Boquist v. Courtney

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRIAN J. BOQUIST,

Plaintiff,

Civ. No. 6:19-cv-01163-MC

v. OPINION AND ORDER

OREGON STATE SENATE

PRESIDENT PETER COURTNEY, in

his individual and official capacity;

SENATOR FLOYD PROZANSKT in his

Individual and official capacity as

Chairman of the Senate Special

Committee on Conduct; SENATOR

JAMES MANNING, in his individual and

Official capacity as member of the Special

Senate Conduct Committee,

Defendants.

MCSHANE, Judge:

Plaintiff Brian J. Boquist, represented by attorneys Vance Day and Elizabeth Jones, filed

an amended complaint alleging a violation of his First Amendment Rights. Pl.’s Fourth Amend.

Compl. 4 33, ECF No. 45. Plaintiff is a Senator in the Oregon Legislature. In June 2019, Plaintiff

spoke politically charged words on the Senate floor and later to reporters.' In response, the

Senate Conduct Committee instituted a rule requiring Plaintiff to provide twelve-hours’ notice

prior to arriving at the Capitol building. /d. 4 1.

‘<7 understand the threats from members of the majority that you want to arrest me, you want to put me in jail with

the state police, and all that sort of stuff... . Mr. President, [] if you send the state police to get me, Hell’s coming

to visit you personally.”—Senator Brian Boquist on the Senate floor, June 19, 2019.

"Send bachelors and come heavily armed. I'm not going to be a political prisoner in the State of Oregon. It's just that

simple." —Senator Brian Boquist to reporters, June 19, 2019.

After briefing and oral argument, the Court granted Plaintiff’s Motion for Summary

Judgment and held that the Committee’s twelve-hour rule was a retaliatory act against Plaintiff,

violating his First Amendment rights to free speech and association. Op. & Order 1, 24, ECF No.

80. As the prevailing party, Plaintiff now moves for an order awarding $419,154.80 in attorney’s

fees and $24,869.46 in costs pursuant to 42 U.S.C § 1988. Pl’s Supp. Mot. Att’ys Fees 1, ECF

No. 83. Because Plaintiff is entitled to costs and reasonable attorney’s fees, Plaintiff’s Motion for

Attorney’s Fees and Costs (ECF No. 83) is GRANTED in part and DENIED in part.

DISCUSSION

I. Costs

“Unless a federal statute, [the Federal Rules of Civil Procedure], or a court order provides

otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Fed. R.

Civ. P. 54(d)(1); see also L.R. 54-1. A judge or clerk may tax certain items as costs pursuant to

28 U.S.C. § 1920. Here, Plaintiff seeks costs comprised of $1,260 in clerk fees, $18,737.81 for

the filming and transcription of depositions, and $4,871.65 to obtain additional transcripts and

docket fees, totaling $24,851.65. Bill of Costs 2–3, ECF No. 87.

Defendants argue that two aspects of the deposition fees listed in the Plaintiff’s Bill of

Costs are unreasonable. Defs’ Obj’n 8, ECF No. 94.

First, Defendants object to the cost of the Beyer, Baumgart, and Kotek depositions. Id.

Deposition costs are taxable if they are reasonably necessary for trial. Evanow v. M/V Neptune,

163 F.3d 1108, 1118 (9th Cir. 1998). Defendants argue that Plaintiff did not make even minimal

demonstrations that the referenced depositions were necessary. Defs’ Obj’n 8. In his reply,

Plaintiff provided reasonable explanations of how each deponent’s testimony could be relevant

to his case and why these depositions were necessary for trial.2 Pl.’s Reply 8, ECF No. 97. The

Court agrees that the depositions of Beyer, Baumgart, and Kotek are reasonably necessary for

trial, and the Plaintiff is entitled to these costs.

Second, Defendants argue that the videographer costs for seven depositions were

unnecessary and unreasonable. Defs’ Obj’n 8. In fee shifting cases, “the plaintiff has the burden

of demonstrating why the video deposition was needed and a written transcript would not

suffice.” Brown v. Cascade Mgmt., Inc., No. 3:15-cv-01585-HZ, 2018 WL 4207097, at *11 (D.

