other factors as the court may consider appropriate under the
circumstances of the case.
See also Preble v. Dep't of Revenue, 331 Or. 599, 602, 19 P.3d 335 (2001).
If the court elects to award attorney fees under ORS 20.075(1), ORS 20.075(2) requires
the court to consider the factors identified in subsection (1) together with the eight factors set
forth in subsection (2) to determine the amount of any such award. The subsection (2) factors
include:
(a) 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.
3 – OPINION & ORDER
(b) 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.
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved in the controversy and the results obtained.
(e) The time limitations imposed by the client or the circumstances of the case.
(f) The nature and length of the attorney's professional relationship with the client.
(g) The experience, reputation and ability of the attorney performing the services.
(h) Whether the fee of the attorney is fixed or contingent.
ORS 20.075(2); see also McCarthy v. Or. Freeze Dry, Inc., 327 Or. 84, 327 Or. 185, 957 P.2d
1200 (1998). A court satisfies the requirements of ORS 20.075(1)–(2) by including in its order a
brief description of or citation to the factor or factors on which it relies when granting or denying
an award of attorney fees. McCarthy, 327 Or. at 185. The Court is not required to make findings
about irrelevant or immaterial factual matters or legal criteria. Id.
DISCUSSION
“Oregon courts have construed [ORS 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., 227 Or. App. 165, 167, 205 P.3d 70 (2009). Oregon courts
generally award attorney fees based on the lodestar method—the reasonable hourly rate
multiplied by the reasonable number of hours worked—although there is room for adjustment
based on the factors set forth in ORS 20.075. See generally Strawn v. Farmers Ins. Co. of Or.,
353 Or. 210, 220–22, 297 P.3d 439 (2013).
4 – OPINION & ORDER
Plaintiff seeks compensation for 467.5 hours of work performed by attorney Joel
Christiansen. Christiansen Decl. Ex. 1 at 18, ECF 261-1. Defendant opposes Plaintiff’s motion.1
For the reasons below, the Court grants in part Plaintiff’s motion and awards $162,995.00 in
attorney fees and $515.80 in costs.
I.
Subsection (1) Factors
Defendant argues that under the subsection (1) factors, Plaintiff’s attorney fee award
should be limited. Defendant argues that all the factors—except for ORS 20.075(1)(g), which is
inapplicable here—favor denying an award of fees in this case. Specifically, Defendant points to
alleged deceitful and malicious conduct by Plaintiff’s counsel, the nature of Defendant’s blog,
and Defendant’s attempts to resolve the dispute. Def. Resp. 4–6, ECF 269. Plaintiff replies by
emphasizing, among other things, Defendant’s underlying conduct, the jury’s verdict, the nature
of the claim, the extensive motions practice, Plaintiff’s attempts at settlement, and other factors
discussed in Section II below. Pl. Reply 3–6, ECF 282.
Based on the record, the Court finds that the subsection (1) factors weigh in favor of an
award of fees in this case. Plaintiff’s counsel pursued settlement and successfully prosecuted this
case. Christiansen Decl. ¶ 10, ECF 261; Christiansen Decl. Ex. 3, ECF 283. Two of Plaintiff’s
three claims were reasonable. See Order, ECF 95 (“While the Court does not believe there is any
way that Plaintiff’s Claim 1 can survive, it nevertheless provides Plaintiff an opportunity to
respond before the claim is dismissed.”). The Court recognizes that Defendant’s conduct in the
present litigation has included demeaning personal and professional allegations about Plaintiff
and his counsel and significant motions practice. Christiansen Decl. ¶ 12, ECF 261. In addition,
1
Defendant also objects to the award of attorney fees in this case because of a prior employment
agreement between Defendant NDT and Plaintiff. Def. Resp. 2, ECF 256. The Court has
previously rejected this argument and declines to address it further.
5 – OPINION & ORDER
this action arose out of the parties’ significant litigation history and Defendant’s subsequent
public blog containing details about Plaintiff and his participation in a separate legal proceeding.
In sum, the underlying conduct, reasonableness of the claims, reasonableness of the conduct of
the parties and counsel throughout the litigation, and the diligence of the parties in settling the
dispute all weigh in favor of awarding fees in this case.
