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Hyatt v. Johns

United States District Court, D. Maryland, Southern Division

July 10, 2017

ALAN J. HYATT, et al., Plaintiffs,
KOSMAS N. JOHNS, et al., Defendants.


          George J. Hazel United States District Judge

         Presently pending before the Court is Jonathan M. Wall, Robert D. Miller and Alan J. Hyatt's (together, "Plaintiffs") request for attorneys' fees and expenses, arising out of their successful Motion to Remand. ECF No. 13. No hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the following reasons, Plaintiffs' Motion for Attorneys' Fees and Expenses is granted.

          I. BACKGROUND

          On April 16. 2014, the above-captioned matter was commenced in the Circuit Court for Montgomery County, Maryland by the filing of an Order to Docket in the foreclosure of a deed of trust granted by Defendants Kosmas Johns and Aphrodite Johns (collectively, "Defendants") and secured by real property located in Montgomery County (hereinafter, "the Foreclosure Matter"). ECF No. 6-1. On August 18, 2016, Defendants removed the Foreclosure Matter to this Court. ECF No. 1. On August 22, 2016. Plaintiffs filed a Motion to Remand the case back to the Circuit Court for Montgomery County, arguing that removal based on diversity jurisdiction was barred by the forum-defendant rule and no federal cause of action was present on the face of the complaint. ECF No. 3. Included in their Motion was a request for costs, expenses and reasonable attorneys" fees incurred while litigating the removal. Id. ¶ 14. On August 26, 2016, Defendants submitted a Response in Opposition to Plaintiffs" Motion for Remand, ECF No. 7, and on August 31, 2016, Plaintiffs filed a Reply, ECF No. 8. Shortly thereafter Defendants submitted a further Supplement in support of their opposition. ECF No. 9.

         In a Memorandum Opinion issued on October 14, 2016, the Court granted Plaintiffs* Motion to Remand, holding that Defendants had failed to demonstrate that removal was proper under either the Court's federal question or diversity jurisdiction. ECF No. 10. Because Defendants "lacked an objectively reasonable basis for seeking removal, "" id. at 5. the Court held that an award of attorneys" fees was appropriate, since it would support the goal of "deter[ing] removals sought for the purpose of prolonging litigation and imposing costs on the opposing party.'* Id. at 6 (quoting Martin v. Franklin Capital Corp.. 546 U.S. 132. 140 (2005)).[1] However, because Plaintiffs did not sufficiently document their request for attorneys" fees, the Court granted leave for Plaintiffs to file a more detailed affidavit in support of their requests. Id.

         On November 1, 2016, Plaintiffs filed a supplemental briefing requesting $19, 003.66 in attorneys" fees and expenses arising from their litigation of the removal action. ECF No. 13.[2] Although Defendants were served with a copy of Plaintiffs* motion, the Court has not received a response to Plaintiffs* fee petition.


         When a court grants an order to remand, it may also "require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). Having already held that attorneys' fees are warranted because Defendants lacked an objectively reasonable basis for seeking removal, the Court is left to determine whether the amount Plaintiffs request is reasonable, keeping in mind "fain award under § 1447(c) is remedial, not punitive, and is designed to compensate the plaintiff when, in the court's discretion, justice so requires." McPhatter v. Sweitzer, 401 F.Supp.2d 468. 479-80 (M.D. N.C. 2005) (citations omitted).

         The most useful starting point for establishing the proper amount of an award is the "lodestar." or "the number of hours reasonably expended, multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174 (4th Cir. 1994). The court must adjust the number of hours to delete duplicative or unrelated hours, and the number of hours must be reasonable and represent the product of "billing judgment." Caperton, 31 F.3d. at 175 (citing Hensley, 461 U.S. at 437). In assessing the overall reasonableness of the lodestar, the court may also consider the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714. 717-19 (5th Cir. 1974) ('"the Johnson factors"), specifically:

(1) The time and labor required; (2) The novelty and difficulty of the questions raised; (3) The skill requisite to perform the legal services properly; (4) The preclusion of employment by the attorney due to acceptance of the case; (5) The customary fee; (6) Whether the fee is fixed or contingent; (7) Time limitations imposed by the client or the circumstances; (8) The amount involved and the results obtained; (9) The experience, reputation, and ability of the attorneys; (10) The undesirability of the case; (11) The nature and length of the professional relationship between the attorney and the client; and (12) Attorney's fee awards in similar cases.

See Caperton, 31 F.3d at 175. These factors, however, "usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate [, i.e., the lodestar]." Randle v. H&P Capital. Inc., 513 F.App'x 282. 283-84 (4th Cir. 2013) (quoting Hensley. 461 U.S. at 434 n. 9) (alteration in original). Furthermore, "'[i]n considering the Johnson/Barber factors, the court is to consider all twelve factors, but need not robotically list each factor or comment on those factors that do not apply." Dodeka, LLC v. AmrolDavis, No. 7:10-CV-17-D. 2010 WL 3239117. at *2 (E.D. N.C. Aug. 16. 2010).

         A. Reasonable Rate

         In determining whether counsel's hourly rates are reasonable, the Court must consider whether "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, 890 n.11 (1984). "[Determination of the hourly rate will generally be the critical inquiry in setting the reasonable fee, and the burden rests with the fee applicant to establish the reasonableness of a requested rate." Plyler v. Evatt,902 F.2d 273, 277 (4th Cir. 1990) (citation omitted). As part of its inquiry, the Court may rely on "affidavits from other attorneys attesting to the reasonableness of the hourly rates." and also the Court's "knowledge of the market." Beyond Sys.. Inc. v. World Ave. USA. LLC, No. PJM-08-921. 2011 WL 3419565 at *3 (D. Md. Aug. 11, 2011). In this District, the Court's "market ...

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