PLAINTIFF’S MOTION FOR ATTORNEY FEES - 1

Bret Knewtson, OSB 03355

Bret Knewtson, Esq

3000 NW Stucki PL STE 230-M 

Hillsboro OR 97124

Telephone: (503) 846-1160 

Facsimile: (503) 922-3181

bknewtson@yahoo.com 

Mark G Passannante OSB 944035

Broer & Passannante PS 

1211 SW 5th Ave Ste 2330 

Portland OR 97204

Phone: (503)294-0910

Fax: (503) 243-2717

Markpassannante@msn.com

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

BRIAN CARLOS, on behalf of himself and all 

other similarly situated,

Plaintiff,

vs.

PATENAUDE & FELIX, A.P.C.,

Defendant

Case No.: 3:14-cv-00921-MO

PLAINTIFF’S MOTION and MEMORANDUM 

FOR ATTORNEY FEES AND COSTS

LR 7.1 Certification: Plaintiff conferred as a part of the discussion pertaining to the offer of 

judgment. The parties identified that having the court award fees would be the best way to 

resolve the issue. Counsel believes that the parties fully conferred but counsel left a message 

with opposing counsel just prior to filing this motion and is open to further discussion. 

MOTION

Pursuant to the accepted offer of judgment, 15 USC 1692k(a)(3) and FRCP 68, plaintiff 

requests an award of the time attached to the Declaration of Knewtson and Passannante, which 

totals, $128,845.00 and costs of $2,532.60. This motion is supported by the Declaration of 

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Knewtson, Passannante, Carlos and De La Mar, the cost bill, and Exhibits 1 (Knewtson billing 

record), 2 (Passannante billing record), 3 Martindale Hubble printout, and Plaintiff’s Memo in 

Support of Fees and Costs.

Attorney Rate Hours Total

Mark Passannante $425 83.20 $35,360

Bret Knewtson $350 267.1 $93,485

This below table summarizes the time spent by counsel on the various counts. In identifying the 

time spent on “general litigation” plaintiff includes the time spent conferring with opposing 

counsel, client and co-counsel, discovery issues, preparing discovery requests, and reviewing 

documents filed with the court, identifying how to appeal dismissal of counts and class, 

preparing for trial, settlement issues, and fee litigation.

Attorney Class Claims Overstatement 

Count

Statute of 

Limitations 

Counts

General 

Litigation

Mark 

Passannante

6.8 3.8 38.5 35

Bret Knewtson 40.5 hrs 13 hrs 83.6 130

To the extent the court reduces the award of fees or costs on the basis that the alleged count was 

not successful plaintiff asks the court to reserve jurisdiction to modify that award pursuant to 

FRCP 60(b)(6) should plaintiff prevail on appeal and seek fees after succeeding on those counts 

and the class claims.

MEMORANDUM 

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Plaintiff had a Capital One Bank USA N.A (Capital One) credit card account and hired 

defendant to sue plaintiff. Defendant filed a lawsuit seeking $3,571.70. Plaintiff attempted to 

defend the lawsuit on his own as he could not find counsel to represent him. Declaration of 

Carlos. Prior to court annexed arbitration plaintiff retained Mr. Knewtson and on the day of 

arbitration Capital One agreed to pay plaintiff his fees and costs and dismiss the lawsuit with 

prejudice. Plaintiff filed this case to enforce the consumer protection rights provided by 15 USC 

1692 et seq. (FDCPA) and alleged four counts in support of his claim that plaintiff engaged in an 

unfair collection act that violated the FDCPA. Plaintiff filed his action as a class with the hope of 

providing others sued by defendant the same relief. The court dismissed his class claim and 

denied his motion for summary judgment on counts (1) that the collection action was time 

barred, (2) that defendant did not disclose it was time barred, (3) that an allegation of “Quantum 

Meruit” was a meritless claim and should not have been alleged. Plaintiff accepted an offer of 

judgment from defendant on (4) that defendant overstated the debt. In accepting the off of 

judgment plaintiff has prevailed on his claim under the FDCPA.