II.
Subsection (2) Factors
Defendant also argues that an award of fees for Plaintiff’s counsel is not warranted under
the subsection (2) factors. Def. Resp. 6–8. The Court disagrees.
a.
Subsection (2)(b)—Preclusion of Other Work
Defendant argues that this factor weighs against an award of fees because “Plaintiff’s
website makes it clear that he does not take on many cases or work much.” Def. Resp. 7. Plaintiff
responds that Defendant’s sporadic and voluminous filings prevented counsel from accepting
other employment during the pendency of this case. Pl. Reply 6; Christiansen Decl. ¶ 12, ECF
261.
Subsection (2)(b) directs the court to look at “[t]he likelihood, if apparent to the client,
that the acceptance of the particular employment by the attorney would preclude the attorney
from taking other cases.” ORS 20.075(2)(b) (emphasis added). As the district court has
previously recognized, “the subsection’s language clearly contemplates a prospective
assessment, not one informed by hindsight[.]” Beck v. Metro. Prop. & Cas. Ins. Co., 3:13-cv00879-AC, 2016 WL 4978411, at *20 (D. Or. Sept. 16, 2016). Mr. Christiansen does not address
either his client’s or his own prospective assessment of the time required to litigate this case.
Instead, Mr. Christiansen focuses on Defendant’s behavior throughout the litigation. Without
further information demonstrating that Plaintiff knew from the outset that this case would
6 – OPINION & ORDER
preclude Mr. Christensen from accepting other employment, the Court declines to give weight to
this factor in determining the appropriate fee award.
b.
Subsection (2)(d)—Amount Involved in the Controversy and Results
Obtained
Defendant argues that the amount involved in the controversy and the results obtained
weigh against an award. Def. Resp. 7. He notes that Plaintiff raised his jury demand to
$2,000,000 at trial and obtained a $1,000,000 damages award. Id. He also asserts that the
conduct by Mr. Christiansen was “atrocious” in closing. Id. Plaintiff responds by emphasizing
the significant size of the damages award in this case in the absence of any economic loss. Pl.
Suppl. Mot. Att’y Fees (“Pl. Mot.”) 9–10, ECF 260; Pl. Reply 6, ECF 282.
Subsection (2)(d) focuses on the amount involved in the controversy and the results
obtained in the litigation. Initially, Plaintiff sought $150,000 in compensatory damages and
$1,000,000 in punitive damages. Compl., ECF 1. Though Plaintiff was unable to proceed with
his request for punitive damages at trial, the size of the non-economic damages awarded by the
jury in this case was significant at $1,000,000. Plaintiff succeeded in various motions, but on at
least two occasions the Court had to seek additional input from Plaintiff in considering the
claims at issue in this case. See Order, ECF 60 (seeking additional briefing after review of
Plaintiff’s motion because “[i]t appears to the Court that the counterclaims at issue should be
dismissed, albeit for a different reason than Plaintiff raised); Order, ECF 95 (“While the Court
does not believe there is any way that Plaintiff’s Claim 1 can survive, it nevertheless provides
Plaintiff an opportunity to respond before the claim is dismissed.”). Neither party prevailed on
their respective summary judgment motions. Op. & Order, ECF 133. Thus, while the amount
involved in the controversy was great and Mr. Christiansen ultimately obtained a significant
damages award for Plaintiff, Plaintiff did not prevail at every turn. Cf. Beck, 2016 WL 4978411,
7 – OPINION & ORDER
at *21 (emphasizing that the plaintiff “prevailed on every discovery and dispositive motion
during the litigation phase of the case” and finding that “the results [the plaintiff] obtained during
this phase of the case are as significant as the jury’[s] verdict”). On balance, however, this factor
weighs in Plaintiff’s favor.
c.
Subsection (2)(e)—Time Limitations Imposed by the Client or Circumstances
Subsection (2)(e) takes into account any time limitations imposed by the client or the
circumstances of the case. This Court finds that this factor is neutral. Neither the client nor the
case imposed any unique time limitations. Indeed, this case proceeded slowly and was three
years old at the time judgment was entered.
d.
