1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

DAVID D. VANVALKENBURG, 

 No. 3:14-cv-00916-MO 

 Plaintiff, 

 OPINION AND ORDER 

v. 

OREGON DEPARTMENT OF CORRECTIONS, 

 Defendant. 

MOSMAN, J., 

Plaintiff David VanValkenburg brought this suit against the Oregon Department of 

Corrections (“ODOC”), alleging violations of federal and state anti-discrimination laws while he 

was in custody. Mr. VanValkenburg’s state-law claim was tried by a jury, beginning on 

November 1, 2016. The jury returned a verdict in favor of Mr. VanValkenburg, awarding him 

$400,000 in noneconomic damages [183]. On February 8, 2017, I DENIED Defendant’s 

Motions for Judgment as a Matter of Law, New Trial, and Remittitur [210]. Mr. VanValkenburg 

now moves for attorney fees and costs [215]. 

BACKGROUND 

 Mr. VanValkenburg is a hearing-impaired individual who was housed at multiple prisons 

run by ODOC from 2000 to 2014. In 2014, he brought this case based on allegations that ODOC 

violated state and federal anti-discrimination laws when it failed to provide him with 

accommodations for his hearing disability that would allow him to meaningfully participate in 
2 – OPINION AND ORDER 

prison programs and services provided to inmates. After a three-day trial in November, 2016, 

the jury found in favor of Mr. VanValkenburg and awarded him $400,000 in noneconomic 

damages. Mr. VanValkenburg has now moved to recover his attorney fees, costs, and litigation 

expenses as the prevailing party on his state-law claim.1

 

DISCUSSION 

 Mr. VanValkenburg is seeking to recover a total of $911,062.21 in attorney fees, costs, 

and litigation expenses as the prevailing party on his state-law disability discrimination claim. 

That amount includes a fee multiplier to compensate Mr. VanValkenburg’s attorneys for their 

performance in this case and the risk they undertook in representing Mr. VanValkenburg on a 

contingency fee basis. Mr. VanValkenburg also seeks additional attorney fees to cover the cost 

of litigating his fee award. 

ODOC objects to Mr. VanValkenburg’s motion on several grounds. First, ODOC argues 

that I should decline to award any fees in this case because (1) doing so is discretionary and (2) 

Mr. VanValkenburg was not the prevailing party on any of his claims. Alternatively, ODOC 

suggests that I should implement “an across-the-board percentage cut” to reflect Mr. 

VanValkenburg’s “partial success” on the claims overall. In addition, ODOC objects to the 

award of any fee multiplier in this case, as well as a prevailing party fee that Mr. VanValkenburg 

seeks by statute. Finally, ODOC objects to some of the costs and litigation expenses that Mr. 

VanValkenburg seeks to recover. 

 As explained below, I find that Mr. VanValkenburg is the prevailing party on his statelaw disability discrimination claim. As such, he is entitled to recover his attorney fees, costs, and 

litigation expenses. I also award his requested attorney fees for the cost of litigating this attorney 

 1

 Only the state-law claim went to trial. Mr. VanValkenburg’s ADA claim was dismissed before the jury trial for 

failure to exhaust his administrative remedies. 
3 – OPINION AND ORDER 

fee motion. Additionally, I agree a fee multiplier is appropriate in this case based on the risk 

involved in this case and the performance of Mr. VanValkenburg’s attorneys. That said, I find 

the requested fee multiplier to be excessive and thus, I adopt a smaller multiplier. Finally, some 

of the litigation expenses are not reimbursable under state law, resuling in a reduction to Mr. 

VanValkenburg’s requested expense award. In total, I award Mr. VanValkenburg $683,873.13 

in attorney fees, $18,155.19 in costs, and $3,924.79 in litigation expenses. 

 I. Attorney Fee Award 

 Mr. VanValkenburg is seeking to recover attorney fees for over 1300 hours that his 

attorneys claim they spent on this case. Specifically, Mr. VanValkenburg seeks to recover (1) 

attorney fees based on the number of hours spent on the case, (2) extra attorney fees pursuant to 

a discretionary fee multiplier, and (3) attorney fees for the time spent litigating this motion for 

attorney fees. For the reasons discussed below, I find that Mr. VanValkenburg is entitled to 

attorney fees and that the standard lodestar calculation of those fees based on his attorneys’ 

hourly rate and the number of hours spent litigating this case is the proper method for calculating 

those fees. I also find that a fee multiplier is appropriate in this case. Finally, I grant Mr. 

