United States District Court, D. New Mexico
ACC HEALTH, LLC, DENTRUST NEW MEXICO, P.C., and DOCS MSO, LLC, Plaintiffs,
LOST CREEK HOLDINGS, LLC, ALL-STAR HEALTH SOLUTIONS, DIANE TOMLINSON, ABBEY TOMLINSON, LAUREN TOMLINSON, NATALI LUDI, ERIN MARTIN, and MEGAN FREELS, Defendants.
MEMORANDUM OPINION AND ORDER
matter is before the Court on Plaintiff's Detailed
Petition for Attorney Fees [Doc. 36]. The Court having
previously determined that Plaintiffs are entitled to recover
attorney's fees as a result of Defendants' improper
removal, the sole issue now before the Court is the amount of
fees to be awarded to Plaintiffs.
determine the reasonableness of a fee request, a court must
begin by calculating the so-called “lodestar
amount” of a fee, and a claimant is entitled to the
presumption that this lodestar amount reflects a
“reasonable” fee. See Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 478
U.S. 546, 563-65 (1986); Cooper v. Utah, 894 F.2d
1169, 1171 (10th Cir. 1990). The lodestar calculation is the
product of the number of attorney hours “reasonably
expended” and a “reasonable hourly rate.”
See Hensley, 461 U.S. at 433; Phelps v.
Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997). The
setting of a reasonable hourly rate is within the district
court's discretion. Carter v. Sedgwick County,
36 F.3d 952, 956 (10th Cir. 1994). Hourly rates must reflect
the “prevailing market rates in the relevant
community.” Blum v. Stenson, 465 U.S. at 895,
104 S.Ct. at 1547. Unless the subject of the litigation is
“so unusual or requires such special skills” that
only an out-of-state lawyer possesses, “the fee rates
of the local area should be applied even when the lawyers
seeking fees are from another area.” Ramos v.
Lamm, 713 F.2d 546, 555 (10th Cir. 1983). See also
Lippoldt v. Cole, 468 F.3d 1204, 1224-25 (10th Cir.
2006). If the district court does not have adequate evidence
of prevailing market rates for attorney fees, then it may,
“in its discretion, use other relevant factors,
including its own knowledge, to establish the rate.”
Case v. Unified Sch. Dist. No. 233, Johnson Cnty.,
Kan., 157 F.3d 1243, 1257 (10th Cir. 1998). A district
judge may consider his or her “own knowledge of
prevailing market rates as well as other indicia of a
reasonable market rate.” Metz v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1493
(10th Cir. 1994) (internal quotation marks omitted).
have requested $5, 605.17 in attorney's fees for their
work in obtaining the remand of this case and in filing their
motion for fees, as well as an additional $433.26 incurred in
reading Defendants' response brief and preparing
Plaintiffs' reply brief, for a total of $6, 038.43 in
fees. Defendants, in turn, do not dispute that the hourly
rate charged by Plaintiff's counsel is reasonable, nor do
they contend that the number of hours he spent on the matter
is excessive. Rather, Defendants contend that the Court
should award Plaintiffs no more than $4, 007.56, which is the
amount that Plaintiffs' counsel offered to accept in
settlement of the fee dispute.
sides of this dispute have attached their correspondence
relating to their attempt to come to an agreement on the
amount of attorney's fees to be awarded. That
correspondence reveals that on September 6, 2017,
Plaintiffs' counsel sent Defendants' counsel a late
night offer to settle for $4, 007.56, conditioned on
acceptance by noon the following day, September 7, 2017. On
the morning of September 7, 2017, at 8:46 a.m.,
Defendants' counsel noted receipt of the offer, but noted
that he doubted he could respond by noon that day.
Approximately two hours later, at 10:59 a.m., Plaintiffs'
counsel replied, reminding defense counsel that the offer
would be withdrawn at noon. At 11:55 a.m., Defendants'
counsel counteroffered by asking for another 24 hours to
consider Plaintiffs' proposed settlement amount. There is
no evidence that this request was accepted. Rather, it
appears that the original offer expired at noon and at 5:16
p.m. on September 7, 2017, Plaintiffs made another counter
offer to settle for $5, 605.17. This offer, apparently, also
was not accepted by Defendants. Therefore, it does not appear
that there was any valid offer and acceptance between the
parties that led to an enforceable agreement about the amount
of fees to be awarded to Plaintiffs.
argue, however, that Plaintiffs did not negotiate settlement
of the fee dispute in good faith. They contend that
Defendants granted Plaintiffs an extension of time in which
to file their motion for fees in exchange for Plaintiffs
putting forth a timely offer of settlement no later than
September 5, 2017. Defendants contend that Plaintiffs-who
presented them with a last-minute offer-did not hold up their
end of that bargain, and the penalty for that should be
limiting Plaintiffs to the $4, 007.56 settlement amount they
finally did offer late in the day on September 6, 2017. The
Court declines to credit this argument. First, Defendants
have come forward with no evidence of this alleged lack of
good faith. Defendants have placed no evidence in the
record-no email, letter, or affidavit of counsel-to support
the unsworn statements in their brief regarding this bargain.
Second, Defendants have failed to provide any legal authority
that would support cutting Plaintiffs' fees in this way
as a penalty for their failure to provide the Defendants with
a timely offer of settlement.
reviewed the Plaintiffs' motion for attorney's fees,
the Court concludes that the number of hours billed by
attorney Trent A. Howell, the hourly rate he charged
($250.00), and total request of $6, 038.43 in attorney's
fees are reasonable.
THEREFORE ORDERED that Plaintiff's Detailed Petition
for Attorney Fees [Doc. 36] is GRANTED, and Defendants
must pay attorney's fees to Plaintiffs in the amount of
$6, 038.43 ...