Barr v. Pigott

• Court: District Court, W.D. Washington
• Decided: September 6, 2019
• Docket: 2:19-cv-00682
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 HEATHER WINSLOW BARR, CASE NO. C19-682 RSM

9 Petitioner, ORDER GRANTING IN PART PETITIONER’S MOTION FOR 10 v. ATTORNEYS’ FEES

11 JOSEPH STANLEY PIGOTT,

12 Respondent.

13 14 This matter is before the Court on Petitioner’s Motion for Attorneys [sic] Fees. Dkt. #30. 15 Respondent initially removed this action from state court. Dkt. #1. Finding no basis for subject 16 matter jurisdiction and noting Respondent’s failure to make any arguments to the contrary, the 17 Court remanded the action to state court and allowed Petitioner to submit supplemental support 18 for an award of fees. Dkt. #28. Petitioner seeks attorneys’ fees in the amount of $4,050 for work 19 performed on this matter by two attorneys. Dkt. #30. Respondent has not responded. The Court 20 awards attorneys’ fees as follows. 21 Pursuant to 28 U.S.C. § 1447(c), district courts may award payment of “just costs and 22 any actual expenses, including attorney fees, incurred as a result of the removal.” District courts 23 have broad discretion to determine the reasonableness of fees. Gates v. Deukmejian, 987 F.2d 24 1392, 1398 (9th Cir. 1992). To determine a reasonable fee, courts start with the “lodestar 1 amount,” which is calculated by multiplying the number of hours reasonably expended by a 2 reasonable hourly rate. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). 3 The lodestar figure is presumptively a reasonable fee award. Id. at 977. The court may then 4 adjust the lodestar figure up or down based upon the factors listed in Kerr v. Screen Extras Guild, 5 Inc., 526 F.2d 67, 70 (9th Cir. 1975). The court need not consider the Kerr factors, however,

6 unless necessary to support the reasonableness of the fee award. Cairns v. Franklin Mint Co., 7 292 F.3d 1139, 1158 (9th Cir. 2002).1 8 1. Reasonable Hourly Rate 9 In the Ninth Circuit, “the determination of a reasonable hourly rate ‘is not made by 10 reference to the rates actually charged the prevailing party.’” Welch v. Metro. Life Ins. Co., 480 11 F.3d 942, 946 (9th Cir. 2007) (quoting Mendenhall v. Nat’l Transp. Safety Bd., 213 F.3d 464, 12 471 (9th Cir. 2000)). “Rather, billing rates should be established by reference to the fees that 13 private attorneys of an ability and reputation comparable to that of prevailing counsel charge 14 their paying clients for legal work of similar complexity.” Id. (internal quotation marks and

15 citation omitted). “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing 16 fees in the community, and rate determinations in other cases, particularly those setting a rate for 17 the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United 18 Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). 19 Here, both Mr. Tracy and Mr. Cunanan claim an hourly rate of $250. The request is 20 supported by Mr. Cunanan’s declaration establishing that others charge significantly more within 21 the district for similar work and establishing his approximately ten years of experience. Dkt. #32 22 at ¶¶ 2–4. Petitioner does not similarly support Mr. Tracy’s hourly rate beyond asserting that 23

1 Additionally, numerous courts have subsequently held that the bulk of these factors are 24 subsumed in the lodestar calculation. See, e.g., Blum v. Stenson, 465 U.S. 886, 898–900 (1984). 1 Mr. Tracy has been practicing for more than forty years. Dkts. #30 at 3 and #31. However, based 2 on Mr. Cunanan’s representations, the Court’s knowledge and experience, and Respondent’s 3 failure to argue otherwise,2 the Court finds $250 a reasonable hourly rate for both attorneys. 4 2. Reasonable Hours 5 “The party seeking fees bears the burden of documenting the hours expended in the

