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Shawn Kolitch, OSB No. 063980

Email: shawn@kolitchromano.com

KOLITCH ROMANO LLP

520 SW Yamhill Street, Suite 200

Portland, Oregon 97204

Telephone: (503) 994-1650

Attorney for Defendant

Larry D. Butterfield

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

KEITH MANUFACTURING, CO., an 

Oregon corporation,

Plaintiff,

v.

LARRY D. BUTTERFIELD, an

individual,

Defendant.

Case No. 3:15-cv-02008-SI

DEFENDANT’S SUPPLEMENTAL 

MOTION FOR ATTORNEY FEES AND 

MEMORANDUM IN SUPPORT

LR 7-1 CERTIFICATION

The undersigned counsel for Defendant Larry D. Butterfield (“Butterfield”) certifies that 

counsel for parties met and conferred in a good faith effort to resolve the issues presented in this 

motion, but were unable to do so.

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MOTION

Defendant Larry D. Butterfield (“Butterfield”) hereby moves the Court for attorney fees in 

the amount of $196,881.50. The requested amount includes:

(i) $54,697.00 incurred for time spent successfully defending against Plaintiff’s breach of 

contract claim;

(ii) a fee multiplier of 2.0 applied to Butterfield’s fees for his substantive defense, which 

increases Butterfield’s fee request for the substantive portion of the action from 

$54,697.00 to $109,394.00;

(iii) $22,530.00 incurred for time spent on Butterfield’s original motion for attorney’s fees

and his opposition to Plaintiff’s unsuccessful motion for attorney’s fees;

(iv) $55,207.50 incurred for time spent on Butterfield’s successful appeal and his 

opposition to Plaintiff’s Federal Circuit motion for sanctions; and

(v) $9,750 incurred for time spent preparing the court-ordered joint status report and the 

present motion (subject to increase as briefing continues).

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MEMORANDUM IN SUPPORT OF MOTION

I. RELEVANT PROCEDURAL HISTORY

After Plaintiff Keith Manufacturing Co. (“Keith”) filed a stipulation of dismissal with 

prejudice in this Court pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), both parties moved for an award 

of attorney fees. The Court denied both fee motions, but held that “[b]ut for the . . . absence of a 

judgment, as that term is understood under Rule 54 of the Federal Rules of Civil Procedure, 

Butterfield would have been entitled to his reasonable attorney’s fees incurred in defending against 

Keith’s claim of breach of contract.” Dkt. 43, p. 15. The Court’s conclusion that there had been no 

Rule 54 judgment in this case was based on the Court’s interpretation of Microsoft Corp. v. Baker, 

137 S. Ct. 1702 (2017).

Butterfield filed a timely notice of appeal to the Ninth Circuit, and the parties briefed the 

Ninth Circuit appeal. However, Plaintiff contested Ninth Circuit jurisdiction, and argued that the 

Federal Circuit had exclusive jurisdiction to hear Butterfield’s appeal. The Ninth Circuit 

transferred the appeal to the Federal Circuit, and the parties briefed the appeal for a second time.

Subsequently, Plaintiff filed a motion for sanctions against Butterfield in the Federal Circuit under 

Fed. R. App. P. 38, which the parties also fully briefed. On September 3, 2019, counsel for both 

parties conducted oral argument before the Federal Circuit. On April 7, 2020, the Federal Circuit 

issued its opinion denying Plaintiff’s motion for sanctions, vacating this Court’s opinion and order, 

and remanding the case for further proceedings. On May 20, 2020, this Court ordered the parties 

to file supplemental briefs relating to Butterfield’s motion for attorney fees and any other issues 

the parties feel should be addressed by the Court after remand.

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II. AN ATTORNEY FEE AWARD TO BUTTERFIELD IS MANDATORY

“Under Oregon law the prevailing party is ‘entitled to reasonable attorneys’ fees in addition 

to costs and disbursements’ in any action based on a contract that specifically provides for an 

award of attorney’s fees to the prevailing party.” Copeland-Turner v. Wells Fargo Bank, N.A., 

3:11-cv-37-HZ, at 2 (D. Or. Jan. 11, 2012) (quoting Or. Rev. Stat. § 20.096(1)). Furthermore, after 

establishing that the contract providesfor fee shifting and which party prevailed, an award pursuant 

to Or. Rev. Stat. § 20.096 “is mandatory; the trial court has no discretion to deny it, although it 

does have discretion as to what amount is reasonable.” Benchmark N.W., Inc. v. Sambhi, 83 P.3d 

348, 349 (Or. App. 2004) (citation omitted). 

