United States District Court, D. Oregon, Portland Division
DAVID D. VANVALKENBURG, Plaintiff,
OREGON DEPARTMENT OF CORRECTIONS, Defendant.
OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge.
David VanValkenburg brought this suit against the Oregon
Department of Corrections (“ODOC”), alleging
violations of federal and state anti-discrimination laws
while he was in custody. Mr. VanValkenburg's state-law
claim was tried by a jury, beginning on November 1, 2016. The
jury returned a verdict in favor of Mr. VanValkenburg,
awarding him $400, 000 in noneconomic damages . On
February 8, 2017, I DENIED Defendant's Motions for
Judgment as a Matter of Law, New Trial, and Remittitur .
Mr. VanValkenburg now moves for attorney fees and costs
VanValkenburg is a hearing-impaired individual who was housed
at multiple prisons run by ODOC from 2000 to 2014. In 2014,
he brought this case based on allegations that ODOC violated
state and federal anti-discrimination laws when it failed to
provide him with accommodations for his hearing disability
that would allow him to meaningfully participate in prison
programs and services provided to inmates. After a three-day
trial in November, 2016, the jury found in favor of Mr.
VanValkenburg and awarded him $400, 000 in noneconomic
damages. Mr. VanValkenburg has now moved to recover his
attorney fees, costs, and litigation expenses as the
prevailing party on his state-law claim.
VanValkenburg is seeking to recover a total of $911, 062.21
in attorney fees, costs, and litigation expenses as the
prevailing party on his state-law disability discrimination
claim. That amount includes a fee multiplier to compensate
Mr. VanValkenburg's attorneys for their performance in
this case and the risk they undertook in representing Mr.
VanValkenburg on a contingency fee basis. Mr. VanValkenburg
also seeks additional attorney fees to cover the cost of
litigating his fee award.
objects to Mr. VanValkenburg's motion on several grounds.
First, ODOC argues that I should decline to award any fees in
this case because (1) doing so is discretionary and (2) Mr.
VanValkenburg was not the prevailing party on any of his
claims. Alternatively, ODOC suggests that I should implement
“an across-the-board percentage cut” to reflect
Mr. VanValkenburg's “partial success” on the
claims overall. In addition, ODOC objects to the award of any
fee multiplier in this case, as well as a prevailing party
fee that Mr. VanValkenburg seeks by statute. Finally, ODOC
objects to some of the costs and litigation expenses that Mr.
VanValkenburg seeks to recover.
explained below, I find that Mr. VanValkenburg is the
prevailing party on his state-law disability discrimination
claim. As such, he is entitled to recover his attorney fees,
costs, and litigation expenses. I also award his requested
attorney fees for the cost of litigating this attorney fee
motion. Additionally, I agree a fee multiplier is appropriate
in this case based on the risk involved in this case and the
performance of Mr. VanValkenburg's attorneys. That said,
I find the requested fee multiplier to be excessive and thus,
I adopt a smaller multiplier. Finally, some of the litigation
expenses are not reimbursable under state law, resuling in a
reduction to Mr. VanValkenburg's requested expense award.
In total, I award Mr. VanValkenburg $683, 873.13 in attorney
fees, $18, 155.19 in costs, and $3, 924.79 in litigation
Attorney Fee Award
VanValkenburg is seeking to recover attorney fees for over
1300 hours that his attorneys claim they spent on this case.
Specifically, Mr. VanValkenburg seeks to recover (1) attorney
fees based on the number of hours spent on the case, (2)
extra attorney fees pursuant to a discretionary fee
multiplier, and (3) attorney fees for the time spent
litigating this motion for attorney fees. For the reasons
discussed below, I find that Mr. VanValkenburg is entitled to
attorney fees and that the standard lodestar calculation of
those fees based on his attorneys' hourly rate and the
number of hours spent litigating this case is the proper
method for calculating those fees. I also find that a fee
multiplier is appropriate in this case. Finally, I grant Mr.
VanValkenburg's request to recover attorney fees for the
time spent litigating this attorney fee memo. In total, Mr.
VanValkenbug is entitled to recover $683, 873.13 in attorney
Calculation of Attorney Fees
VanValkenburg argues that he is entitled to recover
reasonable attorney fees because he is the prevailing party
in this case. Specifically, he argues that he is entitled to
recover attorney fees based on his attorneys' reasonable
billing rate and the hours his attorneys spent litigating his
state-law antidiscrimination claim. ODOC argues that Mr.
