Pacific Coast Fruit Company Incorporated et al v. Squires
Filing
19
Opinion and Order. The Court GRANTS as modified Plaintiffs Motion 12 for an Award of Attorney Fees and Bills of Costs 15 against Defendant and AWARDS attorneys fees of $1,406.00, paralegal fees of $1,125.30, and costs of $465.00. Signed on 08/19/2016 by Judge Anna J. Brown. See attached 10 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PACIFIC COAST FRUIT COMPANY,
an Oregon Corporation,
3:16-cv-00463-BR
OPINION AND ORDER
Plaintiff,
v.
RON SQUIRES dba FOUR SEASONS
FARMERS MARKET,
Defendant.
BRENT G. SUMMERS
Tarlow Naito & Summers, LLP
2501 S.W. First Ave,
Suite 390
Portland, OR 97239
(503) 968-9000
Attorneys for Plaintiff
BROWN, Judge.
This matter comes before the Court on Plaintiff’s Motion
(#12) for An Award of Attorney Fees and Bill of Costs (#15).
For
the reasons that follow, the Court GRANTS as modified Plaintiff’s
Motion for an Award of Attorney Fees and Bill of Costs and AWARDS
1 - OPINION AND ORDER
Plaintiff attorneys’ fees of $1,406.00, paralegal fees of
$1,125.30, and costs of $465.00.
BACKGROUND
Plaintiff is in the business of buying and selling
perishable agricultural commodities (produce) and is a licensed
dealer subject to the Perishable Agricultural Commodities Act
(PACA), 7 U.S.C. § 499e.
Defendant signed an Account Agreement with Plaintiff for the
purchase of produce on credit, and between November 2014 and May
2015 Plaintiff sold and delivered produce to Defendant at a cost
of $32,758.91.
Defendant failed to pay for the goods that
Plaintiff sold to Defendant.
Pursuant to PACA Plaintiff also
became the beneficiary in a statutory trust to ensure that
suppliers would be paid when Defendant received produce from
Plaintiff.
On March 17, 2016, Plaintiff filed a Complaint in this Court
seeking to collect money from Defendant for goods Plaintiff sold
to Defendant.
Plaintiff personally served Defendant with Summons
and Complaint, but Defendant failed to answer or otherwise to
appear within the time required.
On May 18, 2016, the Court
granted Plaintiff’s Motion for Default and issued an Order of
Default against Defendant.
2 - OPINION AND ORDER
On May 25, 2016, the Court entered
Default Judgment in the amount of $32,758.91 against Defendant in
favor of Plaintiff.
DISCUSSION
I.
Plaintiff is entitled to reasonable attorneys' fees.
The Account Agreement between the parties provides for
attorneys’ fees as follows:
I/we further understand and agree that all accounts or
monies due shall be paid in accordance with the credit
terms stated and agree to pay all reasonable costs of
collection including any court costs and/or attorney
fees incurred.
In addition, this action was brought pursuant to PACA, and
contractual rights to interest and attorneys’ fees are within the
scope of a claim pursuant to PACA.
Middle Mountain Land and
Produce, Inc. v. Sound Commodities, Inc., 307 F.3d 1220, 1222-25
(9th Cir. 2002).
Accordingly, on this record the Court concludes Plaintiff is
entitled to reasonable attorneys' fees and costs in this matter.
II.
Plaintiff is entitled to attorneys' and paralegal fees in
the amount of $2,531.30.
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
3 - OPINION AND ORDER
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 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
4 - OPINION AND ORDER
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
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.'"
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 expended in connection with Plaintiff’s action.
Plaintiff seeks to recover attorneys’ fees for time
attorney Brent G. Summers and paralegal Teresa Chrisinger spent
in the handling of Plaintiff’s claims against Defendant.
The
hourly billing records for their services were submitted with the
5 - OPINION AND ORDER
Declaration of Brent G. Summers (#14).
Those records reflect a
total of 13.1 hours (3.80 hours by attorney Summers and 9.30
hours by paralegal Chrisinger) expended in investigating the
facts of the case, drafting the Complaint and service documents,
corresponding with the client, and preparing the Motion for
Default Judgment.
Even though Defendant has not appeared in this action
and, therefore, has not objected to Plaintiff’s requests, the
Court has an independent duty to review a motion for attorneys’
fees for reasonableness.
1398 (9th Cir. 1992).
