United States District Court, D. Oregon
KELLY A. BARNETT, Plaintiff,
UBIMODO, INC., et al, Defendants.
OPINION AND ORDER
Michael J. McShane United States District Judge
Kelly Barnett filed a Complaint against Bedivere Insurance
Company (“Bedivere”), among other Defendants, on
March 9, 2019. Pl.'s Compl., ECF No. 1. Plaintiff
subsequently filed several Amended Complaints. ECF Nos. 14,
41, and 66. This Court granted Bedivere's Motion for
Summary Judgment on January 9, 2012. Op. and Order, ECF No.
71. Bedivere now moves for $36, 745.00 in attorney fees
pursuant to Fed.R.Civ.P. 54(d) and 17 U.S.C. § 505.
Def.'s Mot. 2, ECF No. 80. Plaintiff argues that Bedivere
filed their Motion too late and is not entitled to fees.
Pl.'s Obj., ECF Nos. 82 and 83. Because Defendant is
entitled to attorney fees, Defendant's Motion (ECF No.
80) is GRANTED in part.
preliminary matter, Plaintiff argues that Bedivere's
Motion is time-barred. Pl.'s Obj. 1., ECF Nos. 82 and 83.
Fed.R.Civ.P. 54(d)(2)(b)(i) requires motions for attorney
fees to be filed within 14 days after entry of judgment. This
Court granted Bedivere's Motion for Summary Judgment but
did not enter a judgement of dismissal. See Op. and
Order. Bedivere's Motion is timely.
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)). Under the Copyright
Act, the court may, in its discretion, award the recovery of
full costs and reasonable attorney fees to the prevailing
party. 17 U.S.C. § 505.
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 granted Bedivere's Motion for Summary
Judgment. Op. and Order. Bedivere is a prevailing party.
that the court may consider in awarding fees under § 505
include “frivolousness, motivation, objective
unreasonableness (both in the factual and in the legal
components of the case), and the need in particular
circumstances to advance considerations of compensation and
deterrence.” Fogerty v. Fantasy, Inc., 510
U.S. 517, 534 n.19 (1994) (quoting Lieb v. Topstone
Industries, Inc., 788 F.2d 151, 156 (1986)). These
factors weigh in Bedivere's favor.
requested fees 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).
attorneys' hourly rates are slightly higher than average
for comparable attorneys in the same locality but are
consistent with those identified in the Oregon State Bar 2017
Economic Survey. See Def's Mot. 12; Oregon
State Bar 2017 Economic Survey, 38-39
(2017). The hours requested by Bedivere, however,
are excessive. See Def.'s Mot. 13. The Court is
mindful of the fact that the Plaintiff is pro se, but she
failed completely to tie Bedivere to her claim. As such, her
claim was patently frivolous. And yet, while this case had
nothing to do with Bedivere from the start, Bedivere made no
effort to seek dismissal until the instant Motion, nearly
five months after being served. Instead, Bedivere remained silent
in the face of Plaintiff's numerous filings and expended
considerable time and resources culling through the materials
accumulated on summary judgment. Even Bedivere's least
experienced attorneys could have defended it against
Plaintiff's claims with 25 hours of work. A deduction of
$30, 620.00 is appropriate. Accordingly, this Court grants
Defendant Bedivere $6, 125.00 in attorney fees.
forgoing reasons, Defendant Bedivere is entitled to attorney
fees in the amount of $6, 125.00.