Subsection (2)(f)—Nature and Length of the Attorney’s Professional
Relationship with the Client
Defendant contends that the nature and length of the relationship weigh against awarding
fees because Plaintiff’s counsel first joined a related action filed in 2014 and left that case to
pursue this one. Def. Resp. 7. Plaintiff responds that this case took three years of work and will
continue for several years on appeal. Pl. Mot. 10. He also emphasizes the long history of
litigation between the parties, including arbitration and numerous lawsuits. Id.
Under subsection (2)(f), the Court evaluates the nature and length of the attorney’s
professional relationship with the client. Plaintiff’s emphasis on the long history between
Defendant and Plaintiff is misplaced. These facts go to the nature and length of the relationship
between the parties rather the relationship between Plaintiff and Mr. Christiansen. Mr.
Christiansen did, however, begin representing Plaintiff in a related action in 2014 and therefore
had a professional relationship that preexisted the present litigation. See Zweizig v. Rote, et. al.,
3:14-cv-00406-HZ. Thus, while the relationship between Plaintiff and counsel was limited to the
four years preceding the judgment in this case, Mr. Christiansen had unique insight into this
8 – OPINION & ORDER
matter because of his involvement in the related 2014 case. This factor weighs slightly in favor
of awarding the requested fees.
e.
Subsection (2)(h)—Fixed or Contingent Fee
Defendant asserts that Plaintiff’s fee arrangement with Mr. Christiansen was
contingent—“50% of the award, plus 50% of any award of legal fees”—and appears to suggest
that this weighs against an award of attorney fees. Def. Resp. 8. Plaintiff responds that this factor
weighs in his favor because the fee in this case is contingent. Christiansen Decl. ¶ 11, ECF 261;
Christiansen Decl. ¶¶ 2–4, ECF 283.
The Court finds that the contingent fee agreement in this case weighs in favor of an
award. According to Mr. Christiansen, his contingent fee in this case was “equal to whatever the
Court awards” and “decides is reasonable.” Christiansen Decl. ¶ 3, ECF 283. In other words, Mr.
Christiansen would recover nothing for his work in the absence of court awarded fees. Id. Thus,
Mr. Christiansen took the significant risk of not being compensated for the time he spent on this
case, which involved unpredictable and frequent motions practice. See Beck, 2016 WL 4978411,
at *22 (noting that the defendant’s “litigation strategy increased the risk to [the plaintiff’s]
attorneys that they might not be fully compensated for their time”).
f.
Subsections (2)(c) and (2)(g)—Reasonable Hourly Rate
In determining the reasonable hourly rate, the Court looks to the fee customarily charged
in the locality for similar legal services under subsection (2)(c) and the experience, reputation,
and ability of the attorney performing the services under (2)(g). Precision Seed Cleaners v.
Country Mut. Ins. Co., 976 F.Supp.2d 1228, 1243 (D. Or. 2013). “As a benchmark for comparing
an attorney’s billing rate with the fee customarily charged in the locality, this Court uses the
9 – OPINION & ORDER
most recent Oregon State Bar (OSB) Economic Survey.” Id. at 1244. The most recent OSB
Economic Survey was published in 2017.2
Plaintiff seeks fees based on an hourly rate of $280 and $300 for work done by Mr.
Christiansen from 2015–2017 and 2018, respectively. Pl. Mot. 6. In 2018, Mr. Christiansen had
practiced law in Oregon for ten years. Christiansen Decl. ¶ 2, ECF 261. During law school, he
clerked at a plaintiff-side class action firm. Id. at ¶ 5. Since that time, his practice has focused on
employment law. Id. at ¶ 3. Mr. Christiansen has been counsel of record in numerous state and
federal cases in Oregon. Id. at ¶ 4. Attorney Robert Meyer—an experienced employment
litigator—declares that the sought-after rates are reasonable and consistent with rates of other
attorneys in this practice area. Meyer Decl. ¶¶ 11–13, ECF 263. He further asserts that Mr.
