The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
KATHY LOCKHART,
Plaintiff,
v. CIVIL ACTION NO. 5:18-cv-01296
DOLGENCORP, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiff’s Motion for Attorney’s Fees and Applicable Costs
(Document 48), the Memorandum of Law in Support of Plaintiff’s Motion for Attorney’s Fees and
Applicable Costs (Document 49), the Defendant’s Response to Plaintiff’s Motion for Attorney’s
Fees and Applicable Costs (Document 50), and the Reply in Support of Plaintiff’s Motion for
Attorney’s Fees and Applicable Costs (Document 51). For the reasons stated herein, the Court
finds that the Plaintiff’s motion should be granted.
The Defendant asserted federal diversity jurisdiction as the basis for its removal of this
case. The Plaintiff moved to remand, asserting that the removal was untimely. The Plaintiff
alleges that she was injured in a fall at a Dollar General Store in Lewisburg, West Virginia. The
Defendant removed the case to this Court on September 14, 2018, and contended that it learned
that the amount in controversy exceeded $75,000 only through an expert deposition taken on
August 28, 2018. The Court found that the Defendant had information alerting it that the amount
in controversy exceeded the jurisdictional threshold no later than May 16, 2018, when the Plaintiff
noted medical expenses totaling more than $85,000 in a response to a motion to dismiss.
The Plaintiff argues that the removal was clearly untimely and frivolous, and seeks
attorney’s fees totaling $4,485 for 13.8 hours, billed at a rate of $325 per hour. The Plaintiff’s
attorney, Clayton Anderson, has approximately twenty years of experience, and the fee request is
supported by affidavits from local attorneys, attesting to both Mr. Anderson’s skill and the
reasonableness of his requested rate. The Plaintiff does not seek fees for the hours expended by
staff. The Defendant argues that it had an objectively reasonable basis for removal because it did
not believe the medical expenses cited and claimed by the Plaintiff were actually related to her
fall. It does not otherwise contest the amount or calculation of the Plaintiff’s fee request. Both
parties also present arguments regarding discovery disputes and other asserted misconduct
unrelated to the improper removal of this matter, which the Court declines to address.
28 U.S.C. §1447(c) provides: “An order remanding [a] case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the removal.” The
United States Supreme Court has held that “absent unusual circumstances, attorney's fees should
not be awarded when the removing party has an objectively reasonable basis for removal.”
Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005). The Court went on to explain:
The appropriate test for awarding fees under § 1447(c) should
recognize the desire to deter removals sought for the purpose of
prolonging litigation and imposing costs on the opposing party,
while not undermining Congress' basic decision to afford defendants
a right to remove as a general matter, when the statutory criteria are
satisfied.
Id. at 140.
2
The Court finds that the Defendant lacked an objectively reasonable basis for the untimely
removal. The Plaintiff filed a document asserting medical expenses of more than $85,000 related
to a fall in the Dollar General approximately four months prior to the Defendant’s removal. That
amount was clearly in dispute, regardless of the Defendant’s assessment of the merits of the
Plaintiff’s claims. Therefore, the Court finds that it is appropriate to award the Plaintiffs
attorneys’ fees to defray the costs associated with the improper removal.
When considering motions for attorneys’ fees available by statute, the Supreme Court has
instructed that “[t]he most useful starting point for determining the amount of a reasonable fee is
the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A district court’s assessment of the requested
award should include consideration of hours which were spent excessively, redundantly, or
unnecessarily. Id. at 434. This starting calculation is referred to as the lodestar amount.
Grissom v. The Mills Corp., 549 F.3d 313 (4th Cir. 2008). To determine the reasonable hourly
rate, “the fee applicant must produce satisfactory specific evidence of the prevailing market rates
in the relevant community for the type of work for which he seeks an award.” Plyler v. Evatt,
902 F.2d 273, 277 (4th Cir. 1990).
The Fourth Circuit Court of Appeals has provided further guidance on the calculation of
reasonable attorneys’ fees and has established twelve factors that a district court should consider
when calculating reasonable attorneys’ fees. These factors are known as the Johnson factors and
are as follows:
(1) the time and labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4) the
attorney's opportunity costs in pressing the instant litigation; (5) the customary fee
for like work; (6) the attorney's expectations at the outset of the litigation; (7) the
3
time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation and ability of
the attorney; (10) the undesirability of the case within the legal community in which
the suit arose; (11) the nature and length of the professional relationship between
attorney and client; and (12) attorneys' fees awards in similar cases.
Grissom, 549 F.3d at 321. Upon completion of this lodestar calculation, a “court then should
subtract fees for hours spent on unsuccessful claims unrelated to successful ones.” Grissom, 549
F.3d at 321 (quoting Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir.2002)). “Once the court
has subtracted the fees incurred for unsuccessful, unrelated claims, it then awards some percentage
of the remaining amount, depending on the degree of success enjoyed by the plaintiff.” Johnson,
278 F.3d at 337.
Here, the Defendant has not contested Plaintiffs’ counsel’s requested hourly rate of $325,
which the Court finds to be reasonable. The Defendant has not contested the claimed hours,
which the Plaintiff supported with billing records. The Court finds that Plaintiffs’ counsel’s
hours and hourly rate are reasonable.1 He is a well-qualified, experienced attorney. The legal
questions raised by the removal and remand are not complex but did require both legal and factual
research and briefing. Further, it may be difficult to obtain counsel for personal injury cases of
this nature, with relatively low potential value. The Defendant’s improper removal increased the
work involved in pursuing the case and delayed work toward resolution of the core issues,
including necessitating a delay of the trial date that had been approaching in state court at the time
of removal. The Plaintiffs’ counsel kept careful records detailing the time spent in each discrete
task involved in reviewing the notice of removal, researching the legal issues involved, attempting
1 The Plaintiff’s counsel indicated that he would also seek reimbursement for costs associated with Westlaw research,
which were not ascertainable at the time the motion was filed. He has made no attempt to supplement the record with
documentation or an accounting of such costs, so none will be awarded.
4
to negotiate with the Defendant’s counsel to stipulate to remand, and drafting, editing, and
submitting the motion to remand. A total of 13.8 hours on those tasks is likewise reasonable and
in line with awards in similar cases.
Accordingly, after thorough review and careful consideration, the Court ORDERS that the
Plaintiff's Motion for Attorney’s Fees and Applicable Costs (Document 48) be GRANTED and
that the Plaintiff be awarded $4,485 in fees.
The Court DIRECTS the Clerk to send a certified copy of this Order to counsel of record
and to any unrepresented party.
ENTER: July 15, 2019
Dire. Benger’
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA