United States District Court, D. Oregon
Christiansen VOGELE & CHRISTIANSEN Attorney for Plaintiff
Timothy Rote Pro Se Defendant
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
Max Zweizig brought this whistleblower retaliation action
under Or. Rev. Stat. § (“ORS”) 659A.030
against Defendants Northwest Direct Teleservices, Inc.,
Northwest Direct Marketing of Oregon, Inc., Timothy Rote,
Northwest Direct Marketing (Delaware), Inc., Northwest Direct
of Iowa, Inc., Rote Enterprises, LLC, and Northwest Direct
Marketing, Inc. On March 13, 2017, an order of default was
entered against all the unrepresented business entities on
Plaintiff's claim for whistleblower retaliation. The
aiding and abetting claim against Defendant Rote
(“Defendant”) was tried to a jury on January 16
and 17, 2018. The jury returned a verdict awarding Plaintiff
$1, 000, 000 in noneconomic damages. On July 25, 2018, the
Court reduced Plaintiff's award of noneconomic damages to
$500, 000 pursuant to ORS 31.710(1).
now moves for $166, 810.00 in attorney fees. Christiansen
Decl. Ex. 1 at 18, ECF 261-1. For the reasons explained
below, Plaintiff's motion is granted in part. Plaintiff
is awarded $162, 995.00 in fees and $515.80 in costs.
law governs attorney fees in diversity cases. See
Riordan v. State Farm. Mut. Auto. Ins. Co., 589 F.3d
999, 1004 (9th Cir. 2009). Under ORS 659A.885(1), the court
“may allow the prevailing party costs and reasonable
attorney fees at trial and on appeal” in an action
under ORS 659A.030. An award of attorney fees under Oregon
law is governed by ORS 20.075 and is within the court's
discretion. Ashley v. Garrison, 162 Or.App. 585, 592
n.3, 986 P.2d 654 (1999); see also ORS 20.075(3).
The Court, however, is only authorized to award reasonable
attorney fees. ORS 20.075(4).
20.075(1) lists eight factors that a court “shall
consider . . . in determining whether to award attorney fees
in any case in which an award of attorney fees is authorized
by statute and in which the court has discretion to decide
whether to award attorney fees”:
(a) The conduct of the parties in the transactions or
occurrences that gave rise to the litigation, including any
conduct of a party that was reckless, willful, malicious, in
bad faith or illegal.
(b) The objective reasonableness of the claims and defenses
asserted by the parties.
(c) The extent to which an award of an attorney fee in the
case would deter others from asserting good faith claims or
defenses in similar cases.
(d) The extent to which an award of an attorney fee in the
case would deter others from asserting meritless claims and
(e) The objective reasonableness of the parties and the
diligence of the parties and their attorneys during the
(f) The objective reasonableness of the parties and the
diligence of the parties in pursuing settlement of the
(g) The amount that the court has awarded as a prevailing
party fee under ORS 20.190.
(h) Such other factors as the court may consider appropriate
under the circumstances of the case.
See also Preble v. Dep't of Revenue,
331 Or. 599, 602, 19 P.3d 335 (2001).
court elects to award attorney fees under ORS 20.075(1), ORS
20.075(2) requires the court to consider the factors
identified in subsection (1) together with the eight factors
set forth in subsection (2) to determine the amount of any
such award. The subsection (2) factors include:
(a) The time and labor required in the proceeding, the
novelty and difficulty of the questions involved in the
proceeding and the skill needed to properly perform the legal
(b) The likelihood, if apparent to the client, that the
acceptance of the particular employment by the attorney would
preclude the attorney from taking other cases.
(c) The fee customarily charged in the locality for similar
(d) The amount involved in the controversy and the results
(e) The time limitations imposed by the client or the
circumstances of the case.
(f) The nature and length of the attorney's professional
relationship with the client.
(g) The experience, reputation and ability of the attorney
performing the services. (h) Whether the fee of the attorney
is fixed or contingent.
ORS 20.075(2); see alsoMcCarthy v. Or. Freeze
Dry, Inc.,327 Or. 84, 327 Or. 185, 957 P.2d 1200
(1998). A court satisfies the requirements of ORS
20.075(1)-(2) by including in its order a brief description
of or citation to the factor or factors on which it relies
when granting or denying an award of attorney fees.
McCarthy, 327 Or. at 185. The Court is not required