United States District Court, S.D. Mississippi, Northern Division
ORDER AND OPINION
BRAMLETTE, UNITED STATES DISTRICT JUDGE
McRae Law Firm, PLLC moves the Court for an order awarding it
$10, 636.80 in costs, expenses, and attorney fees it argues
that it incurred opposing Defendant Barry W. Gilmer's
removal of this case. For the reasons that follow, the Court
GRANTS the motion IN PART, reduces the requested award by $5,
145.40, and awards the McRae Firm $5, 491.40 in just costs
and actual expenses, including attorney fees, under 28 U.S.C.
fee dispute arises from Gilmer's objectively unreasonable
removal of this case. Gilmer has removed this case to federal
court three times; each effort has failed.
McRae Firm sued Gilmer and his firm in Hinds County Chancery
Court, alleging Gilmer wrongfully retained settlement
proceeds from a legal malpractice suit in which both firms
assisted the plaintiff. Gilmer removed the case to this
Court, arguing that a RICO complaint the McRae Firm filed in
another federal case is an “other paper” that
created federal question jurisdiction in this case. See 28
U.S.C. § 1446(b)(3) (permitting removal within thirty
days of receipt of a copy of an “other paper from which
it may first be ascertained that the case is one which is or
has become removable.”). The McRae Firm moved to
Court remanded the case, concluded that Gilmer lacked an
objectively reasonable basis for removing it, and determined
that the McRae Firm should recover its just costs and actual
expenses, including attorney fees, under 28 U.S.C. §
1447(c). See Doc. 13.
McRae Firm now asks the Court to award it $10, 280.40 in fees
and $356.40 in expenses. In support, the McRae Firm marshals
the affidavits of its counsel and of attorney John Corlew.
Gilmer opposes the motion. He argues that any fee award would
be unjust and unconstitutional because “this litigation
is the concerted, personally motivated pursuit” of the
McRae Firm. In support, Gilmer offers the affidavit of
attorney William Stubbs.
owes the McRae Firm the just costs and actual expenses,
including attorney fees, that the McRae Firm incurred as a
result of Gilmer's objectively unreasonable removal of
this case. 28 U.S.C. § 1447(c). The Court's §
1447(c) award is limited to “fees and costs incurred in
federal court that would not have been incurred had the case
remained in state court.” Avitts v. Amoco Prod.
Co., 111 F.3d 30, 32 (5th Cir. 1997). To calculate the
attorney fee portion of the award, the Court conducts a
two-step analysis. Portillo v. Cunningham, 872 F.3d
728, 741 (5th Cir. 2017).
first step is calculating the lodestar. To do so, the Court
takes the number of hours the McRae Firm's attorneys and
paraprofessionals reasonably expended opposing Gilmer's
removal and multiplies that number by the prevailing hourly
rate in this market for similar work. Combs v. City of
Huntington, Tex., 829 F.3d 388, 392 (5th Cir. 2016).
Time Spent Opposing Removal
oppose Gilmer's removal of this case, the McRae Firm
enlisted three attorneys, one legal assistant, and one
paralegal. The McRae Firm's itemization claims that these
professionals spent 33.3 hours opposing Gilmer's
removal. Almost 18 of those hours are attorney
time. Eighteen attorney hours to prepare a motion to remand
and supporting brief strikes the Court as unreasonable.
Particularly so when the theory of removal is meritless, as
Gilmer's was here. See Combs, 829 F.3d at 392
(The lodestar calculation excludes “all time that is
excessive, duplicative, or inadequately documented.”).
maximum number of hours the McRae Firm's attorneys could
reasonably have expended opposing Gilmer's removal is
closer to sixteen. For purposes of calculating the lodestar,
the Court will subtract half an hour ...