IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

STEPHEN and RENA MULLER,

No. 3:14-cv-01345-BR

Plaintiff,

OPINION AND ORDER

v.

COUNTRY MUTUAL INSURANCE

COMPANY,

Defendant.

BROWN, Judge.

This matter comes before the Court on Plaintiffs’ Motion

(#76) for Attorney Fees. For the reasons below, the Court GRANTS

in part Plaintiffs’ Motion and awards interim attorneys’ fees in

the amount of $8,491.00.

BACKGROUND

This action arises from Defendant’s denial of coverage for a

fire-loss claim submitted by Plaintiffs. In the course of

discovery Plaintiffs noticed the deposition of a corporate

representative of Defendant pursuant to Federal Rule of Civil

Procedure 30(b)(6). Defendant’s designated representative

appeared for deposition in August 2015. That deposition was

suspended per the agreement of the parties and continued to

December 2015 when it was concluded. Thereafter Plaintiffs filed

a Motion (#58) in Limine to exclude testimony or evidence at

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trial inconsistent with the corporate representative’s deposition

testimony. Following a hearing on the Motion in Limine, the

Court denied Plaintiffs’ Motion as premature. The Court,

however, gave Plaintiffs leave to file a motion for attorneys’

fees on the ground that Plaintiffs’ Motion in Limine “was

necessitated by Defendant’s failure to prepare its Federal Rule

of Civil Procedure 30(b)(6) witness adequately.” 

Plaintiffs seek $19,990.00 in attorneys’ fees.

DISCUSSION

I. Plaintiffs are entitled to attorneys’ fees.

Federal Rule of Civil Procedure 37 allows the Court in its

discretion to award expenses incurred regarding disputed

discovery matters. Plaintiffs seek attorneys’ fees pursuant to

Rule 37(a)(5) and 37(d)(3). Rule 37(a)(5) relates to payment of

expenses for bringing or defending a motion for protective order,

and Rule 37(d)(3) allows sanctions to be awarded when a party

fails to appear for a deposition or fails to provide responses to

discovery requests. Here, as part of its Response to Plaintiffs’

Motion in Limine, Defendant sought a protective order “that does

not allow Plaintiffs to force [the corporate designee] to read

every fact deposition that has been taken in order to recite

every fact that may support the intentional act and

misrepresentation defenses in this case.” Def.’s Resp. (#64) 

at 8. Plaintiffs filed an eight-page Reply in support of their

Motion in Limine that included only a brief response to

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Defendant’s request for a protective order. Pls.’ Reply (#68) 

at 5-6. 

Although Plaintiffs did not seek attorneys’ fees in their

Motion in Limine, in their Reply, however, they requested “an

Order requiring Defendant to pay Plaintiffs’ reasonable costs and

attorney fees for opposing Defendant’s Motion for Protective

Order, or in the alternative, for the time spent in preparing and

attending the FRCP 30(b)(6) deposition of the Defendant.” Pls.’

Reply (#68) at 8.

Following the hearing on Plaintiffs’ Motion in Limine, the

Court found the Motion was “necessitated by Defendant’s failure

to prepare its [corporate designee] adequately.” The Court now

concludes, therefore, that Defendant’s conduct falls within the

purview of Rule 37, and Plaintiffs are entitled to an award of

attorneys’ fees.

II. Plaintiffs are entitled to reasonable attorneys’ fees in the

amount of $8,491.00.

A. Standards

The Supreme Court has stated under federal fee-shifting

statutes that "the lodestar approach" is "the guiding light" when

determining a reasonable fee. Perdue v. Kenny A., 559 U.S. 542,

551 (2010). Under the lodestar method the court first determines

the appropriate hourly rate for the work performed and then

multiplies that amount by the number of hours properly expended

in doing the work. Id. Although "in extraordinary

circumstances" the amount produced by the lodestar calculation

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may be increased, "there is a strong presumption that the

lodestar is sufficient." Id. at 556. The party seeking an award

of fees bears "the burden of documenting the appropriate hours

expended in the litigation, and [is] required to submit evidence

in support of those hours worked." United Steelworkers of Am. v.

Ret. Income Plan For Hourly-rated Emps. Of Asarco, Inc., 512 F.3d

555, 565 (9th Cir. 2008)(quotations omitted). When "determining

the appropriate number of hours to be included in a lodestar

calculation, the district court should exclude hours 'that are

excessive, redundant, or otherwise unnecessary.'" McCown v. City

of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009)(quoting Hensley

v. Eckerhart, 461 U.S. 424, 434 (1983)).

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 due to acceptance of the case; 

(5) the customary fee; (6) whether the fee is

fixed or contingent; (7) any 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) the nature and length of the professional

relationship with the client; and (12) awards in

similar cases.

Fischel v. Equitable Life Assur. Soc'y of U.S., 307 F.3d 997,

1007 n.7 (9th Cir. 2002)(quotation omitted). A rote recitation

of the relevant factors is unnecessary as long as the court

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adequately explains the basis for the award of attorneys' fees. 

McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 809 (9th

Cir. 1995). See also Van Gerwen v. Guar. Mut. Life Co., 214 F.3d

1041, 1047 (9th Cir. 2000)(“the district court need only provide

a ‘concise but clear explanation for its reasons’ for reducing

the number of hours included in a fee award”).

The lodestar amount is presumed to be the reasonable

fee, and, therefore, "'a multiplier may be used to adjust the

lodestar amount upward or downward only in rare and exceptional

cases, supported by both specific evidence on the record and

detailed findings by the lower courts.'" Summers v. Carvist

Corp., 323 F. App'x 581, 582 (9th Cir. 2009)(quoting Van Gerwen

v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000)). 