ENTITLEMENT TO COSTS

As a prevailing party on his FDCPA claim plaintiff is entitled to court costs and service 

costs under 28 USC 1920. The service costs was necessary as defendant declined to waive 

service. In the discretion of the court plaintiff can recover court reporter appearance fees and the 

costs of deposition transcripts if those costs were necessarily obtained for use in the case. 

Washington State Dep’t of Transp. V. Washington Natural Gas Co., 59 F3d 793, 806 (9th Cir 

1995). Those costs are itemized on the invoices attached to the Cost Bill. Appearance fees are 

awardable by the court. Pullela v. Intel Corp., 2010 U.S. Dist. LEXIS 88965, *6, 2010 WL 

3361089 (D. Or. Aug. 25, 2010). The depositions were necessary as plaintiff deposed the witness 

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that defendant identified as having knowledge of material facts relating to the allegations and 

defenses of the parties. See docket item 35-16, Exhibit 16 to Pl MSJ (Amended Initial 

Disclosures) listing those and other defendant designated witness. Plaintiff used the deposition 

transcript of plaintiff in support of the motion for summary judgement. Docket item 35-3, 

Exhibit 3 Pl MSJ. Plaintiff used the depositions of Edmunds (Docket item 24-9), Speights 

(Docket item 44-3), Patenaude (Docket item 44-4), and Carlos (Docket item 44-3) in support of 

plaintiff’s motion to certify class. The only transcripts not used by plaintiff were Krumenacker, 

McGregor, and Taylor but those transcripts were ordered by defendant and plaintiff exercised 

reasonable litigation discretion to obtain the transcript in the event that it became relevant to 

plaintiff’s case or to respond to defendant’s case. Those witnesses supposedly had information 

relating to defendant’s unsuccessful bona fide error defense and that information could not be 

obtained by other means. Further defendant objected to plaintiff’s interrogatories as containing 

sub-parts, renumbered the interrogatories, and then refused to respond to portions of 

interrogatory 14 and interrogatories 15-22. Rather than litigate those objections plaintiff 

exercised litigation discretion and deposed the fact witnesses designated by defendant. Even if 

not used those depositions costs are awardable as reasonably necessary for the above reasons.

"In general, the mere fact that items are neither introduced into evidence nor otherwise 

become part of the official court record is not determinative of whether that item was 

reasonably or necessarily obtained for use in the case." Frederick v. City of Portland, 162 

F.R.D. 139, 143 (D. Or. 1995) (citing Haagen-Dazs Co., Inc., 920 F.2d at 588)(allowing 

costs for reproducing documents even though the documents were not introduced as 

evidence to support summary-judgment motion)). "This rule of general applicability 

extends to depositions, in particular, such that the presence of a deposition in the record 

'is not a prerequisite for finding that it was necessary to take the deposition.'" Id. (quoting 

Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir. 1985), overruled on other 

grounds by Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7th Cir. 1989)). See also 

Hutchens v. Hutchens-Collins, No. CV-04-281-ST, 2007 U.S. Dist. LEXIS 7436, 2007 

WL 319990, at *3 (D. Or. Jan. 30, 2007)("This court agrees with the Seventh Circuit that 

there are 'few, if any, situations in which a defendant's costs from taking a plaintiff's 

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deposition in a private suit between individual litigants would not be reasonably 

necessary for use in the case.'" (quoting Hudson, 758 F.2d at 1243)).

Icebreaker Ltd. v. Gilmar S.P.A., 2013 U.S. Dist. LEXIS 22713, 18-19 (D. Or. Feb. 20, 

2013) allowing deposition costs under the Lanham Act, 15 USC 1117(a), which 

according to the case allows recovery of expenses incurred by a party that are not taxable 

costs.

The court is also authorized by 15 USC 1692k(a)(3) to award those costs as non-taxable 

costs. Non-taxable costs are awardable when a statute, such as the FCRA or FDCPA, allows a 

party to recover costs of litigation. 

Therefore, because the FCRA provides for "reasonable attorney's fees," we conclude that 

district courts have discretion to award non-taxable costs to prevailing parties under the 

FCRA and that the district court erred in concluding otherwise. See Oscar v. Alaska Dep't 

of Educ. & Early Dev., 541 F.3d 978, 981 (9th Cir. 2008) (de novo review of legal 

analysis relevant to fee determination).

Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 580 (9th Cir. Cal. 2010).

The Grove court interpreted the FCRA’s statute (relevant in bold) as allowing the costs of 

litigation that are chargeable to a paying client, such as deposition costs:

§ 1681o. Civil liability for negligent noncompliance 

(a) In general. Any person who is negligent in failing to comply with any requirement 

imposed under this title [15 USCS §§ 1681 et seq.] with respect to any consumer is liable 

to that consumer in an amount equal to the sum of--

 (1) any actual damages sustained by the consumer as a result of the failure; and

 (2) in the case of any successful action to enforce any liability under this section, 

the costs of the action together with reasonable attorney's fees as determined by the 

court.

In awarding non-taxable costs to the plaintiff, the Grove court focused on how statutes that 

award fees should be interpreted consistently with Missouri v. Jenkins 491 U.S. 274, 109 S. Ct. 

2463 (1989):

The Jenkins Court explained that "the fee must take into account the work not only of 

attorneys, but . . . it must also take account of other expenses and profit." Id. We have 

interpreted Jenkins to mean that " 'reasonable attorney's fees' include litigation expenses . 

. . when it is 'the prevailing practice in a given community' for lawyers to bill those costs 

separate from their hourly rates." Trs. of the Constr. Indus. and Laborers Health and 

Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006). Thus, "we have 

continued to hold that attorneys' fees awards can include reimbursement for out-of-pocket 

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expenses including . . . travel, courier and copying costs." Davis v. City of San Francisco, 

976 F.2d 1536, 1556 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345.

Id. at 580.

See also Jansen v. Experian, awarding court reporter appearance fee as a non-taxable cost:

The Court agrees with Plaintiff and concludes the appearance fees are taxable under the 

FCRA fee-shifting provisions even if § 1920 does not specifically provide for taxation of 

such costs. Accordingly, in the exercise of its discretion, the Court taxes Equifax for the 

appearance fees for the above-referenced witnesses.

Jansen v. Experian Info. Solutions, Inc., Oregon Dist Crt #05-CV-385-BR, 2011 U.S. 

Dist. LEXIS 24330 (D. Or. Mar. 9, 2011).

In comparison the FDCPA has identical language and also provides for an award of costs 

(relevant in bold):

(a) Amount of damages. Except as otherwise provided by this section, any debt collector 

who fails to comply with any provision of this title [15 USCS §§ 1692 et seq.] with 

respect to any person is liable to such person in an amount equal to the sum of--

 (1) any actual damage sustained by such person as a result of such failure;

 (2) (A) in the case of any action by an individual, such additional damages as the court 

may allow, but not exceeding $ 1,000; or

 (B) in the case of a class action, (i) such amount for each named plaintiff as could be 

recovered under subparagraph (A), and (ii) such amount as the court may allow for all 

other class members, without regard to a minimum individual recovery, not to exceed the 

lesser of $ 500,000 or 1 per centum of the net worth of the debt collector; and

 (3) in the case of any successful action to enforce the foregoing liability, the costs of 

the action, together with a reasonable attorney's fee as determined by the court. On 

a finding by the court that an action under this section was brought in bad faith and for 

the purpose of harassment, the court may award to the defendant attorney's fees 

reasonable in relation to the work expended and costs.

15 USCS § 1692k.

Statutes with similar language and serving similar purposes should be interpreted 

uniformly.

We have stated in the past that fee-shifting statutes' similar language is "a strong 

indication" that they are to be interpreted alike. Northcross v. Memphis Bd. of Education, 

412 U.S. 427, 428 (1973). See also Hanrahan v. Hampton, 446 U.S. 754, 758, n. 4 (1980) 

(noting that § 1988 was patterned on § 204(b) and § 706(k)); Hensley, supra, at 433, n. 7 

(noting that the standards set forth in the opinion apply to all fee-shifting statutes with 

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"prevailing party" language).

Independent Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 759 n.2 (1989).

Accordingly the court has authority to award appearance costs and deposition costs should it find 

that the costs were reasonably incurred.

