United States District Court, D. Oregon
S. Johnson, Samuels Yoelin Kantor LLP, Of Attorneys for
Bradley W. Andersen and Phillip J. Haberthur, Landerholm, PS,
Of Attorneys for Defendant.
OPINION AND ORDER ON ATTORNEY'S FEES
Michael H. Simon United States District Judge.
2005, Plaintiffs Waldemar Maya, Van Shaw, and CKH Family
Limited Partnership invested a total of $1.4 million in a
real estate development plan orchestrated by Defendant Greg
Kubicek. In 2017, Plaintiffs sued Kubicek and three entities
associated with Kubicek for: (1) rescission under Oregon
Revised Statutes (“ORS”) § 59.115(2); (2)
misrepresentation; (3) breach of fiduciary duty by
self-dealing; and (4) aiding and abetting an unlawful sale of
securities in violation of ORS § 59.115(3). Plaintiffs
and Defendants cross-moved for summary judgment. In its
Opinion and Order on January 29, 2018 (ECF 34), the Court
granted Defendants' motion for summary judgment and
dismissed Plaintiffs' claims as untimely. Before the
Court is Defendants' motion for attorney's fees and
an action where a federal district court exercises subject
matter jurisdiction over a state law claim, so long as state
law does not contradict a valid federal statute, state law
denying the right to attorney's fees or giving a right
thereto, which reflects a substantial policy of the state,
should be followed.” Avery v. First Resolution
Mgmt. Corp., 568 F.3d 1018, 1023 (9th Cir. 2009)
(citation and quotation marks omitted).
brought claims under the Oregon Securities Laws, codified in
Oregon Revised Statutes (“ORS”) § 59.115.
The parties do not dispute that § 59.115(10), which
provides that “the court may award reasonable attorney
fees to the prevailing party in an action under [§
59.115], ” gives the Court discretion to grant
reasonable attorney's fees to Defendants in this case.
addition, Defendants Greg Kubicek, Clackamas Homes, Inc.
(“CHI”), and MGD/CCP Acquisition LLC (“the
Company”) are entitled to attorney's fees under the
Operating Agreement at issue in this case. Under Oregon law,
a prevailing party shall recover reasonable attorney's
fees and costs incurred in enforcing the provisions of a
contract when the contract so requires.
§ 20.096(1). Oregon law provides:
In any action or suit in which a claim is made based on a
contract that specifically provides that attorney fees and
costs incurred to enforce the provisions of the contract
shall be awarded to one of the parties, the party that
prevails on the claim shall be entitled to reasonable
attorney fees in addition to costs and disbursements, without
regard to whether the prevailing party is the party specified
in the contract and without regard to whether the prevailing
party is a party to the contract.
Id. The Operating Agreement provides:
In the event that any dispute between the Company and the
Members or among the Members should result in litigation or
arbitration, the prevailing party shall be entitled to
recover from the other party all reasonable fees, costs and
expenses of enforcing any right of the prevailing party,
including without limitation, reasonable attorneys' fees
ECF 17 at 152. Because Kubicek, CHI, and the Company were all
parties to the agreement, they are entitled to reasonable
fees, costs, and expenses. Defendants argue that it is
impossible to separate time spent defending Holt Homes, Inc.
(“Holt Homes”), the remaining defendant, from
time spent defending the other three. The Court agrees.
Further, Holt Homes is separately entitled to attorney's
fees under ORS § 59.110(10).
concluding that a prevailing party shall recover reasonable
attorney's fees, a court applying Oregon law must
consider the specific factors set forth in ORS § 20.075
to determine the amount of attorney's fees to be awarded.
The specific factors set forth in ORS § 20.075(1) are:
(a) The conduct of the parties in the transactions or
occurrences that gave rise to the litigation, including any
conduct of a party that was reckless, willful, malicious, in
bad faith or illegal.
(b) The objective reasonableness of the claims and defenses
asserted by the parties.
(c) The extent to which an award of an attorney fee in the
case would deter others from asserting good faith claims or
defenses in similar cases.
(d) The extent to which an award of an attorney fee in the
case would deter others from asserting meritless claims and
(e) The objective reasonableness of the parties and the
diligence of the parties and their attorneys during the
(f) The objective reasonableness of the parties and the
diligence of the parties in pursuing ...