McRae Law Firm, PLLC v. Gilmer et al

Filing 23

ORDER denying without prejudice 14 Motion to recover costs and expenses, including attorney fees, under 28 U.S.C. § 1447(c). Plaintiff shall file a properly-supported motion within fifteen days of entry of this Order. Defendant shall file his response within fifteen days of Plaintiff's filing of its renewed motion.Signed by Honorable David C. Bramlette, III on April 11, 2018 (JBR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MCRAE LAW FIRM, PLLC

V.

PLAINTIFF

CAUSE NO. 3:17-CV-704-DCB-LRA

BARRY W. GILMER, et al.

DEFENDANTS

ORDER AND OPINION
Before the Court is Plaintiff McRae Law Firm, PLLC’s Motion
[Doc. 14] to recover the costs and expenses, including attorney
fees, it incurred as a result of Defendant Barry W. Gilmer’s
objectively unreasonable removal of this action.
Background
By Order dated January 3, 2018, the Court remanded this
action, concluded that Gilmer lacked an objectively reasonable
basis for removing it, and awarded McRae Law Firm, PLLC (“McRae
Firm”) costs under 28 U.S.C. § 1447(c). See Doc. 13.
The Court directed Gilmer and the McRae Firm to confer on an
appropriate award. They did not. So the responsibility shifts to
the Court to set an appropriate award under § 1447(c).
The McRae Firm asks the Court to award it unspecified expenses
and nearly $8,000 in legal fees. In support, the McRae Firm offers

only the name of the attorney or para-professional, their hourly
rate,

and

the

number

of

hours

they

worked

on

the

case.

No

affidavits are offered; no bills are produced.1 Gilmer opposes
McRae’s

Motion,

complaining

it

lacks

detail

and

ignores

the

lodestar method.
I
Gilmer owes the McRae Firm the just costs and actual expenses,
including attorney fees, it incurred as a result of Gilmer’s
removal —— his third —— of this action. 28 U.S.C. § 1447(c). To
determine the attorney fee portion of the award, the Court conducts
a two-step analysis. Portillo v. Cunningham, 872 F.3d 728, 741
(5th Cir. 2017).
First, the Court calculates the lodestar —— “the number of
hours reasonably expended multiplied by the prevailing hourly rate
in the community for similar work.” Combs v. City of Huntington,
Tex., 829 F.3d 388, 392 (5th Cir. 2016).
Second, the Court considers whether to alter the lodestar
based on the twelve Johnson factors: (1) the time and labor
required; (2) the novelty and difficulty of the issues; (3) the
skill required to perform the legal service adequately; (4) the
preclusion of other employment by the attorney because he accepted

1 The McRae Firm is not entitled to any costs associated with any of
Gilmer’s other failed removals, only those incurred as a result of this one.
See Doc. 1, Notice of Removal.

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this case; (5) the customary fee for similar work in the community;
(6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved
and the results obtained; (9) the experience, reputation, and
ability of the attorneys, (10) the undesirability of the case;
(11) the nature and length of the professional relationship with
the client; and (12) awards in similar cases. Union Asset Mgmt.
Holding A.G. v. Dell, Inc. 669 F.3d 632, 642 n. 25 (5th Cir. 2012).2
As the party seeking fees, the McRae Firm must “present
adequately documented time records.” Watkins v. Fordice, 7 F.3d
453, 457 (5th Cir. 1993). Documentation is adequate if it provides
the Court the information it needs to “fulfill its duty to examine
the application for noncompensable hours.” Louisiana Power & Light
Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (internal
quotation marks and citation omitted).
The attorney fee calculation is fact-intensive. Hopwood v.
State of Texas, 236 F.3d 256, 281 (5th Cir. 2000). Hourly rates
are not fixed by the fee-seeking-party’s description; they are
computed based on the “prevailing market rates in the relevant
legal market.” Id. at 281.

2 The Fifth Circuit first articulated these factors in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other
grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989).

3

The

relevant

legal

market

is

the

Southern

District

of

Mississippi. See Tollett v. City of Kemah, 285 F.3d 357, 368 (5th
Cir.

2002).

And

a

reasonable

hourly

rate

is

shown

through

affidavits of other attorneys practicing in the Southern District
of Mississippi. Id. at 368.
II
The Court lacks the information it needs to determine the
amount of just costs and expenses, including attorney fees, the
McRae Firm has incurred as a result of Gilmer’s removal. The Court
therefore denies without prejudice the McRae Firm’s First Motion
for Costs and Expenses and grants it leave to file a renewed motion
within fifteen days.
The McRae Firm’s renewed motion should provide the Court with
sufficient

information

to

conduct

the

analysis

described

in

section “I” of this Order. If it fails to do so, the Court may, in
its discretion, deny the relief sought or schedule an evidentiary
hearing.

4

Accordingly,
IT IS ORDERED that Plaintiff McRae Law Firm, PLLC’s First
Motion for Recovery of Costs and Fees [Doc. 14] is DENIED WITHOUT
PREJUDICE.
FURTHER ORDERED that Plaintiff McRae Law Firm, PLLC shall
file a properly-supported motion for just costs and expenses,
including attorney fees, within fifteen days of entry of this
Order.
FURTHER ORDERED that Defendant Barry W. Gilmer shall file his
response to Plaintiff McRae Law Firm, PLLC’s renewed motion for
just costs and expenses, including attorney fees, within fifteen
days of Plaintiff McRae Law Firm, PLLC’s filing of its renewed
motion.
SO ORDERED this the 11th day of April, 2018.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

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