United States District Court, D. Oregon
THE UNITED STATES OF AMERICA, ex rel., MICHAEL RAY PERRY, Plaintiffs,
HOOKER CREEK ASPHALT & PAVING, LLC, et al., Defendants.
Michael McShane United States District Judge
the court granted defendants' motions to dismiss,
defendants now move for an award of fees (ECF No. 249 &
253) and costs (ECF No. 251, 254-2, & 255). Relator
Michael Perry opposes the motions.
parties, like defendants here, are generally entitled to an
award of costs under 28 U.S.C. § 1920. Fed.R.Civ.P.
54(d)(1). I find Perry has not overcome the presumption in
favor of an award of costs and that awarding costs here would
not chill future relators from bringing False Claims Act
cases in the future.
defendants Mainline Paving, LLC and J.C. Compton Contractor,
Inc. failed to provide sufficient specificity in its
declaration for certain requests. For example, exhibit 2
seeks to recover $4.23 & $2.92 for
“Operator-Assisted Conference Call, ” $52.50,
$135.00, and $11.00 for “On-line Analysis, ”
$2.20 for “Search Fees, ” $77.93 for
“Meeting Expense, ” and $243.00 for
“Correct misapplication of payment.” ECF No.
254-2. None of these appear to be recoverable under 28 U.S.C.
§ 1920. Copying fees, however, are recoverable. §
1920(4). I award Mainline Paving and J.C. Compton copying
fees of $154.20, $14.75, $1.60, $14.25, and $23.00 for a
total of $207.80.
Creek seeks $3, 798.45 in copying costs and $600 in pro
hac vice fees. ECF No. 255, 4. Perry objects generally
but, as explained in Hooker Creek's reply, the copying
costs are reasonable due to the vast number of documents
referenced in Perry's complaint. The District lists
pro hac vice fees of $300 on its “schedule of
fees” found on the court's web page.
(last visited March 26, 2018). I conclude those fees are
“fees of the clerk” under § 1920(a). Hooker
Creek filed the affidavits required under 28 U.S.C. §
1924 verifying the costs were reasonable and necessary in
support of its motion to dismiss. ECF No. 255, 2. I award
Hooker Creek costs in the amount of $4, 398.45.
River seeks $9, 667.09 in copying costs. ECF No. 251. Knife
River submitted a declaration stating the copies were all
necessarily incurred to defend Perry's claims of fraud.
ECF No. 252 & 269. Knife River obtained over 27, 000
documents from the Oregon Department of Transportation
related to Perry's claims. ECF No. 269, ¶¶ 4-5.
I award Knife River $9, 667.09 in costs.
defendants also move for an award of attorney's fees.
Knife River seeks fees and expenses of $390, 634.54 incurred
after the Ninth Circuit order remanding the action. ECF No.
249. Oregon Mainline and J.C. Compton move for attorney's
fees of $85, 566.50. ECF No. 253. Knife River and Oregon
Mainline argue fees are warranted because Perry's claims
were frivolous. First, the court is unaware of Perry's
arguments to the Ninth Circuit either at oral argument or in
the (successful) motion to reconsider the original order
affirming Judge Hogan's dismissal with prejudice. Over a
dissent, the Ninth Circuit remanded this matter for Perry to
take one more bite at the apple. Having heard Perry's
earlier arguments, the Ninth Circuit is better suited to
determine if the third amended complaint was a reasonable
interpretation of the order remanding given Perry's
despite defendants' argument that Perry's claims were
clearly frivolous, both defendants attended multiple
mediation sessions after the Ninth Circuit's remand. Much
of the documented fees were incurred in prepping for the
mediation sessions before the filing of the third amended
complaint. If defendants believed this action was frivolous,
they could have simply moved to dismiss the third amended
complaint. I recall suggesting as much on July 9, 2014, in
the first phone hearing following remand. Only after two
status reports where all the parties requested the court
assist with mediation did the court refer this matter to
Judge Simon. The parties then spent the next 18 months
preparing for, and meeting with, Judge Simon over two
mediation sessions spread out over 2015.
billing records reveal substantial hours spent between the
remand and the filing of the third amended complaint nearly
two years later. Knife River submitted 46 pages of billing
records for fees incurred between June 6, 2014 and May 8,
2017. ECF No. 250-1. Over 35 of those pages detail fees
incurred before Perry even filed the third amended complaint.
Half of Oregon Mainline's 22 page fee petition covers the
time period before the filing of the third amended complaint.
ECF No. 254-1. I have never ordered an unwilling party to
mediation. Defendants were free to simply move against the
third amended complaint at any time. Having unsuccessfully
engaged in multiple rounds of mediation over approximately 18
months, defendants cannot now argue that this matter was
clearly frivolous and they should be awarded all fees
incurred, including tens of thousands of dollars incurred
during the voluntary mediation process.
motions for attorney's fees, ECF No. 249 & 253, are
DENIED. I award Knife River $9, 667.09 in costs, Mainline
Paving and J.C. Compton $207.80 ...