October 14, 2003
MEMORANDUM OPINION AND ORDER
The court remanded this removed action for lack of jurisdiction and awarded plaintiff her attorney's fees and costs under 28 U.S.C. § 1447(c). See Fathergill ex rel. Michaels Stores, Inc. v. Rouleau, 2003 WL 21467570, at *2 (N.D. Tex. June 23, 2003) (Fitzwater, J.) (" Fathergill I"). It directed that plaintiff apply for an award if the parties could not agree on the amount. The parties have been unable to reach agreement, plaintiff has applied for an award, and defendants move the court to reconsider its decision awarding fees and costs. For the reasons that follow, the court treats the motion for reconsideration as a motion for Fed.R.Civ.P. 60(b) relief and denies the motion. The court awards plaintiff part of the relief she seeks under § 1447(c): $14,621.99 in attorney's fees and $233.62 in costs.
The background facts of this case are set out in Fathergill I and need not be repeated at length. See Fathergill I, 2003 WL 21467570, at *1. Plaintiff Julie Fathergill ("Fathergill") brought this shareholder derivative action in state court against certain officers and directors of Michaels Stores, Inc. ("Michaels"). She asserted claims under Texas state law for breach of fiduciary duty, abuse of control, gross mismanagement, waste of corporate assets, and unjust enrichment. Although her state-court petition referred to conduct that is like that often found in securities fraud complaints, none of her claims alleged a federal-law cause of action. Defendants removed the case, contending that her petition was virtually identical to several securities fraud cases concerning Michaels that were recently filed in this court. They argued that the case arose under federal law because its adjudication would require determination of the substantial federal question whether defendants had violated Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5, and § 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(a). See Fathergill I, 2003 WL 21467570, at *1. The court granted Fathergill's motion to remand and awarded her attorney's fees and costs under § 1447(c). Fathergill has submitted a fee application. Defendants oppose the request, and they move the court to reconsider its decision awarding attorney's fees and costs.
The court must address the threshold question whether it has jurisdiction to decide defendants' motion to reconsider, because they have appealed the part of the remand decision that awarded attorney's fees and costs. In a July 24, 2003 order, see Fathergill ex rel. Michaels Stores, Inc. v. Rouleau, 2003 WL 21755921 (N.D. Tex. July 24, 2003) (Fitzwater, J.) (" Fathergill II"), the court brought to defendants' attention the jurisdictional problem presented by their filing both a motion for reconsideration and a notice of appeal. Treating the motion for reconsideration as a Rule 60(b) motion, the court held that it has jurisdiction to deny the motion but arguably lacks jurisdiction to grant it. See Id. at *1. In response to Fathergill II defendants acknowledged that the court's remand decision (which did not make a specific award of fees and costs) was interlocutory, they advised the court that they filed their notice of appeal to avoid waiving their right of appeal if the remand decision was deemed immediately appealable, and they stated that they did not view the notice as depriving this court of jurisdiction to decide their motion to reconsider. Because the court concludes that it has jurisdiction to deny defendants' motion, it now proceeds to the merits of the motion and of Fathergill's fee application.
They have not, of course, appealed the part of the decision that remands the case.
"[T]he propriety of the defendant[s'] removal continues to be central in determining whether to impose fees. . . . In other words, the question we consider in applying § 1447(c) is whether the defendant had objectively reasonable grounds to believe the removal was legally proper." Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000) (citations and footnote omitted). The standard for "objectively reasonable grounds for removal" does not consider the subjective motive of the defendant, nor is a fee award automatic after a finding that removal is improper. Id. at 292. The decision to award fees is a matter of discretion. See Avitts v. Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir. 1997).
Because there was no diversity of citizenship and Fathergill did not plead a federal-law cause of action, the case was removable only if one of her state-law claims required "resolution of a substantial question of federal law." Howery v. Allstate Ins. Co., 243 F.3d 912, 918 (5th Cir.), cert. denied, 534 U.S. 993 (2001). To establish jurisdiction on this basis, defendants were obligated to "show that (1) a federal right [was] an essential element of [Fathergill]'s state claim, (2) interpretation of the federal right [was] necessary to resolve the case, and (3) the question of federal law [was] substantial." Id.