VanValkenburg’s request to recover attorney fees for the time spent litigating this attorney fee 

memo. In total, Mr. VanValkenbug is entitled to recover $683,873.13 in attorney fees. 

 A. Calculation of Attorney Fees 

 Mr. VanValkenburg argues that he is entitled to recover reasonable attorney fees because 

he is the prevailing party in this case. Specifically, he argues that he is entitled to recover 

attorney fees based on his attorneys’ reasonable billing rate and the hours his attorneys spent 

litigating his state-law antidiscrimination claim. ODOC argues that Mr. VanValkenburg is not 

entitled to any attorney fees because he is not the prevailing party on any of his claims. And, in 
4 – OPINION AND ORDER 

any event, ODOC argues that the award should be reduced to reflect what it argues was a narrow 

victory. 

For the following reasons, I have determined that an award of attorney fees to Mr. 

VanValkenburg is mandatory under Oregon statutory law. Because the state and federal claims 

in this case have common issues of law and fact, Mr. VanValkenburg’s attorneys’ time was 

reasonably spent litigating both claims, and they are not required to apportion their time by 

claim. Accordingly, I do not reduce the hours spent on the case to reflect Mr. VanValkenburg’s 

loss on the federal claim, except to the extent that Mr. VanValkenburg is not entitled to attorney 

fees for the time spent on litigating whether he exhausted his administrative remedies under his 

federal claim. I also find the hourly rates requested by Mr. VanValkenburg’s attorneys to be 

reasonable. In sum, Mr. VanValkenburg is entitled to an attorney fee award of 385,217.50 based 

on calculations under the lodestar method.2

1. An Attorney Fee Award is Mandatory Because Mr. VanValkenburg is 

the Prevailing Party on the State-Law Claim 

Oregon law governs whether an attorney fee is available in a case that is based on state 

law. Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011) (“State laws awarding attorneys’ fees 

are generally considered to be substantive laws under the Erie doctrine . . .”). In Oregon, 

severeal statutes govern the award of attorney fees. Specifically, Oregon Revised Statute § 

20.107 states: 

(1) In any civil judicial proceeding . . . based on a claim of unlawful 

discrimination, the court shall award to the prevailing plaintiff attorney and expert 

witness fees reasonably and necessarily incurred in connection with the 

discrimination claim, at the trial court . . . 

 2

 This fee award is calculated as follows: 

Mr. Ellis: (517.50 hours) x ($325.00 per hour) = $168,187.50 

Ms. Payne: (672.10 hours) x ($300.00 per hour) = $201,630.00 

Paralegal and Law Clerk: (88.8 hours) x ($175.00 per hour) = $15,400.00 
5 – OPINION AND ORDER 

(2) In making an award under this section, the court shall calculate attorney and 

expert witness fees on the basis of a reasonable hourly rate at the time the award 

is made, multiplied by the amount of time actually and reasonably spent in 

connection with the discrimination claim. 

In addition, Oregon Revised Statute § 659A.885(1) states: “[i]n any action under this subsection, 

the court may allow the prevailing party costs and reasonable attorney fees at trial and on 

appeal.” In fact, “Oregon courts have construed [§ 659A.885(1)] as mandatory and highly 

favorable to plaintiffs, holding that prevailing plaintiffs are entitled to recover their attorney 

fees.” Hamlin v. Hampton Lumber Mills, Inc., 205 P.3d 70 (Or. App. 2009). Accordingly, given 

the text of Oregon Revised Statute 20.107, explaining that I shall award fees to the prevailing 

plaintiff’s attorney, and Hamlin, making such an award mandatory under Oregon Revised Statute 

§ 659A.885(1), I am required to award attorney fees to Mr. VanValkenburg so long as he was the 

prevailing plaintiff. 