Christiansen is a pragmatic and outcome-focused lawyer and known in the plaintiff-side legal
community as “a knowledgeable, effective practitioner in employment discrimination cases.” Id.
at ¶¶ 12–13. According to the 2017 OSB Economic Survey, the average hourly rate is $280 for
Portland attorneys with 7-9 years of experience and $300 for attorneys with 10-12 years of
experience. For plaintiff-side civil litigators, the median billing rate is $300.
Defendant argues that the sought-after rates are unreasonable and points to counsel’s lack
of overhead costs and the rates sought in unrelated cases by other attorneys in Portland. Def.
Resp. 8–9. However, Plaintiff’s overhead costs, or lack thereof, have no bearing on whether Mr.
Christiansen’s hourly rate is reasonable. And the comparator rates provided by Defendant are not
helpful in this case. One comparator rate comes from a 2016 declaration in an unrelated case that
cites to the 2008 OSB Economic Survey, which is now 11 years old. Rote Decl. Ex. 1, ECF 270-
2
The most recent OSB Economic Survey is available at
https://www.osbar.org/_docs/resources/Econsurveys/17EconomicSurvey.pdf
10 – OPINION & ORDER
1. The declarant admits that the sought-after rates of $235 for a partner and $195 for an associate
were below the average and median rates in 2008. Id. The other comparator rate comes from an
attorney fee petition filed in Multnomah County Circuit Court that refers to insurance rates and
does not cite to the OSB Survey. Rote Decl. Ex. 2. Thus, Defendant’s evidence has no bearing on
the Court’s analysis.
The Court finds that Mr. Christiansen’s rates are reasonable considering the fee
customarily charged in Portland for similar legal services and the experience, reputation, and
ability of Mr. Christiansen. As described above, the hourly rates sought by Mr. Christiansen are
consistent with the median rates for similar legal services in Portland performed by attorneys
with similar years of experience. According to Mr. Meyer, Mr. Christiansen is a reputable
attorney in the community and is an effective practitioner. In light of this evidence, Mr.
Christiansen shall recover the reasonable rates of $280 for work performed between 2015 and
2017 and $300 for work performed in 2018.
g.
Subsection (2)(a)—Reasonable Number of Hours
Plaintiff seeks compensation for 467.5 hours of work performed by Mr. Christiansen.
Christiansen Decl. ¶ 7, Ex. 1 at 18, ECF 261. Mr. Christiansen declares that the hours billed were
reasonably and necessarily incurred in litigating this case. Id. at ¶ 7. He asserts that “throughout
the litigation, [he] tried to be as efficient as possible.” Id. at ¶ 9. He also notes that he found
Defendant’s “litigation tactics to be unpredictable, confusing, and at times vexatious.” Id. Linda
Marshall—an attorney with 47 years of experience in employment law and employment
practices—declares that Mr. Christiansen’s charges are conservative and reasonable. Marshall
Decl. ¶¶ 1, 8–9, ECF 262. She further asserts that “a large proportion of Mr. Christiansen’s time
11 – OPINION & ORDER
was necessary to respond to various motions and legal maneuvers initiated by Mr. Rote.” Id. at ¶
9.
“Under subsection 2(a), [the Court] analyze[s] the time and labor required in the
proceeding, the novelty and difficulty of the questions involved, and the skill needed to properly
perform the legal services.” Precision Seed Cleaners, 976 F.Supp.2d at 1249. As an initial
matter, the Court does not find that the issues in this case were exceedingly novel or complex or
that exceptional skill was needed to perform the legal services. As Plaintiff points out, at times
the issues presented by this case were somewhat unique in that Plaintiff was proceeding against
Defendant for aiding and abetting defunct and defaulted corporate entities and only sought noneconomic damages. Pl. Mot. 8. This case also presented a novel issue of Oregon law after trial.
See Op. & Order, ECF 228 (discussing whether ORS 31.710 applies to employment cases). But,
at its core, this case involved a whistleblower retaliation claim arising out of an employment
relationship and drew on established case law. See e.g. Roberts v. Interstate Distrib. Co., 242 F.
Supp.2d 850, 857 (D. Or. 2002) (“[E]mployment discrimination claims usually do not involve
novel issues of law.”); Baker v. Maricle Indus., Inc., 6:16-cv-01793-AA, 2017 WL 1043282 (D.
