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McRae Law Firm, PLLC v. Gilmer

United States District Court, S.D. Mississippi, Northern Division

July 26, 2018

MCRAE LAW FIRM, PLLC PLAINTIFF
v.
BARRY W. GILMER, et al. DEFENDANTS

          ORDER AND OPINION

          DAVID BRAMLETTE, UNITED STATES DISTRICT JUDGE

         Plaintiff 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. § 1447(c).

         I. Background

         This 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.

         The 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 remand.

         The 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.

         The 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.

         II. Attorney Fees

         Gilmer 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).

         A. Lodestar

         The 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).

         1. Time Spent Opposing Removal

         To 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.[1] 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.”).

         The 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 ...


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