IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

WELLS FARGO BANK, N.A., 

Plaintiff, 

vs. 

LEROY WILLOUGHBY, et al., 

Defendants. 

AIKEN, Chief Judge: 

Case 1:15-cv-129-AA 

ORDER 

Plaintiff Wells Fargo Bank brings this action against Defendant LeRoy 

Willoughby to recover money lost because of a check-cashing scam. This court granted 

Plaintiffs motion for summaty judgment on three of its claims, including its claim for 

breach of contract, and entered judgment awarding Plaintiff $97,448.99 in damages. 

Plaintiff now moves for an award of attorney's fees and costs. I grant the motion 

and award Plaintiff$15,622.50 in attorney's fees and $560 in costs. 

1 - ORDER 
BACKGROUND 

When Defendant opened an account with Plaintiff, he entered into a contract with 

Plaintiff that provided, "You agree to reimburse us for our costs and expenses (including 

attorney's fees) incmTed in any action that we bring against you concerning your account 

and in any lawsuit instituted by you against us where we are the prevailing party." 

Sheffield Deel., Ex. 1, at 19 (copy of agreement), ECF No. 20. 

DISCUSSION 

I. State Law Applies to the Award of Attorney's Fees 

In its motion for attorney's fees, Plaintiff cites Voltage Pictures, LLC v. Smith, 

No. 6:14-cv-1193-AA, ECF No. 22 (D. Or. Feb. 15, 2015). But Voltage Pictures was a 

copyright infringement action arising under federal question jurisdiction, so this court 

applied federal law in calculating the amount ofreasonable attorney's fees. See id at 4 

(citing 17 U.S.C. § 505 as authorizing an award of fees). Here, because Plaintiffs state 

law breach of contract claim is under this court's diversity jurisdiction, state law applies 

to the determining entitlement to attorney's fees and to the calculation of a reasonable 

attorney's fee. See Alaska Rent-A-Car v. Avis Budget Group, Inc., 738 F.3d 960, 973 (9th 

Cir. 2013). 

II. Colorado Law Applies 

In an action arising under diversity jurisdiction, the federal comt applies "the 

choice-of-law rules of the forum state." Coneff v. AT & T Corp., 673 F.3d 1155, 1161 

(9th Cir. 2012). Under Oregon choice-of-law provisions, the state law chosen by the 

pmties to control the substantive issue under dispute also controls the issue of attorney's 

2 - ORDER 
fees, unless doing so would circumvent a fundamental public policy of Oregon law. 

Fiedler v. Bowler, 117 Or. App. 162, 166, 843 P .2d 961, 963 (1992). 

Here, Defendant opened the account and executed the contract with Plaintiff at a 

bank in Pueblo, Colorado. The contract provides that Colorado law applies. See 

Sheffield Deel., Ex. 1, at 20 ("To the extent state law applies to our deposit relationship, 

the applicable law is the law of the state where your account was opened"). I see no 

conflict with any fundamental policy of Oregon law, so I will apply Colorado law. 

III. Plaintiff Is Entitled to Reasonable Attorney's Fees 

Colorado law provides that if parties to a contract agree to a fee-shifting 

provision, the prevailing party is entitled to recover its attorney fees and costs. Morris v. 

Bel/or USA Grp., Inc., 201P.3d1253, 1259 (Colo. App. 2008). Here, Plaintiff prevailed, 

so it is entitled to attorney's fees incurred. 

Defendant has not responded to Plaintiffs motion for attorney's fees and costs. 

Nonetheless, this court must ensure that any award of attorney's fees is reasonable. See 

Agritrack, Inc. v. DeJohn Housemoving, Inc., 25 P.3d 1187, 1191-92 (Colo. 2001) 

(affirming award of "reasonable" attorney's fees when fee-shifting provision provided that 

the liable party would be "responsible for all attorney's fees, costs, and interest"). 

IV. Amount of Attorney's Fees 

Under Colorado law, the court first calculates the lodestar amount, that is, the 

"number of hours reasonably expended on the case, multiplied by a reasonable hourly 

rate." S. Colo. Orthopaedic Clinic Sports Medicine and Arthritis Surgeons, P.C. v. 