Or. Mar. 17, 2017) (discussing a claim under ORS 659A.030(1)(g), the statute at issue here,
brought against a corporate president). While litigating against Defendant presented some
challenges and required time and labor, the narrow factual scope of this case and the single claim
at issue at trial did not require significant time or skill.
In his response to Plaintiff’s motion for attorney fees, Defendant objects to several
categories of time spent by Plaintiff's counsel. See Def. Resp. 9–12. Without repeating in detail
each of Defendant’s objections and Plaintiff’s responses, the Court addresses each category of
time and deducts time from Plaintiff’s requested hours as appropriate.
12 – OPINION & ORDER
First, Defendant objects to time Mr. Christiansen spent reviewing Defendant’s blog.
Plaintiff responds that the nearly 40 hours reviewing the blog were reasonable because it was
routinely edited and was voluminous at the time of trial. Pl. Reply. 8–10. This Court agrees with
Plaintiff. The content of Defendant’s blog was the heart of this case and was over 300 pages
long. It was also edited and updated throughout this case. The requested time is therefore
reasonable.
Second, Defendant argues that time spent drafting and reviewing various legal pleadings
and motions was excessive:
(1) Time Spent Drafting the Complaint: Defendant argues that the 14 hours spent by
Plaintiff drafting the compliant is excessive by 50%. A review of the requested time reveals,
however, that Plaintiff only billed 4.1 hours for drafting the complaint and .4 hours for drafting
an amended complaint. Christiansen Decl. Ex. 1 at 1, 14, ECF 261. The Court finds the requested
time is reasonable.
(2) Time Spent Reviewing Rote’s Motion to Dismiss and Defendants’ Answers:
Defendant argues that the 15.1 hours and 14 hours spent reviewing these documents is excessive
by 75%. Plaintiff responds that Defendant filed numerous amended and responsive pleadings and
filed and withdrew many motions to dismiss. The record supports Plaintiff’s argument.
Defendant amended his responsive pleadings multiple times. Am. Answer, ECF 19; Am.
Answer, ECF 29; Mot. Am. Answer, ECF 85; Am. Answer, ECF 98. He also filed several
motions to dismiss and strike. Mot. Strike (withdrawn), ECF 33; Mot. Dismiss (withdrawn), ECF
28; Mot. Dismiss, ECF 78. The Court agrees with Plaintiff that the hours spent reviewing these
documents are reasonable.
13 – OPINION & ORDER
(3) Time Spent on Opposition to Motion to Dismiss: Defendant argues that 60.7 hours
spent on Plaintiff’s opposition to Defendant’s Motion to dismiss is excessive by 75%. It is
unclear to the Court how Defendant determined that counsel spent 60.7 hours on the opposition
to Defendant’s Motion to Dismiss. Billing records submitted by Plaintiff suggest that counsel
spent 29.5 hours researching and drafting the responses to Defendant’s motions to dismiss in
March, May, October and November of 2016. Christiansen Decl. Ex. 1 at 2–7, ECF 261. The
Court finds this time reasonable.
(4) Time Spent on Motion for Summary Judgment and Response: Defendant argues that
the 61.6 hours counsel spent on the motion for summary judgment and response is excessive by
at least 75%. Again, it is unclear to the Court how Defendant arrived at this figure. The records
appear to reflect 56.4 hours spent by counsel reviewing materials, assembling materials,
conducting legal research, and drafting the briefing related to Plaintiff’s and Defendant’s
motions for summary judgment. In July of 2016, Plaintiff spent 5.2 hours responding to
Defendant’s premature motion for summary judgment. Christiansen Decl. Ex. 1 at 5. In the
summer of 2017, Plaintiff spent 20.7 hours researching and drafting his 17-page motion for
summary judgment, which included a nearly 500-page declaration. Mot. Summ. J. ECF 117;
Zweizig Decl., ECF 118. He spent another 9.4 hours drafting the 6-page reply after receiving a
33-page response from Defendant that included a declaration with over 2,000 pages of
supporting exhibits. Def. Resp. MSJ, ECF 119; Rote Decl., ECF 120. Counsel spent another 6
hours reviewing Defendant’s 35-page motion and 15.1 hours crafting his 13-page response to the
motion. Mot. Summ. J., ECF 115; Resp. MSJ, ECF 121. In light of the extensive briefing and
supporting evidence, the Court finds the requested hours are reasonable.
