IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CHANNING TATE,

Plaintiff,

v.

GRAND PRIX MOTORS, INC., a

domestic corporation; BL & DJ

ENTERPRISES, INC., dba

WILSONVILLE TOYOTA SCION, a

domestic corporation; and

PARS AUTO MART INC., a

domestic corporation.,

Defendants.

3:15-CV-02157-PK

 

OPINION AND ORDER 

YOUNG W. WALGENKIM

Hanson & Walgenkim, LLC

838 Commercial Street N.E.

Salem, OR 97301

(503) 383-1496 

Attorneys for Plaintiff

MATTHEW T. PIWONKA

1001 S.W. Fifth Avenue

Suite 1405

Portland, OR 97204

(503) 274-0424

Attorney for Defendant BL & DJ Enterprises, Inc.

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Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 1 of 29
CONRAD L. ZUBEL

1500 S.W. Taylor Street

Portland, OR 97205

(503) 220-1227 

Attorney for Defendant Pars Auto Mart Inc.

BROWN, Judge.

This matter comes before the Court on Plaintiff’s Motion

(#16) for Default Judgment as to Grand Prix Motors Only and

Plaintiff’s Motion (#19) for an Award of Attorney Fees and Costs. 

For the reasons that follow, the Court GRANTS Plaintiff’s Motion

for Default Judgment, GRANTS Plaintiff’s Motion for an Award of

Attorney Fees and Costs, and AWARDS Plaintiff attorneys’ fees of

$5,890.00 and costs of $449.50.

BACKGROUND

The following facts are taken from Plaintiff’s Complaint and

materials filed in support of his Motion for Default Judgment.

On September 6, 2012, Defendant Grand Prix purchased a 2008

BMW 335i from Manheim Auction.1 Manheim “announced” the BMW as

“‘TMU’ (True Mileage Unknown), but represented the mileage as

28,190.” Compl. at ¶ 13. 

On October 18, 2012, Grand Prix sold the BMW to “a consumer

and represented the BMW as having 28,210 miles, and signed a

1

 Manheim Auction is not a party to this action.

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Secure Odometer Disclosure certifying that the odometer reading

[was] the actual mileage of the vehicle.” Compl. at ¶ 14. Grand

Prix did not check either of the boxes on the Secure Odometer

Disclosure form that indicated “[t]he mileage stated is in EXCESS

of its mechanical limits” or “[t]he odometer reading is NOT the

actual mileage. WARNING – ODOMETER DISCREPANCY.” Compl. at 

¶ 15.

On March 8, 2014, Defendant BL & DJ Enterprises, Inc., dba

Wilsonville Toyota Scion (Wilsonville), purchased the BMW from “a

consumer.”

 On March 14, 2014, Wilsonville sold the BMW to Defendant

Pars Automart Inc. Wilsonville represented to Pars that the BMW

had 49,329 miles and signed a Secure Odometer Disclosure

certifying that the odometer reading reflected the actual mileage

of the vehicle. Wilsonville did not check either of the boxes on

the Secure Odometer Disclosure form that indicated “[t]he mileage

stated is in EXCESS of its mechanical limits” or “[t]he odometer

reading is NOT the actual mileage. WARNING – ODOMETER

DISCREPANCY.” Compl. at ¶ 18.

On March 21, 2014, Pars sold the BMW to Luxury Motors Online

Inc. (Luxmoto)2 and represented the BMW had 49,843 miles. Pars

signed a Secure Odometer Disclosure certifying that the odometer

2

 Luxmoto is not a party to this action.

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reading reflected the actual mileage of the vehicle. Pars did

not check either of the boxes on the Secure Odometer Disclosure

form that indicated “[t]he mileage stated is in EXCESS of its

mechanical limits” or “[t]he odometer reading is NOT the actual

mileage. WARNING – ODOMETER DISCREPANCY.” Compl. at ¶ 20.

On April 8, 2014, Plaintiff purchased the BMW from Luxmoto

for $19,995. Luxmoto signed a Secure Odometer Disclosure

certifying that the odometer reading reflected the actual mileage

of the vehicle. Luxmoto did not check either of the boxes on the

Secure Odometer Disclosure form that indicated “[t]he mileage

stated is in EXCESS of its mechanical limits” or “[t]he odometer

reading is NOT the actual mileage. WARNING – ODOMETER

DISCREPANCY.” Compl., Ex. 2 at 1. 

On November 18, 2015, Plaintiff filed a Complaint in this

Court alleging Defendants violated the Truth in Mileage Act

(TIMA), 49 U.S.C. § 32701, related to the sale of the BMW. 