ENTITLEMENT TO FEES

Plaintiff does not anticipate argument from defendant that fees are not substantively 

awardable given the offer of judgment but fees are awardable to prevailing plaintiff under 15 

USC 1692k(a)(3). Plaintiff has prevailed in accepting the offer of judgment.

The FDCPA is one such statute, providing that any debt collector who fails to comply 

with its provisions is liable "in the case of any successful action . . . [for] the costs of the 

action, together with a reasonable attorney's fee as determined by the court." 15 U.S.C. § 

1692k(a)(3). The FDCPA's statutory language makes an award of fees mandatory. 

Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir. 1995). "The reason for mandatory fees 

is that congress chose a 'private attorney general' approach to assume enforcement of the 

FDCPA." Id.; see also Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991) (noting 

that the FDCPA "mandates an award of attorney's fees as a means of fulfilling Congress's 

intent that the Act should be enforced by debtors acting as private attorneys general"). 

Here, pursuant to the Settlement Agreement, Bridgeport Financial agreed to pay 

reasonable and necessary attorneys' fees and costs.

Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008)

LODESTAR ANALYSIS

To determine the lodestar amount, the court may consider the following factors: (1) the 

time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill 

requisite to perform the legal service properly; (4) the preclusion of other employment by the 

attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations 

imposed by the client or the circumstances; (8) the amount involved and the results obtained, (9) 

the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) 

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the nature and length of the professional relationship with the client; and (12) awards in similar 

cases. Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975).

After determining the lodestar amount, the court assesses whether to adjust the lodestar 

upward or downward based on the Kerr factors that are “not already subsumed in the initial 

calculation of the lodestar.” Morales, 96 F.3d at 363-64. The lodestar amount is presumed to be 

the reasonable fee. Thus, a multiplier adjusting the lodestar up or down is necessary only in rare 

and exceptional cases, supported by specific evidence on the record and detailed findings. Id. 

Plaintiff’s lodestar fee is disclosed in the motion as $350/hr x 16 for a total of $5,600. Counsel 

offers their respective declarations in support of the hourly rate of $350 for Knewtson and $425 

for Passannante.

KERR FACTORS

(1) The time and labor required:

Plaintiff has incurred substantial time on this case. The issue of whether defendant filed a 

time barred lawsuit accounted for a significant part of plaintiff’s efforts and that was a 

substantively challenging issue involving an unresolved question of foreign law. A significant 

portion of the time spent was on litigation tasks that directly related to plaintiff’s success on 

count four, that defendant’s sued him for an amount that was greater then what he owed. That 

time allocated by plaintiff as “general litigation” was necessary in developing the overall facts of 

the case. For instance prove of the contract and periodic statements was required both for 

determining default and the amount of the debt. Those facts were applicable to the overstatement 

count, the quantum meruit count and the time barred suit count. Ascertaining the time required to 

establish the overstatement count is probably not feasible. Plaintiff suggests a 10% haircut is 

appropriate for the general litigation time. 

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Knewtson’s skill set compliments Passannante’s. Counsel worked to avoid duplication of 

effort and other than conferring about the case, attending depositions and hearings, and some 

review work by Passannante the two did not duplicate each other’s efforts. Passannante has a 

more than full time practice and would never undertake a case like this without Knewtson to do 

the primary tasks such as research and motions, deposition prep, fact review, case management, 

and client communications etc. Opposing counsel has a similar team and likewise both 

Eidenberg and Huedepohl attended depositions and hearings. That is not unusual for a case of 

this nature.

The Court rejects this argument because Defendant supplies no principled reason to 

reduce Plaintiffs' fee on the basis of alleged unnecessary duplication, the notices sent by 

both Roulston and Schwinn do not appear to be duplicative, and in any event, "[i]t is not 

uncommon for multiple attorneys working on a matter to appear at depositions, [and] 

participate in deposition preparation[.]" Lota by Lota v. Home Depot U.S.A., Inc., 11-CV05777-YGR, 2013 U.S. Dist. LEXIS 181848, 2013 WL 6870006, at *10 (N.D. Cal. Dec. 

31, 2013).

