MARCO A. HERNANDEZ, District Judge.
This case involves an insurance coverage dispute related to the Portland Harbor Superfund Site. Plaintiff Ash Grove claimed damages of $2,271,838.58 for defense costs. After a three-day bench trial, Plaintiff was awarded a sum of $1,887,907.82 in damages. Plaintiff now moves for attorney fees [377] in the amount of $1,924,107.06 and costs [374] in the amount of $16,741.56. For the reasons explained below, I grant the motion for attorney fees in part and deny the motion in part. Plaintiff is awarded $1,029,511.76 in attorney fees. I also award costs of $11,198.96. Plaintiff additionally moved to amend the judgment [381] to reduce the damages awarded to $1,887,249.49 and to include an award for prejudgment interest of $550,037.41. As explained below, I grant the motion to amend. The judgment is reduced to $1,887,249.49 and I award $550,037.41 in prejudgment interest.
State law governs attorney fees in diversity cases.
Plaintiff seeks attorney fees pursuant to Oregon Revised Statute (ORS) § 742.061, which provides, in relevant part:
ORS § 742.061(1). The purpose of the statute is to encourage settlement of insurance claims without litigation.
The plain language of the statute sets forth four conditions for entitlement to attorney fees: (1) Plaintiff must have filed a proof of loss with its insurer; (2) settlement must not have occurred within six months of filing of that proof of loss; (3) Plaintiff must have brought a court action upon the policy; and (4) Plaintiff must have ultimately recovered more than the amount of any tender made by Defendant in the action. If the conditions in the statute are met, "the decision whether to grant attorney fees is not a discretionary one. Instead, when the statutory conditions are met, the court `shall' award attorney fees."
I find the conditions in ORS § 742.061 are met. Plaintiff tendered defense of the 104(e) request to Defendants on January 29, 2008. Findings of Fact and Conclusions of Law [367], 16. Defendants did not make an offer of settlement within six months of January 29, 2008. Row Decl. Supp. Att'y Fees [380] ¶ 6. Plaintiff subsequently filed suit on January 27, 2009. Notice of Removal [1] Ex. 1 at 1. As Defendants made no tender, it necessarily follows that the Plaintiff's recovery exceeds the amount of the tender made by Defendants. Row Decl. Supp. Att'y Fees ¶ 4. Accordingly, attorney fees must be awarded in this case pursuant to ORS § 742.061.
Plaintiff seeks $1,924,107.06 in attorney fees. In their responses, Defendants object to the fee request for several reasons. In its reply, Plaintiff agreed to retract the following fees: 92 hours that Leslie Nellermoe spent to prepare as a witness; 39 hours spent on an amicus brief in
Subsection (1) of ORS § 20.075 lists the factors the Court must 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." Here, the request for attorney fees is based on ORS § 742.061. As I have found the conditions of the statute are met, the award pursuant to the statute is not discretionary.
The factors identified in subsection (1) of ORS § 20.075 are:
ORS § 20.075(1). Subsection (2) of ORS § 20.075 requires the Court to consider the following additional factors:
Plaintiff generally concedes that the parties' claims and defenses were reasonable (factor (b)) and that the parties were diligent in this matter (factor (e)).
It appears that none of Plaintiff's motions to compel were ruled upon. Judge King scheduled oral argument on two of Plaintiff's motions to compel [129, 136] for March 23, 2011. March 23, 2011 Order [171]. The minutes of the conference do not indicate any rulings for the motions to compel. March 29, 2011 Minutes [174]. However, Plaintiff's counsel asserts that no rulings were made, as Judge King encouraged the parties to resolve the discovery disputes. Row Decl. Supp. Att'y Fees ¶ 3. Plaintiff filed a third motion to compel [221], which Judge King denied but gave leave to re-file. May 5, 2012 Minutes [245]. Plaintiff renewed the motion to compel [258], and this court reserved ruling on the motion at the pretrial conference. March 18, 2013 Minutes [342]. I am not convinced that Plaintiff's motions to compel warrant a reduction in attorney fees. Even though there were no rulings from the motions, there is no indication that the motions requested documents beyond the realm of what could be discoverable.
