McRae Law Firm, PLLC v. Gilmer et al

Filing 39

ORDER granting in part 28 Motion for Costs, Expenses, and Attorney Fees. Plaintiff is awarded $5,491.40 under 28 U.S.C. § 1447(c). Signed by Honorable David C. Bramlette, III on July 26, 2018 (JBR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

MCRAE LAW FIRM, PLLC

PLAINTIFF

V.

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

BARRY W. GILMER, et al.

DEFENDANTS

ORDER AND OPINION

Plaintiff McRae Law Firm, PLLC moves the Court for an order
awarding it $10,636.80 in costs, expenses, and attorney fees it
argues that it incurred opposing Defendant Barry W. Gilmer’s
removal of this case. For the reasons that follow, the Court GRANTS
the motion IN PART, reduces the requested award by $5,145.40, and
awards the McRae Firm $5,491.40 in just costs and actual expenses,
including attorney fees, under 28 U.S.C. § 1447(c).
I.

Background
This

fee

dispute

arises

from

Gilmer’s

objectively

unreasonable removal of this case. Gilmer has removed this case to
federal court three times; each effort has failed.

The McRae Firm sued Gilmer and his firm in Hinds County
Chancery Court, alleging Gilmer wrongfully retained settlement
proceeds from a legal malpractice suit in which both firms assisted
the plaintiff. Gilmer removed the case to this Court, arguing that
a RICO complaint the McRae Firm filed in another federal case is
an “other paper” that created federal question jurisdiction in
this case. See 28 U.S.C. § 1446(b)(3) (permitting removal within
thirty days of receipt of a copy of an “other paper from which it
may first be ascertained that the case is one which is or has
become removable.”). The McRae Firm moved to remand.
The Court remanded the case, concluded that Gilmer lacked an
objectively reasonable basis for removing it, and determined that
the McRae Firm should recover its just costs and actual expenses,
including attorney fees, under 28 U.S.C. § 1447(c). See Doc. 13.
The McRae Firm now asks the Court to award it $10,280.40 in
fees and $356.40 in expenses. In support, the McRae Firm marshals
the affidavits of its counsel and of attorney John Corlew. Gilmer
opposes the motion. He argues that any fee award would be unjust
and unconstitutional because “this litigation is the concerted,
personally motivated pursuit” of the McRae Firm. In support, Gilmer
offers the affidavit of attorney William Stubbs.

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II.

Attorney Fees
Gilmer owes the McRae Firm the just costs and actual expenses,

including attorney fees, that the McRae Firm incurred as a result
of Gilmer’s objectively unreasonable removal of this case. 28
U.S.C. § 1447(c). The Court’s § 1447(c) award is limited to “fees
and costs incurred in federal court that would not have been
incurred had the case remained in state court.” Avitts v. Amoco
Prod. Co., 111 F.3d 30, 32 (5th Cir. 1997). To calculate 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).
A. Lodestar
The first step is calculating the lodestar. To do so, the
Court takes the number of hours the McRae Firm’s attorneys and
paraprofessionals reasonably expended opposing Gilmer’s removal
and multiplies that number by the prevailing hourly rate in this
market for similar work. Combs v. City of Huntington, Tex., 829
F.3d 388, 392 (5th Cir. 2016).
1. Time Spent Opposing Removal
To oppose Gilmer’s removal of this case, the McRae Firm
enlisted three attorneys, one legal assistant, and one paralegal.
The McRae Firm’s itemization claims that these professionals spent
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33.3 hours opposing Gilmer’s removal.1 Almost 18 of those hours
are attorney time. Eighteen attorney hours to prepare a motion to
remand and supporting brief strikes the Court as unreasonable.
Particularly so when the theory of removal is meritless, as
Gilmer’s was here. See Combs, 829 F.3d at 392 (The lodestar
calculation excludes “all time that is excessive, duplicative, or
inadequately documented.”).
The maximum number of hours the McRae Firm’s attorneys could
reasonably have expended opposing Gilmer’s removal is closer to
sixteen. For purposes of calculating the lodestar, the Court will
subtract half an hour from the time claimed by attorneys Biegel,
McRae, and Martin, each.
2. Prevailing Hourly Rate
The McRae Firm asks the Court to award it fees at the
following hourly rates:


$250 for attorney Michele Biegel of the Law Office
of B. Ruth Johnson, PLLC



$400 for attorney Chuck McRae of the McRae Firm



$300 for attorney Drew Martin of the McRae Firm

1 The Court’s analysis is complicated by the fact that the attorneys
enlisted by the McRae Firm do not use itemized billing. See Louisiana Power &
Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (“[C]ourts customarily
require the applicant to produce contemporaneous billing records or other
sufficient documentation so that the district court can fulfill its duty to
examine the application for non-compensable hours.”).

