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Smeenk v. Faught

United States District Court, D. Oregon, Medford Division

July 24, 2019


          OPINION & ORDER


         This case comes before the Court on Plaintiffs Motion for Attorney Fees (#120). Plaintiff Pieter Smeenk filed this action on September 18, 2017, alleging violations of free speech rights under 42 U.S.C. § 1983, retaliation for engaging in whistleblower activity under ORS 659A.203, and common law wrongful termination (#1). Litigation proceeded for nearly 1.5 years, with no substantive motions filed until Defendant's Motion for Summary Judgement. The Court found that Defendants were entitled to summary judgment on the issue of common law wrongful discharge, but genuine factual disputes remained as to Plaintiffs free speech and whistleblower retaliation claims. Plaintiff presented three instances of alleged protected activity that resulted in retaliation, with the first two instances occurring in 2010 and 2015, and the last instance occurring in 2017. On summary judgment, the Court found that Plaintiffs first two alleged instances of retaliation were barred by the applicable statute of limitations. See Opinion and Order at 9 (#51). After summary judgment and shortly before trial, Plaintiff voluntarily dismissed his 42 U.S.C. § 1983 claim against Defendant Michael Faught (#89), and withdrew his claim for non-economic damages (#75).

         On March 18, 2019, the case proceeded to trial solely on Plaintiffs whistleblower retaliation claim. The jury rendered a verdict in Plaintiffs favor in the amount of $259, 637 for economic damages (#116). Judgment was entered on the verdict on March 26, 2019 (#118). Subsequently, Plaintiff filed a Motion for Attorney Fees (#120), seeking an award of his attorney fees in the amount of $413, 083, as well as a Bill of Costs (#119) for taxable costs in the amount of $16, 905.45. Defendant does not object to Plaintiffs Bill of Costs, but does dispute the reasonableness of the requested attorney fees award. For the reasons set forth below, Plaintiffs Motion for Attorney Fees is GRANTED in part and DENIED in part.


         The prevailing party is entitled to recover his fees, expenses, and costs reasonably incurred to achieve success pursuant to ORS 659A.885. See also Fed. R. Civ. P. 54(d) (prevailing party entitled to costs and attorney fees if provided by statute, rule, or order); LR 54-1; 54-3 (providing same).

         The Ninth Circuit has adopted the "lodestar" method for calculating attorney fees. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). That calculation multiplies a reasonable hourly rate by the number of hours reasonably expended in the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986). The court must then decide whether to enhance or reduce the lodestar figure by evaluating a number of factors. Moreno v. City of Sacremento, 534 F.3d 1106, 1111 (9th Cir. 2008).

         The court may adjust the lodestar to account for factors such as: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Kerr v. Screen Actors Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). The court need only consider the factors not already subsumed in the initial lodestar calculation. Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000).

         There is a strong presumption that the lodestar method produces a reasonable figure and should only be enhanced or reduced in exceptional circumstances. Del. Valley Citizens, 478 U.S. at 565; Fischer, 214 F.3d at 1119 n.4. Courts have discretion, however, to adjust the lodestar figure either: (1) downward if the plaintiff has achieved only partial or limited success or if the fee is otherwise unreasonable, Hensley, 461 U.S. at 435-36, or (2) upward in "rare" and "exceptional" cases. Del. Valley Citizens, 478 U.S. at 565.


         Plaintiff seeks an award of $413, 083 in attorney fees and $16, 905.42 in costs. Defendant objects to the requested award amount on the following grounds: 1) the rate sought for paralegal work is unreasonable; 2) the number of hours claimed and overall time billed is unreasonable; and 3) a multiplier is not warranted. Defendant argues that if Plaintiff is awarded fees, his reasonable fees are $183, 619.40. Defendant does not object to the amount in Plaintiffs Bill of Costs.

         A. Reasonable Hourly Rate

         The calculation of reasonable attorney fees begins with the lodestar calculation. The Court must therefore determine the reasonable hourly rate and multiply that rate by the number of hours reasonably expended in the case. Here, Defendant does not object to Mr. Lundberg's and Mr. Malmsheimer's respective rates of $300-$325 and $275-$300 per hour. Defendant does object to the requested rate of $175 per hour for paralegal work.

         The Oregon State Bar Economic Survey does not include information about hourly rates charged by paralegals in Oregon. In assessing claims for paralegal fees, courts within this District have noted that "a reasonable hourly rate for a paralegal should not exceed that of a first year associate." Precision Seed Cleaners v. Country Mut. Ins. Co., 976 F.Supp.2d 1228, 1248 (D. Or. 2013). That determination is not the end of the inquiry, however, as "the attorney hourly rate is used as a ceiling and is not by itself determinative of a reasonable hourly rate." Id. at 1249. Courts look closely at the educational and occupational background of the paralegal in question when crafting a reasonable rate. Id.; see also Muller v. County Mut. Ins. Co., No. 3:14-cv-01345-MO, 2017 WL 6209701, at *9 (D. Or. Dec. 8, 2017) ("I do not find reasonable the requested $150 hourly rate, because it is unclear from the record whether Ms. Calcagno has a paralegal certification, or how long she has been a paralegal rather than a legal assistant."). The prevailing market rate for paralegal fees, as noted in the 2012 Morones Survey, is generally considered a reasonable rate. Prison Legal News v. Columbia County, No. 3:12-cv-00071-SI, 2014 WL 1225100 *9 (D. Or. March 24, 2014).

         In this case, Plaintiff submits that Scott Rathebone has over 25 years of experience as a paralegal with the firm, and Nina Festa has "more than a decade of paralegal experience." Plaintiffs Reply at 6 (#133). It does not appear from this record that either paralegal has a degree or certification qualifying them as paralegals. The $175 hourly rate for paralegals is below the hourly rate for the firm's associates, who were billed at between $240 and $275 per hour. Lundberg Decl., Ex. 1 at 18 (#121). Plaintiff asserts that the median rate charged for paralegal time in the Portland area is $166.50 per hour. Defendant argues that the median rate of $90 per hour for paralegals in Southern Oregon is the correct figure to apply. However, there are very few employment lawyers that practice in federal court here in Southern Oregon, so it was reasonable for Plaintiff to use a Portland based firm. Considering all these factors, the Court concludes that a paralegal rate of $166 per hour is reasonable in this case.

         B. Reasonable Number of Hours

          The party seeking the fee award bears the burden of demonstrating the number of hours spent was reasonably necessary to the litigation and that counsel made "a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. This burden can be satisfied by submitting documentary evidence supporting the hours worked and fees claimed. Id. at 433; United States v. $28, 000 in U.S. Currency, 802 F.3d 1100, 1105 (9th Cir. 2015). Fee petitions that include inadequate detail or that fail to separate time for individual tasks may be totally or partially denied or apportioned accordingly. See Fischer, 214 F.3d at 1121 (noting district court has authority to reduce or deny fee requests that are "poorly documented."). Reasonable time spent in preparing a fee petition is generally recoverable. Guerrero v. Cummings, 70 F.3d 1111, 1112 (9th Cir. 1995).

         Plaintiff is seeking 513.8 hours for Mr. Lundberg, 432.5 hours for Mr. Malmsheimer, 99.5 hours for Associate Brickenstein, 3.2 hours for Associate Griffith, ...

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