Or. Sept. 4, 2018) (citing Hunt v. City of Portland, No. CV 08-802-AC, 2011 WL 355572, at *7

(D. Or. Aug. 11, 2011)). Courts in this District have previously held that videographer’s fees

should not automatically convert “into a recoverable item of cost where a court reporter also

attended and transcribed the deposition and the party seeking to recover the cost does not offer

one or more reasons specific to the case to justify an award for both items.” Puella v. Intel Corp.,

No. 08-1472-AC, 2010 WL 3361089, at *3 (D. Or. Aug. 25, 2010) (cleaned up). The court in

Puella explained that to “[r]outinely allow recovery of the cost incurred for both the court

reporter’s transcript and a separate videographic record of depositions duplicates deposition costs

without purpose.” Id.

In the instant case, Plaintiff makes conclusory statements that videotaping depositions

was in preparation for trial. See e.g., Pl.’s Reply 9. These statements alone do not satisfy

Plaintiff’s burden described in Puella, so the cost of videotaping depositions is denied in general.

Plaintiff does, however, explain that the deposition of Senator Courtney was, in part, a

2 “Senator Beyer made comments supporting the claim that the majority planned to punish plaintiff for statements

Plaintiff made on June 19, 2019. . . . Then Speaker of the House, Kotek issued press releases critical of the

statements Plaintiff made on June 19, 2019. The information she gathered and relied upon to draft the press releases

related to safety at the Capitol needed to be examined under oath.

“Brenda Baumgart was a central figure in the evidentiary record. . . . Evidence developed during discovery,

and addressed in her two depositions, was utilized by both parties in Summary Judgement.” Pl.’s Reply 8.

perpetuation of his testimony due to his hospitalization and failing health. Id. This is a reasonable

explanation for the duplicative costs of transcribing and videotaping Senator Courtney’s

deposition and perpetuation. Therefore, the Court will allow Plaintiff to recover $931.25—the

cost of videotaping Senator Courtney’s deposition and perpetuation. The costs of videotaping the

Hampton, Prozanski, Blouin, Fagan, and Baumgart depositions, totaling $3,785.25, are denied.

Plaintiff is entitled to $21,084.21 in costs.

II. Fees

The Ninth Circuit applies the “lodestar” method for calculating attorney’s fees. Fischer v.

SJB-P. D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). That calculation multiplies a reasonable

hourly rate by the number of hours reasonably expended in the litigation. Id. (citing Hensely v.

Eckerhart, 461 U.S. 424, 433 (1983)). A “strong presumption” exists that the lodestar figure

represents a “reasonable fee,” and it should therefore only be enhanced or reduced in “rare and

exceptional cases.” Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546,

565 (1986). Ordinarily, the court decides whether to enhance or reduce the lodestar figure by

evaluating a set of factors. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008).

Courts determine a reasonable billing rate based on the “prevailing market rate” in the

relevant community. See Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008).

Prevailing market rates are those that the local legal market would pay as compensation to a

lawyer for a case of this nature, considering the lawyer’s skill, experience, and reputation. Blum

v. Stenson, 465 U.S. 886, 897 (1984). This District uses the Oregon State Bar Economic Survey

as the initial benchmark when reviewing fee petitions.3 MW Builders, Inc. v. Safeco Ins. Co. of

America, No. 02-1578, 2009 WL 1161751, at *11 (D. Or. Apr. 28, 2009). The court then reviews

3 The most recent economic survey from 2022 is available at

https://www.osbar.org/_docs/resources/Econsurveys/22EconomicSurvey.pdf.

the submitted billing hours to determine whether the prevailing attorney could have reasonably

billed the claimed hours to a private client. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202

(9th Cir. 2013). “[E]xcessive, redundant, or otherwise unnecessary” hours are not recoverable.

Id. (quoting McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2008)). The prevailing

party “has the burden of submitting billing records to establish that the number of hours . . .

requested are reasonable.” Id.

The court may choose one of three methods when excluding hours that it finds are

excessive, redundant, or otherwise unnecessary. First, the court “may conduct ‘an hour-by-hour

analysis of the fee request,’ and exclude those hours for which it would be unreasonable to

compensate the prevailing party.” Id. (quoting Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th

Cir. 1992)). Second, “when faced with a massive fee application the district court has the

authority to make across-the-board percentage cuts either in the number of hours claimed or in

the final lodestar figure as a practical means of [excluding non-compensable hours] from a fee

application.” Id. (quoting Gates, 987 F.2d at 1399) (cleaned up). Finally, “the district court can

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

discretion and without more specific explanation.” Moreno, 534 F.3d at 1112.

