United States District Court, D. Oregon
OPINION AND ORDER
Vehrs Vineyard, LLC, filed a breach of contract claim against
Defendant Copper Cane, LLC, on October 2, 2018. Compl., ECF
No. 1. This Court granted Defendant's Motion to Dismiss
for improper venue on January 18, 2019. Op. and Order, ECF
No. 15. Because the agreement contained a clear and
unambiguous forum selection clause, the Court permitted
Defendant to submit a request for reasonable attorney fees.
Op. and Order 4. Defendant now moves for $18, 264.50 in
attorney fees pursuant to Fed.R.Civ.P. 54 and ORS §
20.075. Def.'s Mot. 1, ECF No. 17. Plaintiff argues that
Defendant is not entitled to fees and the requested fees are
unreasonable. Pl.'s Obj., ECF No. 19. Because Defendant
is entitled to attorney fees, Defendant's Motion (ECF No.
17) is GRANTED in part.
the United States, parties are ordinarily required to bear
their own attorney's fees- the prevailing party is not
entitled to collect from the loser.” Buckhannon Bd.
v. West Virginia D.H.H.R., 532 U.S. 598, 602 (2001). The
general practice is not to award fees to a prevailing party
“absent explicit statutory authority.”
Id. at 602 (citing Key Tronic Corp. v. United
States, 511 U.S. 809, 819 (1994)). “In a diversity
case, the law of the state in which the district court sits
determines whether a party is entitled to attorney fees, and
the procedure for requesting an award of attorney fees is
governed by federal law.” Carnes v. Zamani,
488 F.3d 1057, 1059 (9th Cir. 2007). Here, Oregon law
initial matter, the contract's dispute resolution
provision does not prevent Defendant from recovering. The
In the event that the parties are unable to resolve their
dispute through mediation despite their good faith efforts,
the parties will be free to pursue any remedy available to it
at law or equity. The prevailing party in any such proceeding
will be entitled to recover its reasonable attorneys'
fees and costs incurred in connection therewith.
for Judicial Notice, ECF No. 7, Ex. A. Plaintiff argues that
Defendant is not entitled to recover attorney fees because
Defendant failed to mediate prior to this litigation.
Pl.'s Obj. 2- 3. It was Plaintiff, however, who filed the
Complaint without first completing mediation. See
Def.'s Resp. 3, ECF No. 20. Defendant had no choice,
then, but to respond.
defendant is a prevailing party following dismissal of a
claim if the plaintiff is judicially precluded from refiling
the claim against the defendant in federal court.”
Cadkin v. Loose, 569 F.3d 1142, 1150 (9th Cir.
2009). This Court dismissed Plaintiff's claim with
prejudice, preventing Plaintiff from refiling in federal
court. Op. and Order 4. Therefore, Defendant is a prevailing
requested fees, however, must be reasonable.
A reasonable billing rate is determined based on the
“prevailing market rate” in the relevant
community. See Camacho v. Bridgeport Fin., Inc., 523
F.3d 973, 979 (9th Cir. 2008). The burden is on the
petitioner to prove “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 n.11 (1984).
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 (1986). The
court decides whether to enhance or reduce the lodestar
figure by evaluating a variety of factors. Moreno v. City
of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008).
does not take issue with Defendant's attorneys'
hourly rate. And while their rates are higher than average
for comparable attorneys in the same locality, they are
consistent with those identified in the Oregon State Bar 2017
Economic Survey. See Def's Mot. 4-5; Sutton
Decl., ECF No. 18; Debi Elliott et al., Oregon State Bar
2017 Economic Survey, 38-39, 41 (2017).
Plaintiff correctly asserts that “there is nothing
about this matter that justifies 36 hours of partner time and
34 hours of associate time to bring a motion to dismiss for
improper venue that did not require a court appearance by
either party.” Pl.'s Obj. 5. Defendant's
attorneys spent 24.8 hours on its 10-page Motion to Dismiss,
4.5 hours on its 4-page Request for Judicial Notice, 39.1
hours on its 7-page Reply (which addressed a mere 7-page
Response from Plaintiff), and 11.2 hours on miscellaneous
correspondence related to the Motion. Def's Mot. 4-5;
Sutton Decl., Ex. 1.
was not a complicated case. The unambiguous language of the
contract provides that disputes arising from the contract
were to be litigated in Napa County, CA. The well-established
caselaw was as equally unambiguous; specifically, that courts
should defer to the forum selection clause chosen by the
parties except in extraordinary circumstances. The
Plaintiff's attempts at convincing this court that
extraordinary circumstances existed (or that some phantom
oral agreement existed that he failed to mention in his
complaint) were worthy of an eye roll and not 39 hours of
research and writing. A reasonably talented associate could
have completed this task in 20 hours. 39.1 hours spent by a
partner, associate, and legal assistant in drafting a reply
to, at best, a Hail Mary attempt by Plaintiff to remain in a
poorly chosen venue, is not warranted.
973.50 spent on preparing the Reply brief is reduced by half
and a deduction of $4, 496.75 is appropriate. Accordingly,