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Yazdani v. Access ATM

February 21, 2007


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge


This case was referred to me for resolution of whether an award of attorneys' fees and costs incurred as a result of the removal of this case to the Superior Court of the District of Columbia is appropriate. In a previous opinion, I concluded that such an award was appropriate. The only issue remaining therefore is a determination of the amount of reimbursement due. To that end, I directed plaintiff to submit a fee petition "detailing the attorneys' fees and costs expended by him in opposing the removal of this case from the Superior Court to the District Court." Order (10/27/06) at 1.


On April 6, 2006, Access ATM filed a notice of removal with the District Court, claiming that notice had been received on or about March 10, 2006. A hearing was scheduled to take place in Superior Court on April 7, 2006 and such a hearing did in fact take place, although the defendant's counsel never appeared. On April 26, 2006, plaintiff filed a motion to have the case remanded to the Superior Court. Defendant consented to the remand by notice filed May 9, 2006. On May 16, 2006, Judge Kotelly concluded that defendant's removal to District Court had been untimely and remanded the case to Superior Court.


I. Fee Awards Pursuant to 28 U.S.C. § 1447(c)

Following a remand pursuant to 28 U.S.C. § 1447(c), the court may, in its discretion, also award attorneys' fees and costs. In doing so, the court is "duty-bound" to ensure that such an award is reasonable. Adolph Coors Co. v. Truck Ins. Exch., 383 F. Supp. 2d 93, 95 (D.D.C. 2005) (quoting Huffman v. Saul Holdings Ltd. P'ship, 262 F.3d 1128, 1134 (10th Cir. 2001)).

II. Reasonableness of Attorneys' Fees

The determination of reasonableness is based on an assessment of 1) the reasonableness of the hours spent, 2) the reasonableness of the hourly rate charged, and 3) the appropriateness of the use of a multiplier. Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).

A. Hours Reasonably Expended

The submission, by the party seeking reimbursement, of a detailed fee petition allows the court to determine the reasonableness of the hours expended. Kaseman v. District of Columbia, 329 F. Supp. 2d 20, 26 (D.D.C. 2004). Plaintiff's fee petition seeks reimbursement for attorneys' fees and costs incurred for work performed from April 1, 2006 to December 7, 2006. Specifically, plaintiff seeks reimbursement for the following: 1) 0.92 hours of work performed by Deeme Katson ("DK"), a paralegal, 2) 16.47 hours of work performed by Harvey Williams, Esq. ("HW"), an attorney with 20 years of experience, and 3) 29.03 hours of work performed by Robert Mandancy, Esq. ("RM"), an attorney with 6 years of experience.

First, plaintiff seeks reimbursement for counsels' appearance in Superior Court on April 7, 2006. The petition describes the appearance as follows: "Court appearance in Superior Court for ex parte hearing on damages; plaintiff received unfiled copy of removal notice after 7:00 p.m. on 4/6, but was unable to obtain confirmation that notice had been filed prior to the hearing, thus requiring appearance. Defense counsel was contacted by telephone by the court for an explanation." Plaintiff's Petition for Attorney's Fees and Costs ("Plains. Pet.") at 10. Defendant argues, rightly so, that counsel would have had to appear at the April 7, 2006 hearing irrespective of defendant's having filed a notice of removal, since the court had not cancelled the ex parte hearing on damages that had been scheduled. But, plaintiff contends that numerous attempts were made by the Superior Court to locate defendant's counsel on the morning of April 7, 2006, and "[d]efendant's failure to notify plaintiff's counsel and the Superior Court that a notice of removal had been filed was the proximate cause of an unnecessary hearing taking place -- [and] plaintiff's counsel had no choice under the circumstances but to attend that hearing."

It is abstractly true that, had the case not been removed, plaintiff's counsel would have had to attend the hearing. But, I must also say that, while defendant's present counsel has been thoroughly professional, I cannot say of the same of their predecessor. His gamesmanship of filing the petition at 7 p.m. the night before the hearing, without even the courtesy of a phone call to opposing counsel or Judge Retchin's chambers, led to a busy Superior Court judge and counsel wasting time simply trying to find out what had happened. Had the petition not been filed or been filed in a timely manner, that time would not have been wasted and I have no hesitation in making the defendant pay for it.

B. Fees Attributable to Determining when the Defendant Received a Copy of the Summons and Complaint

The defendant also objects to time expended to ascertain when process was served by the Department of Consumer Affairs because plaintiff already had to secure and file proof of service to comply with Superior Court Rule 4(l). But, as defendant points out, that is incorrect. Under the controlling statute, D.C. Code § 29-101.12 (b),*fn1 service upon a foreign corporation that does not have a registered agent is accomplished by serving the Mayor, who is obliged to then serve the corporation by mail. It would therefore suffice to file proof of service upon the Mayor to comply with Rule 4(l). The controlling federal statute, 28 U.S.C. § 1446, requires, however, that the petition for removal be filed "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." Thus, even though one knows when the Mayor was served, one still has to find out when the defendant received what the Mayor sent. The efforts made to find out the latter are perfectly proper and worthy of payment.

C. Fees after Consent

On May 9, 2006, new and present counsel filed a consent to remand. Counsel also explained that on April 28, 2006 and May 5, 2006, there were teleconferences in which new counsel explained to the court and opposing counsel that he was going be entering his appearance, substituting for former counsel, and would not be objecting to a remand. He protests ...

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