Cleanup N. Brooklyn By Jennifer Chantrtanapichate v. Brooklyn Transfer LLC

373 F. Supp. 3d 398
CourtDistrict Court, E.D. New York
DecidedApril 8, 2019
Docket17-cv-05621 (NG)(RER)
StatusPublished
Cited by20 cases

This text of 373 F. Supp. 3d 398 (Cleanup N. Brooklyn By Jennifer Chantrtanapichate v. Brooklyn Transfer LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cleanup N. Brooklyn By Jennifer Chantrtanapichate v. Brooklyn Transfer LLC, 373 F. Supp. 3d 398 (E.D.N.Y. 2019).

Opinion

GERSHON, United States District Judge:

Plaintiffs Cleanup North Brooklyn by Jennifer Chantrtanapichate, Osiris Arias, Magda Escobar-Beltran, Zalmen Labin, Sanders Mendez, Jose Manuel Rodriguez, Teghvir Sethi, Mercedes Tapia, Bienvenido Torres, and Benjamin Weinstein bring this motion, pursuant to 28 U.S.C. § 1447(c), seeking attorneys' fees and costs from defendants Brooklyn Transfer LLC, Nino Tristani, Anthony Tristani, GPB Waste NY LLC, and GPB Capital Holdings LLC. To the extent indicated below, plaintiffs' application is granted.

*401I. BACKGROUND

On August 30, 2017, Cleanup North Brooklyn, a grassroots community group that seeks to restore the health of North Brooklyn, and its individual members filed suit in New York State Supreme Court, Kings County, against defendants. The complaint alleged public nuisance, private nuisance, and nuisance per se under New York State common law based on defendants' operation of a solid waste transfer station located at 105-115 Thames Street in Brooklyn. Defendants timely removed this matter to the Eastern District of New York and plaintiffs moved to remand.

Although plaintiffs' complaint did not assert any federal claims, defendants argued that removal was appropriate because plaintiffs' claims necessarily raised federal questions under the Resource Recovery and Conservation Act, 42 U.S.C. §§ 6962 et seq. and its implementing regulatory scheme. Contemporaneously with their motion to remand, plaintiffs moved pursuant to 28 U.S.C. § 1447(c) to recover costs, including attorneys' fees, incurred in challenging the removal of this action and seeking remand. On April 27, 2018, I granted plaintiffs' motion to remand, finding that:

...issues of federal question jurisdiction can be complicated, but this case presents straightforward common law nuisance claims, and the inappropriateness of a federal forum is readily apparent from the face of the Complaint. Moreover, defendants' erratic and ever-shifting arguments overcomplicated an otherwise unremarkable motion to remand, forcing the plaintiffs to expend unnecessary time and money on research and briefing. Costs, including attorneys' fees, are amply warranted.

Cleanup N. Brooklyn v. Brooklyn Transfer LLC , 2018 WL 1981387, at *3 (E.D.N.Y. Apr. 27, 2018).

II. DISCUSSION

Plaintiffs are represented by counsel from Schindler Cohen & Hochman and New York Lawyers for the Public Interest ("NYLPI"). Plaintiffs' counsel from Schindler Cohen & Hochman represent plaintiffs in this action on a pro bono basis, while NYLPI is a not-for-profit law firm that represents clients free of charge. Plaintiffs seek $ 128,141.25 in attorneys' fees and $ 9,426.24 in costs, for a total of $ 137,567.49 for 351.35 hours challenging the removal of this matter and seeking remand between September 26, 2017 and December 22, 2017. In response, defendants argue that § 1447(c) permits only "actual expenses, including attorney fees, incurred as a result of the removal," and, because plaintiffs are represented by pro bono counsel, plaintiffs are unable to recover fees. Defendants further argue that plaintiffs "are not representing different parties" and therefore, according to defendants, they "are patently double billing for representation of the same client." Finally, defendants ask the court to reduce any award for overstaffing and excessive billing, as a paying client "would clearly not reasonably ever agree to pay" such a high figure.

A. Availability of Attorneys' Fees for Pro Bono Representation Pursuant to 28 U.S.C. § 1447(c)

According to 28 U.S.C. § 1447(c),

If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.

28 U.S.C.A. § 1447 (West). Defendants argue that, under this section, where plaintiffs are represented by counsel on a pro *402bono basis, the client does not actually incur any obligation to pay fees and, therefore, no fees should be awarded. The text of the statute does not require this reading. Another reading of the text more consistent with the purpose of the statute as discussed below is that, while it requires that fees be incurred , it does not require that those fees be billed to the client.

Although the Court of Appeals for the Second Circuit has not addressed this issue, the Court of Appeals for the Ninth Circuit has expressly rejected defendants' reading of the statute. In Gotro v. R & B Realty Grp. , 69 F.3d 1485, 1487 (9th Cir. 1995), the Ninth Circuit asked:

whether by choosing the words "any actual expenses, including attorney's fees, incurred " Congress intended to remove the discretion of the district court to award fees in certain cases, such as contingent fee or pro bono cases, where the client has not actually "incurred" the obligation to pay her attorneys' fees.

(emphasis in original). Following a review of the legislative history of § 1447(c), that court answered in the negative and upheld an award of attorneys' fees to a plaintiff in a contingency fee case. Id. ; accord Williams v. Beemiller, Inc. , 2010 WL 891001, at *2 (W.D.N.Y. Mar. 10, 2010), rev'd on other grounds sub nom. Williams v. Int'l Gun-A-Rama , 416 F. Appx. 97 (2d Cir. 2011) ; Simenz v. Amerihome Mortgage Co., LLC , 544 F.Supp.2d 743, 746 (E.D. Wis. 2008) ;

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373 F. Supp. 3d 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleanup-n-brooklyn-by-jennifer-chantrtanapichate-v-brooklyn-transfer-llc-nyed-2019.