Kentucky Retirement Systems v. BHEP GP I, LLC et al

Filing 45

MEMORANDUM OPINION & ORDER: Bay Hills' objections are overruled and Pla is awarded $86,825.50. Signed by Judge William O. Bertelsman on 6/15/2020.(SCD)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY  
CENTRAL DIVISION AT FRANKFURT 

CIVIL ACTION NO. 3:18-cv-27 (WOB)
KENTUCKY RETIREMENT SYSTEMS

PLAINTIFF  

VS.

MEMORANDUM OPINION AND ORDER 

BAY HILLS CAPITAL MANAGEMENT, ET AL.

DEFENDANTS

This case is before the Court on Plaintiff’s motion for
attorney fees (Doc. 35). The Court granted that motion on January
22, 2020, and ordered briefing as to the amount of fees that should
be awarded. (Doc. 38). After reviewing the parties’ briefs, the
Court awards Plaintiff fees of $86,825.50.
I. Analysis
Plaintiff seeks fees from the date the action was removed
through

the

date

of

remand.

A

total

award

of

$86,825.50

is

appropriate based on fees and costs incurred through Reinhart
Boerner

Van

Dueren

S.C.

(“Reinhart”),

based

in

Milwaukee,

Wisconsin, and Kentucky counsel Stoll Keenon Ogden PLLC (“SKO”).
Counsel and paralegals at Reinhart spent a combined 246.50 hours
opposing Bay Hills’ removal, at their normal hourly rates that
ranged from $165 to $695, which amounted to a combined blended

rate of $310 per hour. The total fees incurred through Reinhart
were $76,322.50. Docket entry 39-1 is a spreadsheet compiling the
Reinhart hours claimed and a calculation of the blended rate, along
with the redacted Reinhart invoices related to Bay Hills’ improper
removal.
Counsel and paralegals at SKO in Kentucky spent a combined
52.3 hours as a result of Bay Hills’ improper removal, at their
normal hourly rates that ranged from $170 to $295 per hour, which
amounted to a combined blended rate of $194 per hour. The total
fees incurred through SKO were $10,128.00. Kentucky Retirement
also incurred $375.00 in filing fees through SKO. Docket entry 392 is the redacted SKO invoices related to Bay Hills’ removal.
Neither Reinhart nor SKO were working on a contingency fee basis,
and those rates and amounts were paid by Plaintiff.
Defendants contend that only the costs related to researching
and briefing a motion to remand may be recovered under 28 U.S.C.
§ 1447(c). See Marel v. LKS Acquisitions. Inc., 2010 U.S. Dist.
LEXIS

40699,

2010

WL

1372412

(S.D.

Ohio). 28

U.S.C.

§

1447(c) provides in relevant part, “[a]n order remanding the case
may

require

payment

of

just

costs

and

any

actual

expenses,

including attorney fees, incurred as a result of the removal.”
Thus, under § 1447(c), costs that may be incurred as a result of
removal include fees associated with motions to appear pro hac
vice as well as fees associated with filing a motion to remand.
Kentucky Retirement Systems v. Bay Hills Capital Mgmt., et al.
OPINION AND ORDER
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Welgs v. Dolan, No. 1:11 CV 1241, 2011 U.S. Dist. LEXIS 104476, at
*2 (N.D. Ohio Sep. 14, 2011). However, fees associated with other
aspects of the underlying litigation not specifically related to
the removal of the action would not be recoverable under § 1447.
Id. Moreover, the expenses and fees must be just or reasonable.
Id.