Liberty Mutual additionally argues that it should not be required to pay attorney fees that Plaintiff spent to pursue other insurers.
In sum, I do not find that any of the factors in subsection (1) of ORS § 20.075 support an adjustment of Plaintiff's attorney fee request.
Plaintiff concedes that not all the factors in subsection (2) of ORS § 20.075 are applicable to determine the reasonableness of Plaintiff's fee request.
Defendants argue that the time and labor spent by Plaintiff's attorneys is not reasonable. Defendants rely on expert John Pierce
Defendants object to fees for work not related to this case. First, Defendants object to time billed by Leslie Nellermoe. Nellermoe represents Plaintiff in the underlying suit involving the 104(e) request and the PCI Group. As evidenced by the billing entries, Nellermoe also assisted with the litigation of this case.
Next, Defendants dispute all fees related to the
Defendants also object to eight hours,
First, Defendants object to billing by multiple attorneys at inter-office and intra-firm conferences. Generally, "[w]hen attorneys hold a telephone or personal conference, good `billing judgment' mandates that only one attorney should bill that conference to the client, not both attorneys."
Defendants identified 513.12 hours, or $168,501.71 in fees, that were billed as a result of conferences involving two or more attorneys. Pierce Report at 9. Defendants recommend allowing fees for only the attorney at the highest billing rate.
I find that there was unnecessary duplication of effort among the attorneys hired by Plaintiff. "A party is certainly free to hire and pay as many lawyers as it wishes, but cannot expect to shift the cost of any redundancies to its opponent."
Second, Defendants object to multiple attorneys billing to attend hearings and depositions. Defendants have identified 14.3 hours
Finally, Defendants object to 51.22 hours spent to prepare for and attend a trial-planning meeting in Portland involving five attorneys. McCurdy Decl. Ex. 12. Defendants argue that the December 8, 2011 meeting was not necessary because the trial was seven months away. Defendants also argue that multiple attorneys should not have billed for this inter-office conference. Even though the trial was seven months away, holding a trial-planning meeting is not unreasonable. However, as I have previously found, requiring Defendants to pay for multiple attorneys to attend a meeting is not reasonable. "[W]hen nine lawyers play some role in litigation, nobody is getting nine times the amount of work that would be done by one lawyer."
Defendant Liberty Mutual objects to fees that were incurred with respect to USF&G and Hartford and for fees spent on the unresolved duty to indemnify claim.
Plaintiff has already agreed to withdraw fees associated with Hartford. Thus, the issue is whether Plaintiff was obligated to apportion its fee request between Liberty Mutual and USF&G. There is no dispute that both Liberty Mutual and USF&G are liable for Plaintiff's attorney fees. Plaintiff brought the same claims against both insurers—duty to defend and duty to indemnify. I am unaware of any legal authority that requires a prevailing insured to apportion its request for attorney fees among defendant insurers when the claims are identical and the policies are virtually identical. In fact, the opposite is likely true—that the Defendants are jointly and severally liable for the attorney fees. In
Liberty Mutual cites to
Liberty Mutual additionally argues that Plaintiff failed to categorize the fees between the duty to defend and the unresolved duty to indemnify, for which fees are not allowed. The duty to indemnify claim was stayed in October 2010. Oct. 12, 2010 Order [119]. Liberty Mutual does not object to any specific billing entries prior to the stay. A review of the entries prior to October 2010 reveals scant references to the indemnity claim. Even so, early in the litigation, the duty to defend and the duty to indemnify claims were sufficiently related, such that the work performed cannot be separated between the two claims. Plaintiff's fee request need not be reduced for time spent on the indemnity claim prior to October 2010.
Defendant Liberty Mutual objects to 228.78 hours spent to file motions for protective orders or to seal documents. McCurdy Decl. Ex. 10. Liberty Mutual also objects to 15.7 hours spent on motions to compel. Pierce Report Exs. N-1, N-2. Liberty Mutual argues that the motions for protective orders or to seal were spurred by Plaintiff's choice to participate in the PCI Group, and thus the time spent on these motions should not be shifted to Defendant. Liberty Mutual Resp. 14. Liberty Mutual also argues that the motions to compel sought irrelevant information. I am not persuaded by Defendant's arguments. These motions were part and parcel of litigation and were not filed unreasonably.