Specifically, Plaintiff alleges:

When Defendants sold the BMW, they knew that the

odometer reading differed from [the] actual

mileage, and that difference was greater than that

caused by odometer calibration error.

However, Defendants did not inform the buyer that

the odometer mileage was inaccurate.

Defendants did not include a statement that the

odometer reading did not reflect the actual

mileage, and should not have been relied upon.

Defendants did not include a warning notice to

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alert the transferee that a discrepancy existed

between the odometer reading and the actual

mileage.

Compl. at ¶¶ 25-28. Plaintiff seeks damages plus attorneys’ fees

and costs.

On January 8, 2016, Plaintiff served Grand Prix with the

Summons and Complaint. Grand Prix did not file a responsive

pleading.

On February 25, 2016, Plaintiff filed a Motion (#11) for

Entry of Default against Grand Prix.

On February 25, 2016, Magistrate Judge Paul Papak issued an

Order (#14) granting Plaintiff’s Motion for Entry of Default and

directing Plaintiff to file a Motion for Default Judgment.

On March 3, 2016, Plaintiff filed a Motion (#16) for Default

Judgment against Grand Prix in which he seeks a judgment in favor

of Plaintiff, $20,001.00 in damages, $3,625.00 in attorneys’

fees, and $449.50 in costs. On March 3, 2016, Plaintiff also

filed a Motion (#19) for Award of Attorney Fees and Costs against

Grand Prix in which Plaintiff seeks $3,625.00 in attorneys’ fees

and $449.50 in costs.

On March 22, 2016, the Court entered an Order in which it

noted it had reviewed Plaintiff’s Motion for Default Judgment and

Plaintiff’s Motion for Attorney Fees and Costs and directed

Plaintiff to file a Supplemental Memorandum addressing the

following:

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(1) Does the absence of [Luxmoto] prevent (as

asserted in the Answer of [Pars]) complete relief

among the existing parties and, if so, does the

absence of a potentially necessary party affect

whether the Court should proceed to award damages

against . . . [Grand Prix]; (2) May the Court rely

only on Plaintiff's uncorroborated "estimate" of

damages in the amount of $6,667. ([T]he Court

notes that figure is exactly one-third of the

treble damages maximum statutory award and

questions its reliability on this undeveloped

record); 

(3) Assuming the Court may proceed to enter

Judgment and, therefore, proceed to consider

Plaintiff's Motion for an Award of Attorney's

Fees, the Court notes Plaintiff seeks $250 per

hour, but the Oregon State Bar Economic Survey

reflects the rate for an attorney with 3 years

experience practicing in Salem should be in the

range of $177-$204 per hour.

March 22, 2016, Order at 1.

On April 21, 2016, Plaintiff filed a Supplemental Memorandum

in Support of Plaintiff’s Motion for Default Judgment in which,

among other things, he revised his request for attorneys’ fees to

$9,350.00. The Court took Plaintiff’s Motions under advisement

on April 21, 2016.

PLAINTIFF’S MOTION (#16) FOR DEFAULT JUDGMENT

As noted, Plaintiff seeks a default judgment only against

Grand Prix to include damages of $20,001.00 for violation of

TIMA.

I. Default Judgment Standard

Federal Rule of Civil Procedure 55(b)(2) authorizes the

Court to enter a default judgment after default has been entered

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by the Clerk of Court. After the Clerk has entered a default

pursuant to Rule 55(a), the factual allegations of Plaintiff's

Complaint are taken as true, but Plaintiff has the burden to

prove his damages. See DirecTV Inc. v. Mina Chau, No. 11cv1821

WQH (BGS), 2012 WL 5967113, at *3 (S.D. Cal. Nov. 27, 2012)

(citing TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917–

18 (9th Cir. 1987)). 

II. TIMA Generally

TIMA3 requires the transferor4 of a motor vehicle either to

disclose in writing “the cumulative mileage registered on the

[vehicle's] odometer” or to “[d]isclose [in writing] that the

actual mileage is unknown, if the transferor knows the odometer

reading is different from the number of miles the vehicle has

actually traveled.” 49 U.S.C. § 32705. The written disclosure

must be signed by the transferor and transferee and must contain,

among other things, “[t]he odometer reading at the time of

transfer (not to include tenths of miles).” 49 C.F.R. 

§ 580.5(c)(1). In addition, 49 C.F.R. § 580.5(e) provides:

(1) The transferor shall certify that to the best

of his knowledge the odometer reading reflects the

actual mileage, or;

3

 Courts often refer to TIMA as the Odometer Act.

4

 A transferor is “any person who transfers his ownership of

a motor vehicle by sale, gift, or any means other than by the

creation of a security interest, and any person who, as agent,

signs an odometer disclosure statement for the transferor.” 49

C.F.R. § 580.3.