BDefendants maintain that their removal was objectively reasonable because there was no controlling authority that suggested that removal was improper and there was persuasive legal authority from other jurisdictions that supported removal.
In Fathergill I the court relied on Howery to remand the case. Fathergill also points the court to Schappel v. UICI, 1999 WL 1101262 (N.D. Tex. Dec. 3, 1999) (Fish, J.), as another controlling authority. Defendants contend that Howery "is factually distinct from this case because it involved an interpretation of the Fair Credit Reporting Act that was only tangentially relied upon." Ds. Br. at 3. Although the specific federal laws at issue in Howery and the present case are different, they were both relied upon only tangentially. As explained more thoroughly in Fathergill I, the Howery and Father gill I plaintiffs both relied on theories that survived without proof of a violation of federal law and involved federal law issues that were not substantial.
Defendants also maintain that "Fathergill mentioned specific provisions of federal law[.]" Ds. Br. at 4. Although Howery mentioned only one federal statute, see Howery, 243 F.3d at 915, and Fathergill identified federal securities laws several times, see Fathergill I, 2003 WL 21467570, at * 1, they are sufficiently similar that it was objectively unreasonable to conclude that Howery did not control. The panel in Howery made clear that "Howery's mention of federal law merely served to describe types of conduct that violated the DTPA, not to allege a separate cause of action under the FCRA." Howery, 243 F.3d at 918. The same is true here. Fathergill mentioned federal law but only to specify conduct that violated Texas law. She did not allege a separate cause of action under federal law. Moreover, "Fathergill's state-law theories survive[d] even without proof of a violation of federal law." Fathergill I, 2003 WL 21467570, at *1. Accordingly, defendants have not distinguished Howery, a controlling authority that forecloses any objectively reasonable grounds for removal.
Schappel provides additional authority for concluding that removal was objectively unreasonable. In Schappel Judge Fish applied the well-settled rule that "where potential remedies exist under both state and federal law, a plaintiff may choose to proceed only under state law and avoid federal court jurisdiction." Schappel, 1999 WL 1101262, at *1 (citing Caterpillar, Inc. v. Williams, 482 U.S. 3 86, 3 92 (1987)). This regimen makes the plaintiff the master to decide what law she will rely upon in pursuing her claims. Schappel discussed the two exceptions to the well-pleaded complaint rule and found both to be inapplicable.
Opinions in the district should be followed unless persuasively shown to be incorrect or distinguishable. See Song v. Sprint Corp., 2001 U.S. Dist. LEXIS 14532, at *5 (N.D. Tex. Sept. 13, 2001) (Fitzwater, J.).
The first is the substantial federal question exception. In Schappel the defendant argued that the plaintiff's "allegations that the defendants failed to comply with federal securities law manifests the presence of a federal question." Id. at *2. The court held that the
allegations . . . simply provide the factual basis for [the plaintiff]'s state law claims. That they might also present a factual basis for a federal securities law violation is irrelevant since [the plaintiff] has chosen not to assert such claims. To hold otherwise would force a plaintiff into federal court anytime facts that formed the basis of his state cause of action also happen to support a federal claim.Id. As in Schappel the claims that Fathergill asserted did not arise under the federal securities laws but were "a subset of an array of acts that also allegedly violate state law." Fathergill I, 2003 WL 21467570, at *1. Schappel also discussed the other exception — the "artful pleading doctrine" — which applies when "a plaintiff necessarily has no viable state law claims available[.]" Schappel, 1999 WL 1101262, at *3. The defendant in Schappel argued that "[the plaintiff] ha[d] artfully pleaded what [were] truly federal securities law causes of action as state law claims." Id. There, as here, the plaintiff "assert[ed] viable state law claims, [so] the artful pleading doctrine [did] not apply." Id.