Long v. Nationwide Legal File & Serve, Inc., 2014 U.S. Dist. LEXIS 101670, *26-27, 

2014 WL 3809401 (N.D. Cal. July 23, 2014)

Defendant fiercely contested this case, as was its right, but it is not surprising that the attorney 

fees are what they are. But neither did defendant prevail on all of its issues. The class 

certification was denied because of the denial of the class claim not because the class was not 

viable. Defendant alleged a bona fide error as to the overstatement count but eventually dropped 

it because plaintiff’s deposition of those witnesses could not explain how defendant calculated 

the collection lawsuit demand. Defendant gave up the denial that the debt was overstated when it 

offered judgment to plaintiff. Defendant did not prevail on the bona fide error that the time it 

took to respond to the verification/dispute of plaintiff tolled the limitation period. Plaintiff 

overcame those defenses. The time spent on those issues is awardable to plaintiff.

(2) The novelty and difficulty of the questions involved;

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The issue presented by defendant’s collection attempt is novel and there are very few 

cases that address the issue directly. Defendant’s delay in responding to plaintiff’s dispute was 

unusual as well as his being sued for the same debt twice. Those issues compounded the more 

linear facts of a debt collection case. Application of foreign law to those issues raised by 

defendant required significant factual discovery to understand the tolling issues. The issues 

related to the overstatement of the debt were also complicated by defendant’s assertion that there 

was a bona fide error defense but the refusal of defendant to identify the basis of the error. 

Defendant eventually dropped that defense can conceded the count. Understanding the issues and 

facts requires knowledge of the FDCPA, TILA, debt collection, Capital One, and credit card 

banking law and the law of Virginia.

(3) The skill requisite to perform the legal service properly;

This factor supports an award of a higher than average rate as reflected by application of 

the Portland rates or a 95% rate for the tri-counties. Counsel is not aware of anyone filing a 

similar claim in Oregon despite the persistence of this type of violation. Counsel have 

successfully litigated this issue in an FDCPA case filed in State Court in which the court 

determined that the three year limitation applied to the debt as well as proving that the debt was 

overstated by the collection law firm. Boitz v McGavic et al Mult Cnty 120100746. That prior 

experience is unique to counsel.

(5) The customary fee; 

FDCPA work is typically done on a contingent basis yet typically results in a fee award 

that is hourly. Hourly work done on “speculation,” especially for challenging issues such as the 

one presented in this case discourages lawyers from undertaking such cases absent clear, easily 

identifiable and well established violations. Accepting a below market rate, would strongly 

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discourage those lawyers who have the capacity, skill and knowledge it takes to prevail on these 

overstatement claims. The difficulty of these cases is evidenced by those lawyers who attempt a 

case and fail. The court is probably more familiar with those cases than counsel. To the best of 

counsel’s knowledge the only lawyers who regularly file FDCPA cases are Justin Baxter, present 

counsel, Robert Sola, Kelly Jones, Clarke Balcom, and Joshua Trigstead. Encouraging lawyers to 

undertake these cases and spend the time that it takes to truly understand and prevail on these 

diverse and tricky issues is important not only to the consumer bar but to those business’s that 

are conservative in their collection work. Those businesses are competitively disadvantaged by 

non-compliant collectors who are willing to violate the FDCPA.

(6) Whether the fee is fixed or contingent; 

Addressed in (5).

(7) Time limitations imposed by the client or the circumstances; 

NA.

(8) The amount involved and the results obtained, 

Plaintiff filed one claim, that defendant violated the FDCPA. Plaintiff alleged that 

defendant violated the act in four different ways. Two of which were also alleged as a class 

claim. Plaintiff takes the position that FDCPA claim was successful and plaintiff recovered a full 

statutory damage award and actual damages of $1,349.83. That is solid outcome for this kind of 

case. The court may be inclined to reduce the award of fees for the unsuccessful counts but there 

is not a lot of case law on the appropriate measure for unsuccessful counts as part of a successful

claim. Most of the case law deals with unsuccessful claims. Even then, an unsuccessful claim 

that is closely related to a successful claim does not warrant a reduction of fees as a rule.

