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Topness v. Cascadia Behavioral Healthcare

United States District Court, D. Oregon

February 22, 2018

ELLEN TOPNESS, Plaintiff,
v.
CASCADIA BEHAVIORAL HEALTHCARE, a domestic nonprofit business corporation; and ERIN ELIZONDO, and MELISA FINCH, individuals, Defendants.

          OPINION & ORDER

          MARCO A. HERNANDEZ UNITED STATES DISTRICT JUDGE.

         Magistrate Judge Acosta issued a Findings & Recommendation (#44) on November 3, 2017, in which he recommends the Court grant in part and deny in part both Plaintiff's motion for attorney's fees and her cost bill. Plaintiff has timely filed objections to the Findings & Recommendation. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

         When any party objects to any portion of the Magistrate Judge's Findings & Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

         I have carefully considered Plaintiff's objections and other than the issues discussed below, conclude there is no basis to modify the Findings & Recommendation. I have also reviewed the pertinent portions of the record de novo and find no other errors in the Magistrate Judge's Findings & Recommendation. I adopt the Findings & Recommendation in part and modify it in part.

         In his decision, Judge Acosta reduced Plaintiff's attorney's fee request based on his determinations that: (1) the terms of Defendants' Offer of Judgment which Plaintiff accepted allowed for fees incurred only up to the date of the Offer of Judgment and not thereafter; (2) the requested hourly rates for three attorneys and one paralegal were too high; and (3) some of the hours claimed were not reasonably expended. F&R at 6-20. He also reduced the requested costs because some amounts claimed were unsubstantiated and Plaintiff was not entitled to a prevailing party fee. Id. at 20-23.

         Plaintiff objects only to the hourly rate determinations.[1] I have reviewed the entire F&R and find no error in the determinations made about the dates for which attorney fee's may be incurred under the terms of the Offer of Judgment or in the reductions for time spent. I also find no error in the reductions to the requested costs. I address only the hourly rates.

         Judge Acosta recited the correct law for determining a reasonable hourly rate. F&R at 8. As Judge Acosta also noted, this Court's Local Rules make clear that the Court "uses the most recent Oregon State Bar Economic Survey as its initial benchmark." Loc. R. 54-3. The rule acknowledges that "[a]ttorneys may argue for higher rates based on inflation, specialty, or other factors." Id. The Court requests, however, that fee petitions address the survey and provide justification for requested hourly rates higher than reported there. Id.

         Plaintiff seeks attorney's fees for lead attorney Craig Crispin, attorneys Shelley Russell and Paul Judd, and paralegals Jacqueline Burnett and David Zambrano. Judge Acosta awarded the requested rate of $75 for time spent by Zambrano, but reduced the requested hourly rates for all other practitioners.

         I. Crispin

         Crispin supported the attorney's fee request with a Memorandum, his own Declaration, and the Declaration of Portland attorney Courtney Angeli. ECF 27, 29, 30. Judge Acosta noted several facts related to Crispin's requested hourly rate of $525, including his law school graduation, his membership in both the Oregon and Washington Bars, that he is the managing shareholder and president of his firm, that he has practiced in the area of complex employment law and employment-related civil rights litigation for the past thirty-five years, that he has been recognized annually as an Oregon Super Lawyer in the areas of employment and labor and employment litigation since 2006, and has been on the "List of Best Lawyers in America -Employment Law - Individuals" since 2015. F&R at 8.

         Judge Acosta did not expressly mention that during his career, Crispin has litigated hundreds of federal court cases, has handled numerous appeals in the Ninth Circuit, and has argued before the United States Supreme Court. Crispin Decl. ¶ 10, ECF 27. Judge Acosta also did not mention that Crispin is the author of a number of articles and program materials and speaks on labor and employment litigation topics. Id. ¶ 19. He has also been invited to speak at the annual meetings of the American Bar Association and the National Employment Lawyers Association. Id. ¶ 20. He has served as an officer and member of the Executive Committee of the Oregon State Bar Section on Disability Law and the Labor and Employment Section. Id. ¶ 21. He is a member of the Oregon State Bar Disciplinary Board. Id.

         As instructed by the Court, Crispin cites to the most recent Oregon State Bar Economic Survey ("the 2012 Survey"). Id. ¶¶ 53-56. While Crispin disputes the relevance and weight the Court should give to the 2012 Survey, he notes that the 2012 Survey shows an average billing rate for Portland attorneys with over thirty years of experience at the 75th and 95th percentiles as $400 and $500 respectively. Id. ¶ 55; see also Angeli Decl., Ex. A, ECF 29-1 (2012 Survey showing (1) average 2012 hourly billing rate for private practice attorneys in Portland without regard to years of experience or area of practice, to be $350 for the 75th percentile and $450 for the 95th percentile; (2) average 2012 hourly billing rate for private practice attorneys in Portland with more than thirty years of experience to be $400 for the 75th percentile and $500 for the 95th percentile; (3) average 2012 hourly billing rate for private practice attorneys in Portland without regard to years of experience but whose area of practice is plaintiff's civil litigation excluding personal injury, to be $300 for the 75th percentile and $400 for the 95th percentile).

         Crispin states that in his opinion, the prevailing market rate for an attorney with thirty- five or more years of experience performing complex litigation in a specialty area such as employment litigation comparable to his, is in the upper percentile of rates charged and ranges from $475 to $575 per hour. Crispin Decl. ¶ 29. The relevant market for comparison is Portland. Id. He explains that updated by the Bureau of Labor Statistics Consumer Price Index, the 2017 hourly rates range from approximately $430 to $540. Id. ¶ 55. His requested $525 hourly rate is consistent with those rates. Id. Moreover, he explains that he knows of no other lawyer in Oregon with his combination of exclusive work in employment law, peer recognition, organization ratings, professional assessments, and speaking engagements. Id. ¶ 53.

         Angeli, an employment law practitioner, opines that the requested hourly rate is reasonable. Angeli Decl. ¶ 23, ECF 29. She notes that Crispin is among the most experienced and respected employment lawyers in Portland and the state, is an extremely skilled practitioner, and is "truly a market leader." Id. She describes him as being "among the best in the employment law arena[.]" Id. Further, she believes that Crispin's "exceptional credentials and accomplishments ...


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