Defendants object to 287.75 hours because the time spent was unreasonable and because Plaintiff did not adequately describe the tasks performed.
The numbers of hours expended must not only be reasonable, but also adequately documented.
I agree with Defendants that the billing entries are vague, such that the reasonableness of the time spent is difficult to ascertain. The following examples illustrate the problem: "work on email production," "work on discovery," "document review project," "review selected documents," and "work on privilege log." Pierce Report Ex. J at 2, 3, 4, 7, 10. I am unable to determine whether the amount of time billed is reasonable for the described task. Plaintiff provides an ad hoc justification—reasoning that for the 7,872 documents reviewed, an average of 28 documents were reviewed per hour for the 278 hours billed. Pl.'s Reply 5. This reasoning is speculative at best, and I decline to justify the 278 hours based on this analysis. Plaintiff further argues that because Defendants' discovery request triggered the need the document review, all the hours spent on the request should be allowed.
Defendants object to 64.45 hours
I agree with Defendant that clerical tasks are not properly billed as attorney fees but are overhead expenses absorbed by counsel.
"Tasks considered clerical include, but are not limited to, filing motions with the court, filling out and printing documents, preparing affidavits and drafting certificates of service, organizing files, calendaring dates, rescheduling depositions, and sending documents."
In reviewing the billing entries raised in Defendants' objections, I agree that many of the tasks are clerical. Such tasks include Bates stamping documents, printing documents, putting data on disks, saving documents, and sending emails that lack legal substance.
In addition to attorney fees, Plaintiff seeks $39,662.31 in related expenses. These expenses consist of computerized legal research, postage, conference calls, transportation, meals, lodging, court reporting, document processing, and trial technology. Row Decl. Supp. Att'y Fees Exs. C, D, E. Defendants object to all these expenses because the expenses are not recoverable under ORS § 742.061 and the expenses are not substantiated.
Expenses billed separately, and thus not a part of an attorney's hourly rate, may be allowed as part of the fee-shifting award under ORS § 742.061.
Plaintiff is entitled to claim expenses that were billed separately to the client. However, I decline to award all of the claimed expenses because not all of the expenses were substantiated or reasonable. I allow only the expense of $7,944.72 for computerized legal research via Westlaw and PACER because these expenses are typically incurred in litigation. Row Decl. Supp. Att'y Fees Ex. C at 5.
As for the other expenses, I find that they were not reasonable or substantiated sufficiently. Plaintiff submitted charts to summarize the expenses, but from the brief descriptions, it is unclear whether the charges were reasonable.
I combine the discussion of factors (c) and (g) because the fee customarily charged— factor (c), depends on the experience and ability of the attorney—factor (g). The chart below summarizes the hourly rates that Plaintiff seeks for its attorneys, law clerks, paralegals, and project assistants.
Row Decl. Supp. Att'y Fees Exs. G-K; Second Row Decl. Supp. Att'y Fees [431] ¶¶ 2-15.
As a benchmark for comparing an attorney's billing rate with the fee customarily charged in the locality, this Court uses the most recent Oregon State Bar (OSB) Economic Survey.
Plaintiff requests a $350 rate for Parsons, a business litigator with 15 years
Plaintiff requests a $325 rate for Farnell, an insurance coverage attorney with 21 years of experience. The average hourly rate for Portland attorneys with 16 to 20 years of practice (which Farnell would have had in 2008) is $256 and the median hourly rate is $250. The average hourly rate for Portland attorneys with 21 to 30 years of practice is $326 and the median hourly rate is $333. I find that the requested $325 rate is a reasonable hourly rate for Farnell.
Plaintiff requests rates varying between $250 and $290 for Row, an insurance coverage attorney with 12 years of experience. The average hourly rate for Portland attorneys with seven to nine years of practice (which Row would have had in 2008) is $258 and the median hourly rate is $250. The average hourly rate for Portland attorneys with ten to twelve years of practice is $280 and the median hourly rate is $275. I find that $275 is a reasonable hourly rate for Row.
