Gabe v. Dolgencorp, LLC

Filing 40

MEMORANDUM OPINION AND ORDER: Granting Plaintiff Melinda K. Gabe's 32 MOTION for Attorneys' Fees and Applicable Costs with Calculation, and awarding Plaintiff $6,164.00 in fees. Signed by Judge Irene C. Berger on 11/14/2018. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

MELINDA K. GABE,
Plaintiff,
v.

CIVIL ACTION NO. 5:17-cv-04380

DOLGENCORP, LLC, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed Plaintiff, Melinda K. Gabe’s Motion for Attorneys’ Fee and
Applicable Costs with Calculation (Document 32), the Memorandum of Law in Support of
Plaintiff’s Motion for Attorneys’ Fees and Applicable Costs (Document 33), the Defendants’
Response in Opposition to Plaintiff, Melinda K. Gabe’s Motion for Attorneys’ Fee and Applicable
Costs with Calculation (Document 37), and the Plaintiff’s Reply in Support of Calculation of
Attorneys’ Fees and Costs (Document 38), as well as all attached exhibits.
FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiff filed suit against the Defendants in state court, alleging that she was injured
by a bottle of fingernail polish remover produced, distributed, and sold by the Defendants. She
alleges product liability, violation of the West Virginia Consumer Credit and Protection Act,
intentional infliction of emotional distress, unfair and deceptive acts and practices, unjust
enrichment, and negligent infliction of emotional distress. The Defendants removed this case to
federal court on November 17, 2017, asserting diversity jurisdiction. On December 8, 2017, the

Plaintiff filed a motion to remand, challenging the lack of a factual basis to support the Defendants’
allegation that the amount in controversy would meet or exceed $75,000.
The Court granted the Plaintiff’s motion to remand in a Memorandum Opinion and Order
(Document 29) entered on September 4, 2018, finding no non-speculative evidence to support an
amount in controversy approaching the jurisdictional threshold. The Court further concluded that
the Defendants did not have an objectively reasonable basis for removal and found that an award
of costs and fees related to the improper removal was appropriate. The Court directed the Plaintiff
to file a motion calculating the applicable costs and fees. The Plaintiff filed her motion on
September 14, 2018. It is fully briefed and ripe for review.
APPLICABLE LAW
When considering motions for attorneys’ fees available by statute, the Supreme Court has
instructed that “[t]he most useful starting point for determining the amount of a reasonable fee is
the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A district court’s assessment of the requested
award should exclude consideration of hours which were spent excessively, redundantly, or
unnecessarily.

Id. at 434.

This starting calculation is referred to as the lodestar amount.

Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008). To determine the reasonable
hourly rate, “the fee applicant must produce satisfactory specific evidence of the prevailing market
rates in the relevant community for the type of work for which he seeks an award.” Plyler v.
Evatt, 902 F.2d 273, 277 (4th Cir. 1990).
The Fourth Circuit Court of Appeals has provided further guidance on the calculation of
reasonable attorneys’ fees and established twelve factors that a district court should consider when
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calculating reasonable attorneys’ fees. These factors are known as the Johnson factors and are as
follows:
(1) the time and labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4) the
attorney's opportunity costs in pressing the instant litigation; (5) the customary fee
for like work; (6) the attorney's expectations at the outset of the litigation; (7) the
time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation and ability of
the attorney; (10) the undesirability of the case within the legal community in which
the suit arose; (11) the nature and length of the professional relationship between
attorney and client; and (12) attorneys' fees awards in similar cases.
Grissom, 549 F.3d at 321 (recounting the Fourth Circuit’s summary of the factors set forth in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974)).

Upon

completion of this lodestar calculation, a “court then should subtract fees for hours spent on
unsuccessful claims unrelated to successful ones.” Grissom, 549 F.3d at 321 (quoting Johnson v.
City of Aiken, 278 F.3d 333, 337 (4th Cir.2002)). “Once the court has subtracted the fees incurred
for unsuccessful, unrelated claims, it then awards some percentage of the remaining amount,
depending on the degree of success enjoyed by the plaintiff.” Johnson, 278 F.3d at 337.
DISCUSSION
The Plaintiff requests a lodestar amount of $7,747.50 and argues that an upward adjustment
is appropriate due to the Defendants’ baseless removal and refusal to agree to remand after
receiving discovery showing that the amount in controversy would not meet the jurisdictional
threshold. The lodestar request reflects an hourly rate of $425 for attorney Troy Giatras and an
hourly rate of $300 for attorney Matthew Stonestreet, as well as costs of $570.00 for Westlaw
research. Mr. Giatras submitted documentation for 5.1 hours, and Mr. Stonestreet documented
18.6 hours of work related to the jurisdictional issue, excluding time devoted to the fee request.
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The Plaintiff indicates that Mr. Stonestreet spent an additional 5.5 hours preparing the fee
memorandum and exhibits, and Mr. Giatras spent 2.5 hours, which would total $2712.50 if the
Court grants fees for that work. The Plaintiff does not seek fees for work performed by paralegals
and administrative staff. She submitted affidavits from Mr. Giatras and Mr. Stonestreet, as well
as other attorneys, to support the position that their rates are reasonable, given their experience and
skill, and that they expended a reasonable amount of time. The Plaintiff argues that the Johnson
factors support their fee request, given the time expended needlessly due to the improper removal,
the attorneys’ skill, the opportunity cost of time unavailable to spend on other matters, the
customary fee, the contingency basis of representation, the unnecessary delay in the litigation, the
success of the remand motion, the attorneys’ experience and reputation, the undesirability of the
case, and the awards granted in similar cases.
The Defendants argue that the Plaintiff is not entitled to fees because the Plaintiff’s
amended complaint alleged seven causes of action, “significant injury and damages” and “severe
emotional distress,” and sought multiple specific types of damages.