Weinstein, 343 P.3d 1044, 1049 (Colo. App. 2014) (quotation marks and citation 

3 - ORDER 
omitted). Here, Plaintiff requests $16,890 for attorney's fees, the lodestar amount 

without adjustments. The comt "has discretion to make upward or downward 

adjustments to the lodestar amount" based on the factors listed in Colorado Rule of 

Professional Conduct (RPC) 1.5(a). Id. Those factors are: 

(1) the time and labor required, the novelty and difficulty of the questions 

involved, and the skill requisite to perform the legal service properly; 

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

paiticular employment will preclude other employment by the lawyer; 

(3) the fee customarily charged in the locality for similar legal services; 

( 4) the ainount involved and the results obtained; 

( 5) the time limitations imposed by the client or by the circumstances; 

(6) the nature and length of the professional relationship with the client; 

(7) the experience, reputation, and ability of the lawyer or lawyers 

performing the services; and 

(8) whether the fee is fixed or contingent. 

RPC 1.5. 

A. Hourly Rates 

Plaintiff was represented by three attorneys based in Medford, Oregon. Joseph 

Kellerman, with 23 years' experience, billed at $275 per hour; Charles Bolen, with 19 

years' experience, billed at $225 per hour; and Eric Mitton, with 9 years' experience, 

billed at $200 per hour. I find that the hourly rates billed by the three Oregon attorneys 

are reasonable in light of their experience and location. See Mitton Deel., Ex. 2 (Or. St. 

Bar 2012 Economic Survey). 

Plaintiff was also represented by two attorneys based in Pasadena, California. 

Robert Bailey, with 17 years' experience, billed at $340 per hour; and Christopher Can, 

billed at $320 per hour. Plaintiff seeks fees for Juana Mirguia, appai·ently a paralegal, 

billed at $110 per hour. 

4 - ORDER 
Plaintiff states that Bailey worked with Bolen in drafting the motion for summaty 

judgment. Plaintiff describes the summaty judgment motion as "involv[ing] complex 

considerations regarding attributing blame for financial fraud when the primary 

perpetrator is unknown and not a party to the case." But I do not see this as a particularly 

difficult breach of contract action, and the opposing party was not an attorney. It is not 

clear on this record why Plaintiff l'equired the services of out-of-state attorneys. Plaintiff 

has not "provide[ d] sufficient evidence that this case involved such uniquely complex or 

esoteric issues to justify ... a significant upward deviation from the fees customarily 

charged in this locality for similar legal services." Home Loan Inv. Co. v. St. Paul 

Mercury Ins., 78 F. Supp. 3d 1307, 1317 (D. Colo. 2014) (applying Colorado law). I 

find that a reasonable hourly rate for Bailey, given his experience, is the rate billed by 

Kellerman, $275. Carr, who is a partner in the same firm as Bailey, seeks an hourly rate 

$20 less than Bailey's, so I find that $255 is a reasonable rate for Carr. I also find that 

$115 is reasonable for Mirguia, the paralegal. 

B. Number of Hours 

Plaintiff succeeded on its claims. I agree with Plaintiff that its attorneys "quickly 

and efficiently resolved" this action. I find that the number of hours requested by 

Plaintiff is reasonable. 

I also agree with Plaintiff that there is no reason to adjust the lodestar amount in 

either direction. I award of a total of$15,622.50 in attorney's fees, reflecting the 

reduction in hourly rates for Bailey and Carr. 

5 - ORDER 
V. Costs 

Costs "should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(l). Rule 

54 creates a presumption in favor of awarding costs to the prevailing party. Kaufinan v. 

Geico Indem. Co., No. 3:13-cv-01932-HZ, 2015 WL 5167248, at *1 (D. Or. 2015). 

Costs taxable under Rule 54(d) must be authorized by 28 U.S.C. §§ 1920 and 1821. Id 

"The district court retains broad discretion to decide how much to award, if anything." 

Id 

I find that Plaintiffs total requested costs of $560 for filing fees and process 

serving fees is reasonable and authorized. 

CONCLUSION 

Plaintiffs Motion for Attorney's Fees and Costs (#33) is granted. Plaintiff is 

awarded $15,622.50 in attorney's fees and $560 in costs. 

IT IS SO ORDERED. 

pD DATED thisnday ofFebrmuy, 2016. 

{1( 11 {_ a 1(/1/V) 

AnnAiken 

United States District Judge 

6 - ORDER