United States District Court, D. Columbia
August 22, 2005.
ADOLPH COORS CO. et al., Plaintiffs,
TRUCK INSURANCE EXCHANGE, Defendant.
The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
This case was referred to me for resolution of a fee dispute
related to plaintiffs' successful motion for remand. Upon
consideration of plaintiffs' statements of costs and attorneys'
fees and defendant's responses, plaintiffs are hereby awarded
fees and costs in the amount of $10,641.22.
On December 13, 2004, defendant Truck Insurance Exchange
("Truck") removed this case from the District of Columbia
Superior Court on the basis of diversity jurisdiction. Adolph
Coors Co. v. Truck Ins. Exch., No. Civ. A. 04-2150RMU, 2005 WL
486580, at *1 (D.D.C. Feb. 28, 2005). Plaintiffs Adolph Coors
Company and Coors Brewing Company (known collectively as
"Coors"), filed a motion to remand on January 3, 2005. Id. The
district court granted the motion to remand on February 28, 2005
because defendant failed to establish diversity of citizenship.
Id. The district court also directed defendant to pay the costs
and expenses plaintiffs incurred as a result of the removal.
I. Fee Awards Pursuant to 28 U.S.C. § 1447(c)
If a court decides to remand a case, that court "may 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) (2000). It should be noted that
the reference to "actual expenses" does not limit the ability of
the court to conduct an inquiry into the reasonableness of the
fees and costs. On the contrary, the court is "duty-bound to
ensure that an award of attorneys' fees pursuant to § 1447(c) is
reasonable." Huffman v. Saul Holdings Ltd. P'ship,
262 F.3d 1128, 1134 (10th Cir. 2001). As the Huffman court explained,
"unreasonably high fees are not "incurred" as a result of
removal; rather, excessive fee requests flow from, and accumulate
by means of, improper billing practices. . . ." Id. at 1135.
Plaintiffs, therefore, are entitled to reasonable attorneys' fees
II. Reasonableness of Attorneys' Fees
Having determined that plaintiffs are entitled to reasonable
attorneys' fees, this court must now turn its attention to the
appropriate measure of those fees. This circuit has generally
employed the following three-part framework to evaluate the
reasonableness of fee awards: "`(1) determination of the number
of hours reasonably expended in litigation; (2) determination of
a reasonable hourly rate or "lodestar"; and (3) the use of
multipliers as merited.'" Covington v. District of Columbia,
57 F.3d 1101, 1107 (D.C. Cir. 1995) (quoting Save Our Cumberland
Mountains, Inc. v. Hodel, 857 F.2d 1516, 1517 (D.C. Cir. 1988)
(en banc) (citation omitted)). "While the [c]ourt is empowered to
exercise its discretion in determining the fee amount, the
plaintiff still bears the burden of establishing all elements of
the requested fee award, including entitlement to an award,
documentation of appropriate hours, and justifications of the
reasonableness of the billing." Smith v. District of Columbia,
No. Civ. A.02-373, 2005 WL 914773, at *2 (D.D.C. Apr. 18, 2005)
(citing Blum v. Stenson, 465 U.S. 886, 896 (1984)).
A. Hours Reasonably Expended
Plaintiffs may satisfy their burden of demonstrating that the
number of hours expended on particular tasks was reasonable "by submitting invoices that are
sufficiently detailed to `permit the District Court to make an
independent determination whether or not the hours claimed are
justified.'" Kaseman v. District of Columbia,
329 F. Supp. 2d 20, 26 (D.D.C. 2004) (quoting Nat'l Ass'n of Concerned Veterans
v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)).
Plaintiffs in this case have submitted a detailed invoice for the
hours expended as a result of the improper removal. Plaintiffs'
Submission with Respect to Costs and Attorneys' Fees ("Pls'.
In Defendant's Response to Plaintiff's Statement of Costs and
Attorney's Fees ("Def's. Resp."), defendant argues that it was
unreasonable for plaintiffs to spend 37.8 hours litigating the
removal. Defendant begins by stating that the issue of diversity
is "neither novel nor complex" and therefore does not justify the
hours claimed by plaintiffs. Def's. Resp. at 4. Defendant then
points out that, in plaintiffs' Statement of Points and
Authorities, plaintiffs cited a Memorandum of Points and
Authorities prepared by defendants for a two-year-old California
case, Steadfast Insurance Co. v. Allianz Insurance Co. Id.
This is significant, defendant claims, because the Steadfast
memorandum "provided [p]laintiffs with a road map as to how to
challenge a suit brought on diversity grounds. . . ." Id. "It
is ironic," defendant concludes, "that after relying on
[d]efendant's work product in Steadfast to defeat [d]efendant
here, [p]laintiffs now seek $13,218.72 in fees and costs for the
same." Id. at 4-5.
