County of Dimmit, Texas v. Helmerich & Payne International Drilling Co. et al
Filing
60
MEMORANDUM OPINION AND ORDER. Signed by Judge Royce C. Lamberth. (aej)
FILED
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
FE& 2 7
CLERK,
COUNTY OF DIMMIT,
U.S.
2018
DISTRICT
RK
§
puTy
§
PLAINTIFF,
§
§
v.
Civil No. SA-16-CV-01049-RCL
§
§
HELMERICH & PAYNE INTERNATIONAL
DRILLING Co.; ET AL.,
§
§
§
DEFENDANTS.
§
Memorandum Opinion:
Granting in Part and Denying in Part Plaintiff's Application for Attorney's Fees
The
plaintiffCounty of Dimmit, Texas ("Dimmit")applies for an award of
attorney's fees and expenses in this remand action pursuant to 28 U.S.C. Section 1447(c). The
defendantHelmerich
&
Payne
International Drilling
Co.
("H&P")challenges the
reasonableness and necessity of the fees requested, the plaintiff's billing judgment, the clarity of
the plaintiffs evidence, and the inclusion of work not related to the defendant's improper removal.
The Court finds that Dimmit is entitled to recover $34,007.38.
I.
Background
Pursuant to the Court's August 25, 2017, decision remanding this case to state court,
Dimmit is entitled to attorney's fees and costs incurred as a result of the removal.
See
28 U.S.C.
Section 1447(c) (providing that the non-movant may recover "just costs and any actual expenses,
including attorney fees" that result from the improper removal).
The Lodestar method is used to calculate attorney's fees. Using this method, the Court
multiplies the number of hours reasonably spent on the improper removal by hourly rates
consistent with what is typical and justified in the local market for work of the type performed by
attorneys of similar caliber and experience. League of United Latin Am. Citizens #4552 v. Roscoe
Indep. Sch. Dist., 119 F.3d 1228, 1232 (5th Cir. 1997). In considering the reasonableness of the
rate and hours proposed, the Court will consider the factors articulated in Johnson
v.
Georgia
Highway Express, Inc., 488 F.2d 714, 7 17-19 (5th Cir. 1974). These fees are not to include "fees
and costs incurred in federal court that would not have been incurred had the case remained in
state court." Avitts v. Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir. 1997). They also shall not include
fees for hours that are "excessive, redundant, or otherwise unnecessary." EEOC
v.
Clear Lake
Dodge, 60 F.3d 1146, 1154 (5th Cir. 1995). Duplicative time entries shall be eliminated. League
of United Latin Am. Citizens #4552, 199 F.3d at 1232 (5th Cir. 1997). The burden of proving the
reasonableness of the hours falls on the fee applicant. Leroy
v.
Houston, 831 F.2d 576, 586 (5th
Cir. 1987).
II.
Analysis
Dimmit applies for attorney's fees of $46,990.85; $559.77 in costs and expenses; and
an additional $1,000 in attorney's fees for their reply to H&P's response ($48,550.62 total).
Dimmit claims it has removed any fees and costs that would have been incurred in state court had
H&P's improper removal not occurred, and that the amounts requested reflect reasonable hourly
rates and a reasonable number of hours expended given the amount of time this case was in federal
H&P characterizes Dimmit's requested fees as "grossly excessive" and lacking billing
judgment, and describes Dimmit's documentation as repetitive, vague, inconsistent, and inclusive
of tasks the Court cannot properly include in an attorney's fees award. FI&P, while not contesting
the reasonableness of Dimmit' s hourly rates generally, also criticizes the billing of what H&P
claims are clerical tasks at an attorney's rate. The Court will first analyze the lack of billing
2
judgment, duplication of effort, and excessive hours claims; secondly, the claims of ambiguity and
inconsistencies; thirdly, the billing rates for clerical tasks; and lastly, the inclusion of improper
tasks and fees.
Additionally, non-movant defendants to this suit have filed a response to Dimmit's
application for attorney's fees. In their response, the non-movant defendants argue that H&P, as
the defendant who provided the impetus for removal and who performed most of the work related
to the removal, should be required to pay all the attorney's fees assessed against the defendants.
Dimmit also acknowledges this dispute, but indicates that it does not care which defendant pays
its attorney's fees so long as the fees are paid. Because H&P neither responds to nor contests the
non-movant defendants' argument that H&P should be solely liable for the payment of Dimmit's
attorney's fees, the Court will accept the non-movant's argument. Therefore, H&P will be solely
liable to pay Dimmit's attorney's fees.
