Pope et al v. Heitman

Filing 23

MEMORANDUM DECISION AND ORDER granting 20 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
Plaintiff,
v.

Case No. 4:11-cv-00170-BLW
MEMORANDUM DECISION AND
ORDER

DAN L. POPE, d/b/a DAN POPE
TRUSTEE et al;
Defendants.

Before the Court is Respondents Bear Lake West Homeowners Association and
Dan L. Pope d/b/a as Dan Pope Trustee’s Motion for Attorney Fees (Dkt. 20). 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. 15.
Based on this finding, the Court indicated that it would award Respondents’
attorney fees and costs under 42 U.S.C. § 1988, and it invited Respondents 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, Respondents now seek attorney fees in the amount
of $2,037.50.

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 $125 for 16.3 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

Memorandum Decision and Order - 2

15 years of experience practicing law and he is a partner in the law firm. His hourly rate
of $125 is more than reasonable for 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 $2,037.50.
Respondents incurred no costs.
ORDER
IT IS ORDERED that Respondents’ Motion for Attorney Fees (Dkt. 20) is
GRANTED.

DATED: February 9, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision and Order - 3