 To determine whether Mr. VanValkenburg was the prevailing party in this case, I again 

look to Oregon law. Oregon Revised Statute § 20.077 defines the prevailing party “[f]or the 

purposes of making an award of attorney fees on a claim,” as “the party who receives a favorable 

judgment . . . on the claim.” Or. Rev. Stat. § 20.077(2). The text of the statute makes clear that I 

must look at each claim to determine who the prevailing party was on that claim. Eagles Five, 

LLC. v. Lawton, 280 P.3d 1017, 1026 (Or. App. 2012) 

ODOC argues that Mr. VanValkenburg was not the prevailing party in this case because 

his federal claim was dismissed and on his state-law claim was limited to a smaller time period 

than he initially sought in his Complaint. Mr. VanValkenburg concedes that he was not the 

prevailing party on his Section 1983 claim alleging violations of the ADA. But he argues he was 
6 – OPINION AND ORDER 

the prevailing party on his state-law claim because the jury returned a verdict in his favor on that 

claim and awarded him $400,000 in damages. 

I agree that Mr. VanValkenburg was the prevailing party on his state-law claim. ODOC 

does not cite any legal authority to support its proposition that Mr. VanValkenburg was not the 

prevailing party on the state-law claim simply because he did not recover all of the relief he 

sought. In fact, the text of the statute only calls for “a favorable judgment” on the claim; it does 

not require all of the relief sought. See Or. Rev. Stat. § 20.077(2); see also Eagles Five, 280 P.3d 

at 1026 (explaining that the “prevailing party” is the one that received a “favorable judgment” 

and that “it does not necessarily follow that, merely because a party does not obtain all the relief 

sought, a party is not a prevailing party” (citation omitted)). Accordingly, because Mr. 

VanValkenburg received a favorable judgment on his state-law claim, he is entitled to recover 

attorney fees for prevailing on that claim. 

 2. Calculating the Attorney Fee Award 

Mr. VanValkenburg seeks to recover for 528.50 hours spent on the case by Mr. Ellis at a 

rate of $325.00 per hour; 683.80 hours spent on the case by Ms. Payne3

, at a rate of $300 per 

hour; and 88.8 hours spent on the case by a paralegal and a law clerk at a rate of $175.00 per 

hour. In total, Mr. VanValkenburg seeks to recover $392,232.50 in attorney fees based on the 

lodestar calculation. 

ODOC does not dispute the total number of hours Mr. VanValkenburg’s attorneys claim 

they spent on the case, nor does ODOC argue the hourly rates requested are unreasonable. 

Rather, ODOC objects to an award for all of the hours the attorneys spent on the case, given that 

Mr. VanValkenburg only prevailed on his state-law claim, and even then, only for a narrow time 

 3

 Ms. Payne’s hours include 423.10 hours as an associate at Haglund Kelley LLP and an additional 260.70 as a solo 

practitioner. 
7 – OPINION AND ORDER 

period. ODOC argues that Mr. VanValkenburg’s billing records should be broken out by claim, 

and that he should only receive attorney fees for the hours spent litigating the state-law claim. 

Because the billing records do not break out the attorney’s time on a claim-by-claim basis, 

ODOC argues that I should reduce the fee request by 65% and only award 35% of the amount 

requested by Mr. VanValkenburg, or $137,281.38. 

Oregon courts generally award attorney fees based on the lodestar method, although there 

is room for adjustment based on the factors set forth in Oregon Revised Statute § 20.075. See 

generally Strawn v. Farmers Ins. Co. of Or., 297 P.3d 439, 447-48 (Or. 2013) (“Strawn I”). 

Under the lodestar method, courts multiply the reasonable hourly rate for each timekeeper by the 

reasonable number of hours the timekeeper worked on the case. Or. Rev. Stat. § 20.107(2). 

a. Reasonable Number of Hours Spent on the Case 

Although ODOC does not object to the overall number of hours Mr. VanValkenburg’s 

attorneys claim they spent on the case, it argues that he should only recover attorney fees for the 

hours spent litigating the state-law claim. Mr. VanValkenburg argues that the number of hours 

spent on each claim cannot be apportioned because there were common issues between the state 

and federal claims. 

