PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KEITH MANUFACTURING CO.,

Plaintiff,

 v.

LARRY D. BUTTERFIELD,

Defendant.

Case No. 3:15-cv-2008-SI

OPINION AND ORDER

Bruce A. Kaser, VANTAGE LAW PLLC, 414 NE Ravenna Blvd., Suite A-1243, Seattle, WA 98115, 

Gordon W. Stewart, STEWART LAW OFFICES, 2200 Main St., Suite 522, Wailuku, HI 96793. 

Of Attorneys for Plaintiff.

Shawn Kolitch, KOLITCH ROMANO LLP, 520 SW Yamhill St., Suite 200, Portland, OR 97204.

Of Attorneys for Defendant.

Michael H. Simon, District Judge.

In this lawsuit, Plaintiff Keith Manufacturing Co. (“Keith”) sued its former employee 

Defendant Larry D. Butterfield (“Butterfield”). Keith sought declarations of non-infringement of 

a patent and patent invalidity. Keith also asserted claims of breach of contract and 

misappropriation of trade secrets. Eighteen months after this lawsuit began, the parties filed a 

Stipulation of Dismissal with Prejudice (“Stipulated Dismissal”), reading, in its entirety:

“Pursuant to Fed. R. Civ. P. 41(a), Plaintiff Keith Manufacturing Co. and Defendant Larry D. 

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Butterfield hereby stipulate to dismissal of all claims pending in this action, with prejudice.” The 

stipulation was effective without court order, under Rule 41(a)(1)(A)(ii) of the Federal Rules of 

Civil Procedure. Twelve days later, Butterfield filed a motion for attorney fees. Although Keith 

opposed Butterfield’s motion and argued that neither party should recover fees, Keith filed a

cross-motion for attorney fees “out of caution.”

Keith argues that the Stipulated Dismissal, which was silent regarding attorney’s fees, did 

not provide the “judgment” or “decree and order from which an appeal lies” as required under

Rule 54(a) of the Federal Rules of Civil Procedure. The Court denied attorney’s fees, holding 

that under Microsoft Corp. v. Baker, --- U.S. ---, 137 S. Ct. 1702 (2017), the Stipulated Dismissal 

was not an appealable order and thus did not meet the requirements of Rule 54. The Federal 

Circuit reversed and remanded for further proceedings, holding that Microsoft was inapplicable 

because considering a stipulated dismissal and “judgment” in the context of Rule 54 did not 

create the same concerns about piecemeal litigation that animated the Supreme Court’s decision 

in Microsoft. Keith Mfg. Co. v. Butterfield, 955 F.3d 936, 938 (2020). The Federal Circuit 

declined to reach any of the other arguments raised by Keith. Id. at 940.

After remand, Keith argues that the Court should deny Butterfield’s motion for attorney’s 

fees on grounds not specifically addressed by the Court in its first Opinion and Order and that the 

Federal Circuit declined to address—that the Stipulated Dismissal is self-executing and therefore 

does not meet the requirements of Rule 54. Keith also requests the Court to reconsider its 

previous conclusions that it has jurisdiction to consider this dispute, including whether 

Butterfield is the prevailing party, and its conclusion that Butterfield is the prevailing party under 

Oregon law. Finally, Keith argues that if Butterfield is entitled to any fees, the fees requested by 

Butterfield are not reasonable. The Court considers Keith’s motion for reconsideration on the 

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merits but declines to reconsider its conclusion that it has jurisdiction to consider this dispute. 

The Court, however, reconsiders its conclusion that Butterfield is the prevailing party on Keith’s 

breach of contract claim and denies Butterfield’s motion for attorney’s fees on that ground. The 

Court declines to reach Keith’s other arguments.

DISCUSSION

A. Standards for Reconsideration

Rule 60(b) of the Federal Rules of Civil Procedure governs reconsideration of “a final 

judgment, order, or proceeding” of the district court. That rule allows a district court to relieve a 

party from a final judgment, order, or proceeding for the following reasons: “(1) mistake, 

inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . ; (3) fraud . . . by 

an opposing party; (4) the judgment is void; (5) the judgment has been satisfied . . . or (6) any 

other reason that justifies relief.” Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made 

within a reasonable time and, under subsections (1), (2), and (3), “no more than a year after the 

entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c). The party 

making the Rule 60(b) motion bears the burden of proof. See Rufo v. Inmates of Suffolk Cty. 

Jail, 502 U.S. 367, 383 (1992). Reconsideration is “an extraordinary remedy, to be used 

sparingly in the interests of finality and conservation of judicial resources.” Carroll v. 

Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation and quotation marks omitted); see also

Shalit v. Coppe, 182 F.3d 1124, 1132 (9th Cir. 1999) (noting that “reconsideration is appropriate 

only in very limited circumstances”). 

