United States District Court, D. New Mexico
MARK PIERCE, WILLIAM C. ENLOE, and JILL COOK, TRINITY CAPITAL CORPORATION and LOS ALAMOS NATIONAL BANK, Plaintiffs,
ATLANTIC SPECIALTY INSURANCE COMPANY, FEDERAL INSURANCE COMPANY, and CONTINENTAL CASUALTY COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER SETTING AWARDS OF
ATTORNEY'S FEES AND COSTS
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).
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.
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.
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.
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)
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.
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,
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.
Mr. Pierce (Berardinelli)
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.
Mr. Enloe (Dow and Weisman)
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.
Ms. Cook (Brant and Hunt)
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.