Michael Goergen v. Black Rock Coffee Bar, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHAEL GOERGEN, as an individual, Case No. 3:22-cv-1258-SI (Lead)

Plaintiff, OPINION AND ORDER

v.

BLACK ROCK COFFEE BAR, LLC, an

Oregon limited liability company,

Defendant.

______________________________________

CHRISTOPHER LATTANZIO, as an Case No. 3:22-cv-1259-SI (Consolidated)

individual,

OPINION AND ORDER

Plaintiff,

v.

BLACK ROCK COFFEE BAR, LLC, an

Oregon limited liability company,

Defendant.

______________________________________

THE ROBERT LATTANZIO TRUST Case No. 3:22-cv-1260-SI (Consolidated)

DATED 6/23/2006 by and through Trustee,

Robert Lattanzio, OPINION AND ORDER

Plaintiff,

v.

BLACK ROCK COFFEE BAR, LLC, an

Oregon limited liability company,

Defendant.

Justin G. Reden, REDEN & REDEN, APC, 16885 Via Del Campo Court, Suite 320, San Diego, CA

92127; and Casey M. Arbenz, PUGET LAW GROUP, 938 Broadway, Tacoma, WA 98402. Of

Attorneys for Plaintiffs.

J. Matthew Donahue, Joseph L. Franco, and Kristin Asai, HOLLAND & KNIGHT LLP, 601 SW

Second Avenue, Suite 1800, Portland, OR 97204. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

These cases arise from a dispute between franchisor Black Rock Coffee Bar LLC (Black

Rock or Defendant), the Defendant in the three above-captioned cases, and its franchisees,

entities owned in part or otherwise affiliated with Plaintiffs in these cases, Michael Goergen

(Goergen), Christopher Lattanzio (Lattanzio), and the Robert Lattanzio Trust (Trust). In

June 2020, Black Rock filed a petition to compel arbitration against six limited liability

companies (LLC), BR Coffee LLC, BR Rainbow OP LLC, BR Blue Diamond OP LLC, BR

Silverado Ranch OP LLC, BR Rainbow North OP LLC, and BR Ft. Apache OP LLC

(collectively, the BR Entities). In August 2020, the Court granted Black Rock’s petition and

ordered the six BR Entities to participate in an arbitration proceeding initiated by Black Rock.

Black Rock Coffee Bar, LLC v. BR Coffee, LLC, Case No. 3:20-cv-976-SI, 2020 WL 4728877

(D. Or. Aug. 14, 2020). Black Rock, however, did not include in its petition to compel arbitration

any Plaintiffs in the above-captioned cases. Accordingly, the Court did not order any of these

Plaintiffs to participate in the arbitration between Black Rock and the BR Entities.

During the arbitration between Black Rock and BR Entities, Black Rock asked the

arbitrator for leave to amend its complaint to add Goergen, Lattanzio, and the Trust as additional

parties in the arbitration proceeding. Plaintiffs objected, arguing that there was no contract

requiring arbitration between them and Black Rock and that the arbitrator lacked authority to

determine whether these Plaintiffs could be required to participate in the arbitration then pending

among Black Rock and the BR Entities. The arbitrator granted Black Rock’s motion, but

Plaintiffs refused to participate in the arbitration. Instead, they filed an action in state court in

California, which Defendant removed to federal court in California, to determine whether the

arbitrator had the authority to determine the threshold issue of arbitrability. Meanwhile, the

arbitrator concluded that he did have the authority to determine whether Plaintiffs could be

required to arbitrate, determined that they were subject to the arbitration provisions contained in

the contracts between Black Rock and the BR Entities, and made substantive findings against

Plaintiffs, even though they did not participate in the arbitration. The arbitrator ultimately found

in favor of Black Rock and awarded Black Rock tens of millions of dollars in damages, plus

nearly $1 million in attorney’s fees.