While it is true that a prevailing plaintiff is only entitled to recover attorney fees for the 

claim upon which he prevailed, time spent on other claims is recoverable when “there are 

common issues among the claims.” Freedland v. Trebes, 986 P.2d 630, 632 (Or. App. 1999) 

(citation omitted). This is so because courts recognize it may take “roughly the same amount of 

time to litigate a case in which the successful claim was the sole claim as it took to litigate the 

case in which it was one among several claims.” Id. Accordingly, when common issues prevail 
8 – OPINION AND ORDER 

among the claims, it is not “necessary to apportion the fees to reflect the lack of success on the 

other claims.” Id.

This case is precisely the case where, as a general matter, it would not make sense to try 

to apportion the time spent on litigating the state-law claim and the federal-law claim. The 

issues of fact and the issues of law were largely the same between both claims. The claims are 

grounded in the same legal theory—that the same discriminatory acts violated federal and state 

law. And Oregon’s antidiscrimination law largely incorporates federal law under the ADA. As 

such, it would have been nearly impossible for Mr. VanValkenburg’s attorneys to apportion their 

time. Furthermore, ODOC’s suggestion that I should award only 35% of the requested fees is 

completely arbitrary. Accordingly, because there were common issues of law and fact between 

both claims, I decline to reduce the fee award on the basis that Mr. VanValkenburg did not 

prevail on his federal claim. 

That said, the time that Mr. VanValkenburg’s attorneys spent litigating the issue of 

whether he exhausted his administrative remedies, as required to pursue his federal claim, can be 

separated from the total number of hours spent litigating the case. While some of the evidence 

and testimony at that bench trial may have been helpful for the jury trial, in my view the 

exhaustion trial was too tangential to the underlying substantive merits of the state-law 

discrimination claim to conclude that the prevailing issues at the trial were common to the statelaw claim. Accordingly, Mr. VanValkenburg is not entitled to recover attorney fees for the time 

spent on litigating the issue of whether he exhausted his administrative remedies. I, therefore, 

reduce the attorney fee request by 11.7 hours for Ms. Payne and 9 hours for Mr. Ellis, which 

reflects the amount of time they claim they spent on litigating the exhaustion issue. 
9 – OPINION AND ORDER 

b. Reasonable Hourly Rate 

Mr. Ellis reports that he typically bills $315 an hour and Ms. Payne reports that she 

typically bills $300 an hour. ODOC does not object to the hourly rates provided by Mr. 

VanValkenburg for his attorneys. 

Courts determine the reasonable hourly rate by looking at the fee customarily charged in 

the locality and the experience, reputation, and ability of the lawyers involved. Precision Seed 

Cleaners v. Country Mut. Ins. Co., 976 F. Supp. 2d 1228, 1243 (D. Or. 2013). In fact, it is wellsettled law that: 

The prevailing market rate in the community is indicative of a reasonable hourly 

rate . . . The fee applicant has the burden of producing satisfactory evidence, in 

addition to the affidavits of its counsel, that the requested rates are in line with 

those prevailing in the community for similar services of lawyers of reasonably 

comparable skill and reputation. 

Orme v. Burlington Coat Factory of Or., LLC, No. CV 07-859-MO, 2010 WL 1838740, at *1 

(D. Or. May 3, 2010) (quoting Jordan v. Multnomah Cty., 815 F.2d 1258, 1262-63 (9th Cir. 

1987)). 

In support of the attorney fees motion, Mr. VanValkenburg provided declarations from 

practitioners in the community who attested to their belief that his attorneys’ hourly rates are 

reasonable, given their reputation, experience, and level of expertise. The hourly rates are also 

within the range of what other attorneys charge in Portland according to the 2012 OSBAR report. 

For example, the average billing rate for personal injury Plaintiffs’ lawyers in Portland is 

between $239 per hour at the 25th percentile and $385 per hour at the 95th percentile. Given the 

specialty area within which Ms. Payne and Mr. Ellis practice, and their experience and 

reputation, I find that their billing rates are reasonable even though they are slightly higher than 

average for other attorneys with the same number of years of experience. 
10 – OPINION AND ORDER 

 c. Other Statutory Factors 

 In determining the amount of attorney fees to award a prevailing plaintiff, I must consider 

the sixteen factors listed by statute. Or. Rev. Stat. § 20.075(1)-(2); Strawn I, 297 P.3d at 448-49. 

