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Zweizig v. Northwest Direct Teleservices, Inc.

United States District Court, D. Oregon

November 11, 2019

MAX ZWEIZIG, Plaintiff,
v.
NORTHWEST DIRECT TELESERVICES, INC., et. al., Defendants.

          Joel Christiansen VOGELE & CHRISTIANSEN Attorney for Plaintiff

          Timothy Rote Pro Se Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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).

         Plaintiff 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.

         STANDARDS

         State 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).

         ORS 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 defenses.
(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.
(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.
(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).

         If the 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 services.
(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 legal services.
(d) The amount involved in the controversy and the results obtained.
(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 ...


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