1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 W.G. BARR MANAGEMENT, LLC, Case No. 23-cv-02257-TSH

8 Plaintiff,

ORDER GRANTING MOTION FOR

9 v. ATTORNEYS’ FEES; ORDER RE:

BILL OF COSTS

10 CONTEKPRO LLC, Re: Dkt. No. 65 11 Defendant.

12 13 I. INTRODUCTION 14 Pending before the Court is Defendant ContekPro, LLC’s motion for attorneys’ fees. ECF 15 No. 65. Plaintiff W.G. Barr Beverage Co. (d/b/a Two Pitchers Brewing Co., “Two Pitchers”) filed 16 an Opposition (ECF No. 67) and ContekPro filed a Reply (ECF No. 71). ContekPro has also filed 17 a bill of costs (ECF No. 66), to which Two Pitchers has filed objections (ECF No. 68). The Court 18 finds these matters suitable for disposition without oral argument and VACATES the August 22, 19 2024 hearing. See Civ. L.R. 7-1(b). For the reasons stated below, the Court GRANTS 20 ContekPro’s motion for attorneys’ fees and bill of costs.1 21 II. BACKGROUND 22 Two Pitchers is located in Oakland, California. First Am. Compl. ¶ 8, ECF No. 11. 23 ContekPro is located in Tigard, Oregon. Attahri Decl. ¶ 3, ECF No. 48-2. In its complaint, Two 24 Pitchers alleged ContekPro breached their agreement for ContekPro to build and deliver a pre- 25 inspected, finished Kitchen Container to Two Pitchers’ taproom in Oakland. It alleged three 26 causes of action: (1) Breach of Contract; (2) Promissory Estoppel; and (3) Breach of Implied Duty 27 1 of Good Faith and Fair Dealing. On June 5, 2024, the Court denied Two Pitchers’ motion for 2 summary judgment and granted ContekPro’s cross-motion for summary judgment. ECF No. 62 3 (“MSJ Order”); W.G. Barr Mgmt., LLC v. ContekPro LLC, 2024 WL 2868146, at *1 (N.D. Cal. 4 June 5, 2024). ContekPro filed the present motion and bill of costs on June 19, 2024. 5 III. LEGAL STANDARD 6 The first issue in assessing any fee application is to determine the governing law. When 7 the action is based on diversity, state law governs a party’s entitlement to fees. Alaska Rent-A- 8 Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 973 (9th Cir. 2013) (“[S]tate law on attorney’s 9 fees is substantive, so state law applies in diversity cases.”). Here, the parties agree, and the Court 10 has already found, that “Oregon law governs this dispute,” as the parties’ contract provides for the 11 application of Oregon law. MSJ Order at 7; see also O’Hare Decl., Ex. A (Contract) at 2, ECF 12 No. 65-4 (“These terms and conditions shall be construed, interpreted and performed exclusively 13 according to the laws, excluding conflict of law rules, of the State of Oregon. United States of 14 America.”). 15 In Oregon, “a court awards attorney fees to a litigant only if a statute or contract authorizes 16 such an award.” Swett v. Bradbury, 335 Or. 378, 381 (2003). Here, ContekPro seeks attorney’s 17 fees under Oregon Revised Statutes (“ORS”) section 20.096, which provides:

18 (1) In any action or suit in which a claim is made based on a contract that specifically provides that attorney fees and costs incurred to 19 enforce the provisions of the contract shall be awarded to one of the parties, the party that prevails on the claim shall be entitled to 20 reasonable attorney fees in addition to costs and disbursements, without regard to whether the prevailing party is the party specified 21 in the contract and without regard to whether the prevailing party is a party to the contract. 22 (3) As used in this section . . ., “contract” includes any instrument or 23 document evidencing a debt. 24 ORS § 20.096. “Courts’ allowance of such fees is mandatory.” Cape Haze Invs., Ltd. v. Eilers, 25 2009 WL 991003, at *1 (W.D. Wash. Apr. 13, 2009) (citing McConnell v. Sutherland, 135 Or. 26 App. 477, 484 (1995)). 27 “In considering a party’s request for attorney fees, the trial court looks, first, to whether the 1 v. Baugh, 164 Or. App. 243, 246 (2000). “The fee applicant bears the burden of establishing 2 entitlement to an award and documenting the appropriate hours expended and hourly rates.” 3 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “The party opposing the fee application has a 4 burden of rebuttal that requires submission of evidence to the district court challenging the 5 accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in 6 its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992). 7 However, “the district court [is] required to independently review plaintiffs’ fee request even 8 absent defense objections[.]” Id. 9 IV. DISCUSSION 10 A. Rule 59(e) Motion 11 Two Pitchers’ first argument is that ContekPro’s motion for attorneys’ fees should be 12 denied based on its pending motion to alter or amend judgment, arguing the Court’s judgment is 13 based on manifest errors. Opp’n at 1. However, that motion has been denied, see ECF No. 73, 14 and this argument is therefore moot. 15 B. ContekPro is Entitled to Attorneys’ Fees Under Oregon Law 16 The Dispute Resolution clause of the parties’ contract contains a provision that provides 17 for an award of attorney’s fees to ContekPro for any fees incurred due to Two Pitcher’s breach of 18 the agreement or to pursue any remedies that it may have under the agreement:

