Progressive Direct Insurance Company d/b/a Progressive Northern Insurance Company v. Gerken
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting 31 Application for Reasonable Attorneys Fees and Costs Incurred in Securing the Order to Remand. Payment must be made no later than 11/12/2020. (tah)
Case 1:19-cv-00864-KG-LF Document 36 Filed 10/13/20 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PROGRESSIVE DIRECT INSURANCE
COMPANY d/b/a PROGRESSIVE
NORTHERN INSURANCE COMPANY,
Civ. No. 19-00864 KG/LF
MESHA L. GERKEN,
MESHA L. GERKEN,
PROGRESSIVE DIRECT INSURANCE
COMPANY d/b/a PROGRESSIVE
NORTHERN INSURANCE COMPANY,
MESHA GERKEN, BRENDAN STARKEY,
and HEATHER STARKEY,
DOMENIC CHARLES MILES and
PROGRESSIVE DIRECT INSURANCE
COMPANY, d/b/a PROGRESSIVE
NORTHERN INSURANCE COMPANY,
Case 1:19-cv-00864-KG-LF Document 36 Filed 10/13/20 Page 2 of 13
MEMORANDUM OPINION AND ORDER
This case arises from a road rage incident involving the occupants of a vehicle driven by
Mesha Gerken and a motorcycle driven by Domenic Charles Miles. (Doc. 1-1) at ¶¶ 46-82.
Miles filed a claim with his insurer, Progressive Direct Insurance Company (Progressive), which
Progressive paid. (Doc. 8) at 3. In May 2018, Progressive filed a subrogation claim against
Gerken in state court seeking reimbursement of the claim amount paid to Miles (Progressive v.
Gerken). (Doc. 13) at 2, ¶ 1. In July 2018, Gerken, proceeding pro se, filed asserted
counterclaims against Progressive. (Doc. 22-1).
In October 2018, Gerken filed a pro se case in state court against Miles (Gerken v.
Miles). (Doc. 13) at 2, ¶ 7. In April 2019, Gerken obtained counsel for both state court actions.
Id. at 3, ¶ 9.
In July 2019, in Progressive v. Gerken, Gerken filed amended counterclaims against
Progressive and asserted third-party claims against Miles. (Doc. 22-2). On September 18, 2019,
Miles removed both state cases to federal court based on diversity jurisdiction. Progressive v.
Gerken initiated this case, Civ. No. 19-864 KG/LF, while Gerken v. Miles initiated Civ. No. 19860 WJ/SCY. Shortly thereafter, Miles filed motions to dismiss in both cases alleging violations
of the applicable statute of limitations. (Doc. 8), filed in Civ. No. 19-864 KG/LF; (Doc. 4), filed
in Civ. No. 19-860 WJ/SCY. Miles also filed a motion to consolidate the two cases, (Doc. 14),
in Civ. No. 19-860 WJ/SCY.
On October 10, 2019, Defendant/Counter-Plaintiff/Third-Party Plaintiff Mersha L.
Gerken, Third-Party Plaintiff Brendan Starkey, and Third-Party Plaintiff Heather Starkey (the
Gerken-Starkey Family) filed an 8-page motion to remand this case and for an award of
attorneys’ fees and costs. (Doc. 13). The Gerken-Starkey Family correctly argued that Home
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Depot USA v. Jackson, 139 S.Ct. 1743 (2019) held that a third-party defendant, like Miles,
cannot remove a case to federal court.1 Id. The Court, therefore, granted the motion to remand
and granted the request for an award of reasonable attorneys’ fees and costs under 28 U.S.C. §
1447(c).2 (Doc. 28). The Court further ordered briefing on the issue of reasonable attorney’s fees
and costs. Id. The Court entered an Order of Remand on November 22, 2019. (Doc. 29).
As a result of the remand, Chief District Court Judge Johnson denied the motion to
consolidate, filed in Civ. No. 19-860 WJ/SCY, as moot. (Doc. 36), filed in Civ. No. 19-860
WJ/SCY. Then, on December 20, 2019, the parties voluntarily dismissed Civ. No. 19-860
WJ/SCY. (Doc. 38), filed in Civ. No. 19-860 WJ/SCY.
Prior to the voluntary dismissal of Civ. No. 19-860 WJ/SCY, the Gerken-Starkey Family
timely filed the instant Application for Reasonable Attorneys’ Fees and Costs Incurred in
Securing the Order to Remand (Docs. #28, #29) (Application) on December 6, 2019. (Doc. 31).