This Court has already determined that Butterfield is the prevailing party with respect to 

Keith’s breach of contract claim, that the asserted contract provides for an award of attorney fees

to the prevailing party, and that Butterfield would have been entitled to fees but for the Court’s 

conclusion, based on Microsoft v. Baker, that the stipulation of dismissal in this case was not a 

“judgment” for purposes of Rule 54. Dkt. 43, p. 15. On appeal, however, the Federal Circuit 

determined that “Microsoft is inapplicable,” and that the stipulation of dismissal with prejudice in 

this case should be viewed as a judgment for purposes of Rule 54. Dkt. 49, p. 2. Neither party 

appealed any other portion of this Court’s Opinion and Order denying the parties’ original motions

for attorney fees. Accordingly, this Court should now award attorney fees to Butterfield. 

III. LEGAL FRAMEWORK FOR DETERMINING THE AMOUNT OF FEES

Oregon courts generally award attorney fees based on the lodestar method, under which 

courts multiply the reasonable number of hours spent on the case by a reasonable hourly rate. See

Strawn v. Farmers Ins. Co. of Or., 297 P.3d 439, 447-48 (Or. 2013). The lodestar amount may be 

adjusted based on the factors specified in O.R.S. § 20.075. Alexander Mfg., Inc. Emp. Stock 

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Ownership & Tr. v. Ill. Union Ins. Co., 688 F. Supp. 2d 1170, 1181 (D. Or. 2010). In a case such 

as this one, where the Court is required to award fees and has discretion only over the amount of 

the award, O.R.S. § 20.075 requires courts to undertake a two-part inquiry to determine the amount 

of the fee award. First, the Court must consider: 

(a) The conduct of the parties in the transactions or occurrences that gave rise to the 

litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith 

or illegal.

(b) The objective reasonableness of the claims and defenses asserted by the parties.

(c) The extent to which an award of an attorney fee in the case would deter others from 

asserting good faith claims or defenses in similar cases.

(d) The extent to which an award of an attorney fee in the case would deter others from 

asserting meritless claims and defenses.

(e) The objective reasonableness of the parties and the diligence of the parties and their 

attorneys during the proceedings.

(f) The objective reasonableness of the parties and the diligence of the parties in pursuing 

settlement of the dispute.

(g) The amount that the court has awarded as a prevailing party fee under O.R.S. 20.190.

(h) Such other factors as the court may consider appropriate under the circumstances of the 

case.

O.R.S. § 20.075(1). Second, the Court must consider:

(a) The time and labor required in the proceeding, the novelty and difficulty of the questions 

involved in the proceeding and the skill needed to properly perform the legal services.

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(b) The likelihood, if apparent to the client, that the acceptance of the particular 

employment by the attorney would preclude the attorney from taking other cases.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the results obtained.

(e) The time limitations imposed by the client or the circumstances of the case.

(f) The nature and length of the attorney’s professional relationship with the client.

(g) The experience, reputation and ability of the attorney performing the services.

(h) Whether the fee of the attorney is fixed or contingent.

O.R.S. § 20.075(2). 

A party entitled to attorney fees may also recover additional amounts necessarily incurred 

in obtaining an award, or so-called “fees on fees.” See, e.g., Chatelain v. Country Mut. Ins. Co., 

3:15-cv-02013-MO, at 12-17 (D. Or. December 29, 2017) (analyzing and awarding fees on fees).

Finally, in cases where a prevailing party’s counsel achieved exceptional results and/or where 

some or all of the legal work was performed under a contingency fee agreement, the Court may 

award a discretionary fee multiplier. See, e.g., Beck v. Metro. Prop. and Cas. Ins. Co., 3:13-cv00879-AC, at 44-45 (D. Or. Sept. 16, 2016) (stating “Oregon law permits an enhancement of fees 

when it is supported by the facts and circumstances of the case” and applying a multiplier of 2.0 

to a portion of the prevailing party’s fee award).

IV. BUTTERFIELD’S REQUESTED FEES ARE REASONABLE BASED ON THE 

LODESTAR FACTORS 

A. Apportionment of Time Spent Substantively Defending the Action

Butterfield seeks $54,697 incurred for 123.8 hours spent defending against Plaintiff’s 

breach of contract claim. As shown in Exhibit A to the Declaration of Shawn J. Kolitch in Support 

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of Butterfield’s Supplemental Motion for Attorney’s Fees (“Kolitch Decl.”), the requested amount 

includes 101.3 hours billed by Mr. Kolitch at his 2016 rate of $440 per hour and 22.5 hours billed 

by Mr. Kolitch at his 2017 rate of $450 per hour. The requested amount excludes paralegal time,

and excludes time Mr. Kolitch spent specifically on other claims of the action. Kolitch Decl., ¶ 8, 

Ex. A.