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(2) If the transferor knows that the odometer

reading reflects the amount of mileage in excess

of the designed mechanical odometer limit, he

shall include a statement to that effect; or

(3) If the transferor knows that the odometer

reading differs from the mileage and that the

difference is greater than that caused by odometer

calibration error, he shall include a statement

that the odometer reading does not reflect the

actual mileage, and should not be relied upon. 

This statement shall also include a warning notice

to alert the transferee that a discrepancy exists

between the odometer reading and the actual

mileage. 

Although the Ninth Circuit has not addressed TIMA, other

courts have held when a transferor fails to comply with the

requirements of TIMA and its implementing regulations with intent

to defraud, the transferor is subject to an action by the

transferee and is liable for treble damages or $1,500, whichever

is greater. See, e.g., Suiter v. Mitchell Motor Coach Sales,

Inc., 151 F.3d 1275, 1278 (10th Cir. 1998)(citing 49 U.S.C. 

§ 32710). See also TIMA, 49 U.S.C. § 32709 (providing a

transferor who violates the Odometer Act may be subject to both

civil and criminal penalties).

“A transferor of a vehicle may be found to have intended to

defraud if he had reason to know the mileage on the vehicle was

more than was reflected by the odometer or certification of the

previous owner and . . . failed to take reasonable steps to

determine the actual mileage.” Haynes v. Manning, 917 F.2d 450,

453 (10th Cir. 1990).

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If a person violates an odometer disclosure

requirement with actual knowledge that he is

committing a violation, [it can be inferred] that

the violation was committed with an intent to

defraud a purchaser. Likewise, if a person lacks

knowledge that an odometer disclosure statement is

false only because he displays a reckless

disregard for the truth, [it can be] infer[red]

that the violation was committed with an intent to

defraud a purchaser. The inference of an intent

to defraud is no less compelling when a person

lacks actual knowledge of a false odometer

statement only by “clos[ing] his eyes to the

truth.”

Tusa v. Omaha Auto. Auction, Inc., 712 F.2d 1248, 1253–54 (8th

Cir. 1983)(citation omitted). See also Haynes, 917 F.2d at 453

(same); Nieto v. Pence, 578 F.2d 640, 642 (5th Cir. 1978)(same).

In addition, “privity is unnecessary between the defrauded

party and the party that violated the [TIMA] with an intent to

defraud.” Tusa, 712 F.2d at 1251 n.2. See also Alley v.

Chrysler Cred. Corp., 767 F.2d 138, 142 (5th Cir. 1985); Ryan v.

E.W. Edwards, Jr., 592 F.2d 756, 761 (4th Cir. 1979)(same). “Nor

does the statute's language require the plaintiff to prove his

reliance on each false statement. . . . The dispositive [issue]

is the transferor's intent to defraud.” Ryan, 592 F.2d at 761. 

Finally, a plaintiff “may recover . . . damages from each

transferor in his chain of title who made false mileage

statements with such intent.” Id. at 761–62. See also Alley,

767 F.2d at 142 (same).

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III. Plaintiff’s Claim Against Grand Prix

In light of Grand Prix’s default Plaintiff's Complaint

establishes Grand Prix purchased the BMW on September 6, 2012,

from Manheim, at which time Manheim advised Grand Prix that the

vehicle was TMU but “represented the mileage as 28,190.” On

October 18, 2012, Grand Prix sold the BMW to “a consumer” and

signed a Secure Odometer Disclosure form, but it did not check

either of the boxes on the Secure Odometer Disclosure form that

indicated “[t]he mileage stated is in EXCESS of its mechanical

limits” or “[t]he odometer reading is NOT the actual mileage. 

WARNING – ODOMETER DISCREPANCY” even though Grand Prix knew the

true mileage of the vehicle was unknown. 

As noted, TIMA requires the transferor of a motor vehicle

either to disclose in writing “the cumulative mileage registered

on the [vehicle's] odometer” or to “[d]isclose [in writing] that

the actual mileage is unknown, if the transferor knows the

odometer reading is different from the number of miles the

vehicle has actually traveled.” 49 U.S.C. § 32705. Grand Prix

did not comply with this provision of TIMA when it sold the

vehicle to “a consumer.” Further, “privity is unnecessary

between the defrauded party and the party that violated the

[TIMA] with an intent to defraud.” Tusa, 712 F.2d at 1251 n.2. 

A plaintiff “may recover . . . damages from each transferor in

his chain of title who made false mileage statements with such

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intent.” Id. at 761–62. Thus, the fact that Plaintiff did not

purchase the vehicle from Grand Prix does not prohibit Plaintiff

from recovering from Grand Prix under TIMA. 

