United States District Court, D. Oregon, Portland Division
BRADY MARKETING COMPANY INC., a California corporation, Plaintiff,
KAI U.S.A. LTD., an Oregon corporation, Defendant.
OPINION AND ORDER AWARDING ATTORNEY FEES
MICHAEL W. MOSMAN CHIEF U.S. DISTRICT JUDGE
matter comes before on Defendant Kai U.S.A. Ltd.'s Motion
for Attorney Fees  and Bill of Costs . Kai seeks
$255, 818.50 in attorney fees and $16, 410.31 in costs.
Brady Marketing Company, Inc. sued Kai after Kai terminated
the parties' agreement. First Am. Compl. . After oral
argument, I granted summary judgment to Kai on all of
Brady's claims. Minutes . I thereafter dismissed
Kai's counterclaim for failure to prosecute. Order .
Judgment was entered. Judgment .
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.
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. , 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.
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
(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 settlement of the
(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 ...