On December 27, 2019, Miles filed his timely objection to the Application. (Doc. 33). On
January 2, 2020, the Gerken-Starkey Family filed a timely reply with revised affidavits of costs
and fees submitted by Attorneys David Z. Ring and Anna C. Martinez. (Docs. 34, 34-1, and 432). The Court notes that “[a]fter remand, the Court retains jurisdiction to award reasonable costs
and attorneys’ fees under 28 U.S.C. § 1447(c).” Suazo v. Taos Living Ctr., LLC, 2018 WL
4773405, at *5 n.4 (D.N.M.) (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 138
(2005)). Having considered the Application, the accompanying briefings, and revised affidavits,
the Court grants the Application in part as described below.
Miles opposed the motion to remand with a seven-page response and exhibits. (Doc. 22). The
Gerken-Starkey Family filed a six-page reply to the motion to remand. (Doc. 26).
Section 1447(c) states that “an order remanding the case may require payment of just costs and
any actual expenses, including attorney fees, incurred as a result of the removal.”
Case 1:19-cv-00864-KG-LF Document 36 Filed 10/13/20 Page 4 of 13
I. The Revised Affidavits
The Court notes that neither revised affidavit has attached to it contemporaneous time
records nor do the revised affidavits refer to contemporaneous time records. The Court further
notes that Miles does not object to the hourly billing rates provided by Ring and Martinez.
A. Ring’s Revised Affidavit
Ring attests that he spent a total of 50.5 hours on this removed case and that his usual
hourly billing rate is $235.00 per hour. (Doc. 34-1) at ¶¶ 5-6. Applying a New Mexico gross
receipts tax of 7.875%, Ring seeks a total of $12,726.01 in attorney’s fees. Id. at ¶ 7. Ring
indicates that he “did not have any costs associated with this case.” Id. at ¶ 8.
B. Martinez’s Affidavit
Martinez attests that she spent a total of 7.2 hours assisting on this removed case and that
her usual hourly billing rate is $225.00 per hour. (Doc. 34-2) at ¶ 5. Applying a New Mexico
gross receipts tax of 7.875%, Martinez seeks a total of $1,747.58 in attorney’s fees. Id. at ¶ 6.
Martinez, likewise, indicates that she “did not have any costs associated with this case.” Id. at ¶
Miles opposes the Application for two reasons. First, Miles argues that Ring and
Martinez “failed to submit meticulous and contemporaneous time records,” and, instead, used
“imprecise” and impermissible block billing. (Doc. 33) at 3. Second, Miles argues that the
affidavits contain “unnecessary, irrelevant, and duplicative billings.” Id. at 4. Miles, therefore,
requests that the Court deny the Application in its entirety, “or in the alternative, significantly
reduce the award by winnowing down the hours claimed to the hours reasonabl[y] expended.”
Id. at 2.
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A. Reasonable Expenditure of Time Related to the Removal
As an initial matter, the Gerken-Starkey Family contends that the “meticulous and
contemporaneous time record” requirement applies to fee awards under fee-shifting statutes like
42 U.S.C. § 1988, not to Section 1447(c). The Gerken-Starkey Family maintains that Section
1447(c) is not a fee-shifting statute because it authorizes fee awards as a punitive sanction for
removing an action without an objectively reasonable basis. Consequently, the Gerken-Starkey
Family concludes that “in determining the appropriate fees to be awarded under Section 1447(c),
the Court is not constrained by specificity standards set in or about fee-shifting statutes.” (Doc.
34) at 3.
Contrary to the Gerken-Starkey Family’s argument, courts have held that Section
“1447(c) is a fee-shifting statute….” Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 411 (7th
Cir. 2000); see also Sankary v. Ringgold, 601 Fed. Appx. 529, 530 (9th Cir. 2015) (holding that
Section 1447(c) is fee-shifting statute). “The rationale of fee-shifting rules is that the victor
should be made whole—should be as well off as if the opponent had respected his legal rights in
the first place.” Garbie, 211 F.3d at 411 (citation omitted). Such a rationale clearly excludes a
In deciding what fees would make a plaintiff whole in a remand context, courts “are dutybound to ensure that an award of attorneys’ fees pursuant to § 1447(c) is reasonable.” Huffman
v. Saul Holdings Ltd. P'ship, 262 F.3d 1128, 1134 (10th Cir. 2001). As the Tenth Circuit
explained, Section 1447(c)’s “limit on actual fees to those ‘incurred as a result of removal’
requires the district court to conduct some sort of reasonableness inquiry.” Id. at 1135. For
instance, fees “must reflect efforts expended to resist removal.” Id. Also, “unreasonably high
fees are not ‘incurred’ as a result of removal; rather, excessive fee requests flow from, and
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accumulate by means of, improper billing practices, and will not be recoverable under §
“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.” Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998). To arrive at a lodestar amount, the court “multipl[ies] the hours … counsel
reasonably spent on the litigation by a reasonable hourly rate.” Case v. Unified Sch. Dist. No.
