1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LINCK BERGEN,

No. 3:16-cv-00052-HZ

Plaintiff/

Counter Defendant,

OPINION & ORDER

v.

TUALATIN HILLS SWIM CLUB, INC.,

Defendant/

Counter Claimant.

Fred W. Anderson

Anderson & Anderson

330 NE Lincoln

Hillsboro, OR 97124

Attorney for Plaintiff

Caroline R. Guest

Kathryn P. Roberts

Ogletree Deakins Nash Smoak & Stewart P.C.

222 SW Columbia Street, Suite 1500

Portland, OR 97201

Attorneys for Defendant

Case 3:16-cv-00052-HZ Document 29 Filed 05/11/16 Page 1 of 9
2 – OPINION & ORDER

HERNÁNDEZ, District Judge:

Plaintiff Linck Bergen filed claims against Defendant Tualatin Hills Swim Club, Inc., in 

Washington County Circuit Court. Defendant removed the case to federal court, arguing that the 

Employment Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001–1461 (ERISA),

preempted the state law claims. In an opinion dated March 16, 2016, this Court remanded the 

case to state court for lack of federal jurisdiction, deferring resolution of Plaintiff’s request for 

attorney’s fees pending the parties’ submission of further briefing on the issue.

Pursuant to 28 U.S.C. § 1447(c), Plaintiff now moves for attorney’s fees of $9,320 in 

connection with removal and remand. For the reasons discussed below, Plaintiff’s request for 

attorney’s fees is granted in part and denied in part.

STANDARDS

1. Attorney’s Fees on Remand

The question of whether to grant attorney’s fees on remand to state court “should turn on 

the reasonableness of the removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).

“Absent unusual circumstances, courts may award attorney fees under § 1447(c) only where the 

removing party lacked an objectively reasonable basis for seeking removal. Conversely, when 

an objectively reasonable basis exists, fees should be denied.” Id. Removal is not objectively 

unreasonable solely because the removing party’s arguments lack merit and the removal is 

ultimately unsuccessful. Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 

2008); see also Patel v. Del Taco, Inc., 446 F.3d 996, 999–1000 (9th Cir. 2006) (suggesting that 

a frivolous basis for removal justifies an award of attorney’s fees).

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3 – OPINION & ORDER

2. Attorney’s Fees Generally

The lodestar method, which requires multiplying a reasonable hourly rate by the number 

of hours reasonably expended on the case, is the starting point for the calculation of attorney’s

fees. Shirrod v. Dir., Office of Workers’ Comp. Programs, 809 F.3d 1082, 1086 (9th Cir. 2015). 

The lodestar method seeks to “produce an award that roughly approximates the fee that the 

prevailing attorney would have received if he or she had been representing a paying client who 

was billed by the hour in a comparable case.” Id.

To calculate the lodestar, the court first multiplies the number of hours the prevailing 

party reasonably expended on the litigation by a reasonable hourly rate. Staton v. Boeing Co., 

327 F.3d 938, 969 (9th Cir. 2003). Then, if circumstances warrant, the court adjusts the lodestar 

to account for the Kerr factors not subsumed within the initial lodestar calculation.1 Fischer v. 

SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (citing Kerr v. Screen Extras Guild, Inc., 526

F.2d 67, 70 (9th Cir. 1975)). A “strong presumption” exists that the lodestar figure represents a 

“reasonable fee,” and therefore, it should only be enhanced in “rare and exceptional cases.” 

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). 

While it is not necessary to detail every numerical calculation, and across-the-board percentage 

adjustments are permissible, the court must provide “enough of an explanation to allow for 

meaningful review of the fee award.” Sorenson v. Mink, 239 F.3d 1140, 1146 (9th Cir. 2001). 

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1

Factors subsumed within the lodestar include the novelty and complexity of the issues, special skill and 

experience of counsel, quality of the representation, results obtained, and the superior performance of 

counsel. D’Emanuele v. Montgomery Ward & Co., 904 F.2d 1379, 1383 (9th Cir. 1990).

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4 – OPINION & ORDER

DISCUSSION

1. Removal Not Objectively Reasonable

As an initial matter, the Court found, in its decision remanding the case back to state 

court, that removal was not objectively reasonable, and thus, Plaintiff was entitled to reasonable 

attorney’s fees. Defendant contends that the Court’s award of attorney’s fees was improper 

because removal was not objectively unreasonable. Def.’s Resp. 3, ECF No. 21. However, 

Defendant brings no new evidence or argument to support this contention. 

