GLOUCESTER COUNTY IMPROVEMENT AUTHORITY v. GALLENTHIN REALTY DEVELOPMENT, INC.

Filing 26

MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 8/1/2011. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GLOUCESTER COUNTY IMPROVEMENT
AUTHORITY,
Plaintiff,

HON. JEROME B. SIMANDLE
Civil Action No. 07-5328

v.
MEMORANDUM OPINION
GALLENTHIN REALTY DEVELOPMENT,
INC.,
Defendant.

This Court having previously ordered Defendant to pay
Plaintiff's reasonable fees and costs in this matter, the case is
before the Court on Defendant's objections raised to Plaintiff's
affidavit of services rendered.

The Court finds as follows:

1. Plaintiff Gloucester County Improvement Authority brought
this action in the Superior Court of New Jersey to enforce a
court order it had received authorizing its agents to enter
Defendant's property pursuant to New Jersey's prospective
condemnation statute.

Defendant Gallenthin Realty removed the

lawsuit to this Court, asserting federal question jurisdiction,
and Plaintiff subsequently moved to remand and to award Plaintiff
costs on account of Defendant's improper removal.
2.

As noted in this Court's Opinion on the motion to

remand, Defendant offered a moving target of changing and
convoluted justifications for removal.

Though difficult to

untangle, these justifications were ultimately determined to be

so meritless as to warrant fee-shifting.

The Court entered an

Order remanding this case to State Court and granting Plaintiff's
motion for costs and attorney's fees.
3.

The Court's Order required Plaintiff to file "an

Affidavit itemizing the costs and fees it has incurred as a
result of Defendant's removal no later than seven days after the
entry of this Order."

[Docket Item 18.]

Plaintiff timely filed

an affidavit setting forth the services rendered at a somewhat
general level, without specifying the time spent on each date, or
by task.
4.

Defendant objected to the amount of the fees sought,

arguing that Plaintiff had failed to establish that its hourly
rates claimed were reasonable in the applicable legal market.
Defendant also challenged Plaintiff's failure to offer a detailed
itemization of the services rendered.

Finally, Defendant argued

that certain charges were unreasonable, including the hourly rate
of services rendered by a junior associate, Orly Jashinsky.
5.

Unfortunately, because the docket had been closed when

the case was remanded, the fee application slipped from the
Court's active docket and was not addressed for an extended
period.

Upon discovery of the outstanding application, the Court

wrote to the parties, informing them of the inadvertent delay and
stating that the Court could not grant the application as filed
because it was insufficiently detailed.

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[Docket Item 22.]

The

Court invited Plaintiff to submit a more detailed affidavit and
permitted Defendant to renew its objections as necessary.
6.

Plaintiff subsequently filed a more detailed affidavit

breaking down the time spent by each attorney on particular
dates, and task-by-task (i.e., research and composition of
motion, scheduling issues, research of reply brief, oral argument
preparation and attendance).
7.

[Docket Item 23.]

Defendant renews its objection to the fee application on

three grounds: (1) that Plaintiff only has 30 days from an order
or judgment in which to file a sufficiently detailed affidavit of
services rendered and Plaintiff failed to do so; (2) that there
is still insufficient evidence that the hourly rates are
reasonable – especially with respect to the junior associate who
worked on the matter; and (3) that the affidavit is still
insufficiently itemized to determine whether the expenditure of
time by each attorney was reasonable.
8.

In support of the assertion that the application is now

untimely and should therefore be categorically rejected,
Defendant makes no legal arguments as to why Plaintiff should not
be permitted to supplement an insufficiently detailed affidavit
at the Court's request, or why Plaintiff should be punished for
the delay, and asserts no prejudice.

Instead, Defendant merely

cites Local Civil Rule 54.2(a)'s 30-day filing limitation as
"sound judicial policy."

Defs.' Br. 2.

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But that Local Rule,

which requires the filing of an application within 30 days of the
judgment or order, does not address the present situation because
Plaintiff filed the application within that period.