233, Johnson Cty., Kan., 157 F.3d 1243, 1249 (10th Cir. 1998) (citation omitted). “[T]he fee
applicant bears the burden of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.” Id. (citation omitted).
Fee applicants prove reasonable hours “by submitting meticulous, contemporaneous time
records that reveal, for each lawyer for whom fees are sought, all hours for which compensation
is requested and how those hours were allotted to specific tasks." Id. at 1250. The Tenth Circuit,
therefore, discourages “block billing,” the practice of “lumping multiple tasks into a single entry
of time….” Cadena v. Pacesetter Corp., 224 F.3d 1203, 1214–15 (10th Cir. 2000). Even so, the
Tenth Circuit “has not established a rule mandating reduction or denial of a fee request if the
prevailing party submits attorney-records which reflect block billing.” Id. at 1215. Indeed,
counsel “is not required to record in great detail how each minute of his time was expended. But
at least counsel should identify the general subject matter of his time expenditures.” Hensley v.
Eckerhart, 461 U.S. 424, 437 n.12 (1983). Ultimately, the Court has an obligation to “carefully
scrutinize the total number of hours reported to arrive at the number of hours that can reasonably
be charged to the losing party, much as a senior partner in a private firm would review the
reports of subordinate attorneys when billing clients whose fee arrangement requires a detailed
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report of hours expended and work done.” Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983),
overruled on other grounds, Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483
U.S. 711 (1987).
In applying the above law, the Gerken-Starkey Family argues first that the Court should
ignore Miles’ claim that Ring and Martinez did not keep contemporaneous time records. Miles,
however, does not claim that Ring and Martinez failed to keep contemporaneous time records.
Instead, Miles argues that Ring and Martinez failed to submit contemporaneous time records.
See (Doc. 33) at 3 (arguing that Ring and Martinez “failed to submit meticulous and
contemporaneous time records”). The Gerken-Starkey Family responds to that argument by
stating that “[b]oth attorneys for the Gerken-Starkey Family clearly stated that the billing
submitted was contemporaneous.” (Doc. 34) at 4. Ring and Martinez each specifically state in
their respective revised affidavits that “[a]ll of the information contained in this affidavit is based
upon my own firsthand knowledge; [and] [a]ll of the information contained in this affidavit is
true and correct….” (Doc. 34-1) at ¶¶ 1 and 2; (Doc. 34-2) at ¶¶ 1 and 2. Those statements do
not indicate that Ring and Martinez submitted contemporaneous billings, as the Gerken-Starkey
This Court recently held that “affidavits should be ‘accompanied by contemporaneous
time records indicating, for each attorney, the date, the hours expended, and the nature of the
work done.’” Quarrie v. Wells, 2020 WL 1683450, at *2 (D.N.M.) (citation omitted); see also
D.N.M. LR-Cv 54.5(a) (party filing motion for attorney’s fees “must submit a supporting brief
and evidence (affidavits and time records)”). On the other hand, other courts have held that “[i]n
lieu of contemporaneous time records, an applicant may submit summaries accompanied by
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affidavits stating that the summaries are accurate and based on contemporaneous time records.”
Labarbera v. ASTC Laboratories Inc., 752 F. Supp. 2d 263, 277 (E.D.N.Y. 2010).
Here, neither Ring nor Martinez submitted contemporaneous time records with their
revised affidavits nor did they state in their revised affidavits that they based their billings on
contemporaneous time records. The Gerken-Starkey Family, therefore, has failed to meet the
contemporaneous time records requirement. This deficiency provides a basis for reducing the
requested fees award.
Furthermore, without directly addressing Miles’ concern about block billing, the GerkenStarkey Family argues that the revised affidavits contain “meticulous” and unambiguous billing.