The federal court in California transferred Plaintiffs’ lawsuit to this Court. The Court

directed the parties to brief two questions: (1) whether the federal court or the arbitrator was the

proper decisionmaker to determine whether Plaintiffs had a valid arbitration agreement with

Black Rock; and (2) whether Plaintiffs were subject to the arbitration agreement contained in the

contracts between Black Rock and the BR Entities. On January 10, 2023, the Court concluded

that it was for the Court, and not the arbitrator, to determine whether Plaintiffs were bound to a

valid arbitration agreement with Black Rock. Goergen v. Black Rock Coffee Bar, LLC, 2023

WL 142911, at *3-4 (D. Or. Jan. 10, 2023) (Goergen I). On February 6, 2023, the Court

concluded that Plaintiffs, as nonsignatories to the franchise agreements, were not otherwise

bound to the arbitration clauses of the agreements. Goergen v. Black Rock Coffee Bar,

LLC, 2023 WL 1777980, at *14 (D. Or. Feb. 6, 2023) (Goergen II).

Plaintiffs now seek attorney’s fees under Oregon Revised Statutes (ORS) § 20.083 and

litigation costs. Plaintiffs request $125,410.20 in attorney’s fees and $3,708.09 in costs.

Defendants raise several objections to both the requested fees and costs. For the reasons

discussed below, the Court grants in part Plaintiffs’ motion for attorney’s fees and Bill of Costs.

STANDARDS

A. Oregon Law

“In an action where a federal district court exercises subject matter jurisdiction over a

state law claim, so long as state law does not contradict a valid federal statute, state law denying

the right to attorney’s fees or giving a right thereto, which reflects a substantial policy of the

state, should be followed.” Avery v. First Resol. Mgmt. Corp., 568 F.3d 1018, 1023 (9th

Cir. 2009) (citation and quotation marks omitted). Under Oregon law,

A prevailing party in a civil action relating to an express or implied

contract is entitled to an award of attorney fees that is authorized

by the terms of the contract or by statute, even though the party

prevails by reason of a claim or defense asserting that the contract

is in whole or part void, a claim or defense asserting that the

contract is unenforceable or a claim or defense asserting that the

prevailing party was not a party to the contract.

ORS § 20.083; see also ORS § 20.096(1) (“In any action or suit in which a claim is made based

on a contract that specifically provides that attorney fees and costs incurred to enforce the

provisions of the contract shall be awarded to one of the parties, the party that prevails on the

claim shall be entitled to reasonable attorney fees in addition to costs and disbursements, without

regard to whether the prevailing party is the party specified in the contract and without regard to

whether the prevailing party is a party to the contract.”).

The prevailing party “is the party who receives a favorable judgment” on the claim. ORS

§ 20.077. After concluding that a prevailing party shall recover reasonable attorney’s fees, a

court applying Oregon law must consider the specific factors set forth in ORS § 20.075 to

determine the amount of attorney’s fees to be awarded. The specific factors set forth in ORS

§ 20.075(1) are:

(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.

ORS § 20.075(1).1 After considering these eight factors, ORS § 20.075(2) then directs the court

to consider the following additional eight factors:

(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.

1 Under subsection (1), these factors are to be first considered in determining whether to

award 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.” In addition, in any case in

which an award of fees is authorized or required, the court shall consider the factors specified in

subsection (1) as well as the factors specified in subsection (2) “in determining the amount of an

award of attorney fees in those cases.” ORS § 20.075(2).

(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). Oregon law further directs that when analyzing these factors, a court should

“includ[e] in its order a brief description or citation to the factor or factors on which it relies.”

McCarthy v. Or. Freeze Dry, Inc., 327 Or. 185, 190-91 (1998). The court, however, “ordinarily

has no obligation to make findings on statutory criteria that play no role in the court’s decision.”

Frakes v. Nay, 254 Or. App. 236, 255 (2012).