(Def.’ Resp. at 2.)

Therefore, the Defendants argue, it was a “reasonable and good faith interpretation” to believe the
amount in controversy exceeded the jurisdictional threshold. 1 (Id. at 3.) The Defendants further
assert that the requested hourly rates exceed the prevailing market rate and that the time entries are
inaccurate and unsubstantiated. They argue that cases cited by the Plaintiff involving similar
attorney rates involve more complex issues than removal and remand and suggest that the attorneys

1 The Court addressed the question of whether to award fees in the opinion granting the motion to remand and will
not re-open that issue. As the Court has yet to review a complaint wherein a plaintiff alleges minor injuries, fully
healed physical injury, or brief, mild emotional distress, the Court would simply urge Defense counsel to refrain from
relying on boilerplate language alleging severe injuries, rather than specific factual allegations, to form the basis of an
amount in controversy analysis.

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who provided supportive affidavits are motivated, as members of the state plaintiffs’ bar, to inflate
the fees in fee-shifting cases. The Defendants submit an affidavit from a Charleston attorney
asserting that a rate under $250 per hour is reasonable. The Defendants request hourly rates of
$185 and $170, reflecting the rates charged by Defense counsel in this matter.
The Defendants specifically challenge an entry by Mr. Giatras for 0.1 hour spent reviewing
“Dolgencorp Doc # 6,” as Document 6 on CM/ECF is a change of attorney information form
unrelated to removal and remand. They further challenge two entries by Mr. Stonestreet for
communications with counsel, because the Defendants’ counsel’s records do not include
corresponding entries reflecting communications with Mr. Stonestreet. Those entries total 0.80
hours. The Defendants urge a general downward adjustment to the fee request based on the
Johnson factors. Finally, they argue that no fees related to the fee petition itself should be
included in any fee award.
In reply, the Plaintiff notes that the Defendants assumed a $300 hourly rate for the
Plaintiff’s counsel in arguing that attorney fees would bring the amount in controversy above the
jurisdictional threshold, yet now argue for an hourly rate under $200. The Plaintiff argues that
the requested rates are reasonable and challenges the credibility of the attorney who submitted an
affidavit in support of the Defendants’ requested reduced rate. She further contends that the
specific time entries challenged by the Defendants are accurate and any inconsistency could be the
result of a problem with the Defendants’ counsels’ time-keeping, communications with support
staff, or time spent composing an email that was sent later. Therefore, she reiterates that she
should receive her full fee request.

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The Court finds that the requested hourly rates are reasonable for attorneys of Mr. Giatras
and Mr. Stonestreet’s skill, experience, and reputation. They submitted supportive affidavits from
other attorneys handling similar types of litigation within this market, and their requested rates are
in line with hourly rates approved by this Court in recent cases. See, e.g., Jarrell v. Charleston
Area Med. Ctr., Inc., No. 2:17-CV-01371, 2018 WL 4560206, at *3 (S.D.W. Va. Sept. 21, 2018)
(Johnston, C.J.) (awarding fees of $350/hr in a Fair Labor Standards Act settlement); Daugherty
v. Ocwen Loan Servicing, LLC, No. 5:14-CV-24506, 2016 WL 6680033, at *2 (S.D.W. Va. Oct.
12, 2016) (Berger, J.) (awarding rates of $300 and $400 per hour in a consumer protection case
following a jury trial); Johnson v. Ford Motor Co., No. 3:13-CV-06529, 2018 WL 1440833, at *5
(S.D.W. Va. Mar. 22, 2018) (Eifert, M.J.) (providing a review of recent fee awards in this district
and concluding that prevailing rates for attorneys range from $150 to $550). Although the remand
issue in this case was limited to evaluation of the amount in controversy, hardly a specialized or
complex area of law, the Plaintiff reasonably chose her representation based on the nature and
complexity of her underlying suit. Products liability and consumer protection are somewhat more
specialized areas of the law, and the Court finds that the requested fees are within a reasonable
range for attorneys with experience in those areas.
However, the Court finds that the hours recorded by the Plaintiff’s attorneys are excessive
in relation to the issues presented in the remand petition. As an initial matter, the Court finds that
the time spent preparing the fee request may appropriately be included in a fee award. It is time
that the attorneys would have been able to devote to other cases absent the Defendants’ improper
removal. This Court recently awarded fees related to the preparation of a petition for fees in a
remand case. See, Harms v. Ditech Fin. LLC, No. 5:17-CV-03981, 2018 WL 3945616, at *3
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(S.D.W. Va. Aug. 16, 2018) (Berger, J.). Because the Plaintiff’s counsel did not include detailed
records of the time devoted to preparation of the fee request in an affidavit, however, the Court
will not include those hours in determining a lodestar figure.
The jurisdictional dispute centered only on the amount in controversy. The legal standards
are long-established and well-defined, limiting the time and labor that may reasonably be expended
litigating the issue. Attorneys with the experience level of Mr. Giatras and Mr. Stonestreet have
surely addressed these issues previously.

