ACC Health, LLC et al v. Lost Creek Holdings, LLC et al
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting 36 Plaintiffs Detailed Petition for Attorney Fees. (baw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ACC HEALTH, LLC, DENTRUST NEW
MEXICO, P.C., and DOCS MSO, LLC,
Civ. No. 16-546 JCH/SCY
LOST CREEK HOLDINGS, LLC,
ALL-STAR HEALTH SOLUTIONS, DIANE
TOMLINSON, ABBEY TOMLINSON,
LAUREN TOMLINSON, NATALI LUDI,
ERIN MARTIN, and MEGAN FREELS,
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Detailed Petition for Attorney Fees [Doc.
36]. The Court having previously determined that Plaintiffs are entitled to recover attorney’s fees
as a result of Defendants’ improper removal, the sole issue now before the Court is the amount of
fees to be awarded to Plaintiffs.
To determine the reasonableness of a fee request, a court must begin by calculating the
so-called “lodestar amount” of a fee, and a claimant is entitled to the presumption that this
lodestar amount reflects a “reasonable” fee. See Pennsylvania v. Delaware Valley Citizens'
Council for Clean Air, 478 U.S. 546, 563-65 (1986); Cooper v. Utah, 894 F.2d 1169, 1171 (10th
Cir. 1990). The lodestar calculation is the product of the number of attorney hours “reasonably
expended” and a “reasonable hourly rate.” See Hensley, 461 U.S. at 433; Phelps v. Hamilton,
120 F.3d 1126, 1131 (10th Cir. 1997). The setting of a reasonable hourly rate is within the
district court’s discretion. Carter v. Sedgwick County, 36 F.3d 952, 956 (10th Cir. 1994). Hourly
rates must reflect the “prevailing market rates in the relevant community.” Blum v. Stenson, 465
U.S. at 895, 104 S.Ct. at 1547. Unless the subject of the litigation is “so unusual or requires such
special skills” that only an out-of-state lawyer possesses, “the fee rates of the local area should
be applied even when the lawyers seeking fees are from another area.” Ramos v. Lamm, 713 F.2d
546, 555 (10th Cir. 1983). See also Lippoldt v. Cole, 468 F.3d 1204, 1224-25 (10th Cir. 2006). If
the district court does not have adequate evidence of prevailing market rates for attorney fees,
then it may, “in its discretion, use other relevant factors, including its own knowledge, to
establish the rate.” Case v. Unified Sch. Dist. No. 233, Johnson Cnty., Kan., 157 F.3d 1243, 1257
(10th Cir. 1998). A district judge may consider his or her “own knowledge of prevailing market
rates as well as other indicia of a reasonable market rate.” Metz v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 39 F.3d 1482, 1493 (10th Cir. 1994) (internal quotation marks omitted).
Plaintiffs have requested $5,605.17 in attorney’s fees for their work in obtaining the
remand of this case and in filing their motion for fees, as well as an additional $433.26 incurred
in reading Defendants’ response brief and preparing Plaintiffs’ reply brief, for a total of
$6,038.43 in fees. Defendants, in turn, do not dispute that the hourly rate charged by Plaintiff’s
counsel is reasonable, nor do they contend that the number of hours he spent on the matter is
excessive. Rather, Defendants contend that the Court should award Plaintiffs no more than
$4,007.56, which is the amount that Plaintiffs’ counsel offered to accept in settlement of the fee
Both sides of this dispute have attached their correspondence relating to their attempt to
come to an agreement on the amount of attorney’s fees to be awarded. That correspondence
reveals that on September 6, 2017, Plaintiffs’ counsel sent Defendants’ counsel a late night offer
to settle for $4,007.56, conditioned on acceptance by noon the following day, September 7, 2017.
On the morning of September 7, 2017, at 8:46 a.m., Defendants’ counsel noted receipt of the
offer, but noted that he doubted he could respond by noon that day. Approximately two hours
later, at 10:59 a.m., Plaintiffs’ counsel replied, reminding defense counsel that the offer would be
withdrawn at noon. At 11:55 a.m., Defendants’ counsel counteroffered by asking for another 24
hours to consider Plaintiffs’ proposed settlement amount. There is no evidence that this request
was accepted. Rather, it appears that the original offer expired at noon and at 5:16 p.m. on
September 7, 2017, Plaintiffs made another counter offer to settle for $5,605.17. This offer,
apparently, also was not accepted by Defendants. Therefore, it does not appear that there was any
valid offer and acceptance between the parties that led to an enforceable agreement about the
amount of fees to be awarded to Plaintiffs.
Defendants argue, however, that Plaintiffs did not negotiate settlement of the fee dispute
in good faith. They contend that Defendants granted Plaintiffs an extension of time in which to
file their motion for fees in exchange for Plaintiffs putting forth a timely offer of settlement no
later than September 5, 2017. Defendants contend that Plaintiffs—who presented them with a
last-minute offer—did not hold up their end of that bargain, and the penalty for that should be
limiting Plaintiffs to the $4,007.56 settlement amount they finally did offer late in the day on
September 6, 2017. The Court declines to credit this argument. First, Defendants have come
forward with no evidence of this alleged lack of good faith. Defendants have placed no evidence
in the record—no email, letter, or affidavit of counsel—to support the unsworn statements in
their brief regarding this bargain. Second, Defendants have failed to provide any legal authority
that would support cutting Plaintiffs’ fees in this way as a penalty for their failure to provide the
Defendants with a timely offer of settlement.
Having reviewed the Plaintiffs’ motion for attorney’s fees, the Court concludes that the
number of hours billed by attorney Trent A. Howell, the hourly rate he charged ($250.00), and
total request of $6,038.43 in attorney’s fees are reasonable.
IT IS THEREFORE ORDERED that Plaintiff’s Detailed Petition for Attorney Fees
[Doc. 36] is GRANTED, and Defendants must pay attorney’s fees to Plaintiffs in the amount of
$6,038.43 within 21 days of entry of this Memorandum Opinion and Order.
UNITED STATES DISTRICT JUDGE
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