B. Lodestar

Under ORS § 20.075(2), factor (a) generally relates to the reasonableness of the number

of hours expended by counsel for the prevailing party, factors (c) and (g) generally relate to the

reasonableness of the hourly rates charged, and factor (d) generally informs whether an upward

or downward adjustment might be appropriate. Taken together, these factors are comparable to

what is often referred to as the “lodestar” method for calculating a reasonable attorney’s fee. See

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010) (holding that the lodestar method

yields a presumptively reasonable fee, subject to either upward or downward adjustment as

appropriate); see also Strawn v. Farmers Ins. Co. of Or., 353 Or. 210, 221 (2013) (“The lodestar

approach that the parties have used is at least a permissible one under the statutes involved,”

including ORS § 20.075); ZRZ Realty Co. v. Beneficial Fire & Cas. Ins. Co., 255 Or. App. 525,

554 (2013) (“The lodestar method that the trial court used is a commonly applied and

permissible approach for determining the reasonableness of a fee award . . . .”). Although the

lodestar calculation results in a presumptively reasonable fee, this fee may be adjusted in certain

circumstances. Perdue, 559 U.S. at 552.

The lodestar amount is the product of the number of hours reasonably spent on the

litigation multiplied by a reasonable hourly rate. McCown v. City of Fontana, 565 F.3d 1097,

1102 (9th Cir. 2009). 2 In making this calculation, the district court should take into consideration

various factors of reasonableness, including the quality of an attorney’s performance, the results

obtained, the novelty and complexity of a case, and the special skill and experience of counsel.

See Perdue, 559 U.S. at 553-54; Gonzalez v. City of Maywood, 729 F.3d 1196, 1209 n.11 (9th

Cir. 2013).

In determining the number of hours reasonably spent, “the district court should exclude

hours ‘that are excessive, redundant, or otherwise unnecessary.’” McCown, 565 F.3d at 1102

(quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The party seeking an award of

attorney’s fees “has the burden of submitting billing records to establish that the number of hours

it has requested [is] reasonable.” Gonzalez, 729 F.3d at 1202.

The district court may determine, in one of two ways, whether hours are excessive,

redundant, or otherwise unnecessary, and thus excludable. The court may conduct an hour-by-

hour analysis of the fee request. Id. at 1203. Alternatively, “when faced with a massive fee

application the district court has the authority to make across-the-board percentage cuts either in

2 It is “well established that time spent in preparing fee applications” also is compensable.

Gonzalez v. City of Maywood, 729 F.3d 1196, 1210 (9th Cir. 2013) (quoting Anderson v.

Director, OWCP, 91 F.3d 1322, 1325 (9th Cir. 1996)).

the number of hours claimed or in the final lodestar figure.” Id. (quoting Gates v. Deukmejian,

987 F.2d 1392, 1399 (9th Cir. 1992)). “[W]hen a district court decides that a percentage cut (to

either the lodestar or the number of hours) is warranted, it must ‘set forth a concise but clear

explanation of its reasons for choosing a given percentage reduction.’” Id. (quoting Gates, 987

F.2d at 1400). The Ninth Circuit recognizes one exception to this rule: “[T]he district court can

impose a small reduction, no greater than 10 percent—a ‘haircut’—based on its exercise of

discretion and without a more specific explanation.” Id. (alteration in original) (quoting Moreno

v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)).

In addition, other courts, including the District of Oregon, specifically caution against

both block-billing and providing vague or otherwise inadequate descriptions of tasks because

these practices hinder a court’s ability to assess the reasonableness of the time expended. See,

e.g., U.S. District Court, District of Oregon, Message from the Court Regarding Attorney Fee

Petitions, available at https://ord.uscourts.gov/index.php/rules-orders-and-notices/notices/fee-

petitions (last updated Mar. 2, 2017). This Court has applied this cautionary statement, noting

that “the court may excuse this method when the billing period is no more than three hours.”

Updike v. Multnomah County, 2020 WL 4736461, at *2 (D. Or. Aug. 14, 2020) (quoting Noel v.

Hall, 2013 WL 5376542, at *6 (D. Or. Sept. 24, 2013)); cf. Lyon v. Chase Bank USA, N.A., 656

F.3d 877, 892 (9th Cir. 2011). For block-billing periods in excess of three hours, however, the

Court has reduced each applicable entry by fifty percent. See, e.g., Fathers & Daughters Nevada,

LLC v. Lingfu Zhang, 2018 WL 3023089, at *5 (D. Or. June 18, 2018).

