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Cold Stone Creamery Leasing Co., Inc. v. FW OR-Greenway Town Center, LLC

United States District Court, D. Oregon, Portland Division

November 6, 2019

COLD STONE CREAMERY LEASING COMPANY, INC., an Arizona Corporation, Plaintiff,
FW OR-GREENWAY TOWN CENTER, LLC, a Delaware Limited Liability Company, Defendant.


          Youlee Yim You, United States Magistrate Judge.

         On 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.

         The 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.


         I. Attorneys' Fees

         A. Relevant Law Regarding Lodestar Method

         The 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)).

         “[T]here 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 omitted).

         The 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).

         To 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).

         B. Analysis

         Plaintiff 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 ...

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