Early

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL EARLY, No. 4:26-CV-01148

Plaintiff, (Chief Judge Brann)

v.

ULYSSES TOWNSHIP BOARD OF

SUPERVISORS, RICHARD TOBIAS,

RICHARD ERICKSON, MATTHEW

SEELY, STEVEN TOY, and TM SEO

SERVICES, LLC,

Defendants.

MEMORANDUM OPINION & ORDER

SEPTEMBER 9, 2026

I. BACKGROUND

On May 29, 2026, I held a telephonic status conference at which I advised the

parties that I had sua sponte determined that I lacked jurisdiction, and that this case

would therefore be remanded to the Court of Common Pleas of Potter County,

Pennsylvania. An Order to that effect explaining my reasoning was docketed on June

2, 2026.1 Pursuant to 28 U.S.C. § 1447(c), I permitted Plaintiff to “file a motion for

‘just costs and any actual expenses, including attorney fees, incurred as a result of

removal,’ supported by a brief of no more than ten (10) pages, within FOURTEEN

(14) DAYS of the date of th[at] Order.”2

1 Doc. 15 (Remand Order).

On June 16, 2026, Plaintiff timely filed his motion for costs and attorney fees.3

But although he attached an affidavit from counsel supporting the fee request,4 he

neglected to include any primary documentation of the work performed.5 Defendants

pointed this deficiency out in their opposition,6 and Plaintiff responded by filing an

“Amended Motion for Fees and Costs” on June 24, 2026, which included a

timekeeping table.7 The parties then rebriefed the issues pursuant to the amended

motion. The motions are now ripe for resolution. For the following reasons, they are

denied in full.

II. LEGAL STANDARD

Title 28 of the United States Code at Section 1447(c) authorizes courts to,

upon remanding an improperly removed case back to state court, “require payment

of just costs and any actual expenses, including attorney fees, incurred as a result of

the removal.”8 A fee award is not mandatory under Section 1447(c); on the contrary,

“the district court has discretion whether to order such payment.”9 Before exercising

that discretion, however, a court generally must determine whether “the removing

3 Doc. 16 (Fees Mot.)

4 See id. at 9-12.

5 See id. at 11 (stating that a report of fees would be included but including no such attachment).

6 Doc. 19 (Fees Mot. Opp’n) at 12-15.

7 Doc. 20 (Am. Fees Mot.); Doc. 20-1 (Am. Fees. Aff.) at 8-15.

8 28 U.S.C. § 1447(c).

9 Mints v. Educ. Testing Serv., 99 F.3d 1253, 1259 (3d Cir. 1996).

party ha[d] an objectively reasonable basis for removal,” for, if it did, “absent

unusual circumstances, attorney’s fees should not be awarded.”10

If there was no objectively reasonable basis for removal, the court may then

consider the fee petition. To calculate the appropriate fee, courts in the Third Circuit

use the “‘lodestar’ formula, which requires multiplying the number of hours

reasonably expended by a reasonable hourly rate.”11 The party seeking fees “has the

burden to prove that its request for attorney’s fees is reasonable. To meet its burden,

the fee petitioner must ‘submit evidence supporting the hours worked and rates

claimed.’”12 The evidence must demonstrate that the hourly rate is near “the

prevailing market rate[] in the relevant community,” comparing “the experience and

skill of the prevailing party’s attorneys” to “the rates prevailing in the community

for similar services by lawyers of reasonably comparable skill, experience, and

reputation.”13 “The prevailing party bears the burden of establishing by way of

satisfactory evidence, ‘in addition to the attorney’s own affidavits,’ that the

requested hourly rates meet this standard.”14

10 Martin v. Franklin Cap. Corp., 546 U.S. 132, 136 (2005).

11 Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 177-78 (3d Cir. 2001) (citing Hensley v.

Eckerhart, 461 U.S. 424 (1983)).

12 Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) (quoting Hensley, 461 U.S. at 433).

13 Loughner, 260 F.3d at 180 (citing Blum v. Stenson, 465 U.S. 886, 895 (1984) and Rode, 892

F.2d at 1183).

14 Id. (quoting Washington v. Phila. Cnty. Ct. of Common Pleas, 89 F.3d 1031, 1035 (3d Cir.

1996)) (internal alterations omitted); Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d

694, 708 (3d Cir. 2006) (quoting Loughner, 260 F.3d at 180).

After the party seeking fees files its petition, the adverse party “then has the

burden to challenge, by affidavit or brief with sufficient specificity to give fee

applicants notice, the reasonableness of the requested fee.”15 Deficiencies can

include a failure to adequately support the rate claimed or unreasonable hours, such

as hours that “are excessive, redundant, or otherwise unnecessary.”16 On a motion

pursuant to Section 1447(c) in particular, hours can only be awarded if they were

“incurred as a result of the removal,”17 which does not include “substantive work on

the underlying case coincidentally performed while a party was seeking remand.”18

Nevertheless, Section 1447(c) are not limited to “costs and attorney’s fees incurred

in a motion to remand,” so other fees directly incurred as a result of the removal may

be recoverable.19

III. ANALYSIS

Plaintiff’s fee petition falls short of his evidentiary burden, includes extensive

unreasonable and unnecessary hours, and was submitted in violation of a Court

15 Rode, 892 F.2d at 1183 (citing Bell v. United Princeton Props., Inc., 884 F.2d 713 (3d Cir.

1989)).