After determining the number of hours reasonably spent, the district court then calculates

the reasonable hourly rates for the attorneys and paralegals whose work comprise the reasonable

number of hours. This calculation yields the lodestar amount. For this purpose, the “‘prevailing

market rates in the relevant community’ set the reasonable hourly rates.” Gonzalez, 729 F.3d

at 1205 (quoting Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005)). “Generally, when

determining a reasonable hourly rate, the relevant community is the forum in which the district

court sits.” Id. (quoting Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th

Cir. 2010)). Within this geographic community, the district court should consider the experience,

skill, and reputation of the attorneys or paralegals involved. Id. at 1206.

In determining reasonable hourly rates, typically “[a]ffidavits of the plaintiffs’ attorney

and other attorneys regarding prevailing fees in the community, and rate determinations in other

cases, particularly those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the

prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407

(9th Cir. 1990). In addition, courts in the District of Oregon have the benefit of several billing

rate surveys. One useful survey is the Oregon State Bar 2017 Economic Survey (OSB 2017

Survey), which contains data on attorney billing rates based on type of practice, geographic area

of practice, and years of practice. A copy of the OSB 2017 Survey is available at

http://www.osbar.org/_docs/resources/Econsurveys/17EconomicSurvey.pdf (last visited on

March 30, 2023).

DISCUSSION

A. Prevailing Party

Defendant argues that Plaintiffs obtained “only a small fraction” of the relief they

requested. Defendant first argues that because Plaintiffs voluntarily dismissed the American

Arbitration Association and the arbitrator from the case after Defendant removed the case to

federal court and those defendants filed a motion to dismiss, Plaintiffs only prevailed against

one-third of the claimants and thus are entitled to one-third of their attorney’s fees. This

argument is rejected.

A plaintiff may voluntarily dismiss a defendant and still obtain attorney’s fees incurred

litigating against the remaining defendant. Defendant does not raise a challenge that any specific

time entry relates only or primarily to the dismissed defendants or otherwise did not “involve a

common core of facts or [was not] based on related legal theories.” See Ibrahim v. U.S. Dep’t of

Homeland Sec., 912 F.3d 1147, 1172 (9th Cir. 2019). Defendant simply raises a blanket

challenge that all time must be reduced by two-thirds because two defendants were voluntarily

dismissed at the outset of this case. That argument is without merit.

Defendant also relies on Plaintiffs’ initial brief, requested by the Court, on the question of

who decides the threshold arbitrability issue, which Plaintiffs filed before Defendant successfully

moved for summary disposition in the underlying arbitration. In that brief, Plaintiffs requested

relief from this Court that included requesting certain injunctive relief relating to the underlying

arbitration. The Court had set expedited briefing on the threshold arbitrability question, but

before the matter was briefed, the arbitrator decided the underlying arbitration against Plaintiffs.

Thus, some of the original relief requested by Plaintiffs was rendered moot.

Additionally, the Court framed the scope of this case, regardless of the relief requested by

Plaintiffs in their initial brief (which was beyond the scope established by the Court). The Court

stated that it would resolve whether it was for the arbitrator or federal court to decide the

threshold question of whether Plaintiffs had an arbitration agreement with Defendant and if it

was the Court’s decision, the Court would resolve whether Plaintiffs were bound to the

arbitration clause of the franchise agreements. See, e.g., ECF 41, 50, 64. Plaintiffs prevailed on

both questions.3 The Court rejects Defendant’s argument that Plaintiffs only partially prevailed

in this case.

B. Applicability of ORS § 20.083

Defendant argues that ORS § 20.083 does not provide a statutory basis on which

Plaintiffs can assert a right to attorney’s fees in this case. Defendant contends that it did not

request attorney’s fees in this action.4 The Court notes, however that Defendant did not file an

answer in this action, so it is unknown whether Defendant would have requested attorney’s fees.

Additionally, the standard under ORS § 20.083 is whether under the claim made by the party in

the action, fees are authorized in the contract. See, e.g., Sherwood Park Bus. Ctr., LLC v.