ODOC does not argue that Mr. VanValkenburg’s requested attorney fee award should be 

reduced based on any of these factors. Indeed, after reviewing these factors, I do not find any of 

them to be prejudicial to Mr. VanValkenburg, and thus, they do not require me to reduce the 

attorney fee award in this case. 

 B. Fee Multiplier 

 In addition to an attorney fee award based on the hourly rate and number of hours 

expended, Mr. VanValkenburg argues I should award a fee multiplier to compensate his 

attorneys for the high degree of risk involved in this case. Specifically, Mr. VanValkenburg 

seeks a multiplier of x2.25. ODOC objects to the award of a fee multiplier. It argues there is no 

statutory support for doing so, and that there is no “common benefit” or “common fund” 

involved in this case. Although the argument is unclear, ODOC also suggests that a fee 

enhancement award is not available here because this is not a classic contingency fee case, 

whereby Mr. VanValkenburg’s attorneys only receive a portion of his recovery. 

 First, it is clear under Oregon case law that I have discretion to award an enhancement to 

Mr. VanValkenburg’s requested regular attorney fees in the form of a fee multiplier. See Griffin 

By & Through Stanley v. Tri-Cty. Metro. Transp. Dist. of Or., 831 P.2d 42, 48 (Or. App. 1992), 

aff’d in part and rev’d in part on other grounds 870 P.2d 808 (Or. 1994). “Oregon law permits 

an enhancement of fees when it is supported by the facts and circumstances of the case.” Beck v. 

Metro. Prop. and Cas. Ins. Co., 3:13-cv-00879-AC, 2016 WL 4978411, at *22 (D. Or. Sept. 16, 

2016). In some contingent fee cases, “attorneys may be compensated at a higher rate than what 
11 – OPINION AND ORDER 

would be charged in a noncontingent fee setting.” Tanner v. Or. Health Scis. Univ., 980 P.2d 

186, 189 (Or. App. 1999) (citation omitted); see also Moro v. Oregon, 384 P.3d 504, 519 (Or. 

2016) (“[A] fee multiplier may be justified when the attorney’s payment is based on a 

contingency-fee arrangement or there is otherwise a delay in getting paid.”). 

Second, while an Oregon court has approved the award of an attorney fee enhancement in 

a case where the proceeds were to be paid from a common fund, see Moro, 384 P.3d at 510, 

there is no support in that case or any other for ODOC’s proposition that fee enhancements are 

only available when they are to be paid out of a common fund. Further, there is no support for 

ODOC’s apparent proposition that fee enhancements are only available in classic contingency 

fee cases where attorney fee awards are based on a set percentage of the client’s recovery. In 

fact, Oregon cases support the proposition that fee enhancements are available under the 

contingency fee arrangement at issue in this case—one where statutory attorney fees are only 

available if the client is the prevailing party.4

 See, e.g., Tanner, 980 P.2d at 189-90 (concerning 

a contingency fee case where the plaintiff could recover fees as the prevailing party based on the 

attorney’s hourly billing rate). Accordingly, ODOC’s argument that a fee multiplier is not 

available in this case is unavailing. 

 Having determined that I have the discretion to award a fee multiplier, I must now 

determine whether this is one of the cases where the award of a fee multiplier is appropriate, and 

if so, whether Mr. VanValkenburg’s requested multiplier of x2.25 is the appropriate amount. 

Typically, enhanced fee awards are appropriate in cases where the recovery was an “exceptional 

success,” even if plaintiffs did not prevail on all claims, and other favorable factors exist, 

 4

 For further explanation, see Mariam-Webster’s Collegiate Dictionary 270 (11th ed. 2005), which defines 

“contingency fee” as “a fee for services (as of a lawyer) paid upon successful completion of the services.” While 

that fee is “usu[ally] calculated as a percentage of the gain realized for the client,” id., such a calculation is not the 

only way to arrive at the fee award under a contingency fee agreement, as the contingent nature of receiving the fee 

at all is the necessary element under the term. 
12 – OPINION AND ORDER 

including “the difficulty and complexity of the issues involved in the case, the value of the 

interests at stake, as well as the skill and professional standing of lawyers involved.” Strunk v. 