16 Id. (citing Hensley, 461 U.S. at 433).

17 Mints, 99 F.3d at 1259 (quoting 28 U.S.C. § 1447(c)).

18 S. Annville Twp. v. Kovarik, No. 1:13-CV-1780, 2014 WL 4793782, at *2 (citing McCann v.

PPG Indus., Inc., 448 F. App’x 421, 422 (5th Cir. 2011)) aff’d, 651 F. App’x 127 (3d Cir.

2016).

19 Mints, 99 F.3d at 1259.

Order and Local Rule.20 For each of these reasons independently and cumulatively,

the petition is denied in full.21

A. Evidentiary Defects

Plaintiff supports his fee petition with a single affidavit from one of his own

attorneys.22 That is insufficient.23 Even if the sole affidavit could meet the

evidentiary requirement, it lacks adequate information to meet the standard of

showing that the fees requested are reasonable. Attorney Frank Botta avers that “the

fees charged are reasonable and customary in this locality for similar services for

commercial litigation,”24 but reaches that conclusion not by comparing his “own

experience and skill” to “the rates prevailing in the community for similar services

by lawyers of reasonably comparable skill, experience, and reputation,”25 but rather

by simply reciting the type of work completed between removal and remand.26

20 Notably, Plaintiff’s motion only seeks attorney fees and does not actually request any costs.

Compare Doc. 21 (Am. Mot. Br.) (requesting payment of “$14,850.00”) and Doc. 20-1 at 15

(totaling $14,850.00 in attorney fees). The below deficiencies would not have impacted any

request for relevant costs, which would have been awarded had they been requested.

21 I bypass the gatekeeping analysis required by Martin, 546 U.S. 132, because it is facially

apparent that the fee petition is defective. If called upon to conduct that analysis, I would

conclude that Defendants had no objectively reasonable basis for removing for the reasons set

forth in the Remand Order. Doc. 15. Their argument that they read through the legal claims to

the remedies sought and inferred that a federal claim was being asserted because the damages

remedy was unavailable under state law is entirely unconvincing in light of Mints, which held

that a similar argument for federal jurisdiction based on a plaintiff’s attempt to recover federal

ERISA benefits was “at best insubstantial.” 99 F.3d at 1261.

22 Doc. 20-1.

23 Interfaith Cmty. Org., 426 F.3d at 708.

24 Doc. 20-1 at 3-4.

25 Loughner, 260 F.3d at 180 (citing Blum, 465 U.S. at 895 and Rode, 892 F.2d at 1183).

26 Doc. 20-1 at 3-4.

Moreover, Attorney Botta bases his rate on his experience in the practice of “civil

litigation,” “contractual and similar disputes,” and “commercial litigation”27—all

disciplines that are distinct from the state constitutional/civil rights claims at issue

in the merits of this case. And Attorney Botta is not particularly local: his practice is

located near Pittsburgh, Pennsylvania, a significantly larger legal market which

inevitably commands higher rates than this venue.28 Accordingly, I am left with no

way to compare Attorney Botta’s rate to the rates of similarly experienced attorneys

engaged in work like that of the instant case in this region, and therefore cannot

determine whether his hourly rate of $430 is reasonable.

Even worse, the billing records reflect work performed by several other

attorneys at varying rates, none of whom is even mentioned in Attorney Botta’s

affidavit.29 Without so much as an acknowledgement that these individuals exist, I

am entirely unable to analyze the reasonableness of the rates they are charging.

I cannot “make a finding of reasonableness based on [my] own ‘generalized

sense’ of appropriateness, but instead ‘must rely on the record.’”30 Here, the party

seeking fees has provided essentially no record: the sole affidavit from Plaintiff’s

own counsel includes no local comparators or even basic information about

27 Id. at 3.

28 Id. at 5.

29 Id. at 8-15 (including time entries from Christine Pickett, Mark Sabados, Kelly Craig, and

Jason Farrelly).

30 Cartagena v. Serv. Source, Inc., 328 F.R.D. 139, 144 (M.D. Pa. 2018) (quoting Evans v. Port

Auth. of N.Y. and N.J., 273 F.3d 346, 361 (3d Cir. 2001)).

Plaintiff’s attorneys. I thus lack sufficient evidence to determine what a reasonable

rate would look like. For that reason, the motions for fees are denied.

B. Unreasonable Hours

In their opposition, Defendants identify numerous examples of excessive and

redundant hours. Plaintiff does not engage with these enumerated issues, and instead

simply restates the work done in general terms and asserts that it was “reasonable

[and] necessary.”31 The Court agrees with Defendants’ analysis.

