1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MAX ZWEIZIG, No. 3:15-cvPlaintiff, OPINION & ORDER

v.

NORTHWEST DIRECT TELESERVICES,

INC., et. al.,

Defendants.

Joel Christiansen

VOGELE & CHRISTIANSEN

812 NW 17th Avenue

Portland, OR 97209

Attorney for Plaintiff

Timothy Rote

24790 SW Big Fir Road

West Linn, OR 97068

Pro Se Defendant

-02401-HZ
2 – OPINION & ORDER

HERNÁNDEZ, District Judge:

Plaintiff Max Zweizig brought this whistleblower retaliation action under Or. Rev. Stat. 

§ (“ORS”) 659A.030 against Defendants Northwest Direct Teleservices, Inc., Northwest Direct 

Marketing of Oregon, Inc., Timothy Rote, Northwest Direct Marketing (Delaware), Inc., 

Northwest Direct of Iowa, Inc., Rote Enterprises, LLC, and Northwest Direct Marketing, Inc. On

March 13, 2017, an order of default was entered against all the unrepresented business entities on 

Plaintiff’s claim for whistleblower retaliation. The aiding and abetting claim against Defendant 

Rote (“Defendant”) was tried to a jury on January 16 and 17, 2018. The jury returned a verdict 

awarding Plaintiff $1,000,000 in noneconomic damages. On July 25, 2018, the Court reduced 

Plaintiff’s award of noneconomic damages to $500,000 pursuant to ORS 31.710(1). 

Plaintiff now moves for $166,810.00 in attorney fees. Christiansen Decl. Ex. 1 at 18, ECF 

261-1. For the reasons explained below, Plaintiff’s motion is granted in part. Plaintiff is awarded 

$162,995.00 in fees and $515.80 in costs. 

STANDARDS

State law governs attorney fees in diversity cases. See Riordan v. State Farm. Mut. Auto. 

Ins. Co., 589 F.3d 999, 1004 (9th Cir. 2009). Under ORS 659A.885(1), the court “may allow the 

prevailing party costs and reasonable attorney fees at trial and on appeal” in an action under ORS 

659A.030. An award of attorney fees under Oregon law is governed by ORS 20.075 and is 

within the court's discretion. Ashley v. Garrison, 162 Or. App. 585, 592 n.3, 986 P.2d 654 

(1999); see also ORS 20.075(3). The Court, however, is only authorized to award reasonable 

attorney fees. ORS 20.075(4).
3 – OPINION & ORDER

ORS 20.075(1) lists eight factors that a court “shall consider . . . in determining whether 

to award attorney fees in any case in which an award of attorney fees is authorized by statute and 

in which the court has discretion to decide whether to award attorney fees”:

(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 ORS 

20.190.

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

circumstances of the case.

See also Preble v. Dep't of Revenue, 331 Or. 599, 602, 19 P.3d 335 (2001). 

If the court elects to award attorney fees under ORS 20.075(1), ORS 20.075(2) requires 

the court to consider the factors identified in subsection (1) together with the eight factors set 

forth in subsection (2) to determine the amount of any such award. The subsection (2) factors 

include:

(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.
4 – OPINION & ORDER

(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.

ORS 20.075(2); see also McCarthy v. Or. Freeze Dry, Inc., 327 Or. 84, 327 Or. 185, 957 P.2d 

1200 (1998). A court satisfies the requirements of ORS 20.075(1)–(2) by including in its order a 

brief description of or citation to the factor or factors on which it relies when granting or denying 

an award of attorney fees. McCarthy, 327 Or. at 185. The Court is not required to make findings 

about irrelevant or immaterial factual matters or legal criteria. Id.

DISCUSSION

“Oregon courts have construed [ORS 659A.885(1)] as mandatory and highly favorable to 

plaintiffs, holding that prevailing plaintiffs are entitled to recover their attorney fees.” Hamlin v. 

Hampton Lumber Mills, Inc., 227 Or. App. 165, 167, 205 P.3d 70 (2009). Oregon courts 

generally award attorney fees based on the lodestar method—the reasonable hourly rate 

multiplied by the reasonable number of hours worked—although there is room for adjustment

based on the factors set forth in ORS 20.075. See generally Strawn v. Farmers Ins. Co. of Or., 

353 Or. 210, 220–22, 297 P.3d 439 (2013).
5 – OPINION & ORDER

Plaintiff seeks compensation for 467.5 hours of work performed by attorney Joel 

Christiansen. Christiansen Decl. Ex. 1 at 18, ECF 261-1. Defendant opposes Plaintiff’s motion.1

For the reasons below, the Court grants in part Plaintiff’s motion and awards $162,995.00 in 

attorney fees and $515.80 in costs. 

