The opinion
UNITED STATES DISTRICT
COURT EASTERN DISTRICT OF
MISSOURI EASTERN DIVISION
RICHARD WHITE, et al., )
)
Plaintiffs, )
)
v. ) No. 4:21-cv-01161-AGF
)
RISING STAR M.B. CHURCH, )
et al., )
)
Defendants. )
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Attorney’s Fees and
Costs. (Doc. No. 16). On November 16, 2021, the Court granted Plaintiffs’ motion to
dismiss the only federal claims in their complaint, three RICO claims, and remand the
case to state court where it was originally filed. (Doc. No. 15). The Court also ordered
Plaintiffs to reimburse Defendants their attorney’s fees and costs associated with removal
and remand. Id.
In support of their request for attorney’s fees, Defendants submitted an affidavit and
billing records reflecting $11,259.00 in attorney’s fees and $402.00 in costs, a total of
$11,661.00. (Doc. No. 16). Plaintiffs oppose the motion, (Doc. No. 17), arguing the
Court should only award fees if they re-file their RICO claims and that Defendants’ costs
and fees are grossly excessive.
BACKGROUND
Plaintiffs Richard White and Sherman Hawthorne are members of Defendant
Rising Star M.B. Church. In August 2021, Plaintiffs filed a petition in state court
alleging Rising Star M.B. Church and its pastor, Defendant Ernest Garrett Jr., and Board
of Deacons—Defendants Charles Haley, David White, Alphonso Ivy, Lehman Turner,
Jr., David Long, Lamar Brew, George Robinson, and Peter Lewis—improperly used
church funds for their personal benefit. Plaintiffs alleged four state law claims as well as
three RICO claims. Defendants removed the case to this court on the basis of federal
question jurisdiction, based on the RICO claims. Defendants then moved to dismiss
Plaintiffs’ entire petition for failure to state a claim. (Doc. No. 7).
Plaintiffs did not file a response, and instead moved to amend their petition to
eliminate the RICO claims and remand the case to state court. (Doc. Nos. 10, 11).
Defendants requested the Court dismiss the RICO claims with prejudice and grant
them an award of attorney’s fees and court costs attributable to removal and
remand. The Court granted Plaintiffs’ motion, dismissing the RICO claims, without
prejudice, and remanding the case to state court. (Doc. No. 15). The Court also
ordered Plaintiffs to reimburse Defendants their attorney’s fees and costs associated with
removal and remand (“Removal Costs”), and further provided that should Plaintiffs re-file
their RICO claims in the future, Defendants may request an award of attorney’s fees and
costs attributable to the dismissal and re-filing of the claims (“Refiling Dismissal Costs”).
DISCUSSION
Plaintiffs argue that the Court may award only Removal Costs or Refiling Dismissal
Costs. The Court noted in the previous order it “has the authority to award fees and costs
incurred defending the action or, alternatively, to order that if the plaintiff re-files the
federal claim, then the plaintiff will reimburse the defendant for fees and costs associated
with the dismissed action.” (Doc. No. 15) (citing Garner v. Union Pac. R.R. Co.,
4:15CV00733 AGF, 2016 WL 612765, at *1 (E.D. Mo. Feb.16, 2016) and Gould v. St.
Louis-Kansas City Carpenters’ Regional Council, No.4:18-cv-00936-AGF (E.D. Mo. Aug.
2, 2018)). Plaintiffs contend that neither the Garner nor Gould courts allowed the
defendant to recover both Removal Costs and Refiling Dismissal Costs. Plaintiffs are
factually incorrect. The Gould Court awarded both categories of fees and costs. Id.
Moreover, Plaintiffs misinterpret these cases and this Court’s order. Garner and
Gould hold that when a Plaintiff seeks to destroy federal jurisdiction by dismissing federal
claims, the Court may either grant Refiling Dismissal Costs or “fees and costs incurred
defending the action” immediately (“Immediate Defense Costs”). These costs pertain to
Defendants’ costs in defending the RICO claims and filing their motion to dismiss. The
Court did not award both Immediate Defense Costs and Refiling Dismissal Costs. Instead,
the Court awarded only Refiling Dismissal Costs – should Plaintiffs refile the RICO claims1
– and, separately, Removal Costs, which pertain to Defendants’ costs in removing the case
to federal court. Such Removal Costs are plainly contemplated by the statute. Pursuant to
1 The Court did not dismiss the RICO claims with prejudice, as Defendants requested.
28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just costs and
any actual expenses, including attorney fees, incurred as a result of the removal….” The
Court again concludes that Defendants are entitled both to the Refiling Dismissal Costs,
should Plaintiffs reflile the claims, as well as Removal Costs, because Plaintiffs dismissed
their RICO claims only after Defendants incurred the costs of removing this matter to
federal court and filing a motion to dismiss.
Plaintiffs next argue the fees and costs requested by Defendants are excessive. The
amount of an award of attorney fees rests within the sound discretion of the court. Farmers
Co-op Co. v. Senske & Son Transfer Co., 572 F.3d 492, 500 (8th Cir. 2009). When
determining the reasonableness of attorney fees, courts in the Eighth Circuit are advised to
consider the Johnson factors as relevant to the particular case.2 Tolefree v. Cmty. Blood
Ctr. of Greater Kansas City, 03-1087-CV-W-GAF, 2005 WL 1669762, at *4–5 (W.D. Mo.
July 18, 2005), citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir
1974). A court need not examine all factors exhaustively and explicitly; rather, it merely
must “provide a concise but clear explanation of its reasons for the fee award.” Id. quoting
Griffin v. Jim Jamison, Inc., 188 F.3d 996, 997 (8th Cir. 1999).
2 The twelve Johnson factors are: (1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4)
the preclusion of other employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by
the client or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11)
the nature and length of the professional relationship with the client; and (12) awards in
similar cases.
Plaintiffs object to the billing as duplicative or otherwise excessive. Additionally,
Plaintiffs claim Defendants improperly increased the hours billed after Plaintiffs asked for
consent to dismiss their RICO claims and remand this matter to state court. Defendants
respond that all fees set forward in their motion were actually incurred and Defendants
either have paid or are obligated to pay them. Plaintiffs have provided no evidence in
support of their contention that Defendants improperly inflated their billing.
However, the Court reviewed the billing records and finds the amount of attorney
time spent excessive given the nature of removal and remand, the time, skill, and labor
typically required for removal and remand, and the significant trial experience of
Defendants’ counsel, in particular Mr. Kasnetz, who dealt with a similar issue as counsel
for plaintiffs in Gould. As such, the Court finds that a reduction of $2,000 is appropriate.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ request for attorney’s fees is
GRANTED in part. (Doc. No. 16). Plaintiffs shall retmburse Defendants in the amount of
$9,661.00.
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of February, 2022.
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