Access v. Federico 06-CV-275-JD 11/21/06 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Access Group, Inc.

v. No. 06-CV-275-JD Opinion No.

Daniel C. Federico

O R D E R

On October 5, 2006, the court issued an order (document no.

20) granting plaintiff Access Group's motion to remand and motion

for attorney fees and costs under

(c). Now

before the court are Access Group's accounting of the fees and

costs incurred as a result of removal and defendant Daniel

Frederico's objection. Access Group requests a total of $3,840

for attorney fees and $67.50 for expenses.

When, as here, the removing party lacks "an objectively

reasonable basis for seeking removal," § 1447(c) provides that an

"order remanding [the] case to state court 'may require payment

of just costs and any actual expenses including attorney fees,

incurred as a result of removal.'" Martin v. Franklin Capital

Corp., 126 S. C t . 704, 707, 711 (2005) (quoting § 1447(c)). In

calculating such an award, the court shall employ the lodestar

methodology. See Huffman v. Saul Holdings Ltd. P'ship,

(10th Cir. 2001) (holding that district courts should

"ensure that an award of attorneys' fees pursuant to § 1447(c) is reasonable"); Albion Pac. Prop. Res., LLC v. Seligman,

(N.D. Cal. 2004) (employing the lodestar

approach in awarding attorney fees under § 1447(c)).

Under the lodestar approach, the court "must determine ■'the

number of hours reasonably expended on the litigation multiplied

by a reasonable hourly rate.'’" Gav Officers Action League v.

Puerto Rico.

(1st Cir. 2001) (quoting Hensley

v. Eckherhart.

(1983)). The movant bears the

burden of establishing the reasonableness of the claimed hourly

rates and hours billed. Blum v. Stenson.

, 895 n.ll

(1984). After the lodestar is calculated, the court may, in

exceptional cases, make further adjustments to the award

depending on a number of factors. Pennsylvania v. Del. Valiev

Citizens' Council for Clean Air.

(1986).

Access Group's attorney, Daniel C. Proctor, claims an hourly

rate of $200, which he states is his customary rate for

commercial collection work. Frederico correctly points out that

Proctor has not established that this rate is in line with the

local market rate for such work. See Andrade v. Jamestown Hous.

Auth.,

, 1190 (1st Cir. 1996). Nevertheless, rather

than deny Proctor's request outright or require him to supplement

his filings, the court will rely on its own understanding of the

prevailing local rates. See Henslev,

("A request

2 for attorney's fees should not result in a second major

litigation."); Andrade, 82 F.3d at 1190 ("[T]he court is entitled

to rely upon its own knowledge of attorney's fees in its

surrounding area in arriving at a reasonable hourly rate.").

The court finds Proctor's claimed rate slightly inflated.

Proctor, who graduated from law school in 1988, has been

practicing before this court for approximately seventeen years.

On the basis of his fee application, it appears that Proctor

operates a general practice one-attorney firm in Concord, New

Hampshire. According to "The 2000 Desktop Reference on The

Economics of Law Practice in New Hampshire," published by The New

Hampshire Bar Association, the median hourly rate for such a

practitioner falls between $136 and $150. See Silva v. Nat'l

Telewire Corp.. No. 99-219,

, at *3 (D.N.H. 2001)

(citing The 2000 Desktop Reference and finding that $150 was a

reasonable hourly rate for a Merrimack County litigator with

seventeen years experience). To reflect the passage of time

since publication of The 2000 Desktop Reference, the court will

adjust the median hourly rate to $180. Such a rate provides

reasonable compensation for the nature of the work involved in

this relatively straight forward debt collection case. C f . Bryan

M. v. Litchfield Sch. Dist., No. 04-246,

, *6

(D.N.H. 2005) (setting an hourly rate of $200 for an attorney

3 with comparable experience in a more complex case brought under

the Individuals with Disabilities Education Act).

Frederico also objects to the time Proctor billed for

requesting the attorney fees and for the performance of non-core

legal work. Frederico is correct that courts ordinarily

compensate the time spent compiling a fee application at a

reduced "non-core" rate. See Brewster v. Dukakis.