Pub. Emps. Ret. Bd., 169 P.3d 1242, 1254 (Or. 2007); see also Strawn v. Farmers Ins. Co., 

MCCC Case No. 9908-09080 (J. Labarre) (“Farmers”), aff’d, 226 P.3d 86 (Or. App. 2010) 

(“Strawn II”) (awarding a fee multiplier based on counsel’s skill and “superb” performance, the 

“remarkable” results of the case, the enormous risk involved in litigating the case, the high 

damages award, and the fact that Oregon courts wanted to encourage litigation of consumer 

protection cases). I also consider the factors set out by statute for determining the amount of 

attorney fees to award in order to determine if an enhanced fee is appropriate. Or. Rev. Stat. § 

20.075(1)-(2); Strawn II, 226 P.3d at 95 (explaining that a Court must consider the criteria set 

out in Or. Rev. Stat. 20.075(2) in determining whether to grant a fee enhancement, and if so, the 

amount). 

 In my view, most of the factors identified in Section 20.075 are neutral—they do not 

favor one party more than the other. For example, the conduct of the parties appeared to be 

reasonable, and their actions and diligence in litigating the case are in line with what I would 

expect in litigating a contentious case on difficult legal issues. The claims and defenses that both 

parties made appeared to be reasonable. Although ODOC conceded some of the elements of the 

state-law claim on the brink of trial, the information in the record does not persuade me that the 

timing was a result of bad faith or of wanting to drag out the litigation. In my experience, cases 

are often narrowed as the trial approaches because the parties focus on the issues more closely. 

 Several § 20.075 factors, however, weigh in favor of an attorney fee multiplier in this 

case. First, as ODOC concedes, Mr. VanValkenburg’s attorneys clearly attained an 

extraordinary result in this case. This is not simply reflected by the high damages award. It is 
13 – OPINION AND ORDER 

also reflective of the high level of skill of Mr. VanValkenburg’s attorneys. For example, the 

merits of this case involved complex legal issues of first impression in antidiscrimination law, 

requiring Mr. VanValkenburg’s attorneys to make novel arguments of law and develop original 

jury instructions where no uniform instructions were available. 

Second, this case involved a high degree of risk for Mr. VanValkenburg’s attorneys, 

given that they agreed to represent him on a contingency fee basis. The complex legal issues 

involved in the case and Mr. VanValkenburg’s sex offender conviction both increased the risk of 

loss beyond the risk associated with many civil rights cases. Given these challenges, Mr. 

VanValkenburg’s attorneys took on the case with great risk of no recovery at all. 

Finally, an enhanced fee award in this case will serve to encourage other attorneys in 

Oregon to represent inmates in risky, complex, and difficult civil rights cases. In contrast, 

refusing to award an enhancement might deter attorneys from representing clients in these types 

of cases. 

 Under the above analysis, I find that a fee enhancement is appropriate in this case. I 

believe, however, that an enhancement of x2.25 is excessive. In my view, such an incredible 

amount should be reserved for the most unusual cases. In fact, awarding an extremely high fee 

enhancement may serve too much of a deterrent effect, in that it could deter defendants like 

ODOC from properly litigating close-call cases. Accordingly, after considering cases where 

courts have awarded a fee enhancement and the factors under Section 20.075, I find a fee 

multiplier of x1.75 to be appropriate in this case. Accordingly, I award $675,268.13 in attorney 

fees to Mr. VanValkenburg, which is an additional $290,050.63 above their usual fees based on 

their typical billing rate. 
14 – OPINION AND ORDER 

 C. Fees For Litigating Attorney Fees Motion 

 In Mr. VanValkenburg’s response to ODOC’s objections to his attorney fees, he seeks 

reimbursement for the costs associated with litigating his attorney fee request. Specifically, he is 

seeking fees for the 18 hours Ms. Payne and 9.4 hours Mr. Ellis spent litigating the fee request. 

Courts may award fees for services provided in conjunction with the recovery of attorney 

fees. Emerald People’s Util. Dist. v Pacificorp, 801 P.2d 141, 143 (Or. 1990). “[T]he recovery 

of attorney fees, costs and expenses to which a prevailing party is entitled by statute is related to 

the prosecution or defense of the action.” Id. And, attorney fees for an attorney fee petition are 

related to the prosecution of the action. Id. 