Nothing in

the Rule forbids the Court from requiring Plaintiff to supplement
the application, and even if the deadlines in the rule applied to
such a supplement, the Rule explicitly empowers the Court to
modify those deadlines.
9.

In support of the assertion that Plaintiff has failed to

prove the reasonableness of the hourly rates charged by its
attorneys, Defendant maintains that such proof requires evidence
apart from the attorney's own affidavits, citing Blum v.
Stenson, 465 U.S. 886, 895 (1984).

But Defendant misreads Blum,

which noted in dicta that evidence beyond an attorney's mere
conclusory affirmance that his or her rates are in line with
prevailing rates is required.

Id.

That case did not hold that

it would be insufficient for an attorney to aver that his rate
was reasonable based on competitive bidding and the attorney's
actually-charged rates.

In this case, it is not contested that

Plaintiff's law firm was selected after an open and competitive
bidding process, and that three of the four attorneys for
Plaintiff charged less than their ordinary rate.

Those two

uncontested facts in combination are sufficient to prove the
reasonableness of those rates for those three attorneys.
10.

The Court does find, however, that it is unreasonable

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to charge Defendant $210 per hour for an attorney who normally
billed at $175 per hour (or at least that there is insufficient
proof of the reasonableness of such a fee in this case).

The

Court recognizes that the $210 per hour rate was a negotiated
rate charged to Plaintiff by each attorney regardless of whether
it was higher or lower than that attorney's ordinary rate.

And,

as explained above, the Court agrees that a given rate is
presumptively reasonable if it is both less than that of the
attorney's normal rate and is accepted in competitive bidding in
the marketplace.

But reasonableness is a weaker inference when

the attorney is billing the client at a higher-than-normal rate,
even if accepted by that one client as part of a package.

To

justify the reasonableness of that increased rate, more evidence
would be needed, and the Court has already provided Plaintiff
with sufficient opportunity to adduce such evidence.
11.

Finally, as to whether the affidavit is sufficiently

itemized, Plaintiff has now fully complied with Local Civil Rule
54.2(a), which requires the affidavit to describe: (1) the nature
of the services rendered, including the results, novelty of the
issues, and other relevant factors; (2) dates of the services;
(3) a description of the service and the person rendering it; (4)
the time spent on each service; and (5) the normal billing rate
for each attorney.
Defendant asks for.

The Rule does not require the kind of detail
Defendant contends that without further

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detail, it cannot be determined if, for example, 3.8 hours of
research was spent reviewing multiple cases or one case, and
therefore cannot be determined if the time was reasonable.

Using

the same argument, one could contend that Plaintiff must also
list the length of each case reviewed, since 3.8 hours to review
a fifty page decision might be reasonable while the same amount
of time to review a three page decision is not.

Self-evidently,

preparation of this kind of fine-grained affidavit, even if
possible, would be impractical, and is not required for an
officer of the Court to support a fee application.

Instead, what

is required is sufficient detail for the Court to assess the
overall reasonableness of the fees in light of the legal work
reasonably required by the circumstances.
12.

Having reviewed the full record of this case in

addition to Plaintiff's affidavit, the Court is satisfied that
the circumstances of this case required the time and effort
expended by Plaintiff's attorneys.

While the notice of removal

was ultimately found to be so obviously meritless as to warrant
fee-shifting, it was still necessary for Plaintiff's attorneys to
review and consider all of the convoluted and shifting arguments
made by Defendant, including over fifty federal documents and
enactments – ranging from maps, to reports issued by the Army
Corps of Engineers, to congressional appropriations bills.

None

of the services rendered are out of proportion to the complexity

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and numerosity of the issues, and the results achieved.
13.

In sum, the Court will approve Plaintiff's application

with the sole change that Orly Jashinsky's time will be
compensated at $175 per hour instead of $210, resulting in a
final award of $27,825 instead of $29,547 in attorney fees.
costs are added, the new total is $29,220.

Once

The accompanying

Order will be entered.

August 1, 2011
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

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