I. Subsection (1) Factors

Defendant argues that under the subsection (1) factors, Plaintiff’s attorney fee award 

should be limited. Defendant argues that all the factors—except for ORS 20.075(1)(g), which is 

inapplicable here—favor denying an award of fees in this case. Specifically, Defendant points to

alleged deceitful and malicious conduct by Plaintiff’s counsel, the nature of Defendant’s blog, 

and Defendant’s attempts to resolve the dispute. Def. Resp. 4–6, ECF 269. Plaintiff replies by 

emphasizing, among other things, Defendant’s underlying conduct, the jury’s verdict, the nature 

of the claim, the extensive motions practice, Plaintiff’s attempts at settlement, and other factors 

discussed in Section II below. Pl. Reply 3–6, ECF 282.

Based on the record, the Court finds that the subsection (1) factors weigh in favor of an 

award of fees in this case. Plaintiff’s counsel pursued settlement and successfully prosecuted this 

case. Christiansen Decl. ¶ 10, ECF 261; Christiansen Decl. Ex. 3, ECF 283. Two of Plaintiff’s 

three claims were reasonable. See Order, ECF 95 (“While the Court does not believe there is any 

way that Plaintiff’s Claim 1 can survive, it nevertheless provides Plaintiff an opportunity to 

respond before the claim is dismissed.”). The Court recognizes that Defendant’s conduct in the 

present litigation has included demeaning personal and professional allegations about Plaintiff 

and his counsel and significant motions practice. Christiansen Decl. ¶ 12, ECF 261. In addition, 

 

1 Defendant also objects to the award of attorney fees in this case because of a prior employment 

agreement between Defendant NDT and Plaintiff. Def. Resp. 2, ECF 256. The Court has 

previously rejected this argument and declines to address it further.
6 – OPINION & ORDER

this action arose out of the parties’ significant litigation history and Defendant’s subsequent 

public blog containing details about Plaintiff and his participation in a separate legal proceeding. 

In sum, the underlying conduct, reasonableness of the claims, reasonableness of the conduct of 

the parties and counsel throughout the litigation, and the diligence of the parties in settling the 

dispute all weigh in favor of awarding fees in this case. 

II. Subsection (2) Factors

Defendant also argues that an award of fees for Plaintiff’s counsel is not warranted under 

the subsection (2) factors. Def. Resp. 6–8. The Court disagrees.

a. Subsection (2)(b)—Preclusion of Other Work

Defendant argues that this factor weighs against an award of fees because “Plaintiff’s 

website makes it clear that he does not take on many cases or work much.” Def. Resp. 7. Plaintiff 

responds that Defendant’s sporadic and voluminous filings prevented counsel from accepting 

other employment during the pendency of this case. Pl. Reply 6; Christiansen Decl. ¶ 12, ECF 

261.

Subsection (2)(b) directs the court to look at “[t]he likelihood, if apparent to the client, 

that the acceptance of the particular employment by the attorney would preclude the attorney 

from taking other cases.” ORS 20.075(2)(b) (emphasis added). As the district court has 

previously recognized, “the subsection’s language clearly contemplates a prospective 

assessment, not one informed by hindsight[.]” Beck v. Metro. Prop. & Cas. Ins. Co., 3:13-cv00879-AC, 2016 WL 4978411, at *20 (D. Or. Sept. 16, 2016). Mr. Christiansen does not address 

either his client’s or his own prospective assessment of the time required to litigate this case. 

Instead, Mr. Christiansen focuses on Defendant’s behavior throughout the litigation. Without 

further information demonstrating that Plaintiff knew from the outset that this case would 
7 – OPINION & ORDER

preclude Mr. Christensen from accepting other employment, the Court declines to give weight to 

this factor in determining the appropriate fee award. 

b. Subsection (2)(d)—Amount Involved in the Controversy and Results 

Obtained

Defendant argues that the amount involved in the controversy and the results obtained 

weigh against an award. Def. Resp. 7. He notes that Plaintiff raised his jury demand to 

$2,000,000 at trial and obtained a $1,000,000 damages award. Id. He also asserts that the 

conduct by Mr. Christiansen was “atrocious” in closing. Id. Plaintiff responds by emphasizing

the significant size of the damages award in this case in the absence of any economic loss. Pl. 

Suppl. Mot. Att’y Fees (“Pl. Mot.”) 9–10, ECF 260; Pl. Reply 6, ECF 282.