Plaintiff seeks $420,139.80 in attorneys’ fees.4 To determine if this is reasonable the

Court must first look at the hourly rates and then review the billed hours.

A. Hourly Rates

Defendants first argue that Plaintiff’s counsel is not entitled to recover their requested

billing rates because the rates are not supported by the submitted declarations. Defs’ Obj’n 2–3.

The Court is inclined to agree in part.

4 This total includes the fees claimed by Ms. Jones for her 2.5 hours spent on Plaintiff’s Reply and her supplemental

motion.

i. Elizabeth Jones

Plaintiff requests a fee rate of $394 per hour for legal services provided by Ms. Jones.

Ms. Jones’s declaration states that she was admitted to practice in June of 2020. Jones Decl. 2,

ECF No. 86. In this short time, she has litigated over thirty § 1983 actions, assisted with dozens

more as a law clerk, and has specifically gained experience with First Amendment cases. Id. Ms.

Jones adds that she has led multiple § 1983 Ninth Circuit appeals. Jones Supp. Decl. 2, ECF No.

98. She cites this experience as support for her requested rate. Jones Decl. 2. However, Ms. Jones

does not provide previous billing amounts to demonstrate the requested amount is what she

would normally charge a client. She simply points to one section of the Oregon State Bar 2022

Economic Survey. Id.

While Ms. Jones’s experience with § 1983 claims is impressive, the petition reflects the

experience of a junior attorney. For example, the Court notes that Mr. Day, the senior attorney in

this case, spent upwards of 25 hours editing her motions and filings. This level of editing, while

important to Ms. Jones, is better categorized as education and training and is not reflective of a

higher billing rate.

Ms. Jones’s requested billing rate is $394 per hour. She bases this number off the rates

presented for civil litigators in the Upper Willamette Valley.5 Or. State Bar 2022 Econ. Survey

44. When comparing those rates to the rates for attorneys with 0–3 years of experience, the

numbers are disparate. Id. at 44, 42. According to the section of the survey based on total years

admitted to the bar, the requested billing rate would have Ms. Jones being paid closer to the 95th

percentile of what an attorney with 4–6 years of experience would claim. Id at 42. The Court

respectfully finds the requested rate is unreasonable. Based on her previous experience and the

5 This includes all the civil litigators in the Upper Willamette Valley regardless of years of experience.

time expended in this case, the Court finds Ms. Jones is entitled to an hourly rate of $325—

approximately the hourly rate for attorneys in the 75th percentile in Upper Willamette Valley

with 4–6 years of experience.6 Id.

ii. Vance Day

Plaintiff requests a fee rate of $500 per hour for Mr. Day’s legal services. This rate falls

in the 95th percentile of personal injury civil litigators in the Upper Willamette Valley. Id. at 44.

As the Ninth Circuit explains, § 1983 claims are best characterized as personal injury actions.

Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015). Mr. Day has had a notable career with 32

years of experience as an attorney, litigating 450 cases in Oregon state court, 35 cases in federal

court, and 400 worker’s compensation claims. Day Decl. 3–4, ECF No. 85. This experience was

evident throughout the case’s pendency. He was not only a remarkably good advocate in the

courtroom, but he also came to court with a keen understanding of the facts and the law. Based

on Mr. Day’s experience and skill, the Court finds his rate reasonable.

B. Hours Billed

Defendants next object to the number of hours Plaintiff’s counsel claims. They suggest

the Court limit Plaintiff’s counsel’s hours to 125% of those spent by Defendants’ counsel. Defs’

Obj’n 2. Defendants cite no authority for this proposition. However, the Court will still review

Plaintiff’s hours to ensure they are reasonable.

i. Duplicate Hours

The Supreme Court has explained that “[c]ounsel for the prevailing party shall make a

good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise

unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Courts in this District have

6 This accounts for her previous experience in the subject area but also her more recent entrance into the profession.

explained that a “party is certainly free to hire and pay as many lawyers as it wishes but cannot

expect to shift the cost of any redundancies to its opponent.” Pollard v. City of Portland, No.

