IRMA CARRILLO RAMIREZ, Magistrate Judge.
Pursuant to the order of reference dated October 14, 2016 (doc. 19), before the Court is Plaintiff's Application for Attorney's Fees and Brief in Support, filed September 19, 2016 (doc. 16). Based on the relevant filings and applicable law, the defendant's motion to reconsider, if any, should be
This application for attorneys' fees arises out of a lawsuit between National Collegiate Student Loan Trust 2006-3, a Delaware Statutory Trust (Plaintiff), and Ernest Richards (Defendant), which was originally filed in the 191th Judicial District Court in Dallas County, Texas, on August 10, 2015. (doc. 1-3 at 1-4.)
On July 1, 2016, Defendant removed the action, asserting federal question and diversity jurisdiction. (doc. 1 at 2.) Plaintiff filed a motion to remand on July 14, 2016, and the district court granted it on August 30, 2016. (docs. 6, 14.) As part of its order, the district court granted Plaintiff attorneys' fees and costs under 28 U.S.C. § 1447(c) for improper removal, finding:
(doc. 14 at 5.) Plaintiff timely filed an application for attorneys' fees on September 19, 2016. (doc. 16.) Defendant filed an affidavit in opposition to Plaintiff's request for attorneys' fees on October 4, 2016, and Plaintiff replied on October 11, 2016. (docs. 17, 18.) The application is now ripe for recommendation.
In his affidavit in opposition to the requested amount for attorneys' fees, Defendant argues that Plaintiff should not be award any attorneys' fees because "[t]his case has not been tried and since the remand, the court has not set a date for trial thus no fee should be awarded to [Plaintiff]." (See doc. 17 at 2-3.) He appears to be asking the Court to reconsider the award of attorneys' fees previously ordered pursuant to 28 U.S.C. § 1447(c) in the order granting Plaintiff's motion to remand. (See doc. 14 at 5) (granting motion and ordering attorneys' fees and costs).
Local Rule 5.1(c) for Filing and Serving Pleadings, Motions, or Other Papers states:
Even if Defendant had complied with the local rules, he still fails to provide any legal basis for reconsidering the award of attorneys' fees. (See doc. 17 at 1-4.)
Defendant objects to the affidavit of Timothy Wells (Attorney) because it is "fatally flawed and defective" in that it does not state "the facts stated in [Attorney's] affidavit are within his personal knowledge and are true and correct." (doc. 17 at 1.)
The Federal Rules of Evidence
Here, Attorney avers that he is Plaintiff's attorney and sets forth his own actions and his own time incurred regarding his representation of Plaintiff in relation to Defendant's improper removal. (doc. 16-1 at 1.) Additionally, he avers the truthfulness of the information in both his affidavit and attached contemporaneous billing records. (Id.) This is sufficient to establish that Attorney has personal knowledge of the matters set forth in his declaration and the attached exhibits. See, e.g., Highpoint Risk Servs. LLC v. Companion Prop. & Cas. Ins. Co., No. 3:14-CV-3398-L-BH, 2016 WL 4479511, at *7 (N.D. Tex. Aug. 25, 2016) (overruling a personal knowledge objection after considering an affiant's declaration under Fed. R. Evid. 602). Based on his knowledge about his own actions, Attorney has the requisite personal knowledge to make the statements at issue in the affidavit. Defendant's objection is therefore
Defendant argues that Plaintiff is required and failed to segregate the requested attorneys' fees. (doc. 17 at 2-3.)
Under § 1447(c),
Avitts, 111 F.3d at 32.
Here, Attorney's affidavit states that all of the time for which he seeks fees was incurred in responding to Defendant's improper removal, not the proceedings in state court. (doc. 16-1 at 1.) This statement is supported by the contemporaneous billing records. (See doc. 16-2 at 1.) Plaintiff is requesting attorneys' fees properly within the scope of § 1447(c), and no segregation is necessary.
In adjudicating an attorneys' fees award for an improper removal under § 1447(c), a court first calculates a "lodestar" fee by multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995); Halliburton Latin Am. SA v. Int'l Tech. Sols., No. 00-20842, 2001 WL 1013047, at *1 (5th Cir. July 31, 2001) (per curiam) (unpublished) (stating the lodestar method and the Johnson factors should be used to determine attorneys' fees for an improper removal under § 1447(c)); see also Block C S. Tower Residences Condo. Residential Ass'n, Inc. v. Blackburn, No. 3:15-CV-1156-L-BH, 2016 WL 791046, at *1 (N.D. Tex. Feb. 11, 2016), adopted by 2016 WL 775835 (N.D. Tex. Feb. 29, 2016) (citing Halliburton, 2001 WL 1013047, at *1).
The fee applicant bears the burden of proof on this issue. See Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996); La. Power & Light Co., 50 F.3d at 324. In the second step of the lodestar method, a court must consider whether the lodestar figure should be adjusted upward or downward depending on its analysis of the twelve factors established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
The most critical factor in determining the reasonableness of an attorneys' fees award is the degree of success obtained. Hensley, 461 U.S. at 436.
In support of its application, Plaintiff submits an affidavit and contemporaneous billing records. (docs. 16-1, 16-2.)
Plaintiff has the burden of showing that its counsel's hourly rate is reasonable. La. Power & Light Co., 50 F.3d at 324. "Typically, the Court receives copies of resumes or summaries of the qualifications of attorneys involved in the litigation, as well as information regarding the individuals' litigation skills generally." Neles-Jamesbury, Inc. v. Bill's Valves, 974 F.Supp. 979, 987 n.19 (S.D. Tex. May 30, 1997). Further, "[t]o inform and assist the court in the exercise of its discretion [in analyzing reasonable hourly rate], the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—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. A rate determined in this way is normally deemed to be reasonable, and is referred to—for convenience—as the prevailing market rate." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984) (emphasis added); see Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002) ("Generally, the reasonable hourly rate for a particular community is established through affidavits of other attorneys practicing there."); Watkins v. Fordice, 7 F.3d 454, 458 (5th Cir. 1993).
Here, Plaintiff seeks an hourly rate of $150 per hour. (doc. 16-1 at 1.) It submits Attorney's affidavit, which avers that he is licensed to practice in Texas state courts and the U.S. District Courts within Texas, but it does not indicate his level of experience. (See id.) Nor does it contain any information about prevailing rates charged for similar services by attorneys of similar skill levels in this area. (See id.) Plaintiff has not submitted any affidavits from other attorneys practicing in the area attesting to the reasonableness of the requested fees. (See id.) It's motion does note, however that Attorney "has six years of experience in the practice of law; three and one-half of which have been in the practice of collections and consumer law" but "has less experience with federal practice and procedure." (doc. 16 at 3.)
Defendant objects to the requested rate of $150 per hour because "[t]he market rate for attorneys with reasonable skills and experience in the community" is $120 per hour.
Courts have found it appropriate to take judicial notice of the Fact Sheet under Fed. R. Evid. 201 to consider the reasonableness of Plaintiff's requested hourly rate.
Plaintiff's requested hourly rate of $150 per hour is reasonable based on the prevailing market rate in this area for cases of this type, as well as fees awarded under § 1447(c) in other cases within this district. See, e.g., Block C, 2016 WL 791046, at *2 (noting that hourly rates between $110 and $250 per hour appeared consistent with the prevailing market rates in the Dallas area for remand work in a forcible detainer action); Jiwani, 2014 WL 4805781, at *5-6 (approving rates between $200 and $259 per hour for remand work in a labor and employment case). It is also consistent with hourly rates awarded in debtor-creditor cases in other urban areas of Texas. See, e.g., Parker, 2015 WL 6684552, at *5 (approving rates between $135 and $240 per hour); DZ Bank, 2013 WL 4854392, at *4 (approving a rate of $207 per hour in a creditor-debtor/commercial litigation case). Accordingly, the $150 hourly rate for Attorney is reasonable.
Contemporaneous billing records are acceptable documentation for determination of reasonable hours. See Bode v. United States, 919 F.2d 1044, 1047 (5th Cir. 1990) (per curiam). Here, Plaintiff submitted contemporaneous billing records covering the proceedings in federal court related to the removal and remand. (See doc. 16-2 at 1.) Plaintiff's billing records reflect that Attorney spent 21 hours related to the removal and remand, and two hours for the application for attorneys' fees. (See id.)
Defendant first argues that Plaintiff has not demonstrated the use of billing judgment. (doc. 17 at 2) (noting "[Attorney] failed to display billing judgment by failing to write off unproductive, excessive or redundant hours"). He appears to focus on the amount of time listed for research and drafting. (See id.)