Defendants attempt to distinguish Schappel on the ground that it "was a standard shareholder derivative action stemming from a `transaction between the company and one of its directors' in which the plaintiff made tangential claims of violations of federal law." Ds. Rep. Br. at 2-3 (citing Schappel, 1999 WL 1101262, at * 1). In Schappel, however, the defendant "argue[d] that [plaintiff] ha[d] artfully pleaded what [were] truly federal securities law causes of action as state law claims." Schappel, 1999 WL 1101262, at *3. Accordingly, defendants' attempt to distinguish Schappel lacks force.
Schappel simply lists the causes of action as "state law claims of breach of fiduciary duty, conversion, waste of corporate assets, constructive fraud, fraud, negligent misrepresentation, and breach of contract." Schappel, 1999 WL 1101262, at *1. These are very similar to Fathergill's claims for breach of fiduciary duty, abuse of control, gross mismanagement, waste of corporate assets, and unjust enrichment.
Defendants contend that two opinions dealing with federal securities laws supported removal. They rely on Hawkins v. National Ass'n of Securities Dealers Inc., 149 F.3d 330 (5th Cir. 1998), and D`Alessio v. New York Stock Exchange, 258 F.3d 93 (2d Cir.), cert. denied, 534 U.S. 1066 (2001). Hawkins involved a suit arising out of an arbitration against the National Association of Securities Dealers Inc. ("NASD"), a self-regulated organization whose arbitration duties are based upon the Code of Arbitration governed by the Securities and Exchange Commission and promulgated under the United States Code. The scope of the NASD's duties, therefore, is defined by federal law. Here, defendants' duties are defined by state law. See Cort v. Ash, 422 U.S. 66, 84 (1975). Hawkins is therefore inapposite.
Defendants also cite two unpublished district court opinions from other circuits, Weitschner v. Gilmartin, No. 02-4879 (D.N.J. Jan. 14, 2003), and Gobble v. Hellman, No. 02-0076 (E.D. Ohio Mar. 26, 2002). In light of Howery, it was not objectively reasonable to rely on these two decisions from district courts located outside the Fifth Circuit.
In fact, federal securities law granted exclusive jurisdiction over all of Hawkins' claims to federal courts. See Hawkins, 149 F.3d at 332 (citing 15 U.S.C. § 78aa).
D'Alessio is likewise distinguishable from the present case. D'Alessio involved two levels of interpretation of federal law. To decide the claims against the defendant, it was necessary for the court to determine whether the New York Stock Exchange ("NYSE") violated federal law, D'Alessio, 258 F.3d at 101, and whether the NYSE's advice to D'Alessio was a "phoney interpretation" of federal law, Id. at 102. As in Hawkins, the NYSE's duties were created by federal, not state, law. And the court noted, as in Hawkins, that federal courts have exclusive jurisdiction over claims alleging violations of the duties imposed on the NYSE under § 27 of the Exchange Act. See D'Alessio, 258 F.3d at 104. Moreover, the court was required to interpret federal law to determine if the NYSE had interpreted it correctly in its instructions to D'Alessio.
"[R]esolution of D'Alessio's claims requires a court to construe federal securities laws and evaluate the scope of the NYSE's duties, as defined under the Exchange Act and the regulations and rules thereto, in enforcing and monitoring a member's compliance with those laws." D'Alessio, 258 F.3d at 101-02.
Defendants also cite Maguire v. TelCom Global Solutions, Inc., 2003 WL124475 (N.D. Tex. Jan. 10, 2003) (Fish, C. J.), in which Chief Judge Fish granted a remand motion because a "bare reference to federal law, without more, is insufficient to create federal question jurisdiction," but he did not award fees, see Id. at *2-*3. Citing Ashley v. Southwestern Bell Telephone Co., 410 F. Supp. 1389, 1392 (W.D. Tex. 1976), he refused to "engage in a futile exercise of trying to divine what federal statute or statutes [the plaintiff] may have meant" when the plaintiff alleged "breaches of state and federal statutes regulating employment[.]" Id. at *2. Although it is not clear from the opinion, Chief Judge Fish may have considered the fact that the plaintiff alleged a breach of federal statutes — something Fathergill did not assert in the present case — and that considering the state of the law, it was not objectively unreasonable for the defendant to remove the case. See Id. at *2. Without more reasoning from Maguire, and in light of the court's discretion whether to award attorney's fees under § 1447(c), it is difficult to know what factors Chief Judge Fish considered. Accordingly, the court will not rely on Maguire to decline to award fees and costs. Cf. Breathwit v. City of Terrell Civil Service Comm'n, 2001 WL 1801174, at *1 (N.D. Tex. Dec. 5, 2001) (Fitzwater, J.) (awarding fees in case where removability question was "not sufficiently close").
