Fong v. Beehler et al

Filing 29

ORDER re 28 Order on Motion for Attorney Fees. Signed by Judge Elizabeth D. Laporte on 10/29/13. (lrc, COURT STAFF) (Filed on 10/31/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RANDOLPH FONG,
Plaintiff,

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United States District Court
For the Northern District of California

ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR FEES FOR
REMAND

v.

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No. C -13-03021(EDL)

PATRICIA BEEHLER ET.AL.,
Defendant.

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/

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Before the Court is Plaintiff Randolph Fong’s Motion for Fees for Remand (Dkt. 23.)

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Plaintiff seeks $31,335.00 in attorney’s fees he asserts were incurred as a result of Defendants’

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removal of this action. For the reasons set forth below, the Court grants in part and denies in part

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Plaintiff’s motion. Consistent with its Order of September 16, 2013, the Court finds that

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Defendants’ lacked an objectively reasonable basis for seeking removal. The Court therefore

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awards Plaintiff $9,775.00 under 28 U.S.C. § 1447(c), which is the amount Plaintiff originally

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sought when he filed his motion to remand.

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I.

Background

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The underlying dispute in this case aligns Plaintiff/Petitioner Randolph Fong and his sister,

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Plaintiff/Petitioner Cynthia Young, against their siblings, Defendants/Respondents Patricia Beehler

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and Robert Fong. On July 1, 2013, Defendant Beehler removed the Second Amended Petition

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(“SAP”) from state court to federal court. Plaintiff Fong subsequently moved to remand the case

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and sought $9,775.00 in attorney’s fees incurred due to removal. In support of that fee request,

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Plaintiff’s counsel averred that Plaintiff incurred $7,775.00 in attorney’s fees as a result of removal

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as of July 22, 2013, the day the motion to remand was filed, and that records were available to
substantiate that amount. (Wood Decl. ¶¶ 24-26.) Counsel also estimated that Plaintiff would incur

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an additional $2,000 “to get through the hearing and remand, for a total of $9,775.00.” (Wood Decl.

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¶ 26.) After Plaintiff Fong moved to remand, Defendants moved to dismiss, arguing that Plaintiffs

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lacked standing under Estate of Giraldin, 55 Cal. 4th 1058 (Cal. 2012), the SAP failed adequately to

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allege the theory of trustee de son tort, and Defendants had already produced the accounting that

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Plaintiffs sought. The Court held a hearing on the motion to remand on September 3, 2013.
On September 16, 2013, the Court granted the motion to remand. The Court concluded that

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there was no diversity between the parties when the SAP was filed because Cynthia Young and

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Robert Fong were both California citizens. The Court also concluded that Defendant Beehler’s

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removal was untimely under 28 U.S.C. § 1446(c)(1). Additionally, the Court found that “[g]iven the

United States District Court
For the Northern District of California

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lack of diversity between the parties when the SAP was filed, and given Defendants’ failure to cite

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any law in support of their argument that the SAP commenced a new action for the purposes of §

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1446(c), Defendants did not have an objectively reasonable basis for seeking removal.” (Dkt. 20 at

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8.) The Court denied Plaintiff’s fee request without prejudice, however, because Plaintiff did not

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attach any billing records to substantiate the $9,775.00 sought.

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On September 21, 2013, Plaintiff Fong filed his billing records. Instead of just substantiating

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the fees originally requested, however, Plaintiff filed additional motion papers and more than trebled

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the amount of fees sought. Defendants oppose Plaintiff’s request for fees, arguing that removal was

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“objectively reasonable” and that Plaintiff’s fee request is excessive.

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II.

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Discussion
Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just

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costs and any actual expenses, including attorney fees, incurred as a result of the removal.” A court

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has wide discretion to award attorney’s fees for costs incurred as a result of improper removal. Gens

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v. Ferrell, Case No. 05-2183 MHP, 2005 U.S. Dist. LEXIS 39115, at *4 (N.D. Cal. Dec. 22, 2005.)

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“Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the

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removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin

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Capital Corp., 546 U.S. 132, 141 (2005).

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A.

Objectively Reasonable Basis for Removal

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The Court concluded in its prior order that Defendants did not have an objectively reasonable
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basis for removal. (Dkt. 20 at 8.) Defendants have not properly moved for reconsideration under

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Local Rule 7-9, and, in any event, have not provided the Court any persuasive reason to revisit that

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conclusion. Cynthia Young was a party to this action as early as July 30, 2012, when she filed an

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amended petition in state court. Contrary to Defendants’ argument, Plaintiff’s First Amended

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Petition and the SAP describe Young as not merely a beneficiary but also as a petitioner.

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Additionally, none of the California Probate Code sections cited by Defendants suggest that Young,

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having been a party to the state court action as early as June 30, 2012, lost her status as a party upon

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Plaintiff Fong’s filing of the SAP.
Similarly, Defendants have not established that it was objectively reasonable to remove this

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United States District Court
For the Northern District of California

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case in July 2013 despite it having commenced in November 2011. In the remand order, the Court

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noted that Defendants had not cited any case law for the proposition that the filing of an amended

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complaint or petition starts a new action for § 1446 purposes. Defendants argue that “[s]ome cases

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allow removal where the amended complaint (in this case petition) radically changes the nature of

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the action.” (Defs.’ Opp. at 25.) The SAP did not, however, radically or substantially change the

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nature of the action; the case remained a dispute among sibling heirs about their parent’s estate.

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(Dkt. 20 at 7.) Moreover, the case cited by Defendants involved an exception to the thirty-day

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removal window of 28 U.S.C.§ 1446(b), not the one year limitation on removal of § 144(c)(1).

