Riverview Health Institute LLC et al v. North American Laserscopic Spine Institute et al

Filing 37

REPORT AND RECOMMENDATIONS: Plaintiffs' Itemized Statement of Attorney Fees 33 be accepted; Defendants be ordered to pay Plaintiffs' attorney fees in the amount of $9,526.00; the case be terminated on the Court's docket Objections to R&R due by 1/26/2015. Signed by Chief Magistrate Judge Sharon L. Ovington on 1-8-15. (mcm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RIVERVIEW HEALTH INSTITUTE,
LLC, et al.,

:
:

Plaintiffs,

Case No. 3:12cv00428
:

vs.
NORTH AMERICAN LASER
SPINE INSTITUTE, LLC, et al.,

:
:

District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington

:
Defendants.

REPORT AND RECOMMENDATIONS1

I.

Introduction
Defendants removed this case from state court in late December 2012 based on

diversity jurisdiction. At that time, the parties were unaware that complete diversity
jurisdiction was lacking because one Defendant was an Ohio citizen. Once Defendants
realized this problem, they filed a Motion to Remand the case to state court. The Court
granted the Motion as unopposed. (Doc. #26). Later, the Court granted Plaintiffs’ Motion
for Attorney Fees and Costs for Wrongful Removal.
The case is presently pending to determine the amount of reasonable attorney fees
and costs Defendants must remit to Plaintiffs. Id. The parties have submitted the following:

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Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendations.

Plaintiff’s Itemized Statement of Attorney Fees (Doc. #33), Defendants’ Objections (Doc.
#34), and Plaintiffs’ Reply (Doc. #36).
II.

Discussion
A.

Plaintiffs’ Itemized Statement And Other Supporting Documentation

Plaintiffs’ Itemized Statement of Attorney Fees describes attorney work in eighteen
entries. Their Statement states the month and year the work was performed, the attorney
who performed the work, the amount of time spent (number of hours, if any, and six-minute
intervals), and the amount of attorney fees incurred in each entry. The total amount of
attorney-work hours was 43.58; the total amount of fees equals $8,706.00. (Doc. #s 33, 36).
Plaintiffs also seek an additional $820.00 for work related to their Reply. Plaintiffs
therefore seek a total of $9,526.00 in attorney fees.
Defendants contend that Plaintiffs’ Itemized Statement is insufficient because it is not
supported with some form of contemporaneous billing records as mandated in Imwalle v.
Reliance Med. Prods., 515 F.3d 531, 553 (6th Cir. 2008). (Doc. #34, PageID at 282).
Defendants further contend that Plaintiffs have added narrative to their Itemized List thus
detracting from its evidentiary value. They conclude, “because the Fee Request on its own
has no probative value, the Fee Request should be reduced accordingly.” (Doc. #34, PageID
at 282).
Under Imwalle, documentation offered in support of a motion for attorney fees must
contain both sufficient detail and probative value to “enable the court to determine with a

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high degree of certainty that such hours were actually and reasonably expended in the
prosecution of the litigation.” Imwalle, 515 F.3d at 553 (citation omitted). Inadequate
documentation may warrant a reduction in the sought-after award. Id. For instance,
reduction may be appropriate “where the attorney did not maintain contemporaneous records
of his time or the nature of his work..., and where billing records ‘lumped’ together time
entries under one total so that it was impossible to determine the amount of time spent on
each task.” Id. (internal punctuation omitted) (quoting, in part, Cleveland Area Bd. of
Realtors v. City of Euclid, 965 F.Supp. 1017, 1021 (N.D. Ohio 1997)) (other citation
omitted). Yet, billing records may suffice when, for example, “the entries made by counsel
‘were sufficient even if the description for each entry was not explicitly detailed,’ ... and
where the attorney provided the court with computerized calendars and file information
indicating the dates and times of work performed.” Id. at 553 (citations omitted). Individual
descriptions of the work performed may be read “in the context of the billing statement as a
whole and in conjunction with the timeline of the litigation,” to resolve whether or not work
was “actually and reasonably expended in the prosecution of the litigation.” Imwalle, 515
F.3d at 554 (citation omitted).
In response to Defendants’ challenge to the sufficiency of Plaintiffs’ Itemized
Statement, Plaintiffs submit the declaration of attorney Adam R. Webber. He explains that
their “[i]temized lists of the efforts, hours, and expense... were drawn specifically from time
and billing records kept contemporaneously with the time expenditures....” (Doc. #36,

