United States District Court, D. Oregon, Eugene Division
CASCADE PENSION TRUST, HARRISON ELECTRICAL WORKERS TRUST FUND, NATIONAL ELECTRICAL BENEFIT FUND, I.B.E.W. DISTRICT NO. 9 PENSION PLAN and The CENTRAL INSIDE JOINT APPRENTICESHIP TRAPPING 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. Plaintiffs,
BATES INDUSTRIES, INC., dba G & E ELECTRIC INC. Defendant.
OPINION, ORDER, AND JUDGMENT
AIKEN United States District Judge
Cascade Pension Trust, et. al, move for entry of default,
default judgment, and attorney'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 part and denied in part.
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.
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
"(1) 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. McCool, 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
plaintiffs' motion for attorney fees, expenses, and
costs, pursuant to Federal Rule of Civil Procedure 54(d), 29
U.S.C. § 1132(g)(2)(D), and contract between the
parties, is granted in part and denied in part.
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." Morales v. City of San Rafael, 96 F.3d
359, 363 (9th Cir. 1996) (as amended) (discussing the
lodestar method). After calculating this amount, the court
considers whether it is necessary to adjust the presumptively
reasonable lodestar figure on the basis of twelve
factors 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.
court 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 determining 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 court, 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
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 incurred as
filing fees of the Clerk and $20 in docket fees under 28
U.S.C. § 1923. Pis, ' Mot. 3; Decl. of Lance A.
LeFever in Supp. of Pls.' Mot. ("LeFever
Decl.") ¶¶ 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
Decl, ¶ 13 (citing Id. Ex, 's4-5).
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
this Court 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 Decl. Ex.'s 5-7. A reasonable rate for legal
services is "'calculated according to the prevailing
market rates in the relevant community.5" McElmurry
v. U.S. Bank Natl 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 reported 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).
$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
Willamette Valley in 2012. However, this Court finds that the
hourly rate sought by plaintiffs is nevertheless 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 Decl. 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.
to the issue of whether Ms. Alpers' hourly rates are
reasonable, "[a]lthough 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
Cnly., 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 Decl.
Ex.'s 6-7. As such, this Court Finds Ms. Alpers'
hourly rates reasonable.
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 court 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 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 Decl. 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.
Lefever Declaration itemization, plaintiffs seek $5, 448, 00
for 23, 5 hours of work performed 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 ...