Great American Insurance Company v. Jackson, et al

Filing 86

Opinion and Order: The Court GRANTS Plaintiffs Motion 78 for an Award of Attorney Fees and Bill of Costs 81 against Defendant Edward D. Jackson and AWARDS Plaintiff attorneys fees in the amount of $22,776.00 and costs of $1,590.37. Signed on 01/30/18 by Judge Anna J. Brown. See attached Opinion and Order. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

GREAT AMERICAN INSURANCE
COMPANY, an Ohio corporation,

3:16-cv-02016-BR
OPINION AND ORDER

Plaintiff,
v.
EDWARD D. JACKSON, dba JSI
Motors, individually and an
assumed business name, et
al.,
Defendants

H. LEE COOK
H. Lee Cook Law, LLC
4207 S.W. Woodstock Blvd.
Suite 423
Portland, OR 97206
[phone]
Attorney for Plaintiff
BROWN, Judge.
This matter comes before the Court on Plaintiff’s Motion
(#78) for Award of Attorney Fees and Bill of Costs (#81) against
Defendant Edward D. Jackson.
1 - OPINION AND ORDER

For the reasons that follow, the

Court GRANTS Plaintiff’s Motion and AWARDS Plaintiff attorneys’
fees of $22,776.00 and COSTS in the amount of $1,590.37.

BACKGROUND
Plaintiff is an Ohio corporation authorized to post surety
bonds and to transact business in Oregon.
On April 19, 2016, Plaintiff Great American Insurance
Company posted an Oregon Motor Vehicle Bond in the amount of
$40,000.00 with the State of Oregon on behalf of Defendant
Jackson, dba JSI Motors, Inc.

The bond was required pursuant to

Oregon Revised Statutes § 822.030 in order for Jackson to obtain
a motor-vehicle certificate to conduct an automobile sales
business in Oregon.

Jackson signed the Surety Bond Agreement.

The bond was effective beginning April 19, 2016, but was
cancelled on September 7, 2016.
Eleven individuals and companies asserted claims against
Jackson that arose during the bond period.

The total claims

exceeded the face amount of the bond.
On October 19, 2016, Plaintiff filed an Interpleader
Complaint in this Court to resolve the competing claims made
against the bond.

Plaintiff named Jackson as a defendant and,

pursuant to the terms of the bond, asserted a claim of indemnity

2 - OPINION AND ORDER

for all costs and expenses (including attorneys’ fees) that were
incurred by Plaintiff as a consequence of posting the bond and
paying the claims against Jackson.

Jackson was personally served

with Summons and Complaint, but he failed to answer or otherwise
to appear within the time required.
On August 2, 2017, the Court granted Plaintiff’s Motion for
Default and issued an Order of Default against Jackson.
On November 9, 2017, the Court entered Default Judgment in
the amount of $40,000.00 against Jackson in favor of Plaintiff.

DISCUSSION
I.

Motion for Award of Attorneys’ Fees
A.

Plaintiff is entitled to reasonable attorneys' fees.

The Surety Bond posted on behalf of Jackson provides:
In consideration of the execution, renewal or
continuation by the Surety of the Bonds, the
Undersigned, jointly and severally, agree . . . [t]o
indemnify the Surety against all loss, liability,
costs, damages, attorney’s fees and expenses whatever,
which the Surety may sustain or incur by reason of
executing the Bonds, in making any investigation on
account thereof, in prosecuting or defending any action
which may be brought in connection therewith, in
obtaining a release therefrom, and in enforcing any of
the agreements herein contained.
Accordingly, based on this contractual agreement between the
parties, the Court concludes Plaintiff is entitled to recover
reasonable attorneys' fees.

3 - OPINION AND ORDER

B.

Plaintiff is entitled to attorneys' fees in the amount
of $22,706.00.
1.

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
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)).

4 - OPINION AND ORDER

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
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
5 - OPINION AND ORDER

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)).
2.

Time Spent in Connection with Representing
Plaintiff in this Action.

Plaintiff seeks to recover attorneys’ fees for the time
Attorney H. Lee Cook spent in handling this interpleader action
on behalf of Plaintiff.

The hourly billing records for the

services were submitted with the Declaration of H. Lee Cook
(#80).

Those records reflect a total of 87.60 hours spent in

investigating the facts of the case, analyzing all of the claims
submitted by various parties, drafting the Interpleader Complaint
and service documents for the eleven named Defendants,
corresponding with Plaintiff and other parties and/or their
attorneys, preparing pleadings to deposit funds with the Court,
preparing summary-judgment motions as to certain claims,
consulting with the parties who ultimately resolved their claims,
preparing default documents for several Defendants, preparing the
Motion for Entry of Judgment, and preparing this Motion for
attorneys’ fees.
Counsel requests an hourly rate of $260.00 for attorney
time.

Even though Jackson has not appeared in this action and,

therefore, has not objected, the Court has an independent duty to
review a motion for attorneys’ fees for reasonableness.
Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992).
6 - OPINION AND ORDER

Gates v.

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 finds the amount of time spent
by Plaintiff's attorneys on this matter is reasonable in light of
the number of defendants and claims involved in this case.
Accordingly, the Court awards Plaintiff 87.60 hours of attorney
time incurred in connection with the prosecution of this action.
3.

Hourly Rate for Attorneys' Fees.

To determine the reasonable hourly rate of an attorney,
this Court uses the most recent Oregon State Bar Economic Survey
published in 2017 as its initial benchmark.

Attorneys may argue

for higher rates based on inflation, specialty, or any number of
other factors.

The rates set out by the Oregon State Bar

Economic Survey for an attorney with years of practice comparable
to Plaintiff’s counsel are between $250 and $560 per hour.

The

rate sought by Plaintiff’s counsel is $260 per hour, which is
within the compensation tables of the Economic Survey.
In the exercise of its discretion, the Court,
therefore, concludes the hourly rate of $260 for Plaintiff’s
attorney hours is reasonable.

7 - OPINION AND ORDER

Accordingly, the Court awards Plaintiff attorneys’ fees of
$22,776.00.
II.

Bill of Costs
Plaintiff filed a Bill of Costs (#81) requesting an award of

costs in the amount of $1,590.37 comprised of the $400 fee to
file this action and $1,190.37 in service fees to accomplish
service of the Summons and Complaint on Defendants, including
service by publication.
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
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.

8 - OPINION AND ORDER

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. Cal., Inc.,

606 F.3d 577, 579-80 (9th Cir. 2010).

The Court finds the costs

sought by Plaintiff are specifically allowed under § 1920.
Accordingly, the Court awards costs to Plaintiff in the
amount of $1,590.37.

CONCLUSION
For the reasons stated, the Court GRANTS Plaintiff’s Motion
(#78) for an Award of Attorney Fees and Bill of Costs against
Defendant Edward D. Jackson and AWARDS Plaintiff attorneys’ fees
in the amount of $22,776.00 and costs of $1,590.37.
IT IS SO ORDERED.
DATED this 30th day of January, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

9 - OPINION AND ORDER