CV-01-114-ST, 2001 WL 34042624, at *5 (D. Or. Aug. 7, 2001). There are also instances where

duplicate hours may be deducted. Brown v. Cascade Mgmt., Inc., No. 3:15-cv-01585-HZ, 2018

WL 4207097 at *3 (D. Or. Sept. 4, 2018). For example, when “attorneys hold a telephone or

personal conference, good ‘billing judgment’ mandates that only one attorney should bill that

conference to the client, not both attorneys.” Nat’l Warranty Ins. Co. v. Greenfield, No. CV-97-

1654-ST, 2001 WL 34045734, at *5; see also Pollard, 2001 WL 34042624 at *5. Courts in this

District have also reduced fees when the prevailing party charged for having multiple attorneys

attend pre-trial conferences, depositions, mediations, conferences with opposing counsel, and

intra-office conferences. See, e.g., Doby v. Sisters of St. Mary of Oregon Ministries Corp., No.

3:13-cv-00977-ST, 2015 WL 4877786 at *4 (D. Or. Aug. 14, 2015); United States v. Montagne

Dev., Inc., No. 3:11-cv-01191-PK, 2014 WL 2334209 at *5 (D. Or. Mar. 10, 2014). When

determining if hours were duplicative, “courts should consider the complexity of the case or the

extent to which the attorneys handled distinct aspects of the task billed.” Brown, 2018 WL

4207097 at *3. “To correct for this duplication by two attorneys, the higher billing rate of the

two attorneys should be allowed.” Miranda-Olivares v. Clackamas Cnty., No. 3:12-CV-02317-

ST, 2015 WL 5093752, at *8.

After reviewing the hours Plaintiff submitted, the Court found many instances of overlap

that fall into the areas of duplication outlined above. On several occasions, Mr. Day and Ms.

Jones charged for meetings they both attended. See, e.g., Jones Decl. at 1; Day Decl. at 1 (each

charging for a meeting with Senator Boquist lasting 1.5 hours). Plaintiff stated that Mr. Day and

Ms. Jones split the work in this case with Ms. Jones focusing on drafting motions and strategy

and Mr. Day on discovery and depositions. Pl.’s Reply 5. However, Mr. Day spent several hours

reviewing and editing Ms. Jones’s drafts and Ms. Jones spent numerous hours attending

depositions. These are redundancies that a private client may be willing to pay for but should not

be passed along in a fee-shifting case. The non-prevailing party should not be on the hook for an

extra set of eyes on a draft or for training a less experienced attorney. Therefore, the hours

requested by Plaintiff’s counsel should be reduced.

ii. Clerical Hours

“It is well settled, both in this District and elsewhere, that it is inappropriate to seek fees

under a fee shifting statute for purely secretarial or clerical work.” Lafferty v. Providence Health

Plans, No. 08-CV-6318-TC, 2011 WL 127489, at *5 (D. Or. Jan. 14, 2011) (citing Missouri v.

Jenkins, 491 U.S. 274, 288 n.10 (1989); Frevach Land Co. v. Multnomah Cnty., No. CV-99-

1295-HU, 2001 WL 34039133, at *12 (D. Or. Dec. 18, 2001)). Clerical hours include calling to

schedule videographers and court reporters, filing motions, emailing documents, drafting

subpoenas, and scheduling depositions and conferences. Brown, 2018 WL 4207097, at *4. If

there is evidence that “these tasks were so complex or contentious that they warranted attorney

time,” then the regular hourly rate can be charged. Id.

Here, Plaintiff’s counsel billed for clerical work such as setting up meetings, printing

exhibits at FedEx, and confirming videographers and court reporters. See Day Decl. Ex. 1 at 1, 8,

9, ECF No. 85(1). These tasks are neither complex nor contentious enough to warrant attorney

time. Therefore, the hours requested by Plaintiff’s counsel should be reduced.

After examining Plaintiff’s Motion for Attorney’s Fees and the accompanying

documents, I find that a 5% reduction from Plaintiff’s total requested hours is reasonable. The

Court’s adjustment simply trims some of the duplication and clerical work present in Plaintiff’s

filings without overly scrutinizing each attorney’s time sheet. Plaintiff’s attorney’s fees are

calculated as follows:

Mr. Day: 557.23 hours at $500 per hour = $278,615.00

Ms. Jones: 359.2 hours at $325 per hour = $116,740.00

Total Fees: $395,355.00

5% reduction: $375,587.25

CONCLUSION

Plaintiff’s Motion for Attorney’s Fees and Costs (ECF No. 83) is GRANTED in part and

DENIED in part. Plaintiff is awarded $375,587.25 in fees and $21,084.21 in costs.

IT IS SO ORDERED.

DATED this 30th day of October 2023.

/s/ Michael J. McShane

Michael McShane

United States District Judge