Subsection (2)(d) focuses on the amount involved in the controversy and the results 

obtained in the litigation. Initially, Plaintiff sought $150,000 in compensatory damages and 

$1,000,000 in punitive damages. Compl., ECF 1. Though Plaintiff was unable to proceed with 

his request for punitive damages at trial, the size of the non-economic damages awarded by the 

jury in this case was significant at $1,000,000. Plaintiff succeeded in various motions, but on at 

least two occasions the Court had to seek additional input from Plaintiff in considering the 

claims at issue in this case. See Order, ECF 60 (seeking additional briefing after review of 

Plaintiff’s motion because “[i]t appears to the Court that the counterclaims at issue should be 

dismissed, albeit for a different reason than Plaintiff raised); Order, ECF 95 (“While the Court 

does not believe there is any way that Plaintiff’s Claim 1 can survive, it nevertheless provides 

Plaintiff an opportunity to respond before the claim is dismissed.”). Neither party prevailed on 

their respective summary judgment motions. Op. & Order, ECF 133. Thus, while the amount 

involved in the controversy was great and Mr. Christiansen ultimately obtained a significant 

damages award for Plaintiff, Plaintiff did not prevail at every turn. Cf. Beck, 2016 WL 4978411, 
8 – OPINION & ORDER

at *21 (emphasizing that the plaintiff “prevailed on every discovery and dispositive motion 

during the litigation phase of the case” and finding that “the results [the plaintiff] obtained during 

this phase of the case are as significant as the jury’[s] verdict”). On balance, however, this factor 

weighs in Plaintiff’s favor.

c. Subsection (2)(e)—Time Limitations Imposed by the Client or Circumstances

Subsection (2)(e) takes into account any time limitations imposed by the client or the 

circumstances of the case. This Court finds that this factor is neutral. Neither the client nor the 

case imposed any unique time limitations. Indeed, this case proceeded slowly and was three 

years old at the time judgment was entered. 

d. Subsection (2)(f)—Nature and Length of the Attorney’s Professional 

Relationship with the Client

Defendant contends that the nature and length of the relationship weigh against awarding 

fees because Plaintiff’s counsel first joined a related action filed in 2014 and left that case to 

pursue this one. Def. Resp. 7. Plaintiff responds that this case took three years of work and will 

continue for several years on appeal. Pl. Mot. 10. He also emphasizes the long history of 

litigation between the parties, including arbitration and numerous lawsuits. Id.

Under subsection (2)(f), the Court evaluates the nature and length of the attorney’s 

professional relationship with the client. Plaintiff’s emphasis on the long history between 

Defendant and Plaintiff is misplaced. These facts go to the nature and length of the relationship 

between the parties rather the relationship between Plaintiff and Mr. Christiansen. Mr. 

Christiansen did, however, begin representing Plaintiff in a related action in 2014 and therefore 

had a professional relationship that preexisted the present litigation. See Zweizig v. Rote, et. al.,

3:14-cv-00406-HZ. Thus, while the relationship between Plaintiff and counsel was limited to the 

four years preceding the judgment in this case, Mr. Christiansen had unique insight into this 
9 – OPINION & ORDER

matter because of his involvement in the related 2014 case. This factor weighs slightly in favor 

of awarding the requested fees. 

e. Subsection (2)(h)—Fixed or Contingent Fee

Defendant asserts that Plaintiff’s fee arrangement with Mr. Christiansen was 

contingent—“50% of the award, plus 50% of any award of legal fees”—and appears to suggest 

that this weighs against an award of attorney fees. Def. Resp. 8. Plaintiff responds that this factor 

weighs in his favor because the fee in this case is contingent. Christiansen Decl. ¶ 11, ECF 261; 

Christiansen Decl. ¶¶ 2–4, ECF 283.

The Court finds that the contingent fee agreement in this case weighs in favor of an 

award. According to Mr. Christiansen, his contingent fee in this case was “equal to whatever the 

Court awards” and “decides is reasonable.” Christiansen Decl. ¶ 3, ECF 283. In other words, Mr. 

Christiansen would recover nothing for his work in the absence of court awarded fees. Id. Thus, 

Mr. Christiansen took the significant risk of not being compensated for the time he spent on this 

case, which involved unpredictable and frequent motions practice. See Beck, 2016 WL 4978411, 

at *22 (noting that the defendant’s “litigation strategy increased the risk to [the plaintiff’s] 

attorneys that they might not be fully compensated for their time”). 

f. Subsections (2)(c) and (2)(g)—Reasonable Hourly Rate

In determining the reasonable hourly rate, the Court looks to the fee customarily charged 

in the locality for similar legal services under subsection (2)(c) and the experience, reputation, 

and ability of the attorney performing the services under (2)(g). Precision Seed Cleaners v. 