Given Pacificorp, it is clear that I may award attorney fees to Mr. VanValkenburg for the 

costs associated with litigating their attorney fee petition. The time spent by Ms. Payne and Mr. 

Ellis is reasonable, and thus, I award the full fees requested, for a total amount of $8,605.00.5

 

The fee multiplier is not applied to this award. 

II. Costs and Disbursements 

 Mr. VanValkenburg also seeks reimbursement for his costs in this case. ODOC objects 

to some of the costs on the grounds that they are not recoverable under federal law. For the 

following reasons, Mr. VanValkenburg may recover $18,155.19 in costs and disbursements. 

 The Ninth Circuit applies “state law in determining not only the right to fees, but also [] 

the method of calculating the fees,” when the fees are based on state law claims. Mangold v. 

Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995) (explaining that “calculation of the 

amount of the fee is bound up in the substantive state right”). ODOC relies on Hunt v. City of 

Portland, CV 08-802-AC, 2011 WL 3555772 (D. Or. Aug. 11, 2011), to argue that federal law 

 5

 Ms. Payne spent 18.5 hours on the attorney fee petition and response. At her hourly rate of $300 per hour, her 

attorney fees total $5,550. Mr. Ellis spent 9.4 hours on the attorney fee petition and response. At $325 per hour, his 

attorney fees total $3,055. 
15 – OPINION AND ORDER 

governs the award of costs in this case. There, Judge Acosta applied Federal Rule of Civil 

Procedure 54 and federal statutory law to determine the award of costs in a case where the party 

prevailed on both federal and state-law claims. Id. at *5-6. But Judge Acosta did not analyze 

whether state or federal law governed the award of costs, so it is not clear why he applied federal 

law. It is possible that federal law governed in that case because the party prevailed on a mix of 

federal and state law claims. The Ninth Circuit clearly explained, however, in Mangold that state 

law governs in diversity cases where the plaintiff prevails on a state law claim, and thus, state 

law governs Mr. VanValkenburg’s petition for costs and disbursements. 

Having determined that state law governs the award of costs in this case, I turn to the 

Oregon Rules of Civil Procedure to analyze what costs may be recovered by Mr. 

VanValkenburg. Oregon Rule of Civil Procedure 68 provides: 

[C]osts and disbursements shall be allowed to the prevailing party unless these 

rules or any other rule or state direct that in the particular case costs and 

disbursements shall not be allowed to the prevailing party . . ., or unless the court 

otherwise directs. If, under a special provision of these rules or any other rule or 

statute, a party has a right to recover costs, that party shall also have a right to 

recover disbursements. 

Or. R. Civ. Pro. 68(B). Costs and disbursements are defined as: 

[R]easonable and necessary expenses incurred in the prosecution or defense of an 

action, other than for legal services, and include the fees of officers and witnesses; 

the expense of publication of summonses or notices, and the postage where the 

same are served by mail; . . . the expense of copying of any public record, book, or 

document admitted into evidence at trial; . . . ; and any other expense specifically 

allowed by agreement, by these rules, or by any other rule or statute. 

Or. R. Civ. Pro. 68(A)(2). In addition, courts have the discretion to award reasonable costs for 

interpreter services. Id. But the expense of depositions is not recoverable even if they were used 

at trial. Id. 
16 – OPINION AND ORDER 

 Based on Rule 68, Mr. VanValkenburg is entitled to recover his costs for witness 

subpoena fees ($93.59), copies of documents admitted into evidence ($421.40), and fees for 

service of summons ($226.75). I also find that Mr. VanValkenburg may recover costs for the 

use of interpreter services ($6,940.00). ODOC does not object to the cost for interpreter 

services, and given the nature of this case, such services were clearly a reasonable expense. 

 Mr. VanValkenburg also seeks to recover costs for several expert witnesses. First, he 

seeks to recover $5,080.95 in witness fees for Dr. Jean Andrews, who testified on his behalf at 

trial. In addition, he seeks to recover $4,817.50 in fees for three expert opinions he provided in 

support of his fee petition. Dr. Andrews’s expert witness fees are recoverable under Oregon 

Rule of Civil Procedure 68 as a cost incurred in the litigation. In addition, under Pacificorp, the 

fees for the expert opinions in support of Mr. VanValkenburg’s fee petition are also recoverable. 