Plaintiff requests a $265 rate for Hale, an associate with seven years of experience. Hale began working on this case in 2013. Second Row Decl. Supp. Att'y Fees ¶ 15. I find that the average hourly rate for an attorney with seven to nine years of experience, $258, is a reasonable rate for Hale.
Plaintiff requests rates varying between $225 and $235 for Perkins, a business transaction attorney who assisted with the audit request. Because I have already ruled that fees spent on the audit are not allowed, none of Perkins's time may be shifted to Defendants. Thus, I need not determine a reasonable hourly rate for Perkins.
Plaintiff requests a $225 rate for Adams, an associate who worked on this case until 2009. Adams was an associate with eight years of experience in 2009. Second Row Decl. Supp. Att'y Fees ¶ 14. Considering that the average hourly rate for an attorney with seven years to nine years of experience is $258, I find that the requested rate of $225 is a reasonable rate for Adams.
Plaintiff requests a $225 rate for Miller, a partner who had one billing entry in 2010. Miller had seven years of experience in 2010. Second Row Decl. Supp. Att'y Fees ¶ 5. Considering that the average hourly rate for an attorney with seven years of experience is $258, I find that the requested rate of $225 is a reasonable rate for Miller.
Plaintiff requests rates varying between $200 and $225 for Zubel, an associate who billed twice in this case—once in 2009 and once in 2012. Zubel had between six and nine years of experience while working on this case. Considering that the average hourly rate for an attorney in Portland with four to six years of experience is $210, and $258 for an attorney with seven to nine years of experience, I find that $220 is a reasonable hourly rate for Zubel.
Plaintiff requests rates varying between $175 and $190 for Kolta, an associate who was admitted to practice in 2010. The average hourly rate for Portland attorneys with zero to three years of practice is $182. I find that the rate of $175 is a reasonable rate for Kolta.
Plaintiff requests an hourly rate of $175 for Fredette, an associate who was admitted to practice in 2008. Fredette worked briefly on this case in 2010. Considering the average hourly rate for Portland attorneys with zero to three years of practice is $182, I find that the requested rate of $175 is a reasonable rate for Fredette.
Plaintiff requests a $400 rate for Wrenn, an insurance coverage attorney with 33 years of experience. The average hourly rate for Portland attorneys with 21 to 30 years of practice (which Wrenn would have had in 2008) is $326 and the median hourly rate is $333. The average hourly rate for Portland attorneys with over 30 years of practice is $340 and the median hourly rate is $350. I decline to award Wrenn a $400 billing rate. Although the case presented an issue of first impression, the case was not complex. I also view Plaintiff's handling of the case as average. I find that $340 is a reasonable hourly rate for Wrenn.
Plaintiff requests a $300 rate for Zariski, a general litigation attorney with 23 years of experience at the time he worked on this case in 2008 to 2011. Row Decl. Supp. Att'y Fees Ex. I at 2. Considering that the average hourly rate for Portland attorneys with 21 to 30 years of practice is $326, I find that the requested $300 hourly rate is reasonable for Zariski.
Plaintiff requests a $250 rate for Sachs, a litigation associate with seven years of experience. Sachs began working on this case in 2011. The average hourly rate for Portland attorneys with four to six years of practice (which Sachs would have had in 2011) is $210. The average hourly rate for Portland attorneys with seven to nine years of practice is $258. I decline to award Plaintiff's requested rate. As I have already stated, Plaintiff's handling of the case was average. I find that $220 is a reasonable hourly rate for Sachs.
Plaintiff additionally requests fees on behalf of three Wrenn Bender timekeepers for which no documentation is provided: MEF, LCN, and DRS. Row Decl. Supp. Att'y Fees Ex. M. Defendants have made an educated assumption that "LCN" is Leslie Nellermoe. Given the consensus among the parties in their briefing, I will recognize "LCN" as Nellermoe. Plaintiff requests a billing rate of $395 for Nellermoe. Nellermoe is the lead attorney for Plaintiff in the underlying suit involving the Portland Harbor Superfund Site. Nellermoe Decl. [430] ¶ 1. She has over 30 years of experience in environmental cleanup litigation.
