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Faizy v. Mesghali

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

December 8, 2017

BORZOO FAIZY and MONDANA TAGHIZADEH, individually and derivatively on behalf of MF RESTAURANT HOLDINGS, LLC Plaintiffs,
v.
ALIDAD MESGHALI, STEPHEN KAPLAN, MARYAM TABASSIAN, and RUMI'S KITCHEN LLC, Defendants, and MF RESTAURANT HOLDINGS, LLC Nominal Defendant.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiffs' Application for Attorneys' Fees and Costs. Doc. 34. For the reasons set forth below, the Court awards Plaintiffs attorneys' fees of $21, 477.50.

         I.

         BACKGROUND

         This case arose from a partnership dispute. Plaintiffs sued Defendants individually and on behalf of MF Restaurant Holdings LLC in state court, and Defendants removed the action to this Court on the basis of diversity jurisdiction. Doc. 1, Notice of Removal. The Court remanded the case, finding Defendant MF Restaurant Holdings was not a nominal defendant, which meant its citizenship must be considered when assessing diversity. Doc. 32, Order, 5-6. Because MF Restaurant Holdings was a citizen of the same state as Plaintiffs, complete diversity did not exist and remand was proper. Id. at 6. The Court also awarded Plaintiffs attorneys' fees pursuant to 28 U.S.C. § 1447 (c) because Defendants “lacked an objectively reasonable basis for seeking removal.” Id. at 6-7. Plaintiffs then filed their Application for Attorneys' Fees and Costs, which is ripe for review.

         II.

         LEGAL STANDARDS

         When a Court awards a party attorneys' fees after a § 1447(c) remand order, the party may recover only “costs of opposing removal, seeking remand, and other expenses incurred because of the improper removal.” Avitts v. Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir. 1997). “[O]rdinary litigation expenses that would have been incurred had the action remained in state court are not recoverable.” Id.

         Courts in the Fifth Circuit apply a two-step method to determine whether the costs and fees incurred as a result of removal are reasonable. Combs v. City of Huntington, 829 F.3d 388, 391 (5th Cir. 2016). Courts “first calculate the lodestar, ‘which is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work.' In calculating the lodestar, ‘[courts] should exclude all time that is excessive, duplicative, or inadequately documented.'” Id. at 392. (quoting Jimenez v. Wood Cty., 621 F.3d 372, 379-80 (5th Cir. 2010)). Although the lodestar is presumed reasonable, courts then move to the second step and evaluate the fees sought based on the twelve Johnson factors. Id; see Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) (enumerating factors).

         III.

         ANALYSIS

         Plaintiffs request $33, 737.50 in attorneys' fees and $333.33 in costs. Doc. 34, Pls.' Appl., 2. The requested award includes attorneys' fees for: (1) opposing removal/seeking remand, (2) federal court ordered conferences and reports, (3) application for attorneys' fees and costs, (4) responding to Defendants' motions for extension of time, (5) responding to Defendants' counterclaims, and (6)discovery and Plaintiffs' motion to compel discovery. Id. at 4-5, Ex. A-5. Defendants oppose Plaintiffs' request for fees associated with discovery and Defendants' counterclaim on the ground that those are ordinary litigation expenses that would have been incurred in state court too. Doc.35, Defs.' Obj., 3-6. They also argue that the amount of fees Plaintiffs request for the Application is unreasonable because of the hours sought and rate used and that the amount of fees Plaintiffs request for opposing removal and seeking remand is unreasonable because those fees include “questionable and vague time entries.” Id. at 7-10.

         A. Fees Associated with Discovery and Defendants' Counterclaim

         Plaintiffs seek $9715 in fees associated with discovery and Defendants' counterclaim. Doc. 34, Pls.' Appl., Ex. A-5. The Court agrees with Defendants that Plaintiffs may not recover these fees because they are ordinary litigation expenses. Plaintiffs acknowledge that some expenses related to discovery are ordinary litigation expenses they would have incurred in state court and consequently request an award of only half of their discovery-related expenses. Id. at 4. But they argue the other half of discovery-related expenses, including time spent on their motion to compel, should be included in the award because Plaintiffs were required to re-file their motion to compel in state court and may be required to re-serve discovery requests. Id. at 5; Doc. 36, Pls.' Reply, 2-3. Although Plaintiffs were required to re-file their motion to compel, re-filing the motion should not take much time or expense. 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) (denying the plaintiff's requests for fees incurred responding to the defendants' motions to dismiss in federal court because responding to the same motions in state court would not require much additional time). Further, ...


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