As the Court stated in its decision, Defendant’s argument that ERISA preempted 

Plaintiff’s state law claims, even if Plaintiff sought unpaid retirement benefits, was objectively 

unreasonable because such preemption is foreclosed by law. See Aetna Health v. Davila, 542 

U.S. 200, 210 (2004) (holding that a state law claim is preempted by ERISA only when an 

individual could have brought the claim under ERISA § 502(a)(1)(B) and “there is no other 

independent legal duty that is implicated by a defendant’s actions....”). Davila’s two-prong test 

is conjunctive, so both prongs must be satisfied for a state law claim to be preempted. Marin 

General Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 947 (9th Cir. 2009).

As discussed in the Court’s order remanding the case, Plaintiff’s claim did not satisfy 

either of the Davila test’s prongs. Defendant’s removal of the case was objectively unreasonable 

in the light of the Supreme Court’s Davila test and the Ninth Circuit’s conjunctive approach to 

the test. Therefore, Plaintiff is entitled to reasonable attorney’s fees. 

2. Attorney’s Fees

A. Hours Reasonably Expended

The burden is on the fee claimant to demonstrate that the number of hours spent on the 

case was “reasonably necessary” to the litigation and that counsel made a “good faith effort” to 

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5 – OPINION & ORDER

exclude hours that were “excessive, redundant, or otherwise unnecessary[.]” Hensley v. 

Eckerhart, 461 U.S. 424, 434 (1983); see also Frank Music Corp. v. Metro–Goldwyn–Mayer, 

Inc., 886 F.2d 1545, 1557 (9th Cir. 1989) (fee claimant “bear[s] the burden of showing the time 

spent and that it was reasonably necessary” to the successful litigation of its claims).

Plaintiff initially sought reimbursement for 23.3 hours spent in the course of the removal 

and remand proceedings. However, Plaintiff later reduced the number of hours to 22.3, having 

erroneously included one hour of clerical work in the previous total. Anderson Decl. ¶ 2, ECF 

No. 20; Pl.’s Reply 3, ECF No. 23. 

Plaintiff further requests reimbursement for 4.6 hours spent preparing his reply to 

Defendant’s response to the request for attorney’s fees. Anderson Decl. ¶ 4. However, the Court 

only authorized additional documentation from Plaintiff and a response from Defendant 

regarding Plaintiff’s previously filed motion for attorney’s fees. See Bergen v. Tualatin Hills 

Swim Club, Inc., No. 3:16-CV-00052-HZ, at 10 (D. Or. March 16, 2016) (granting Plaintiff time 

to submit additional documentation and Defendant time to respond). While the Court accepted

Plaintiff’s reply, it was neither authorized nor necessary. See Anderson Decl., ECF 27 

(acknowledging that Plaintiff was not authorized to file a reply but asking the Court to accept the 

filing). Therefore, the Court declines to award Plaintiff fees for the time spent on its preparation. 

Defendant argues that Plaintiff spent an unreasonable amount of time, 0.6 of an hour, 

preparing a certificate of compliance. Defendant argues that the preparation of the certificate of 

compliance is clerical work and, therefore, not reimbursable. See Strand v. Automotive 

Machinists Pension Trust, No. 06-1193-PK, 2007 WL 2029068, at *5 (D. Or. July 11, 2007) 

(“Costs associated with clerical tasks are typically considered overhead expenses reflected in the 

hourly billing rate, and are not properly reimbursable.”) (citing Missouri v. Jenkins, 491 U.S. 

Case 3:16-cv-00052-HZ Document 29 Filed 05/11/16 Page 5 of 9
6 – OPINION & ORDER

274, 288 n. 10 (1989)). In the alternative, Defendant asserts that 0.6 of an hour is an excessive 

amount of time to spend on the certificate of compliance, and that 0.3 of an hour would be a 

reasonable period of time.

In Strand, the court noted that examples of clerical tasks include handling filing 

confirmation, receiving emailed court notices, and keeping track of docketing deadlines. 2007 

WL 2029068, at *5. The Court finds that, unlike tasks such as these, preparing a certificate of 

compliance is not clerical in nature. Preparing such a certificate involves reading and potentially 

interpreting the Local Rules of Civil Procedure. It is legal work, albeit exceedingly simple legal 

work. While the local rules governing word-count are simple to understand and apply, reading 

them and certifying compliance does not qualify as a clerical task. 