14 – OPINION & ORDER
(5) Time Spent on Form of Judgment: Defendant argues that the 38.9 hours spent on the
form of judgment was excessive by 75%. This Court disagrees. Here, it appears that Plaintiff
spent this time drafting the proposed judgment, reviewing Defendant’s objections to the
judgment, conducting legal research, drafting a response to the objections, reviewing the reply,
and drafting a surreply. Christiansen Decl. Ex. 1 at 14–16, ECF 261. Defendant’s objections to
the judgment included a complicated and unresolved issue under Oregon law as to whether the
non-economic damages cap in ORS 31.710 applied to this case. Accordingly, the time spent by
Plaintiff’s counsel was reasonable.
(6) Time Spent on the Anti-SLAPP Motion: Defendant argues that the 27.1 hours
Plaintiff’s counsel spent on an Anti-SLAPP motion was unreasonable because counsel used a
draft from another attorney in a different case. Def. Mot. 10. Plaintiff responds by emphasizing
that the motion was denied on different grounds, Plaintiff’s counsel billed less, and the Court
requested supplemental briefing. Pl. Reply 9–10. The Court finds that here Plaintiff’s requested
time is unreasonable. Per the Court’s calculation, Plaintiff spent 9 hours on the initial briefing,
Christiansen Decl. Ex. 1 at 3–4, and 8.9 hours on the supplemental briefing, id. at 5–6. The Court
ordered the supplemental briefing because “[i]t appear[ed] to the Court that the counterclaims at
issue should be dismissed, albeit for a different reason than Plaintiff raised.” Order, ECF 60.
Thus, the 9 hours spent on the initial briefing should be deducted from this case.
Third, Defendant argues that Plaintiff should not receive fees for: extension of time
requests that “were not caused by Defendant;” a response to the “Bernick Subpoena” because the
time was unnecessary; post-trial motions because Defendant prevailed on the non-economic
damages cap; and the motion for contempt and sanctions because it was “unreasonable.” Def.
Resp. 10–12. The Court finds these arguments unavailing. Plaintiff’s time for each of the above-
15 – OPINION & ORDER
described tasks was reasonable. It was prudent for counsel to prepare a response to the Bernick
Subpoena when Defendant listed Ms. Bernick as a witness at trial. Though Defendant prevailed
on the non-economic damages cap issue, Plaintiff prevailed on many of the issues raised in
Defendant’s post-trial motions, and Plaintiff was the prevailing party in this case. As to the
motion for sanctions, Plaintiff billed only an hour for reviewing Defendant’s motion for
imposition of sanctions and supporting declaration and .2 hours for communicating with his
client about these motions. Christiansen Decl. Ex. 1 at 17, ECF 261. Time billed for this
motion—which was denied by the Court at a telephone conference—was reasonable. Finally,
Plaintiff appears to have billed only 4.6 hours related to requests for extension of time. Two of
the requests were made in response to amended pleadings by Defendant. Id. at 2, 3. One request
was to extend the entire case schedule as the initial case deadlines approached. Id. at 3. Two of
the billing entries relate to requests for extensions by Defendant. Id. at 8, 14. And two more
relate to briefing complicated issues presented by Defendant after the close of trial. Id. at 14, 15.
All these requests and the associated time billed were reasonable and necessary in the context of
this litigation.
Fourth, Defendant argues that certain categories of time are not billable, including
“chatting with” Plaintiff, reviewing court orders, and 50 hours producing trial exhibits and
instructions. Def. Resp. 9–11. Plaintiff responds that he has not billed for administrative tasks,
and he asserts that time spent communicating with the client was reasonable given the nature of
this case and Defendant’s litigation approach. Pl. Reply. 8–9. He also argues that Defendant
incorrectly calculates Plaintiff’s time spent on trial exhibits and instructions. Id. at 10.