Country Mut. Ins. Co., 976 F.Supp.2d 1228, 1243 (D. Or. 2013). “As a benchmark for comparing 

an attorney’s billing rate with the fee customarily charged in the locality, this Court uses the 
10 – OPINION & ORDER

most recent Oregon State Bar (OSB) Economic Survey.” Id. at 1244. The most recent OSB 

Economic Survey was published in 2017.2

Plaintiff seeks fees based on an hourly rate of $280 and $300 for work done by Mr. 

Christiansen from 2015–2017 and 2018, respectively. Pl. Mot. 6. In 2018, Mr. Christiansen had

practiced law in Oregon for ten years. Christiansen Decl. ¶ 2, ECF 261. During law school, he 

clerked at a plaintiff-side class action firm. Id. at ¶ 5. Since that time, his practice has focused on 

employment law. Id. at ¶ 3. Mr. Christiansen has been counsel of record in numerous state and 

federal cases in Oregon. Id. at ¶ 4. Attorney Robert Meyer—an experienced employment 

litigator—declares that the sought-after rates are reasonable and consistent with rates of other 

attorneys in this practice area. Meyer Decl. ¶¶ 11–13, ECF 263. He further asserts that Mr. 

Christiansen is a pragmatic and outcome-focused lawyer and known in the plaintiff-side legal 

community as “a knowledgeable, effective practitioner in employment discrimination cases.” Id. 

at ¶¶ 12–13. According to the 2017 OSB Economic Survey, the average hourly rate is $280 for 

Portland attorneys with 7-9 years of experience and $300 for attorneys with 10-12 years of 

experience. For plaintiff-side civil litigators, the median billing rate is $300. 

Defendant argues that the sought-after rates are unreasonable and points to counsel’s lack 

of overhead costs and the rates sought in unrelated cases by other attorneys in Portland. Def. 

Resp. 8–9. However, Plaintiff’s overhead costs, or lack thereof, have no bearing on whether Mr. 

Christiansen’s hourly rate is reasonable. And the comparator rates provided by Defendant are not 

helpful in this case. One comparator rate comes from a 2016 declaration in an unrelated case that 

cites to the 2008 OSB Economic Survey, which is now 11 years old. Rote Decl. Ex. 1, ECF 270-

 

2 The most recent OSB Economic Survey is available at 

https://www.osbar.org/_docs/resources/Econsurveys/17EconomicSurvey.pdf
11 – OPINION & ORDER

1. The declarant admits that the sought-after rates of $235 for a partner and $195 for an associate 

were below the average and median rates in 2008. Id. The other comparator rate comes from an 

attorney fee petition filed in Multnomah County Circuit Court that refers to insurance rates and 

does not cite to the OSB Survey. Rote Decl. Ex. 2. Thus, Defendant’s evidence has no bearing on 

the Court’s analysis.

The Court finds that Mr. Christiansen’s rates are reasonable considering the fee 

customarily charged in Portland for similar legal services and the experience, reputation, and 

ability of Mr. Christiansen. As described above, the hourly rates sought by Mr. Christiansen are 

consistent with the median rates for similar legal services in Portland performed by attorneys 

with similar years of experience. According to Mr. Meyer, Mr. Christiansen is a reputable 

attorney in the community and is an effective practitioner. In light of this evidence, Mr. 

Christiansen shall recover the reasonable rates of $280 for work performed between 2015 and 

2017 and $300 for work performed in 2018.

g. Subsection (2)(a)—Reasonable Number of Hours

Plaintiff seeks compensation for 467.5 hours of work performed by Mr. Christiansen. 

Christiansen Decl. ¶ 7, Ex. 1 at 18, ECF 261. Mr. Christiansen declares that the hours billed were 

reasonably and necessarily incurred in litigating this case. Id. at ¶ 7. He asserts that “throughout 

the litigation, [he] tried to be as efficient as possible.” Id. at ¶ 9. He also notes that he found 

Defendant’s “litigation tactics to be unpredictable, confusing, and at times vexatious.” Id. Linda 

Marshall—an attorney with 47 years of experience in employment law and employment 

practices—declares that Mr. Christiansen’s charges are conservative and reasonable. Marshall 

Decl. ¶¶ 1, 8–9, ECF 262. She further asserts that “a large proportion of Mr. Christiansen’s time 
12 – OPINION & ORDER

was necessary to respond to various motions and legal maneuvers initiated by Mr. Rote.” Id. at ¶ 

9.