4



$90 for a legal assistant of the Law Office of B.
Ruth Johnson, PLLC



$125 for a paralegal of the McRae Firm

Attorney Michele Biegel has practiced law for 15 years. The
requested hourly rate of $250 is reasonable in this market for an
attorney of Biegel’s experience presented with the straightforward
jurisdictional issues raised by Gilmer’s removal. See Lamar Co. v.
Harrison Cnty. Sch. Dist, 1:17-CV-206-LG-RHW, 2017 WL 6452274, at
*2 (S.D. Miss. Dec. 18, 2017)(finding that an hourly rate of $250
is reasonable for an attorney with 17 years of experience).
Attorney Chuck McRae has practiced law in federal and state
courts in Mississippi for over 40 years. But the requested hourly
rate of $400 is excessive; this litigation is not complex. See
Jones v. Singing River Health Sys., No. 1:14-CV-447-LG-RHW, 2016
WL 3248449, at *3 (S.D. Miss. June 10, 2016) (finding that an
hourly rate of $400 is appropriate for complex civil litigation).
An hourly rate of $350 is reasonable in this market for an attorney
of McRae’s experience handling a case presenting basic questions
of federal jurisdiction.
Attorney Drew Martin has practiced law for 16 years. In a
case like this one, $300 is a reasonable hourly rate for an
attorney of Martin’s experience.

5

As for the requested paralegal and legal assistant time, the
Court lacks necessary information. “Paralegal work can only be
recovered as attorney’s fees if the work is legal rather than
clerical.” Vela v. City of Houston, 276 F.3d 659, 681 (5th Cir.
2001).

The

McRae

Firm

has

not

shown

that

any

of

its

paraprofessionals’ work was legal in nature, so the Court cannot
include the requested paralegal and legal assistant time as part
of its § 1447(c) award.
Having considered the number of hours reasonably expended,
and the prevailing hourly rate in this market for attorneys of
this experience performing legal work in this subject area, the
Court calculates the lodestar as follows:
Attorney

Hourly Rate

Hours

Fee

Biegel

$250

2.7

$675

McRae

$350

8.8

$3,080

Martin

$300

4.6

$1,380

Total

* * *

16.1

$5,135

The lodestar calculation in this case is $5,135. The Court
turns next to the second step in the attorney-fee analysis and
asks whether the lodestar should be enhanced or decreased based on

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the twelve Johnson factors.2 Combs, 829 F.3d at 392. The Court
emphasizes, however, the “strong presumption that the lodestar is
sufficient.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546
(2010).
B. Johnson Factors
To decide if it should enhance or decrease its $5,135 lodestar
calculation, the Court considers: (1) the time and labor required;
(2) the novelty and difficulty of the issues; (3) the skill
required to perform the legal services adequately; (4) preclusion
of other employment by the attorneys because they accepted 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).

The Fifth Circuit first articulated the Johnson 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).
2

7

The Court’s Johnson factor analysis must not “double count”
any criterion. In other words, the Court cannot adjust the lodestar
based on a Johnson factor it already considered when it calculated
the lodestar. Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th
Cir. 2013).
The Court declines to adjust the lodestar amount based on the
novelty of the issues, the skill and experience of counsel, the
quality of the representation, and the results obtained because
those factors are “fully reflected in the lodestar amount.” In re
Pilgrim’s Pride Corp., 690 F.3d 650, 656 (5th Cir. 2012) (citation
omitted). After considering the remaining Johnson factors, the
Court concludes that no adjustment is warranted, so the total
attorney-fee award under § 1447(c) is $5,135.
III. Expenses
The McRae Firm asks the Court to award it $356.40 in printing
and copying expenses. In support, it offers an affidavit in which
McRae attests that his firm’s copy and print costs are recorded by
matter

rather

than

by

date

range.

He

attests

that

$356.40

represents 15% of the copy and print costs associated with this
matter, i.e., Gilmer’s three removals of this case. The Court finds
that McRae’s request is reasonable and will award the McRae Firm
$356.40 in printing and copying expenses.

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IV.

Conclusion
Gilmer’s repeated removals of this case have delayed its

resolution and burdened the McRae Firm and its legal team. But §
1447(c) does not give the Court blanket authority to sanction
Gilmer or to tax him with an unsupported attorney-fee award. And
the Court’s discretion is further constrained by the lodestar
method and Johnson. Having considered both, the McRae Firm has
proved that it is entitled to only $5,491.40 of the $10,636.80 it
requests.
Finally, the unreasonable legal positions Gilmer has taken in
each of his three removals suggest that Gilmer’s goal is to harass
the McRae Firm, in violation of Federal Rule of Civil Procedure
11. The Court cautions Gilmer against removing this case for a
fourth time and warns Gilmer that another frivolous removal will
result in stiffer sanctions, monetary and otherwise.

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Accordingly,
IT IS ORDERED that Plaintiff McRae Law Firm, PLLC’s second
motion for recovery of costs and fees [Doc. 28] is GRANTED IN PART.
FURTHER ORDERED that Plaintiff McRae Law Firm, PLLC is awarded
$5,491.40,

representing

the

just

costs

and

actual

expenses,

including attorney fees, it incurred as a result of Defendants’
objectively unreasonable removal of this case from the Chancery
Court of the First Judicial District of Hinds County.
SO ORDERED, this the 26th day of July, 2018.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

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