Although Butterfield is only entitled to recover attorney fees for defending against 

Plaintiff’s breach of contract claim, the attorney time for which Butterfield seeks to recover fees 

cannot reasonably be attributed to Plaintiff’s other claims. Under Oregon law, when “there are 

common issues among the claims, it may not be necessary to apportion the fees between the claim 

on which the party succeeded and those on which the party did not.” Freedland v. Trebes, 986 

P.2d 630, 632 (Or. App. 1999). In that case, “the court might conclude that it would have taken 

roughly the same amount of time to litigate a case in which the successful claim was the sole claim 

as it took to litigate the case in which it was one among several claims.” Id. 

In the present case, Butterfield’s time spent defending the action would have been roughly 

the same if Plaintiff had asserted only a breach of contract claim, and Butterfield has accounted 

for any differences by excluding time entries from his fee request which relate solely to the other 

claims of the action. As Plaintiff alleged in its Complaint, “[a]ll the causes of action set forth in 

this complaint arise from Butterfield’s breach of his employment contract with Keith.” 

Dkt. 21, ¶ 9.

Specifically, Plaintiff’s allegation that “Butterfield breached his employment contract with 

Keith by threatening Keith with a patent infringement action on a patent that Keith either owns or 

has a royalty-free right to use pursuant to specifically stated terms of Butterfield’s employment 

contract with Keith” gave rise to Plaintiff’s declaratory judgment patent claims. (Dkt. 21, ¶ 70) 

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(Emphasis added). Plaintiff’s allegation that “[b]ecause he was a fulltime Keith employee and had 

executed an employment agreement, Butterfield owed Keith a duty to limit use of Keith’s 

confidential information to Keith’s business activities and not use such information for 

Butterfield’s independent business that both competed with Keith and diverted business away from 

Keith” gave rise to Plaintiff’s trade secret claim. (Dkt. 21, ¶ 80) (Emphasis added). Plaintiff’s 

allegation that “Butterfield breached his employment contract with Keith by unilaterally filing a 

patent application on a design that was developed using Keith’s time, materials, and facilities” 

gave rise to Plaintiff’s patent inventorship claim. (Dkt. 21, ¶ 69) (Emphasis added). The asserted 

contract itself states that “[i]n case litigation is instituted, rising directly or indirectly out of this 

Agreement, the losing party shall pay to the prevailing party his or her reasonable attorney’s fees, 

both at trial and appellate levels.” Dkt. 34-1, p. 9, Sec. 15 (Emphasis added).

Because all of Plaintiff’s causes of action relied upon Butterfield’s alleged breach of his 

employment contract, general litigation activities such as (for example) settlement discussions and 

discovery were fundamentally related to Plaintiff’s breach of contract claim, and time spent on 

those activities cannot reasonably be apportioned to other claims. Accordingly, having excluded 

time spent exclusively on other claims of the action, the remaining attorney time can all reasonably 

be attributed to defending against Plaintiff’s breach of contract claim. The Court can readily 

conclude that 123.8 hours is a reasonable amount of attorney time to litigate a breach of contract 

claim that was brought against Butterfield on October 23, 2015 and dismissed with prejudice 18 

months later, on April 21, 2017.

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B. Application of Lodestar Factors to Butterfield’s Substantive Defense

Applying the lodestar factors of O.R.S. § 20.075(1)-(2) to Butterfield’s substantive defense

of the case demonstrates the reasonableness of the amount Butterfield requests for this phase of 

the litigation. With respect to the factors listed in O.R.S. § 20.075(1):

(a) The conduct of the parties in the transactions or occurrences that gave 

rise to the litigation, including any conduct of a party that was reckless, 

willful, malicious, in bad faith or illegal.

Butterfield believes that Plaintiff’s conduct giving rise to the present litigation indicates 

that Plaintiff brought the action in bad faith. Specifically, in Oregon State Case No. 10CV0023, 

filed March 18, 2010, Plaintiff alleged breach of contract and trade secret claims virtually identical 

to the corresponding claims of the present action. See Dkt. 23-2 & 23-3, pp. 12-19. Plaintiff

voluntarily dismissed its prior state court action on November 1, 2010, and then waited five years 

to bring the same claims against Butterfield in federal court, only to voluntarily dismiss its claims 

yet again. The Court should find this duplicative and vexatious litigation to be an indication of

Plaintiff’s bad faith. Plaintiff’s subsequent litigation behavior and voluntary dismissal demonstrate

that Plaintiff never intended to follow this action to its conclusion on the merits, but rather brought 

the action as a form of legal and financial harassment against its former employee Butterfield.

