Don H Konipolas et al v. TXS United Housing Program Inc

Filing 16

MEMORANDUM OPINION AND ORDER: The plaintiffs' 15 motion for attorney's fees and costs is GRANTED in part and DENIED in part. The plaintiffs are entitled to recover $12,576.55 in attorney's fees and costs from the defendant. (Ordered by Senior Judge A. Joe Fish on 5/3/2017) (twd)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

DON H. KONIPOLAS, as Trustee of
Wolverine Mortgage Partner Retirement,
ET AL.,
Plaintiffs,
VS.
TXS UNITED HOUSING PROGRAM,
INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
3:17-CV-0042-G

MEMORANDUM OPINION AND ORDER

Before the court is the plaintiffs’ motion for attorney’s fees and costs (docket
entry 15). For the reasons stated below, the plaintiffs’ motion is granted in part and
denied in part. The plaintiffs are entitled to recover $12,576.55 in attorney’s fees
and costs.
I. BACKGROUND
The plaintiffs commenced these forcible detainer actions in a Texas state court
to recover possession of properties located on Treetop Lane (“Treetop Property”) and

Mexicana Road (“Mexicana Property”) in Dallas, Texas. Plaintiffs’ Motion for
Attorney’s Fees (“Motion”) (docket entry 15). The defendant subsequently removed
the actions to this court. First Notice of Removal (docket entry 1); Second Notice of
Removal (docket entry 5). This court remanded the actions to the state court on
February 23, 2017. Memorandum Opinion and Order Remanding Case to State
Court (docket entry 14). Pursuant to the court’s memorandum opinion and order,
the plaintiffs are entitled to attorney’s fees and costs incurred as a result of the
defendant’s removal. Id. at 6 (“[P]laintiffs are entitled to recover from TXS all just
costs and any actual expenses, including attorney’s fees, incurred by the plaintiffs as a
result of the removal of this action.”) (citing 28 U.S.C. § 1447(c)).
Consequently, the plaintiffs timely filed the instant motion under FED. R. CIV.
P. 54(d)(2). See Motion at 2. The plaintiffs seek attorney’s fees and actual expenses
in the amount of $17,544.65. Id. Their motion includes a declaration from the
attorney on this case, Martin J. Lehman (“Lehman”), and invoices with charges from
Lehman and his legal assistants, Shelia Shafer (“Shafer”) and Lori Fitzgerald
(“Fitzgerald”). See generally Appendix in Support of Plaintiffs’ Motion for Expenses
Including Attorney’s Fees (“Appendix”) (docket entry 15-1). The defendant did not
file a response. The motion is now ripe for decision.

-2-

II. ANALYSIS
A. Legal Standard
The Fifth Circuit employs a two-step process to calculate attorney’s fees.
Smith v. Acevedo, 478 Fed. App’x 116, 124 (5th Cir. 2012). The first step is
determining the lodestar fee by multiplying the number of hours reasonably
expended on the litigation by a reasonable hourly rate. Id. The court should exclude
work that is excessive, duplicative, or inadequately documented. Id. Then, the court
may adjust the lodestar based on twelve factors announced in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated by Blanchard v.
Bergeron, 489 U.S. 87 (1989).1 Many of these factors are usually subsumed in the
initial lodestar calculation. Jason D.W. by Douglas W. v. Houston Independent School
District, 158 F.3d 205, 209 (5th Cir. 1998). “The court must provide a reasonably
specific explanation for all aspects of a fee determination.” Smith, 478 Fed. App’x at

1

The twelve Johnson factors are: (1) the time and labor required for the
litigation; (2) the novelty and complication of the issues; (3) the skill required to
properly litigate the issues; (4) whether the attorney had to refuse other work to
litigate the case; (5) the customary fee in the community for similar work;
(6) whether the fee is fixed or contingent; (7) whether the client or case
circumstances imposed any time constraints; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the attorneys; (10) whether
the case was “undesirable;” (11) the type of attorney-client relationship and whether
that relationship was long-standing; and (12) awards made in similar cases. Johnson,
488 F.2d at 717-19.
-3-

124 (quoting Jimenez v. Wood County, Texas, 621 F.3d 372, 380 (5th Cir. 2010), on
reh’g en banc, 660 F.3d 841 (5th Cir. 2011)).
B. Application
1. Reasonable Hourly Rate
The party seeking attorney’s fees has 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.” Blum v.
Stenson, 465 U.S. 886, 895 n.11 (1984). “Generally, the reasonable hourly rate for a
particular community is established through affidavits of other attorneys practicing
there.” Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir.), cert. denied, 537 U.S.
883 (2002). However, a court may also rely on its own expertise in deciding the
reasonableness of an hourly rate. Gromer v. Mack, No. 3:11-CV-0682-D, 2012 WL
28835, at *2 (N.D. Tex. Jan. 4, 2012) (Fitzwater, Chief J.) (citing Primrose Operating
Company v. National American Insurance Company, 382 F.3d 546, 562 (5th Cir. 2004)).
Here, Lehman has been licensed to practice in Texas since 1982. Appendix at
2. Lehman’s hourly rate is $425.00 per hour and his legal assistants, Shafer and
Fitzgerald, bill at a rate of $95.00 per hour. Id. at 3-4. In his declaration, Lehman
states that “[b]ased on my experience, in my opinion, my hourly rate and the hourly
rate of our legal assistants are reasonable.” Id. at 4. However, Lehman’s declaration
lacks information about the hourly rate for attorneys with similar experience and