“Under subsection 2(a), [the Court] analyze[s] the time and labor required in the 

proceeding, the novelty and difficulty of the questions involved, and the skill needed to properly 

perform the legal services.” Precision Seed Cleaners, 976 F.Supp.2d at 1249. As an initial 

matter, the Court does not find that the issues in this case were exceedingly novel or complex or 

that exceptional skill was needed to perform the legal services. As Plaintiff points out, at times 

the issues presented by this case were somewhat unique in that Plaintiff was proceeding against 

Defendant for aiding and abetting defunct and defaulted corporate entities and only sought noneconomic damages. Pl. Mot. 8. This case also presented a novel issue of Oregon law after trial. 

See Op. & Order, ECF 228 (discussing whether ORS 31.710 applies to employment cases). But, 

at its core, this case involved a whistleblower retaliation claim arising out of an employment 

relationship and drew on established case law. See e.g. Roberts v. Interstate Distrib. Co., 242 F. 

Supp.2d 850, 857 (D. Or. 2002) (“[E]mployment discrimination claims usually do not involve 

novel issues of law.”); Baker v. Maricle Indus., Inc., 6:16-cv-01793-AA, 2017 WL 1043282 (D. 

Or. Mar. 17, 2017) (discussing a claim under ORS 659A.030(1)(g), the statute at issue here, 

brought against a corporate president). While litigating against Defendant presented some 

challenges and required time and labor, the narrow factual scope of this case and the single claim 

at issue at trial did not require significant time or skill. 

In his response to Plaintiff’s motion for attorney fees, Defendant objects to several 

categories of time spent by Plaintiff's counsel. See Def. Resp. 9–12. Without repeating in detail 

each of Defendant’s objections and Plaintiff’s responses, the Court addresses each category of 

time and deducts time from Plaintiff’s requested hours as appropriate.
13 – OPINION & ORDER

First, Defendant objects to time Mr. Christiansen spent reviewing Defendant’s blog. 

Plaintiff responds that the nearly 40 hours reviewing the blog were reasonable because it was 

routinely edited and was voluminous at the time of trial. Pl. Reply. 8–10. This Court agrees with 

Plaintiff. The content of Defendant’s blog was the heart of this case and was over 300 pages 

long. It was also edited and updated throughout this case. The requested time is therefore 

reasonable. 

Second, Defendant argues that time spent drafting and reviewing various legal pleadings 

and motions was excessive:

(1) Time Spent Drafting the Complaint: Defendant argues that the 14 hours spent by 

Plaintiff drafting the compliant is excessive by 50%. A review of the requested time reveals, 

however, that Plaintiff only billed 4.1 hours for drafting the complaint and .4 hours for drafting 

an amended complaint. Christiansen Decl. Ex. 1 at 1, 14, ECF 261. The Court finds the requested 

time is reasonable.

(2) Time Spent Reviewing Rote’s Motion to Dismiss and Defendants’ Answers: 

Defendant argues that the 15.1 hours and 14 hours spent reviewing these documents is excessive 

by 75%. Plaintiff responds that Defendant filed numerous amended and responsive pleadings and 

filed and withdrew many motions to dismiss. The record supports Plaintiff’s argument. 

Defendant amended his responsive pleadings multiple times. Am. Answer, ECF 19; Am. 

Answer, ECF 29; Mot. Am. Answer, ECF 85; Am. Answer, ECF 98. He also filed several

motions to dismiss and strike. Mot. Strike (withdrawn), ECF 33; Mot. Dismiss (withdrawn), ECF 

28; Mot. Dismiss, ECF 78. The Court agrees with Plaintiff that the hours spent reviewing these 

documents are reasonable.
14 – OPINION & ORDER

(3) Time Spent on Opposition to Motion to Dismiss: Defendant argues that 60.7 hours 

spent on Plaintiff’s opposition to Defendant’s Motion to dismiss is excessive by 75%. It is 

unclear to the Court how Defendant determined that counsel spent 60.7 hours on the opposition 

to Defendant’s Motion to Dismiss. Billing records submitted by Plaintiff suggest that counsel 

spent 29.5 hours researching and drafting the responses to Defendant’s motions to dismiss in 

March, May, October and November of 2016. Christiansen Decl. Ex. 1 at 2–7, ECF 261. The 

Court finds this time reasonable.