(b) The objective reasonableness of the claims and defenses asserted by the 

parties.

The Court can easily conclude that Plaintiff’s claims were objectively unreasonable.

Despite having previously alleged the same state law claims against Butterfield five years earlier, 

Plaintiff never elicited any evidence of breach of contract or specified the provisions of the contract 

allegedly breached, never articulated a single trade secret with specificity (much less produced 

proof of Butterfield’s misappropriation), never produced any evidence of patent inventorship, and 

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baselessly opposed Butterfield’s motion to dismiss its declaratory judgment claims despite case 

law clearly demonstrating the claims should be dismissed. In later phases of the action, Plaintiff 

filed baseless and retaliatory motions for attorney fees and sanctions in both this Court and the 

Federal Circuit.

(c) The extent to which an award of an attorney fee in the case would deter 

others from asserting good faith claims or defenses in similar cases.

There would be no chilling effect against good faith claims or defenses resulting from an 

attorney fee award in this case. Plaintiff stipulated to dismissal of all of its claims with prejudice 

without reaching an agreement with the opposing party about fee shifting. A party asserting good 

faith claims could simply choose not to do this.

(d) The extent to which an award of an attorney fee in the case would deter 

others from asserting meritless claims and defenses.

An attorney fee award in this case would signal to plaintiffs that they cannot bring baseless 

and duplicative litigation for anti-competitive or retributive purposes, and then voluntarily dismiss 

their claims later without consequences. Accordingly, a fee award in this case would create a 

valuable deterrent against frivolous and vexatious litigation.

(e) The objective reasonableness of the parties and the diligence of the 

parties and their attorneys during the proceedings.

Plaintiff and its attorneys were objectively unreasonable and far from diligent during the 

litigation proceedings. Plaintiff refused to participate meaningfully in discovery in the case, never 

produced or elicited any evidence in support of its claims, refused to schedule a Rule 16 

conference, and ignored repeated requests to propose a protective order or to meet and confer about 

the issue. See generally Dkt. 34-3. In response to Butterfield’s discovery requests seeking 

identification of the contract provisions he allegedly breached and the trade secrets he allegedly 

misappropriated, Plaintiff stated that more discovery from Butterfield was necessary before 

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Plaintiff could provide any such details about its own claims. When Butterfield’s counsel finally 

demanded that the parties meet and confer regarding a Rule 16 conference, a motion for protective 

order, a motion to compel Plaintiff to supplement its interrogatory answers, and a motion to dismiss 

the action for failure to prosecute, Plaintiff’s counsel abruptly announced that Plaintiff wished to 

dismiss the action voluntarily. Id. This was 18 months after Plaintiff had commenced the action.

Plaintiff also filed a baseless and retaliatory motion for attorney fees in this Court (Dkt. 35) 

and a baseless motion for sanctions and attorney fees in the Federal Circuit (Fed. Cir. Case No. 

19-1136, Dkt. 28), both of which were objectively unreasonable and both of which were summarily 

denied.

(f) The objective reasonableness of the parties and the diligence of the 

parties in pursuing settlement of the dispute.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(g) The amount that the court has awarded as a prevailing party fee under 

O.R.S. 20.190.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(h) Such other factors as the court may consider appropriate under the 

circumstances of the case.

Butterfield is not aware of other relevant factors in the Court’s inquiry.

With respect to the factors listed in O.R.S. § 20.075(2):

(a) The time and labor required in the proceeding, the novelty and 

difficulty of the questions involved in the proceeding and the skill 

needed to properly perform the legal services.

Plaintiff asserted state law claims for breach of contract and trade secret misappropriation, 

and federal claims for patent noninfringement, invalidity and correction of inventorship.

Accordingly, litigating this case on Butterfield’s behalf required general litigation skill, technical 

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ability sufficient to understand the technology of the patent at issue in the case, and specialized 

intellectual property knowledge and litigation skill.

(b) The likelihood, if apparent to the client, that the acceptance of the 

particular employment by the attorney would preclude the attorney 

from taking other cases.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(c) The fee customarily charged in the locality for similar legal services.

Mr. Kolitch’s hourly rates are consistent with the rates identified in the Oregon State Bar’s

Economic Survey. For civil litigation defense excluding insurance defense, the 2017 survey, which 

provides 2016 attorney billing rates, lists $327 per hour as the average Portland rate and $540 per 

hour as the 95th percentile rate. Kolitch Decl., ¶¶ 19-20, Ex. B. Mr. Kolitch’s rate during the 

substantive defense of this action was $440 in 2015-2016 and $450 in 2017. Kolitch Decl. ¶ 21. 