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Regardless of the Court's final decision, it appears that the Plaintiffs' attorneys could not 

be faulted for being "devoted generally to the litigation as a whole, making it difficult to 

divide the hours expended on a claim-by-claim basis." Hensley, 461 U.S. at 435. Finally, 

the Court notes that the time spent on the unsuccessful claims against Nationwide Legal 

seems to have contributed to the success of the prevailing claim against NFLS. See 

Cabrales v. City of Los Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991) ("[E]ven if a 

specific claim fails, the time spent on that claim may be compensable, in full or in part, if 

it contributes to the success of the other claims.") This is because the Court's summary 

judgment order, which narrowed the potential scope of liability for Railey's acts to NLFS, 

likely was a factor influencing NFLS's decision to make a Rule 68 offer rather than risk 

trial.

Given that the unsuccessful and successful claims are related, the Court evaluates the 

"significance of the overall relief obtained by the plaintiff in relation to the hours 

reasonably expended on the litigation." Hensley, 461 U.S. at 435. The Court finds that the 

relief Plaintiffs attained — the maximum statutory damages against NFLS for their 

federal and state claims ($2000 per Plaintiff) — was sufficiently commensurate with the 

hours expended on the litigation, and thus the Court rejects NFLS's request to deduct fees 

incurred in connection with claims against Nationwide Legal simply because Nationwide 

Legal prevailed.

Long v. Nationwide Legal File & Serve, Inc., 2014 U.S. Dist. LEXIS 101670, *20-21, 

2014 WL 3809401 (N.D. Cal. July 23, 2014)

Here the substantive work done on the other counts can be identified with some clarity and 

plaintiff has broken out the work done on the legal issues of the counts. The work done on the 

overall development of the case is intermingled and cannot be readily separated and plaintiff 

identifies that work as general litigation. For instance, the deposition of Edmunds was necessary 

to understand how defendant handled a collection lawsuit and what documentation was involved 

as well as other related facts. All of that information would be relevant to any of the counts.

The few cases that deal with unsuccessful counts have not seen fit to decrease an award 

of attorney fees, especially where the operative facts are so melded. 

As the Plaintiffs' Amended Motion details, Plaintiffs' entire complaint was born out of the 

same set of circumstances and facts. All of the claims in Plaintiffs' complaint were related 

to one another and advanced with the common goal of holding Defendant accountable for 

its illegal collection practices. As in Cabrales, the time spent on the unsuccessful claims 

contributed to the success of the prevailing claims. In addition, it does not matter that 

Plaintiffs prevailed on only two of the seven claims because Plaintiffs accomplished their 

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ultimate objective. Plaintiffs obtained a judgment for the maximum amount of statutory 

damages available under FDCPA, which qualifies as a successful result.

As such, the Court finds that Plaintiffs are entitled to recover a fully compensatory fee. 

The Court will not reduce Plaintiffs' attorneys' fees simply because they did not succeed 

on all their claims.

Savage v. NIC, Inc., 2010 U.S. Dist. LEXIS 60311, *7-8, 2010 WL 2347028 (D. Ariz. 

June 8, 2010)

Plaintiff’s case was entirely successful if defendant now applies the Virginia limitation to its 

lawsuits. Prior to this lawsuit defendant applied Oregon’s statute of limitations to Capital One 

debts which is an unfair collection practice. Defendant may have stopped alleging quantum 

meruit as a collection claim. Plaintiff does not know what defendant’s current practice is but 

defendant is welcome to respond by asserting it still applies Oregon’s limitation to its Capital 

One collection lawsuits or that it continues to allege the meritless quantum meruit claim. If not,

then plaintiff has effected a substantial benefit to his class of plaintiffs.

Out of these factors, the Supreme Court has found that "the most critical [5] factor is the 

degree of success obtained." Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S. Ct. 1933, 

76 L. Ed. 2d 40 (1983). "Success must be measured not only in the amount of the 

recovery but also in terms of the principle established and the harm checked." Zagorski v.

Midwest Billing Servs., Inc. 128 F.3d 1164, 1166 (7th Cir. 1997); Morales v. City of San 

Rafael, 96 F.3d 359, 363 (9th Cir. 1996) ("[S]uccess may be measured by 'the 

significance of the legal issues on which the plaintiff claims to have prevailed' and the

'public purpose' the plaintiff's litigation served.") (quoting Farrar v. Hobby, 506 U.S. 

103, 117, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992).