(4) Time Spent on Motion for Summary Judgment and Response: Defendant argues that 

the 61.6 hours counsel spent on the motion for summary judgment and response is excessive by 

at least 75%. Again, it is unclear to the Court how Defendant arrived at this figure. The records 

appear to reflect 56.4 hours spent by counsel reviewing materials, assembling materials, 

conducting legal research, and drafting the briefing related to Plaintiff’s and Defendant’s 

motions for summary judgment. In July of 2016, Plaintiff spent 5.2 hours responding to 

Defendant’s premature motion for summary judgment. Christiansen Decl. Ex. 1 at 5. In the 

summer of 2017, Plaintiff spent 20.7 hours researching and drafting his 17-page motion for 

summary judgment, which included a nearly 500-page declaration. Mot. Summ. J. ECF 117; 

Zweizig Decl., ECF 118. He spent another 9.4 hours drafting the 6-page reply after receiving a 

33-page response from Defendant that included a declaration with over 2,000 pages of 

supporting exhibits. Def. Resp. MSJ, ECF 119; Rote Decl., ECF 120. Counsel spent another 6 

hours reviewing Defendant’s 35-page motion and 15.1 hours crafting his 13-page response to the 

motion. Mot. Summ. J., ECF 115; Resp. MSJ, ECF 121. In light of the extensive briefing and 

supporting evidence, the Court finds the requested hours are reasonable.
15 – OPINION & ORDER

(5) Time Spent on Form of Judgment: Defendant argues that the 38.9 hours spent on the 

form of judgment was excessive by 75%. This Court disagrees. Here, it appears that Plaintiff 

spent this time drafting the proposed judgment, reviewing Defendant’s objections to the 

judgment, conducting legal research, drafting a response to the objections, reviewing the reply, 

and drafting a surreply. Christiansen Decl. Ex. 1 at 14–16, ECF 261. Defendant’s objections to 

the judgment included a complicated and unresolved issue under Oregon law as to whether the 

non-economic damages cap in ORS 31.710 applied to this case. Accordingly, the time spent by 

Plaintiff’s counsel was reasonable.

(6) Time Spent on the Anti-SLAPP Motion: Defendant argues that the 27.1 hours 

Plaintiff’s counsel spent on an Anti-SLAPP motion was unreasonable because counsel used a 

draft from another attorney in a different case. Def. Mot. 10. Plaintiff responds by emphasizing 

that the motion was denied on different grounds, Plaintiff’s counsel billed less, and the Court 

requested supplemental briefing. Pl. Reply 9–10. The Court finds that here Plaintiff’s requested 

time is unreasonable. Per the Court’s calculation, Plaintiff spent 9 hours on the initial briefing, 

Christiansen Decl. Ex. 1 at 3–4, and 8.9 hours on the supplemental briefing, id. at 5–6. The Court 

ordered the supplemental briefing because “[i]t appear[ed] to the Court that the counterclaims at 

issue should be dismissed, albeit for a different reason than Plaintiff raised.” Order, ECF 60.

Thus, the 9 hours spent on the initial briefing should be deducted from this case.

Third, Defendant argues that Plaintiff should not receive fees for: extension of time 

requests that “were not caused by Defendant;” a response to the “Bernick Subpoena” because the 

time was unnecessary; post-trial motions because Defendant prevailed on the non-economic 

damages cap; and the motion for contempt and sanctions because it was “unreasonable.” Def. 

Resp. 10–12. The Court finds these arguments unavailing. Plaintiff’s time for each of the above-
16 – OPINION & ORDER

described tasks was reasonable. It was prudent for counsel to prepare a response to the Bernick 

Subpoena when Defendant listed Ms. Bernick as a witness at trial. Though Defendant prevailed 

on the non-economic damages cap issue, Plaintiff prevailed on many of the issues raised in 

Defendant’s post-trial motions, and Plaintiff was the prevailing party in this case. As to the 

motion for sanctions, Plaintiff billed only an hour for reviewing Defendant’s motion for 

imposition of sanctions and supporting declaration and .2 hours for communicating with his 

client about these motions. Christiansen Decl. Ex. 1 at 17, ECF 261. Time billed for this 

motion—which was denied by the Court at a telephone conference—was reasonable. Finally, 

Plaintiff appears to have billed only 4.6 hours related to requests for extension of time. Two of 

the requests were made in response to amended pleadings by Defendant. Id. at 2, 3. One request 

was to extend the entire case schedule as the initial case deadlines approached. Id. at 3. Two of 

the billing entries relate to requests for extensions by Defendant. Id. at 8, 14. And two more 

relate to briefing complicated issues presented by Defendant after the close of trial. Id. at 14, 15. 

All these requests and the associated time billed were reasonable and necessary in the context of 

this litigation. 