For example, Attorney Botta regularly billed 0.20 hours for “review[ing]

Notice of Electronic Filing by the Court,”32 but, as any CM/ECF user knows, the

“Notice of Electronic Filing” is an autogenerated email that contains little more than

the name of a filing and a link to that document. Even if it is appropriate to bill for

“review” of these entirely administrative notices, it is utterly unreasonable to charge

for more than 1-2 minutes of time, let alone the 12 minutes at issue here.33 Notably,

Attorney Botta always billed separately for review of the actual document referenced

in the notice.34

31 Doc. 27 (Am. Mot. Reply). at 12-13.

32 See generally Doc. 20-1 at 8-15.

33 See Loughner, 260 F.3d at 178 (“This court has held that in calculating the hours reasonably

expended, the District Court ‘should review the time charged, decide whether the hours set out

were reasonably expended for each of the particular purposes described and then exclude those

that are excessive, redundant, or otherwise unnecessary.’” (quoting Pub. Int. Rsch. Grp. of N.J.,

Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir.1995))).

34 See Doc. 20-1 at 9-10 (repeatedly billing separately for “Review Notice of Electronic Filing”

and “Review” actual document); id. at 11 (same)

Other billing entries are similarly inflated. For example, Attorney Botta billed

0.30 hours to “Review Notice of Assignment of Case to Judge Brann and letter to

Counsel” and 0.30 hours more to “Review Court Order regarding requiring the

parties meet and confer . . .”35 As Defendants correctly point out,36 these documents

are 1 and 2 pages, respectively, and are both standard issue communications

regarding procedural housekeeping matters.37 Collectively they take, at most, 4

minutes to review. Billing 36 minutes to review these filings is absolutely

unreasonable.38 Moreover it is not clear to the Court why it would be necessary for

the highest billing attorney on the matter to review these documents; a junior

associate could handle that task with no issue.

Defendants identify numerous other excessive or duplicative entries.39

Plaintiff does not specifically respond to any of these contentions. I find Defendants’

objections to all of these entries well-founded.

Additionally, much of the work submitted was clearly “substantive work on

the underlying case coincidentally performed” while the matter was removed.40 For

example, researching opposing counsel,41 working on stipulations for the

35 Doc. 20-1 at 10.

36 Doc. 26 at 17.

37 Docs. 2, 3.

38 See also Doc. 20-1 at 11 (separately billing 0.20 hours 6 times for nearly identical one-page

waivers of service).

39 Doc. 26 at 18-19.

40 S. Annville Twp., 2014 WL 4793782, at *2.

41 Doc. 20-1 at 8 (billing for researching “Township Insurance Attorney”).

expungement of a warrant related to the dispute that is the subject of the litigation,42

settlement discussions,43 and reviewing continued efforts to negotiate the underlying

issue with neighbors and the township’s appeal proceedings44 all bear no relation

whatsoever to removal of this matter.

Accordingly, even if the requested rates had been substantiated, I would find

that many of the hours submitted are unreasonable, excessive, duplicative, and

unnecessary, and, in my “considerable discretion in determining the amount of fees

and costs to award,”45 would reduce the award so substantially that it would be

essentially de minimis. For simplicity’s sake, I deny the petition outright for this

additional reason.

C. Procedural Violations

In my Order permitting Plaintiff to file a motion for fees, I set a fourteen-day

filing deadline.46 Plaintiff’s initial motion satisfied that deadline, but contained no

billing records whatsoever.47 To provide the necessary evidence, Plaintiff filed his

Amended Motion on June 24, 2026—eight days after the fourteen day deadline.48 In

filing that motion, Plaintiff failed to abide by Local Rule 7.1’s requirement that he

42 Id. at 9.

43 Id. at 12 (“conference call . . . re: issues with the township, permit issues, possible resolution”).

44 Id. at 14.

45 S. Annville Twp. v. Kovarik, 651 F. App’x 127, 132 (3d Cir. 2016).

46 Doc. 15.

47 Doc. 16.

48 Doc. 20.

“s[eek] concurrence in the motion from each party.”49 So the Amended Motion,

which all agree is the operative one, is both untimely and out of compliance with

Local Rules.

Normally, I would be inclined to exercise my discretion to forgive these

somewhat minor transgressions. However, considering that Plaintiff was only

permitted to pursue fees thanks to a procedural misstep by Defendants, it is only fair

that he be required to strictly adhere to procedural rules as well. Accordingly, I strike

the Amended Motion as filed out of time and in violation of Local Rule 7.1. The

initial motion itself is facially deficient, as it contains no accounting of the hours

worked, and that motion for fees is therefore denied for this additional reason.

IV. CONCLUSION AND ORDER

For the above stated reasons IT IS HEREBY ORDERED that:

1. Plaintiff’s Motion for Attorney Fees (Doc. 16) and Amended Motion

for Attorney Fees (Doc. 20) are DENIED; and

2. Plaintiff’s Amended Motion for Attorney Fees (Doc. 20) is

STRICKEN.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

49 Local Rule 7.1.