As for "MEF" and "DRS," MEF billed 0.23 hours at $325 per hour and DRS billed 151.2 hours at $250 per hour. There is no evidence in the record to determine a reasonable hourly rate for these two individuals. Without an hourly rate, I am unable to award any fees for the work performed by MEF and DRS.
Plaintiff seeks a $100 hourly rate for all work performed by its law clerks. There is nothing in the record specifically addressing the reasonableness of the requested hourly rate for law clerks. In the last few years, other Judges in this District have awarded hourly rates of $125, $120, $100, and $80 for work performed by law clerks.
Plaintiff seeks varying rates for its paralegals: Baxter and Goodwin, $100; Conley, $125-135; and Bell, $150. Although the OSB Economic Survey contains no information regarding paralegal billing rates, Judges in this District have noted that a reasonable hourly rate for a paralegal should not exceed that of a first year associate.
The 2012 OSB Economic Survey shows that the average hourly rate for Portland attorneys with zero to three years of experience is $182. This attorney hourly rate is used as a ceiling and is not by itself determinative of a reasonable hourly rate. Plaintiff provides only the number of years of experience of the paralegals: Baxter, 5 years; Goodwin, 10 years; Conley, 15 years; and Bell, 20 years. I am unaware of whether these individuals have certifications or degrees that qualify them to be paralegals. In the absence of such evidence, I find that $100 is a reasonable rate for all the paralegal work performed.
Plaintiff also seeks a $75 hourly rate for Clarke, a project assistant. Plaintiff indicates that Clarke assisted local counsel Row and paralegal Goodwin with "discovery-related file-management tasks." Second Row Decl. ¶ 2. Clarke graduated from college in 2012.
Plaintiff sought $2,271,838.58 in defense costs and was awarded $1,887,907.82. While Plaintiff was successful in its claim on the duty to defend, I question whether the efforts by multiple attorneys justify the result. Although I have already reduced the fee request for multiple attorneys billing for the same meeting, I have yet to consider the time that multiple attorneys spent reviewing and revising each other's work. In certain instances, it is necessary for a supervising attorney to review the work performed by the junior attorney. For the most part, those instances are of no concern. I am, however, concerned by needless peer review, particularly between experienced outside and local counsel. The billing entries are replete with such examples.
I award Plaintiff $1,029,511.76 in attorney fees. The following chart summarizes my findings regarding attorney fees.
Plaintiff seeks $16,741.56 in costs, which are categorized as follows: $189 for fees of the Clerk, $502.25 for service of summons and subpoena fees, $14,022.78 for printed transcripts, $303 for witness fees, $1,226.88 for printing, and $497.65 for copies.
Federal Rule of Civil Procedure 54(d) provides that, "[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party." Fed. R. Civ. P. 54(d). "Costs" taxable under Rule 54(d) "are limited to those set forth in 28 U.S.C. §§ 1920 and 1821."
28 U.S.C. § 1920. "Taxable costs are limited to relatively minor, incidental expenses...."
Rule 54 creates a presumption in favor of awarding costs to the prevailing party.
The district court, however, "needs no affirmatively expressed reason to tax costs. Rather, it need only conclude that the reasons advanced by the party bearing the burden—the losing party—are not sufficiently persuasive to overcome the presumption."
As an initial matter, I find that Plaintiff is entitled to recover the $189 filing fee, $74.25 in service fees for Defendants Liberty Mutual and USF&G, and $303 in witness fees for John Pierce and William Goodhue. These expenses are enumerated in 28 U.S.C. § 1920 and Defendants do not contest that these expenses are taxable.
Plaintiff requests fees to serve dismissed Defendant Hartford and Defendants' expert witnesses John Pierce and William Goodhue. First, Defendants object to the $158 service fee for Hartford, who settled with Plaintiff and was dismissed from the case in August 2010. Plaintiff argues that it is immaterial that Hartford is no longer a party. I disagree. Plaintiff is entitled to costs because it prevailed at trial over Defendants Liberty Mutual and USF&G, not Hartford. I see no reason to award costs associated with Hartford against the Defendants.