Fourth, Defendant argues that certain categories of time are not billable, including 

“chatting with” Plaintiff, reviewing court orders, and 50 hours producing trial exhibits and 

instructions. Def. Resp. 9–11. Plaintiff responds that he has not billed for administrative tasks,

and he asserts that time spent communicating with the client was reasonable given the nature of 

this case and Defendant’s litigation approach. Pl. Reply. 8–9. He also argues that Defendant 

incorrectly calculates Plaintiff’s time spent on trial exhibits and instructions. Id. at 10.

The Court finds that the 30 or so hours billed for communicating with Plaintiff over the 

course of three years was reasonable, particularly in this case where the parties have a lengthy 
17 – OPINION & ORDER

and complex history. As to the alleged administrative or clerical work, Defendant is correct that 

this time is generally not recoverable. See Lafferty v. Providence Health Plans, No. 08-CV-6318-

TC, 2011 WL 127489, at *5 (D. Or. Jan. 14, 2011) (“It is well settled, both in this District and 

elsewhere, that it is inappropriate to seek fees under a fee shifting statute for purely secretarial or 

clerical work.”). But the Court disagrees with Defendant that the production of trial exhibits and 

jury instructions—which the Court estimates amount to fewer than 20 hours—are administrative

tasks. Production of the jury instructions required substantive legal knowledge. And counsel 

clarified in his reply that he only billed for time spent determining what trial exhibits to use and 

how to incorporate them into his trial presentation. Pl. Reply 10. However, the Court has 

determined that Plaintiff billed for seemingly clerical time on a few occasions. Specifically, 

Plaintiff seeks time for scheduling issues and discussing scheduling with his client:

Date Time Task

4/14/2016 .1 Review Scheduling Order

10/13/2016 .1 Review Court Scheduling 

Order

3/1/2017 .1 Review Court Scheduling 

Order Setting Scheduling 

Conference

9/11/2017 .5 Communication with Client 

re: Scheduling

4/14/2016 .4 Communicate with client re: 

scheduling et. al.

11/17/2017 .4 Communication with client 

re: scheduling and strategy3

The Court also notes that Plaintiff billed for the administrative task of filing various trial 

documents and deducts .1 hours for each of these three entries. See Christiansen Decl. Ex. 1 at 11

 

3 Plaintiff’s counsel actually billed .8 hours for this task. Because discussing strategy with his 

client is billable time, the Court only deducts half of the time billed from Plaintiff’s overall 

request. The .4-hour reduction is based on previous billing entries for scheduling conversations 

with Plaintiff.
18 – OPINION & ORDER

(billing .2 hours for completing and filing Plaintiff’s exhibit list, .1 hours for completing and 

filing Plaintiff’s statement of claims, and .3 hours for completing and filing Plaintiff’s witness 

statement), ECF 261. Accordingly, 1.9 hours are deducted from the overall attorney fees request.

Finally, Defendant asserts that the fees should be allocated among Defendants. Def. Mot. 

12. Plaintiff responds that Defendant’s argument is unavailing because the facts in this case were 

so intertwined that they cannot be separated by Defendant. Pl. Reply. 8. Neither party cites any 

legal authority to support their respective arguments. However, the Court finds that it need not 

apportion fees among Defendants in this case. See e.g. Corder v. Gates, 947 F.2d 374, 383 (9th 

Cir. 1991) (finding apportionment appropriate “when the time expended by the plaintiff in 

pursuing each defendant was grossly unequal”). This case arose out of a single incident, and the 

bulk of the conduct at issue at summary judgment and during trial pertained to Defendant. 

Moreover, Defendant’s liability for aiding and abetting required a finding that the defaulted 

corporate defendants were liable for retaliation. Thus, to the extent that these claims and the 

underlying facts were segregable, the work performed on the whistleblower retaliation claim was 

relevant to the claim against Defendant. Apportioning the fees in this case between Defendants 

would therefore be improper.

h. Fee Multiplier

In addition to the lodestar calculation, Plaintiff argues that the Court should apply a fee 

multiplier of 1.25 to the attorney fees award in this case. In support of this argument, Plaintiff 

cites the novelty and difficulty of the questions involved, the undesirability of the case, the skill 

required to litigate this case, and the other factors discussed elsewhere in this decision. Pl. Mot. 

7–11. Defendant objects to the award of a fee multiplier. He emphasizes counsel’s alleged abuse 
19 – OPINION & ORDER

of the legal process in this case, the nature of the case, and the size and relatively low risk of this 

case. Def. Resp. 13–14.

The Court has discretion to award an enhancement to the attorney fee request in the form 

of a fee multiplier. See VanValkenburg v. Oregon Dep’t of Corrs., 3:14-cv-00916-MO, 2017 WL 

2495496, at *5 (D. Or. June 9, 2017) (citing Griffin By & Through Stanley v. Tri-Cty. Metro.