801 P.2d at 143 (explaining that courts may award “fees for services provided in conjunction 

with the recovery of the underlying [attorney] fees.”); see also Or., By and Through Dept. of 

Transp. v. Gonzales, 703 P.2d 271, 273 (Or. App. 1985). Accordingly, Mr. VanValkenburg is 

entitled to recover $9,898.45 in expert witness expenses for all four experts. 

 Finally, Mr. VanValkenburg is also entitled to recover a $575.00 prevailing party fee 

under Oregon Law. Or. Rev. Stat. § 20.190(2)(a)(B) (explaining that a party that has the right to 

recover costs and disbursements also has the right to recover the prevailing party fee). Although 

I have discretion to award an enhanced prevailing party fee under Oregon Law, see Or. Rev. Stat. 

§ 20.190(3), I decline to do so here. I believe the fee multiplier already awarded is sufficient to 

compensate for the Section 20.190 factors that I already found weighed in favor of Mr. 

VanValkenburg. Those factors do not justify an additional prevailing party fee in this case. 

 
17 – OPINION AND ORDER 

 III. Litigation Expenses 

Finally, Mr. VanValkenburg seeks to recover $5,383.89 in litigation expenses. 

Specifically, Ms. Payne incurred out-of-pocket litigation expenses totaling $294.99 for copying 

costs, travel reimbursement, and parking expenses. She claims those expenses are not included 

in her hourly fee, as she typically bills clients for those expenses. Mr. Ellis’s litigation expenses 

total $2,098.92 and include expenses for postage, messenger charges, travel reimbursement, and 

focus group costs. He also states that these expenses are not included in his hourly rate and that 

he typically bills his clients separately for these expenses. Finally, Haglund Kelley LLP’s 

litigation expenses total $2,989.98 and they include expenses for filing fees, deposition costs, 

messenger service costs, and mileage costs. ODOC did not object to these expenses. Regardless 

of whether ODOC objected to the litigation expenses, Mr. VanValkenburg’s ability to recover 

the expenses is governed by state law, so I must review the itemized expenses to ensure they 

comport with what is allowed under the law. 

Under Oregon law, courts should “include expenses specially billed to the client in the 

attorney fees award when they are properly documented and are reasonable.” Willamette Prod. 

Credit Ass’n v. Borg-Warner Acceptance Corp., 706 P.2d 577, 580 (Or. App. 1985). These 

expenses are separate from an attorney’s hourly rate. Id.; see also Strawn II, 266 P.3d at 96. 

Here, Haglund Kelly LLP seeks to recover $1,459.10 in deposition costs as litigation 

expenses even though those costs are not recoverable under Oregon Rule of Civil Procedure 68. 

I do not believe circumventing Rule 68 by charging such costs as litigation expenses is 

appropriate. See Robinowitz v. Pozzi, 872 P.2d 993, 997 (Or. App. 1994) (explaining that the 

“trial court had no authority to circumvent the distinction in ORCP 68 between attorney fees and 
18 – OPINION AND ORDER 

costs by including what are unrecoverable costs as attorney fees”). Accordingly, I decline to 

award deposition costs as part of the litigation expenses. 

All other litigation expenses are reasonable, and thus, Mr. VanValkenburg is entitled to 

recover a total of $3,924.79 in litigation expenses. This includes $294.99 in litigation expenses 

for Ms. Payne, $2,098.92 in litigation expenses for Mr. Ellis, and $1,530.88 in litigation 

expenses for Hanglund Kelly LLP.

CONCLUSION 

 Pursuant to the above analysis, Mr. VanValkenburg is entitled to recover attorney fees, 

costs, and litigation expenses. Specifically, I award Mr. VanValkenburg $683,873.13 in attorney 

fees, $18,155.19 in costs, and $3,924.79 in litigation expenses. 

IT IS SO ORDERED. 

 DATED this _____ day of June, 2017. 

 ____________________________ 

 MICHAEL W. MOSMAN 

 Chief United States District Judge 

9th

 /s/ Michael W. Mosman