"Adjustments [to the lodestar amount] must be carefully tailored

. . . and [made] only to the extent a factor has not been

subsumed within the lodestar calculation." Rouse v. Law Offices

of Rory Clark, 603 F.3d 699, 704 (9th Cir. 2009)(citing Camacho

v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008)).

B. Time Incurred in Connection with Plaintiffs’ Motion in

Limine

Plaintiffs seek to recover attorneys’ fees for time

expended by counsel in the handling of Plaintiffs’ Motion in

Limine. The hourly billing records for these services were

submitted with the Declaration of Andrew C. Lauersdorf (#77). 

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The billing records reflect a total of 55 hours expended by

Plaintiffs’ three attorneys: Andrew Lauersdorf, FJ Maloney, and

Scott MacLaren. 

When determining the appropriate number of hours to be

included in a lodestar calculation, the district court should

exclude hours “that are excessive, redundant, or otherwise

unnecessary.” McCown v. City of Fontana, 565 F.3d 1097, 1102

(9th Cir. 2009)(quoting Hensley v. Eckerhart, 461 U.S. 424, 434

(1983)). The district court may determine whether hours are

excessive, redundant, or otherwise unnecessary, and thus 

excludable, by conducting an hour-by-hour analysis of the fee

request. Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th

Cir. 2013). 

 Lauersdorf expended a total of 15.8 hours, Maloney

expended a total of 12 hours, and MacLaren expended a total of

27.2 hours related to the Motion in Limine. Between January 8,

2016, and March 4, 2016, MacLaren and Maloney together spent

20.1 hours in the preparation of the initial 28-page Motion in

Limine they filed on March 4, 2016. Between March 21, 2016, and

April 4, 2016, all three counsel spent a total of 27.5 hours in

the preparation of Plaintiffs’ nine-page Reply in further support

of Plaintiffs’ Motion in Limine. Between 

April 5, 2016, and May 16, 2016, Lauersdorf spent 7.4 hours in

preparation for and his appearance at the court hearing on

Plaintiffs’ Motion in Limine.

In particular, on March 21, 2016, MacLaren spent 1.20

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hours analyzing Defendant’s Response and preparing an outline of

arguments. On March 22, 2016, Maloney spent 4.10 hours also

reviewing and analyzing Defendant’s Response and drafting

Plaintiffs’ Reply, and MacLaren spent an additional 1.10 hours

that same day drafting the Reply. On April 4, 2016, all three

counsel spent a total of 17.4 hours reviewing, supplementing, and

revising Plaintiffs’ Reply in support of the Motion in Limine

(MacLaren: 5.30 hours, Maloney: 3.70 hours, and Lauersdorf: 

8.40 hours). 

On this record the Court concludes the hours spent by

Plaintiffs’ attorneys were excessive, redundant, or otherwise

unnecessary, and, accordingly, the Court, in the exercise of its

discretion to reach a “reasonable” attorneys’ fee calculation,

reduces the number of hours to be included in the lodestar

calculation as follows: 

Attorney Requested

Hours

Reasonable

Hours

Andrew Lauersdorf 15.8 9.1

FJ Maloney 12.0 5.2

Scott MacLaren 27.2 16.6

TOTAL 55 30.9

C. Counsels’ Requested Hourly Rate

Counsel request an hourly rate of $450.00 for

Lauersdorf and Maloney and $275.00 for MacLaren.

 To determine the reasonable hourly rate of an attorney,

this Court uses the most recent Oregon State Bar Economic Survey

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published in 2013 as its initial benchmark. Attorneys may argue

for higher rates based on inflation, specialty, or a number of

other factors. 

In 2009 Maloney and Lauersdorf formed their law firm,

which currently has five attorneys and represents both insurance

companies and insureds. According to the Lauersdorf Declaration

(#77), Maloney was admitted to the Oregon State Bar in 1995 and

has approximately 17 years of experience litigating insurance

coverage disputes; Lauersdorf was admitted to the Oregon State

Bar in 1998 and has 16 years of experience litigating insurance

coverage disputes; and MacLaren was admitted to the Oregon State

Bar in 2012 and has 4 years of litigation experience as an

associate. All counsel have primarily handled the defense of

civil insurance litigation. 

The Oregon State Bar Economic Survey indicates an

average hourly billing rate for attorneys in the Portland area of

$284. For an attorney in the Portland area with 16-20 years

experience, the hourly billing rate is between $200 and $380 per

hour with an average of $256 per hour. For attorneys with 4-6

years experience, the hourly billing rate is between $160 and

$295 per hour with an average of $210 per hour. As noted, the

rate sought by Plaintiffs’ counsel is $450 per hour for Maloney

and Lauersdorf and $275 for MacLaren. 

On this record the Court concludes a reasonable hourly

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rate for Maloney and Lauersdorf is $350 and a reasonable hourly

rate for MacLaren is $210. 

Attorney Hours Rate Fees

Andy Lauersdorf 9.1 $350 $3,185

FJ Maloney 5.2 $350 $1,820

Scott MacLaren 16.6 $210 $3,486

TOTAL 30.9 $8,491

CONCLUSION

For these reasons, the Court GRANTS in part Plaintiffs’

Motion (#76) for Attorney Fees and AWARDS Plaintiff attorneys’

fees of $8,491.00.

IT IS SO ORDERED.

DATED this 19th day of September, 2016.

 

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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