IV. Joinder of Luxmoto

At issue in Plaintiff’s request for a default judgment is

whether Luxmoto is an indispensable party whose interest may be

impaired or impeded if it is not joined in this action. 

Joinder of an absent party is governed by Federal Rule of

Civil Procedure 19, which provides in pertinent part:

(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to

service of process and whose joinder will not

deprive the court of subject-matter jurisdiction

must be joined as a party if:

(A) in that person's absence, the court

cannot accord complete relief among existing

parties; or

(B) that person claims an interest relating

to the subject of the action and is so

situated that disposing of the action in the

person's absence may:

(i) as a practical matter impair or

impede the person's ability to protect

the interest; or

(ii) leave an existing party subject to

a substantial risk of incurring double,

multiple, or otherwise inconsistent

obligations because of the interest.

(2) Joinder by Court Order. If a person has not

been joined as required, the court must order that

the person be made a party. A person who refuses

to join as a plaintiff may be made either a

defendant or, in a proper case, an involuntary

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plaintiff.

* * *

(b) When Joinder Is Not Feasible. If a person who is

required to be joined if feasible cannot be joined, the

court must determine whether, in equity and good

conscience, the action should proceed among the

existing parties or should be dismissed. The factors

for the court to consider include:

(1) the extent to which a judgment rendered in the

person's absence might prejudice that person or

the existing parties;

(2) the extent to which any prejudice could be

lessened or avoided by:

(A) protective provisions in the judgment;

(B) shaping the relief; or

(C) other measures;

(3) whether a judgment rendered in the person's

absence would be adequate; and

(4) whether the plaintiff would have an adequate

remedy if the action were dismissed for

nonjoinder.

Fed. R. Civ. P. 19(a)-(b).

Joinder under Rule 19 requires the court to engage in three

successive inquiries. EEOC v. Peabody W. Coal Co., 610 F.3d

1070, 1078 (9th Cir. 2010). First, the court must determine

whether an absent nonparty qualifies as a person “required to be

joined if feasible” under Rule 19(a). Id. If the nonparty meets

the requirements of Rule 19(a), the second step requires the

court to determine whether it is feasible to order that the

nonparty be joined. Id. If joinder is not feasible, the court

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continues to the third step to determine pursuant to Rule 19(b)

whether the case can proceed without the nonparty or whether the

action must be dismissed. Id. See also Fed. R. Civ. P. 19(b). 

Four factors are relevant to that inquiry: (1) the extent to

which a judgment rendered in the nonparty's absence might

prejudice that nonparty or the existing parties, (2) the extent

to which any prejudice could be lessened or avoided, (3) whether

a judgment rendered in the nonparty's absence would be adequate,

and (4) whether the plaintiff would have an adequate remedy if

the action was dismissed for nonjoinder. Fed. R. Civ. P. 19(b). 

Dismissal is required only when the nonparty has an interest “of

such a nature that a final decree cannot be made without either

affecting that interest, or leaving the controversy in such a

condition that its final termination may be wholly inconsistent

with equity and good conscience.” Id. (quotation omitted). The

moving party has the burden to show that dismissal is required

under Rule 19. Shermoen v. United States, 982 F.2d 1312, 1317

(9th Cir. 1992).

When determining whether an absent party is a required party

under Rule 19(a), the Court must consider (1) whether complete

relief can be granted among the existing parties, (2) whether the

absent party claims an interest that may be impaired or impeded

without the absent party, and (3) whether the absent party claims

an interest that causes the existing party to be at risk of

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multiple or otherwise inconsistent obligations. 

A. Complete relief can be granted among the existing

parties without joinder of Luxmoto.

“Complete relief” in Rule 19(a) refers to relief

between the persons or entities who are already parties to the

litigation rather than between the parties and the absent person

or entity whose joinder is sought. In re Apple iPhone Antitrust

Litig., 874 F. Supp. 2d 889, 894 (N. D. Cal. 2011)(citing Takeda

v. Northerwestern Nat’l Life Ins. Co., 765 F.2d 815, 819 (9th

Cir. 1985)). In addition, “[i]t has long been the rule that it

is not necessary for all joint tortfeasors to be named as

defendants in a single lawsuit.” Ward v. Apple Inc., 791 F.3d

1041, 1048 (9th Cir. 2015)(citing Temple v. Synthes Corp., 498

U.S. 5, 7 (1990)). Thus, under this rule even a joint

“tortfeasor with the usual joint and several liability is merely

a permissive [rather than a required] party to an action against

another with like liability.” Temple, 498 U.S. at 7. 

Here the absence of Luxmoto as a party will not have

any effect on the remedies sought by Plaintiff from the present

parties. Courts have made clear that a relationship such as the

one between Luxmoto and the current Defendants does not rise to

the level of joint tortfeasors because each transaction alleged

in Plaintiff’s Complaint constitutes a separate violation of TIMA

by different Defendants. See, e.g., Alley v. Chrysler Credit

Corp., 767 F.2d 138, 142 (5th Cir. 1985)(When “separate odometer

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statements were issued, each issuer is subject to separate and

individual liability under the Act.”). See also Ryan, 592 F.2d

at 761-62 (“[Plaintiff] may recover the statutory damages from

each transferor in his chain of title who made false mileage

statements with such intent.”); Shaghoian, 228 F. Supp. 2d at

1112 (Plaintiff “may recover . . . damages from each transferor

in his chain of title who made false mileage statements with such

intent.”). Because Plaintiff may recover damages from each

transferor in his chain of title, the entry of a judgment against

Grand Prix would not affect any potential judgment against

Luxmoto in the future. Thus, it is possible for the parties to

obtain complete relief without joinder of Luxmoto.

B. Luxmoto does not claim an interest that would be

impaired or impeded if it is not joined in this action.

The Ninth Circuit has held ““[j]oinder is ‘contingent 

. . . upon an initial requirement that the absent party claim a

legally protected interest relating to the subject matter of the

action.’” Ward, 791 F.3d at 1051 (quoting United States v.

Bowen, 172 F.3d 682, 689 (9th Cir. 1999)(emphasis in original)). 

Thus, when “a party is aware of an action and chooses not to

claim an interest, the district court does not err by holding

that joinder was ‘unnecessary.’” Altmann v. Rep. of Austria, 317

F.3d 954, 971 (9th Cir. 2002)(citation omitted).

Plaintiff served Luxmoto with a copy of the Complaint

in this matter. Luxmoto, however, declined to be a party to the

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action because it has a binding arbitration agreement with

Plaintiff. Luxmoto, therefore, does not claim a legally

protected interest in this action. See, e.g., Bowen, 172 F.3d at

689; Altman, 317 F.3d at 972; Assoc. to Protect Hammersley, Eld,

and Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1015 (9th

Cir. 2002). 

C. Defendants do not risk multiple or inconsistent

obligations if Luxmoto is not joined.

Courts have held under TIMA that “any wrongdoer in the

chain of violations would not be permitted to recover damages

from previous wrongdoers.” Alley, 767 F.2d at 142. Thus, if

Plaintiff were to recover damages from Luxmoto in a separate

action, Luxmoto would not be permitted to recover damages from

any Defendant in this matter. Defendants, therefore, do not risk

liability for multiple or inconsistent obligations if Luxmoto is

not joined.

In summary, the Court concludes Luxmoto is not a required

party pursuant to Rule 19(a). Accordingly, the Court concludes

this matter, including Plaintiff’s request for default judgment

against Grand Prix, may go forward without joinder of Luxmoto.

V. Plaintiff’s Damages

As noted, Plaintiff seeks $20,001.00 in damages from Grand

Prix.

When a responsive pleading is required and the party fails

to respond, the allegations “other than [those] relating to the

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amount of damages” are admitted pursuant to Federal Rule of Civil

Procedure 8(b)(6). In addition, under Federal Rule of Civil

Procedure 55(b)(1) and (b)(2) the Court may enter judgment for

the amount of damages pled when the plaintiff’s “claim is for a

sum certain or a sum that can be made certain by computation.” 

When the plaintiff’s claim is not for a sum certain, the court

“may conduct hearings . . . when . . . it needs to (A) conduct an

accounting; (B) determine the amount of damages; (C) establish

the truth of any allegation by evidence; or (D) investigate any

other matter.” The Ninth Circuit has held “a claim is not a sum

certain unless no doubt remains as to the amount to which a

plaintiff is entitled as a result of the defendant's default.”

Franchise Holding II, LLC v. Huntington Rest. Grp., Inc., 375

F.3d 922, 929 (9th Cir. 2004). Plaintiff concedes the amount of

damages he seeks is not a sum certain. The Court, therefore, has

discretion to conduct a hearing on damages or to make a

determination of damages based on affidavits and documentary

evidence. Graham v. Forever Young Oregon, LLC, No. 03:13-CV01962-HU (D. Or. July 14, 2014).

As noted, TIMA provides “[a] person that violates this

chapter . . . is liable for 3 times the actual damages or

$10,000, whichever is greater.” 49 U.S.C. § 32710(a). Plaintiff

notes he has not been able to find an Oregon case that addresses

the calculation of actual damages under TIMA. Plaintiff,

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therefore, proposes two alternatives for the Court to calculate

actual damages: the out-of-pocket rule or the formula set out in

Klein v. Pincus, 397 F. Supp. 2d 847 (E.D.N.Y. 1975).

A. Damages under the Out-of-Pocket Rule

Plaintiff asserts the closest analogy to TIMA in Oregon

is fraud because “false odometer disclosure is a fraudulent

misrepresentation.” Oregon courts have noted “[i]t is well

established [in Oregon] that in an action for fraud plaintiff’s

recovery is limited to that measured by the ‘out-of-pocket’

rule[, which is] . . . the difference between the price [the

plaintiff] paid for the property and its fair market value at the

time of the sale.” Morasch v. Hood, 232 Or. App. 392, 400

(2009). 

Plaintiff asserts the difficulty in this case is

finding the fair market value of the BMW at the time of the sale

to Plaintiff if the odometer discrepancy had been properly

disclosed at every previous sale. Plaintiff asserts the

diminished value of the BMW due to the odometer discrepancy

“would be more than a mere ‘mileage deduction’ as reported in

various car value guides” because those guides “assume that

mileage readings on automobile odometers are accurate[, that] a

vehicle is clean[,] and that there are no hidden or undisclosed

problems associated with that specific vehicle.” Plaintiff

relies on the declarations of experts to support his position

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that the diminished value would be more than a mere mileage

deduction because “buyers would presumably view such vehicles

with some suspicion, and be aware that if they ever wanted to

sell the vehicle, they would then have to disclose the mileage

discrepancy pursuant to federal law.” Decl. of Young Walgenkim,

Ex. 7 at ¶ 4. In addition, when “the true mileage [of a vehicle]

can be documented, the reduction in value due to odometer

discrepancy may be as little as 25%. However, when true mileage

cannot be determined, the reduction in value can be as high as

65%.” Walgenkim Decl., Ex. 9 at 2. At least “one popular guide

. . . recommend[s] a general reduction in value of 50% for

salvage or odometer branded vehicles.” Id. at 1.

The true mileage of the BMW at issue is unknown. The

exhibits that Plaintiff attached to his Complaint show a Carfax

report from 2015 in which the mileage of the BMW was noted as

31,220 on May 10, 2010. Compl., Ex. 3 at 3. The entry in the

report states mileage on April 28, 2011, was 28,178 and contains

the note “POTENTIAL ODOMETER ROLLBACK.” Id. After April 28,

2011, however, the accuracy of the odometer reading cannot be

established. As noted, Grand Prix purchased the BMW on 

September 6, 2012, at auction from Manheim Auction knowing the

vehicle was TMU. Plaintiff asserts in light of the fact that the

true mileage of the BMW is unknown, a reduction in value of the

BMW of 33% from the price Plaintiff paid for it ($19,995.00) is a

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reasonable compromise between the 25% and 65% reductions cited by

Plaintiff’s expert. A 33% reduction in value from $19,995.00

would be $6,598.00.5

 Three times the actual damages suffered by

Plaintiff calculated in this manner would be $19,795.05.

B. Damages under the Klein v. Pincus Formula

The second method suggested by Plaintiff to calculate

actual damages under TIMA is a formula used by courts in other

districts originated in Klein v. Pincus. In Klein the court

calculated the actual damage resulting from odometer fraud by

subtracting the amount the plaintiff received when he sold the

vehicle and the average depreciation in the vehicle’s value from

the price the plaintiff paid for the vehicle. 397 F. Supp. at

851. The court then trebled the resulting figure to arrive at

the final damages. 

As noted, Plaintiff purchased the BMW for $19,995.00. 

In his Declaration Plaintiff testifies he entered the information

for the BMW on the National Automobile Dealers Association

website and received a report that indicated depreciation for a

BMW in good condition at that time was $2,495.00. Decl. of

Channing Tate at ¶ 6 and Ex. 3 at 1. Plaintiff testifies he also

took the BMW to Carmax who offered him $9,000.00 for the BMW due

to the odometer discrepancy. Tate Decl. at ¶ 7. Applying the

5

 Plaintiff incorrectly states a 33% reduction in value from

$19,995.00 is $6,667.00.

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Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 20 of 29
formula set out in Klein, Plaintiff’s actual damages would be

$19,995.00 less $2,495.00 less $9,000.00 for a total of

$8,500.00. Treble damages as permitted under TIMA, therefore,

would be $25,500.00.

Plaintiff notes he only sought $20,001.00 in treble

damages in his Complaint, which is a conservative estimate

compared to the $25,500 in treble damages that the Klein formula

yields. Nevertheless, Plaintiff continues to assert treble

damages of $20,001.00 are reasonable notwithstanding the higher

amount yielded by the Klein formula.

