Nufarm Americas, Inc v. Delta Ridge Holdings, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

NUFARM AMERICAS INC., an Illinois Case No. 22-cv-581-HL

corporation,

ORDER

Plaintiff,

v.

DELTA RIDGE HOLDINGS, LLC, an

Oregon limited liability company; and

BRIAN JONES,

Defendants.

Michael H. Simon, District Judge.

Plaintiff Nufarm Americas Inc. sued Delta Ridge Holdings, LLC (Delta) and Brian Jones

(collectively, Defendants). Plaintiff asserted a claim for breach of contract against Delta, an

alternative claim for unjust enrichment against Delta, and a claim for breach of a personal

guaranty (Guaranty) against Jones. United States Magistrate Judge Andrew Hallman issued

Findings and Recommendation in this case on September 12, 2023. Judge Hallman

recommended that this Court grant Plaintiff Nufarm Americas Inc.’s motion for summary

judgment and enter judgment in favor of Plaintiff and against Defendants on the breach of

contract and breach of guaranty claims in the amount of $909,367.90. Because Judge Hallman

found that Plaintiff was entitled to summary judgment on the breach of contract and breach of

guaranty claims, he did not reach Plaintiff’s alternative claim for unjust enrichment. Neither

party objected to Judge Hallman’s Findings and Recommendation. The Court, finding no clear

error on the face of the record, adopted Judge Hallman’s Findings and Recommendation, granted

summary judgment to Plaintiff, and entered judgment against Defendants in the amount

of $909,367.90.

Plaintiff now moves the Court for an order granting an award of attorney’s fees and costs

against Jones pursuant to the Guaranty that Jones executed in favor of Plaintiff. The Guaranty

includes the following provision:

Expenses. Guarantor shall pay to Nufarm, on demand, the amount

of any and all reasonable expenses, including, without limitation,

attorneys’ fees, which Nufarm may incur in connection with

exercise or enforcement of any the rights, remedies, or powers of

Nufarm hereunder or with respect to any or all of the Obligations.

Crawford Decl. Ex. 2 (Guaranty) ¶ 8.2 (ECF 31-1 at 4). Plaintiff moves for attorney’s fees and

costs, requesting attorney’s fees totaling $27,122.75 and costs totaling $1,048.99, for a total sum

of $28,171.74. Defendants did not respond or object to Plaintiff’s motion.

A. Applicable Law

The Guaranty contains a governing law provision that specifies that the agreement “shall

be governed by, and construed in accordance with, the laws of the State of Illinois without regard

to any conflict of laws principles.” Id. ¶ 8.7. This statement unambiguously expresses the parties’

intent that Illinois law should control the Court’s determinations related to the Guaranty.

Additionally, in his Findings and Recommendation, Judge Hallman applied Illinois law in his

evaluation of the Guaranty, and neither party objected to this application. Thus, the Court applies

Illinois law in its evaluation of Plaintiff’s motion.

“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); see also Dobbs v. DePuy Orthopedics, Inc.,

842 F.3d 1045, 1048 (7th Cir. 2016) (applying state law to determine whether the district court’s

award of attorney’s fees in diversity case was reasonable). Under Illinois law, “[w]here

attorney’s fees are authorized by contract, a court may properly award them according to the

specific language of the contract.” Ferrara v. Collins, 119 Ill. App. 3d 819, 825 (1983). “A

guaranty is a contract and is thus interpreted according to the principles that govern the

interpretation of contracts in general.” McHenry Sav. Bank v. Autoworks of Wauconda, Inc., 399

Ill. App. 3d 104, 111 (2010). “Contractual provisions for an award of attorney fees must be

strictly construed, and the court must determine the intention of the parties regarding the

payment of fees.” J.B. Esker & Sons, Inc. v. Cle-Pa’s P’ship, 325 Ill. App. 3d 276, 281 (2001).

“Whether and in what amount a trial court will award attorney fees is a matter committed to the

trial court’s sound discretion[.]” McHenry Sav. Bank, 399 Ill. App. 3d at 113 (citing Mountbatten

Sur. Co. v. Szabo Contracting, Inc., 349 Ill. App. 3d 857 (2004)).

An award for attorney’s fees may consist only of “reasonable charges for reasonable

services.” Id. “To help the trial court in assessing whether an attorney’s fees are reasonable, ‘the

petitioner must provide sufficient information, including detailed time records that were kept

throughout the proceeding.’” McNiff v. Mazda Motor of Am., Inc., 384 Ill. App. 3d 401, 407

(2008) (quoting Richardson v. Haddon, 375 Ill. App. 3d 312, 314 (2007)). “The records

submitted to the court should be scrutinized for their reasonableness in the context of the case.”

Richardson, 375 Ill. App. 3d at 314. When making its reasonableness assessment,

the trial court may consider a number of factors, including the

nature of the case, the novelty and difficulty of the case, the skill

and standing of the attorneys, the degree of responsibility required,

the usual and customary charges in the community for similar

work, and the connection between the case and the fees charged.

Id. at 314-15. “The trial court may and should rely on its own knowledge and experience when

determining the reasonableness of the fees sought.” McHenry Sav. Bank, 399 Ill. App. 3d at 113.

“When a trial court reduces the amount of fees requested in a fee petition,” however, “it should

include in its ruling the reasons supporting each reduction.” Id.

The preferred method of calculating reasonable attorney’s fees is the “lodestar” method.

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551-52 (2010); see also Bennett v. Cent. Tel. Co.

of Ill., 619 F. Supp. 640, 653 (N.D. Ill. 1985) (stating that “the lodestar concept represents a

sound methodology for determining a reasonable fee”). 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). 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 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. Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th

Cir. 2013). Alternatively, “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.” Id. (quoting Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir.

1992)).

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

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

number of hours. This calculation yields the lodestar amount. There is a strong presumption that

the fee arrived at through the lodestar calculation is a reasonable fee. Perdue, 559 U.S. at 552.

B. Analysis

As noted, the Guaranty provides that Plaintiff is entitled to “any and all reasonable

expenses” incurred “in connection with exercise or enforcement of any the rights, remedies, or

powers of Nufarm hereunder or with respect to any or all of the Obligations.” This provision

indicates that the parties’ agreement intended an expansive reading of the term “expenses,”

which is defined specifically to include attorney’s fees. “Expenses,” as used in the Guaranty, is

limited only in that the expenses (1) must be incurred in connection with Plaintiff’s enforcement

of its rights under the Guaranty and (2) must be reasonable. The Guaranty’s expenses provision

thus indicates the parties intended to award to Plaintiff expenses in substantially the same

manner as the standard for attorney’s fee awards under Illinois law.

1. Hourly Rate

Plaintiff’s counsel requests the following rates for their legal services: attorney Troy

Sexton at between $350 and $415 per hour; attorney Sean Glinka at $375 per hour; attorney

Ryan Ripp at between $265 and $295 per hour; paralegal Sharon Kuger at $175 per hour;

paralegal Paige Zimmerman at $175 per hour; and paralegal Terry Coble at $175 per hour.

“Generally, when determining a reasonable hourly rate, the relevant community is the

forum in which the district court sits.” Gonzalez, 729 F.3d at 1205 (quoting Prison Legal News v.

Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010)); accord Richardson, 375 Ill. App .3d at 315

(directing courts to consider the “usual and customary charges in the community for similar

work” when assessing the reasonableness of fees). Within this specific geographic community,

the district court should consider the experience, skill, and reputation of the attorneys or

paralegals involved. Gonzalez, 792 F.3d at 1206.

The Court finds that Plaintiff’s hourly rates are reasonable based on a review of the

Oregon State Bar 2022 Economic Survey.1 Mr. Sexton’s low-end rate of $350 per hour is below

1 Oregon State Bar 2022 Economic Survey, Table 36: 2021 Hourly Billing Rate by Total

Years Admitted to Practice – Private Practice (Mar. 2023),

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

the mean ($379) and median ($370) hourly rates for similarly situated attorneys working in

downtown Portland with 12 years’ experience; his high-end rate of $415 per hour is above the

mean and median rates, but below the 95th percentile ($567). Mr. Glinka’s rate of $375 per hour

is $25 less than the median rate for similarly situated attorneys who have practiced for 15 years.

Mr. Ripp’s high-end hourly rate of $295 is less than the median ($300) rate for similarly situated

attorneys with three years’ experience.

“In assessing claims for paralegal fees, courts within this District have noted that ‘a

reasonable hourly rate for a paralegal should not exceed that of a first year associate.’” Smeenk v.

Faught, 2019 WL 3325962, at *2 (D. Or. July 24, 2019) (quoting Precision Seed Cleaners v.

Country Mut. Ins. Co., 976 F. Supp. 2d 1228, 1248 (D. Or. 2013)). Courts then “look closely at

the educational and occupational background of the paralegal in question when crafting a

reasonable rate.” Id. Courts in this District have accepted $175 per hour as a reasonable rate for

paralegals. See, e.g., G&G Closed Cir. Events, LLC v. Rojas, 2021 WL 1342742, at *1 (D. Or.

Apr. 9, 2021); Goldingay v. Progressive Cas. Ins. Co., 2019 WL 852992, at *6 (D. Or. Feb. 22,

2019). The Court has considered the experience of the paralegals and concludes that $175 per

hour is reasonable.

2. Number of Hours

a. Block-Billing

The District of Oregon specifically cautions 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 U.S. District Court, District of

Oregon, Message from the Court Regarding Attorney Fee Petitions.2 This Court has noted that it

“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 more than three hours, however, the Court has

reduced each applicable entry by 50 percent. See, e.g., Fathers & Daughters Nev., LLC v. Lingfu

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

Nearly all of Plaintiff’s time entries are block-billed. This hinders the Court’s ability to

assess the reasonableness of the time spent on each task billed. Plaintiff’s block-billed entries

also contravene the advice promulgated by the District of Oregon. Plaintiff’s saving grace, in this

respect, is that most of Plaintiff’s entries are for periods less than three hours. Mr. Ripp submits

two block-billed time entries exceeding three hours, one for November 29, 2022, and the other

for December 2, 2022. The Court reduces each of these two entries by 50 percent, thereby

reducing Plaintiff’s fee award by $1,020.25.

b. Clerical and Administrative Tasks

Attorney’s fees, including work performed by paralegals and law clerks, may not be

recovered for tasks that are clerical in nature. See Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274,

288 n.10 (1989). “Courts consider tasks to be clerical, and thus not compensable in an attorney

fee award, if they involve ‘filing motions with the court, filling out and printing documents,

preparing affidavits and drafting certificates of service, organizing files, calendaring dates,

rescheduling depositions, and sending documents.’” Goldingay, 2019 WL 852992, at *7 (quoting

2 https://ord.uscourts.gov/index.php/rules-orders-and-notices/notices/fee-petitions (last

updated Mar. 2, 2017).

Sterling Sav. Bank v. Sequoia Crossing, LLC, 2010 WL 3210855, at *7 (D. Or. Aug. 11, 2010)).

Courts have found the guiding principle regarding the unavailability of attorney’s fees for

clerical tasks relevant to “the degree of responsibility required” factor for determining an

award’s reasonableness under Illinois law, because clerical work “does not require a significant

amount of responsibility.” PNC Bank, Nat’l Ass’n v. Innovative Dental Grp., LLC II, 2017

WL 2345626, at *4 (N.D. Ill. May 30, 2017).

There are time entries for which Plaintiff has billed for “purely” clerical tasks, i.e., the

only task or tasks performed were clerical in nature. The Court finds the following billing

entries, each entered by Ms. Kuger, to be purely clerical: January 26, 2023 (“File motion for

extending deadlines”); January 27, 2023 (“Finalize notice of deposition; email to opposing

counsel (.3); docket deposition date (.1); email request to Veritext for court report [sic] and video

conferencing (.1)”); February 9, 2023 (“Docket discovery deadlines.”); and February 28, 2023

(“Upload transcript and exhibits to file.”). One other entry, entered by Ms. Zimmerman on

September 5, 2023 (“Proofread and serve [Local Rule] 83 letter to court.”) is similarly purely

clerical. The Court reduces Plaintiff’s award by $315, the amount related to the above-identified

purely clerical tasks.

c. “No Charge” Entries

There are several instances in which Plaintiff seeks compensation for entries that contain

the phrase “No charge” within the billing narrative. Again, because of the block-billed format of

Plaintiff’s time records, it is unclear to the Court whether the timekeeper intended to refrain from

billing the entire block-billed entry, or intended only to “no-charge” for discrete tasks within that

entry. The phrase “no charge” appears in four of Mr. Sexton’s entries: May 6, 2022; January 13,

2023; February 8, 2023; and February 22, 2023. Each entry refers to communication with the

client. Because it is unclear whether Plaintiff intended these entries to be compensable, the Court

finds it reasonable to exclude these entries from Plaintiff’s attorney’s fees award. The Court

reduces Plaintiff’s award by $403, the amount related to the above-identified entries containing

the phrase “no charge.”

3. Reasonableness Factors

Absent objections from Defendants, the Court evaluates Plaintiff’s remaining requested

fees considering the reasonableness factors identified under Illinois law. The Court finds that the

requested fees are reasonable. After omitting the hours found to be non-compensable as

described herein, Plaintiff’s skilled attorneys and legal staff spent a combined 78.8 hours of

compensable time litigating this case from start to finish. Plaintiff’s attorneys efficiently and

effectively proved Plaintiff’s claims at summary judgment and spent a reasonable number of

hours at reasonable rates to achieve this excellent result. The Court awards Plaintiff attorney’s

fees in the amount of $25,384.50.

4. Costs

As noted, the Guaranty provides that Plaintiff may collect any and all reasonable

expenses incurred in its enforcement of the Guaranty. Plaintiff requests an award

totaling $1,048.99 for Plaintiff’s costs, including court filing fees, the fee for an exemplified

copy of the Court’s judgment, court reporter and deposition transcript fees, Westlaw legal

research and asset search fees, and postage.

“Costs are allowances in the nature of incidental damages awarded by law to reimburse

the prevailing party . . . for the expenses necessarily incurred in the assertion of his rights in

court.” Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295, 301 (2003). Using this definition,

Court has no trouble determining that the Guaranty’s use of the phrase “any and all reasonable

expenses” encompasses the “costs” claimed by Plaintiff. See, e.g., J.B. Esker & Sons, 325 Ill.

App. 3d at 285-86 (interpreting the term “expenses” in a contract provision by looking to various

sources that define “expenses” to include court-reporter fees, document reproduction fees, and

postage). The costs claimed by Plaintiff are expenses reasonably incurred in connection with this

litigation, and are not excessive in the context of the case and the result achieved. The Court

awards Plaintiff reasonable costs in an amount of $1,048.99.

C. Conclusion

The Court GRANTS IN PART Plaintiff’s Motion for Attorney’s Fees, ECF 39. The

Court awards Plaintiff attorney’s fees in the amount of $25,384.50 and costs in the amount of

$1,048.99, for a total award of $26,433.49.

IT IS SO ORDERED.

DATED this 4th day of January, 2024.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge