United States District Court, D. Oregon
HILFIKER SQUARE, LLC, an Oregon limited liability company, Plaintiff,
THRIFTY PAYLESS, INC., a California corporation, Defendant.
ORDER ON FEES & COSTS
Michael J. McShane United States District Judge.
Court entered summary judgment for Defendant, Thrifty
Payless, Inc. (“Rite Aid”), on April 24, 2018.
Judgment, ECF No. 58. Rite Aid now moves for its fees and
costs pursuant to Section 6.10 of the Declaration of
Restrictions and Grant of Easements
(“Declaration”) at issue in the present action.
Def.'s Mot. Fees & Costs, ECF No. 49. Plaintiff,
Hilfiker Square, LLC (“Hilfiker”), has filed a
memorandum in opposition to Rite Aid's motion, arguing
that Rite Aid cannot benefit from the fee-shifting provision
in Section 6.10 or, in the alternative, that the requested
fees are unreasonable. Pl.'s Mem. Opp'n, ECF No. 52.
Because Rite Aid is entitled to its attorneys' fees and
costs under Section 6.10, but some of the requested rates and
hours are unreasonable, Rite Aid's motion is granted in
part and denied in part., 
are currently three issues before the Court: (1) whether Rite
Aid is entitled to its attorneys' fees under the
Declaration, (2) whether, assuming Rite Aid is entitled to
its attorneys' fees, the requested fees are reasonable,
and (3) whether Rite Aid is entitled to its costs under the
Declaration or federal law. The Court addresses each issue in
Availability of Attorneys' Fees.
Aid argues that an award of attorneys' fees is
appropriate based on the fee-shifting provision contained in
Section 6.10 and under Or. Rev. Stat. § 20.096(1).
Def.'s Mot. Fees & Costs 3-4. Since Or. Rev. Stat.
§ 20.096(1) merely provides that, in an action on a
contract, the prevailing party is entitled to attorneys'
fees under an otherwise non-reciprocal fee-shifting
provision, the only issue is whether Section 6.10 allows for
the award of attorneys' fees.
6.10 of the Declaration, titled “Attorneys' Fees,
” states that, “[i]n the event any entity which
is entitled to the benefits of this Declaration brings an
action . . . to enforce or interpret this Declaration, the
prevailing party in such action shall be entitled to recover
from the other party is reasonable attorneys' fees and
all court costs.” Rubin Decl., Ex. 6 § 6.10. Rite
Aid asserts that, because Hilfiker is “an entity
entitled to the benefits” of the Declaration and is the
party which initiated the present action for breach of
contract, Section 6.10 allows it, as the prevailing party, to
recover fees and costs. Def.'s Mot. Fees & Costs 3-4.
The Court agrees.
nevertheless contends that, because Rite Aid previously
argued that Hilfiker was not “entitled to the
benefits” of the Declaration, it is now
“estopped” from asserting the inverse. Pl.'s
Mem. Opp'n 2. Although Hilfiker is correct that the issue
has already been litigated, it omits that the Court rejected
Rite Aid's argument and specifically held that Hilfiker
is a party to the contract and therefore entitled its
benefits. Opinion & Order 5-6. Unless Hilfiker is
suggesting that the Court is estopped from relying on its own
holding, Rite Aid's unsuccessful argument at summary
judgment is irrelevant. See also Or. Rev. Stat.
§ 20.083 (“A prevailing party in a civil action
relating to an express or implied contract is entitled to an
award of attorney fees that is authorized by the terms of the
contract or by statute, even though the party prevails by
reason of . . . a claim or defense asserting that the
contract is unenforceable.”). Hilfiker is an
“entity entitled to the benefits” of the
Declaration and therefore subject to Section 6.10.
also argues that, even if it is an entity covered by Section
6.10, the present action was for breach of an implied duty,
not one to “enforce or interpret” the specific
terms of the Declaration, and therefore falls outside the
scope of Section 6.10. Pl.'s Mem. Opp'n 2. This
argument is, at best, disingenuous, as Hilfiker's
Complaint, which contained a single claim for “breach
of contract, ” alleged that Hilfiker was
“entitled to recover its reasonable costs and attorney
fees in connection with this matter” because
“Section 6.10 of the Declaration provides for an award
of attorney fees in the event of litigation arising from the
Declaration.” Complaint ¶ 15, ECF No. 1-1; see
also First Amended Answer 6, ECF No. 20 (admitting
aside Hilfiker's earlier statement, the present action is
plainly one to “enforce or interpret” the
Declaration. The analysis to determine whether a contract
contains an implied covenant of good faith and fair dealing,
as well as the related analysis to determine the contours of
any such implied covenant, is inextricably linked to a
contract's specific terms. The Court's Opinion &
Order, which carefully walks through the Declaration's
terms to find both that the Declaration contains an implied
duty of good faith and that the duty does not obligate Rite
Aid to modify the Declaration, clearly reflects this fact.
See Opinion & Order 7-11. Because, under Section
6.10, Hilfiker is both a covered beneficiary and the
plaintiff in a covered action, Rite Aid is entitled to its
reasonable costs and attorneys' fees pursuant to Section
Reasonableness of Attorneys' Fees.
Aid moves for a total of $126, 305.50 in attorneys' fees.
Def.'s Mot. Fees & Costs 6. Oregon courts generally
award attorney fees based on the lodestar method, although
there is room for adjustment based on the factors set forth
in Or. Rev. Stat. § 20.075. See generally Strawn v.
Farmers Ins. Co. of Or., 297 P.3d 439, 447-48 (Or.
2013). Under the lodestar method, courts multiply the
reasonable hourly rate for each timekeeper by the reasonable
number of hours the timekeeper worked on the case.
Gonzalez v. City of Maywood, 729 F.3d 1196, 1202
(9th Cir. 2013). Non-clerical work performed by paralegals
and law clerks is also recoverable as attorneys' fees.
See Missouri v. Jenkins, 491 U.S. 274, 285 (1989). A
“strong presumption” exists that the lodestar
figure represents a “reasonable fee, ” and it
should therefore only be enhanced or reduced in “rare
and exceptional cases.” Pennsylvania v. Del. Valley
Citizens' Council for Clean Air, 478 U.S. 546, 565
argues that the attorney and paralegal billing rates sought
by Rite Aid are unreasonable. Pl.'s Mem. Opp'n 2-3. A
reasonable billing rate is determined based on the
“prevailing market rate” in the relevant
community. Camachco v. Bridgeport Financial, Inc.,
523 F.3d 973, 979 (9th Cir. 2008). “The burden is on
the [fee applicant] to produce evidence that the requested
rates are in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill,
experience, and reputation.” Blum v. Stenson,
465 U.S. 886, 895-96 (1984). To ascertain the prevailing
market rate, courts in the District of Oregon use the most
recent Oregon State Bar Economic Survey as an initial
benchmark. LR 54-3. The market rate may also reflect,
inter alia, the novelty ...