HMC RFG Investors LLC v. Jones

Filing 23

MEMORANDUM OPINION AND ORDER re 19 Motion for Attorney Fees. The court grants the application and awards HMC attorney's fees. Jones must pay this award to HMC within 28 days of the date this memorandum opinion and order is filed. (Ordered by Senior Judge Sidney A Fitzwater on 6/4/2024) (kcr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HMC RFG INVESTORS LLC,
Plaintiff,
VS.
ROBERT T. JONES,
Defendant.

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Civil Action No. 3:23-CV-2793-D

MEMORANDUM OPINION
AND ORDER
In HMC RFG Investors LLC v. Jones (HMC I), 2024 WL 519723, at *1(N.D. Tex.
Feb. 9, 2024) (Fitzwater, J.), the court granted the motion to remand of plaintiff HMC RFG
Investors LLC (“HMC”) and awarded it costs and attorney’s fees under 28 U.S.C. § 1447(c)
because the removal by defendant Robert T. Jones (“Jones”) was objectively unreasonable.
HMC has filed an application for attorney’s fees, which Jones opposes. For the reasons that
follow, the court grants the application and awards HMC the sum of $9,870.00 in attorney’s
fees.
I
In response to HMC I, HMC filed a fee application requesting attorney’s fees in the
amount of $9,870.00 for the services of Alan S. Notinger, Esq. (“Notinger”). HMC contends
that it has exercised billing judgment and voluntarily reduced its requested attorney’s fees
by excluding all time spent by co-counsel and by any paralegal; by excluding time spent in
February 2024 and March 2024, including the time spent preparing plaintiff’s motion for

attorney’s fees; and by discounting Notinger’s time entries of 37.6 hours to 18.8 hours.
HMC seeks attorney’s fees for 18.8 hours of work by Notinger at an hourly rate of $525.00.
Jones objects to HMC’s fee request on two grounds: (1) HMC’s billing entries do not
provide sufficient information to enable the court to determine the reasonableness of the
listed tasks, and (2) HMC’s motion fails to provide support for the requested hourly rate.
Jones maintains that the amount HMC seeks is excessive and unreasonable and should be
reduced to $3,000.00 based on 10 attorney hours at a rate of $300.00 per hour.
II
28 U.S.C. § 1447(c) provides that “[a]n order remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as a result
of the removal.”
The determination of a fees award is a two-step process. First
the court calculates the “lodestar” which is equal to the number
of hours reasonably expended multiplied by the prevailing
hourly rate in the community for similar work. The court should
exclude all time that is excessive, duplicative, or inadequately
documented. Once the lodestar amount is calculated, the court
can adjust it based on the twelve factors set forth in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974).
Jimenez v. Wood Cnty., Tex., 621 F.3d 372, 379-80 (5th Cir. 2010) (some citations omitted).
The lodestar is presumptively reasonable, see Perdue v. Kenny A., 559 U.S. 542, 552 (2010),
but the applicant bears the burden of substantiating both the requested hours and the hourly
rates, Hensley v. Eckerhart, 461 U.S. 424, 437(1983).

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III
To calculate the lodestar amount, the court must first determine the reasonable hourly
rate.
A
“The hourly rate[] to be used in the lodestar calculation [is] determined by ‘the
prevailing market rates in the relevant community.’” Barrow v. Greenville Indep. Sch. Dist.,
2005 WL 6789456, at *15 (N.D. Tex. Dec. 20, 2005) (Fitzwater, J.) (quoting Blum v.
Stenson, 465 U.S. 886, 895 (1984)), aff’d, 2007 WL 3085028 (5th Cir. Oct. 23, 2007). The
relevant legal community is the community where the district court sits. See Tollett v. City
of Kemah, 285 F.3d 357, 368 (5th Cir. 2002). As the fee applicant, HMC “bears the burden
of demonstrating ‘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.’”
Barrow, 2005 WL 6789456, at *15 (quoting Blum, 465 U.S. at 895 n.11). Parties usually
establish the reasonable hourly rate by providing affidavits of other attorneys practicing in
the community. See Tollett, 285 F.3d at 368. But “[t]he affidavits of counsel may alone be
sufficient proof” to establish the reasonable hourly rate. Smith & Fuller, P.A. v. Cooper Tire
& Rubber Co., 685 F.3d 486, 491 (5th Cir. 2012) (discussing attorney’s fees in a discovery
dispute). The trial court itself is also considered an expert as to the reasonableness of
attorney’s fees and therefore may exercise its own expertise and judgment in making an
independent valuation of appropriate attorney’s fees. See Primrose Operating Co. v. Nat’l
Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004); Wachovia Bank, Nat’l Ass’n v. Schlegel,
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2010 WL 4275277, at *2 n.4 (N.D. Tex. Oct. 29. 2010) (Fitzwater, C.J.).
B
HMC seeks attorney’s fees for Notinger’s services at an hourly rate of $525.00. It
supports its fee application with a declaration in which Notinger avers that he is familiar with
the reasonable, usual, and customary fee amounts charged for suits of this type in Dallas,
Texas; he is familiar with the hourly rates charged for suits of this type in Dallas, Texas; and
he has testified as an expert witness concerning the subject of reasonable and necessary
attorney’s fee amounts on a number of occasions at trials in the Dallas area. Notinger posits
that an hourly rate of $525.00 is reasonable because he has been licensed to practice law in
Texas since 1982, his practice since 1982 has involved the area of civil business litigation,
and the cases he has handled cover a wide range of industries and subjects, including cases
involving claims for fraud and negligent misrepresentation, such as in this case. Jones
responds that Notinger’s hourly rate is excessive and not reflective of the instant case and
that HMC’s motion “offers no range for litigators in Dallas, providing no support for the rate
proffered, which at Plaintiff’s counsel’s proposed hourly rate of $525 an hour is excessive.”
D. Br .4.
Notinger’s hourly rate is consistent with—if not lower than—the prevailing market
rates established in recent cases by the undersigned and other judges of this court. See, e.g.,
Mai v. Art Inst. of Dall. Aii, LLC, 2023 WL 8005315, at *3 (N.D. Tex. Nov. 17, 2023)
(Fitzwater, J.) (finding hourly rate of $535.00 for attorney with 20 years civil litigation
experience to be reasonable); Cortes-Castillo v. One Time Constr. Tex. LLC, 2023 WL
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5826976, at *3 (N.D. Tex. Sept. 8, 2023) (Ramirez, J.) (finding hourly rate of $440.00 for
attorney licensed in 2012 and hourly rate of $485.00 for attorney licensed in 2009 to be
reasonable); Mary Kay, Inc. v. Keller, 2023 WL 4089428, at *2 (N.D. Tex. June 19, 2023)
(Starr, J.) (finding hourly rate of $556.32 for partners and average hourly rate of $342.97 for
associates to be reasonable); Hardy v. SDM Hosp., LLC, 2022 WL 272718, at *6 (N.D. Tex.
Jan. 10, 2022) (Toliver, J.) (finding hourly rate of $525.00 for attorney licensed in 1993 to
be reasonable), rec. adopted, 2022 WL 271751, at *1 (N.D. Tex. Jan. 28, 2022) (Scholer, J.);
Advanced Physicians, S.C. v. Conn. Gen. Life Ins. Co., 2021 WL 6428370, at *6 (N.D. Tex.
Dec. 17, 2021) (Rutherford, J.) (finding hourly rates between $537.00 and $862.00 for
complex litigation attorneys from full-service law firm to be reasonable).
The rate requested also appears to be Notinger’s regular rate. See La. Power & Light
Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995) (per curiam) (“When an attorney’s
customary billing rate is the rate at which the attorney requests the lodestar be computed and
that rate is within the range of prevailing market rates, the court should consider this rate
when fixing the hourly rate to be allowed.” (quoting Islamic Ctr. of Miss., Inc. v. City of
Starkville, 876 F.2d 465, 469 (5th Cir. 1989))). And “if the opposing party . . . urges that the
fees be based on a rate lower than the prevailing attorney’s usual charge, even though that
amount is within the community-accepted range, that party should at least adduce some
evidence to support its position that, under the circumstances, the requested rate is not
reasonable.” Associated Builders & Contractors of La., Inc. v. Orleans Par. Sch. Bd., 919
F.2d 374, 379 (5th Cir. 1990) (quoting Islamic Ctr. of Miss., Inc., 876 F.2d at 469). Jones
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does not present any evidence demonstrating why HMC’s requested hourly rate is not
reasonable. Nor does he provide any basis, apart from his own assertion of reasonableness,
for his proposed alternative rate of $300.00 per hour. The court, as an expert in attorney’s
fees, finds that $525.00 per hour is customarily charged in this locality for similar legal
services and is a reasonable rate.
IV
The court next determines the number of hours reasonably expended as a result of the
removal.
A
As the fee applicant, HMC bears the burden of “documenting the appropriate hours
expended” and should “maintain billing time records in a manner that will enable a reviewing
court to identify distinct claims.” Hensley, 461 U.S. at 437. Ideally, HMC should document
its counsel’s hours in the form of contemporaneous billing records “containing the date, the
number of hours spent (calculated to a tenth of an hour), and a short but thorough description
of the services rendered.” League of United Latin Am. Citizens No. 4552 (LULAC) v. Roscoe
Indep. Sch. Dist., 119 F.3d 1228, 1233 (5th Cir. 1997). HMC must show that its attorneys
exercised “billing judgment” by providing “documentation of the hours charged and of the
hours written off as unproductive, excessive, or redundant.” Saizan v. Delta Concrete Prods.
Co., 448 F.3d 795, 799 (5th Cir. 2006) (per curiam). Where the supporting documentation
is inadequate, the court in its discretion can reduce the award accordingly. See Abrams v.
Baylor Coll. of Med., 805 F.2d 528, 536 (5th Cir. 1986).
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B
HMC seeks fees for 18.8 hours of work performed by Notinger in December 2023 and
January 2024. Jones objects generally to HMC’s hours, maintaining that Nottinger’s billing
records, which use terms such as “review” to describe the various tasks associated with
HMC’s motion to remand, “do not provide enough information sufficient to provide this
Court the ability to determine the reasonableness of the tasks, thereby warranting a reduction
in Plaintiff’s requested hours.” D. Br. 4.
The court finds that the hours for which HMC seeks compensation are reasonable.
HMC has submitted time records with daily entries billed to the tenth of the hour. The
descriptions demonstrate that Notinger spent 37.6 hours, inter alia, reviewing the various
notices of removal, reviewing research materials related to the notice of removal, reviewing
this court’s filings and orders, drafting the motion to remand, drafting the supporting
declaration of Joseph Palladino, exchanging phone calls and emails with opposing counsel
regarding the motion to remand, drafting the response to the motion to dismiss, and preparing
the motion to stay scheduling proposal order. Although there are entries that lack sufficient
detail, HMC has exercised billing judgment and does not seek fees for the time spent by
Nottinger’s co-counsel or any paralegal, it has excluded all time spent in February and March
2024 (including the time spent preparing HMC’s motion for attorney’s fees), and it has
discounted Nottinger’s time entries of 37.6 hours to 18.8 hours to account for time
attributable to the underlying state court case. HMC has satisfied its burden to demonstrate
the reasonableness of the time for which it seeks to recover attorney’s fees. Accordingly, the
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court finds that 18.8 hours of work spent by Nottinger is reasonable. The lodestar amount
therefore equals $525.00 x 18.8 hours, which totals $9,870.00 in attorney’s fees.
V
Once the lodestar amount is determined, there is a strong presumption that it
represents a reasonable fee. See Perdue, 559 U.S. at 552; Pennsylvania v. Del. Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). The court can adjust the lodestar
upward or downward after assessing the pertinent Johnson factors,* but the party seeking the
adjustment bears the burden of establishing that an adjustment is warranted. See Kellstrom,
50 F.3d at 329 (citing U.S. Football League v. Nat’l Football League, 887 F.2d 408, 413 (2d
Cir. 1989)). Many of the Johnson factors are “presumably fully reflected in the lodestar
amount,” however, such modifications are proper only in certain “‘rare’ and ‘exceptional’
cases, supported by both ‘specific evidence’ on the record and detailed findings.” Del.
Valley Citizens’ Council, 478 U.S. at 565 (citing Blum, 465 U.S. at 898-901).
Although HMC mentions the Johnson factors in its fee application, neither party
requests an upward or downward departure from the lodestar based on the Johnson factors.
And the court declines to adjust the lodestar amount because it finds that no further
adjustments are warranted under the Johnson factors. See Johnson, 488 F.2d at 717-19.

*

Not all Johnson factors still apply. See City of Burlington v. Dague, 505 U.S. 557,
567 (1992) (suggesting Johnson factor six, whether the fee is fixed or contingent, is largely
erroneous); Shipes v. Trinity Indus., 987 F.2d 311, 323 (5th Cir. 1993) (holding that “the
contingent nature of the case cannot serve as a basis for enhancement of attorneys’ fees
awarded to prevailing plaintiffs under traditional fee-shifting provisions”).
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*

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*

Accordingly, for the reasons explained, the court grants HMC’s fee application and
awards HMC the total sum of $9,870.00. Jones must pay this award to HMC within 28 days
of the date this memorandum opinion and order is filed. If it fails to do so, HMC may
enforce this memorandum opinion and order as if it were a judgment of this court.
SO ORDERED.
June 4, 2024.

_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE

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