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Hubert v. Curren

United States District Court, E.D. Louisiana

October 15, 2018

THOMAS P. HUBERT
v.
JOANNE CURREN, ET AL.

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is plaintiff Thomas Hubert's (“Hubert”) application[1] for attorneys' fees. In the Court's order[2] remanding this case to state court pursuant to 28 U.S.C. § 1447(c), the Court also ordered the payment of attorneys' fees. Hubert now requests $5, 892.50, to which defendant Joanne Curren (“Curren”) objects.[3] For the following reasons, Hubert's request is granted in part and denied in part.

         I.

         On August 14, 2014, the day before a state court trial was scheduled on the issue of damages, Curren removed this case to this Court.[4] Shortly thereafter, Curren filed a motion for judgment on the pleadings and Hubert filed a motion to remand.[5]On September 5, 2018, the Court granted Hubert's motion and remanded the case to state court. It simultaneously awarded Hubert attorneys' fees pursuant to 28 U.S.C. § 1447(c), having determined that there was no objectively reasonable basis for Curren's removal.[6] The only remaining issue is the amount of attorneys' fees to be awarded.

         II.

         If a court determines that remand is proper, “[the] order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). “[Section] 1447(c) gives a court discretion to determine what amount of costs and fees, if any, to award the plaintiff, ” although “Congress has plainly limited such an award to those costs and fees ‘incurred as a result of removal.'” Avitts v. Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir. 1997) (quoting 28 U.S.C. § 1447(c)). “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

         When determining an award of attorneys' fees under § 1447(c), courts apply the lodestar method. Halliburton Latin Am. SA v. Int'l Tech. Sols. Inc., 2001 WL 1013047, at *1 (5th Cir. 2001) (per curiam). The lodestar method entails a two-step process. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 323-24 (5th Cir. 1995) “Initially, the district court must determine the reasonable number of hours expended on the litigation and the reasonable hourly rates for the participating lawyers.” Id. at 324 (citing Hensley, 461 U.S. at 433). “Then, the district court must multiply the reasonable hours by the reasonable hourly rates.” Id. The resulting product is the lodestar. Id.

         After calculating the lodestar, the second step permits the district court to adjust the amount upward or downward based on “the relative weights of the twelve factors set forth in Johnson [v. Georgia Highway Express, Inc.].” Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 800 (5th Cir. 2006). The Johnson factors are:

(1) the time and labor required; (2) the novelty and difficulty of the issues in the case; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee charged for those services in the relevant community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Black v. SettlePou, P.C., 732 F.3d 492, 502 n.7 (5th Cir. 2013) (citing Johnson v. Ga.

         Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other grounds, 489 U.S. 87 (1989)).[7] Among the factors, “the court should give special heed to the time and labor involved, the customary fee, the amount involved and result obtained, and the experience, reputation and ability of counsel.” Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). “The lodestar may not be adjusted due to a Johnson factor, however, if the creation of the lodestar amount already took that factor into account; to do so would be impermissible double counting.” Saizan, 448 F.3d at 800. “The lodestar . . . is presumptively reasonable and should be modified only in exceptional cases.” Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).

         As an initial matter, Curren objects to all fees assessed for work performed by summer associates because they are not lawyers. However, she cites no case law to support her objection, and the Fifth Circuit permits parties to recover fees billed for work completed by non-lawyers. See League of United Latin Am. Citizens No. 4552 v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1234-35 (5th Cir. 1997); see also Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989) (“Clearly, a ‘reasonable attorney's fee' cannot have been meant to compensate only work performed personally by members of the bar.”). Hubert may recover the expenses incurred as a result of the summer associates' work on this case.

         III.

         Hubert's request for attorneys' fees is broken down as follows:

Attorney or

summer associate

Hours worked

Hourly rate

Larry Centola, III

(attorney)

5.60

$400

Christopher Carbine

(attorney)

16.8

$175

Eli Sterbcow

(summer associate)

5.00

$95

James Kohnke

(summer associate)

2.50

$95

         Reasonable Number of Hours Worked

          “As noted, the first step in determining reasonable attorneys' fees is an evaluation of the number of hours reasonably expended.” Louisiana Power & Light Co., 50 F.3d at 324. “The party seeking attorneys' fees must present adequately documented time records to the court.” Watkins, 7 F.3d at 457. Additionally, the fee applicant “[has] the burden of showing the reasonableness of the hours billed and that the attorneys exercised billing judgment.” Black, 732 F.3d at 502. The Court uses the records provided as a “benchmark, ” but it must “exclude all time that is excessive, duplicative, or inadequately documented.” Watkins, 7 F.3d at 457.

         Hubert submitted contemporaneous billing records for the time spent on this case.[8] Hubert's lead attorney, Lawrence J. Centola, III (“Centola”), also attested in an affidavit that he reviewed the time entries for vagueness and relevance and “spent significant time ensuring that duplicative and excessive time were [sic] not ...


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