On this record in which the exact amount of actual

damages to Plaintiff from the odometer discrepancy is unknowable,

the Court concludes the $6,667.00 requested by Plaintiff is a

reasonable estimate of actual damages. The Court, therefore,

awards Plaintiff $20,001.00, which is three times the best

estimate of actual damages that can be achieved on this record. 

PLAINTIFF’S MOTION (#19) FOR AN AWARD

OF ATTORNEY FEES AND COSTS

As noted, in his Motion for An Award of Attorney Fees

Plaintiff originally sought $3,625 in attorneys’ fees. In his

Supplemental Memorandum Plaintiff includes attorneys’ fees to

prepare and to draft the Supplemental Memorandum for a total

request of $9,350.00.

21 - OPINION AND ORDER

Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 21 of 29
I. Plaintiff is entitled to reasonable attorneys' fees.

TIMA provides in pertinent part:

A person may bring a civil action to enforce a

claim under this section in an appropriate United

States district court or in another court of

competent jurisdiction. . . . The court shall

award costs and a reasonable attorney's fee to the

person when a judgment is entered for that person

49 U.S.C. § 32710(b). 

Accordingly, pursuant to § 32710(b) the Court concludes

Plaintiff is entitled to reasonable attorneys' fees and costs in

this matter.

II. Plaintiff is entitled to attorneys' fees in the amount of

$5,890.00.

A. Standards

The Supreme Court has reiterated under federal

fee-shifting statutes such as TIMA that "the lodestar approach"

is "the guiding light" when determining a reasonable fee. Perdue

v. Kenny A., 130 S. Ct. 1662, 1671-73 (2010)(internal quotation

omitted). 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

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

lodestar is sufficient." Id. at 1669. The party seeking an

award of fees bears "the burden of documenting the appropriate

22 - OPINION AND ORDER

Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 22 of 29
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

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).

23 - OPINION AND ORDER

Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 23 of 29
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 Plaintiff’s Motion for

An Award of Attorneys’ Fees.

Plaintiff seeks to recover fees for 31 hours spent by

attorney Walgenkim investigating Grand Prix and the history of

the BMW and drafting Plaintiff’s Motion for Default Judgment,

Plaintiff’s Motion for An Award of Attorney Fees, and Plaintiff’s

Supplemental Memorandum. Because Grand Prix has not appeared in

this action, it also has not objected to Plaintiff’s requested

hourly rates. Nevertheless, the Court has an independent duty to

review a motion for attorneys’ fees for reasonableness. Gates v.

Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). See also Cruz

v. Alhambra Sch. Dist., 282 F. App'x 578, 580 (9th Cir. 2008)(The

district court has an "obligation to articulate . . . the reasons

24 - OPINION AND ORDER

Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 24 of 29
for its findings regarding the propriety of the hours claimed or

for any adjustments it makes either to the prevailing party's

claimed hours or to the lodestar.").

On this record the Court finds the amount of time

expended by Walgenkim on this matter is reasonable. Accordingly,

the Court awards Plaintiff 31 hours of attorney time incurred in

connection with filing the Motion for Default Judgment, the

Motion for An Award of Attorney Fees, and the Supplemental

Memorandum. 

C. Walgenkim’s requested hourly rate.

Walgenkim had three years of experience when he

represented Plaintiff during this action and requests a rate of

$250 per hour. To determine the reasonable hourly rate, this

Court uses the most recent Oregon State Bar Economic Survey

published in 2012 as its initial benchmark. Attorneys may argue

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

other factors. As noted, the Court pointed out in its March 22,

2016, Order that the Oregon State Bar Economic Survey reflects

the rate for an attorney with three years experience practicing

in Salem are considerably less than $250 per hour. Specifically,

the Survey reflects attorneys with 0-3 years of experience

practicing in Salem bill at an average rate of $150. Attorneys

who are in the 75th percentile and 95th percentile bill at a rate

of $175 per hour and $193 respectively. The Court, therefore,

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Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 25 of 29
requested supplemental briefing as to Walgenkim’s requested rate.

In Plaintiff’s Supplemental Memorandum and Declaration

in Support Walgenkim notes he “maintains a Portland office” as

well as an office in Salem. In additon, all Defendants are in

Portland, many of the violations occurred in Portland, and the

case was brought in Portland. According to Walgenkim, therefore,

according to Walgenkim the Portland rate should apply. The Court

agrees and concludes Portland rates should apply.

The Oregon State Bar Economic Survey reflects attorneys

with 0-3 years of experience practicing in Portland bill at an

average rate of $182. Attorneys who are in the 75th percentile

and 95th percentile bill at a rate of $198 per hour and $246

respectively. 