Plaintiff’s counsel claims to have spent 0.6 of an hour, or 36 minutes, preparing the 

certificate of compliance. The Court finds that this amount of time is excessive. The heading 

containing the attorney’s information and the court and case information is virtually identical to 

that containing this same information on the first page of Plaintiff’s memorandum in support of 

remand. The short paragraph that follows contains a simple statement that certifies the brief’s 

compliance with several Local Rules governing word-count requirements. As Plaintiff’s counsel 

points out, he is an attorney with forty-six years of experience, so he should be very familiar with 

such certificates of compliance. Therefore, the Court reduces the time spent on this simple piece

of work to 0.3 of an hour.

Accordingly, 22 hours is a reasonably necessary amount of time for Plaintiff’s attorney to 

have spent on this litigation.

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7 – OPINION & ORDER

B. Reasonable Hourly Rate

In deciding the reasonable hourly rate, a court determines what a lawyer of comparable 

skill, experience, and reputation could command in the relevant community. Blum v. Stenson, 

465 U.S. 886, 895 n. 11 (1984). The fee claimant has the burden of producing satisfactory 

evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those 

prevailing in the community for similar services of lawyers of reasonably comparable skill and 

reputation. Id. 

Judges in the District of Oregon use the Oregon State Bar Economic Survey (“OSB 

Economic Survey”) as a guidepost for assessing the reasonableness of hourly rates. Shirrod, 809

F.3d at 1089 (citing D. Or. Civ. R. 54–3(a)); see also Roberts v. Interstate Distrib. Co., 242 F.

Supp. 2d 850, 857 (D. Or. 2002) (District of Oregon uses the OSB Economic Survey as an initial

benchmark in determining reasonable hourly rates and attorneys should “provide ample

justification” for deviating from the Survey rates). The most recent OSB Economic Survey was 

published in 2012.2

Plaintiff’s counsel requests an hourly rate of $400, asserting that this is reasonable 

because he has been an attorney for forty-six years, is admitted to practice law in multiple 

jurisdictions, and has two published California appellate court decisions, as well as one Supreme 

Court decision. Anderson Decl. ¶ 3. He further asserts that this hourly rate is consistent with the 

OSB Economic Survey. Id. at ¶ 4.

Defendant argues that a $400 hourly rate is unreasonably high, given Plaintiff’s 

attorney’s geographical location, Washington County, and practice area. Def.’s Resp. 5. 

Defendant points out that Plaintiff’s attorney’s practice area appears to be “Criminal–Private 

 

2 The OSB Economic Survey is available at 

https://www.osbar.org/_docs/resources/econsurveys/12economicsurvey.pdf. 

Case 3:16-cv-00052-HZ Document 29 Filed 05/11/16 Page 7 of 9
8 – OPINION & ORDER 

Bar,” based on the description of his practice on his law firm’s website. Id.; Roberts Declaration, 

Ex. 3, ECF 22. Defendant contends that, because this case was civil, Plaintiff’s attorney would 

be unlikely to command the top rate for such a case, as his area of practice is criminal in nature. 

Thus, Defendant argues that the appropriate rate is $259 per hour, the average hourly rate for all 

attorneys, regardless of practice area, with over 30 years of experience in the Tri-County area. 

Id. at 5–6; OSB Economic Survey 30. 

Plaintiff’s attorney has been practicing for forty-six years and has a significant amount of 

experience. He is admitted in multiple jurisdictions, including the Supreme Court. Even though 

this case may be outside of his practice area, it is unlikely that he would only receive the average 

rate for an attorney with over 30 years of experience in the Tri-County area. Accordingly, it is 

reasonable to place him in the 95th percentile of all attorneys practicing in the Tri-County region, 

which would give him a $375 hourly rate. Id. at 30. The Court adjusts this rate for inflation, 

from 2012 to 2016, using the United States Department of Labor’s CPI Inflation Calculator 

(available at http://www.bls.gov/data/inflation_calculator.htm). Therefore, the Court finds that a 

reasonable hourly rate for Plaintiff’s attorney is $388.95. 

C. The Lodestar 

In sum, the Court awards an hourly rate of $388.95 for Plaintiff’s attorney’s 22 hours of 

work on the removal and remand of this case, totaling $8,556.90. 

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Case 3:16-cv-00052-HZ Document 29 Filed 05/11/16 Page 8 of 9
9 – OPINION & ORDER 

CONCLUSION 

Plaintiff’s request for attorney’s fees [9] is granted in part. Plaintiff is awarded $8,556.90 

in attorney’s fees.

IT IS SO ORDERED. 

Dated this __________ day of ________________, 2016.

MARCO A. HERNÁNDEZ 

United States District Judge 

Case 3:16-cv-00052-HZ Document 29 Filed 05/11/16 Page 9 of 9