Cascade Pension Trust et al v. Bates Industries, Inc.
Filing
18
ORDER, OPINION, and JUDGMENT: Granting Motion for Entry of Default 11 ; Granting Motion for Default Judgment 11 ; Granting in Part Denying in Part Motion for Attorney Fees 11 ; Finding as Moot Motion for Extension of Discovery & PTO Deadlines 17 . See, formal Opinion. This action is dismissed. Signed on 3/28/2017 by Judge Ann L. Aiken. (rdr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
CASCADE PENSION TRUST, HARRISON
ELECTRICAL WORKERS TRUST FUND,
NATI ONAL ELECTRICAL BENEFIT FUND,
I.B.E.W. DISTRICT NO. 9 PENSION PLAN
and The CENTRAL INSIDE JOINT
APPRENTICESHIP TRAINING TRUST, by the
Collection Committee of the SOUTHERN
OREGON IBEW-NECA ELECTRICAL
WORKERS AUDIT COMMITTEE comprised of
KLAAS DEBOER, JR. and ANDREW LINDSEY,
as trustees or fiduciaries on behalf of such Trust Funds.
Case No. 6:16-cv-01068-AA
OPINION, ORDER, AND
JUDGMENT
Plaintiffs,
v.
BATES INDUSTRIES, INC., dba G & E
ELECTRIC INC.
Defendant.
AIKEN, Judge:
Plaintiffs Cascade Pension Trust, et. al., move for entry of default, default judgment, and
attomey's fees against defendant Bates Industries, Inc., dba G & E Electric Inc., pursuant to 29
U.S.C. § 132(g)(2)(D) and Federal Rules of Civil Procedure 54(d), 55(a), and 55(b). Pis.' Mot.
Entry Default, Mot. Default J., Mot. Att'y Fees (doc. 11) ("Pis.' Mot."). For the following
reasons, plaintiffs' motion is granted in pait and denied in pait.
1 - OPINION, ORDER, AND JUDGMENT
Plaintiffs filed their Complaint in this action on June 13, 2016. (Doc. 1). Substitute
service of the Summons and Complaint was made to the wife of defendant's registered agent,
Lindsey Bates, on June 17, 2016, because plaintiffs were unable to find defendants' registered
agent, officer, or director in the county where the action was filed. Affidavit Serv. Upon Bates
Industries, Inc. (Doc. 4). Additionally, on July 8, 2016, plaintiffs sent, by first class mail, a copy
of the Summons and Complaint to defendant's place of business together with a statement of the
date, time, and place that the substitute service that was made on June 17, 2016. Id.
On
November 29, 2016, plaintiffs' counsel notified defendant's counsel verbally, as well as through
mail and email, that plaintiffs would file a motion for entry of default if defendant failed to file
its answer within ten days from that date. On December 12, 2016, plaintiffs filed the instant
motion for entry of default, default judgment, and attorney's fees. (Doc. 11). Defendant never
filed an answer or otherwise entered an appearance. Accordingly, plaintiffs' motion, insofar as it
seeks entry of default against defendant pursuant to Federal Rule of Civil Procedure 55(a) is
granted. As such, the Clerk of Court is ordered to enter default against defendant.
Similarly, plaintiffs' motion for default judgment against defendant pursuant to Federal
Rule of Civil Procedure 54(b) is also granted. In making this determination, I have considered
"(l) the possibility of prejudice to the plaintiff, (2) the merits of plaintiffs' substantive claim, (3)
the sufficiency of the Complaint, (4) the sum of money at stake in the action[,] (5) the possibility
of a dispute concerning material facts[,] (6) whether the default was due to excusable neglect,
and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on
the merits." Eitel v. lvfcCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The seventh factor always
weighs against a default judgment. I find, however, that all other factors here weigh in favor of
awarding a default judgment. As such, plaintiffs' motion for default judgment is granted.
2 - OPINION, ORDER, AND JUDGMENT
Finally, plaintiffs' motion for attorney fees, expenses, and costs, pursuant to Federal Rule
of Civil Procedure 54(d), 29 U.S.C. § l 132(g)(2)(D), and contract between the pmiies, is granted
in part and denied in pmi.
In determining a reasonable attorney fee, the court first multiplies "the number of hours
the prevailing party reasonably expended on the litigation by a reasonable hourly rate." lvfora/es
v. City of San Raft1el, 96 F.3d 359, 363 (9th Cir. 1996) (as amended) (discussing the lodestar
method). After calculating this amount, the comi considers whether it is necessary to adjust the
presumptively reasonable lodestar figure on the basis of twelve factors 1 set forth in Kerr v.
Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). Id
The comi is required to ensure an award's reasonableness, regardless of whether the
opposing party objected to it. Gates v. Deukmejian, 987 F.2d 1392, 1400-02 (9th Cir. 1992). The
court also possesses "considerable discretion . . . in detetmining what attorney's fee is
reasonable." Webb v. Ada Cnty., Idaho, 195 F.3d 524, 526-27 (9th Cir. 1999), cert. denied, 537
U.S. 948 (2002). Accordingly, "the reasonable fee, as calculated by the district comi, may fall
short of the actual fee that the ... lawyer charges." Corder v. Gates, 947 F.2d 374, 378 n.3 (9th
Cir. 1991) (citation and internal quotations omitted).
Herc, plaintiffs seek $6,049.71, comprised of $5,614.50 for plaintiffs' attorney fees,
$15.21 in postage expenses, and $420 in taxable costs - $400 of which were incutTed as filing
fees of the Clerk and $20 in docket fees under 28 U.S.C. § 1923. Pis.' Mot. 3; Deel. of Lance A.
1
These factors are: (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) 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. Ken', 526 F.2d at 70.
3 - OPINION, ORDER, AND JUDGMENT
Lefever in Supp. of Pis.' Mot. ("Lefever Deel.")
'if'il
13-16. Of the $5,614.50 plaintiffs seek in
attorney's fees, $5,448.00 is attributable to work Lance Lefever, plaintiffs' attorney who has 17
years of experience, performed over 23.5 hours at an hourly rate of $240.00, and $166.50 is
attributable to the work Shasta Alpers performed in her capacity as Lance Lefever's legal
assistant over 5 hours at an hourly rate of $65.00. Lefever Deel.
'if 13 (citing Id
Ex. 's 4-5).
Here, as an initial matter, this Court finds plaintiffs' motion, insofar as it seeks $15.21 in
postage expenses and $420 in taxable costs, is reasonable and grants plaintiffs' motion insofar as
it seeks such costs and expenses.
Next, this Comi addresses the issue of whether Mr. Lefever's requested hourly rates are
reasonable. The latest Oregon State Bar Economic Survey ("OSB Survey"), issued in 2012,
provides billing rates by locality, years of experience, and area of practice.
See generally
Lefever Deel. Ex.'s 5-7. A reasonable rate for legal services is "'calculated according to the
prevailing market rates in the relevant community."' 1'1cElmuny v. U.S. Bank Nat'! Ass'n, 2008
WL 1925119, *3 (D. Or. Apr. 30, 2008) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)).
"This District considers the most recent [OSB Survey] as its 'initial benchmark' in determining
whether hourly billing rates are reasonable." Prison Legal News v. Umatilla Cnty., 2013 WL
2156471, *4 (D. Or. May 16, 2013) (citations omitted). "If the rate requested exceeds the
average rate repo1ied in the OSB. Survey, the burden is on the prevailing party to justify that
higher rate." Id. (citation omitted). Initially, "[t]he general rule is that the relevant community
for purposes of the prevailing rate is the forum in which the district court sits." Id. at *5 (citations
omitted).
The $240 hourly rate plaintiffs seek for Mr. Lefever's legal services are moderately
higher than the $210 median rate awarded to attorneys with comparable experience in the Lower
4 - OPINION, ORDER, AND JUDGMENT
Willamette Valley in 2012. However, this Court finds that the hourly rate sought by plaintiffs is
neve1theless reasonable because plaintiffs support the increased rate by providing historical
hourly rates from OSB economic surveys from 1998, 2002, 2007, and 2012, which demonstrate
an average annual increase of 4.38% during that time period. See Lefever Deel. Exs.' 6-7.
Plaintiffs also provided an extrapolation of the 2012 OSB Economic Survey data to demonstrate
that the hourly median rate of $210 for an attorney with 16-20 years of experience in 2012, after
an annual increase of 4.38%, would command a median hourly rate of $267.20 in 2016. Here,
Mr. Lefever requests only $240 per hour, a $27.20 reduction below the 2016 median hourly rate
of $267 .20 that plaintiffs support with the extrapolated inflation data. As such, this Court finds
Mr. LeFever's hourly rates reasonable.