The Court, however, finds that Miles’ concern about block billing has merits. The Court
concludes that the following billing entries by Ring, totaling 11.8 hours, constitute
impermissible block billing:
“Review Notice of Removal, attachments thereto; Memo to file, begin
research on standard”: 3.1 hours
“Review response to MTN remand; memo to file; TC ACM”: 3.2 hours
“Review and annotate MTN consolidate; memo to file re implications of
merging with 864; legal research”: 2.6 hours
“Review Order granting remand; memo opinion; research feasibility of
Miles appeal”: 2.9 hours.
(Doc. 34-1) at ¶ 4.
Miles further argues that Ring’s affidavit contains unnecessary and irrelevant billing
entries. For instance, Miles notes billings for communications with defense counsel prior to
removal to discuss removal (0.4 hours) and a meeting with a law clerk to assign legal research
(0.6 hours) are unnecessary and irrelevant. The Court, however, disagrees with Miles and finds
that those particular billings are appropriate.
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Finally, Miles argues that some of the “billings appear to be or may be duplicative to
work completed on Case No. 1:19-cv-00860-WJ-SCY.” (Doc. 33) at 5. Specifically, Miles
contends that the Gerken-Starkey Family should not receive fees for responding to the motion to
dismiss filed in both this case and in Civ. No. 19-860 WJ/SCY. Ring’s billings related to the
motion to dismiss total 3.7 hours:
“Review and annotate MTD”: 0.5 hours
“Review Anna C. Martinez memo on Motion to Dismiss; meet with Anna
C. Martinez re: tolling”: 1.1 hours
“Finalize RES to MO Dismiss, edit; file”: 1.8 hours
“Review RES in OPP to MO extend deadline” to respond to motion to
dismiss: 0.3 hours.
(Doc. 34-1) at ¶ 4. Martinez’s billings related to the motion to dismiss total 4.0 hours:
“Memo on research re: Motion to Dismiss statute of limitations”: 0.8
“Research; drafting RES to MO Dismiss on SOL-Tolling”: 3.2 hours.
(Doc. 34-2) at ¶ 4.
In response to Miles’ argument about duplicative billing, the Gerken-Starkey Family
“requests that the Court hold that a ‘failure’ to ‘segment’ time between the two cases” is not the
legal test for determining an award of fees under Section 1447(c). (Doc. 34) at 9. The GerkenStarkey Family further observes that if Miles had agreed to dismiss Civ. No. 19-860 WJ/SCY,
which he did after the remand, then Ring and Martinez would not have had to expend time on
that case. Id.
The Court agrees with the Gerken-Starkey Family that segmentation is not the test for
determining a fees award under Section 1447(c). The test is whether “the billing reflects efforts
to resist removal,” i.e., would the plaintiff have incurred the requested fees and costs but for the
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improper removal. See, e.g., Franklin D. Azar & Assocs., P.C. v. Farmers Ins. Exch., 2013 WL
5430779 at * 3 (D. Colo.) (agreeing with “assertion that ‘but for [Traveler’s] improper removal,
none of the costs and expenses … would have been incurred’”). In this case, there is no reason
to believe that Miles would not have filed the motion to dismiss based on the statute of
limitations but for the improper removal. The Court finds that the billings related to the motion
to dismiss do not reflect any effort to resist the removal. The Court, therefore, will exclude those
Finally, the Gerken-Starkey Family makes the following interesting request: “If the
Court is Inclined to Reduce the Gerken-Starkey Family’s Attorneys’ Fees, the Family requests
that the Court Direct Third-Party Defendant Miles’ Attorney Also Submit Billing for His/Their
Work in this Case.” (Doc. 34) at 8. The Gerken-Starkey Family explains:
It is possible that the attorney(s) who worked on Third-Party Defendant’s pleadings
billed much less time. It is also possible that the attorney(s) complaining about ThirdParty Plaintiffs’ billing billed substantially similar amounts of time. Either fact would be
helpful in determining the fairness of Third-Party Plaintiffs’ fee application.
Id. The Gerken-Starkey Family does not provide any legal support for this proposition. The
Court finds that billings by Miles’ attorneys are not relevant to the issue of whether to award fees
to the Gerken-Starkey Family under Section 1447(c).