Above average rates are reasonable in a case that includes intellectual property claims, as 

intellectual property litigators are highly specialized and typically command relatively high rates 

as a result. Mr. Kolitch believes his hourly rates are average or below average for experienced 

intellectual property litigators in Portland. Kolitch Decl. ¶ 22. 

In addition, above-average hourly rates are supported by the fact that Mr. Kolitch litigated 

this case under a quasi-contingency fee arrangement. See Roberts v. Interstate Distributor Co., 

242 F.Supp.2d 850, 858 (D. Or. 2002) (“the probable appeal that necessarily accompanies such 

contingent-fee cases also weighs in favor of a higher hourly rate.”). The fee arrangement in this 

case is described in detail below with respect to factor (h).

(d) The amount involved in the controversy and the results obtained.

Plaintiff never alleged any specific amount of damages, but sought actual damages, 

injunctive relief, invalidation or ownership of Butterfield’s patent, attorney’s fees and costs, and 

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punitive damages. Dkt. 21, p. 15. Plaintiff did not obtain any of its requested relief. Butterfield’s 

counsel obtained dismissal of Plaintiff’s declaratory judgment patent claims over Plaintiff’s 

opposition, and dismissal with prejudice of all of Plaintiff’s remaining claims. There was no 

settlement, and Butterfield made no concessions in the case. Thus, the stakes in this case were 

extremely high for Butterfield, and the results obtained on his behalf were extraordinarily good.

(e) The time limitations imposed by the client or the circumstances of the 

case.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(f) The nature and length of the attorney's professional relationship with 

the client.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(g) The experience, reputation and ability of the attorney performing the 

services.

According to PACER data, prior to commencement of this action, Butterfield’s counsel 

Mr. Kolitch had been counsel of record in 44 other federal district court actions over the previous 

decade, including 36 in the District of Oregon. Kolitch Decl., ¶¶ 23-24, Ex. C. Mr. Kolitch is also 

a registered patent attorney with the USPTO and has a doctorate degree in physics, a master’s 

degree in applied physics, and an undergraduate degree in applied mathematics. Kolitch Decl.,

¶ 2. Mr. Kolitch therefore has a combination of federal court litigation experience, the background 

and qualifications to handle the patent law and technology aspects of this case, and (as far as he is 

aware) a faultless professional reputation.

(h) Whether the fee of the attorney is fixed or contingent.

The fee agreement between Butterfield and his attorneys for this action can best be 

described as a quasi-contingency arrangement. Specifically, Butterfield was billed at hourly rates 

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throughout the litigation, and paid all invoices he received before the dismissal of the action on 

April 21, 2017, paying a total of $52,278.00 for legal services performed through March 7, 2017.

Kolitch Decl. ¶ 9, Ex. A. After the case was dismissed, Butterfield and Mr. Kolitch (with the 

agreement of Mr. Kolitch’s firm) agreed that Mr. Kolitch would file a motion for attorney fees and 

continue to bill Butterfield for attorney and law clerk time at normal hourly rates, but with no 

expectation of payment unless the motion was successful.1 Kolitch Decl., ¶¶ 10-11. After the Court 

denied Butterfield’s original fee motion, Butterfield and Mr. Kolitch agreed to extend this 

contingency arrangement through the subsequent appeal. Kolitch Decl., ¶ 14.

Accordingly, payment of all of Butterfield’s attorney fees incurred after March 7, 2017 is

fully contingent on Butterfield’s recovery of a fee award from Keith. Under Oregon law, this 

contingency fee arrangement weighs in favor of a higher hourly rate. See Roberts, 242 F.Supp.2d 

at 859 (D. Or. 2002) (“the Court finds the contingent nature and the novelty of the legal issues in 

this particular case justify a higher rate”).

C. Application of Lodestar Factors to Butterfield’s Fees on Fees

Butterfield requests $22,530 for 91.3 hours of time spent on briefing Butterfield’s original 

attorney fee motion and Keith’s competing fee motion. This includes 29.9 hours spent by Mr. 

Kolitch at an hourly rate of $450 and 61.4 hours spent by law clerks at an hourly rate of $150.

Kolitch Decl., ¶ 12, Ex. A. Butterfield further requests $55,207.50 incurred for 169.7 hours spent 

1 The discrepancy between the $52,278.00 in fees paid by Butterfield and the $54,847.00 

Butterfield requests for the substantive defense of the action is due to the fact that when Butterfield 

and Mr. Kolitch came to their contingency fee agreement on April 21, 2017, Butterfield had not 

yet been billed for a small amount of incurred fees. Mr. Kolitch agreed to include these incurred 

but unbilled fees in the contingency. Kolitch Decl., ¶¶ 8-11.