Taggart, 267 Or. App. 217, 236 (2014) (“[ORS § 20.083 is] intended to ensure that, where a

claim is made under a contract that would allow the prevailing party to receive fees, a party

defending against that claim may also receive fees, even if that party prevails by asserting a

defense that the contract does not control.”).

These cases had a unique procedural posture. Plaintiffs requested that the Court not

decide whether they are subject to arbitration on the merits and instead require Defendant to file

3 Indeed, Plaintiffs ultimately prevailed on a question that they urged the Court not to

reach. Plaintiffs requested that the Court not resolve on the merits whether Plaintiffs were subject

to the arbitration clause, arguing that Defendant must first file a motion to compel arbitration.

4 Defendant also argues that it did not base its request for attorney’s fees against Plaintiffs

in the underlying arbitration, in which it was awarded nearly $1 million in fees and costs, on the

franchise agreements. The basis of Defendant’s fee request in the arbitration is not relevant to

this pending fee motion, but if it were, the Court does not find Defendant’s current assertion to

be so clear from the fee petition in the underlying motion. For example, Defendant argues here

that its sole contractual basis for fees against the individual plaintiffs in the arbitration was the

guarantees, but there is no guarantee signed by the Trust, and Defendant included the Trust in its

argument in the arbitration that “Respondents” owed full fees regardless of whether the arbitrator

found a basis to conclude that fees were owed for a “willful and malicious” misappropriation of

trade secrets.

a petition to compel Plaintiffs to arbitration—thus making Plaintiffs file a formal “claim.” The

Court declined to put form over substance and resolved these cases as though Defendant had

filed such a petition. The Court considered on the merits whether Plaintiffs could be compelled

to arbitration. The Court did not require Defendant to file answers or to file a formal petition.

Nonetheless Defendant’s position (or “claim”) in these cases was very clear—Defendant argued

that Plaintiffs were parties to the franchise agreements as “Controlling Principals.” Defendant

also argued that if Plaintiffs were not “Controlling Principals,” then they were subject to the

franchise agreements for several other reasons, including through principles of agency, as third-

party beneficiaries, through estoppel, and through the common law doctrine of alter-ego and

piercing the corporate veil.5

If Defendant had prevailed on their position in these cases, then the Court would have

concluded that Plaintiffs were parties to or otherwise bound by the franchise agreements. The

franchise agreements have an attorney’s fee provision that provides, among other things, “If

either party initiates a judicial or other proceeding, the prevailing party in such proceeding will

be entitled to reimbursement of its costs and expenses, including reasonable attorney fees.”

ECF 76-1 at 58. “Costs and expenses” are further defined to include a representative list of types

of costs plus “litigation expenses, and attorney fees.” Id. Defendant does not dispute that the

franchise agreement provides for attorney’s fees. Indeed, in the arbitration Defendant based its

claim for attorney’s fees in part on the franchise agreement’s clause.

5 Defendant argues that this case is governed by Sherwood Park Business Center and

ORS § 20.083 does not apply because no party ever contended that Plaintiffs were parties to the

franchise agreements. This argument is flatly contradicted by Defendant’s position throughout

this litigation. Defendant argued that Plaintiffs, although nonsignatories, were bound by the

franchise agreement as Controlling Principals, as third-party beneficiaries, through agency

principles, through estoppel, and through the alter-ego doctrine. No such assertions were made

with respect to the relevant defendant in Sherwood Park Business Center.

Because Defendant would have been entitled to attorney’s fees had Defendant prevailed

in this litigation, ORS § 20.083 applies. Plaintiffs are entitled to attorney’s fees even though their

defense is that they were not a party to the underlying contract. See Sherwood Park Bus.

