West Linn Corporate Park, LLC v. City of West Linn, CV-01-1787-HZ

• Decision Date: 04 October 2011
• Docket Number: No. CV-01-1787-HZ,CV-01-1787-HZ
• Citation: West Linn Corporate Park, LLC v. City of West Linn, No. CV-01-1787-HZ (D. Or. Oct 04, 2011)
• Parties: WEST LINN CORPORATE PARK, LLC, Plaintiff, v. CITY OF WEST LINN, BORIS PIATSKI, and DOE DEFENDANTS 1 THROUGH 10, Defendants.
• Court: U.S. District Court — District of Oregon

WEST LINN CORPORATE PARK, LLC, Plaintiff,

v.CITY OF WEST LINN, BORIS PIATSKI, and DOE DEFENDANTS 1 THROUGH 10, Defendants.

No. CV-01-1787-HZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

Dated: October 4, 2011

OPINION & ORDER

Michael T. Garone

Donald Joe Willis

Jill S. Gelineau

SCHWABE, WILLIAMSON & WYATT, PC.

Pacwest Center

Attorneys for Plaintiff

Robert E. Franz, Jr.

LAW OFFICE OF ROBERT E. FRANZ, JR.

Attorney for Defendants

HERNANDEZ, District Judge:

In this takings case, plaintiff West Linn Corporate Park prevailed at trial on three of its nine claims: (1) a state takings claim regarding Greene Street (plaintiff's fourth claim for relief); (2) a federal takings claim regarding Greene Street (plaintiff's fifth claim for relief)¹; and (3) a First Amendment retaliation claim (plaintiff's sixth claim for relief).Plaintiff also prevailed on defendants' several counterclaims.Defendants prevailed, either at summary judgment or at trial, on six of plaintiff's claims, including one asserting the breach of an annexation agreement (plaintiff's ninth claim for relief).Judge Ashmanskas, who conducted the court trial in the case, awarded $5,100 in damages to plaintiff on the Greene Street takings claim, and $13,053 in damages for the First Amendment retaliation claim.Sept. 22, 2005 Judgment (dkt #216).

In a May 22, 2006 Opinion & Order, Judge Ashmanskas considered the parties' requests for attorney's fees and costs.He first awarded $9,972.50 in fees to defendants for prevailing on the annexation agreement claim.May 22, 2006 Op.at pp. 3-4(dkt #240).He then considered plaintiff's request for $574,086.43 in fees and costs, out of a total of $779,187.79 incurred.Id. at p. 4.He concluded that the requested hourly rates were not grossly excessive, but that the hours expended in the litigation and sought by plaintiff were unreasonable.Id. at pp 6-9.Specifically, he concluded that fees sought for time spent in the nineteen months preceding the filing of the Complaint were not necessarily incurred in preparation for the litigation and that plaintiff failed to appropriately apportion the fees to allow for a fee award related only to the claims upon which plaintiff prevailed.Id. at p. 7.This "defect," as Judge Ashmanskas referred to the issue, "runs throughout [plaintiff's]fee petition."Id.

He also concluded that the claims upon which plaintiff prevailed, including the retaliation claim which was "related to the Greene Street dispute," were "only tangentially related to the claims upon which it did not prevail" and thus, the claims on which plaintiff prevailed were "insufficiently related to the other claims to justify recovery of fees incurred for general tasks."Id. at p. 8.Finally, Judge Ashmanskas concluded that the hours sought were "excessive, inadequately documented and include[d] duplicative work."Id. at p.9.In the end, Judge Ashmanskas awarded plaintiff $165,000 in attorney's fees, and $5,000 in costs, for a total award of $170,000.

Both parties appealed the Judgment to the Ninth Circuit Court of Appeals.At issue on appeal were (1) the claims on which plaintiff prevailed, (2) the two takings claims related to off-site public improvements (plaintiff's first and second claims for relief), and (3)defendants' counterclaims.The Ninth Circuit dismissed the first counterclaim as moot, and affirmed the Judgment in favor of plaintiff on the remaining counterclaims.

The Ninth Circuit further affirmed the Judgment in favor of defendants on the two off-site public improvements takings claims.It also affirmed the Judgment in favor of plaintiff onboth of the Greene Street takings claims.However, the Ninth Circuit reversed the Judgment in favor of plaintiff on the First Amendment retaliation claim.As a result, plaintiff is no longer entitled to the $13,053 in damages the district court awarded to plaintiff on that claim.