While the court agrees with defendant that there is a certain
irony permeating the parties' recent filings, the court must
differ with defendant as to its source. If the issue of diversity
is "neither novel nor complex," as defendant claims, defendant
should certainly have been able to avoid the improper removal of
the case. In addition, it was defendant's failure to read its
own "road map" that gave rise to the expenses they now contest
as "unreasonable." Finally, and perhaps most baffling of all, are defendant's
inconsistent statements regarding the ultimate usefulness of the
Steadfast memorandum. In its response to plaintiffs' initial
statement of costs, defendant states that the memorandum
"addressed the identical issues" as plaintiffs' filing in the
instant case, and "certainly should have saved [plaintiffs]
substantial time in researching and drafting their motion."
Def's. Resp. at 4. However, in Defendant's Response to
Plaintiff's Submission with Respect to Costs and Attorney's Fees
("Def's. Resp. Sub."), defendant states that "[p]laintiffs added
superfluous, and expensive, window-dressing to their motion by
obtaining original briefs filed by Truck in an unrelated case in
the U.S. District Court in the Southern District of California."
Def's. Resp. Sub. at 2. Defendant goes on to state that "[t]his
costly effort in no way advanced resolution of the issue in this
case . . . and merely piled on additional costs beyond that which
was necessary to make the argument." Id. In other words,
defendant seems to claim that plaintiffs' compensation should be
reduced because their reliance on the Steadfast memo should
have saved them considerable time and expense, while in the same
breath argues that any time plaintiffs spent procuring the memo
This court finds no merit in any of the above arguments.
Plaintiffs are entitled to seek any information that they believe
will benefit their case, and argument in the alternative is
standard practice. However, the court does find that the number
of partner hours spent on the matter (11.7), as compared to the
number of associate hours spent on the matter (26.0), is
excessive. After all, a partner should be performing supervisory
work and should not need to expend almost half of the time spent
by an associate on a particular matter. The court will therefore
reduce the number of compensable partner hours by half,
decreasing the time expended by Karen Bush*fn1 from 11.7
hours to 5.85 hours. B. Reasonableness of Costs
Plaintiffs seek $737.72 in costs, and defendant objects to
paying for any costs premised on printing, duplication, and
Westlaw/Lexis charges. Defendant also objects to paying a courier
charge because all pleadings in this case were filed
First, defendant's assertion that "[l]egal research is part
[of] the overhead for attorneys to do their job" is incorrect.
See Def.'s Resp. Sub. at 3. In this jurisdiction, Westlaw and
Lexis charges are passed on to the client on a cost basis and
have been reimbursed by the courts as costs. See, e.g., Laffey
v. Northwest Airlines, 572 F. Supp. 354, 385-386 (D.D.C. 1983),
rev'd on other grounds, 746 F.2d 4 (D.C. Cir. 1984). The logic
of doing so is unassailable. Computerized databases have achieved
extraordinary efficiencies in performing legal research, as
anyone old enough to remember nearly going blind searching West's
Dicennial Digest or Shepard's Citators can attest. It would be
perverse to disallow costs for a device that lowers the hours
that attorneys would have to spend doing legal research if they
did not use Westlaw or Lexis.
As for printing and duplication costs, both are traditionally
passed on to the client upon the theory that, but for the firm's
performing these tasks, the printing and copying would have to be
outsourced to a commercial service like Kinko's, which would
unquestionably charge for its services.
Finally, while electronic filing has reduced the need for
couriers to come to the courthouse to deliver pleadings,
defendant assumes that this is the cost for which plaintiffs seek
reimbursement. But, plaintiffs may have incurred this cost for
another, legitimate reason. While I could require additional
information to determine whether this is the case, I have decided
instead to allow these costs given the nominal amount involved
and the fact that Judge Urbina asked for no more than a statement
of costs. De minimis non curat lex. C. Reasonableness of Hourly Rates
An attorney's usual billing rate, when "`in line with those
prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation,'" is
presumptively reasonable. Martini v. Fed. Nat'l Mortgage Ass'n,
977 F. Supp. 482, 485 (D.D.C. 1997) (citing Kattan v. District
of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993) (citation
omitted)). Defendant submits that the Laffey Matrix, prepared
by the U.S. Attorney's Office, should be used to determine the
prevailing community rates for legal services of the type at
issue in this case. Def's. Resp. at 2-3; Def's. Resp. Sub. at 3.