Ctr., 267 Or. App. at 236; see also King v. Neverstill Enters, LLC, 240 Or. App. 727, 736 (2011)

(“[E]ach agreement contains an attorney-fee provision that authorizes an award of attorney fees

in an action brought to enforce or interpret the agreements. Plaintiff’s claim for breach of the

agreements by defendants is such an action, and, accordingly, she would have been entitled to

recover her fees had she prevailed. Therefore, the conditions required for ORS 20.083 to apply

are met here, and defendants are entitled to an award of attorney fees as the prevailing parties

regardless of the defense on which they prevailed.”); United States v. Int’l Fid. Ins. Co., 2019

WL 9050959, at *4 (C.D. Cal. Dec. 19, 2019) (applying similar California law that “permits

nonsignatories to recover attorney’s fees where the opposing party would have been entitled to

fees had it prevailed”); Burkhalter Kessler Clement & George LLP v. Hamilton, 19 Cal. App. 5th

38, 46 (Ct. App. 2018) (“Indeed, even though Hamilton was not a party to the contract, she is

entitled to recover her attorney fees under [California’s similar law], because Burkhalter would

have been entitled to recover its attorney fees against Hamilton had it prevailed on its alleged

alter ego theory of liability.”).

C. Local Rule 54-3(a)

Defendant argues that the Court should deny Plaintiffs’ fee petition for failure to comply

with Local Rule 54-3(a), which requires that fee petitions “set forth the relevant facts and

arguments of the moving party, along with all supporting authorities, affidavits, or declarations.”

The Court rejects Defendant’s objection. Plaintiffs’ petition sets forth sufficient details. It argues

the statutory basis for their request, provides sufficient underlying facts, provides the requested

hourly rates and how they were calculated, and includes a detailed, although not always

sufficient (as discussed below), list of time entries to enable the Court’s lodestar review.6

D. Hourly Rate

Plaintiffs request hourly rates based on the OSB 2017 Survey, 75th percentile, based on

the number of years’ experience of respective counsel. Plaintiffs request $334 per hour for

attorney Justin G. Redden, $288 for attorney Michael J. Riddell, $236 for attorney Collin E.

Cresap, and $282 for attorney Peter Caltagirone. Defendant does not object to the hourly rates

requested. The Court finds these rates are reasonable.

E. Time Spent

Defendant objects to the time for which Plaintiffs seek reimbursement on several

grounds. Defendant objects to time for which more than two attorneys seek reimbursement, time

that Defendant contends is clerical, time that Defendant contends was incurred in the arbitration

or the California state court lawsuit, time that Defendant argues was “vague” or block billed, and

time billed for motions and other issues that Defendant argues Plaintiffs lost.

The Court agrees with some of Defendant’s objections. The Court agrees that most of the

time spent in the arbitration and time spent in the first California lawsuit that was stayed for the

arbitration is not compensable in this litigation.7 Plaintiffs argue that if not for Defendant’s

6 Defendant also objects that Plaintiffs did not provide actual invoices sent to and paid by

their clients, as opposed to an accounting of billable time. Defendant provides no authority on

the relevance of how much a client has paid or that invoices to clients are required for fee

petitions, nor has the Court seen such practice in its experience. See, e.g., Clare v. Clare, 2021

WL 6206977, at *5 (E.D. Wash. June 11, 2021) (“However, the successful movant is entitled to

attorney’s fees ‘incurred,’ regardless of whether the amount is paid by the client.”).

7 After the arbitrator added Plaintiffs to the arbitration, Plaintiffs sought to amend their

complaint in the stayed state court action to add new claims and defendants. The defendants filed

motions challenging Plaintiffs’ amended complaint and jurisdiction.

conduct giving rise to this litigation, the specific attorney conduct for which Plaintiffs seek

attorney’s fees would not have been required in the California case or the arbitration. The fact

that the same conduct may have given rise to more than one case, however, does not mean that

attorney’s fees are recoverable in this case for work performed in all of those separate cases.

There are, however, a few time entries for work performed that was applicable to both the

arbitration and this case because they have the same core facts and are based on the same legal

theories. Cf. Ibrahim, 912 F.3d at 1172. Specifically, work relating to the legal authority of the

arbitrator to decide the threshold legal question and whether Plaintiffs are bound by the

arbitration clause in the arbitration agreement. These entries involve pre-lawsuit research and

strategic discussions and meetings, and the Court allows those time entries to be recoverable in

this case.