A fee applicant "[is] charged with the burden of showing the reasonableness of the hours [it] bill[s] and, accordingly, [is] charged with proving that [it] exercised billing judgment." Walker v. U.S. Dep't of Hous. & Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996). Billing judgment "refers to the usual practice of law firms in writing off unproductive, excessive, or redundant hours[, and fee applicants] submitting fee requests are required to exercise billing judgment." Id. (emphasis added). "The proper remedy for omitting evidence of billing judgment does not include a denial of fees but, rather, a reduction of the award by a percentage intended to substitute for the exercise of billing judgment." Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 799 (5th Cir. 2006) (per curiam); see, e.g., Walker, 99 F.3d at 770 (reduced applicants requested fees by 15% "to substitute for the exercise of billing judgment" of the plaintiff's attorney); US Green Building v. Wardell, No. 3:14-CV-01541-M-BH, 2016 WL 3752964, at *9 (N.D. Tex. June 17, 2016) (same), adopted by 2016 WL 3766362 (N.D. Tex. July 11, 2016); Leroy v. City of Houston, 831 F.2d 576, 585-86 (5th Cir. 1987) (ordering a 13% reduction when plaintiff's attorney made no reduction to the lodestar for billing judgment); Saizan, 448 F.3d at 799 (affirmed a 10% reduction by the trial court because the plaintiff failed to provide evidence of billing judgment); Mauricio v. Phillip Galyen, P.C., 174 F.Supp.3d 944 (N.D. Tex. 2016) (noting that a voluntary reduction of 20% was consistent with the exercise of billing judgment); SCA Promotions, Inc. v. Yahoo!, No. 3:14-CV-957-O, 2016 WL 8223206, at *10 (N.D. Tex. Nov. 21, 2016) (reducing the requested amount by 10% in addition to a voluntary reduction by the applicants attorney for billing judgment), adopted by 2017 WL 514545 (N.D. Tex. Feb. 8, 2017).
Here, the application does not expressly address billing judgment, and its exercise is not apparent from the submitted billing records. (See docs. 16, 16-1, 16-2.) Although Plaintiff argues that Attorney's time was "well spent," (doc. 18 at 3), the billing records show some excessive and redundant time for research and drafting. (See doc. 16-2 at 1.) Courts within the Northern District of Texas have applied a 15% reduction in similar cases when a fee applicant has not demonstrated billing judgment. See US Green Building, 2016 WL 3752964, at *9 (reducing the hours by 15%); Walker, 99 F.3d at 770 (same). Plaintiff's requested amount should be reduced by 15%.
Defendant next argues that the billing records show poor billing practices by Attorney.
Although counsel is "not required to record in great detail how each minute of his time was expended . . . at least counsel should identify the general subject matter of his time expenditures." Thermotek, Inc., 2016 WL 6330429, at *9 (noting the fee applicant "must present detailed time records of the hours expended by each lawyer indicating the nature of the particular work done by each, but these records do not need to be perfect") (quoting Hensley, 461 U.S. at 437 n.12).
Similarly, a "court may properly reduce or eliminate hours when the supporting documentation is too vague to permit meaningful review." La. Power & Light Co., 50 F.3d at 324; see, e.g., Thermotek, Inc., 2016 WL 6330429, at *10-11 (reducing lodestar by 10% for "overly redacted entries and a lack of billing judgment" after the responding party argued that "the redactions throughout the Declaration . . . render[ed] the original description vague"). Vague entries are those that are "not illuminating as to the subject matter" or "vague as to precisely what was done." Barrow v. Greenville Indep. Sch. Dist., No. 3:00-CV-0913-D. 2005 WL 6789456, at *11 (N.D. Tex. Dec. 20, 2005) (citation omitted). Examples such as: "revise memorandum," "review pleadings," "review documents," and "correspondence" are sufficiently vague that the court could accept or reject them in a fee application. Id. (citation omitted). In Barrow, the court found entries, such as "review file," "preparation of correspondence," "review correspondence," "phone conference with co-counsel," "legal research," and "review email," were all vague and did not award attorney fees for these entries. Id. (citation omitted); see Hensley, 461 U.S. at 433 ("Where the documentation of hours is inadequate, the district court may reduce the award accordingly."); see also Hoffman, 2015 WL 3999171, at *1 n.6.
Here, Plaintiff has provided contemporaneous billing records from Attorney that include the date, time spent, and a detailed description of the associated work. (See doc. 16-2 at 1.) Unlike the applicant in Barrow, Attorney's billing records clearly separate his time based on task as well as individual research topics. (See id.) It provides sufficient detail to permit meaningful review. (See id.) Accordingly, no further reduction is needed.
In conclusion, after including a 15% reduction for billing judgment, Plaintiff's lodestar is $2,932.50.
Neither party argues for an adjustment to the lodestar. Accordingly, no adjustment based on the Johnson factors is warranted.
Any motion to reconsider should be
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