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Johnson v. Heublein Inc., 227 F.3d 236, 241-43 (5th Cir. 2000). Finally, Defendants’ reliance on

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California probate law is unavailing because Plaintiff has cited no authority for his proposition that

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an amended pleading in that context commences a new action.

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B.

Fee Amount

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In its motion to remand, Plaintiff sought $9,775.00 in attorney’s fees. Plaintiff’s counsel,

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Steven Wood, averred that this amount comprised 12.0 hours that he worked at $350 per hour and

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14.3 hours that attorney Christopher Schweickert worked at $300 per hour as of July 22, 2013, and

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an estimated $2000 to be incurred through the hearing and remand. (Wood Decl. ¶¶ 22-26.)

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Attorney Wood stated that billing records were “kept contemporaneously and are available for in-

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camera inspection by the Court.” (Wood Decl. ¶¶ 24, 25.) Plaintiff reiterated this amount in his

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August 12, 2013, reply brief and did not submit an amended declaration to reflect the actual costs
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incurred since July 22. The Court denied Plaintiff’s request for $9,775.00 because Plaintiff did not

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submit billing records substantiating his fee request.

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In the pending motion for fees, Plaintiff now seeks a much higher amount of $31,335.00 in

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attorney’s fees. This amount comprises $23,545.00 in fees incurred due to the removal and motion

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for remand, $2,030.00 in fees incurred due to Defendants’ motion to dismiss, $2,760 in fees incurred

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in filing the pending motion for fees, and $3,000 in fees that Plaintiff estimates will be incurred

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through the conclusion of the fee proceedings.

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The Court declines to award Plaintiff $31,335.00, and instead awards Plaintiff $9,775.00.
The Court has a duty to ensure that the amount of attorney’s fees requested is reasonable and does

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United States District Court
For the Northern District of California

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not include compensation for hours that are excessive, redundant, or otherwise unnecessary. Braco

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v. MCI Worldcom Commc’ns, 138 F. Supp. 2d 1260, 1271 (C.D. Cal. 2001). “Congress did not

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intend § 1447(c) to penalize defendants or give plaintiffs a windfall.” Allen v. Monsanto Co., Case

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No. 05-0578, 2007 U.S. Dist. LEXIS 46764, at *10 (S.D. W. Va. June 26, 2007). The Court

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dismissed Plaintiff’s fee request without prejudice so that Plaintiff could submit the billing records

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that counsel claimed substantiated the $9,775.00 in fees; the Court did not intend to give Plaintiff a

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second bite at the apple so that he could triple the fees sought. Had Plaintiff submitted his billing

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records initially, he would have been limited to recovering at most $9,775.00. Plaintiff’s own error

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should not result in a windfall.

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With that in mind, the Court finds that Plaintiff is not entitled to recover the $2,030.00 in

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fees incurred due to Defendants’ motion to dismiss, the $2,760 in fees incurred in filing the motion

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for fees, and the $3,000 Plaintiff estimates he will incur going forward. Although in some

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circumstances it may be appropriate to award fees incurred for addressing a motion to dismiss later

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rendered moot by remand, here, Defendants’ motion to dismiss was largely based on state law. See,

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e.g., Sullivan v. Pulte Home Corp., Case No. 10-664, 2010 U.S. Dist. LEXIS 105245, at *4 (D.

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Ariz. Sept. 16, 2010) (excluding fees incurred in preparing a response to a motion to dismiss). Also,

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Plaintiff’s attorney’s fees for his motion for fees are excessive because many of the additional hours

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worked were necessary only because Plaintiff failed to attach billing records to his motion to

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remand. Moreover, Plaintiff’s estimated attorney’s fees are speculative.
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This reduction leaves $23,545.00 in fees that Plaintiff claims he incurred for Plaintiff’s

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removal. This amount represents 72.8 hours of attorney time, billed at $350 and $300 per hour.

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This figure is still over twice as much as the amount that Plaintiff originally sought. Plaintiff argues

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that he should not be limited to that amount because it was “a conservative fee estimate generated at

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the commencement of the remand motion, establishing a minimum level of fees that were

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undoubtedly caused by the removal.” (Pl.’s Reply at 6.) Plaintiff now asserts that his actual fees

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were $24,595 by the time of the September 3, 2013 hearing on the motion to remand. (Id.)

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Plaintiff’s motion to remand did not, however, describe the $9,775.00 sought as a
conservative fee estimate or a minimum fee level. Rather, Plaintiff’s counsel declared that $7,775 of

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United States District Court
For the Northern District of California

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the amount was supported by contemporaneous billing records. (Wood Decl. ¶¶ 24-25.) Moreover,

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Plaintiff did not supplement the fee request in his reply brief or at the September 13, 2013 hearing.

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Presumably, billing statements reflecting these amounts were available to Plaintiff and could have

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been submitted. Instead, the parties and the Court proceeded as if $9,775.00 in fees were at stake.

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Plaintiff’s attempted increase is an unreasonable departure from the original amount and is thus

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excessive. See Gens, 2005 U.S. Dist. LEXIS 39115 at *11 (reducing fees as excessive where the

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plaintiff increased fee request by several orders of magnitude despite having contemporaneous time

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records available when original fee request was made).

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Because of Plaintiffs’ overreaching, the Court caps Plaintiff’s recoverable fees at the amount

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sought in his remand papers: $9,775.00. Defendants do not challenge Plaintiff’s counsel’s hourly

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rates of $350 and $300, which are reasonable, and the hours comprised are also reasonable.

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III.

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Conclusion
The Court grants in part Plaintiff’s motion for fees under 28 U.S.C. § 1447 and awards

Plaintiff $9,775.00.
IT IS SO ORDERED.

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Dated: October 29, 2013
ELIZABETH D. LAPORTE
United States Magistrate Judge

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