General

overhead

and

administrative

costs

related

to

litigation will not be awarded. Id.
Defendants argue that the fees for time spent preparing the
motion and briefing are excessive and that there is no way a motion
to remand could have cost $86,825.50. But rather than challenging
the evidence submitted, Bay Hills mostly refers to a number of
cases where a lower amount of fees was awarded by a court.
However, many other courts have awarded fees for improper
removal for amounts similar to those at issue here. For example,
in Cleanup North Brooklyn v. Brooklyn Transfer, 373 F.Supp.3d 398
(E.D.N.Y. 2019), the court reduced the fees requested but awarded
$66,503.15 related to the briefing. Id. at 406, 408. And similarly,
in CMGRP, Inc. v. Agency for the Performing Arts, Inc., 2016 WL
9080233 (S.D.N.Y. July 8, 2016), the court granted the plaintiffs
a fee award of $85,206.75 under Section 1447(c) based 206 hours of
attorney time.
Here, Bay Hills filed a thirteen-page removal petition and a
twenty-five-page response brief. Although Bay Hills’ claim to
diversity

jurisdiction

was

baseless,

it

still

necessitated

Kentucky Retirement Systems v. Bay Hills Capital Mgmt., et al.
OPINION AND ORDER
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briefing to explain why. Moreover, the issue of federal question
jurisdiction entailed a four-factor test, and two of those factors
required the evaluation, analysis, and application of sub-factors.
(See Doc. 4-1 at 20, 29.)
As this Court’s nineteen-page decision demonstrates, Bay
Hills’ arguments lacked merit, but the sheer number of issues
presented required extensive time and attention. (Doc. 34). Bay
Hills’ arguments fail to observe that this case involves a complex
factual situation. While it took Plaintiff significant time to
inform the court about the facts and legal issues underlying the
case, removal was still objectively unreasonable and there were
unusual circumstances suggesting that removal was a delay tactic.
In addition to its general challenge, Bay Hills argues that
Plaintiff is not entitled to fees for a few particular activities.
First,

Bay

Hills

contends

that

Plaintiff

should

not

receive

$1,890.00 in fees related to its out-of-state counsel traveling
from Kentucky. But Kentucky Retirement has already made clear in
its fee-shifting motion why this meeting occurred in Kentucky:
On May 8, 2018, Kentucky Retirement filed a motion with
the court in Franklin County to obtain a scheduling order
and date to present the preliminary injunction motion.
Kentucky Retirement noticed that Motion for May 16, 2018
at 9:00 a.m. On the evening of May 15, 2018, while
Plaintiff’s Wisconsin counsel was in transit to Kentucky
for the May 16 hearing, Defendants removed the matter to
federal court.
(Doc. 35-1 at 3).
Kentucky Retirement Systems v. Bay Hills Capital Mgmt., et al.
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Though

the

removal

was

not

the

reason

for

the

trip,

Plaintiff’s counsel used the trip as an opportunity to discuss the
removal in person. Thus, the Court finds that counsel’s return
travel was appropriately related to the removal and overrules
Defendants’ objection with regard to the 6.5 hours and $1,890.00
billed related to this travel.
Defendants next claim that Plaintiff should not receive fees
related to its decision to file a motion to expedite consideration
of the motion to remand ($2,776.50) and its decision to file
supplemental authority during the period of time between the motion
to remand’s filing and this Court’s decision. Reinhart billed five
hours ($2,375) related to research and review of cases to present
as supplemental authority in support of its motion (Doc. 39-1 at
page 8 of 80), and SKO billed seven hours ($1,603) related to the
same as well as general case monitoring as there were several court
filings and orders during this time period. The Court finds that
those fees and activities were reasonable, and though the Court
did not expedite consideration of the motion to remand, it was
reasonable to file the motion.
Bay Hills also claims that there are “inconsistencies” in the
invoices. (Doc. 40 at 6). The weakness of this argument is revealed
by the one invoice excerpted directly into the brief. (Id. at 67). Bay Hills claims that the detailed time entries only show .30
hours of time incurred, but the summary of the billing shows .80
Kentucky Retirement Systems v. Bay Hills Capital Mgmt., et al.
OPINION AND ORDER
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hours. But it is obvious on the face of the invoice that one of
the time entries inadvertently omitted the .50 hours related to
that time entry. Bay Hills does not point to any other examples of
allegedly inaccurate time keeping.
II.
Accordingly,

Bay

Conclusion

Hills’

objections

are

overruled

Plaintiff is awarded $86,825.50.
This 15th day of June, 2020.

Kentucky Retirement Systems v. Bay Hills Capital Mgmt., et al.
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and