Defendants also object to $269.50 in service fees for Pierce and Goodhue. Defendants argue that service was not necessary because they had agreed to produce the experts for depositions and had coordinated mutually agreeable dates for the depositions. McCurdy Decl. [394] ¶ 4; Moses Decl. [401] ¶ 2-3. Plaintiff does not dispute this fact, but asserts that subpoenas were necessary to ensure that the experts would bring their "work papers." Pl.'s Reply [403] 4. I agree with Plaintiff that serving the expert witnesses was necessary, even if Defendants had collaborated with Plaintiff to produce the experts on a particular day.
Plaintiff seeks fees incurred to obtain the transcripts of depositions, hearings, and the trial. To be awarded as costs, the transcripts must have been "necessarily obtained for use in the case." 28 U.S.C. § 1920(2). "In general, the mere fact that items are neither introduced into evidence nor otherwise become part of the official court record is not determinative of whether that item was reasonably or necessarily obtained for use in the case."
Plaintiff seeks transcript fees for the depositions of Laurie Pearson, Leslie Nellermoe, Julio Velez, Gary Church, J.W. Ring,
Ring, Nellermoe, Church, and Goodhue were witnesses at the trial. I find that these transcripts were necessarily obtained for Plaintiff to adequately prepare for trial. Additionally, portions of Pearson's deposition transcript were used in a dispositive motion and introduced at trial. I award Plaintiff $4,244.38 for all these transcripts.
Regarding Hornbeck, Plaintiff asserts that the transcript was necessary because he was USF&G's corporate representative and initially appeared on USF&G's witness list, though he did not testify at trial. Plaintiff obtained Hornbeck's transcript in August 2012, well before February 2013, when USF&G submitted its witness list. Row Decl. Supp. Bill Costs Ex. 2 at 23; USF&G Witness List [303]. Therefore, Plaintiff may recover Hornbeck's transcript fee only if I agree that transcript fees for corporate representatives are always necessary. I am not persuaded that this is true. I decline to award the transcript fees for Hornbeck.
Concerning the Velez and Rose depositions, both were deposed due to a discovery dispute between Plaintiff and USF&G. Plaintiff used these depositions in a renewed motion to compel discovery of the amount of defense costs that USF&G had paid other entities involved in the Superfund Site. The motion was not granted. Because the transcripts were not used at trial or in a dispositive motion, I find that the Velez and Rose transcripts were not necessarily obtained.
Next, Plaintiff seeks transcript fees for the following hearings: summary judgment on August 24, 2010; scheduling conference on March 29, 2011; motion to compel on January 6, 2012; motion to compel on May 7, 2012; and motion to compel on April 2, 2012. Row Decl. Supp. Bill Costs ¶¶ 4, 6, 7, 16, 17. Plaintiff does not sufficiently explain why the summary judgment or scheduling conference transcripts were necessary. Judge King issued a written opinion after the summary judgment hearing, which negated the need for a transcript. Regarding the scheduling conference, a minute order issued after the conference. Plaintiff argues that the minutes did not fully summarize the scheduling conference. A scheduling conference is not a lengthy proceeding. Plaintiff does not explain why the transcript was necessary, when taking notes would have been sufficient—particularly since two attorneys appeared on Plaintiff's behalf. Mar. 29, 2011 Minutes [174]. I decline to award costs for the summary judgment or scheduling conference transcripts.
As for the transcripts for the motions to compel, Plaintiff states that the transcripts were necessary because the minutes issued after the proceedings did not fully capture the proceedings. Row Decl. Supp. Bill Costs ¶¶ 7, 16, 17. According to Plaintiff, the information omitted from the minutes includes a request by the court that Plaintiff write a letter about Velez's testimony and that Plaintiff obtained permission from the court to take depositions of additional witnesses. Row Decl. Supp. Mot. Compel [260] ¶¶ 7-9. Again, Plaintiff does not explain why counsel could not take notes during the hearing, especially since two attorneys appeared on behalf of Plaintiff for all three motion to compel proceedings. The omitted information was not so complex that a transcript was required. I decline to award fees for these transcripts.
