Pope v. Heitman

Filing 25

MEMORANDUM DECISION AND ORDER granting 23 Motion for Attorney Fees. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RALPH EDWARD HEITMAN,
Case No. 4:11-cv-00080-BLW
Petition,
v.

MEMORANDUM DECISION AND
ORDER

DAN L. POPE dba DAN POPE
TRUSTEE, DAN L. POPE FAMILY
TRUST; and LANDOR, LLC,
Respondents.

Before the Court is Respondents’ Motion for Attorney Fees (Dkt. 23). In its
earlier Memorandum Decision and Order remanding this action to state court, the Court
found that Petitioner Ralph Edward Heitman’s removal action was frivolous,
unreasonable and without foundation. Memorandum Decision and Order at 4, Dkt. 21.
Based on this finding, the Court indicated that it would award Defendants attorney fees
and costs under 42 U.S.C. § 1988, and it invited Defendants to submit a short motion and
supporting documents explaining the amount of attorney fees requested and how such
fees were incurred in obtaining a remand of this case to state court. Id. In compliance
with the Court’s request, Defendants now seek attorney fees in the amount of $6,240.

MEMORANDUM DECISION AND ORDER - 1

As the Court has already declared Heitman a vexatious litigant, the only issue
remaining is whether the requested fees are reasonable. 42 U.S.C. § 1988. The Ninth
Circuit follows the hybrid lodestar approach in determining whether the requested fees
are reasonable. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir.
2000). This approach has two parts.
First, the Court determines the lodestar amount by multiplying the number of
hours reasonably expended on the litigation by a reasonable hourly rate. Id. The party
seeking fees must provide the Court with evidence of the hours worked and rates
claimed. Id. The Court should exclude hours which are not reasonably expended because
they are excessive, redundant, or otherwise unnecessary. Id
Second, the Court may adjust the lodestar upward or downward using a multiplier.
Id. This adjustment is based on factors not subsumed in the initial calculation of the
lodestar. Id. However, the lodestar amount is presumptively the reasonable fee amount,
so a multiplier may be used to adjust the lodestar amount only in “rare and exceptional
cases, supported by both specific evidence on the record and detailed findings by the
lower courts that the lodestar amount is unreasonably low or unreasonably high.” Id.
(Internal quotations and citations omitted).
Here, Respondents request an hourly rate of $195 for 32 hours performed. They
have submitted contemporaneous time records supporting their requested fees, and
Heitman has made no objections. After carefully reviewing the record, the Court finds
the rate charged by Respondents’ counsel is reasonable. Counsel Lane V. Erickson has
nearly 15 years of experience practicing law and he is a partner in the law firm. His
MEMORANDUM DECISION AND ORDER - 2

hourly rate of $195 is in line with someone with his experience in the Pocatello market.
Moreover the number of hours for the work performed is not excessive or unreasonable.
Based on this foregoing, the Court therefore finds that Heitman must pay Respondents
attorney fees in the amount of $6,240.
Respondents incurred no costs.
ORDER
IT IS ORDERED that Respondents’ Motion for Attorney Fees (Dkt. 23) is
GRANTED.

DATED: February 1, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 3