United States of America v. Western Radio Services Company, Inc

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
UNITED STATES CELLULAR
OPERATING COMPANY OF
MEDFORD,
Intervenor-Plaintiff-
Appellee,
v.
WESTERN RADIO SERVICES
COMPANY, INC,
Defendant-Appellant.
No. 14-35860
D.C. Nos. 3:11-cv-00638-SI
6:11-cv-06209-SI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted November 8, 2016**
Portland, Oregon
FILED
NOV 28 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: McKEOWN, W. FLETCHER, and FISHER, Circuit Judges.
Western Radio Services Co., Inc. (Western Radio) appeals from the district
court’s order awarding United States Cellular Operating Company of Medford
(U.S. Cellular) $158,696.81 in attorney fees, including nontaxable litigation
expenses, and $3,798.76 in costs. We have jurisdiction under 28 U.S.C. § 1291
and we affirm.
We review the district court’s award of “attorney’s fees and costs for abuse
of discretion. Elements of legal analysis and statutory interpretation underlying the
district court’s decision are reviewed de novo, and factual findings are reviewed
for clear error.” Avery v. First Resolution Mgmt. Corp., 568 F.3d 1018, 1021 (9th
Cir. 2009) (citations omitted). Because U.S. Cellular’s contractual claims arose
under state law, Oregon law governs the award of attorney fees. See id. at 1023.
Western Radio argues that U.S. Cellular’s request for fees should be entirely
rejected due to its block billing. Western Radio fails to cite any Oregon law
prohibiting partial fee awards notwithstanding the use of block billing. No Ninth
Circuit precedent supports this argument. We have upheld as a “reasoned exercise
of discretion” a district court’s decision to reduce block-billed hours by 30%.
Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216, 1222-23 (9th
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Cir. 2010). The district court did not abuse its discretion in partially reducing the
block-billed hours.
Western Radio’s objections to the hourly billing rates are without merit. The
district court properly relied on survey information, submitted by U.S. Cellular,
describing the range of fees charged by Oregon attorneys. See e.g. Precision Seed
Cleaners v. Country Mut. Ins. Co., 976 F. Supp. 2d 1228, 1244 (D. Or. 2013)
(Oregon State Bar (OSB) Economic Survey is “benchmark for comparing an
attorney’s billing rate with the fee customarily charged in the locality”). Although
the requested rates were at the high end of the survey range, the district court did
not abuse its discretion in adopting them in light of “the experience, reputation, and
ability” of the attorneys and “the amount in controversy and the results obtained.”
Next, Western Radio challenges the inclusion, as part of the fee award, of
time spent prior to the filing of the complaint in this suit and time spent to obtain
an amended order. Oregon law permits courts to “award fees associated with
attorneys' reasonable prefiling activities” so long as those fees were “‘reasonably
incurred to achieve the success that the party actually achieved.’” Fadel v. El-
Tobgy, 264 P.3d 150, 158 (Or. Ct. App. 2011) (quoting Freedland v. Trebes, 986
P.2d 630, 632 (Or. Ct. App. 1999)). The hours billed prior to filing the motion to
intervene, including reviewing the demand letter and lease and preparing the
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complaint, were all “reasonable prefiling activities” under Oregon law. Nor was it
an abuse of discretion to award fees for work undertaken to procure the amended
judgment and Western Radio does not cite precedent or rule of court that prohibit
the award of fees in this context.
Western Radio contends that the attorney fee request is excessive. The
district court “closely reviewed the entries” in the time sheet provided by U.S.
Cellula, and individually identified 62 block-billed periods exceeding three hours.
Western Radio neither explains why the requested hours of legal work are
excessive, nor identifies specific instances of overduplication.
Finally, Western Radio argues that costs for transcription of Oberdorfer’s
deposition should be limited to the 48-page excerpt submitted as part of U.S.
Cellular’s briefings. “A judge or clerk of any court of the United States may tax as
costs . . . [f]ees for printed or electronically recorded transcripts necessarily
obtained for use in the case.” 28 U.S.C. § 1920(2). An award under 28 U.S.C. §
1920 is not limited to the documents (let alone the pages) actually submitted to the
court. See Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920
F.2d 587, 588 (9th Cir. 1990). Portions of the depositions for which U.S. Cellular
sought costs were all submitted as part of the parties’ pleadings and were therefore
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“reasonably necessary” to their successful suit. The district court did not abuse its
discretion in awarding costs to U.S. Cellular.
We therefore affirm the award of costs and fees to U.S. Cellular.
AFFIRMED.
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