LaCount v. Yavapai, County of et al

Filing 16

ORDER granting plaintiff's 13 motion for award of attorneys' fees. IT IS ORDERED that plaintiff is awarded $3,358.71 in fees. Signed by Judge Frederick J Martone on 07/15/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shane A. LaCount,
Plaintiff,

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vs.

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Yavapai County, et al.,
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Defendants.
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No. CV-10-8251-PCT-FJM
ORDER

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The court has before it plaintiff’s motion for attorney’s fees, pursuant to 28 U.S.C. §

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1447(c) (doc. 13), defendants’ response (doc. 14), and plaintiff’s reply (doc. 15). This

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motion arises out of our Order granting plaintiff’s motion to remand because none of his

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causes of action arises under federal law (doc. 10). Plaintiff requests an award of $4,431.21,

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based on 17.45 hours of work at a rate of $250 per hour, plus $68.71 in non-taxable costs,

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(for photocopies, Westlaw research and postage). Plaintiff has complied with LRCiv 54.2(d)

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by including an affidavit describing the legal services provided, a statement of consultation,

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a task-based itemized statement of fees and expenses, and a fee agreement (doc. 13-1).

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I

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Plaintiff, a former employee of defendant Yavapai County, alleged he was terminated

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after notifying defendant of his disability, and asserted seven claims under Arizona law.

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Plaintiff referenced the Americans with Disabilities Act (“ADA”) in his complaint, but did

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not assert claims under the ADA because the Equal Employment Opportunity Commission

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(“EEOC”) had not completed its investigation of plaintiff’s charge of discrimination, and

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therefore his claims were not ripe for review. See Motion to Dismiss at 7 (doc. 5).

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Accordingly, plaintiff brought his state claims in state court to ensure the statutes of

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limitations for those claims did not run before the EEOC made its final determinations.

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Defendants claimed that notwithstanding plaintiff’s failure to explicitly raise a federal cause

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of action, his allegations supported an ADA claim for discrimination and/or retaliation. We

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disagreed, explaining that we would “not infer a claim that plaintiff sensibly did not assert.”

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Order of February 2, 2011 at 3 (doc. 10).

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“An order remanding the case may require payment of just costs and any actual

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expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c).

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We award fees “only where the removing party lacked an objectively reasonable basis for

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seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 711

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(2005). The decision to remove is reasonable if a “reasonable litigant” in defendants’

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position “could have concluded that federal court was the proper forum in which to litigate”

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plaintiff’s claims. Gardner v. UICI, 508 F.3d 559, 562 (9th Cir. 2007).

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Defendants lacked a reasonable basis for removal. Defendants argue they reasonably

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relied on plaintiff’s factual allegations that could support ADA claims of discrimination and

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retaliation, and that plaintiff constructed “an entire factual scenario which supports an ADA-

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based claim.” Response at 5. However, as we explained, “given that plaintiff filed a

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complaint before the EEOC, it is not surprising that his complaint contains factual allegations

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that could support a cause of action under the ADA.” Order of February 2, 2011 at 3.

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Moreover, the unreasonableness of removal is highlighted by defendants’ conflicting

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positions: defendants argued both that plaintiff implicitly asserted a cause of action not

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mentioned in the complaint, and that the claim had to be dismissed for failure to exhaust. As

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the parties know, the “process of removing a case to federal court and then having it

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remanded back to state court delays resolution of the case, imposes additional costs on both

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parties, and wastes judicial resources.” Martin, 546 U.S. at 140, 126 S.Ct. at 711.

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Defendants’ attempt to remove this action based on a claim that was neither asserted nor ripe

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demonstrated disregard for the efficient resolution of plaintiff’s claims and the resources of
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the parties and court. Accordingly, we award plaintiff attorney’s fees and costs.

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II

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We base our award on a reasonable rate and number of hours worked. According to

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their fee agreement, plaintiff was to pay counsel $200 per hour if he was successful on any

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claim, but now seeks compensation at a rate of $250 per hour. Motion at 7–8. The statute

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authorizes the award of “just costs and any actual expenses” resulting from removal. 28

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U.S.C. § 1447(c). The $200 rate that counsel charged is reasonable, and we decline to award

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a windfall rate. Counsel reports no delay in payment that would require compensation for

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“missed investment opportunities as well as lost interest.” Gates v. Deukmejian, 987 F.2d

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1392, 1406 (9th Cir. 1992). We also do not believe the result obtained (the remand of the

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action) or the skills required are exceptional. Wing v. sarco Inc., 114 F.3d 986, 989 (9th Cir.

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1997) (“in exceptional cases, quality of representation and exceptional results can, in fact,

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warrant an adjustment to the lodestar”). To the contrary, we award fees because the grounds

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for removal were so weak.

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Counsel seeks compensation for 17.45 hours of work. This amount is reasonable,

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except that plaintiff is not entitled to compensation for the one hour billed for counsel’s

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review of defendants’ motion to dismiss. Plaintiff is only entitled to costs resulting from

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improper removal, and it is possible that defendants would have moved to dismiss plaintiff’s

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alleged federal claims even if the action had remained in state court.

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We therefore award plaintiff compensation for 16.45 hours of work at a rate of $200,
plus $68.71 in related expenses, for a total of $3,358.71.
IT IS ORDERED GRANTING plaintiff’s motion for award of attorneys’ fees (doc.
13). IT IS ORDERED that plaintiff is awarded $3,358.71 in fees.
DATED this 15th day of July, 2011.

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