The Court finds that the 30 or so hours billed for communicating with Plaintiff over the
course of three years was reasonable, particularly in this case where the parties have a lengthy
16 – OPINION & ORDER
and complex history. As to the alleged administrative or clerical work, Defendant is correct that
this time is generally not recoverable. See Lafferty v. Providence Health Plans, No. 08-CV-6318TC, 2011 WL 127489, at *5 (D. Or. Jan. 14, 2011) (“It is well settled, both in this District and
elsewhere, that it is inappropriate to seek fees under a fee shifting statute for purely secretarial or
clerical work.”). But the Court disagrees with Defendant that the production of trial exhibits and
jury instructions—which the Court estimates amount to fewer than 20 hours—are administrative
tasks. Production of the jury instructions required substantive legal knowledge. And counsel
clarified in his reply that he only billed for time spent determining what trial exhibits to use and
how to incorporate them into his trial presentation. Pl. Reply 10. However, the Court has
determined that Plaintiff billed for seemingly clerical time on a few occasions. Specifically,
Plaintiff seeks time for scheduling issues and discussing scheduling with his client:
Date
4/14/2016
10/13/2016
Time
.1
.1
3/1/2017
.1
9/11/2017
.5
4/14/2016
.4
11/17/2017
.4
Task
Review Scheduling Order
Review Court Scheduling
Order
Review Court Scheduling
Order Setting Scheduling
Conference
Communication with Client
re: Scheduling
Communicate with client re:
scheduling et. al.
Communication with client
re: scheduling and strategy3
The Court also notes that Plaintiff billed for the administrative task of filing various trial
documents and deducts .1 hours for each of these three entries. See Christiansen Decl. Ex. 1 at 11
Plaintiff’s counsel actually billed .8 hours for this task. Because discussing strategy with his
client is billable time, the Court only deducts half of the time billed from Plaintiff’s overall
request. The .4-hour reduction is based on previous billing entries for scheduling conversations
with Plaintiff.
3
17 – OPINION & ORDER
(billing .2 hours for completing and filing Plaintiff’s exhibit list, .1 hours for completing and
filing Plaintiff’s statement of claims, and .3 hours for completing and filing Plaintiff’s witness
statement), ECF 261. Accordingly, 1.9 hours are deducted from the overall attorney fees request.
Finally, Defendant asserts that the fees should be allocated among Defendants. Def. Mot.
12. Plaintiff responds that Defendant’s argument is unavailing because the facts in this case were
so intertwined that they cannot be separated by Defendant. Pl. Reply. 8. Neither party cites any
legal authority to support their respective arguments. However, the Court finds that it need not
apportion fees among Defendants in this case. See e.g. Corder v. Gates, 947 F.2d 374, 383 (9th
Cir. 1991) (finding apportionment appropriate “when the time expended by the plaintiff in
pursuing each defendant was grossly unequal”). This case arose out of a single incident, and the
bulk of the conduct at issue at summary judgment and during trial pertained to Defendant.
Moreover, Defendant’s liability for aiding and abetting required a finding that the defaulted
corporate defendants were liable for retaliation. Thus, to the extent that these claims and the
underlying facts were segregable, the work performed on the whistleblower retaliation claim was
relevant to the claim against Defendant. Apportioning the fees in this case between Defendants
would therefore be improper.
h.
Fee Multiplier
In addition to the lodestar calculation, Plaintiff argues that the Court should apply a fee
multiplier of 1.25 to the attorney fees award in this case. In support of this argument, Plaintiff
cites the novelty and difficulty of the questions involved, the undesirability of the case, the skill
required to litigate this case, and the other factors discussed elsewhere in this decision. Pl. Mot.
7–11. Defendant objects to the award of a fee multiplier. He emphasizes counsel’s alleged abuse
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of the legal process in this case, the nature of the case, and the size and relatively low risk of this
case. Def. Resp. 13–14.
The Court has discretion to award an enhancement to the attorney fee request in the form
of a fee multiplier. See VanValkenburg v. Oregon Dep’t of Corrs., 3:14-cv-00916-MO, 2017 WL
2495496, at *5 (D. Or. June 9, 2017) (citing Griffin By & Through Stanley v. Tri-Cty. Metro.
