Kendell et al v. Pamesa et al

Filing 27

ORDER granting 20 Plaintiff's Motion for Attorney Fees. Signed by Magistrate Judge Terence P. Kemp on 5/19/2016. (er)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kellee Kendell, et al.,

:

Plaintiffs,

:

v.

:

Cesar V. Pamesa, RN, et al.,

Case No.

2:15-cv-3107

:
Magistrate Judge Kemp

Defendants.

:
OPINION AND ORDER

This diversity case was improperly removed by in-state
defendants and has been remanded to the Court of Common Pleas of
Franklin County, Ohio.

See Kendell v. Pamesa, 2016 WL 537797

(S.D. Ohio Feb. 11, 2016).

In that same opinion, the Court

determined that Plaintiffs were entitled to an award of
attorneys’ fees under 28 U.S.C. §1447(c).

The parties attempted

to resolve the amount of the fee award without Court intervention
but did not succeed.
the Court retains the

Although the case itself has been remanded,
jurisdiction to make a fee award.

See

generally Stallworth v. Greater Cleveland Regional Transit
Authority, 105 F.3d 25 (6th Cir. 1997).

For the following

reasons, the Court awards Plaintiffs the sum of $6,650.00 as fees
under §1447(c).
I.

Background

The Court incorporates the background of the case itself as
set forth in the February 11, 2016 Opinion and Order.

There is

some additional relevant background in the briefing on the fee
issue and other documents of record.
The notice of removal, Doc. 1, asserted that the case was
removable under 28 U.S.C. §1441 because diversity jurisdiction
existed under 28 U.S.C. §1332; Plaintiffs are Georgia residents
and defendants are citizens of Ohio.

That removal was clearly

improper because in-state defendants cannot remove a diversity

case.

That issue was raised in the motion to remand, which

addressed both the question of removal and the issue of
attorneys’ fees in four pages.

Doc. 5.

In their five-page

response, Defendants conceded the question of removal but made a
brief argument that an award of attorneys’ fees was not
warranted.

The reply (eight pages long) discussed only that

issue.
The itemization of hours attached to the motion for fees
shows that Plaintiffs’ counsel, Joseph Tann, spent eight hours on
the reply brief and six hours writing the motion and supporting
memorandum.

Mr. Tann charges $350.00 per hour for his services.

Fourteen hours of his time is therefore worth $4,900.

He also

spent 3.5 hours researching and writing the fee application and
another hour and a half on the reply, for a total of five more
hours and an additional $1,750 in fees.

That comes to $6,650 for

the nineteen hours spent directly on briefing the issues of
removal and remand, entitlement to attorneys’ fees, and the
amount of the fees.
The balance of the time for which Plaintiffs seek
compensation - 24.75 hours, which, billed at $350 per hour,
totals $8,662.50 - was spent on a variety of tasks.

Mr. Tann

spent 8.5 hours generally reviewing, researching, and discussing
the notice of removal; 7 hours preparing for the Rule 26(f)
conference; three-quarters of an hour discussing the order of
reference with his clients; and the rest of the time trying to
settle the attorneys’ fees issue.

Plaintiffs claim that none of

this work would have been necessary had the case not been removed
improperly, and that the fee award should encompass all of it.
As more fully discussed below, Defendants do not agree, and
suggest that the Court limit the fee award to a “nominal amount.”
II.

Discussion

There are really two issues here.
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The first is how much

time was reasonably spent on obtaining a remand, work necessary
only because the case was removed without an objectively
reasonable basis for doing so.

The second (which actually has

two subparts) is whether the Court can compensate Plaintiff for
time spent on federal court activities not directly related to
obtaining remand (like preparing for a Rule 26(f) conference)
and, if so, whether it should do so.

The Court will address each

issue separately.
A.

Compensation for Obtaining a Remand

At Mr. Tann’s normal hourly rate (which is not contested),
$4,900 of time was spent researching and briefing the remand
issue.

A fair portion of that time was spent attempting to

establish an entitlement to attorneys’ fees, since that was
really the only contested issue.

Reasonable minds might differ

on whether six hours was really needed to research and brief the
issue of whether courts in this Circuit have construed the
removal statute to mean exactly what it says about removal of
diversity cases by in-state defendants, but any such dispute
would have little impact on the total amount of fees awarded.
As to the time spent in researching and briefing the
question of entitlement to fees, which would constitute the
majority of the work done on the reply brief, and work done on
the fee petition itself, there does not appear to be any reason
not to compensate a successful movant for those expenditures.
See, e.g., Albion Pacific Property Resources, LLC v. Seligman,
329 F.Supp.2d 116 (N.D. Cal. 2004)(including time spent on the
attorneys’ fees request in the lodestar calculation); Waymire v.
Leonard, 2010 WL 3910218 (S.D. Ohio Oct. 4, 2010)(same).

As to

these specific items, Defendant does not appear to take issue
with the amount of time spent.
reasonable as well.

The Court finds that number

The lodestar amount for all of the research

and briefing on the remand issue amounts to $6,650.00.
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B.

Other Time Expenditures

As to the remaining time, the parties acknowledge that there
is a split of authority even within this District on whether
these are compensable under §1447(c).

In Marel v. LKS

Acquisitions, Inc., 2010 WL 1372412 (S.D. Ohio Mar. 31, 2010),
Judge Rose said that the fees awarded under that section must
pertain directly to the motion to remand.

Other Judges of this

Court have read the statutory language more broadly.

See, e.g.,

Cardinal Health 200, LLC v. Allscripts, LLC, 2013 WL 4081060
(S.D. Ohio Aug. 13, 2013), adopted and affirmed 2014 WL 971987
(S.D. Ohio Mar. 12, 2014).
conflict.

This Opinion need not resolve that

The Court is simply not convinced that the time spent

on litigation activities in federal court - even the preparation
of a Rule 26(f) report, which is not required under the Ohio
Civil Rules - is time spent only because of the removal.

The

type of communication and planning that goes into a 26(f) report
is part of the litigation process whether formally required or
not, and will be useful to Plaintiffs in advancing the case in
state court.

The Court will therefore not make any fee award for

that time.
C.

Other Factors

Apart from attacking specific time entries, none of which
are included in the $6,650 lodestar amount, Defendants argue that
any fee award beyond a nominal one is too much.

They cite to a

number of cases where small awards (under $3,000) were made.

But

there are also many cases, which need not be cited here, where
courts have made awards larger than those, and larger than the
lodestar amount here, even when the issue of removal and remand
was not complex.

There is no way to generalize such cases; they

rise or fall on their own facts.

The Court has no reason to

doubt that Mr. Tann spent the time he claims.

He has a high

hourly rate, but it is not unreasonable, and Defendants, having
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forced him to raise and brief both the motion to remand and the
issue of fees, should not be heard to complain that he did so
thoroughly.

The Court concludes that the amount of $6,650 is an

appropriate award in this case, given how it unfolded.

That

might be too high or too low in another case, but the Court
limits its ruling to the case and the record before it.
III.

Order

For the reasons set forth above, Plaintiffs are awarded the
sum of $6,650.00 in attorneys’ fees under 28 U.S.C. §1447(c), to
be paid within thirty days.

/s/ Terence P. Kemp
United States Magistrate Judge

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