19 Should ContekPro incur legal expenses or costs, including attorneys’ fees, due to Buyer’s breach of any aspect of these Terms and 20 Conditions, or to pursue ContekPro’s remedies against Buyer hereunder, Buyer shall be responsible to ContekPro for all such 21 expenses, costs and fees. 22 Contract at 3. The agreement also contains a reciprocal provision providing for an award of 23 attorneys’ fees to Two Pitchers for any fees that Two Pitcher’s might incur:

24 Should Buyer/end user incur legal expenses or costs, including attorneys’ fees, due to ContekPro's breach of any aspect of these 25 Terms and Conditions, or to pursue Buyer/end user’s remedies against ContekPro hereunder, ContekPro shall be responsible to Buyer/end 26 user for all such expenses, costs, and fees. 27 Id. 1 one year after any cause of action occurred, but it failed to do so. MSJ Order at 8-9; see also 2 Contract at 2 (“Any legal action with respect to any business transaction between ContekPro and 3 its buyer /end users must commence within one year after the cause of action occurs.”). There is 4 no dispute that, had Two Pitchers been successful in its action to enforce provisions of the 5 contract, it would have been entitled to recover its attorneys’ fees. See Mot. at 5. As ContekPro 6 incurred legal expenses and costs because of this failure, its expenses are a direct and proximate 7 result of Two Pitcher’s breach of this term of the agreement. Thus, since Two Pitchers would 8 have been entitled to recover its attorneys’ fees had it prevailed in this action, section 20.096(1) 9 provides that ContekPro is also entitled to recover its attorneys’ fees as the prevailing party. See 10 ORS § 20.096(1) (“[T]he party that prevails on the claim shall be entitled to reasonable attorney 11 fees in addition to costs and disbursements, without regard to whether the prevailing party is the 12 party specified in the contract and without regard to whether the prevailing party is a party to the 13 contract.”). Accordingly, under the reciprocity provision of section 20.096(1), the Court finds 14 ContekPro is entitled to an award of attorneys’ fees. 15 1. ORS § 20.096 16 Two Pitchers argues section 20.096(1) only applies where a contract provides that 17 attorneys’ fees shall be awarded to one of the parties. Opp’n at 3 (“[T]he statute does not apply 18 where, as here, the contract specifies that both buyer and seller have the right to the recovery of 19 attorneys’ fees in specified circumstances.”). In support of its argument, Two Pitchers cites Jewell 20 v. Triple B. Enterprises, in which the Oregon Supreme Court explained: “The statute requires 21 reciprocity of recovery of attorneys’ fees,” with the purpose of “allow[ing] the buyer and the seller 22 the same right to collect attorney fees despite onesided contractual provisions.” 290 Or. 885, 887- 23 88 (1981). Thus, section 20.096 serves a “remedial and reciprocal purpose” by preventing an 24 outcome whereby through “skillful drafting the seller in a contract has the security of attorney fees 25 if he prevails in an action to enforce the primary contractual obligation of the buyer, but the buyer 26 is not allowed fees if he wins in an action to enforce the reciprocal primary contractual obligation 27 of the seller.” Id. at 888. However, in applying Jewell, subsequent cases have made clear that 1 that the attorney-fee provision contemplates, attorney fees are available to the prevailing party 2 under ORS 20.096 and Jewell, regardless of who brought the action.” Awbrey Towers, LLC v. W. 3 Radio Servs., Inc., 249 Or. App. 500, 513 (2012); see id. at 513 n.5 (“The contract in this case, 4 unlike the Jewell contract, is not ‘one sided’ in the traditional sense; that is, the contract states that 5 attorney fees will be awarded to whichever party prevails in a contract-enforcement dispute 6 initiated by a member of the LLC. That distinction between the two contracts does not affect our 7 analysis. The Supreme Court consistently has held that ORS 20.096 applies even to contractual 8 attorney-fee provisions that, by their terms, already are reciprocal in some respects.”) (citing 9 Carlson v. Blumenstein, 293 Or. 494, 500 n. 3 (1982)); Benchmark Nw., Inc. v. Sambhi, 191 Or. 10 App. 520, 524 (2004) (“The inference we draw is that ORS 20.096(1) is, as it is always called, a 11 reciprocity statute, and it should be broadly construed. . . . Thus, the scope of defendants’ attorney 12 fees in this case should mirror the scope of plaintiff’s fees, had it prevailed.”) (citing Jewell, 290 13 Or. at 888); Carlson, 293 Or. at 500 n.3 (“The attorney fee provision involved in this case is, by its 14 terms, reciprocal. It could be argued that ORS 20.096 has no application because it was intended 15 to deal only with one-sided contractual provisions. Since 1971, however, this court has applied 16 ORS 20.096 in cases in which the contractual provisions at issue were already reciprocal.”) 17 (collecting cases). Here, as Two Pitchers brought the kind of action that would have entitled it to 18 an award of attorneys’ had it prevailed, fees are also available to ContekPro as the prevailing 19 party. 20 2. Breach of Contract 21 Two Pitchers also argues its failure to file this case within a year of the breach does not 22 give rise to a breach of contract that would entitle ContekPro to attorneys’ fees. Opp’n at 2. It 23 argues the contractual provision to file suit within one year is a limitation on legal remedies, not 24 an element of contract performance that could establish a breach of contract. Id. However, 25 “[d]ismissals based on the expiration of the statute of limitations are treated as dismissal on the 26 merits for the purpose of awarding attorneys’ fees.” Yenidunya Invs., Ltd. v. Magnum Seeds, Inc., 27 2012 WL 538263, at *2 (E.D. Cal. Feb. 17, 2012), aff’d, 562 F. App’x 560 (9th Cir. 2014). Thus, 1 limitations grounds. See 621 Two, LLC v. Leggett & Platt, Inc., 2021 WL 4860687, at *2 (C.D. 2 Cal. Aug. 31, 2021) (“Plaintiff initiated a legal proceeding to enforce the agreement, and because 3 this court found the statute of limitations had run, Defendant was the prevailing party and is 4 therefore entitled to attorneys’ fees.”). 5 C. Evidence of Attorneys’ Fees 6 Two Pitchers next argues the Court should deny ContekPro’s motion because it “does not 7 assert that it has, in fact, actually paid or has been billed the fees that it now seeks to recover from 8 Two Pitchers.” Opp’n at 5 (citing Anderson v. Wheeler, 214 Or. App. 318, 322 (2007) (“[T]he 9 pertinent meaning of ‘incur’ is to ‘become liable or subject to.’ . . . That means that attorney fees 10 are recoverable only if a party has incurred them—that is, has become liable to pay them.”)). 11 However, throughout its motion, ContekPro states it “incurred fees”. See, e.g., Mot. at 6 12 (“ContekPro incurred the following for defense of this matter.”); id. at 4 (“Here, ContekPro 13 incurred significant legal expenses and costs . . . .”). ContekPro’s attorneys have also averred in 14 detail to the costs and fees incurred by ContekPro in this action. See O’Hare Decl.; Thomas Decl. 15 This argument is without merit. 16 D. Reasonable Fee Award 17 Under Oregon law, “[i]n determining a reasonable amount of fees to award ‘in any case in 18 which an award of attorney fees is authorized or required by statute,’ ORS 20.075(2) requires the 19 court to ‘consider the factors in subsection (1) of this section’—the factors used to determine 20 whether to award discretionary fees in the first place—as well as other statutory factors contained 21 in subsection (2).” Friends of the Columbia Gorge v. Energy Facility Siting Council, 367 Or. 258, 22 267 (2020). Section 20.075 establishes factors for courts to considered in determining the size of 23 a fee award.2 Subsection (1) directs the Court to consider:

24 (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 25

26 2 ORS section 20.075(1) provides factors to consider in determining whether to award attorney fees when the award of fees is discretionary, but section 20.075(2) provides that, in determining 27 the amount of fees, courts are to consider the factors laid out in both sections. See Beck v. Met. reckless, willful, malicious, in bad faith or illegal. 1 (b) The objective reasonableness of the claims and defenses asserted 2 by the parties.

3 (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 4 cases.

5 (d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses. 6 (e) The objective reasonableness of the parties and the diligence of 7 the parties and their attorneys during the proceedings.

8 (f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute. 9 (g) The amount that the court has awarded as a prevailing party fee 10 under ORS 20.190 (Prevailing party fees).

11 (h) Such other factors as the court may consider appropriate under the circumstances of the case. 12 ORS § 20.075(1). Under subsection (2), the Court must also consider the following: 13 (1) A court shall consider the following factors in determining 14 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 15 discretion to decide whether to award attorney fees:

16 (a) The time and labor required in the proceeding, the novelty and difficulty of the questions involved in the proceeding and the skill 17 needed to properly perform the legal services.

18 (b) The likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney 19 from taking other cases.

20 (c) The fee customarily charged in the locality for similar legal services. 21 (d) The amount involved in the controversy and the results obtained. 22 (e) The time limitations imposed by the client or the circumstances of 23 the case.

24 (f) The nature and length of the attorney's professional relationship with the client. 25 (g) The experience, reputation and ability of the attorney performing 26 the services.

27 (h) Whether the fee of the attorney is fixed or contingent. or the award of attorney fees otherwise promotes access to justice. 1 2 ORS § 20.075(2). 3 These factors “are frequently captured by the ‘lodestar’ approach, under which a fee award 4 is ‘based on a reasonable hourly rate, multiplied by a reasonable number of hours devoted to work 5 on the case, with certain adjustments potentially made to that amount for factors such as the risk of 6 loss and the quality of the attorney’s work.’” Friends of the Columbia Gorge, 367 Or. at 267 7 (quoting Strawn v. Farmers Ins. Co., 353 Or. 210, 217 (2013). “What constitutes reasonable 8 attorney fees is within the sound discretion of the court ordering the fee award.” Id. (citing ORS § 9 20.075(3)). 10 1. Reasonable Hourly Rates 11 In calculating reasonable hourly rates, courts look to the prevailing market rates in the 12 relevant community for similar work by attorneys of comparable skill, experience, and reputation. 13 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). Generally, the relevant 14 community is the forum where the district court sits. Id. The applicant bears the burden to 15 produce sufficient evidence that the rates claimed for its attorneys are in line with prevailing 16 market rates. Fischer v. SJB-PD, Inc., 214 F.3d 1115, 1121 (9th Cir. 2000) (citing Hensley, 461 17 U.S. at 433). “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in 18 the community, and rate determinations in other cases, particularly those setting a rate for the 19 plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” U. Steelworkers of 20 Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Put differently, the party seeking 21 fees bears the burden to prove the reasonableness of hours expended using detailed time records 22 documenting completed tasks and time expended. Hensley, 461 U.S. at 437; Roberts v. City of 23 Honolulu, 938 F.3d 1020, 1024 (9th Cir. 2019) (“It is the responsibility of the attorney seeking 24 fees to submit evidence to support the requested hourly rate.”). 25 When a party seeking fees submits declarations, courts must consider those declarations 26 and cannot substitute that analysis by only considering previous fee awards. Roberts, 938 F.3d at 27 1024 (“The district court diverged from the applicable standard in discarding the declarations 1 (emphasis in original). Indeed, the Ninth Circuit has explained that solely “[e]xamining prior fee 2 awards to [even the same attorneys] in the district [is] not an acceptable substitute for considering 3 declarations submitted by [that attorney], and explaining why those declarations did or did not 4 establish the prevailing hourly rate in the district.” Id. at 1025. 5 In support of its motion, ContekPro provided the declaration of its counsel from Anderson 6 Zeigler, Richard C. O’Hare, who “ha[s] been the attorney with the most involvement in, and 7 responsibility for, the prosecution and defense of” this matter. O’Hare Decl. ¶ 2. Mr. O’Hare 8 graduated from McGeorge School of Law, University of the Pacific with a Juris Doctorate in May 9 of 1993. Id. ¶ 13. He was admitted to the California State Bar in December 1993. Id. Mr. 10 O’Hare is registered to practice before all state and federal courts in California, the 9th Circuit 11 Court of Appeal, and the United States Patent and Trademark Office in patent cases. Id. During 12 the course of this litigation, Mr. O’Hare’s time was billed at $450 per hour, the standard rate at 13 which the firm charged most other firm clients for his services. Id. ¶ 14. 14 Attorney Ryan F. Thomas has been a shareholder at Anderson Ziegler, since 2023. Id. ¶ 15 16. Prior to joining Anderson Ziegler, Mr. Thomas was the Managing Shareholder of Johnston | 16 Thomas (presently named Johnston & Associates) for over a decade. Id. Mr. Thomas graduated 17 from Golden Gate University, School of Law, in California and was admitted to the practice of 18 law in this state on May 25, 2004, and has been actively practicing since that date. Id. Mr. 19 Thomas’s billing rate throughout this litigation was $450 per hour. Id. 20 Paralegal Danielle Bortolussi graduated from Kaplan University obtaining her Paralegal 21 Certificate in 2016. Id. ¶ 17. Ms. Bortolussi’s billing rate at the inception of this litigation was 22 $195.00 per hour and increased to $225.00 per hour on January 1, 2024. Id. 23 ContekPro’s fee request also includes work performed by its Oregon attorney, S. Ward 24 Greene of Farleigh Wada Witt, prior to retention of counsel in California. Mot. at 6-7; Ward 25 Greene Decl., ECF No. 65-2; O’Hare Decl. ¶ 19. Ward Greene obtained his Juris Doctor in 1973 26 from Duke University and was admitted to practice law in the state of Oregon in 1977. Ward 27 Greene Decl. ¶ 5. He is admitted to practice law in the State of Oregon, the Ninth Circuit Court of 1 hour. Id. 2 In breach of contract cases, courts within this District have awarded hourly rates within the 3 range sought by ContekPro. See US Foods, Inc. v. Lalla Holding Corp., 2014 WL 4809073, at *2 4 (N.D. Cal. Sept. 25, 2014), report and recommendation adopted, 2014 WL 5281058 (N.D. Cal. 5 Oct. 15, 2014) (finding a rate of $450 per hour reasonable for an attorney with seven years’ 6 experience); Carlson Produce, LLC v. Clapper, 2020 WL 533004, at *9 (N.D. Cal. Feb. 3, 2020) 7 ($495 per hour reasonable for attorneys with 22 and 24 years of experience); Lustig v. AzGen Sci. 8 Holdings PLC, 2020 WL 2614778, at *10 (N.D. Cal. May 21, 2020) (finding reasonable rates 9 ranging from $195 per hour for a paralegal to $645 for a partner); Marshall Wealth Mgmt. Grp., 10 Inc. v. Santillo, 2019 WL 79036, at *11 (N.D. Cal. Jan. 2, 2019) (awarding $425 per hour 11 reasonable for attorney with 29 years of experience and $355 per hour for an attorney with over 12 five years’ experience); Superior Consulting Servs., Inc. v. Steeves-Kiss, 2018 WL 2183295, at *5 13 (N.D. Cal. May 11, 2018) (“district courts in Northern California have found that rates of $475- 14 $975 per hour for partners and $300-$490 per hour for associates are reasonable.”); In re High- 15 Tech Employee Antitrust Litig., 2015 WL 5158730, at *9 (N.D. Cal. Sept. 2, 2015) (holding that 16 billing rates for partners in the range of $490 to $975 per hour and rates of non-partner attorneys in 17 the range of $310 to $800, “with most under $500” were reasonable). Further, in its opposition, 18 Two Pitchers does not object to the requested rates. As such, the Court finds the hourly rates for 19 the firm’s lawyers and paralegal are reasonable. 20 2. Reasonable Hours 21 ContekPro claims it incurred the following fees for defense of this matter: 22 DESCRIPTION Attorney Paralegal Hours Hours 23 Case Initiation 22.5 0.90 24 Pleadings - Initial Filings 9.00 4.20 Pleadings - Case Management 12.75 0.90 25 Pleadings – Plaintiff’s Motion for Judgment on the 1.00 0.80 Pleadings 26 Motions for Summary Judgment 100.80 37.60 27 Pleadings - Miscellaneous 4.70 1.70 Discovery - Initial Disclosures 14.60 5.30 Discovery - Depositions 87.70 12.60 1 Discovery – Defendant’s Requests and Responses 49.60 27.30 2 Motion for Attorneys’ Fees and Costs 12.10 5.70 Plaintiff’s Rule 59 Motion 20.00 2.20 3 TOTAL 366.85 105.40 4 Mot. at 6; O’Hare Decl. ¶ 19; Ward Greene Decl. ¶ 4; O’Hare Suppl. Decl. ¶ 4, ECF No. 72. 5 Anderson Zeigler, APC charged ContekPro based on the time spent by the firm’s attorneys 6 and paralegals, broken into increments of tenths of an hour (.1) multiplied by each attorney’s 7 and/or paralegal’s regular billing rate at the time. O’Hare Decl. ¶ 10. It uses the billing software 8 known as Sage Timeslips. Id. ¶ 11. All time entries are entered into the program by the individual 9 timekeeper and are maintained by the program. Id. In each billing cycle there is a Pre-Bill 10 generated in which each assigned attorney reviews the entries for accuracy and applicability. Id. 11 a. ORS § 20.075(1) Factors 12 “The factors under ORS 20.075(1) relate generally to the parties’ conduct and the potential 13 deterrent effect of an award.” Tyler Fuqua Creations, Inc. v. Dept. of Rev., TC 5345, 2019 WL 14 2067544, at *7 (May 7, 2019). As to the first (“The conduct of the parties in the transactions or 15 occurrences that gave rise to the litigation, including any conduct of a party that was reckless, 16 willful, malicious, in bad faith or illegal”) and second (“The objective reasonableness of the claims 17 and defenses asserted by the parties”), both parties contend these factors weigh in their favor. 18 ContekPro argues Two Pitchers “aggressively pursued its claim from its inception” by filing a 19 motion for judgment on the pleadings at the outset of the case, which the Court took off-calendar 20 after both parties indicated a desire to file summary judgment motions, and that “[e]xtensive 21 discovery was required due to Plaintiff’s persistence that the sum of damages sought should not be 22 questioned and took the position that the Contract ‘does not contemplate that ContekPro can 23 dispute or second-guess the costs incurred by Two Pitchers.’” Mot. at 2 (quoting Pl’s Mot. for 24 Summ. J. at 17, ECF No. 47). Two Pitchers argues it was ContekPro that prolonged the 25 proceedings by “denyi[ng] it had breached the contract and repeatedly asserted this was a factual 26 issue that could not be resolved on the pleadings,” which resulted in “a lengthy, expensive 27 discovery process that could have been entirely avoided or at least significantly streamlined.” 1 Given the parties’ dispute regarding the statute of limitations, which ultimately led to 2 cross-motions for summary judgment, it is not clear that one side was less reasonable than the 3 other in pursuing their litigation strategies. Two Pitchers argues lengthy discovery was 4 unnecessary because it filed a Rule 12(c) motion for judgment on the pleadings, arguing that the 5 question of breach of contract could be decided as a matter of law based on the pleadings. Id. 6 Two Pitchers’ argument seems to be that ContekPro is not entitled to attorneys’ fees because 7 ContekPro should have acquiesced to its claims and not defended itself in this action, arguing that 8 the “costly litigation process was the result of ContekPro’s decision to dispute issues – at the 9 pleadings stage – that it had no realistic basis to dispute but that could not be resolved on the 10 pleadings given its position.” Id. at 4-5. However, ContekPro ultimately prevailed based on the 11 statute of limitations, meaning this matter could not have been resolved based on Two Pitchers’ 12 motion for judgment on the pleadings. As ContekPro appears to have done what was necessary to 13 defend itself, this factor does not weigh in favor of denying an award of attorneys’ fees. 14 As to the third factor (“The extent to which an award of an attorney fee in the case would 15 deter others from asserting good faith claims or defenses in similar cases”) and fourth factor (“The 16 extent to which an award of an attorney fee in the case would deter others from asserting meritless 17 claims and defenses”), neither side addresses them, and they do not appear to be at issue here. For 18 the fifth factor (“The objective reasonableness of the parties and the diligence of the parties and 19 their attorneys during the proceedings”), both sides argue the other unreasonably prolonged these 20 proceedings. However, as discussed above, it is not clear that one side was less reasonable than 21 the other. Further, the parties were diligent during the proceedings before the Court. As such, this 22 factor does not provide a basis to reduce the requested fee. 23 As to the sixth factor (“The objective reasonableness of the parties and the