Hernandez v. Erin Capital Mgmt., LLC, 2011 U.S. Dist. LEXIS 114133, *4-5, 2011 WL 

4595802 (C.D. Cal. Oct. 3, 2011)

(9) The experience, reputation, and ability of the attorneys; 

Addressed in Knewtson’s and Passannante’s declarations. Mr. Passannante has practiced 

law successfully in an area . The OSB 2012 fee survey indicates the 75% of lawyers with 21 

years of practice in the Portland demographic command a rate of $399. Passannante’s trial 

experience and litigation experience greatly exceeds the 75%. A rate of $425/hour would be less 

than the 95% for that demographic which is $470/hour. Few lawyers have trials ever year but 

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Passannante has trials every week and multi day trials typically a few times a year including jury 

trials. His practice area involves landlord tenant cases. His regular billing rate for paying clients

is kept lower than what the OSB fee survey would recommend for a lawyer with his talent and 

experience. He keeps it low because of the high volume of work and because his clients pay him 

fully and regularly with few exceptions. He normally bills separately for copies and postage and 

assistant time. In this case he has not separately billed for printing and postage costs and those 

expenses are built into the higher requested rate. Passannante’s litigation experience was 

essential to this case as well as his ability to argue the motions.

(10) The “undesirability” of the case; 

As addressed in Knewtson’s declaration and (5) this case required many hours of 

research and investigation to ensure a victory for plaintiff. Given the uncertainty and effort 

required in litigating these overstatement claims and statute of limitation issues, despite the 

absolute importance of those issues, especially where case law, is still developing, very few 

lawyers would consider taking this case. The absence of dramatic facts make proving damages 

difficult. Yet, these overstatement and statute of limitation issues are essential to ensuring fair 

play by debt collectors. So far Knewtson and Passannante are the only lawyers in Oregon to 

attempt these issues yet Capital One is one of the more common credit card debts out there. 

Clearly nobody else will step up to this plate and swing at these issues. If the court significantly 

reduces plaintiff’s fees then even Knewtson and Passannante will have to think hard about doing 

it again despite the obviously meritorious claim. One factor in these cases are the low damages 

that defense routinely argues warrants a huge reduction in fees.

Applying the "rule of proportionality" suggested by Defendants "would make it difficult, 

if not impossible, for individuals with meritorious [FDCPA] claims but relatively small 

potential damages to obtain redress from the courts." City of Riverside, 477 U.S. at 578.

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PLAINTIFF’S MOTION FOR ATTORNEY FEES - 15

Bogner v. Masari Invs., LLC, 2010 U.S. Dist. LEXIS 81143, *7, 2010 WL 2595273 (D. 

Ariz. June 24, 2010)

It would be impossible to win a case like this, which was novel in many ways and fiercely 

contested, without incurring an enormous amount of time. Yet the outcome of these cases 

significantly impact other consumers in a positive way. Very few consumers who are sued by 

defendant understand enough about their debts to enlist the help of a lawyer and even fewer 

lawyers would be of any help at all as plaintiff experienced. Declaration of Carlos.

(11) The nature and length of the professional relationship with the client;

Counsel has represented plaintiff in the collection action. Typically this factor applies to a 

reduction in rates for insurance defense counsel who have long term relationships with insurance 

companies and whom are paid without regard to outcome and is not a factor here.

(12) Awards in similar cases

This factor is developed in Knewtson’s declaration to the extent it relates to an hourly 

rate. To the extent this case reflects typical damages plaintiff received a full award of statutory 

damages and significant actual damages of $1,349. In comparison Mr. Boitz who had an almost 

identical FDCPA claim received $2,200 from a jury. Defendant’s first offer on the case came 

after the bench ruling at argument for summary judgment.

Respectfully submitted on December 11, 2015

/s/ Bret Knewtson

Bret Knewtson, OSB 03355

Service by ECF:

Mark G. Passannante markpassannante@msn.com

Peter D. Eidenberg peidenberg@keatingjones.com, amaloney@keatingjones.com

Kelly Frances Huedepohl khuedepohl@keatingjones.com, jsmith@keatingjones.com

Case 3:14-cv-00921-MO Document 62 Filed 12/11/15 Page 15 of 15