6 litigation and must submit evidence supporting those hours.” Welch, 480 F.3d at 945–46 (citing 7 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The district court “should exclude any hours 8 ‘that are excessive, redundant, or otherwise unnecessary.’” McCown v. City of Fontana, 565 F.3d 9 1097, 1102 (9th Cir. 2009) (quoting Hensley, 461 U.S. at 434). 10 As noted, Petitioner seeks an award for hours expended by both Mr. Tracy and Mr. 11 Cunanan. Mr. Tracy appears to have represented Petitioner in a state court action to obtain 12 possession of property that was awarded to Petitioner in the state court divorce proceeding but 13 which the Respondent refused to voluntarily vacate. Dkt. #18 at 1–3. Mr. Tracy did not appear 14 in the federal proceedings. Rather, Mr. Cunanan appears to have been brought on solely to assist

15 with the federal court proceedings. Dkt. #32-1. 16 Overall, the Court finds the time expended on this matter to be more than was necessary. 17 Respondent’s attempted removal clearly lacked merit. By the time Mr. Cunanan appeared in this 18 action, the Court had sua sponte ordered Respondent to show cause why the action should not be 19 remanded for lack of jurisdiction. Dkt. #15. In that sense, Petitioner’s entire motion to remand 20 could be considered somewhat unnecessary and duplicative. But Petitioner’s motion did aid the 21 Court, Petitioner prevailed, and an award is appropriate. 22 23 2 See LCR 7(b)(2) (“Except for motions for summary judgment, if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the 24 motion has merit.”). 1 The Court finds, however, that involving two attorneys on this routine matter likely led 2 to some duplication of efforts. The sparse billing records provided make it difficult to determine 3 the precise division of labor between the two attorneys and Petitioner does little to delineate tasks. 4 Thus, the Court finds it reasonable to exclude the time spent conferencing. The one exception to 5 this reduction is the initial meeting between the attorneys as it was likely akin to an initial client

6 meeting. However, because the history necessary for success on the motion to remand would 7 have been conveyed at such a meeting, the Court excludes Mr. Cunanan’s time spent 8 familiarizing himself with the state court file. 9 Lastly, the Court finds that time spent by Mr. Cunanan reviewing Respondent’s filings 10 that were unrelated to remand were unreasonable and not necessary to Petitioner’s success. 11 Therefore, the Court excludes the following entries: 12 Mr. Cunanan’s Time Date Task Hours Claimed 13 6/1/2019 review state court file 1.0 6/10/2019 review federal pleadings filed by Respondent 1.9 14 6/24/2019 phone call and email to Tracy re: status 0.2

15 Mr. Cunanan’s Time Date Task Hours Claimed 16 5/31/2019 email Cunanan 0.3 6/4/2019 email Cunanan 0.3 17 6/5/2019 email Cunanan 0.3 6/10/2019 email Cunanan 0.3 18 6/24/2019 email Cunanan 0.3 7/1/2019 email Cunanan 0.3 19 7/24/2019 email Cunanan 0.3 20 7/25/2019 email Cunanan 0.3

21 The Court concludes that 9.0 hours3 of Mr. Cunanan’s time was reasonable and that 3.2 hours of 22 Mr. Tracy’s time was reasonable. The Court finds an award of $3,050 reasonable. 23 3 The Court notes that Petitioner claimed 10.6 hours of Mr. Cunanan’s time, but that the billing records indicate 12.1 hours were expended. Dkt. #32-1. The Court credits the time indicated on 24 the billing records. 1 Accordingly, having reviewed the relevant briefing, the declarations and exhibits attached 2 thereto, and the remainder of the record, the Court finds and ORDERS that Petitioner’s Motion 3 for Attorneys [sic] Fees (Dkt. #30) is GRANTED IN PART as stated above. Petitioner is 4 awarded attorneys’ fees in the amount of $3,050. 5 Dated this 6th day of September 2019.

6 A 7 RICARDO S. MARTINEZ 8 CHIEF UNITED STATES DISTRICT JUDGE

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