The Court also agrees that the same work performed by more than two attorneys is

excessive and redundant. That does not mean, however, that more than two attorneys may not,

for example, draft a brief, so long as they are drafting different sections of the brief or otherwise

performing different drafting duties. The Court has carefully reviewed the entries relating to the

drafting of Plaintiffs’ briefs before this Court to eliminate excessive and redundant billing, while

allowing more than two attorneys to perform different drafting and research functions.

The Court agrees that Plaintiffs may not recover for time spent working on their

unsuccessful opposition to Defendant’s motion for entry of a protective order in this case. The

Court thus reduces the entries relating to Plaintiffs’ opposition of that motion.

The Court has also reduced a few time entries that the Court concludes are clerical in

nature. The Court also has reduced time entries where the description is vague or indecipherable

(it appears that some time entries were cut off by the software program). The Court, however,

only reduces block billing of more than three hours. The Court did not find any such entries in

Plaintiff’s submission. There were block billing entries of less than three hours, but the Court did

not reduce those submissions.

Finally, the Court notes that Plaintiffs state that they seek 25.1 hours for “no charge” time

that they did not charge their client as an accommodation. The time submissions to the Court,

however, mostly do not contain any time for the “no charge” billing entries and simply state “0”

or are blank. Only 4.8 hours are included for “no charge” entries, not 25.1 hours. Based on the

Court’s calculation, Plaintiffs’ totals do not include time for all the no charge entries, but only

the 4.8 hours that actually include listed time. To the extent Plaintiffs request an additional 25.1

hours for “no charge” entries or otherwise request reimbursement for those blank “no charge”

entries that do not detail any time spent, that request is rejected and those entries are not included

in the Court’s total. The Court only includes entries for which time is actually listed, so the Court

may analyze the reasonableness of the time charged.

After considering Defendant’s objections and analyzing all of Plaintiffs’ submissions, the

Court reduces all of the time claimed for attorney Caltigirone and reduces the time requested by

the other attorneys by the following entries:

Attorney Reden: Attorney Riddell Attorney Cresap

9/25/2021 0.7 4/22/2022 1.2 1/12/2022 0.9

9/27/2021 0.8 8/30/2022 0.4 1/18/2022 0.8

9/27/2021 2.7 10/7/2022 0.8 2/1/2022 0

9/28/2021 0.8 10/7/2022 0.2 2/1/2022 1.5

9/29/2021 2.6 10/12/2022 1 2/1/2022 3.2

9/30/2021 2.9 10/13/2022 2.6 2/2/2022 2

10/4/2021 1 10/13/2022 2.2 2/3/2022 0

10/5/2021 0.5 10/14/2022 1.4 2/3/2022 0.9

10/6/2021 2.6 12/12/2022 0.6

2/3/2022 1.4

10/16/2021 1.1

2/7/2022 3.1

10/26/2021 0.6 Total: 10.4

2/16/2022 0.8

10/28/2021 1.5

10/3/2022 7.4

10/29/2021 0.7

10/4/2022 1.7

Attorney Reden: Attorney Riddell Attorney Cresap

11/15/2021 0.5 10/12/2022 2.3

11/17/2021 0.2 10/12/2022 1.5

11/17/2021 0.7 10/13/2022 3.3

11/30/2021 0.3 10/13/2022 1.3

11/30/2021 1.3 10/19/2022 0.5

12/1/2021 2.9 10/24/2022 0.4

12/1/2021 2.6 10/28/2022 2.5

12/29/2021 1.5 10/31/2022 1.5

1/10/2022 1

11/1/2022 0

1/26/2022 0.4

11/7/2022 0

2/2/2022 0.7

11/7/2022 0

2/3/2022 0.8

11/7/2022 0

2/7/2022 1.2

11/8/2022 0

4/22/2022 1

11/9/2022 0

5/25/2022 0.4

7/18/2022 0.5 11/9/2022 0

12/29/2022 1.1 11/11/2022 1.5

1/18/2023 2

Total: 35.6 2/8/2023 1

2/10/2023 0.3

Total: 41.8

Mr. Reden claimed 180.3 hours. Reducing those hours by 35.6 leaves 144.7 hours at

$334 per hour for a fee of $48,329.80. Mr. Riddell claimed 70.1 hours. Reducing those by 10.4

leaves 59.7 hours, at $288 per hour for a fee of $17,193.6. Mr. Cresap claims 149.1 hours.