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PageID at 309-10, ¶s 4-5). Attorney Webber further states, “Each attorney’s time was
specifically re-reviewed and approved by that attorney before filing of the Supplemental
Memorandum (Doc. 33) and Reply (Doc. 34).” Id. at ¶5. Because attorney Webber’s
declaration is executed and submitted in the form required by 28 U.S.C. §1746, and given
the absence of evidence indicating that it contains any false or factually incorrect
information, the declaration and Plaintiffs’ Itemized Statement constitute evidence of high
probative value regarding the actual work Plaintiffs’ attorneys performed. In addition,
Plaintiffs’ Itemized Statement describes the work performed by counsel with sufficient
detail to identify the work counsel actually performed. Although Plaintiffs’ counsel has not
provided contemporaneous billing records, this omission was reasonable in this case as a
cost-minimizing measure. Attorney Webber states, “Copies of the actual client bills were
not provided because I and others at my firm work on a number of other litigation matters
for this client, and the redaction of over 18 months’ worth of bills would have substantially
increased the expenditure of time on this matter.” Id. at ¶ 6.
Accordingly, Defendants’ objections to the sufficiency of Plaintiffs’ documentation
lack merit.
B.

Defendants’ Remaining Contentions
Defendants do not object to the fees Plaintiffs seek in connection with the “review of

the notice of removal; Fed. R. Civ. P. 26(f) report; reviewing the Court’s notation order
correcting its scheduling order; and preparing the corporate disclosure statements.” (Doc.

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#34, PageID at 283). Yet, Defendants object to a number of the requested fees, specifically,
Entries 3, 6, and 8-18.
Before addressing these Entries, it is helpful to recall the Court’s prior attorney-fee
holding:
In sum, Plaintiffs are entitled to recover under §1447(c) the fees and
costs they incurred as a result of – were caused by – Defendants’ mistaken,
and therefore, improper removal of this case from state court. This includes,
but is not limited to, expenses incurred in prosecuting a remand motion.
(Doc. #31, PageID at 268 (adopted by Doc. #35), citing Shooter Const. Co., Inc. v. Wells
Fargo Ins. Servs. USA, Inc., 3:11-CV-181, 2011 WL 6339680 at *2 (S.D. Ohio Nov. 28,
2011)).
Entry 3
In Entry 3, Plaintiffs seek to recover $860 for 4 hours and 18 minutes of work
performed by attorney Webber. The work involved receiving and reviewing Defendants’
initial disclosures and preparing Plaintiffs’ initial disclosures. (Doc. #34, PageID at 283).
Attorney Webber’s work, according to Defendants, was not incurred as a result of the
removal. Defendants reasoning is threefold: (1) Plaintiffs would almost certainly have
sought the information contained in Defendants’ initial federal disclosures by way of
interrogatories during state-court discovery proceedings; (2) the information disclosed by
Defendants remains valuable to Plaintiffs after remand; and (3) Plaintiffs’ preparation of
their initial disclosures involved collecting and disclosing discoverable information, as they
likely would have done in state court.
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There is no specific mandate under Ohio R. Civ. P. 26 to the initial-disclosure
mandate in Fed. R. Civ. P. 26(a). Consequently, Plaintiffs’ initial disclosures and review of
Defendants’ initial disclosures resulted from a mandatory federal requirement triggered by
Defendants’ removal of the case to this Court. The fact that the information remains
valuable to Plaintiffs does not negate the causal effect between Defendants’ removal and
Plaintiffs’ initial disclosures or their counsel’s review of Defendants’ initial disclosures. In
addition, attorney Webber states, “Defendants’ paper discovery requests requested
substantially all of the same information requested in the Plaintiff[s’] Rule 26(a) initial
disclosures, including the names of persons with all relevant documents, and an itemization
of damages.” (Doc. #36, PageID at 311). At best for Defendants, this means that their
removal caused Plaintiffs’ counsel to perform some, if not most, of the same work twice:
first preparing Plaintiffs’ initial disclosures, then responding to Defendants’ interrogatories.
Given this, Plaintiffs engaged in the same work twice in this Court because of Defendants’
removal. Viewed another way, if the case had remained in state court, attorney Webber
would have simply responded to Defendants’ interrogatories without burdening Plaintiffs
with the costs of any work associated with initial disclosures. See Shooter Const., 2011 WL
6339680, at *2 (expenses incurred as a result of removal include “the necessary expenses of
being in the second judicial system ....” (internal punctuation and citation omitted)).
Additionally, it was reasonable and necessary for Plaintiffs’ counsel to review Defendants’
initial disclosures in this case even if Defendants’ discovery responses contained the same or