Because this case has been remanded for further proceedings, the interests of finality and 

conservation of judicial resources that generally counsel against motions for reconsideration are 

not present. Butterfield’s arguments regarding why the Court should not reconsider its previous 

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rulings relating to jurisdiction and prevailing party status go the merits of Keith’s arguments on 

those issues. The Court will consider Keith’s motion for reconsideration on the merits.

B. Jurisdiction

Keith argues that the Court should reconsider its determination that the Court has 

jurisdiction to consider attorney’s fees after the parties filed the Stipulated Dismissal. Keith 

argues that the Stipulated Dismissal “revoked” the Court’s jurisdiction upon filing and that the 

Court therefore may not make any decisions after that filing, including whether Butterfield is the 

prevailing party. Keith cites Kokkonen v. Guardian Life Insurance Company of America, 511 

U.S. 375 (1994). Kokkonen held that a court has ancillary jurisdiction to enforce a settlement 

agreement only “if the parties’ obligation to comply with the terms of the settlement agreement 

had been made part of the order of dismissal—either by separate provision (such as a provision 

‘retaining jurisdiction’ over the settlement agreement) or by incorporating the terms of the 

settlement agreement in the order.” Id. at 381. Keith argues that because the Stipulated Dismissal 

did not include a provision for attorney’s fees, the Court did not retain ancillary jurisdiction over 

that issue.

An argument similar to one made by Keith was rejected by the Ninth Circuit in K.C. ex 

rel. Erica C. v. Torlakson, 762 F.3d 963 (9th Cir. 2014). In Torlakson, the Ninth Circuit 

distinguished Kokkonen and discussed that a court’s ancillary jurisdiction over attorney’s fees 

continues after litigation has concluded, even if jurisdiction over fees was not expressly retained 

and even when a court does not have ancillary jurisdiction over a settlement agreement. Id. 

at 968-70. The Ninth Circuit explained that there is a “distinction between ancillary jurisdiction 

to enforce a settlement agreement and ancillary jurisdiction over an attorney’s fees dispute” and 

that when a party argues that it is the prevailing party entitled to collect attorney’s fees a district 

court’s lack of ancillary jurisdiction to enforce a settlement agreement under Kokkonen “is 

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irrelevant.” Id. at 969. The Ninth Circuit stated: “Importantly, a district court’s ancillary 

jurisdiction over an attorney’s fees dispute is inherent and broader than its ancillary jurisdiction 

to enforce a settlement agreement.” Id. at 968. The Ninth Circuit also explained that a “court’s 

ancillary jurisdiction over [a party’s] motion for attorney’s fees need not have been explicitly 

‘retained’” because “allowance of attorney’s fees is part of the historic equity jurisdiction of the 

federal courts.” Id. at 970 (simplified). Thus, a court retains ancillary jurisdiction over a fee 

dispute even when a complaint is “dismissed without any reservation of continuing court 

authority,” id. (quoting In re Austrian & German Bank Holocaust Litig., 317 F.3d 91 (2d 

Cir. 2003), and a district court’s dismissal order does not “divest (or otherwise impose a time 

limit upon) the court’s inherent jurisdiction over a collateral attorney’s fees dispute.” Id.

Although Torlakson involves a dismissal order signed by a judge, Keith offers no 

authority for the argument that a stipulated dismissal filed by the parties could divest the Court’s 

inherent jurisdiction over a collateral attorney’s fees dispute when a dismissal signed by judge 

does not. Keith’s argument is rejected and the Court declines to alter its previous conclusion that 

the Court retains jurisdiction to consider attorney’s fees after the Stipulated Dismissal.

C. Prevailing Party

The Court previously concluded that for Butterfield’s breach of contract claim, for which 

the attorney’s fees dispute is governed by Oregon law, Butterfield was the prevailing party under 

state law and would be entitled to fees but for the procedural barrier the Court had identified

under Microsoft. Keith Mfg., Co. v. Butterfield, 256 F. Supp. 3d 1123, 1133 (D. Or. 2017). 

Butterfield argues that awarding fees is mandatory under Oregon law and the Court does not 

have any discretion to deny fees. When there is a contract provision that requires the payment of 

attorney’s fees to the prevailing party, a court “must award reasonable fees.” Ladum v. City of 

Reedsport, 83 Or. App. 666, 669 (1987). “The court must first determine, however, whether 

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there is a prevailing party. If neither party prevails, an award of attorney fees is not appropriate.” 

Id. (citation omitted); see also Lawrence v. Peel, 45 Or. App. 233, 243 (1980) (noting that even 

when a contract uses the term “shall award such fees to the prevailing party, it does not follow 

that fees must be awarded” because “[i]f both parties prevailed, or neither of them prevailed, an 

award of attorney’s fees would not be appropriate or required” (footnote omitted)).

The Court’s earlier prevailing party decision was based on Rule 54 A(3) of the Oregon 

Rules of Civil Procedure (“ORCP”). This procedural rule provides:

When an action is dismissed under this section, the judgment may 

include any costs and disbursements, including attorney fees, 

provided by contract, statute, or rule. Unless the circumstances 

indicate otherwise, the dismissed party shall be considered the 

prevailing party.