The Ninth Circuit noted that the $165,000 in fees awarded to plaintiff was because plaintiff prevailed on the Greene Street takings claim as well as the retaliation claim.Because it reversed the Judgment on the retaliation claim, the Ninth Circuit remanded the case to this Court for reapportionment of the $165,000 fee award which, the Ninth Circuit noted, should account for plaintiff's success on the Greene Street takings claim only.²

Furthermore, as the Ninth Circuit indicated, plaintiff is entitled to a fee award on appeal for prevailing on the Greene Street takings claim.Or. Rev. Stat. §§ (O.R.S.) 20.085.Because the Ninth Circuit was remanding the case to the district court for reapportionment of trial fees, it also remanded to the district court the question of plaintiff's fee award for its successful appeal on the Greene Street takings claim.

Accordingly, there are two issues presently before me: (1) the apportionment of the $170,000 in trial fees and costs previously awarded to plaintiff by Judge Ashmanskas to account for the fact that plaintiff has prevailed only as to the Greene Street takings claim; and (2) an award of reasonable attorney's fees to plaintiff for prevailing on the Greene Street takings claim on appeal.

I.Trial Fees

Plaintiff contends that the appropriate apportionment is to divide the $170,000 fee andcost award in half, for an award of $85,000.Plaintiff also seeks an additional $1,112.50 for time spent by plaintiff's attorney Michael Garone preparing for an approximately fifteen-minute telephone status conference with this Court following the Ninth Circuit remand, and in drafting a five-page memorandum in support of its apportionment argument, for a total award of $86,112.50 Additionally, plaintiff contends that the $85,000 portion of the award should bear prejudgment interest at a rate of 9% per annum, beginning on May 22, 2006, the date the fees were first awarded by Judge Ashmanskas.

Plaintiff contends that even though, in plaintiff's opinion, more time was spent on the Greene Street takings claim than on the retaliation claim (suggesting that plaintiff is entitled to more than half of the previously awarded fees), in an effort to avoid further litigation, a 50% apportionment of the $170,000 prior fee and cost award is reasonable.Plaintiff argues that defendants have already conceded that the fees awarded to plaintiff should be split approximately fifty-fifty between the Greene Street takings claim on the one hand and the retaliation claim on the other hand.Thus, plaintiff argues, I should accept plaintiff's estimate that the time properly allocated to each claim is approximately equal.

Defendants contend that the issues involved in the Greene Street takings claim were simple and straightforward and that, as defendants contended previously before Judge Ashmanskas, $30,000 is a reasonable fee for that claim.Defendants also oppose an award of interest on the fee award dating from May 22, 2006.Rather, defendants contend, they are owed interest on the $9,972.50 they were awarded for prevailing on the breach of the annexation agreement claim, which was never challenged on appeal.

I agree with plaintiff that the fees should be divided in half.Without a discussion of anyspecific apportionment by Judge Ashmanskas, it is reasonable to assume that the fees he awarded were to be divided equally between the two claims.Additionally, I agree with plaintiff that this percentage closely resembles the percentage defendants themselves advocated to Judge Ashmanskas as being an appropriate amount for each of the two claims.

As plaintiff notes, defendants argued that a reasonable fee for prosecution of the Greene Street takings claim was $30,000, and a reasonable fee award for the First Amendment retaliation claim was $35,000, for a total award of $65,000.Franz Dec.1, 2005 Affid. at p. 4(dkt #234).This, according to plaintiff, indicates that at the time defendants' counsel made these statements, defendants conceded that of the total amount of fees defendants contended was reasonable, 46.2% was for the Greene Street takings claim and 53.8% was for the retaliation claim.Given defendants' position before Judge Ashmanskas, plaintiff argues that it is reasonable to apply the same, or similar, relative percentages to the claims at this time.

Defendants maintain that they were not relying on a percentage but rather, a flat fee of $30,000 as a reasonable fee for the pursuit of the Greene Street takings claim and that it is unreasonable to apply the relative percentages.But, obviously, Judge Ashmanskas rejected defendants' dollar figures by awarding $100,000 more than what defendants argued was the reasonable amount of fees to be awarded to plaintiff.Defendants cannot deny that in terms of relative value, defendants argued for dollar figures for each claim that were 46.2% and 53.8% of the total dollar figure defendants deemed reasonable, suggesting that defendants viewed the claims as requiring almost equal amount of time and effort.

A reasonable apportionment of the fees is to deduct 50% of the fees and 50% of the costs previously awarded by Judge Ashmankas, to account for the fact that plaintiff is no longer theprevailing party on the retaliation claim.Thus, I award $85,000 in trial fees and costs to plaintiff for the Greene Street takings claim.

As for the additional time requested by Mr. Garone, I award one hour of time at the rate of $445 per hour.Given Mr. Garone's familiarity with the case, little or no time was required to prepare for the telephone status conference this Court conducted on August 26, 2011.Given that the minute order setting the conference indicated it was a "status" conference, no substantive preparation was required.Additionally, the memorandum plaintiff submitted following the conference is largely a repeat of the argument Mr. Garone presented at the telephone conference, which he himself indicated he had previously presented to defendants' counsel.Thus, a total of 2.5 hours of time spent preparing for and attending...