A.
Billing Judgment, Duplication of Effort, and Excessive Hours.
H&P claims that Dimmit failed to present evidence of exercising billing judgment.
Parties seeking attorney's fees must "[prove} that they exercised billing judgment." Walker
v.
United States HUD, 99 F.3D 761, 769 (5th Cir. 1996). Dimmit claims to have removed any fees
and costs that would have been incurred in state court had the improper removal not occurred.
However, such expenses could not be recovered regardless, and thus writing these fees off does
not evidence billing judgment. Walker, 99 F.3d at 769-70. Nowhere in the pleadings does Dimmit
present evidence of writing off "unproductive, excessive, or redundant hours," and this lack of
evidence is sufficient to establish a lack of billing judgment. Id.
H&P points out several examples of redundant or excessive billing in its objection and
criticizes the requested hours as excessive. A review of Diminit's reported hours shows that the
criticisms of some of these line items have merit, while others do not. A percentage reduction in
the award is the appropriate remedy when a plaintiff fails to write off "unproductive, excessive, or
redundant hours," and thus fails to show evidence of billing judgment. Id. H&P requests 15%, as
the Fifth Circuit has previously determined it may be an appropriate amount. Id. at 770. In order
to compensate for the lack of billing judgment exercised by Dimmit, as well as some evidence of
duplicative and excessive hours in Dimmit's records, the Court agrees that a 15% reduction is
appropriate. This reduction will be taken off the total amount awarded after the lodestar is
calculated.
Lastly, Dimmit claims $1,000 for preparing a reply to H&P's response. Dimmit
provided no billing evidence and the work produced was not complex enough to warrant such an
award. As such, the Court denies this claim.
B.
Ambiguity and Inconsistencies
H&P claims that the Plaintiffs evidence is "vague and filled with inconsistencies," as
well as "block billing" that could potentially impede the Court's ability to determine if the time
billed was reasonable. H&P requests a further 10% trimming of the fees due to the block billing.
However, the case law cited by H&P, Leroy v. Houston, 906 F.2d 1068 (5th Cir. 1990),
is distinguishable. In Leroy, the billing records at hand were "very brief," consisted of initials such
as "TC GK," were as simple as
"Work on Brief' and 'Continue work on brief and 'Review for
Oral Argument," and "showed only one undivided total amount of time on any one date." Id. at
1079-80. Dimmit's records are not nearly as bad. While Dimmit did do some block billing, it was
not frequent enough to impede the Court from determining if the hours accrued were reasonable.
See Fralick
v.
Plumbers & PipejItters Nat'! Pension Fund, No. 3:09-CV-0752-D, 2011 WL
487754, at *5 (N.D. Tex. Feb 11, 2011) (explaining that while the practice of block billing should
4
be discouraged, it is up to the court's discretion to determine if the practice impedes its ability to
assess the reasonableness of the hours presented). Further, the Court believes that the effects of
any block billing or other vague billing practices were already mitigated through the Court's earlier
15% reduction.
C.
Inclusion of Improper Tasks and Fees
H&P disputes Dimmit' s request for $4,469. 17 for drafting and filing a Second
Amended Complaint, as these arguments would have to be addressed at some point in the litigation
and thus would have been incurred in state court despite the removal. See
W.
Healthcare, LLC v.
Nat'l Fire & Marine Ins. Co., No. 3:16-cv-565-L, 2016 WL 7735761, at *6 (N.D. Tex. Dec. 28,
2016), report and recommendation adopted, No. 3:16-C V-565-L, 2017 WL 118864 (N.D. Tex.
Jan. 12, 2017). The Court agrees, and will strike this amount from the award.
H&P identifies an additional $4,706.25 worth of tasks for which Dimmit seeks
compensation but that H&P argues were not related to the removal. Dimmit contends these entries
are reasonable and that H&P omits the entries' context, context that makes clear the entries'
relatedness and reasonableness. Having reviewed the specific entries to which H&P refers, the
Court concludes that several are not related to H&P's improper removal. The Court strikes $595
in fees related to attending a County Commissioner Court's meeting, as it fails to see how these
tasks relate to the improper removal. Pl.'s Ex. A, at 4, ECF No. 54-3. Further, the Court fails to
see how $100 in fees for work on the case's timeline and "issues related to discovery matter" (Pl.'s
Ex. A, at 10, ECF No. 54-3), as well as $605 in fees for drafting a motion for a status conference
that seems never to have been filed (P1.' s Ex. A, at 14, ECF No. 54-3), are sufficiently related to
the removal. So the Court will strike those fee requests as well. Thus, the Court will strike a total
of $1,300 from Dimmit' s fees as insufficiently related to removal.
