Summary
finding Case "persuasive" on this issue because it awarded Westlaw charges in a civil rights action
Summary of this case from Bank of New York v. MehnerOpinion
Case No. 04-2334-JWL.
November 17, 2004
ORDER
On October 6, 2004, the court granted plaintiff's motion for remand because All State Tank Manufacturing, L.L.C.'s ("All State") notice of removal was filed more than thirty days after the initial service and there is no "other paper" that made All State aware that the case was removable to federal court, making All State's motion to remove untimely. As part of that order, the court granted plaintiff's request for attorneys' fees and costs contingent upon submission of an affidavit in support of attorneys' fees and costs. This matter is currently before the court on consideration of the Affidavit of Michael J. Abrams in Support of Motion to Remand and In Response to Order for Fees and Costs (Doc. # 11) and All State Tank Manufacturing, L.L.C.'s Response to Affidavit in Support of Plaintiff's Request for Attorney's Fees and Costs Associated With Motion to Remand (Doc. # 12). As explained more fully below, the court orders All State to pay plaintiff $6,337.45.
Plaintiff requests $5,629.50 for attorneys' fees. This figure represents time spent by Michael Abrams, a member of Lathrop Gage L.C. ("Lathrop Gage"), and Patrick L. Kinney, an associate with Lathrop Gage. Mr. Abrams' billing rate for 2004 is $255.00, and plaintiff seeks compensation for 12.5 hours, with 11.8 hours for reviewing, researching and editing plaintiff's motion to remand and 0.7 hours to prepare for a July 20, 2004 discovery hearing in Wyandotte County. Mr. Kinney's billing rate for 2004 is $185.00, and plaintiff seeks compensation for 13.2 hours which were spent researching, drafting and editing plaintiff's motion to remand.
All State responds by arguing that spending more than 20 hours to prepare the motion to remand was unreasonable and therefore the court cannot award plaintiff the full amount of fees sought. All State also argues that it is improper for plaintiff to request compensation for time preparing for a state court hearing because the expense was not a result of removal.
As set out in 28 U.S.C. § 1447(c), "remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal." When awarding fees, the court must conduct an independent inquiry into the reasonableness of the attorney's fees requested. Huffman v. Saul Holding Ltd. Partnership, 262 F.3d 1128, 1134 (10th Cir. 2001).
The court finds that the 25 hours spent by Mr. Abrams and Mr. Kinney preparing plaintiff's motion to remand was a reasonable amount of time because plaintiff's motion to remand dealt with the complex issue of defining "other paper" in the context of removal. The court also finds that the billing rates for Mr. Abrams and Mr. Kinney are reasonable, and the court notes that All State does not challenge the reasonableness of the billing rates.
The court, however, finds that plaintiff is not entitled to compensation for the 0.7 hours billed for the discovery hearing. While the hearing did not occur as a result of removal, and the 0.7 hours used for preparation is time that would have been spent even if All State did not move for removal, plaintiff will have to spend time to review its past preparation as a result of All State's removal of this action. The court finds that 0.3 hours is sufficient time for plaintiff to review it past preparation, and an award for this amount of time will fairly compensate plaintiff while not unjustly enriching it.
The court, therefore, orders that plaintiff is awarded $5,527.50 for attorney fees, composed of $3,085.50 for Mr. Abrams' time (12.1 hours × $255 per hour) and $2,442 Mr. Kinney's time (13.2 hours × $185 per hour).
Plaintiff also requests $809.95 for Westlaw charges. All State responds, arguing that Westlaw fees are uncollectible costs. In support of this argument, All State cites Calloway v. Union Pac. R.R. Co., 929 F. Supp. 1280 (E.D. Mo. 1996), which states that computer-based research must be factored into attorneys' fees and cannot be independently taxed as an item of cost in addition to attorneys' fees based upon the holding in Standley v. Chilhowee R-IV School Dist., 5 F.3d 319, 325 (8th Cir. 1993). The court is unable to find, nor does All State argue that this rule has been adopted by the Tenth Circuit.
In Case v. Unified School District No. 233, 157 F.3d 1243 (10th Cir.), the Tenth Circuit addressed the issue of whether Westlaw expenses were recoverable while examining the district court's award of fees and damages in a civil rights action. The Case court held that "[r]easonable expenses incurred in representing a client in a civil rights case should be included in the attorney's fee award if such expenses are usually billed in addition to the attorney's hourly rate." Id. at 1257. While this case is not exactly on point, the court finds it to be persuasive. The court can think of no justification for allowing a party ordered to pay reasonable costs and fees to pay less than a client would pay for identical services.
Neither of the parties cite a Tenth Circuit case dealing with computer-based research fees when costs and attorneys' fees have been awarded after granting a motion to remand, and the court is unable to find such a case.
As it is undisputed here that Westlaw fees are usually billed to the client in addition to the attorney's hourly rate, the court awards plaintiff $809.95.
Based upon the court's reasoning explained fully above, the court grants plaintiff an award of $6,337.45, consisting of $5,527.50 for attorney fees and $809.95 for Westlaw fees. IT IS THEREFORE ORDERED BY THE COURT that plaintiff is awarded $6,337.45 for attorney fees and costs incurred as a result of All State's motion for removal.
IT IS SO ORDERED.