Walgenkim asserts he has practiced in Oregon since

October 2012, has “litigated numerous cases on my own in both

state and federal courts, deposed several witnesses, handled one

bench trial and several arbitrations, and argued one case in the

Oregon Court of Appeals, in which [he] obtained a successful

reversal and remand.” Walgenkim Decl. at ¶ 21. In addition to

his practice experience, Walgenkim has “spoken at a CLE to a

group of consumer lawyers about the verification standard of the

FDCPA, a CLE on basics of Auto Dealer Fraud, and a CLE on the

Magnuson-Moss Warranty Act.” Id. at ¶ 22. Walgenkim has also

been a guest lecturer in the Consumer Law class at Lewis and

26 - OPINION AND ORDER

Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 26 of 29
Clark Law School on the topic of the Unfair Trade Practices Act. 

Walgenkim was also “a member of a rulemaking committee for the

Oregon Administrative Rules concerning Motor Vehicle Price and

Sales Disclosures . . . [and] testified at a legislative hearing

on Oregon car dealers’ financing practices in support of a bill

(SB 276) to regulate lending practices of car dealerships.” Id.

at ¶ 25. Walgenkim asserts he is one of the few attorneys in

Oregon who specialize in consumer litigation against car dealers. 

Finally, Walgenkim notes in January 2014 he was awarded a rate of

$200 per hour in an action in Lane County Circuit Court and a

rate of $175 per hour in a matter before Judge Michael Simon in 

Campista v. Creditors Financial Group, LLC, 3:13-C-00640-SI. 

Walgenkim notes he has received a rate of $250 per hour in

private arbitration and “regularly” receives a rate of $250 “in

settlements.”

The Court notes a rate of $250 per hour would be

equivalent to the rate for the 95th percentile of attorneys with

0-3 years of experience. This matter and this default judgment,

however, involve a relatively uncomplicated civil-litigation

issue rather than a complicated issue of business or corporate

litigation, and, therefore, the Court concludes the 95% rate is

too high. 

On this record the Court concludes, in the exercise of

its discretion, that the average hourly rate of $182 adjusted for

27 - OPINION AND ORDER

Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 27 of 29
inflation to $190 is reasonable. At that rate, the Court awards

attorneys' fees to Plaintiff in the amount of $5,890.00.

PLAINTIFF'S COSTS

Plaintiff requests an award of costs in the amount of

$449.50 comprised of the fee to file this action and services

fees. Grand Prix does not object to Plaintiff’s requested costs.

Absent a showing of circumstances not relevant here, an

award of costs is governed by federal law. See Champion Produce,

Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir.

2003).

28 U.S.C. § 1920 allows a federal court to tax specific

items as costs against a losing party pursuant to Federal Rule of

Civil Procedure 54(d)(1). Section 1920 provides:

A judge or clerk of any court of the United States

may tax as costs the following:

(1) Fees of the clerk and marshal; 

(2) Fees of the court reporter for all or any part

of the stenographic transcript necessarily

obtained for use in the case; 

(3)Fees and disbursements for printing and

witnesses; 

(4)Fees for exemplification and copies of papers

necessarily obtained for use in the case; 

(5)Docket fees under section 1923 of this title; 

(6)Compensation for court-appointed experts,

compensation of interpreters, and salaries, fees,

expenses, and costs of special interpretation

services under § 1828 of this title.

A bill of costs shall be filed in the case and,

upon allowance, included in the judgment or

decree.

28 - OPINION AND ORDER

Case 3:15-cv-02157-PK Document 32 Filed 06/22/16 Page 28 of 29
Costs generally are awarded to the prevailing party in a

civil action as a matter of course unless the court directs

otherwise. Fed. R. Civ. P. 54(d). The court must limit an award

of costs to those defined in 28 U.S.C. § 1920 unless otherwise

provided for by statute. Grove v. Wells Fargo Fin. Ca., Inc.,

606 F.3d 577, 579-80 (9th Cir. 2010). The costs sought by

Plaintiff are specifically allowed under § 1920.

Accordingly, the Court awards costs to Plaintiff in the

amount of $449.50.

CONCLUSION

For these reasons, the Court GRANTS Plaintiff’s Motion (#16)

for Default Judgment as to Grand Prix Motors Only, GRANTS

Plaintiff’s Motion (#19) for an Award of Attorney Fees and Costs

against Grand Prix Motors Only, and AWARDS Plaintiff attorneys’

fees of $5,890.00 and costs of $449.50.

The Court DIRECTS Plaintiff to submit a form of Judgment as

to Defendant Grand Prix consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 22nd day of June, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

29 - OPINION AND ORDER

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