-4-

does not include affidavits or declarations from other attorneys regarding reasonable
rates in Dallas, Texas.
The court, relying on its expertise, concludes that the rates of Lehman, Shafer,
and Fitzgerald are reasonable. Other attorneys with over thirty years of experience
and their legal assistants have charged similar rates on similar matters in Dallas. See
Task Force Logistics International, Ltd. v. Teasley Partners, Ltd., No. 3:14-CV-2101-L,
2014 WL 6673482, at *2-3 (N.D. Tex. Nov. 25, 2014) (Lindsay, J.) (discussing
hourly rates for an experienced bankruptcy attorney and his legal assistant in Dallas).
Moreover, the court’s conclusion is further supported because the defendant did not
object to it. See Baulch v. Johns, 70 F.3d 813, 818 n.8 (5th Cir. 1995). Accordingly,
the hourly rates for Lehman, Shafer, and Fitzgerald are deemed reasonable.
2. Reasonable Number of Hours
The party seeking attorney’s fees has the burden of showing the reasonableness
of the total number of hours and whether the hours were reasonably expended. Mota
v. University of Texas Houston Health Science Center, 261 F.3d 512, 528 (5th Cir. 2001);
Louisiana Power & Light Company v. Kellstrom, 50 F.3d 319, 324 (5th Cir.), cert. denied,
516 U.S. 862 (1995). Courts also look to whether the attorney exercised sound
billing judgment. Walker v. U.S. Department of Housing & Urban Development, 99 F.3d
761, 769 (5th Cir. 1996). Billing judgment “refers to the usual practice of law firms
in writing off unproductive, excessive, or redundant hours.” Id. The party seeking

-5-

fees should submit documentation of the number of hours charged as well as the
number of hours written off. Securities and Exchange Commission v. AmeriFirst Funding,
Inc., No. CIV.A. 3:07-CV-1188-D, 2008 WL 2185193, at *2 (N.D. Tex. May 27,
2008) (Fitzwater, Chief J.).
Here, Lehman, Shafer, and Fitzgerald billed totals of 43, 1.7, and .2 hours
respectively.2 Appendix at 3-6. They worked on the motion to remand, the motion
to dismiss, the joint status report, and the certificate of interested persons. See id. at
11-23. Lehman, Shafer, and Fitzgerald provided a “courtesy discount” of $1,125.95 - writing off approximately 2.62 hours of Lehman’s work and .13 hours of work
performed by Shafer or Fitzgerald.3 Id. at 4-6. The court concludes that the time
expended on the motion to remand, the status report, and the certificate of interested
persons is reasonable. However, as to the motion to dismiss, under section 1447(c),
the court may only award “fees and costs incurred in federal court that would not
have been incurred had the case remained in state court.” Avitts v. Amoco Production
Co., 111 F.3d 30, 32 (5th Cir.), cert. denied, 522 U.S. 977 (1997).

2

For the Mexicana Property, Lehman expended a total of 22.5 hours and
Shafer billed for 1 hour. Id. at 4-5. For the Treetop Property, Lehman expended a
total of 20.5 hours and Shafer and Fitzgerald expended a total of .7 and .2 hours
respectively. Id. at 5-6.
3

Lehman offered a courtesy discount of $1,113.50 for his own billing
hours and $12.35 for the work of Shafer and Fitzgerald. See Appendix at 4-6.
-6-

Upon a close review of the record, the court concludes that the plaintiffs are
not entitled to attorney’s fees for the hours spent working on the motion to dismiss.
On January 18, 2017, the defendant filed an answer and a counterclaim.
Defendant’s Answer and Counterclaim (docket entry 6). In response, the plaintiffs
filed a motion to dismiss under F ED. R. CIV. P. 12(b)(1) and 12(b)(6) as well as a
motion to require the defendant to amend its answer under Rule 8(b). Plaintiffs’
Motion to Dismiss the Defendant’s Counterclaim (“Motion to Dismiss”) (docket
entry 10). In his declaration, Lehman contends that “expenses for this work would
not have been incurred if the evictions had remained in state court.” See Appendix at
7. However, Lehman submits no authority for the proposition that the plaintiffs
would not have needed to file a response to the defendant’s counterclaim -- even if
improper -- in state court.
Moreover, the crux of the plaintiffs’ motion to dismiss would have been the
same had the case remained in state court. See Western Healthcare, LLC v. National
Fire & Marine Insurance Company, No. 3:16-CV-0565-L, 2016 WL 7735761, at *6
(N.D. Tex. Dec. 28, 2016) (Horan, M.J.) (“[E]ven though the briefs will have to be
modified, this should not require a significant amount of time given that the claims
and defenses are identical in state and federal court.”), report and recommendation
adopted, No. 3:16-CV-0565-L, 2017 WL 118864 (N.D. Tex. Jan. 12, 2017). The
plaintiffs’ motion to dismiss recites the same jurisdictional defects raised in the