The Plaintiff was successful with respect to the

jurisdictional question. Both the attorneys and the Plaintiff herself suffered unnecessary delays
in the process of the litigation, drawing resources away from other, potentially remunerative work.
The fee request (with the exception of the hours spent on the fee motion itself) meets the minimum
requirements of “provid[ing] dates work was performed, a reasonable, specific description of the
work, and time expended on the work.” Meadows v. AM & GH LLC, No. 2:15-CV-13370, 2018
WL 3876587, at *4 (S.D.W. Va. Aug. 15, 2018) (Johnston, C.J.) (quoting from Central Cab Co.,
Inc. v. Cline, 972 F. Supp. 370, 374 (S.D. W. Va. 1997)) (internal punctuation omitted). The
Supreme Court has advised that “[c]ounsel for the prevailing party should make a good faith effort
to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just
as a lawyer in private practice ethically is obligated to exclude such hours from his fee
submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). When a prevailing party seeks
fees, it “should exercise ‘billing judgment’ with respect to hours worked.” Id. at 437.
After careful review of the attorney time sheets, the Court finds that the 0.10 hours claimed
by Mr. Giatras for “Receipt and review of Dolgencorp Doc # 6” should be excluded, as Document
6 does not appear to be related to the jurisdictional dispute. With respect to the challenged fees
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for attorney communication uncorroborated in the Defendants’ counsel’s records, the Court finds
that the time should be considered, as it is not clear that there is a true inconsistency, given that
Mr. Stonestreet could have spent the time drafting communications or communicating with
individuals who do not record billable hours. To the extent there is inconsistency, the Court does
not find that inconsistency sufficient to discount Plaintiff’s counsel’s clear records.
However, the Court further finds that the time expended by both Mr. Stonestreet and Mr.
Giatras on researching and drafting the briefing is excessive. For example, Mr. Stonestreet spent
a total of 8.8 hours on research related to jurisdiction and the standard for a fee request, in the
course of drafting both the initial motion to remand and the reply brief. The Court finds 8.8 hours
to be a greater amount of time than reasonable given the lack of complexity of the legal issues.
The drafting time appears similarly excessive. Because the excess is distributed throughout the
billing, rather than relating to specific excessive entries, the Court finds that a percentage reduction
is appropriate. In addition, it is the Court’s preference not to delve into the division of labor
between Mr. Stonestreet and Mr. Giatras. Therefore, the Court will simply apply a 20% general
reduction to the hours sought by both attorneys. That results in 4 hours for Mr. Giatras, for a
lodestar figure of $1,700.00, and 14.88 hours for Mr. Stonestreet, for a lodestar figure of $4,464.00.
The total lodestar fee calculation is $6,164.00. After application of the 20% reduction, the Court
finds that the hours included in the fee award comport with both the Court’s expectations based on
the legal issues presented, and the Court’s experience with similar fee requests. The Plaintiff
additionally requests costs of $570 for Westlaw research, but presented only a firm-generated
balance sheet without further explanation as to the calculation of those charges. Accordingly, the

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Court excludes the request for costs, finding that it is not adequately supported by evidence in the
record.
Finally, the Court does not find that either an upward or downward adjustment to the
lodestar calculation is warranted. The Plaintiff argues for an upward adjustment based on the
Defendants’ litigation decisions that unnecessarily prolonged the jurisdictional dispute. As the
Court previously concluded, the removal lacked an objectively reasonable basis—but that is a
minimum requirement for imposing costs and fees, rather than a justification for an upward
adjustment. The record does not support a conclusion that the Defendants caused additional delay
or vexatiously increased the litigation beyond that necessarily caused by an improvident removal.
The Plaintiff, meanwhile, achieved full success on the motion to remand at issue, and should
receive compensation for the reasonable costs and fees expended in order to respond to the
removal. Therefore, the Court will award fees of $6,164.00.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that
Plaintiff, Melinda K. Gabe’s Motion for Attorneys’ Fee and Applicable Costs with Calculation
(Document 32) be GRANTED and the Plaintiff be awarded $6,164.00 in fees.
The Court DIRECTS the Clerk to send a certified copy of this Order to counsel of record
and to any unrepresented party.
ENTER:

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November 14, 2018