In sum, the Court will reduce Ring’s billed time by 15.5 hours and reduce Martinez’s
billed time by 4.0 hours for impermissible block billing and/or irrelevant billing. In addition, the
Court will reduce Ring’s billed time by 9.75 hours for a total of 25.25 hours (50% of Ring’s total
requested time) and reduce Martinez’s billed time by 0.2 hours for a total of 3.00 hours. The
Court makes this additional reduction in billed time for two reasons. First, Ring and Martinez
failed to attach contemporaneous time records to the revised affidavits or to even refer to
contemporaneous time records in the revised affidavits, evidentiary support necessary to justify
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the reasonableness of the billing times asserted in the revised affidavits. Second, the time spent
on the motion to remand was excessive. Altogether Ring and Martinez spent 13.3 hours, not
including 6.3 hours Ring impermissibly billed in block billings, on a motion to remand which
raised a single straightforward issue of whether a third-party defendant can remove a case to
B. Reasonable Hourly Rates
As noted above, Miles does not dispute the hourly billing rates sought by Ring and
Martinez, $235 an hour and $225 an hour, respectively. Nonetheless, fee applicants bear the
burden of showing that the requested rates are consistent with the prevailing rates in the
community. United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1234 (10th Cir.
2000) (“party requesting the fees bears ‘the burden of showing that the requested rates are in line
with those prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.’” (citation omitted)). To carry that burden, fee applicants must
show by “satisfactory evidence — in addition to the attorney's own affidavits — that the
requested” hourly rates are the prevailing market rates. Blum v. Stenson, 465 U.S. 886, 895 n. 11
(1984). Here, Ring and Martinez provide only their revised affidavits to support their hourly
rates. Even so, “[w]here a district court does not have before it adequate evidence of prevailing
market rates, the court may use other relevant factors, including its own knowledge, to establish
the rate.” Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1079 (10th Cir.
The 13.8 hours comes from Ring’s 09/20/19 billing for “Westlaw research remand/removal”
(3.0 hours); Ring’s 10/10/19 billing for “Finalize drafting and file Motion to remand” (4.9
hours); Ring’s 10/30/19 billing for “Discuss reply MTN remand with ACM” (0.5 hours); Ring’s
11/08/19 billing for “Drafting, finalize, filed REP in support of MTN Remand” (3.2 hours);
Martinez’s 09/19/19 billing for “Meeting with David Z. Ring, research tasks assigned-Remand”
(0.6 hours); and Martinez’s 09/20/19 billing for “Memo on research removal” (1.6 hours).
Case 1:19-cv-00864-KG-LF Document 36 Filed 10/13/20 Page 12 of 13
To start with, the Court notes that in 2018 it observed that it “has previously stated that
$200.00 per hour is a ‘relatively low rate’ for attorneys in New Mexico.” O Centro Espirita
Beneficente Uniao Do Vegetal in U.S. v. Duke, 343 F. Supp. 3d 1050, 1087 n.14 (D.N.M. 2018).
Indeed, awards of hourly rates of $225 an hour and higher are not atypical in this District. See
id. (summarizing awards of attorney rates in District of New Mexico); see also Rehburg v. Bob
Hubbard Horse Transportation, Inc., 2019 WL 5653958, at *2 n.1 (D.N.M.) (same).
Considering those previous awards in this District, the Court’s own knowledge of prevailing
market rates, and Miles’ non-opposition to the hourly rates Ring and Martinez request, the Court
determines that the hourly rates Ring and Martinez seek, $235 an hour and $225 an hour,
respectively, are reasonable.
Applying the lodestar method to the above determinations, the Court concludes that it
will award the Gerken-Starkey Family the following reasonable attorney’s fees it incurred for
Ring’s work related to the removal: $5,933.75 (25.25 hours x $235), plus the applicable gross
receipts tax. The Court further concludes that it will award the Gerken-Starkey Family the
following reasonable attorney’s fees it incurred for Martinez’s work related to the removal:
$675.00 (3.0 hours x $225), plus the applicable gross receipts tax. The total Section 1447(c) fees
award is $6,608.75, plus the applicable gross receipts tax.
IT IS ORDERED that the Application for Reasonable Attorneys’ Fees and Costs Incurred
in Securing the Order to Remand (Docs. #28, #29), (Doc. 31), is granted in that
1. Third-Party Defendant Miles will pay Defendant/Counter-Plaintiff/Third-Party
Plaintiff Gerken, Third-Party Plaintiff Brendan Starkey, and Third-Party Plaintiff Heather
Case 1:19-cv-00864-KG-LF Document 36 Filed 10/13/20 Page 13 of 13
Starkey reasonable attorneys’ fees in the amount of $6,608.75, plus the applicable gross receipts
2. such payment must be made no later than 30 days from the entry of this Memorandum
Opinion and Order.
UNITED STATES DISTRICT JUDGE
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