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on Butterfield’s successful appeal and his opposition to Plaintiff’s unsuccessful motion for 

sanctions. This includes 14.3 hours spent by Mr. Kolitch at his 2017 hourly rate of $450, 77.7 

hours spent by Mr. Kolitch at his 2018-2019 hourly rate of $475, 0.6 hours spent by Mr. Kolitch 

at his 2020 hourly rate of $500, and 77.10 hours spent by law clerks at an hourly rate of $150.

Kolitch Decl., ¶ 15, Ex. A.

Finally, Butterfield requests $9,750 for 19.5 hours spent to date on preparing and filing the 

court-ordered joint status report and briefing the present motion at Mr. Kolitch’s current hourly 

rate of $500. Kolitch Decl. ¶ 18, Ex. A. This brings Butterfield’s total “fees on fees” request to 

$87,487.50, subject to increase as briefing continues. As described below, application of the 

lodestar factors demonstrates that this amount is reasonable under the circumstances of this case.

(a) The conduct of the parties in the transactions or occurrences that gave 

rise to the litigation, including any conduct of a party that was reckless, 

willful, malicious, in bad faith or illegal.

With respect to Butterfield’s requested “fees on fees” award, Plaintiff’s conduct is 

responsible for a significant portion of Butterfield’s requested amount. Specifically, out of a total 

of 91.3 hours and $22,530 requested for the attorney fee briefing phase of the action in this Court, 

Butterfield’s counsel and law clerks spent 71.5 hours and $14,055 replying to Plaintiff’s

arguments, responding to Plaintiff’s unsuccessful motion for attorney fees, and researching 

Plaintiff’s threatened (but never filed) Rule 11 motion. Kolitch Decl., ¶ 13, Ex. A.

Similarly, out of a total of 169.7 hours and $55,207.50 requested for the appellate work in 

the case, Butterfield’s counsel and law clerks spent 27.5 hours and $13,062.50 re-briefing 

Butterfield’s appeal to the Federal Circuit after Plaintiff contested Ninth Circuit jurisdiction, and 

23.1 hours and $10,972.50 opposing Plaintiff’s unsuccessful Rule 38 motion for sanctions in the 

Federal Circuit. Kolitch Decl., ¶ 16, Ex. A. Butterfield’s counsel also spent significant but 

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unquantified time preparing for oral argument relating to Plaintiff’s motion for sanctions, although 

neither Plaintiff’s counsel nor the Federal Circuit panel ever mentioned the sanctions motion 

during oral argument. Kolitch Decl., ¶ 17.

(b) The objective reasonableness of the claims and defenses asserted by the 

parties.

In the post-dismissal (“fees on fees”) phase of this action, Plaintiff filed a motion for 

attorney fees in this Court, despite the fact that all of Plaintiff’s claims had been dismissed and 

there was no reasonable basis for Plaintiff to seek fees. The Court denied Plaintiff’s motion.

Plaintiff subsequently filed a motion for sanctions in the Federal Circuit based on the purported 

frivolousness of Butterfield’s appeal, although the Tenth Circuit had already ruled consistently 

with Butterfield’s position and the Federal Circuit had never addressed the issue under appeal. The 

Federal Circuit ruled in Butterfield’s favor on the substance of the appeal, and summarily 

dismissed Plaintiff’s sanctions motion in a footnote. This Court can conclude that both of 

Plaintiff’s motions were objectively unreasonable, and that they significantly increased the postdismissal attorney fees Butterfield incurred in this action.

(c) The extent to which an award of an attorney fee in the case would deter 

others from asserting good faith claims or defenses in similar cases.

Butterfield sees no such deterrent effect resulting from an award of his requested fees on 

fees, when Plaintiff chose to file frivolous and retaliatory motions for attorney fees and sanctions.

A party acting in good faith would not have filed these motions.

(d) The extent to which an award of an attorney fee in the case would deter 

others from asserting meritless claims and defenses.

An award to Butterfield for the post-dismissal phase of this action would deter parties from 

filing frivolous attorney fee and sanctions motions.

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(e) The objective reasonableness of the parties and the diligence of the 

parties and their attorneys during the proceedings.

Butterfield does not believe Plaintiff or its counsel was objectively reasonable or diligent 

during the post-dismissal phase of the case. As already noted, Plaintiff filed frivolous and 

retaliatory motions for fees and sanctions in both this Court and the Federal Circuit. In addition, 

after contesting Butterfield’s appeal and filing a motion for sanctions in the Federal Circuit, 

Plaintiff’s counsel did not say a single word during oral argument about the substance of Plaintiff’s 

position in the appeal or the basis for Plaintiff’s motion for sanctions. Kolitch Decl., ¶ 17.

(f) The objective reasonableness of the parties and the diligence of the 

parties in pursuing settlement of the dispute.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(g) The amount that the court has awarded as a prevailing party fee under 

O.R.S. 20.190.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(h) Such other factors as the court may consider appropriate under the 

circumstances of the case.

Butterfield is not aware of any other factors relevant to the Court’s inquiry.

With respect to the factors listed in O.R.S. § 20.075(2):

(a) The time and labor required in the proceeding, the novelty and 

difficulty of the questions involved in the proceeding and the skill 

needed to properly perform the legal services.

Briefing and arguing Butterfield’s successful appeal, and opposing Plaintiff’s unsuccessful 

motions for attorney fees and sanctions, required significant time, labor and skill beyond that of a 

typical litigator. Indeed, while Butterfield’s counsel Mr. Kolitch handled both the district court 

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proceedings and the appeal in this action, Plaintiff retained a specialized appellate attorney to brief 

the appeal.

2

(b) The likelihood, if apparent to the client, that the acceptance of the 

particular employment by the attorney would preclude the attorney 

from taking other cases.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(c) The fee customarily charged in the locality for similar legal services.

Mr. Kolitch’s hourly rates during the post-dismissal (fees on fees) phase of the action are 

consistent with those identified in the Oregon State Bar’s Economic Survey. As noted previously, 

for civil litigation defense excluding insurance defense, the 2017 survey, which provides 2016 

attorney billing rates, lists $327 per hour as the average Portland rate and $540 per hour as the 95th 

percentile rate. Kolitch Decl., ¶ 20, Ex. B. Assuming an increase of three percent per year, the 

average rate would be $337 in 2017, $347 in 2018, $357 in 2019 and $368 in 2020, while the 95th 

percentile rate would be $556 in 2017, $573 in 2018, $590 in 2019 and $608 in 2020. Mr. Kolitch’s 

rate was $450 in 2017, $475 in both 2018 and 2019, and $500 in 2020. Kolitch Decl., ¶ 21. While 

above average, Mr. Kolitch’s rates are far less than the 95th percentile rates. Above average hourly 

rates are reasonable for complex federal court litigation and appellate work, particularly when 

performed on contingency.

(d) The amount involved in the controversy and the results obtained.

The amount at stake in the attorney fee and appellate portions of the litigation can 

reasonably be viewed as the sum of the attorney fees for both parties, since both parties moved for 

2 Plaintiff’s appellate attorney, Rebecca A. Copeland, withdrew as counsel of record in the appeal 

on December 12, 2019, and is now apparently a state court judge in Hawaii.

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fees (Plaintiff moved for fees in both this Court and the Federal Circuit). This amount is at least 

$196,881.50 (Butterfield’s requested fees), and would presumably be significantly higher if

Plaintiff’s fees were included. With respect to the results obtained in the post-dismissal phase of 

the action, Butterfield’s appeal was successful, and it appears that Butterfield will be awarded fees 

while both of Plaintiff’s fee motions were denied.

(e) The time limitations imposed by the client or the circumstances of the 

case.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(f) The nature and length of the attorney's professional relationship with 

the client.

Butterfield does not believe this is a relevant factor in the Court’s inquiry.

(g) The experience, reputation and ability of the attorney performing the 

services.

This factor was discussed previously in the context of Butterfield’s substantive defense. In 

addition, since this action was commenced, according to PACER data, Butterfield’s counsel Mr. 

Kolitch has appeared as counsel of record in 11 additional federal district court actions, including 

five additional actions in the District of Oregon. Kolitch Decl., ¶ 25, Ex. C.

(h) Whether the fee of the attorney is fixed or contingent.

As described previously, Butterfield and Mr. Kolitch had a quasi-contingent fee 

arrangement, with all fees billed after dismissal of the case fully contingent on the success of 

Butterfield’s attorney fee motion and subsequent appeal. Thus, Mr. Kolitch performed all “fees on 

fees” work with no expectation of any payment unless successful. This was a high-risk proposition 

that weighs in favor of both a higher hourly rate and recovery of the entirety of Butterfield’s 

requested amount of fees.

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V. A FEE MULTIPLIER IS APPROPRIATE

Under Oregon law, the Court has discretion to apply a fee multiplier to Butterfield’s 

requested regular attorney fees. See Vanvalkenburg v. Or. Dep't of Corrs., 3:14-cv-00916-MO, at 

10 (D. Or. 2017) (“it is clear under Oregon case law that I have discretion to award an enhancement 

to [the prevailing party]’s requested regular attorney fees in the form of a fee multiplier.”). This 

Court has found attorney performance and the risk associated with a contingency fee agreement to 

be relevant factors in determining whether to adopt a fee multiplier. See Foraker v. USAA Cas. 

