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Konipolas v. TXS United Housing Program Inc.

United States District Court, N.D. Texas, Dallas Division

May 3, 2017

DON H. KONIPOLAS, as Trustee of Wolverine Mortgage Partner Retirement, ET AL., Plaintiffs,


          A. JOE FISH Senior United States District Judge

         Before the court is the plaintiffs' motion for attorney's fees and costs (docket entry 15). For the reasons stated below, the plaintiffs' motion is granted in part and denied in part. The plaintiffs are entitled to recover $12, 576.55 in attorney's fees and costs.

         I. BACKGROUND

         The plaintiffs commenced these forcible detainer actions in a Texas state court to recover possession of properties located on Treetop Lane (“Treetop Property”) and Mexicana Road (“Mexicana Property”) in Dallas, Texas. Plaintiffs' Motion for Attorney's Fees (“Motion”) (docket entry 15). The defendant subsequently removed the actions to this court. First Notice of Removal (docket entry 1); Second Notice of Removal (docket entry 5). This court remanded the actions to the state court on February 23, 2017. Memorandum Opinion and Order Remanding Case to State Court (docket entry 14). Pursuant to the court's memorandum opinion and order, the plaintiffs are entitled to attorney's fees and costs incurred as a result of the defendant's removal. Id. at 6 (“[P]laintiffs are entitled to recover from TXS all just costs and any actual expenses, including attorney's fees, incurred by the plaintiffs as a result of the removal of this action.”) (citing 28 U.S.C. § 1447(c)).

         Consequently, the plaintiffs timely filed the instant motion under Fed.R.Civ.P. 54(d)(2). See Motion at 2. The plaintiffs seek attorney's fees and actual expenses in the amount of $17, 544.65. Id. Their motion includes a declaration from the attorney on this case, Martin J. Lehman (“Lehman”), and invoices with charges from Lehman and his legal assistants, Shelia Shafer (“Shafer”) and Lori Fitzgerald (“Fitzgerald”). See generally Appendix in Support of Plaintiffs' Motion for Expenses Including Attorney's Fees (“Appendix”) (docket entry 15-1). The defendant did not file a response. The motion is now ripe for decision.

         II. ANALYSIS

         A. Legal Standard

         The Fifth Circuit employs a two-step process to calculate attorney's fees. Smith v. Acevedo, 478 Fed. App'x 116, 124 (5th Cir. 2012). The first step is determining the lodestar fee by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Id. The court should exclude work that is excessive, duplicative, or inadequately documented. Id. Then, the court may adjust the lodestar based on twelve factors announced in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated by Blanchard v. Bergeron, 489 U.S. 87 (1989).[1] Many of these factors are usually subsumed in the initial lodestar calculation. Jason D.W. by Douglas W. v. Houston Independent School District, 158 F.3d 205, 209 (5th Cir. 1998). “The court must provide a reasonably specific explanation for all aspects of a fee determination.” Smith, 478 Fed. App'x at 124 (quoting Jimenez v. Wood County, Texas, 621 F.3d 372, 380 (5th Cir. 2010), on reh'g en banc, 660 F.3d 841 (5th Cir. 2011)).

         B. Application

         1. Reasonable Hourly Rate

         The party seeking attorney's fees has the burden of showing “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.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). “Generally, the reasonable hourly rate for a particular community is established through affidavits of other attorneys practicing there.” Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir.), cert. denied, 537 U.S. 883 (2002). However, a court may also rely on its own expertise in deciding the reasonableness of an hourly rate. Gromer v. Mack, No. 3:11-CV-0682-D, 2012 WL 28835, at *2 (N.D. Tex. Jan. 4, 2012) (Fitzwater, Chief J.) (citing Primrose Operating Company v. National American Insurance Company, 382 F.3d 546, 562 (5th Cir. 2004)).

         Here, Lehman has been licensed to practice in Texas since 1982. Appendix at 2. Lehman's hourly rate is $425.00 per hour and his legal assistants, Shafer and Fitzgerald, bill at a rate of $95.00 per hour. Id. at 3-4. In his declaration, Lehman states that “[b]ased on my experience, in my opinion, my hourly rate and the hourly rate of our legal assistants are reasonable.” Id. at 4. However, Lehman's declaration lacks information about the hourly rate for attorneys with similar experience and does not include affidavits or declarations from other attorneys regarding reasonable rates in Dallas, Texas.

         The court, relying on its expertise, concludes that the rates of Lehman, Shafer, and Fitzgerald are reasonable. Other attorneys with over thirty years of experience and their legal assistants have charged similar rates on similar matters in Dallas. See Task Force Logistics International, Ltd. v. Teasley Partners, Ltd., No. 3:14-CV-2101-L, 2014 WL 6673482, at *2-3 (N.D. Tex. Nov. 25, 2014) (Lindsay, J.) (discussing hourly rates for an experienced bankruptcy attorney and his legal assistant in Dallas). Moreover, the court's conclusion is further supported because the defendant did not object to it. See Baulch v. Johns, 70 F.3d 813, 818 n.8 (5th Cir. 1995). Accordingly, the hourly rates for Lehman, Shafer, and Fitzgerald are deemed reasonable.

         2. Reasonable ...

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