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Pierce v. Atlantic Speciality Insurance Co.

United States District Court, D. New Mexico

September 8, 2017



         On July 26, 2017, this Court entered a MEMORANDUM OPINION AND ORDER (Doc. No. 279) (July 26, 2017 Order), concluding that this proceeding should be remanded to the First Judicial District Court in Los Alamos County, New Mexico once the Court has decided Plaintiffs' requests for attorney's fees and costs against both Defendants Atlantic Specialty Insurance Company (ASIC) and Continental Casualty Company (Continental) in relation to Plaintiffs' remand motions. Subsequent to the Court's July 26, 2017 Order, ASIC and Continental filed separate Motions to Reconsider the Court's award of fees against the Defendants. After considering the pertinent law and the briefing, the Court denied both Motions to Reconsider. MEMORANDUM OPINION AND ORDER (Doc. No. 300).

         The Court has now considered all of the attorneys' affidavits, declarations, and attachments in support of their attorney's fees requests. See AFFIDAVIT/DECLARATION OF DAVID J. BERARDINELLI, ESQ. AS TO COSTS AND ATTORNEY FEES (Berardinelli Aff.) (Doc. No. 280); NOTICE OF FILING SUPPLEMENTAL EXHIBITS TO THE AFFIDAVIT/DECLARATION OF DAVID J. BERARDINELLI, ESQ.AS TO COSTS AND ATTORNEY FEES (Berardinelli Supplement) (Doc. No. 290); AFFIDAVIT OF ROBERT P. WARBURTON (Warburton Aff.) (Doc. No. 281); DECLARATION OF MARK C. DOW (Dow Aff.) (Doc. No. 282); and AFFIDAVIT OF JEANNIE HUNT RE ATTORNEY'S FEES (Hunt Aff.) (Doc. No. 283). The Court also reviewed responses by ASIC and Continental to the attorney's fee requests, along with attachments to the responses. See ATTORNEY'S FEES RESPONSE AFFIDAVIT OF KENT M. ADAMS (ASIC's Response Affidavit) (Doc. No. 294); ATTORNEY'S FEES RESPONSE AFFIDAVIT OF GORDON H. ROWE, III (ASIC's Response Affidavit) (Doc. No. 295); and DEFENDANT [CONTINENTAL'S] RESPONSE TO FEE PETITIONS PURSUANT TO 28 U.S.C. § 1447(C) (Continental's Response) (Doc. No. 296).

         Pertinent Legal Standards

         Title 28 U.S.C. § 1447(c) allows a court to “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). The award of attorney's fees under § 1447(c) turns on the reasonableness of the removal. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Id.

         The party seeking attorney's fees bears the burden of proving that its request is reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In determining a reasonable attorney's fee award, a district court typically arrives at a “'lodestar'” figure by multiplying the hours plaintiffs' counsel reasonably spent on the litigation by a reasonable hourly rate. See Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995) (calculating fee award in civil rights action). However, a court is not required to reach a lodestar determination in every instance, and, instead, may accept or reduce a fee request within its discretion. See Hensley, 461 U.S. at 436- 37.

         As to the determination of a reasonable hourly rate, a court examines evidence regarding what the market commands for a specific type of litigation. Burch v. La Petite Academy, Inc., 10 F. App'x 753, 755 (10th Cir. 2001) (citing Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1255 (10th Cir. 1998)). The moving party bears the burden of showing that the “requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998) (citation omitted).

         Block billing, the practice of lumping together multiple tasks into one billing entry, makes it difficult to determine whether billed hours are reasonable. See Flying J Inc. v. Comdata Network, Inc., 322 F. App'x 610, 617 (10th Cir. 2009) (“Use of this rather imprecise practice may be strong evidence that a claimed amount of fees is excessive.”). The use of block-billing is often found inadequate to support a fee award because these billing entries are not “meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.” Case 157 F.3d at 1250.


         The Court already has determined that both ASIC and Continental lacked an objectively reasonable basis to remove the consolidated state court proceeding on the dates each Defendant filed its notice of removal. July 26, 2017 Order at 38. Therefore, the Court granted the requests for attorney's fees by Mark Pierce (Pierce), William C. Enloe (Enloe), Jill Cook (Cook), and Trinity Capital Corporation and Los Alamos National Bank (LANB) (collectively, Plaintiffs).

         The Court now examines whether the following costs and fee requests, including gross receipts tax, are reasonable: 1) $62, 415.08 (Pierce); 2) $49, 500.94 (Enloe); 3) $17, 306.42 (Cook); and 4) $32, 059.88 (LANB). Each Plaintiff's attorney seeks fees at different hourly rates. The Court does not set out below separate discussions of fees sought for work by paralegals, associate attorneys, or law student externs, which the Court finds reasonable, or of costs which the Court also finds reasonable.

         I. Hourly Rate

         A. Mr. Pierce (Berardinelli)

         Mr. Pierce's attorney believes that an hourly rate of $500 per hour is customary and reasonable in this locale. Berardinelli Aff. ¶ 11-12. In support, Mr. Berardinelli attaches his fee agreement in this proceeding along with numerous affidavits by attorneys across the county who attest that Mr. Berardinelli should be awarded fees at a rate of $500 per hour. Mr. Berardinelli also filed a supplement to his affidavit informing the Court that he had been named one of the “Best Lawyers in America” in that publication's 2018 edition. Berardinelli Supplement.

         B. Mr. Enloe (Dow and Weisman)

         Mr. Enloe's attorneys, Mark Dow and Cynthia Weisman, state that the reasonable market rate of attorney's fees in New Mexico is between $250 and $500 per hour. Mr. Dow seeks an hourly rate of $300 and Ms. Weisman seeks an hourly rate of $225. Dow Aff.

         C. Ms. Cook (Brant and Hunt)

         Ms. Cook's attorneys, Jack Brant and Jeannie Hunt, assert that their firms' usual and customary billing rates for this type of work is $250 per hour for Mr. Brant and $185 per hour for Ms. Hunt. Hunt Aff.

         D. LANB ...

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