Ins. Co., 3:14-cv-87-SI, at 16 (D. Or. 2018) (quoting Moro v. State, 360 Or. 467, 491 (2016)) (“a 

fee multiplier may be justified to account for the risk of nonpayment in a contingency fee case”); 

Vanvalkenburg at 3 (“a fee multiplier is appropriate in this case based on the risk involved in this 

case and the performance of [the prevailing party]’s attorneys.”).

This Court has awarded fee multipliers in the range of 1.25 to 2.0. See Zweizig v. Nw. 

Direct Teleservices, Inc., 3:15-cv-02401-HZ, at 18-19 (D. Or. Nov. 11, 2019) (awarding a fee 

multiplier of 1.25); Foraker at 17 (“the Court finds that a fee multiplier of 1.5 is appropriate”); 

Vanvalkenburg at 13 (“I find a fee multiplier of 1.75 to be appropriate in this case”); Beck v. Metro. 

Prop. and Cas. Ins. Co., 3:13-cv-00879-AC, at 45 (D. Or. Sept. 16, 2016) (awarding a fee 

multiplier of 2.0 to a portion of the requested fees). For the following reasons, Butterfield requests 

a fee multiplier of 2.0.

With respect to attorney performance, Butterfield believes the outcome of the action 

indicates exceptional performance. Plaintiff’s declaratory judgment claims were dismissed over 

Plaintiff’s objections, Plaintiff voluntarily dismissed all of its remaining claims with prejudice, 

Plaintiff’s motions for fees and sanctions were denied by both this Court and the Federal Circuit, 

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and Butterfield’s Federal Circuit appeal was successful. Accordingly, the Court should find that 

Butterfield’s counsel achieved exceptional results in this case.

In addition, Butterfield’s counsel performed much of the work involved in this action on 

full contingency. Specifically, in an attempt to recover some of the $52,278 in fees Butterfield paid 

before the dismissal of the action, Butterfield’s counsel (i) filed Butterfield’s motion for attorney 

fees, (ii) defended against Plaintiff’s competing fee motion, (iii) briefed Butterfield’s appeal to the 

Ninth Circuit and the Federal Circuit, (iv) argued before the Federal Circuit, and (v) defended 

against Plaintiff’s Federal Circuit motion for sanctions, all without payment and with a significant 

risk there would never be any payment forthcoming.

Accordingly, in view of the performance of Butterfield’s counsel, the significant risk of 

pursuing a fee award for Butterfield on full contingency, and consistent with Oregon law, 

Butterfield requests that a fee multiplier of 2.0 be applied to his $54,697 in attorney fees incurred 

for the substantive defense of this action, which increases Butterfield’s fee request for the 

substantive portion of the action from $54,697 to $109,394.

VI. CONCLUSION

Butterfield’s requested fee award is consistent with Oregon law and is reasonable under

the circumstances of this case. Specifically, when determining Butterfield’s fee award, the Court 

can consider, without limitation:

(1) the complex mix of state and federal claims brought by Plaintiff;

(2) the combination of federal court litigation experience and technical qualifications of 

Butterfield’s counsel;

(3) the exceptional results achieved by Butterfield’s counsel; 

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(4) the fact that most of the time spent on Butterfield’s substantive defense cannot 

reasonably be apportioned among Plaintiff’s claims, and all post-dismissal time spent 

on the case can be entirely attributed to seeking fees for defending against Plaintiff’s 

breach of contract claim and countering Plaintiff’s frivolous arguments and motions; 

(5) the significant risk of non-payment associated with the contingent fee arrangement that 

was in place for the post-dismissal portions of the action; 

(6) Plaintiff’s objectively unreasonable litigation behavior, including the duplicative and 

vexatious nature of this action, Plaintiff’s failure to prosecute the action, and Plaintiff’s 

baseless and retaliatory motions for attorney fees and sanctions; and 

(7) the value of deterring parties and their counsel from similar litigation behavior in the 

future.

In view of these considerations, among others, Butterfield requests that the Court exercise its 

discretion and award Butterfield fees in the amount of $196,881.50, plus any additional fees 

Butterfield incurs before the Court determines the fee award.

DATED: June 2, 2020.

Respectfully submitted, 

KOLITCH ROMANO LLP

By s/ Shawn Kolitch

Shawn Kolitch, OSB No. 063980

Email: shawn@kolitchromano.com

520 SW Yamhill Street, Suite 200

Portland, Oregon 97204

Telephone: (503) 994-1650

Attorney for Defendant

Larry D. Butterfield

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