United States District Court, D. Oregon
Kalin and Peter Stutheit, Stutheit Kalin LLC, Of Attorneys
M. Kreutzer and Jessica E. Wilcox, Smith Freed & Eberhard
PC, Of Attorneys for Defendants.
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE
Kay Ekeya (“Ekeya”) filed a lawsuit in Oregon
state court, asserting employment-related claims under state
law against her former employer, Shriners Hospital for
Children, and its Portland hospital administrator, John C.
Patchin (collectively, “Defendants”). In her
lawsuit, Ekeya alleges that Shriners retaliated against her
by terminating her employment after she reported that her
immediate supervisor had violated patient privacy rights by
allowing a news reporter into Shriners' hospital in
Portland to take and publish photographs in areas not
generally open to the public. Ekeya also alleges that Patchin
aided and abetted the unlawful retaliation by Shriners. Ekeya
is a citizen of the State of Washington, Shriners is a
Colorado non-profit corporation, and Patchin is a citizen of
the State of Oregon. Defendants removed the case to federal
court, asserting diversity jurisdiction. In an effort to
avoid the forum defendant rule, which prohibits removal when
a defendant is a citizen of the forum state, Defendants
argued that Plaintiff cannot state a colorable claim against
Patchin and, thus, he has been fraudulently joined. From
this, Defendants asserted that Patchin's presence did not
preclude removal. Plaintiff filed a motion to remand, arguing
that Patchin has not been fraudulently joined. The Court
granted Plaintiff's motion and remanded the action to
state court. ECF 23. The Court also granted Plaintiff's
request for reasonable attorney's fees. Id.
order remanding the case may require payment of just costs
and any actual expenses, including attorney fees, incurred as
a result of the removal.” 28 U.S.C. § 1447(c).
“A court may award attorney fees when removal is wrong
as a matter of law.” Ansley v. Ameriquest Mortg.
Co., 340 F.3d 858, 864 (9th Cir. 2003). Whether to award
fees is within the discretion of the court, id., and
there is no presumption for or against awarding fees.
Martin v. Franklin Capital Corp., 546 U.S.
132, 138 (2005) (noting that “just as there is no basis
for supposing Congress meant to tilt the exercise of
discretion in favor of fee awards under §
1447(c) . . . so too there is no basis here for a strong bias
against fee awards . . . .”) (emphasis in
original). The Supreme Court has described how a court should
consider this question:
The appropriate test for awarding fees under § 1447(c)
should recognize the desire to deter removals sought for the
purpose of prolonging litigation and imposing costs on the
opposing party, while not undermining Congress' basic
decision to afford defendants a right to remove as a general
matter, when the statutory criteria are satisfied.
In light of these “large objectives, ” the
standard for awarding fees should turn on the reasonableness
of the removal. Absent unusual circumstances, courts may
award attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal. Conversely, when an objectively reasonable
basis exists, fees should be denied.
Id. at 140-41 (internal citation omitted). Thus, the
question is whether Defendants “lacked an objectively
reasonable basis for seeking removal.” As explained in
the Court's earlier Opinion and Order (ECF 23), it was
not objectively reasonable for Defendants to assert that
Patchin had been fraudulently joined and it was not
objectively reasonable for Defendants to remove this action
in violation of the forum defendant rule when Patchin is a
citizen of the forum state.
originally sought $12, 775 in attorney's fees incurred in
opposing Defendants' motion to dismiss Patchin and
bringing Plaintiff's motion to remand. ECF 24. Defendants
responded that Plaintiff's motion for fees should be
denied in its entirety based on Plaintiff's counsel's
failure sufficiently to confer before filing Plaintiff's
motion. ECF 26 at 2-4. Alternatively, Defendants urged the
Court to award Plaintiff no more than $10, 110. Id.
at 26. In her reply, Plaintiff concedes:
As Defendants correctly note in their Response, Plaintiff did
not strictly comply with LR 7-1. Plaintiff's counsel
emailed Defendants' counsel rather than telephoning him
and did so without providing much time for Defendants to
respond to her email.
ECF 28 at 2. Plaintiff concludes her reply by reducing her
requested attorney's fees to $11, 795, explaining that
“Plaintiff hereby withdraws her request for fees
associated with preparation of her Motion for Attorney's
Fees because of her failure to strictly comply with the
requirements of LR 7-1.” Id. at 28. Defendants
then filed a motion to strike Plaintiff's reply because
it was filed three days after the 14-day deadline for the
filing of a reply, as set forth in LR 7-1(3)(2). ECF 30.
Plaintiff concedes, Defendants are correct that Plaintiff
failed sufficiently to confer on her motion for
attorney's fees. Simply sending an email to opposing
counsel and not allowing sufficient time for a meaningful
conference by telephone or in person is insufficient
compliance with the local rules of this district. See LR
7-1(a)(1) (requiring a movant to certify that “the
parties made a good faith effort through personal or
telephone conferences to resolve the dispute” or
otherwise provide a satisfactory explanation for the failure
to do). For that reason, Plaintiff will not recover the time
spent in preparing her motion for attorney's fees, which
would otherwise have been recoverable. Defendants also are
correct that Plaintiff should have, within the deadlines set
by court rule, either filed her reply or requested an
extension of time. Requests for modest extensions are
routinely granted, often based on nothing more than an
informal request to the Court. Thus, when Plaintiff realized
that she would be unable timely to file her reply, she should
inquired of Defendants' counsel whether Defendants would
oppose a modest request for extension and then telephone or
email the Courtroom Deputy requesting a modest extension of
time and informing the Courtroom Deputy of Defendants'
position on this request. The Court expects that
Plaintiff's counsel will do that in the future, but
striking the reply is too severe of a sanction.
Court has reviewed the merits of Plaintiff's request for
attorney's fees. The Court calculates the amount of
reasonable attorney's fees using the lodestar method. The
lodestar amount is the product of the number of hours
reasonably spent on the litigation multiplied by a reasonable
hourly rate. McCown v. City of Fontana, 565 F.3d
1097, 1102 (9th Cir. 2009) (federal law); Moro v.
State, 360 Or. 467, 472 (2016) (Oregon law).
requests $11, 795 in attorney's fees for 33.7 hours
worked by attorney Kyann C. Kalin, at a rate of $350 per
hour. Ms. Kalin has been a practicing attorney for 17 years.
Originally admitted to practice in California in 2000, she
has been a member of the Oregon State Bar since 2006. Since
2003, her practice has focused almost exclusively on
employment litigation. Based on the Oregon State Bar 2012
Economic Survey, available at
and the 2014 Morones Survey of Commercial Litigation Fees,
ECF 25 at 13-17, the Court finds reasonable Ms. Kalin's
requested hourly rate of $350. In addition, the Court has
reviewed Ms. Kalin's time records, set forth in ECF 25 at