TECHNICAL RUBBER CO. v. BUCKEYE EGG FARM, L.P., (S.D.Ohio 2001)

ALGENON L. MARBLEY, Judge

Plaintiffs originally filed this action in the Court of Common Pleas for Licking County, Ohio. Defendants thereafter removed the matter to this Court, claiming the basis of federal question jurisdiction, pursuant to 28 U.S.C. § 1441. On June 16, 2000, this Court granted Plaintiffs' Motion To Remand, and awarded Plaintiffs attorneys' fees and costs incurred in connection with the removal and remand proceedings, pursuant to 28 U.S.C. § 1447 (c). On July 5, 2000, Plaintiffs presented Defendants with an invoice for $8,340.50 in attorneys' fees. On July 17,2000, Defendants filed a Motion For a Hearing on Attorneys' Fees. Plaintiffs filed their Memorandum in Opposition on July 25, 2000. Defendants filed their Reply on August 1, 2000. On December 15, 2000, Plaintiffs filed their unsolicited Hearing Brief Regarding Reasonableness of Attorneys' Fees and this Court held a Hearing on the reasonableness of Plaintiffs' attorneys' fees. On December 19, 2000, Plaintiffs filed their Itemization of Attorneys' Fees, as ordered by this Court. Plaintiffs' Itemization included time spent pursuing their fees after July 5, 2000, and came to a total of $11,223.89.

I. Method of Determining Reasonable Attorneys' Fees

As the Supreme Court explained in Hensley v. Eckerhart, 461 U.S. 424 (1983):

The 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.... The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.... The district court also should exclude from this initial fee calculation hours that were not "reasonably expended."

Id. (qoting S. Rep. No. 94-1011, at 6 (1976)). This "lodestar" method for calculating attorneys' fees has been explicitly adopted by the Sixth Circuit. Northicross v. Board of Educ. of Memphis City Sch., 611 F.2d 624, 642-43 (6th Cir. 1979). The Sixth Circuit has also allowed a prevailing party to collect fees generated in the pursuit of attorneys' fees which had been awarded pursuant to 42 U.S.C. § 1988. Weisenberger v. Huecker, 593 F.2d 49, 53-54 (6th Cir. 1979).

While the Court does not agree with Plaintiffs that there is no difference between an award of fees under § 1988 and one under § 1447(e), it can see no reason not to extend the holding of Weisenberger to a case, like this one, where the -ini.t.iaiitemization of fees claimed is not beyond the pale of reason and the counsel-time spent pursuing recovery of awarded fees is generated entirely in a defensive posture.

The Weisenberger Court based its allowance of attorneys' fees for counsel time spent pursing the recovery of attorneys' fees on the fundamental purpose of § 1988: "to encourage the private prosecution of civil rights suits through the transfer of costs of litigation to those who infringe upon basic civil rights." Id..

II. Fees Claimed

In the matter sub judice, three attorneys — Joel H. Mirman, Andrew W. Owen and Peter W. Hahn — have generated fees for which Plaintiffs seek recovery. The hourly rate claimed by Mr. Mirman is $207.45; that of Mr. Owen, $170.00; and that of Mr. Hahn, $121.47. Defendants concede that these are reasonable hourly rates for the respective attorneys, and this Court agrees. Defendants challenge, however, the reasonableness of the number of hours expended on certain tasks.

On their Motion for Remand, Plaintiffs claim: Mirman and Hahn each spent 0.5 hours to "Review removal documents"; Mirman spent 0.6 hours and Hahn 48.3 hours to "Research law; draft motion"; and Mirman spent 0.7 hours and Hahn 15.5 hours to "Draft Reply Brief." With respect to Defendants' Motion for Hearing, Plaintiffs claim Hahn spent 1.5 hours to "Draft Memorandum Contra Motion for Hearing." Regarding this Court's Hearing on attorneys' fees, Plaintiffs claim: Hahn spent 3.5 hours to "Draft Hearing Brief'; Owen spent 0.7 hours and Hahn 1.1 hours to "Draft affidavits"; Mirman spent 0.6 hours, Owen 3.5 hours and Hahn 2.8 hours in "Preparation for Hearing (including phone calls to counsel and expert)"; and Owen and Hahn each spent 2.3 hours in "Attendance at Hearing." Plaintiffs also claim 2.0 hours at $225.00 per hour spent on their "lodestar" expert witness, Michael L. Close.

III. Analysis

For the sake of simplicity, the Court will discuss in this section only those items which it finds unreasonable in their entirety or on which it finds an unreasonable number of hours were spent. Items from the list above not discussed, the Court finds reasonable in their entirety.

The Court finds Hahn's 48.3 hours spent researching and drafting Plaintiffs' Motion for Remand to be excessive. Though Defendants preemption arguments in favor of the propriety of their removal were creative, they were easily refuted by Supreme Court and Sixth Circuit case law. The remainder of the remand issue was elementary. This Court finds that a reasonable attorney of Hahn's experience and billing rate would have spent no more than 30 hours on the Motion. The Court likewise finds tile 155 hours Hahn spent on Plaintiffs' Reply Brief to be unreasonable, and that 10 hours spent on such would fill the limits of reasonableness.

The Court finds Plaintiffs' Memorandum Contra Defendants' Motion for Hearing to be inappropriate in its entirety. The argument in opposition to a hearing presented in the motion was that Defendants had not moved for a hearing within 10 days of this Court's Order granting Plaintiffs' costs and attorneys' fees, as was required by the Order. Defendants' delay, however, was obviously triggered by Plaintiffs' failure to comply with the Order of this Court to "forthwith provide to Defendants an itemization of costs, including attorneys' fees, incurred in connection with the removal and remand of this action." As the only ground advanced in opposition to the Hearing was near-frivolous in character, this Court finds the entire Memorandum Contra to have been unnecessary.

In a similar vein, Plaintiffs' Hearing Brief was borderline frivolous. While not holding that such a brief would never be appropriate, this Court finds that the brief which Plaintiffs claim was designed to aid the Court at the Hearing was of marginal benefit because it is filed, on a morning when the Court had n criminal calendar preceding the attorneys' fees Hearing, a mere 56 minutes before the Hearing was scheduled to commence. Had Plaintiffs intended the brief truly to be of benefit, they should have filed it at a reasonable time which would have allowed the Court to review and study the arguments and authorities set forth in the brief. Fifty-six minutes in advance of the scheduled hearing is not such a reasonable time.

As to Plaintiffs' preparation for the Hearing and attendance at the Hearing, this Court finds all 5.1 hours billed by Hahn to be unreasonable. Oral argument was handled by Owen, and the Court can only presume that Hahn's involvement was for professional development purposes. While the training of junior associates is certainly commendable, the benefit of such inures to the firm not to the client, and so is properly chargeable to the firm rather than the client.., or, as here, the adversary. See Hensley, 461 U.S. at 434 (noting that "[h]ours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.") (quoting Copeland v. Marshall, 641 F.2d 880, 891 (1980)).

In sum, the Court finds rcasonable: 2.4 hours at Mirman's hourly rate of $207.45, totaling $497.88; 6.5 hours at Owen's hourly rate of $170.00, totaling $1, 105.00; 41.6 hours at Hahn's hourly rate of $121.47, totaling $5,053.15; and Close's expert witness fee of $450.00.

IV. Conclusion

The Court therefore ORDERS Defendants to remit to Plaintiffs $7,106.03, within 30 days of the date of this Order.

IT IS SO ORDERED.