ORCP 54 A(3). Notably, however, ORCP 54 A(1) requires: “Upon notice of dismissal or 

stipulation under this subsection, a party shall submit a form of judgment and the court shall 

enter a judgment of dismissal.” Thus, under Oregon law, stipulated dismissals require that a 

court enter judgment. This is a different procedure than what happens under federal law, in 

which the parties can stipulate to dismissal without a court order, as happened in this case. Keith 

argues that this difference is critical under Oregon law.

As Keith notes, “prevailing party” is defined under Oregon law as “the party who 

receives a favorable judgment or arbitration award on the claim.” Or. Rev. Stat. (“ORS”)

§ 20.077(2). Keith also points out that “judgment” is defined under Oregon law as “the 

concluding decision of a court on one or more requests for relief in one or more actions, as 

reflected in a judgment document” and that a “judgment document” “means a writing in the form 

provided by ORS 18.038 that incorporates a court’s judgment.” ORS § 18.005(8)-(9). The “form 

provided ORS 18.038,” requires, among other things, the signature of a judge or court 

administrator when an administrator is authorized to sign. ORS § 18.038(4)(c). Thus, argues 

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Keith, because in this case, unlike in a state court stipulated judgment, the Court did not sign or 

enter a judgment, the statutory prerequisites for Oregon’s prevailing party status are not met.

Butterfield responds that intervening case law shows that he is the prevailing party

because of the Stipulated Dismissal. Butterfield cites Burger v. Rock & Roll Chili Pit, Inc., 2018 

WL 1156237, at *4 (D. Or. Mar. 5, 2018). The court in Burger, however, had issued its own 

order in addition to the parties’ stipulation, similar to the Oregon procedure requiring a court 

judgment. Id. at *2. The dismissal in Burger therefore did not suffer from the deficiency argued 

by Keith that makes Butterfield ineligible for prevailing party status under Oregon law.

Additionally, the stipulation in Burger expressly reserved the right for the parties to petition for 

attorney’s fees, unlike the Stipulated Dismissal.

Irrespective of Keith’s argument regarding the statutory requirements for prevailing party 

status, under Oregon law the mere fact of a voluntary or stipulated dismissal is not dispositive of 

the issue of who is a prevailing party. As the Oregon Court of Appeals has explained:

To be precise, ORCP 54 A(3) provides that “the dismissed party 

shall be considered the prevailing party” unless the circumstances 

indicate otherwise. The provision recognizes that voluntary 

dismissals can occur for a variety of reasons, not all of which 

would make it appropriate to treat a dismissed party as the 

prevailing party.

King v. Neverstill Enters., LLC, 240 Or. App. 727, 736 n.5 (2011) (emphasis added). When a 

plaintiff unilaterally and voluntarily dismisses a defendant, the circumstances generally are more 

persuasive in showing that the defendant is the prevailing party. When the parties stipulate to a 

dismissal, however, there may be circumstances under which the defendant should not be 

considered the prevailing party.1

 

1 For example, the defendant could have agreed to pay the plaintiff money or stop 

engaging in certain behavior.

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Considering Oregon’s statutes setting forth the requirements for the prevailing party 

analysis, and that ORCP 54 A(3) expressly provides that there are circumstances in which 

voluntary dismissals do not support finding the dismissed party to be the prevailing party, the 

Court declines to find that Butterfield is the prevailing party simply because the parties filed the

Stipulated Dismissal. The Court did not enter a judgment and the Stipulated Dismissal was silent 

as to fees or prevailing party status.

2 Under these circumstances, a “judgment,” as that term is 

used in ORS §§ 18.005 and 20.077, was not entered in this case, and Oregon’s statutory 

requirements for finding a prevailing party were not met. Thus, neither party prevailed. As such,

Butterfield is not entitled to attorney’s fees. Lawrence, 45 Or. App. at 243 (noting that even with 

a mandatory contract fee provision, if “neither [party] prevailed, an award of attorney’s fees 

would not be appropriate or required”).

CONCLUSION

Butterfield’s Supplemental Motion for Attorney’s Fees (ECF 55) is DENIED.

IT IS SO ORDERED.

DATED this 4th day of August, 2020.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

 

2 Additionally, as the Court noted in its earlier opinion, if the inclusion of attorney’s fees 

is important to a defendant, particularly when a judge is not going to enter an order or judgment, 

it should be included in the stipulated dismissal. “There does not appear to be any good reason to 

be silent on that issue, unless one deliberately wants to create uncertainty. . . . [and] this issue 

could easily be made part of the negotiation that either results in a stipulated dismissal or fails to 

reach agreement.” Keith, 256 F. Supp. 3d at 1130 n. 4. Certain avenues are available to a 

defendant under Rule 41(a) if a plaintiff refuses to agree to pay attorney’s fees or at least allow 

the issue to be reserved for the court’s future consideration, such as was done in Burger. Id.

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