Reducing those by 41.8 leaves 107.3, at $236 per hour, for a fee of $25,322.8. In total, Plaintiffs

are entitled to attorney’s fees in the amount of $90,846.20.

F. Adjustment to Lodestar

As noted above, the lodestar calculation encompasses several of Oregon’s statutory

factors. The Court also considers Oregon’s statutory factors in evaluating whether to adjust the

lodestar. Plaintiffs do not request a fee multiplier. Plaintiffs did not specifically argue any of the

statutory factors except the first factor under ORS § 20.075(1). Plaintiffs argue that under

Oregon law their attorney fees are “mandatory” and also argue that the first eight factors under

ORS § 20.075(1) do not apply. Plaintiffs contend those factors apply only for discretionary fees

and are not applicable when fees are required under a statute. Thus, Plaintiffs contend that only

the seven factors under § 20.075(2) are relevant.

Plaintiff misunderstands Oregon law. ORS § 20.075(2) expressly directs that when fees

are “required by statute” a court nonetheless “shall consider the factors specified in subsection

(1) of this section in determining the amount of an award of attorney fees.” That subsection then

directs a court to, “[i]n addition,” consider the factors in ORS § 20.075(2). Thus, all of the

statutory factors may be relevant.

Turning to the factors, this case was somewhat complicated by the summary adjudication

of the arbitration. It is unclear whether Defendant refused to stipulate to a stay of the arbitration

while this Court resolved the threshold arbitrability question or whether the arbitrator refused to

stay the arbitration. Defendant argues that the entire issue would have been unnecessary absent

underlying fraudulent conduct by Plaintiffs, but that is a merits determination that remains

unresolved. This factor does not support a adjustment in fees.

The attorney’s fees award calculated under the lodestar is sufficient to compensate for a

reasonable lodestar without overcompensating for work that was unreasonable, excessive, or

unnecessary. The Court’s reduction in reasonable hours also accounts for the factors relating to

the reasonableness of the claims brought and deterrence. The lodestar calculation, however, still

results in a reasonable fee given the amount of litigation needed for this case. This is sufficient to

encourage parties to bring similar good faith claims, and to reward the time and labor involved,

and recognize the amount involved (which was substantial given the arbitration award issued

against Plaintiffs), the results obtained, the experience and ability of Plaintiffs’ counsel, and the

other similar statutory factors. Considering all of the factors under ORS § 20.075, the Court does

not find that a departure from the lodestar is warranted.

G. Bill of Costs

Defendant argues that the Court should deny all costs because Plaintiffs’ submission

created the “incorrect impression” that all costs were incurred in this litigation when some of the

costs predate this litigation and were incurred in the arbitration or the separate California case.

The Court declines to deny all costs, but like with attorney’s fees, only awards costs that were

incurred in this litigation. Because the underlying facts and Plaintiffs’ legal theories in all three

cases are similar, however, some prelitigation costs involving research or obtaining materials that

might help develop case theories or potentially provide evidence for this case are recoverable.

The Court finds that the filing fees in the California state case are not recoverable in this

case. These total $665.32. The Court also finds that reimbursement in the amount of $45.57 for

the cost identified simply as “payment” is too vague to support reimbursement. Thus, Plaintiffs’

Cost Bill is reduced by $710.89. The Court awards costs in the amount of $2,997.20.

CONCLUSION

The Court GRANTS IN PART Plaintiffs’ motion for attorney’s fees, ECF 74 in 3:22-cv-

1258-SI, ECF 71 in 3:22-cv-1259-SI, and ECF 74 in 3:22-cv-1260-SI. The Court awards

attorney’s fees in the amount of $90,846.20. The Court GRANTS IN PART Plaintiff’s Bill of

Costs, ECF 75. The Court awards costs in the amount of $2,997.20.

IT IS SO ORDERED.

DATED this 10th day of April, 2023.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge