Regional Local Union Nos. 846 and 847, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO v. LSRI, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

REGIONAL LOCAL UNION NOS. 846 and No. 3:22-cv-01473-HZ

847, International Association of Bridge,

Structural, Ornamental and Reinforcing OPINION & ORDER

Iron Workers, AFL-CIO; REGIONAL

DISTRICT COUNCIL WELFARE PLAN AND

TRUST, f/k/a LOCAL 846 REBAR WELFARE

TRUST, By and Through Its Board of Trustees;

REGIONAL DISTRICT COUNCIL RETIREMENT

PLAN AND TRUST, f/k/a REBAR RETIREMENT

PLAN AND TRUST, By and Through Its Board of

Trustees; REGIONAL DISTRICT COUNCIL

TRAINING TRUST, f/k/a LOCAL 846 TRAINING

TRUST, By and Through its Board of Trustees;

REGIONAL DISTRICT COUNCIL VACATION

TRUST FUND, f/k/a LOCAL 846 VACATION

TRUST, By and Through Its Board of Trustees,

Plaintiffs,

v.

LSRI, LLC d/b/a Lone Star Rebar Installers, a

Texas Limited Liability Company,

Defendant.

Cary R. Cadonau

Brownstein Rask

1 SW Columbia Street, Suite 900

Portland, OR 97204

Michael A. Evans

Hartnett Reyes-Jones, LLC

4399 Laclede Avenue

St. Louis, MO 63108

Attorneys for Plaintiffs

HERNÁNDEZ, District Judge:

Plaintiff labor unions and employee benefit plans move for attorney fees and costs

following the Court’s entry of default judgment. ECF 42, 43. Defendant is in default and has not

appeared. For the following reasons, the Court grants Plaintiffs’ Motion for Attorney Fees and

Bill of Costs in part and denies them in part.

BACKGROUND

Plaintiffs’ Complaint alleged violations of provisions of a collective bargaining

agreement (“CBA”) between the Labor Union Plaintiffs and Defendant. ECF 1. CBAs are

governed by the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq. The

Employee Benefit Plan Plaintiffs are organized under the Employee Retirement Income Security

Act (“ERISA”), 29 U.S.C. § 1001 et seq. Compl. ¶¶ 2-5. Plaintiffs alleged that Defendant failed

to make required contributions to the Employee Benefit Plan Plaintiffs and failed to remit check-

off amounts of union dues to the Labor Union Plaintiffs as required by the CBA. Id. ¶¶ 15-34.

The Complaint further alleged that the amounts owed could not be determined without an audit

of Defendant’s records. Id. ¶¶ 24, 32.

Defendant failed to appear, and the Court entered default against it. On July 8, 2024, the

Court entered default judgment for Plaintiffs after a payroll examination showed that Defendant

owed unpaid fringe benefit contributions and union dues. Op. & Ord., ECF 40. The Court

instructed Plaintiffs to provide more complete information on their billing and costs to show that

they were entitled to attorney fees and costs. Id. at 9. In their present Motions, Plaintiffs have

provided the requested information.

DISCUSSION

The Court concludes that Plaintiff’s Bill of Costs should be allowed in part, that Plaintiffs

are entitled to most but not all of the attorney fees they request, and that some of Plaintiff’s non-

taxable costs should be awarded as part of the attorney fee award.

I. Costs

Plaintiffs seek $947.12 in costs. Bill of Costs, ECF 43. “Unless a federal statute, these

rules, 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). “[T]he word ‘should’ makes clear that the

decision whether to award costs ultimately lies within the sound discretion of the district court.”

Marx v. Gen. Revenue Corp., 568 U.S. 371, 377 (2013). That discretion, however, is confined to

the categories of recoverable costs enumerated at 28 U.S.C. § 1920. Alflex Corp. v. Underwriters

Lab’ys, Inc., 914 F.2d 175, 176 (9th Cir. 1990).

Plaintiffs seek to recover the $402 filing fee. Pl. Mot. Fees Ex. 1, Evans Aff. ¶ 12, ECF

42-1. This cost is recoverable. Plaintiffs also incurred $236 in process server fees for three

separate services: service of the summons and complaint as well as personal service on

Defendant’s principal of the motion for contempt and arrest warrant as ordered by the Court.

These costs are also recoverable under the statute. See Alflex Corp., 914 F.2d at 177 (fees for

private service of process are taxable).

Plaintiffs also seek to recover $300 for a pro hac vice filing fee and $9.12 for postage for

certified mailings to the Secretary of Labor and Secretary of the Treasury pursuant to 29 U.S.C.

§ 1132(h). Evans Aff. ¶ 12. Neither of these costs is taxable under § 1920. Kalitta Air L.L.C. v.

Cent. Texas Airborne Sys. Inc., 741 F.3d 955, 958 (9th Cir. 2013) (pro hac vice fee not taxable

under § 1920); Grove v. Wells Fargo Fin. California, Inc., 606 F.3d 577, 579 (9th Cir. 2010)

(treating postage as a non-taxable cost).

The Court therefore allows Plaintiff’s Bill of Costs in the amount of $638. The Court will

consider whether the non-taxable costs may be recovered under ERISA as part of the attorney

fee award. See Trustees of Const. Indus. & Laborers Health & Welfare Tr. v. Redland Ins. Co.,

460 F.3d 1253, 1257-59 (9th Cir. 2006) (approving award of non-taxable costs under ERISA).

II. Attorney Fees and Nontaxable Costs

ERISA provides for recovery of “reasonable attorney’s fees and costs of the action” in a

claim for unpaid fringe benefit contributions. 29 U.S.C. § 1132(g)(2).1 When reviewing a motion

for attorney fees, the district court must determine what fee is reasonable. Hensley v. Eckerhart,

461 U.S. 424, 433 (1983). To do so, the court should calculate “the number of hours reasonably

expended on the litigation multiplied by a reasonable hourly rate.” Id. There is a “strong

presumption” that this figure represents a reasonable fee. Jordan v. Multnomah Cnty., 815 F.2d

1258, 1262 (9th Cir. 1987) (internal quotations omitted).

Plaintiffs seek $11,339.26 in attorney fees. Pl. Mot. 2. Attorneys Michael Evans and

Daniel Sparks billed at a rate of $255 per hour from September 2022 through February 2023.

Evans Aff. ¶ 9. They billed at a rate of $285 per hour from March 2023 through February 2024,

1 The Court need not address fee awards for claims under the LMRA because it perceives no

hours worked that pertain only to the claims under the LMRA.

and $290 per hour from February 2024 to the present. Id. Attorney Cary Cadonau billed at $250

per hour between September 2022 and May 2024, and $290 per hour from June 2024 to the

present. Id. ¶ 10. The Court previously found these rates reasonable. Op. & Ord. 9. The median

rate for an attorney working in employment law in downtown Portland was $420 per hour in

2021. Oregon State Bar 2022 Economic Survey, Report of Findings at 46,

https://www.osbar.org/_docs/resources/Econsurveys/22EconomicSurvey.pdf. Counsel’s rates are

well below the median.

Plaintiffs enclose a log of hours showing that Mr. Evans spent 34.66 hours working on

this matter, Mr. Sparks spent 8 hours working on this matter, and Mr. Cadonau spent 2 hours

working on this hour. Pl. Mot. Exs. 2-3. The Court has reviewed the time billed and the work

performed and concludes that counsel’s hours are, for the most part, reasonable in light of the

course of proceedings. As the Court discussed in granting default judgment, this case involved

multiple motions for orders for accounting and contempt proceedings after Defendant failed to

comply with the Court’s order granting an accounting. Op. & Ord. 3-4.

The Court concludes, however, that attorney fees should not be awarded for time spent on

the pro hac vice admission application. As another district court observed several years ago,

courts have taken different views on whether fees may be recovered for such work and, if so,

whether they may be recovered at the attorney rate or the paralegal rate. Radich v. Guerrero, No.

1:14-CV-00020, 2016 WL 5109151, at *3 (D. N. Mar. I. Sept. 20, 2016). In Radich, the district

court compensated work preparing the pro hac vice application at a reduced rate because it did

not require legal skill. Id. at *4. The Radich court also found that the attorney who appeared pro

hac vice was necessary because local counsel in the Northern Mariana Islands was either

unqualified or unwilling to take on the legal issues in the case. Id. at *3. The Court agrees with

Radich that the attorney billing rate is not appropriate for filling out the pro hac vice application.

Further, Plaintiffs provide no reason why local counsel was inadequate. The Motion represents

that local counsel has over 20 years of legal experience and has represented labor organizations

and affiliated employee benefit plans in state and federal courts. Evans Aff. ¶ 5. Because

Plaintiffs have not shown that time spent on pro hac vice admission was reasonably expended in

this case, the Court will reduce counsel’s hours to exclude such work. The Court concludes that

0.5 hours of Mr. Evans’ time should be excluded at the rate of $255 per hour. See Evans Aff. Ex.

1 at 1, ECF 42-2. And 0.25 hours of Mr. Cadonau’s time should be excluded at $250 per hour.

Evans Aff. Ex. 2. In total, the Court reduces the requested fees by $190. The requested fees are

otherwise reasonable.

In sum, the Court awards Plaintiffs $11,149.26 in attorney fees. This amount includes the

amount the Court previously awarded Plaintiffs in connection with their motion for contempt.

Order, ECF 26. This Opinion and Order supersedes that Order and covers Plaintiffs’ complete

award of attorney fees in this case.

The Court also concludes that the postage fee of $9.12 should be included in the award of

nontaxable costs under ERISA. Plaintiffs necessarily incurred this expense as part of filing the

case. See 29 U.S.C. § 1132(h). To the extent any of the service fees taxed above are not taxable,

the Court finds in the alternative that they should be awarded as nontaxable costs. However, the

Court concludes that the $300 fee for pro hac vice admission should not be awarded. As noted

above, local counsel has years of experience representing labor organizations and employee

benefit plans in similar matters. It is unclear why affiliate counsel was necessary in this case. See

Atl. Recording Corp. v. Andersen, No. CV 05-933 AC, 2008 WL 2536834, at *20 (D. Or. June

24, 2008) (denying pro hac vice cost because it was unclear why the cost was necessary to incur

where the senior attorneys on the case were members of the Oregon Bar); Steinbeck v. Kaffaga,

No. CV1408681TJHJCX, 2016 WL 6025493, at *2 (C.D. Cal. Feb. 18, 2016) (finding that it

would be unreasonable to award pro hac vice admission fees).

CONCLUSION

Plaintiffs’ Motion for Attorney Fees [42] is GRANTED IN PART. Plaintiffs are awarded

$11,149.26 in attorney fees and $9.12 in non-taxable costs. Plaintiffs’ Bill of Costs [43] is

ALLOWED IN PART. The clerk is directed to tax costs in the amount of $638 against

Defendant.

IT IS SO ORDERED.

DATED:_____A_u_g_u_s_t_ 7_,_ _2_0_2_4______.

______________________________

MARCO A. HERNÁNDEZ

United States District Judge