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Dimmit also claims $559.77 in additional costs incurred because of the improper
removal, which account for tasks such as research, scanning, photocopying documents, and filing
motions in state court. The evidence presented by Dimmit is not detailed enough to determine that
these fees were incurred due to H&P's improper removal. As such, this amount shall be stricken
from the award.
D.
Billing Rates for Clerical Tasks
"Purely clerical or secretarial tasks," whether performed by an attorney or a paralegal, are
not recoverable at an attorney or paralegal rate. Missouri
v.
Jenkins by Agyei, 491 U.s. 274, 288
n. 10, 109 S. Ct. 2463, 2472 (1989). Work completed by a paralegal may only be recovered if it is
similar to the work typically completed by attorneys; "otherwise, it is an unrecoverable overhead
cost."Allen v. US. Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982).
H&P argues that Mr. Hughes and Mr. Ramos improperly billed several tasks at an
attorney's rate. However, the line items claimed by H&P are not clerical, but managerial in nature.
While such items likely do not command a $275 hourly rate, such lack of discretion has been
accounted for in the 15% deduction for a lack of billing judgment.
H&P claims Dimmit reported 10.5 hours for compiling fees for their fee application. While
"[flee applications do not typically involve novel or complex legal issues and the fees claimed for
preparing them will be reduced if excessive," Dimmit is also "entitled to an award of reasonable
attorneys' fees in connection with the time spent to prepare the fee application." Prater
v.
Commerce Equities Mgmt. Co., No. CIV.A H-07-2349, 2008 WL 5140045, at *7 (S.D. Tex. Dec
8,2008). The billing evidence shows these 10.5 hours are not solely for compiling fees, but include
legal work related to the drafting of the fee application itself. However, the Court agrees with H&P
6
that some clerical tasks are included in those hours, and will subsequently deduct 20% (2.1 hours,
or $577.50) from these 10.5 attorney-rate hours to reflect the improper inclusion of these tasks.
H&P also claims that a paralegal rate was applied to work that was strictly clerical in
nature, and thus not recoverable. Allen, 665 F.2d at 697. Specifically, Dimmit claims a $125 hourly
rate for tasks such as preparing and sending tasks such as "correspondence to clerk," sending
"inter-office email," and "scanning and labeling affidavits," among others. The Court agrees these
fees are not recoverable, and will deduct 5.1 hours (or $637.50) from the paralegal hours. In total,
then, the Court will deduct $1215 from Dimmit' s fee request as representing impermissible billing
for clerical tasks.
E.
Additional Considerations
The Court recognizes that $34,007.38 is an unusually large award for an improper removal.
However, H&P's vigorous contentions in this case drove up Dimmit's litigation costs. This
included a baseless argument by H&P, which this Court rejected, that Dimmit had acted in bad
faith. I-1&P's removal also forced Dimmit to analyze the diversity of 29 separate defendants, which
required a significant amount of time researching the numerous defendants' corporate structures
and business practices. Given these circumstances, the amount awarded is reasonable.
III.
Conclusion
The Court awards to Dimmit County attorney's fees and costs in the amount of
$34,007.38. This total represents the following deductions from Dimmit County's initial fee
request of $48,552.62:
A $1,000 deduction for failing to provide billing evidence regarding the time
spent preparing a reply to H&P's response.
A $4,469.17 deduction for including fees related to preparing a second amended
complaint that would have been filed in state court anyway.
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A $1,300 deduction for the inclusion of tasks insufficiently related to removal
(or at least without sufficient explanation of how those tasks were related to
removal).
A $559.77 deduction for the inclusion of costs without sufficient explanation of
how those costs were related to the removal proceedings.
A $1,215 deduction for improperly billing for clerical tasks.
A 15% deduction from the remaining fees (which amount to $40,008.68) to
account for lack of billing judgment.
The Court will order H&P to pay this $34,007.38 to plaintiff County of Dimmit.
SIGNED this
'ZPfrk day
of February, 2018.
UNITED STATES DISTRICT JUDGE
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