diligence of the 24 parties in pursuing settlement of the dispute”), Two Pitchers argues it “made repeated efforts to 25 resolve this dispute without litigation, for a fraction of the fees that ContekPro now seeks to 26 recover.” Opp’n at 5 (citing ECF Nos. No. 37, 44). Two Pitchers also argues “ContekPro never 27 engaged with Two Pitchers on these issues, and in fact did not respond to multiple efforts by Two 1 participated in two settlement conferences. ECF Nos. 37, 44. Further, given that ContekPro 2 prevailed on statute of limitations grounds, it does not appear unreasonable that the parties were 3 ultimately unable to settle. This is not a reason to reduce the requested fee. 4 Two Pitchers also argues its failure to file this case within a year of ContekPro’s alleged 5 breach does not give rise to a breach of contract that would entitle ContekPro to attorneys’ fees. 6 Opp’n at 2. It argues the contractual provision to file suit within one year is a limitation on legal 7 remedies, not an element of contract performance that could establish a “breach” of contract. Id. 8 However, as discussed above, “[d]ismissals based on the expiration of the statute of limitations are 9 treated as dismissal on the merits for the purpose of awarding attorneys’ fees.” Yenidunya 10 Investments, Ltd., 2012 WL 538263, at *2. Thus, courts can award attorney’s fees in cases where 11 a plaintiff’s case is dismissed on statute of limitations grounds. 621 Two, LLC., 2021 WL 12 4860687, at *2. 13 Finally, the seventh factor, the “amount that the court has awarded as a prevailing party 14 fee,” does not apply. 15 b. ORS § 20.075(2) Factors 16 The factors under section 20.075(2) “generally relate to the reasonableness of the particular 17 fee amount according to various metrics and comparisons.” Tyler Fuqua Creations, Inc., 2019 18 WL 2067544 at *9. As noted above, these factors “are frequently captured by the ‘lodestar’ 19 approach,” under which “a fee award is based on a reasonably hourly rate, multiplied by a 20 reasonable number of hours devoted to work on the case, with certain adjustments potentially 21 made to that amount for factors such as the risk of loss and the quality of the attorney's work.” 22 Friends of the Columbia Gorge, 367 Or. at 267 (internal quotation marks and citation omitted). 23 “What constitutes reasonable attorney fees is within the sound discretion of the court ordering the 24 fee award.” Id. 25 The parties do not address these factors individually, but the Court finds ORS sections 26 20.075(2)(b) (“The likelihood, if apparent to the client, that the acceptance of the particular 27 employment by the attorney would preclude the attorney from taking other cases”), (d) (“The 1 by the client or the circumstances of the case”), (f) (“The nature and length of the attorney’s 2 professional relationship with the client”), (h) (“Whether the fee of the attorney is fixed or 3 contingent”), and (i) (“Whether the attorney performed the services on a pro bono basis or the 4 award of attorney fees otherwise promotes access to justice”) are not at issue here. Two Pitchers 5 also does not dispute the rates claimed by ContekPro’s counsel for purposes of ORS sections 6 20.075(2)(c) and (g). The parties also do not discuss ORS section 20.075(2)(a), which concerns 7 the “time and labor required in the proceeding, the novelty and difficulty of the questions involved 8 in the proceeding and the skill needed to properly perform the legal services.” However, these do 9 not appear to be at issue in this relatively simple breach of contract case. 10 3. Determination of Reasonable Fee Award 11 Having considered the relevant factors under ORS sections 20.075(1) and (2), the Court 12 finds they weigh in favor of the requested award. Further, the Court finds ContekPro has 13 documented the hours expended on this lawsuit in sufficient detail. See Mot. at 6-9; O’Hare Decl. 14 ¶¶ 19-30; Thomas Decl. ¶¶ 4-6; O’Hare Suppl. Decl. ¶¶ 4-6. Finally, Two Pitchers has not raised 15 any argument challenging the accuracy and reasonableness of the hours charged by ContekPro’s 16 counsel. See Gates, 987 F.2d at 1397–98 (“The party opposing the fee application has a burden of 17 rebuttal that requires submission of evidence to the district court challenging the accuracy and 18 reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted 19 affidavits.”). In sum, the Court finds ContekPro has met its burden of demonstrating the number 20 of hours spent was reasonably necessary to the litigation and that counsel made “a good faith 21 effort to exclude from a fee request hours that are excessive, redundant, or otherwise 22 unnecessary.” Hensley, 461 U.S. at 434; Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th 23 Cir. 2013). Accordingly, the Court GRANTS ContekPro’s motion for fees in the amount of 24 $198,903.50. 25 E. Bill of Costs 26 ContekPro also seeks an award of costs amounting to $875 for service fees, $3,948.55 for 27 deposition fees, and $277.75 for photocopying. O’Hare Decl. ¶ 31; Bill of Costs, ECF No. 66. 1 1. Legal Standard 2 In federal court, “the award of costs is generally a procedural matter, which means that 3 federal law applies.” Gardner v. Fed. Express Corp., 2016 WL 1559686, at *1 (N.D. Cal. 2016), 4 aff’d, 719 F. App’x 559 (9th Cir. 2017); Rodriguez v. New Hampshire Ball Bearings, Inc., 2019 5 WL 6711685, at *2 (C.D. Cal. Aug. 30, 2019) (“Even where state law controls the substance of a 6 lawsuit, an award of costs is a procedural issue governed by federal law”). Federal Rule of Civil 7 Procedure 54(d)(1) provides that “costs other than attorneys’ fees shall be allowed as of course to 8 the prevailing party unless the court otherwise directs.” Unless otherwise authorized by statute or 9 contract, 28 U.S.C. § 1920 limits the costs that a court may award under Rule 54(d) to the 10 following:

11 (1) Fees of the clerk and marshal;

12 (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; 13 (3) Fees and disbursements for printing and witnesses; 14 (4) Fees for exemplification and the costs of making copies of any 15 materials where the copies are necessarily obtained for use in the case;

16 (5) Docket fees under section 1923 of this title; [and]

17 (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special 18 interpretation services under section 1828 of this title. 19 “With regard to individual itemized costs, ‘the burden is on the party seeking costs . . . to establish 20 the amount of compensable costs and expenses to which it is entitled.’” City of Alameda v. 21 Nuveen Mun. High Income Opportunity Fund, 2012 WL 177566, at *1 (N.D. Cal. Jan. 23, 2012) 22 (quoting Allison v. Bank One-Denver, 289 F.3d 1223, 1248–49 (10th Cir. 2002)). 23 “By its terms, the rule creates a presumption in favor of awarding costs to a prevailing 24 party, but vests in the district court discretion to refuse to award costs.” Ass’n of Mexican-Am. 25 Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000) (citation omitted). The Ninth 26 Circuit has described the presumption in favor of awarding costs to the prevailing party as a 27 “strong presumption” with a burden on the non-prevailing party to show why taxable costs are not 1 Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999). Thus, a district court need not give reasons 2 for abiding by the presumption and awarding taxable costs to the prevailing party. Save Our 3 Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (“The presumption itself provides all 4 the reason a court needs for awarding costs . . . .”). On the other hand, a district court must 5 “specify reasons” for refusing to award taxable costs to the prevailing party. Id. The court must 6 “explain why . . . it would be inappropriate or inequitable to award costs.” Ass’n of Mex.-Am. 7 Educators, 231 F.3d at 593. A court may deny costs based on (1) the substantial public 8 importance of the case, (2) the closeness and difficulty of the issues in the case, (3) the chilling 9 effect on future similar actions, (4) the plaintiff’s limited financial resources, and (5) the economic 10 disparity between the parties. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247–48 (9th 11 Cir. 2014). “This is not an exhaustive list of ‘good reasons’ for declining to award costs, but 12 rather a starting point for analysis.” Id. (quoting Ass’n of Mex.-Am. Educators, 231 F.3d at 593) 13 (internal quotation marks omitted). 14 2. Analysis 15 The Court finds ContekPro has met its burden to establish the costs to which it is entitled. 16 As to its request for $875 in service fees, reimbursement is permitted under the Civil Local Rules. 17 See Civ. L.R. 54-3(a)(2) (“Fees for service of process by someone other than the marshal acting 18 pursuant to Fed. R. Civ. P. 4(c) are allowable to the extent reasonably required and actually 19 incurred.”). 20 ContekPro also seeks $,3948.55 for deposition costs, including transcripts, video 21 recording, and photocopying for exhibits used during depositions. 28 U.S.C. § 1920(2) allows 22 recovery for “fees for printed or electronically recorded transcripts necessarily obtained for use in 23 the case.” Under Civil Local Rule 54-3(c)(1), a prevailing party may recover “[t]he cost of an 24 original and one copy of any deposition (including videotaped depositions) taken for any purpose 25 in connection with the case.” Civ. L.R. 54-3(c)(1); see also In re Ricoh, 661 F.3d 1361, 1370 26 (Fed. Cir. 2011) (affirming a decision by a court in the Northern District of California to tax costs 27 for both videotaping and transcribing a deposition). Federal Rule of Civil Procedure 34(b)(3)(A) 1 interpreting Civil Local Rule 54-3(c)(1), courts in this district have allowed costs for deposition 2 video recordings “where the circumstances of the case warrant duplicate costs of both a videotape 3 and written transcript of a deposition.” Total Recall Techs. v. Luckey, 2017 WL 2118297, at *1 4 (N.D. Cal. May 16, 2017). Further, the “cost of reproducing exhibits to depositions is allowable if 5 the cost of the deposition is allowable.” Civ. L.R. 54-3(c)(3); 28 U.S.C. § 1920(4) (permitting 6 “fees for exemplification and the costs of making copies of any materials where the copies are 7 necessarily obtained for use in the case”). 8 While it does not dispute these individual costs, Two Pitchers argues the Court should 9 deny ContekPro’s request on three grounds: (1) based on Two Pitchers’ pending motion to alter or 10 amend judgment: (2) based on its limited financial resources; and (3) based on ContekPro’s 11 litigation tactics. Obj., ECF No. 68. 12 a. Motion to Alter or Amend Judgment 13 As to the first reason, Two Pitchers argues the Court’s judgment is based on two manifest 14 errors of law and fact, and that, upon correction of those errors, Two Pitchers would be entitled to 15 judgment in its favor on its contract claims. Id. at 1. “In that circumstance, ContekPro would not 16 be the ‘prevailing party’ and thus would not be entitled to costs under Rule 54(d)(1).” Id. 17 However, the Court has denied Two Pitchers’ motion to alter judgment by separate order. This 18 argument is therefore moot. 19 b. Financial Resources 20 As to the second reason, Two Pitchers argues it has limited financial resources, and this 21 litigation has been a severe drain on its finances. Id. (citing Hester Decl. ¶¶ 1-2, ECF No. 68-1). 