Finally, Plaintiff seeks transcript fees for the pretrial conference on March 18, 2013 and trial transcripts for March 26-28, 2013. Row Decl. Supp. Bill Costs ¶¶ 19, 20. The district court has authority to award costs for trial transcripts.
Plaintiff states that the pretrial conference and trial transcripts were necessary to prepare the written closing arguments. Row Decl. Supp. Bill Costs ¶¶ 19-20. The pretrial conference concerned evidentiary rulings for the trial. The rulings were not complicated. In fact, I had denied all of Defendants' motions in limine and their objections to the witness statements and exhibits. Mar. 18, 2013 Minutes [342]. Plaintiff does not adequately explain why the pretrial conference transcript was necessary. The fee for the pretrial conference transcript is denied. As for the trial transcripts, Plaintiff paid $2,273.80 for "rough" transcripts and $4,394.30 for "final" transcripts. Parks Decl. [393] ¶ 2. The rough transcripts were available at the end of each trial day. Plaintiff argues that the rough trial transcripts were necessary to prepare for the next day of trial. The trial lasted three days and seven witnesses testified. I am not persuaded that rough transcripts were necessary at the end of each trial day. In contrast, the parties prepared written closing statements that cited extensively to the record and the admitted exhibits. It was necessary to obtain the final transcripts to cite accurately to the record. I award Plaintiff $4,394.30 for the final trial transcripts.
Costs of making copies are available under 28 U.S.C. § 1920(4). "Copying costs for documents produced to opposing parties in discovery, submitted to the court for consideration of motions, and used as exhibits at trial are recoverable."
Plaintiff requests $1,226.88 in costs for copying three sets of trial exhibits. Row Decl. Supp. Bill Costs ¶ 18. The printing cost consists of 4,761 regular copies at $0.08 per copy and 846 color copies at $1 per copy. Defendant USF&G objects to the $1 per copy charge for the color copies, arguing that $0.50 is a more reasonable price per copy. In
Plaintiff also requests $276.50 for copies from the Oregon State Archives and $221.15 for copies of exhibits produced at Nellermoe's Rule 30(b)(6) deposition. Row Decl. Supp. Bill Costs Ex. B at 5, 29. At the Archives, Plaintiff obtained copies of the legislative history of the Oregon Environmental Cleanup Assistance Act.
In summary, Plaintiff is awarded a total of $11,198.96 for the following costs: (1) $189 in filing fees, (2) $343.75 in service fees, (3) $303 in witness fees, (4) $8,638.68 for transcript fees, and (5) $1,724.53 for copying costs.
Plaintiff moves to amend the judgment for two reasons: (1) to reduce the amount of damages awarded by $658.33 due to a calculation error and (2) to allow for prejudgment interest in the amount of $550,037.41.
Plaintiff was awarded a sum of $1,887,907.82 for defense costs. Plaintiff argues that the amount should be reduced by $658.33 to account for a calculation error regarding Nellermoe's work on the executive committee. The billing entry in question, $658.33 for executive committee work, was not considered by Defendants' expert in his recommendation to deduct all committee work from the requested damage award. Therefore, the recommended deduction for all committee work did not include $658.33.
I requested supplemental briefing from the parties to calculate the amount of executive committee work performed. To calculate the executive committee work, I reduced the requested damage award by the total fees for all committee work, but then added back the fees for the executive committee work. Defendants' executive committee work total included the $658.33 billing entry, which I added to the award total. Because Defendants' expert never deducted the $658.33 billing entry, there was no need to add back $658.33 when calculating the damage award. I agree with Plaintiff that a reduction of $658.33 is correct. The judgment shall be amended to $1,887,249.49.
Plaintiff seeks to amend the judgment to include an award of prejudgment interest of $550,037.41. Defendants argue that Plaintiff is not entitled to prejudgment interest because Plaintiff failed to plead it in its second amended complaint.
