United States District Court, D. Oregon, Portland Division
COLD STONE CREAMERY LEASING COMPANY, INC., an Arizona Corporation, Plaintiff,
FW OR-GREENWAY TOWN CENTER, LLC, a Delaware Limited Liability Company, Defendant.
FINDINGS AND RECOMMENDATIONS
Yim You, United States Magistrate Judge.
August 12, 2019, this court entered judgment in favor of
defendant. Judgment, ECF #29. Defendant has filed a timely
Motion for Attorney Fees and Costs in the amount of $49,
521.80. ECF #30. Defendant contends that, pursuant to Section
25.25 of the Lease Agreement, it is entitled to reasonable
attorney fees and costs as the prevailing party in this
action. Plaintiff has filed no response.
court has reviewed the motion, time entries, and supporting
documents. The time entries do not appear excessive, given
the nature of the case and the work described. The
attorneys' hourly rates also fall within the parameters
set forth in the 2017 Oregon State Bar Economic Survey.
Accordingly, defendant's motion should be granted.
Relevant Law Regarding Lodestar Method
court calculates attorneys' fees using the lodestar
method, i.e., multiplying the number of hours worked by the
reasonable hourly rate. See Perdue v. Kenny A., 559
U.S. 542, 551 (2010) (holding “the lodestar
approach” is “the guiding light” when
determining reasonable fees). In determining the
“reasonable hourly rate to use for attorneys and
paralegals[, ]” the court looks to the
“prevailing market rates in the relevant
community.” Gonzalez v. City of Maywood, 729
F.3d 1196, 1205 (9th Cir. 2013) (citations and internal
quotation marks omitted). The court excludes hours
“that are excessive, redundant, or otherwise
unnecessary.” McCown v. City of Fontana, 565
F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
is a strong presumption that the lodestar is
sufficient.” Perdue, 559 U.S. at 556.
“[A] multiplier may be used to adjust the lodestar
amount upward or downward only in rare and exceptional cases,
supported by both specific evidence on the record and
detailed findings by the lower courts that the lodestar
amount is unreasonably low or unreasonably high.”
Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d
1041, 1045 (9th Cir. 2000) (quotations and citations
omitted). “Adjustments [to the lodestar amount] must be
carefully tailored . . . and [made] only to the extent a
factor has not been subsumed within the lodestar
calculation.” Rouse v. Law Offices of Rory
Clark, 603 F.3d 699, 704 (9th Cir. 2009) (citing
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 983
(9th Cir. 2008)). The party seeking fees bears “the
burden of documenting the appropriate hours expended in the
litigation, and [is] required to submit evidence in support
of those hours worked.” United Steelworkers of Am.
v. Ret. Income Plan For Hourly-rated Emps. Of Asarco,
Inc., 512 F.3d 555, 565 (9th Cir. 2008) (quotations
court may adjust the lodestar calculation by considering the
following factors, known as the Kerr factors:
(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) any 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 Extras Guild, Inc., 526 F.2d 67 (9th
Cir. 1975), abrogated on other grounds by City of
Burlington v. Dague, 505 U.S. 557 (1992).
determine the reasonable hourly rate, this court must look to
the “prevailing market rates in the relevant
community.” Blum v. Stenson, 465 U.S. 886, 895
n.11 (1984). The relevant community “is one in which
the district court sits.” Davis v. Mason
County, 927 F.2d 1473, 1488 (9th Cir.), cert
den., 502 U.S. 899 (1991). This court uses the most
recent Oregon State Bar Economic Survey as a benchmark for
comparing an attorney's billing rate with the fee
customarily charged in the locality. Precision Seed
Cleaners v. County Mut. Ins. Co., 976 F.Supp.2d 1228,
1244 (D. Or. 2013).
brought this action for declaratory judgment against
defendant to enforce the terms of the Lease Agreement.
Compl., ECF #1. Pursuant to Section 25.25 of the Lease
Agreement, “[i]n the event of any action or proceeding
at law or in equity . . . between the Landlord and Tenant to
enforce any provision of this Lease or to protect or
establish any right or remedy of either Landlord or Tenant
hereunder, the unsuccessful party to such action or
proceeding . . . shall pay the costs, expenses, and
reasonably attorneys' fees incurred in the action or
proceeding by such prevailing ...