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Ratliff v. Mesilla Valley Transportation, Inc.

United States District Court, W.D. Texas, El Paso Division

August 20, 2019




         Before the court is "Plaintiffs Response to Order to Show Cause as to reasonable attorney's fees and costs" ("Response") [ECF No. 7], filed March 13, 2019 by Plaintiffs counsel John Pi Valdez, Michael Aschenbrener, and Adam C. York ("Plaintiffs Counsel").

         I. BACKGROUND

         On March 6, 2019, this court granted Plaintiff Jerome Ratliff Jr.'s ("Plaintiff) motion to remand on the grounds that this court lacked subject matter jurisdiction.[1] In the order, the court found Plaintiff was entitled to an award of attorney fees, as "[i]t was objectively unreasonable to remove this case."[2] The court explained: (1) there had been a prior binding adjudication in the Northern District of Illinois that federal courts lacked subject matter jurisdiction over the matter;[3] and (2) there was no "case" or "controversy" at the time of removal.[4] The court ordered Plaintiffs counsel to show cause as to reasonable attorney's fees and costs, noting Plaintiffs counsel failed to provide sufficient information for the court to award an appropriate amount.[5]


         The Fifth Circuit uses a two-step method for the determination of a reasonable award of attorney's fees.[6] Courts first calculate the lodestar by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work.[7] The court excludes "all time that is excessive, duplicative, or inadequately documented."[8] The court may then "decrease or enhance the lodestar based on the relative weights of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc."[9]

         As there is "a 'strong presumption' that the lodestar represents the 'reasonable' fee, enhancements must necessarily be rare."[10] The party seeking an award of attorney's fees "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates."[11]


         In the Response, Plaintiffs counsel seeks an award of attorney's fees in the amount of $9, 719.00.[12] The requested amount equates to: (1) 18.7 hours at an hourly rate of $425 for Adam C. York; (2) 1.9 hours at an hourly rate of $585 for Michael Aschenbrener; and (3) 2.2 hours at an hourly rate of $300 for John P. Valdez.[13] Mssrs, Aschenbrener and York's rates are calculated using their "home" rates-the rates they charge in Chicago.[14]

         A. Community Rates Versus Out-of-Town Rates

         It is well established that "'reasonable' hourly rates 'are to be calculated according to the prevailing market rates in the relevant community.'"[15] In the order remanding the case, the court specifically noted that Plaintiff failed to provide evidence of an appropriate hourly rate in the community.[16] Nevertheless, Plaintiffs counsel asks the court to disregard this general principle, claiming this court should award them their hourly rates in Chicago.[17]

         Out-of-town counsel may be awarded their "home" rates under limited circumstances.[18]To determine whether out-of-town rates are appropriate, the court applies a two-prong test: (1) "whether hiring out-of-town counsel was reasonable in the first instance"; and (2) "whether the rates sought by the out-of-town counsel are reasonable for an attorney of his or her degree of skill, experience, or reputation."[19] To determine whether it was reasonable to hire of out-of-town counsel, courts in the Fifth Circuit regularly consider the necessity of hiring out-of-counsel- whether local counsel were readily available and capable of taking the case.[20]

         Plaintiff argues that "[i]t was quite reasonable for Mr. Ratliff to hire KamberLaw in the first instance," stating that the law firm has "extensive experience litigating class actions in jurisdiction all over the country" and has an office in Plaintiffs city of residence, Chicago.[21]Additionally, Plaintiffs counsel also notes that Plaintiff first filed several cases under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., in the Northern District of Illinois.[22] Plaintiffs counsel also asserts that "it made sense" to continue to represent Mr. Ratliff in El Paso due to "experience handling Mr. Ratliffs Illinois cases and institutional knowledge ... about his claims."[23]

         In support of the assertion it is reasonable to calculate attorney's fees with their "home" rates, Plaintiffs counsel submitted "United States Consumer Law Attorney Fee Survey Report" ("Report") from 2015-2016.[24] The Report lists the national average and median hourly rates, as well as average and median hourly rates in the state of Texas.[25] The Report also identifies six "niche areas" of consumer law, identified as bankruptcy, class action, credit rights, mortgage, vehicles, and TCPA.[26]

         Plaintiffs counsel has not persuaded the court that this case involves increasingly complex issues unable to be pursued by local counsel to justify enhanced out-of-town fees. The court declines to find that the practice areas of class action litigation and consumer law automatically qualify as complex work that entitle counsel to collect out-of-town rates. Furthermore, Plaintiffs counsel does not show that local counsel was not capable or unavailable to pursue this matter.

         It is certainly more convenient for Plaintiffs counsel to continue to represent Plaintiff. This does not, however, support enhanced hourly rates. Therefore, Plaintiffs counsel is not entitled to "home" out-of-town rates in ...

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