-7-

motion to remand, compare Motion to Dismiss at 2-3 with Plaintiffs’ Motion to
Remand at 3-6 (docket entry 9), and argues that the Texas Rules of Civil Procedure
prohibit counterclaims in forcible detainer actions. Motion to Dismiss at 3-4 (citing
TEX. R. CIV. P. 510.3(e)). The plaintiffs presumably would have raised Rule 510.3(e)
had the defendant filed the counterclaim in state court. See Wermelinger v. Connecticut
General Life Insurance Company, No. CIV.A. 3:97-CV-1100-D, 1998 WL 401607, at *3
(N.D. Tex. July 15, 1998) (Fitzwater, J.) (“[T]he work is not related to removal,
could have arisen in state court, and is useable in state court.”); see also Western
Healthcare, LLC, 2016 WL 7735761, at *6-7 (declining to award fees when the need
to perform similar work would have arisen without the removal).
The same conclusion holds true even if the state court would have dismissed
the defendant’s counterclaim outright -- without the need to file a response. Given
their likelihood of prevailing on the motion to remand, the plaintiffs could have
minimized their expenses in federal court. As the court noted in Western Healthcare,
LLC, “[the] Plaintiff[s] did not move to stay briefing on any motions to dismiss
pending the Court’s decision on [the] motion to remand.” Western Healthcare, LLC,
2016 WL 7735761, at *6. Thus, the hours spent working on the motion to dismiss
are omitted from the lodestar calculation.4

4

The court notes that the number of hours expended on the motion to
dismiss should be reduced on another independent ground. There are a total of three
cases, three procedural rules, and two statutes cited in the plaintiffs’ motion to
-8-

As to the motions to dismiss for the Mexicana5 and Treetop6 Properties,
Lehman and Shafer worked for a total of 11.6 hours and .4 hours respectively.7 See
Appendix at 11-24. Therefore, the number of billable hours for Lehman is reduced
from 43 by 11.6 to 31.4 and the number of hours for Shafer and Fitzgerald is
reduced from 1.9 to 1.5.

dismiss. See Wermelinger, 1998 WL 401607, at *4 (looking to the complexity of the
motion in determining whether the number of hours is reasonable). Short motions
such as this should not require such a large amount of time. For this reason, the 11.6
hours spent on the motion to dismiss is unreasonable and should have been written
off in an exercise of billing judgment.
5

Lehman worked on the motion to dismiss regarding the Mexicana
Property as follows: .7 hours on January 19, 2017, see Appendix at 12; .2 hours on
February 1, 2017, see id. at 15; 2.40 hours on February 7, 2017, see id.; 1.8 hours on
February 8, 2017, see id.; .2 hours on February 13, 2017, see id. at 16; and .5 hours
on February 20, 2017, see id. Thus, Lehman spent a total of 5.8 hours working on
the motion to dismiss regarding the Mexicana Property. Shafer also worked for a
total of .2 hours on the motion to dismiss regarding the Mexicana Property. Id. at
16.
6

Lehman worked on the motion to dismiss regarding the Treetop
Property as follows: .7 hours on January 19, 2017, see Appendix at 19; .2 hours on
February 1, 2017, see id. at 22; 2.40 hours on February 7, 2017, see id.; 1.8 hours on
February 8, 2017, see id. at 22; .2 hours on February 13, 2017, see id. at 23; and .5
hours on February 20, 2017, see id. Thus, Lehman spent a total of 5.8 hours working
on the motion to dismiss regarding the Treetop Property. Shafer also worked for a
total of .2 hours on the motion to dismiss regarding the Treetop Property. Id.
7

The court also notes that on January 19, 2017, February 1, 2017,
February 13, 2017, and February 20, 2017, Lehman’s billing entries included work
on both the motion to dismiss and the motion to remand or joint status report. See
Appendix at 11-23. Because the court cannot determine the amount of time spent on
each task, these entries are counted entirely towards the motion to dismiss. See
Gromer, 2012 WL 28835, at *3 (declining to award fees for billing entries that
contained time spent on two separate matters).
-9-

3. Fee Calculation
The lodestar is 31.4 hours performed by Lehman and 1.5 hours performed by
Shafer and Fitzgerald multiplied by rates of $425 per hour and $95 per hour for a
total of $13,487.50. $215 in costs, see Appendix at 7, increases the total to
$13,702.50. Deducted from this amount is the “courtesy discount” of $1,125.95,
bringing the final figure to $12,576.55. The court concludes that this figure
adequately incorporates the factors listed in Johnson; therefore, no additional
adjustment is necessary.
III. CONCLUSION
For the reasons stated above, the plaintiffs’ motion is GRANTED in part and
DENIED in part. The plaintiffs are entitled to recover $12,576.55 in attorney’s fees
and costs from the defendant.
SO ORDERED.

May 3, 2017.

___________________________________
A. JOE FISH
Senior United States District Judge

- 10 -