22 It argues: “Particularly considering that ContekPro ultimately conceded that it breached the 23 contract (for instance, by failing to deliver a container with a California manufactured building 24 sticker, despite the contractual ‘guarantee’ it would do so), . . . it would be inequitable to impose 25 further costs on Two Pitchers after it was deprived of the benefit of the contract it had paid for.” 26 Id. at 1-2. Thomas Hester, a co-founder and the Chief Operating Officer of Two Pitchers, 27 provided the following information regarding Two Pitchers’ finances: $3,419,600. Most of this debt was incurred in the construction of its 1 taproom in Oakland, California. Two Pitchers has yet to generate sufficient operating profits to pay down that debt. 2 2. In calendar year 2022, Two Pitchers generated a net operating 3 profit of $101,848. In calendar year 2023, Two Pitchers generated a net operating profit of $36,047. Through June 15, 2024, Two Pitchers 4 has generated a net operating loss of $24,449. 5 Hester Decl. ¶¶ 1-2. 6 Given the presumption that a prevailing party is entitled to an award of costs, the Court 7 finds this declaration, on its own, does not provide enough information to overcome the 8 presumption in favor of awarding costs. See Rodriguez, 2019 WL 6711685, at *3 (“A plaintiff 9 challenging costs on this basis ‘must provide the court with sufficient documentation such as 10 affidavits, statements of assets and income, and a schedule of expenses’ demonstrating financial 11 hardship”) (quoting Rossi v. City of Chicago, 790 F.3d 729, 738 (7th Cir. 2015)); Huerta v. Wolf, 12 2020 WL 6319132, at *2 (S.D. Cal. Oct. 28, 2020) (denying plaintiff’s motion to retax costs, 13 explaining that plaintiff “paid the filing fee to initiate this action, he is not proceeding in forma 14 pauperis, he is gainfully employed, and has not otherwise provided evidence in support of his 15 claim of financial hardship”). 16 Further, the total cost here is $5,101.30, which is a relatively small award. Compare Save 17 Our Valley, 335 F.3d at 946 (upholding the “relatively small sum” of $5,310.55), with Stanley, 18 178 F.3d at 1080 (declining to award the “high cost” of $46,710.97 against an unemployed civil 19 rights plaintiff), and Ass’n of Mexican–American Educators, 231 F.3d at 593 (holding no abuse of 20 discretion in denying “overwhelming” and “extraordinarily high” costs of $216,443.67 against 21 plaintiffs whose “resources are limited”). Moreover, even if there were a financial disparity 22 between the parties (which Two Pitchers has not shown), this is insufficient to rebut Rule 54’s 23 presumption that a prevailing party is entitle to an award of costs. See Ayala v. Pac. Mar. Ass’n, 24 2011 WL 6217298, at *2 (N.D. Cal. Dec. 14, 2011) (“[Economic] disparity alone is insufficient to 25 overcome the presumption in favor of awarding costs.”); Powell v. Adlerhorst Int’l, Inc., 2017 WL 26 1371269, at *3 (D. Or. Apr. 12, 2017) (“[E]conomic disparity alone is not necessarily sufficient to 27 overcome the presumption in favor of awarding costs. If it were, every case that involved 1 somewhat meaningless.”) (citations omitted); Huerta, 2020 WL 6319132, at *2. Accordingly, 2 || while the Court acknowledges Two Pitchers’ financial condition, it concludes Two Pitchers has 3 not made a showing that overcomes the presumption outlined in Rule 54(d)(1). 4 c. Litigation Tactics 5 Finally, Two Pitchers argues “the litigation tactics employed by ContekPro—which 6 || needlessly expanded this litigation into full-blown discovery—counsel against an award of costs.” 7 Obj. at 2. However, as discussed above, both parties have raised similar arguments about their 8 || adversary’s litigation tactics, but there is no indication that either party’s litigation tactics rise to 9 the level of misconduct. See Camfield v. Bd. of Trustees of Redondo Beach Unified Sch. Dist., 10 || 2018 WL 910459, at *5 (C.D. Cal. Feb. 14, 2018) (finding litigation tactics did not weigh in favor 11 of denying costs where “Defendants did not engage in misconduct, and the issues were not close 12 || and difficult. Plaintiffs’ state claims were dismissed very early in the case.... The remaining 5 13 claims were decided on summary judgment—some of which were not contested—and the case 14 || was not ‘vigorously litigated’ or so complex as to justify denying costs to the prevailing □□□□□□□□□ 15 cf. Schaulis v. CTB/McGraw-Hill, Inc., 496 F. Supp. 666, 680 (N.D. Cal. 1980) (denying taxable a 16 || costs to the defendant at least in part because the case was “vigorously litigated”). As such, this is 3 17 || not a reason to deny ContekPro’s request for costs. Z 18 d. Summary 19 In sum, the presumption in favor of awarding costs, which “provides all the reason a court 20 || needs for awarding costs,” Save Our Valley, 335 F.3d at 945, outweighs any argument in favor of 21 denying them. Accordingly, the Court awards $5,101.30 in costs. 22 Vv. CONCLUSION 23 For the reasons stated above, the Court GRANTS ContekPro’s motion for attorneys’ fees 24 and costs. ContekPro is awarded $198,903.50 in attorneys’ fees and $5,101.30 in costs. 25 IT IS SO ORDERED. 26 Dated: August 15, 2024 27 AA. _

THOMAS S. HIXSON

United States Magistrate Judge