First, the parties dispute whether Plaintiff was required to plead prejudgment interest. Defendants argue that under Oregon law, "[a] party seeking prejudgment interest `must specifically plead a foundation for prejudgment interest. To do so, that party must (1) request prejudgment interest in the prayer and (2) plead facts sufficient to state a claim for prejudgment interest.'"
Plaintiff counters that Defendant is incorrect to use Oregon's procedural requirement for pleading prejudgment interest. Under the federal rules, Plaintiff argues that it is not required to plead prejudgment interest. A court "should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings." Fed. R. Civ. P. 54(c). The Ninth Circuit has held that "[t]he right to recover prejudgment interest was not affected by [plaintiff's] failure to demand interest in its federal pleadings."
Since I have found that Plaintiff is entitled to prejudgment interest, I now must determine the amount of prejudgment interest that is owed. Prejudgment interest in this case is governed by ORS § 82.010, which provides for simple interest at the rate of nine percent per annum on "[a]ll moneys after they become due[.]" ORS § 82.010(1)(a);
Under Oregon law, a court may award prejudgment interest only when the exact amount, and the time from which interest should run, is ascertained or easily ascertainable.
Plaintiff's damages are the defense costs that it incurred to respond to the 104(e) request and for its participation in the PCI Group. Plaintiff calculated the interest from the date that the invoice was paid until August 26, 2013, the date of the judgment. Pl.'s Mem. 6;
I am not persuaded that the damages were not ascertainable simply because there was a dispute among experts as to the amount owed, and that the final determination by the court differed from the disputed amounts. "[T]he fact that the amount owed cannot be ascertained without resolving complex issues of fact does not bar a determination that the defendant owed sums certain at a date certain."
I am also not persuaded that the prejudgment interest should run from the date that Plaintiff provided invoices to Defendants. In this case, the damages from the failure to defend began to accrue from the date of tender. I determined that date was January 29, 2008, when Plaintiff gave notice to Defendants about the 104(e) request. Findings of Fact and Conclusions of Law [367], 16. From that date forward, Defendants knew of their potential duty to defend and that the damages, e.g., the defense costs, were ongoing and would accumulate until Defendants stepped in to defend. Defendants attempt to modify the inquiry to when Defendants knew of the amount of damages, when the relevant inquiry is when the damages were ascertainable. Although Defendants did not know the current status of the damages until October 25, 2010, that does not mean the damages were first ascertainable on that date. In this particular situation, the damages were ascertainable as they accrued over time. I agree with Plaintiff's methodology, that the damages were ascertainable on the day Plaintiff paid the defense cost. If Defendants had assumed the defense of the 104(e) request, they would have received the invoices as they were due. Plaintiff was deprived of the use of the money that it paid for defense costs in the absence of Defendants' assumption of the duty to defend. The award of prejudgment interest is necessary to make Plaintiff whole. I have reviewed Plaintiff's calculation of prejudgment interest in Exhibit A of the Row Declaration in support of Plaintiff's motion to amend [383]. Plaintiff is awarded $550,037.41 in prejudgment interest.
Plaintiff additionally requests prejudgment interest of $465.37 per day from August 26, 2013, the date of judgment, until the entry of the amended judgment. Plaintiff does not explain why it is entitled to prejudgment interest after judgment had already entered on August 26, 2013. Plaintiff moved to amend the judgment so that it could request prejudgment interest. Defendants did not cause the delay in obtaining an enforceable judgment. I decline to extend the award of prejudgment interest until the date of the amended judgment. Plaintiff is entitled to postjudgment interest as of August 26, 2013, the date of the initial judgment.
Based on the foregoing, Plaintiff's motion for attorney fees [377] and bill of costs [374] are granted in part and denied in part. Plaintiff is awarded attorney fees in the amount of $1,029,511.76 and costs in the amount of $11,198.96. Plaintiff's motion to amend the judgment [381] is granted as follows: the judgment is amended to award Plaintiff $1,887,249.49 and prejudgment interest in the amount of $550.037.41.
IT IS SO ORDERED.