VanValkenburg is not entitled to any attorney fees because he
is not the prevailing party on any of his claims. And, in any
event, ODOC argues that the award should be reduced to
reflect what it argues was a narrow victory.
following reasons, I have determined that an award of
attorney fees to Mr.
is mandatory under Oregon statutory law. Because the state
and federal claims in this case have common issues of law and
fact, Mr. VanValkenburg's attorneys' time was
reasonably spent litigating both claims, and they are not
required to apportion their time by claim. Accordingly, I do
not reduce the hours spent on the case to reflect Mr.
VanValkenburg's loss on the federal claim, except to the
extent that Mr. VanValkenburg is not entitled to attorney
fees for the time spent on litigating whether he exhausted
his administrative remedies under his federal claim. I also
find the hourly rates requested by Mr. VanValkenburg's
attorneys to be reasonable. In sum, Mr. VanValkenburg is
entitled to an attorney fee award of 385, 217.50 based on
calculations under the lodestar method.
Attorney Fee Award is Mandatory Because Mr. VanValkenburg is
the Prevailing Party on the State-Law Claim
law governs whether an attorney fee is available in a case
that is based on state law. Northon v. Rule, 637
F.3d 937, 938 (9th Cir. 2011) (“State laws awarding
attorneys' fees are generally considered to be
substantive laws under the Erie doctrine . .
.”). In Oregon, severeal statutes govern the award of
attorney fees. Specifically, Oregon Revised Statute §
(1) In any civil judicial proceeding . . . based on a claim
of unlawful discrimination, the court shall award to the
prevailing plaintiff attorney and expert witness fees
reasonably and necessarily incurred in connection with the
discrimination claim, at the trial court . . .
(2) In making an award under this section, the court shall
calculate attorney and expert witness fees on the basis of a
reasonable hourly rate at the time the award is made,
multiplied by the amount of time actually and reasonably
spent in connection with the discrimination claim.
addition, Oregon Revised Statute § 659A.885(1) states:
“[i]n any action under this subsection, the court may
allow the prevailing party costs and reasonable attorney fees
at trial and on appeal.” In fact, “Oregon courts
have construed [§ 659A.885(1)] as mandatory and highly
favorable to plaintiffs, holding that prevailing plaintiffs
are entitled to recover their attorney fees.”
Hamlin v. Hampton Lumber Mills, Inc., 205 P.3d 70
(Or. App. 2009). Accordingly, given the text of Oregon
Revised Statute 20.107, explaining that I shall
award fees to the prevailing plaintiff's attorney, and
Hamlin, making such an award mandatory
under Oregon Revised Statute § 659A.885(1), I am
required to award attorney fees to Mr. VanValkenburg so long
as he was the prevailing plaintiff.
determine whether Mr. VanValkenburg was the prevailing party
in this case, I again look to Oregon law. Oregon Revised
Statute § 20.077 defines the prevailing party
“[f]or the purposes of making an award of attorney fees
on a claim, ” as “the party who receives a
favorable judgment . . . on the claim.” Or. Rev. Stat.
§ 20.077(2). The text of the statute makes clear that I
must look at each claim to determine who the prevailing party
was on that claim. Eagles Five, LLC. v. Lawton, 280
P.3d 1017, 1026 (Or. App. 2012)
argues that Mr. VanValkenburg was not the prevailing party in
this case because his federal claim was dismissed and on his
state-law claim was limited to a smaller time period than he
initially sought in his Complaint. Mr. VanValkenburg concedes
that he was not the prevailing party on his Section 1983
claim alleging violations of the ADA. But he argues he was
the prevailing party on his state-law claim because the jury
returned a verdict in his favor on that claim and awarded him
$400, 000 in damages.
that Mr. VanValkenburg was the prevailing party on his
state-law claim. ODOC does not cite any legal authority to
support its proposition that Mr. VanValkenburg was not the
prevailing party on the state-law claim simply because he did
not recover all of the relief he sought. In fact, the text of
the statute only calls for “a favorable judgment”
on the claim; it does not require all of the relief sought.
See Or. Rev. Stat. § 20.077(2); see also
Eagles Five, 280 P.3d at 1026 (explaining that the
“prevailing party” is the one that received a
“favorable judgment” and that “it does not
necessarily follow that, merely because a party does not
obtain all the relief sought, a party is not a prevailing
party” (citation omitted)). Accordingly, because Mr.
VanValkenburg received a favorable judgment on his state-law
claim, he is entitled to recover attorney fees for prevailing
on that claim.
Calculating the Attorney Fee Award
VanValkenburg seeks to recover for 528.50 hours spent on the
case by Mr. Ellis at a rate of $325.00 per hour; 683.80 hours
spent on the case by Ms. Payne, at a rate of $300 per hour; and
88.8 hours spent on the case by a paralegal and a law clerk
at a rate of $175.00 per hour. In total, Mr. ...