United States District Court, N.D. Texas, Dallas Division
BORZOO FAIZY and MONDANA TAGHIZADEH, individually and derivatively on behalf of MF RESTAURANT HOLDINGS, LLC Plaintiffs,
ALIDAD MESGHALI, STEPHEN KAPLAN, MARYAM TABASSIAN, and RUMI'S KITCHEN LLC, Defendants, and MF RESTAURANT HOLDINGS, LLC Nominal Defendant.
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE.
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.
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.
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
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
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.
Fees Associated with Discovery and Defendants'
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, ...