The discussion in Maguire of the propriety of awarding attorney's fees and costs consisted of one sentence: "After reviewing the facts concerning the removal and remand of this matter, the court concludes that an award of costs and attorney's fees is unwarranted." Maguire, 2003 WL 124475, at *3.
The court concludes that defendants lacked objectively reasonable grounds to remove this case. See Garcia v. Amâels, Inc., 254 F.3d 585, 587 (5th Cir. 2001). Accordingly, treating their motion for reconsideration as a Rule 60(b) motion, the court denies it.
As in Garcia, defendants "did not defend the removal as a good faith effort to obtain a change of existing law." Garcia, 254 F.3d at 588 n. 3.
The court must now determine the amount of attorney's fees and costs to award Fathergill.
Fathergill is entitled to recover her just costs and any actual expenses, including attorney's fees, incurred because of the removal. See 28 U.S.C. § 1447(c). This means she is to be compensated for her "fees and costs incurred in federal court that would not have been incurred had the case remained in state court." Avitts, 111 F.3d at 32.
Fathergill applies for attorney's fees in the amount of $40,992.50 and expenses in the sum of $233.62 based on the July 21, 2003 affidavit of Paul T. Warner, Esq. ("Warner"), in which he requests $3,228.75 in fees and $84.26 in expenses; Warner's August 25, 2003 declaration, in which he requests $3,836.25 in fees and $59.60 in expenses; and the August 25, 2003 declaration of Brian J. Robbins, Esq. ("Robbins"), in which he requests $33,927.50 in fees and $89.76 in expenses. The Warner affidavit and declaration pertain to fees and expenses incurred by Fathergill's local counsel, Reich Binstock, LLP ("Reich"), and the Robbins declaration concerns fees and expenses incurred by her lead counsel, Robbins Umeda Fink, LLP ("Robbins Umeda"). Both sides agree that the court must calculate the lodestar fee — the product of the number of hours reasonably expended, multiplied by a reasonable hourly billing rate — and then adjust the lodestar, if necessary, according to the factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The parties disagree, however, concerning what is a reasonable fee. In their response to Fathergill's initial fee application — which is supported by the July 18, 2003 Jeffrey P. Fink, Esq. ("Fink") affidavit, see supra note 10, and the July 21, 2003 Warner affidavit — defendants maintain that (1) any award provides Fathergill a windfall, and the court should accordingly adjust the lodestar downward, (2) she requests excessive fees, and (3) Fathergill has failed to support her application adequately. In response to Fathergill's reply and supplemental application — which is supported by the August 25, 2003 Warner and Robbins declarations — defendants contend that (1) Fathergill's exorbitant fee application precludes an award of additional fees, and (2) any award of additional fees should be substantially reduced.
Defendants do not challenge the costs that Fathergill seeks.
Fathergill also submitted the July 18, 2003 affidavit of Jeffrey P. Fink, Esq., in which he avers that Fathergill incurred $22,653.75 in fees and $13.23 in expenses. These sums are included in Robbins' August 25, 2003 declaration, however, and the court will not consider them separately.
As the court noted in Sandoval v. Apâel, 86 F. Supp.2d 601, 615 n. 24 (N.D. Tex. 2000) (Fitzwater, J.), the Fifth Circuit's opinion in Walker v. United States Department of Housing Urban Development, 99 F.3d 761 (5th Cir. 1996), describes how the Johnson factors have been refined.
Defendants first contend that no fees should be awarded because removal was objectively reasonable. The court rejects this argument for the reasons set out above concerning defendants' motion for reconsideration.
