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Brady Marketing Company, Inc. v. Kai U.S.A, Ltd.

United States District Court, D. Oregon, Portland Division

July 11, 2018

BRADY MARKETING COMPANY INC., a California corporation, Plaintiff,
v.
KAI U.S.A. LTD., an Oregon corporation, Defendant.

          OPINION AND ORDER AWARDING ATTORNEY FEES

          MICHAEL W. MOSMAN CHIEF U.S. DISTRICT JUDGE

         This matter comes before on Defendant Kai U.S.A. Ltd.'s Motion for Attorney Fees [105] and Bill of Costs [108]. Kai seeks $255, 818.50 in attorney fees and $16, 410.31 in costs.

         BACKGROUND

         Plaintiff Brady Marketing Company, Inc. sued Kai after Kai terminated the parties' agreement. First Am. Compl. [55]. After oral argument, I granted summary judgment to Kai on all of Brady's claims. Minutes [102]. I thereafter dismissed Kai's counterclaim for failure to prosecute. Order [129]. Judgment was entered. Judgment [130].

         DISCUSSION

         I. Deferral

         Brady requests that I defer Kai's attorney fees request until after appeal. In support, Brady cites cases from other circuits. The Ninth Circuit, however, “encourages deciding fee applications while an appeal is pending.” League of Wilderness Defenders/Blue Mountains Biodiversity Project v. U.S. Forest Serv., No. 3:10-CV-01397-SI, 2014 WL 1386367, at *1 (D. Or. April 9, 2014) (citing Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir. 1983)). Provided no reason to depart from the usual course, I decline to defer the motion.

         II. Entitlement

         Brady does not dispute that Kai is entitled to attorney fees. Kai prevailed on all of Brady's claims at summary judgment. Kai is therefore entitled to attorney fees on Brady's breach of contract and reformation claims under the parties' agreement. See Robinson Decl. [86], Ex. 16 at 9. California's Independent Wholesale Sales Representative Contractual Relations Act entitles Kai to attorney fees on Brady's claim under that act. Cal. Civ. Code § 1738.16.

         III. Amount

         Oregon law governs the award of attorney fees. Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011) (“State laws awarding attorneys' fees are generally considered to be substantive laws under the Erie doctrine ....”). Oregon courts generally award attorney fees based on the lodestar method, by which courts multiply the reasonable number of hours spent on the case by a reasonable hourly rate. See Strawn v. Farmers Ins. Co. of Or., 297 P.3d 439, 447-48 (Or. 2013). The lodestar may be adjusted based on the factors specified in O.R.S. § 20.075. Alexander Mfg., Inc. Emp. Stock Ownership & Tr. v. Ill. Union Ins. Co., 688 F.Supp.2d 1170, 1181 (D. Or. 2010). O.R.S. § 20.075 requires courts to undertake a two-part inquiry when assessing the amount of attorney fees to be awarded in a case such as this one where attorney fees are required by statute. O.R.S. § 20.075. First, the Court must consider:

(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 defenses.
(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.
(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.
(g) The amount that the court has awarded as a prevailing party fee under O.R.S. 20.190.
(h) Such other factors as the court may consider appropriate under the ...

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