Gates v. Deukmejian, 987 F.2d 1392,
See also Cruz v. Alhambra Sch. Dist., 282
F. App'x 578, 580 (9th Cir. 2008)(The district court has an
"obligation to articulate . . . the reasons for its findings
regarding the propriety of the hours claimed or for any
adjustments it makes either to the prevailing party's claimed
hours or to the lodestar.").
On this record the Court concludes the time expended by
attorney Summers and paralegal Chrisinger on this matter was
reasonable.
C.
Requested hourly rate for attorney Summers.
Counsel requests an hourly rate of $370.00 for his
time.
To determine the reasonable hourly rate of an attorney,
this Court uses the most recent Oregon State Bar Economic Survey
6 - OPINION AND ORDER
published in 2013 as its initial benchmark.
Attorneys may argue
for higher rates based on inflation, specialty, or any number of
other factors.
Attorney Summers states in his Supplemental
Declaration that he has over 33 years of experience as a
commercial lawyer handling collections, foreclosures, and other
loan engagements including agricultural liens and PACA claims and
regularly represents clients in state and federal court.
The
Oregon State Bar Economic Survey rates for an attorney with
comparable years of practice is between $282 and $450 per hour.
The rate sought by Plaintiff’s counsel is $370 per hour, which is
within the compensation range of the Economic Survey.
On this record the Court concludes the hourly rate of
$370 for attorney hours is reasonable.
At that rate, the Court
awards attorneys’ fees of $1,406.00.
D.
Requested hourly rate for paralegal Chrisinger.
Counsel requests an hourly rate of $175.00 for the time
spent by paralegal Chrisinger on this matter.
The Court relies on the National Utilization and
Compensation Survey Report published by The Association of Legal
Assistants•Paralegals (NALA) in 2015 to determine the reasonable
hourly billable rate for paralegals.
Attorney Summers states in
his Supplemental Declaration that paralegal Chrisinger has a
Bachelor of Arts degree in Political Science, has been employed
by the firm for over 13 years, and assists the firm with numerous
7 - OPINION AND ORDER
cases in preparing pleadings, preparing motions, trial
preparation, and assisting at trial.
The NALA survey indicates
for paralegals in the Far West Region (which includes Oregon) the
average hourly billing rate in 2014 was $133.
Specifically, for
paralegals with comparable years of experience (11-15 years) the
average hourly billing rate was $121.
This matter involved a relatively uncomplicated civillitigation issue rather than a complicated issue of business or
corporate litigation as illustrated by the fact that paralegal
Chrisinger expended more than two-thirds of the time required to
work on this case.
On this record the Court concludes an hourly rate of
$121 per hour for paralegal time is reasonable.
At that rate,
the Court awards paralegal fees in the amount of $1,125.30.
PLAINTIFF'S COSTS
Plaintiff requests an award of costs in the amount of
$465.00 comprised of the fee to file this action and service
fees.
Absent a showing of circumstances not relevant here, an
award of costs is governed by federal law.
See Champion Produce,
Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir.
2003).
28 U.S.C. § 1920 allows a federal court to tax specific
8 - OPINION AND ORDER
items as costs against a losing party pursuant to Federal Rule of
Civil Procedure 54(d)(1).
Section 1920 provides:
A judge or clerk of any court of the United States
may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part
of the stenographic transcript necessarily
obtained for use in the case;
(3)Fees and disbursements for printing and
witnesses;
(4)Fees for exemplification and copies of papers
necessarily obtained for use in the case;
(5)Docket fees under section 1923 of this title;
(6)Compensation for court-appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation
services under § 1828 of this title.
A bill of costs shall be filed in the case and,
upon allowance, included in the judgment or
decree.
Costs generally are awarded to the prevailing party in a
civil action as a matter of course unless the court directs
otherwise.
Fed. R. Civ. P. 54(d).
The court must limit an award
of costs to those defined in 28 U.S.C. § 1920 unless otherwise
provided for by statute.
Grove v. Wells Fargo Fin. Ca., Inc.,
606 F.3d 577, 579-80 (9th Cir. 2010).
Here the costs incurred for filing and service fees are
specifically allowed under § 1920.
Accordingly, the Court awards
costs to Plaintiff in the amount of $465.00.
CONCLUSION
For these reasons, the Court GRANTS as modified Plaintiff’s
9 - OPINION AND ORDER
Motion (#12) for an Award of Attorney Fees and Bills of Costs
(#15) against Defendant and AWARDS attorneys’ fees of $1,406.00,
paralegal fees of $1,125.30, and costs of $465.00.
IT IS SO ORDERED.
DATED this 19th day of August, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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