Defendants' first argument — that any award of fees would be a windfall to Fathergill — is misplaced. Fathergill is correct that § 1447(c) does not concern itself with "unforeseen" issues or contingency fee arrangements. It simply provides that a party who unreasonably removes a case to federal court can be ordered to pay reasonable attorney's fees and costs. The case that defendants cite to support the contention that an award would be windfall actually counsels/or an award. See La. Power Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995) (per curiam) (noting that courts are not limited to viewing contingency contract between litigant and counsel and reasoning that, "[if] fees awarded by the district court are reasonable . . . then by definition there will be no windfall.").
CDefendants also contend that the hourly rates that Fathergill seeks are excessive. They ask the court to take judicial notice of a news article, and they rely on rates reported in the article to set the fee award. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). Defendants cite Flax v. Potts, 725 F. Supp. 322, 327 (N.D. Tex. 1989) (Mahon, J.), for the proposition that the court may take judicial notice of a newspaper article. Assuming the court may do so, it declines to take judicial notice here because the article in question is not a source whose accuracy cannot reasonably be questioned. See, e.g., Cofield v. Ala. Pub. Serv. Comm'n, 936 F.2d 512, 517 (11th Cir. 1991); cf. Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n. 18 (9th Cir. 1999) (holding that court could take judicial notice of newspaper article as evidence that the market was aware of information reported in article); Associated Gen. Contractors of Am. v. City of Columbus, 936 F. Supp. 1363, 1425 (S.D. Ohio 1996) (discussing when court may take judicial notice of newspaper article). As Fathergill correctly points out, the newspaper article suffers from several defects that subject it to reasonable questioning.
In support of their contention that Fathergill has failed to support her application adequately, defendants essentially argue that her attorneys billed excessive hours for the work at issue.
Defendants assert that (a) she has failed to demonstrate that the fees would not have been incurred had the case remained in state court, (b) she has failed to provide evidence that the fees are neither duplicative nor unnecessary, (c) she has not established that the fees relate solely to legal rather than clerical work, (d) she has failed to establish that the rates charged are reasonable and customary in this jurisdiction, and (e) she has failed to document proper billing judgment.
Central to defendants' contention that Robbins Umeda billed excess time is the nature of the action and its similarity to other cases with which Robbins Umeda was involved at the same time. Defendants allege that Fathergill's attorneys could "cut and paste" from pleadings in other cases in which they served as counsel. The most obvious example of copying is Fathergill's motion for remand, in which the name of the party was not changed after being copied from another pleading. See P. Mot. Remand at 1 (referring to "Hotels.com" instead of Michaels). Moreover, the briefs in Solodovnikov v. Diener, No. 3:03-CV-0812-K (Kinkeade, J.), and Rabin v. Antioco, No. 3:03-C V-1058-M (Lynn, J.), are identical in some places to the briefs in the present case. Solodovnikov was filed before Fathergill. At the very least, the costs of research and drafting should have been spread among clients. Instead, Robbins Umeda requests 27.5 hours for the motion to remand and 30.5 hours for the reply to defendants' opposition to remand. The 38 pages of briefing, consisting of portions of copied text from other briefs and research already conducted, should not have taken 58 hours to complete. The court finds that a reasonable amount is 15 hours (a reduction of 43 hours). This conclusion leads to a reduction of $12,568.04.
Robbins Umeda also seeks 12 hours for preparing the response to defendants' motion for reconsideration. The response consists of three pages of text, one of which is an introduction. This amount of time is clearly excessive, particularly considering that the motion was one for reconsideration and the subject matter was not new. The court finds that a reasonable amount of time is 4 hours (a reduction of 8 hours). This conclusion leads in turn to a reduction of $2,440.00 in the fees claimed.