Trasnp. Dist. of Or., 112 Or. App. 575, 584–85, 831 P.2d 42 (1992) aff’d in part and rev’d in 

part on other grounds 318 Or. 500 (1994)). “Oregon law permits an enhancement of fees when it 

is supported by the facts and circumstances of the case.” Beck, 2016 WL 4978411, at * 22.

Typically, enhanced fee awards are appropriate in cases where the recovery was an 

“exceptional success,” . . . and other favorable factors exist, including ‘the 

difficulty and complexity of the issues involved in the case, the value of the interests 

at stake, as well as the skill and professional standing of lawyers involved.

VanValkenberg, 2017 WL 2495496, at *6 (quoting Strunk v. Pub Emps. Ret. Bd., 343 Or. 226, 

246 (2007)). The Court also considers the statutory factors under ORS 20.075 in determining 

whether an enhanced fee is appropriate. Id. As stated above, such factors include “[t]he extent to 

which an award of an attorney fee in the case would deter others from asserting meritless claims 

and defenses” and “[t]he objective reasonableness of the parties and the diligence of the parties 

and their attorneys during the proceedings.” ORS 20.075(1)(d)–(e).

The Court finds that a fee multiplier is appropriate in this case. As discussed above, the 

Court recognizes that the issues presented by Plaintiff’s claims were, at times, somewhat unique

and this case involved a difficult litigant. See supra Section II(g). In addition, as part of his

efforts to vacate the judgment, Defendant has failed to comport himself in an objectively

reasonable manner. See ORS 20.075(e). In duplicative post-judgment filings, Defendant has

made unsubstantiated, inflammatory, and personal and professional attacks against both Plaintiff 

and Mr. Christiansen. See, e.g., Def. Mot. Stay, ECF 325; Def. Reply Mot. Stay, ECF 327; Def. 
20 – OPINION & ORDER

Mot. Vacate, ECF 330; Def. Reply Mot. Vacate, ECF 336. Mr. Christiansen has been required to 

respond to these filings in an effort to enforce the judgment in this case. See e.g. VanDyke v. 

BTS, Civil No. 08-561-KI, 2010 WL 56109, at *1 (D. Or. Jan. 4, 2010) (citing Johnson v. Jeppe, 

77 Or.App. 685, 688, 713 P.2d 1090 (1986)) (“Under Oregon law, attorney fees to enforce a 

judgment are ‘legal services related to the prosecution or defense of an action’ which the court 

may consider when it awards attorney fees.”). Accordingly, considering the objective 

reasonableness of Defendant’s behavior during the proceedings and the other factors identified 

above, the Court awards Plaintiff the requested fee multiplier. Plaintiff is awarded a total 

attorney fee award of $162,995.00.

V. Costs & Other Expenses

Plaintiff also seeks costs under Federal Rule of Civil Procedure 54 and ORS 

659A.885(1). He seeks recovery of the $400 filing fee and $115.80 in trial transcript copy costs. 

Christiansen Decl. ¶ 8, Ex. 2, ECF 261. Defendant does not address costs in his response brief.

Federal and state law both allow the recovery of costs. See Fed. R. Civ. P. 54; 28 U.S.C. 

§ 1920; ORS 659A.885(1). Specifically, a prevailing party may recover “[f]ees of the clerk,” 28 

U.S.C. § 1920(1), and costs associated with trial transcripts as taxable costs under 28 U.S.C. § 

1920, see Cleavenger v. Univ. of Oregon, CV 13-1908-DOC, 2016 WL 1065821, at *14 (D. Or. 

Mar. 16, 2016) (citing Nemo v. City of Portland, No. CV-94-1553-ST, 1996 WL 437633, at *8 

(D. Or. Apr. 9, 1996)) (noting that daily trial transcripts are awarded, if at all, under 28 U.S.C. 

§ 1920). Plaintiff was the prevailing party, and the trial transcripts requested here were 

reasonably necessary to the motions filed after trial. Thus, the Court finds it appropriate to award 

these costs to Plaintiff.

///
21 – OPINION & ORDER

CONCLUSION

Plaintiff’s Motion for Attorney Fees and Costs [250] and Supplemental Motion for 

Attorney Fees and Costs [260] are GRANTED in part. Plaintiff is awarded $162,995.00 in fees 

and $515.80 in costs.

IT IS SO ORDERED.

Dated this ____________ day of__________________, 2019.

 

MARCO A. HERNÁNDEZ

United States District Judge