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Mashburn v. Yamhill County

United States District Court, D. Oregon, Portland Division

April 8, 2014

YAMHILL COUNTY and SCOTT PAASCH, individually and in his official capacity as Division Manager, Defendants.


MICHAEL W. MOSMAN, District Judge.

In this 42 U.S.C. § 1983 action, Plaintiffs settled their claims against Defendants Yamhill County and Scott Paasch for a total of $110, 500. Now, Plaintiffs move [241] under 42 U.S.C. § 1988 for an award of attorney fees totaling $152, 100. Defendants filed an opposition [247], and Plaintiffs replied [254].[1] For the reasons set forth below, I find that Plaintiffs are entitled to a fees award in the amount of $124, 254.


Plaintiffs filed their original complaint [1] in this action on June 12, 2008, alleging that Yamhill County's policies governing strip searches of juveniles at Yamhill County Juvenile Detention Center ("YCJDC") were unconstitutional. Three amended complaints [50, 102, 151] followed.

On March 11, 2010, on cross motions for summary judgment, I held the strip search policies unconstitutional in two respects. (Op. & Order [79] at 11-12, 20.) Specifically, I struck down the portions of the policies requiring strip searches after contact visits and providing for searches of the "scalp, ears, hands, feet, mouth, and nose" while the juvenile is totally nude. Id. Plaintiffs' counsel, Leonard Berman, filed a motion for sanctions [125] against Defendants for assertedly failing to revise the policies in light of these conclusions. (Mem. in Supp. [127] at 13-14.) I ultimately denied [140] the motion.

Almost throughout the pendency of this litigation, Plaintiffs pursued a motion to certify a class comprising all juveniles subject to a strip search under YCJDC's policies. ( See, e.g., Mem. in Supp. [51] at 1.) I ultimately denied the motion, in part because I found no question of fact or law common to all members of the putative class. (Tr. [223] at 4:23-6:5.)

Defendants extended an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure on July 23, 2013. (Mr. Roberson's Decl. Ex. A [249].) Six Plaintiffs accepted the offer, but Jefory Mashburn on behalf of C.M. and Joseph Lewis opted instead to proceed to trial. See id. at 2-3. Two weeks before trial was set to begin, however, the parties reached agreement, and Mr. Mashburn and Mr. Lewis settled their claims for an amount $5500 greater than that in the offer of judgment. (Mr. Roberson's Decl. [248] at ¶ 4.)


"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This formula applies to fees awards under § 1988. See id. & n.7. Courts consider several factors in calculating the number of hours and a reasonable hourly rate, including: "(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, (4) the results obtained, and (5) the contingent nature of the fee agreement." Morales v. City of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996) (internal citations, quotation, and alteration omitted). Upon obtaining this "lodestar" figure, courts then determine whether it should be adjusted in light of

(1) the time and labor required, ... ([2]) the preclusion of other employment by the attorney due to acceptance of the case, ([3]) the customary fee, ... ([4]) time limitations imposed by the client or the circumstances, ... ([5]) the undesirability' of the case, ([6]) the nature and length of the professional relationship with the client, and ([7]) awards in similar cases.

Morales, 96 F.3d at 364 n.8 (quoting Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)).[2]

I. Hourly Rate

In measuring the reasonableness of an attorney's claimed hourly rate, the District of Oregon "uses the Oregon State Bar Economic Survey [("Survey")] as an initial benchmark.'" Roberts v. Interstate Distrib. Co., 242 F.Supp.2d 850, 857 (D. Or. 2002). The court's "starting point" is the average rate that the Survey reports for the relevant time and region. Davis v. Wal-Mart Stores, Inc., No. 09-1488, 2012 WL 1424105, at *1 (D. Or. Apr. 23, 2012). The average rate reported in the Survey will then be adjusted for inflation between the date of the survey and the date the services billed were performed. Silvia v. Multnomah County, No. 07-1677, 2009 WL 1162085, at *2 (D. Or. Apr. 29, 2009). Counsel may deviate from the rates reflected in the Survey, but is "encouraged to provide ample justification" for doing so. Roberts, 242 F.Supp.2d at 857.

Because Mr. Berman billed Plaintiffs for work performed in 2007 through 2013, an hourly rate must be determined for each of these seven years. According to the Survey, the hourly rate for an average personal injury litigator in Portland was $259 per hour in 2007 and $280 per hour in 2012. Oregon State Bar, 2007 Economic Survey 34 (2007), available at; Oregon State Bar, 2012 Economic Survey 32 (2012), available at 12EconomicSurvey.pdf. Adjusting for inflation in the intervening years yields rates of $268 per hour in 2008, [3] $268 in 2009, [4] $271 in 2010, [5] $279 in 2011, [6] and $286 in 2013.[7] These numbers will serve as an "initial benchmark" in my analysis.

Plaintiffs assert that they are entitled to recover fees at a rate of $325 per hour for all the time Mr. Berman billed in litigating their claims. (Mem. in Supp. [242] at 5.) Mr. Berman asserts that his was his "ordinary hourly rate" in 2013. (Mr. Berman's Decl. [243] at ¶ IV.) Plaintiffs raise a number of arguments in support of this substantial departure from the Survey. They argue that this case presented novel and difficult issues because the constitutionality of juvenile strip searches was "uncharted territory" in the Ninth Circuit. (Mem. in Supp. [242] at 5.) They also point out the attention this case received in the local press, and extol Mr. Berman's "tenacity and ingenuity." Id. at 5, 7. Finally, Mr. Berman observes that courts have awarded him fairly high hourly rates in previous cases. (Mr. Berman's Decl. [243] at ¶ IV.) Specifically, Magistrate Judge Papak found $250 per hour to be reasonable in 2009, and Judge Kalberer of the Yamhill County Circuit Court found $275 per hour to be reasonable in 2011. Silvia, 2009 WL 1162085, at *3; Mr. Berman's Decl. Ex. 2 [255-2] at 1.

Plaintiffs' arguments do not amount to "ample justification" for such a large departure from the Survey. First, Mr. Berman provides no reason to suppose that the rates he was awarded in prior cases are remarkable. In fact, Judge Papak's $250 figure in Silvia was based solely on the Survey, 2011 WL 1162085, at *3, and Judge Kalberer's $275 figure is less than the inflation-adjusted Survey rate that I calculated above. Second, Mr. Berman offers no explanation why his 2013 rate should apply to tasks performed from 2007 ...

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