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similar information. In order to satisfy his duty to zealously represent his clients, attorney
Webber would have been remiss not to review Defendants’ initial disclosures in this case to
learn what further discovery would be needed from Defendants.
Accordingly, Entry 3 identifies attorney work incurred as a result of removal. As
such, Entry 3 work is compensable under §1447(c).
Entry 6
For 3.9 hours of attorney work, Entry 6 states: “Research [Fed. R. Civ. P.] 45 for
Format, Jurisdictional, and Service Requirements for Federal Subpoenas after December
2013 Revisions; Prepare Federal Subpoenas to Witnesses with Instructions, Witness Fees,
Service Requirements, Deposition and Production Location, etc.” (Doc. #34, PageID at
285).
Defendants object that counsel’s failure to separately itemize the multiple tasks in
Entry 6 prevents the Court from determining with a high degree of certainty that a
reasonable amount of time was spent upon each task.
Entry 6 does not suffer from insufficient itemization. Given the relatively short – 3.9
hours – of attorney work performed plus the number of tasks performed, there is no need for
counsel to further specify the number of hours performed on each particular task in order.
Entry 6, as is, sufficiently identifies work actually and reasonably performed as a result of
the removal in this case. Imwalle, 515 F.3d at 553. Additionally, the potential significance
of even one improperly served subpoena – loss of a necessary party or witness – plus the fact

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that two new subsections – Rule 45(c) and (f) – went into effect in December 2013, support
the conclusion that 3.9 hours of attorney work researching Rule 45 together with the other
tasks set forth in Entry 6 was reasonable and caused by the removal. This is so even though
some pertinent information (subpoena forms and related information), as Defendants point
out, is readily available online. The ease with which such information can be gathered does
not obviate the work necessary to ensure compliance with the amended version of Rule 45,
which became effective in December 2013. As a result, it was not excessive or unreasonable
for counsel to spend time performing the work described in Entry 6.
Defendants also point out that Entry 6 fails to identify the individuals to whom the
subpoenas were needed. It is conceivable that this argument might well have merit in a case
involving more than the 3.9 hours of attorney work performed on subpoenas in this case. In
the former situation, it might be necessary to know who was subpoenaed to determine if the
attorney work was incurred as a result of removal; in the latter and present situation, the
relatively low number of attorney-work hours does not raise the concern that the subpoenas
were unnecessary or not incurred as a result of the removal.
Accordingly, Defendants’ objections to Entry 6 lack merit.
Entries 8 through 18
Defendants acknowledge, “Entries 8 though 14 reflect work done in connection with
Defendants’ Motion to Remand.” (Doc. #34, PageID at 288). At first blush, this
acknowledgment would seem to dispel opposition to the fees described in Entries 8 through