Turning to the issue of whether Ms. Alpers' hourly rates are reasonable, "[a]!though the
OSB Survey does not include data on paralegal rates, this District has found such rates
reasonable where they do not exceed the average rate for a first-year associate." Prison Legal
News v. Umatilla Cnty., 2013 WL 2156471, *7 (D. Or. May 16, 2013) (citations omitted). All of
the rates charged by Ms. Alpers are less than the average rate for a first-year associate in the
Lower Willamette Valley. See Lefever Deel. Ex.'s 6-7. As such, this Court Finds Ms. Alpers'
hourly rates reasonable.
Finally, this Court finds that the number of hours requested by plaintiffs for the services
rendered by Mr. Lefever and Ms. Alpers are, for the most part, reasonable. Nevertheless, several
billing defects appear in plaintiffs' fee petition, such that reductions are appropriate. Prison
Legal News, 2013 WL 2156471, *7 ("even where, as here, the expended time is reasonable, the
comt may still reduce the fee award for defects in the ... motion for fees.). As a preliminary
matter, this Court notes that plaintiffs itemize the fees sought for Mr. Lefever and Ms. Alpers in
5 - OPINION, ORDER, AND JUDGMENT
the Lefever Declaration, but assert in a footnote that the total amount of fees sought "do not
equal to the product of the applicable rate times hours worked" due to various exclusions.
Lefever Deel. at 6, n. 2. Moreover, plaintiffs do not provide a corrected itemization of the
applicable rate times the hours worked. Plaintiffs do, however, provide billing statements for the
relevant time period. See Id.; Id. Ex. 4.
In the Lefever Declaration itemization, plaintiffs seek $5,448.00 for 23.5 hours of work
perfo1med by Mr. Lefever at an hourly rate of $240.00, and $166.50 for five hours of work
performed by Ms. Alpers at an hourly rate of $65.00. Id. This Court notes, however, that the
billing statements plaintiffs provided as Exhibit 4 to the Lefever Declaration reveal that Mr.
Lefever had only 20.9 hours of qualifying billable time, which would result in a fee award of
$5,016.00 when multiplied by the applicable hourly rate of $240.00, and Ms. Alpers had only 2.7
hours of qualifying billable time, which would yield $175.50 in allowable fees when multiplied
by the applicable hourly rate of $65.00.
Thus, plaintiffs seek $9.00 less than the billing
statements suppmt for the services perfom1ed by Ms. Alpers and $432.00 more than the billing
statement supports for the services performed by Mr. Lefever.
Accordingly, this court finds that plaintiffs' fee request of $166.50 for services rendered
by Ms. Alpers is reasonable even though it seeks $9.00 less than the billing statement supports.
As such, plaintiffs' motion for attorney's fees, insofar as it seeks $166.50 for the work performed
by Ms. Alpers is granted. However, this comt finds that Mr. Lefever's request of $5,448.00,
which amounts to $432.00 more than the billing statement supports for the services he perfmmed
over the 20.9 hours he worked, is excessive and, therefore, unreasonable. As such, plaintiffs'
motion, insofar as it seeks an award of $5,448.00 for work performed by Mr. Lefever is denied
and plaintiffs are instead awarded $5,016.00 in fees for the work perfo1med by Mr. Lefever.
6 - OPINION, ORDER, AND JUDGMENT
In sum, plaintiffs are awarded $5,616.21, comprised of $5,181.00 for plaintiffs' attorney
fees ($5,016.00 for the work perf01med by Mr. Lefever and $166.50 for the work performed by
Ms. Alpers), $15.21 in postage expenses, and $420 in taxable costs.
CONCLUSION
For the reasons stated above, plaintiffs' motion for entry of default, default judgment, and
attorney's fees against defendant (doc. 11) is GRANTED in part and DENIED in part.
Specifically, plaintiffs' motion for entry of default and default judgment is GRANTED.
Plaintiffs' motion, insofar as it seeks an award of expenses and fees is GRANTED in part, such
that plaintiffs are awarded a total of $5,616.21 in attorney fees, costs, and other expenses.
Finally, pursuant to Federal Rule of Civil Procedure 54(b), because final judgment is entered as
to all claims in this case, the case is dismissed.
IT IS SO ORDERED.
DATED
this~ofMarch 2017.
ANNAIKEN
United States District Judge
7 - OPINION, ORDER, AND JUDGMENT
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