Trasnp. Dist. of Or., 112 Or. App. 575, 584–85, 831 P.2d 42 (1992) aff’d in part and rev’d in
part on other grounds 318 Or. 500 (1994)). “Oregon law permits an enhancement of fees when it
is supported by the facts and circumstances of the case.” Beck, 2016 WL 4978411, at * 22.
Typically, enhanced fee awards are appropriate in cases where the recovery was an
“exceptional success,” . . . and other favorable factors exist, 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.
VanValkenberg, 2017 WL 2495496, at *6 (quoting Strunk v. Pub Emps. Ret. Bd., 343 Or. 226,
246 (2007)). The Court also considers the statutory factors under ORS 20.075 in determining
whether an enhanced fee is appropriate. Id. As stated above, such factors include “[t]he extent to
which an award of an attorney fee in the case would deter others from asserting meritless claims
and defenses” and “[t]he objective reasonableness of the parties and the diligence of the parties
and their attorneys during the proceedings.” ORS 20.075(1)(d)–(e).
The Court finds that a fee multiplier is appropriate in this case. As discussed above, the
Court recognizes that the issues presented by Plaintiff’s claims were, at times, somewhat unique
and this case involved a difficult litigant. See supra Section II(g). In addition, as part of his
efforts to vacate the judgment, Defendant has failed to comport himself in an objectively
reasonable manner. See ORS 20.075(e). In duplicative post-judgment filings, Defendant has
made unsubstantiated, inflammatory, and personal and professional attacks against both Plaintiff
and Mr. Christiansen. See, e.g., Def. Mot. Stay, ECF 325; Def. Reply Mot. Stay, ECF 327; Def.
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Mot. Vacate, ECF 330; Def. Reply Mot. Vacate, ECF 336. Mr. Christiansen has been required to
respond to these filings in an effort to enforce the judgment in this case. See e.g. VanDyke v.
BTS, Civil No. 08-561-KI, 2010 WL 56109, at *1 (D. Or. Jan. 4, 2010) (citing Johnson v. Jeppe,
77 Or.App. 685, 688, 713 P.2d 1090 (1986)) (“Under Oregon law, attorney fees to enforce a
judgment are ‘legal services related to the prosecution or defense of an action’ which the court
may consider when it awards attorney fees.”). Accordingly, considering the objective
reasonableness of Defendant’s behavior during the proceedings and the other factors identified
above, the Court awards Plaintiff the requested fee multiplier. Plaintiff is awarded a total
attorney fee award of $162,995.00.
V.
Costs & Other Expenses
Plaintiff also seeks costs under Federal Rule of Civil Procedure 54 and ORS
659A.885(1). He seeks recovery of the $400 filing fee and $115.80 in trial transcript copy costs.
Christiansen Decl. ¶ 8, Ex. 2, ECF 261. Defendant does not address costs in his response brief.
Federal and state law both allow the recovery of costs. See Fed. R. Civ. P. 54; 28 U.S.C.
§ 1920; ORS 659A.885(1). Specifically, a prevailing party may recover “[f]ees of the clerk,” 28
U.S.C. § 1920(1), and costs associated with trial transcripts as taxable costs under 28 U.S.C. §
1920, see Cleavenger v. Univ. of Oregon, CV 13-1908-DOC, 2016 WL 1065821, at *14 (D. Or.
Mar. 16, 2016) (citing Nemo v. City of Portland, No. CV-94-1553-ST, 1996 WL 437633, at *8
(D. Or. Apr. 9, 1996)) (noting that daily trial transcripts are awarded, if at all, under 28 U.S.C.
§ 1920). Plaintiff was the prevailing party, and the trial transcripts requested here were
reasonably necessary to the motions filed after trial. Thus, the Court finds it appropriate to award
these costs to Plaintiff.
///
20 – OPINION & ORDER
CONCLUSION
Plaintiff’s Motion for Attorney Fees and Costs [250] and Supplemental Motion for
Attorney Fees and Costs [260] are GRANTED in part. Plaintiff is awarded $162,995.00 in fees
and $515.80 in costs.
IT IS SO ORDERED.
Dated this ____________ day of__________________, 2019.
MARCO A. HERNÁNDEZ
United States District Judge
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