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14 because the Court previously held that Plaintiffs are entitled to recover “expenses
incurred in prosecuting a remand motion.” (Doc. #31, PageID at 268 (adopted by Doc.
#35)). Defendants, however, object to these Entries on several grounds, beginning with the
factual accuracy of certain Entries.
Defendants point out that the Entries for attorney Webber’s February and March 2014
work “disingenuously characterize the work as ‘Requests for Additional Diversity
Information’ (Entry 13) and ‘Read and Respond to Defendants’ Supplemental Discovery
Responses on Jurisdictional Issue’ (Entry 14).” (Doc. #34, PageID at 288). Defendants
contend that attorney Webber’s email establishes something contrary – that the information
Plaintiffs “sought during the remand was not caused by the jurisdictional issue, but was
requested in the course of regular discovery.” Id. (citing, “Ex. A to Declaration of Darren
W. Ford (Ex. 1), Email String Among Counsel, Email from Adam Webber to Kara Czanik,
Jan. 29, 2014.”).
Defendants’ contentions stretch attorney Webber’s email to attorney Czanik too far in
the direction of regular discovery. The email’s subject was the “Diversity Jurisdiction
Issue.” Id., PageID at 299. It therefore broadly concerned the issue upon which remand
turned out to be warranted, rather than a discovery issue alone. The text of the email
likewise explained, “we have not been provided with information we need to properly
evaluate this question of citizenship.” Id. Consequently, although attorney Webber asked
for supplemental information responsive to Plaintiffs’ Interrogatories 16 and 17 and

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Document Requests 18 and 19, the text of his email establishes that he did so in connection
with the jurisdictional/remand issue Defendants’ counsel needed to evaluate. In addition,
although attorney Webber acknowledged that the information sought “is relevant to the other
claims and defenses ...,” he continued “and complete responses are now obviously necessary
to evaluate the Court’s jurisdiction.” Id., PageID at 300. Thus, considering all the
information in the email, attorney Webber’s descriptions in Entries 13 and 14 are factually
consistent with his email. And, when read together, these Entries and attorney Webber’s
email are sufficient to show that the work he performed and the fees generated were incurred
as a result of the removal.
Defendants next contend that time spent by Plaintiffs’ counsel research of removal
law after Defendants filed their Motion to Remand and strategizing about the Motion was
not reasonable because Defendants had reasonably attempted to obviate the need for such
work. This contention, however, does not fully appreciate the obvious need for Plaintiffs’
counsel to explain to Plaintiffs why a remand issue had arisen and why the jurisdictional
problem might require a return to state court. Plaintiffs also faced the reasonable possibility
that Smith’s declaration, which indicated his Ohio residency, driver’s license, and voter
registration, might not have sufficed to establish that he was domiciled and, thus, a citizen of
Ohio. See Doc. #21, Exh. 1; see also Miss. Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 48 (1989) (“‘Domicile’ is not necessarily synonymous with ‘residence,’ and one can
reside in one place but be domiciled in another.”); cf. Persinger v. Extendicare Health

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Servs., Inc., 539 F. Supp. 2d 995, 997, 2008 WL 399637 (S.D. Ohio 2008) (Sargus, D.J.)
(identifying a “variety of factors” pertinent to a determination of domicile; no single factor is
dispositive). Under these circumstances, Plaintiffs’ counsel reasonably spent time
researching removal law and strategizing about the remand, and Plaintiffs incurred fees
generated by this work as a result of the wrongful removal.
The last category of attorney fees Plaintiffs seek, through Entries 15 through 18
(April, May, June 2014), and Defendants’ last contentions relate to Plaintiffs’ efforts to
recover fees and costs for the wrongful removal under 28 U.S.C. §1447(c). Defendants
point out that these Entries total $2,105 in fees to recover $6,601 or, in percentage terms,
almost 25% of the total fee request. Defendants point out, “the fee petition tail should not be
allowed to wag the dog.” (Doc. #34, PageID at 293) (quoting Career Agents Network, Inc.
v. carreeragentsnetwork.biz, 772 F.Supp.2d 814, 825 (E.D. Mich. 2010) (other citation
omitted)). Accepting the wisdom of this canine adage does not assist Defendants because
the dog wagging they identify – that Plaintiffs seek fees for run-of-the-mill discovery and
similarly unrecoverable fees – lacks merit for the above reasons.
Accordingly, Defendants’ Objections to Entries 8 through 18 lack merit.

IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiffs’ Itemized Statement of Attorney Fees (Doc. #33) be accepted;

2.

Defendants be ordered to pay Plaintiffs’ attorney fees in the amount of
$9,526.00; and

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3.

The case be terminated on the Court’s docket.

January 8, 2015
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this
period is extended to SEVENTEEN days because this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall
specify the portions of the Report objected to and shall be accompanied by a memorandum
of law in support of the objections. If the Report and Recommendation is based in whole or
in part upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree upon
or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after
being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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