United States District Court, D. Oregon
LEIGH COLBY, D.D.S., an individual; OCD INVESTMENTS, LLC, an Oregon limited liability company; and OREGON DENTAL, P.C., Plaintiffs,
INTERDENT SERVICE CORPORATION, Defendant.
OPINION AND ORDER
Michael McShane United States District Judge.
the sale of their dental practice, plaintiffs brought a
straightforward breach of contract claim against the
purchaser. The four-page complaint consisted of one
claim alleging that defendants failed to act in good faith
and failed to act consistent with the terms of the purchase
agreement. When defendant moved to dismiss, the briefings
reflected the simplicity of the claim. The motion to
dismiss was 11 pages, the response was 10 pages, and the
reply was seven pages. Although defendant requested oral
argument, the Court concluded oral argument was unnecessary
and dismissed the complaint with leave to amend. ECF No. 13.
filed an amended complaint which was nearly identical to the
original complaint. Defendant certainly recognized the
similarities. See Def.'s Mot. to Dismiss Am.
Compl. n.3; ECF No. 15 (adopting earlier motion to
dismiss and reply “in full because the Amended
Complaint is virtually identical to the original Complaint,
and the arguments for dismissal are the same.”
(emphasis added)). Because the amended complaint did not
allege any new facts but simply challenged the court's
earlier legal conclusions, the court dismissed the amended
complaint with prejudice. ECF No. 20. In doing so, the court
once again rejected defendant's request for oral argument
prevailing on the merits, defendant moved for an award of
attorney's fees. Plaintiffs concede the agreement
provides for fees, but argues the fees sought here are
patently unreasonable. The court agrees. Somehow, in the
course of obtaining the dismissal of two nearly identical
four-page complaints containing a single claim for breach of
contract, defendant managed to spend 137.50 hours of attorney
time. Defendant seeks $45, 419.50.
the agreement provides fees to the prevailing party in an
action to enforce the agreement, defendant is only
“entitled to recover reasonable attorneys'
fees[.]” While it is often an exercise in futility for
a court in determining the precise amount of
“reasonable” fees, I have no difficulty in
concluding that the amount of hours sought here are
acknowledges the amended complaint “did not allege any
new facts . . . but instead emphasized the very legal theory
the Court had rejected[.]” Motion for Fees 3; ECF No.
22. As noted by defendant, the only case cited in support of
plaintiff's argument opposing dismissal did not support
plaintiff's good faith argument. Motion for Fees 5
(citing U.S. Bank of Or. Boge, 311 Or. 550, 567
(1991). Defendant accurately points out, “The claims
asserted in the Amended Complaint were even less reasonable.
. . . Yet the Amended Complaint pled no additional facts.
Plaintiff simply pasted the dismissed Complaint onto new
pleading paper and added two new ‘allegations' that
were nothing more than reiterations of legal conclusions the
August Order expressly rejected.” Motion for Fees 5.
The court agrees with defendant that “Neither the
Complaint nor the Amended Complaint presented especially
novel or difficult legal questions[.]” Motion for Fees
somewhat remarkable then that defendant could expend so many
attorney hours comparing nearly identical four-page documents
in order to reach the obvious conclusion that they
essentially said the same thing. The clarity of the amended
complaint was readily apparent and it reflected the same
claim previously dismissed. The court was capable of making
this determination within five minutes of reviewing the new
pleading. Nonetheless, despite acknowledging that the amended
complaint alleged no new facts, defendants managed to spend
44.4 hours on review of the tepid amendment alone.
seemingly pats itself on the back in boasting that
“more than 70% of all attorney time spent on this
matter [was billed] below the 95th percentile for Portland
lawyers with similar years of practice.” Motion for
Fees 9 (citing the 2017 OSB Economic Survey, Table 35). But
the hours expended on such a routine case indicate that even
the median rate, to say nothing of a rate approaching the
95th percentile, is too high here. The median rate for the
bulk of attorney time here is $235 per hour. 2017 OSB
Economic Survey (Survey) Table 36.
may not have its cake and eat it too. Billing nearly 45 hours
to review an amended complaint, determine it alleges no new
facts but instead is essentially an amended complaint couched
as a motion for reconsideration, and then make minor changes
to the original (successful) motion does not correspond with
a billable hour at the 95th percentile. The hours are
excessive even for a relatively inexperienced attorney.
question, an inexperienced attorney will spend more time on
any matter than one with decades of specialized experience in
a given field. Especially given the simplicity of the dispute
here, an experienced attorney would skim the 4-page
complaint, pull up hundreds of similar contractual disputes
from a mental Rolodex, and quickly determine the correct
avenue to proceed. That attorney would not spend an entire
workweek of hours researching dead ends or drafting legal
standards for a motion to dismiss. That attorney would dust
off an old motion, change the header, insert the instant
allegations and corresponding legal arguments, and be done in
a matter of hours. Defendant had such an attorney work on
this case. That attorney, with 24 years of “practice
focus[ing] on complex litigation in a variety of businesses,
” spent 24.6 hours on this case. The dispute here was
the opposite of complex litigation. 25 hours is a reasonable
amount of time for an attorney with nearly a quarter century
of experience (in far more complex matters) to conduct all of
the briefing in this matter. Somehow, defendant managed to
compile an additional 100 hours on top of what should have
been adequate. One can only imagine the additional hours
spent for preparation and travel for oral argument had the
court allowed such a futility.
Ninth Circuit applies the “lodestar” method for
calculating attorney fees. Fischer v. SJB-P. D.
Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). That
calculation multiplies a reasonable hourly rate by the number
of hours reasonably expended in the litigation. Id.
(citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103
S.Ct. 1933 (1983). 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, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986).
Ordinarily, the court decides whether to enhance or reduce
the lodestar figure by evaluating a set of factors.
Moreno v. City of Sacramento, 534 F.3d 1106, 1111
(9th Cir. 2008).
market rates are those that the local legal market would pay
for a case of this nature to a lawyer of comparable skill,
experience, and reputation to a plaintiff's counsel of
record. Blum v. Stenson, 465 U.S. 886, 897 (1984).
Accordingly, this District uses the Oregon State Bar 2017
Economic Survey as the initial benchmark when reviewing fee
noted, it is nearly impossible for a court to arrive at an
exact amount of time that is “reasonable” for an
attorney to spend on any given motion. But I am convinced
that the 44.4 hours spent figuring out how to dismiss an
amended complaint that is essentially a mirror image of a
dismissed complaint are excessive. The defense could have
easily responded that, in the interest of economy, they were
relying on their previous motion with leave to make
additional submissions should the court request (there would
have been no such request, I can assure you).
equally convinced that 25 hours is plenty of time for an
attorney with 25 years of experience in complex business
litigation to fully brief a successful motion to dismiss the
4-page complaint at issue here, along with briefings to
dismiss the nearly identical amended complaint. Included in
those 25 hours is adequate time to confer with the client.
The 25 hours, at $550 per hour, do not come cheap. But the
client is paying for the attorney's experience. That
experience allows the attorney to do more in less time,
especially on a case as straightforward as this. I conclude
the lodestar here is 25 hours at $550.00 per hour which comes
to $13, 750.00. Any additional hours spent were not
reasonable given the complaint and ...