Robbins Umeda also billed 16.75 hours associated with preparing and defending the instant fee application and attempting to resolve the matter without court intervention. The entirety of what was submitted to the court is an application of 1 ½ pages with exhibits and the short Fink affidavit and the more substantial Robbins declaration of 3 ½ pages and exhibits. The exhibits are copies of correspondence and of submissions made to other courts, court orders, and redacted billing records. The court finds 16.75 hours to be excessive. The court therefore reduces the hours billed for preparing and defending the instant fee application to 8 hours (a reduction of 8.75 hours). This conclusion leads to a reduction of $3,068.36 in fees. Robbins Umeda also billed 3.75 hours "associated with interacting with the Fifth Circuit in connection with defendants' appeal[.]" Robbins Decl. at 3. These services relate to the appeal of the court's fee decision, which is not a proper subject of the instant fee application. If the circuit court affirms the decision, Fathergill can apply for additional fees incurred on appeal. This results in a reduction in fees of $898.76.
Moreover, the court agrees with defendants that some of this time should be reduced because Fathergill should have met the well-established requirements in her initial application instead of spending additional time on her second application.
The firm billed these hours at an average rate of $350.67 per hour.
Robbins Umeda states that it billed 3.45 hours, but the court's review indicates that it billed 3.75 hours.
The firm billed these hours at an average rate of $239.67 per hour.
As for Fathergill's local counsel, Warner avers in his affidavit and declaration that Reich billed 31.4 hours at $225.00 an hour for a total of $7,065.00 plus expenses of $143.86. Only two entries are for more than 8 hours, and most are for 1 hour. Most entries reflect services consisting of reading and reviewing documents or composing emails to other counsel. The detailed entries included in the Warner declaration clearly demonstrate that a majority of his time was spent communicating with Robbins Umeda attorneys. Very few entries include drafting or legal research or providing the type of assistance contemplated by the local counsel requirements of N.D. Tex. Civ. R. 83.10(b). See Toddy Shipyards Corp. v. Turbine Serv., Inc., 592 F. Supp. 380, 396 (E.D. La. 1984) (noting that local counsel could facilitate communication with the court, assist with research, prepare court papers, substitute for out of town lawyers to carry the litigation forward, and attend conferences, depositions, and trials), aff'd in part, rev'd in part on other grounds, 763 F.2d 745 (5th Cir. 1985). Instead, most entries reflect that local counsel primarily read and reviewed correspondence and email messages from other counsel. Fathergill has not provided sufficient documentation to show that many of these hours are not duplicative of services provided by lead counsel, are even necessary, or are fees incurred in federal court that would not have been incurred had the case remained in state court. Therefore, Fathergill has not met her burden of producing sufficient evidence to allow the court to determine whether the services Reich provided are reasonable. Accordingly, the court reduces the hours from 31.4 to 10 (a reduction of 21.4 hours). This conclusion leads to a reduction of $4,815.00 in fees.
Rule 83.10(b) provides:
Local counsel must be authorized to present and argue a party's position at any hearing called by the presiding judge on short notice. Local counsel must also be able to perform, on behalf of the party represented, any other duty required by the presiding judge or the local rules of this court."
It is well established that duplicative or unnecessary work should not be included in a fee award. See Johnson, 488 F.2d at 717. "If more than one attorney is involved, the possibility of duplication of effort along with proper utilization of time should be scrutinized." Id.
"Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see Abrams v. Baylor Coll. of Med., 805 F.2d 528, 536 (5th Cir. 1986).
The firm billed these hours at an average rate of $225.00 per hour.
Additionally, both firms have an obligation to demonstrate billing judgment — the practice of a law firm's writing off unproductive, excessive, or redundant hours. See Walker v. United States Dep't of Housing Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996). Courts have reduced awards by 15% for failing to show billing judgment. See Id.; Sees v. Fagen, 2002 WL 460233, at *3 (N.D. Tex. Mar. 22, 2002) (Buchmeyer, J.). Neither Robbins Umeda nor Reich have apparently made any effort to demonstrate billing judgment. After considering other reductions, the court will reduce the hours of both Robbins Umeda and Reich by 15%.
The court will not address in detail the argument that Fathergill's attorneys' work was clerical. Fathergill has provided billing descriptions that allow the court to determine whether a task was clerical or legal. The court has found none that was clerical.