(1st Cir. 1993). The court finds that a reduced hourly

rate of $140 is reasonable compensation for the time Proctor

spent on non-core work, including the preparation of the fee

application. C f .

(affirming the district court's hourly

rates of $120 for core and $80 for non-core legal work). The

court further finds that the clerical or non-lawyer work

performed by Proctor is properly credited at a rate of $75 per

hour.

As to the billing record itself, the court rejects

Frederico's contention that Proctor failed to satisfy the

requirement to present a contemporaneous time record of the hours

and tasks billed. Fee applicants are not required to submit the

original time sheets; reasonably detailed compilations that

attest to the nature of the work done, the dates on which it was

done, who did it, and for how long, can be sufficient to meet the

applicant's burden. See Gav Officers Action League.

297. Proctor's properly verified submission provides sufficient

detail for the court to discern the reasonableness of his claims.

Frederico next argues that the court should not allow fees

for the time Proctor spent drafting his motion for remand or his

motion for sanctions. Because "none of the arguments or cases

cited by [Proctor]" were cited by the court in its remand order,

Frederico argues Access Group's success in winning a remand was

not attributable to Proctor. See

(noting, in a

fee-shifting case, that the "degree of success is

critical in determining the amount of a fee award").

First, Proctor did succeed in winning a remand to state

court. Second, although the court did not adopt Proctor's

arguments verbatim, it is not fair to portray his work product as

unavailing. Third, and more fundamentally, § 1447(c) 's fee-

shifting provision, unlike other fee-shifting statutes such as §

1988, is aimed at deterring behavior (i.e., the filing of

frivolous or vexatious removals, see Martin. 126 S. C t . at 711),

rather than encouraging behavior (e.g., the vindicating of

constitutional rights, see Gav Officers Action League.

). It is a punitive provision that focuses on the party

seeking removal, not the party opposing it. Therefore, to the

extent that Proctor's efforts to oppose the removal were

reasonable, the degree of success of his specific arguments is

not important.

5 Frederico also argues that Access Group should not be

awarded fees for the time Proctor spent in reviewing and

responding to the Answer and Counterclaim Frederico filed with

this court. Frederico argues that Proctor's motion to strike

those pleadings was never ruled on by this court nor did the

court rely on it in ordering a remand. Frederico again

misunderstands the purpose of the fee-shifting provision -- to

require the removing party to reimburse the opposing party for

the "just costs and any actual expenses, including attorney fees,

incurred as a result of the removal."

(c)

(emphasis added). Before Frederico removed the case to federal

court, the parties had already begun litigating the pleadings.

But for Frederico's frivolous removal. Access Group would not

have been required to respond to the largely duplicative

pleadings filed with this court.

Bringing it all together, the court determines that

Proctor's hourly rate for core legal work is $180. He is

entitled to receive that rate for all of his entries, except

those outlined below. He is entitled to the clerical hourly rate

of $75 for filing the motion to remand on August 3, 2006, and for

requesting a transcript from the Rochester District Court on

August 17. He is entitled to the "non-core" hourly rate of $140

for the remainder of the work performed on August 3, for the

client status call on August 22, and for all the work he

6 performed from September 12, 2006 onward. The court accordingly

finds that the lodestar for attorney fees is $3,165. The court

also finds justified Access Group's request for $67.50 for the

cost of providing the court with a transcript of a hearing held

before the state court. The resulting total of fees and costs,

$3,232.50, represents a just and reasonable award serving the

purposes of § 1447(c) and no further adjustments are necessary.

Conclusion

Plaintiff's request for attorney fees and costs (document

nos. 24 and 26) is granted with the reductions specified in this

order. Defendant is ordered to pay Plaintiff the amount of

$3,232.50. The clerk shall remand the case to the district court

in Rochester, New Hampshire.

SO ORDERED.

& JVf .jk. vjjbseph A. DiClerico, Jr. United States District Judge

November 21, 2 006

cc: Daniel C. Federico, Esquire Daniel C. Proctor, Esquire

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