Defendant also requests that, because the rates billed for both
Karen Bush and Ryan Luft are higher than the Laffey rates,
plaintiffs' compensation be reduced to Laffey levels. Id.
The defendant's assertion that the court has some power to
reduce what Dickstein, Shapiro actually charges its client to the
Laffey rate, i.e., the rate that the United States Attorney's
office has conceded it will deem reasonable when a fee-shifting
statute applies, is unsupported by law, logic, or economics.
First, while use of the Laffey Matrix is standard in this
circuit to determine the prevailing community rate for complex
federal litigation under fee-shifting statutes, there is no
circuit precedent requiring the application of Laffey rates to
an award of fees pursuant to § 1447(c). In Johnson-Brown v. 2200
M Street LLC, plaintiffs independently decided to bill for §
1447(c) attorneys' fees at Laffey rates, but only for the
purposes of that itemization and as a matter of expedience.
Plaintiffs' Itemization of Costs and Expenses Pursuant to Court's
Order of April 8, 2003 at 1-2, Johnson-Brown v. 2200 M Street
LLC, 257 F. Supp. 2d 175 (D.D.C. 2003) (No. Civ. A. 02-1756).
The district court subsequently found the requested fees to be
reasonable, but did not make any finding as to whether Laffey
was the proper standard by which to measure billing rates in § 1447(c) actions. Johnson-Brown v. 2200 M
Street LLC, No. Civ. A. 02-1756 (D.D.C. Apr. 24, 2003). In
addition, the Johnson-Brown plaintiffs explicitly reserved the
right to seek higher fees in other contexts. Plaintiffs'
Itemization of Costs and Expenses Pursuant to Court's Order of
April 8, 2003 at 1-2, Johnson-Brown v. 2200 M Street LLC,
257 F. Supp. 2d 175 (D.D.C. 2003) (No. Civ. A. 02-1756). This would
appear to support the proposition that the prevailing rate in the
community, absent voluntary reductions, is higher than those
prescribed by Laffey.
Second, the Laffey Matrix, published by the United States
Attorney's Office, is a concession by that office of what it will
deem reasonable when a fee-shifting statute applies and its
opponent prevails and seeks attorneys' fees. That concession
relieves that office from having to litigate the market rate in
the hundreds of fee-shifting cases that it defends. But, it does
not follow that the rate Dickstein, Shapiro charges its clients
should not be allowed as the market rate because the United
States Attorney has advised the bar that it will not oppose fees
sought that are equal to or lesser than the Laffey rate.
Finally, the most fundamental economic analysis indicates that,
all things considered, the rate that Dickstein, Shapiro charges
its clients is the market rate. In an efficient market, the price
that competitors charge is driven down to the lowest price any
competitor charges. In an efficient legal market, therefore,
Dickstein, Shapiro can profit and remain in business only if it
charges no more than the competition. Thus, under this analysis,
its actual rate is presumptively the market rate for its
services in this market. See Nat'l Assoc. of Concerned Veterans
v. Sec'y of Def., 675 F.2d 1319, 1324 (D.C. Cir. 1982)
("Accordingly, the actual rate that applicant's counsel can
command in the market is itself highly relevant proof of the
prevailing community rate."). In the absence of some reason to
believe that for some unknown reason Dickstein, Shapiro can
charge rates higher than its competition and still prosper, I will apply
their actual rates as the market rate.
For the foregoing reasons, this court declines to apply the
Laffey rates to the case at hand and will order the
compensation of plaintiffs's attorneys according to their regular
billing rates, which the court finds to be reasonable.
For the reasons presented above, plaintiffs are entitled to
attorneys' fees and costs in the amount of $10,577.72. The
following chart demonstrates how the court arrived at this
Hours and Amounts Claimed Hours and Amounts Awarded
Karen Bush 11.7 hours for a total of $5100.00 5.85 hours for a total of $2550
Partner (6.6 hours @$425/hour = $2805.00 (3.3 hours @ $425/hour = $1402.50
(5.1 hours @$450/hour = $2295.00 (2.55 hours @ $450/hour = $1147.50
Ryan Luft 26.0 hours for a total of $7245.00 Same ($7245.00)
Associate (16.5 hours @ $275/hour = $4537.50
(9.5 hours @ $285/hour = $2707.50
Amy Spencer .3 hours @ $150/hour = $45.00 Same ($45.00)
Pamela Acree .3 hours @ $105/hour = $31.50 Same ($31.50)
Technical Services Supervisor
Takeisha Bennett .4 hours @ $80/hour = $32.00 Same ($32.00)
Costs $737.72 $737.72
TOTALS $13,191.22 $10,641.22
An Order accompanies this Memorandum Opinion.
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