Opposition Brief — Andrews v. Howard

Supreme Coun. US.

FILED

$3 OCT 15 2010

No. 10-58 OFFICE OP THE CLERK

In The

Supreme Court of the Gnited States

MARK EDW. ANDREWS,

IY DOLICTLAS HOWART TR

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

JOANNE P. RINARDO

Counsel of Record for Respondent

NANCY J. MARSHALL

On Brief

DEUTSCH, KERRIGAN & STILES, L.L.P

755 Magazine Street

New Orleans, Louisiana 70130

Telephone: (5C4) 581-5141

Pacsimie: (004) 566-1201

jrinardo@dkslaw.com

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Can petitioner avoid fee shifting on remand

under 28 U.S.C. § 1447(c), by declaring that an

issue which the U.S. Supreme Court has ad-

dressed constitutes the “absence of clearly estab-

lished law, demonstrating a lack of reasonable

basis or clearly established law”?

Can petitioner claim that a lodestar analysis of

fee shifting has been bypassed when both the dis-

trict court and appellate court were bricfed on

the issue, and the lodestar analysis was applied?

Can petitioner re-litigate the validity of the

Order of Remand through continual appeals and

a request for rehearing on the issue of the attor

ney’s fees and costs awarded against him by the

Fifth Circuit Court of Appeals?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................

TABLE OF CONTENTS ....... il

TABLE OF AUTHORITIES ........... ill

STATEMENT OF THE CAGE......... l

BACKGROUND ......... ces caeets I

l. Relevant Facts.................. 2

If. Procedural History ........... | 3

REASONS FOR DENYING THE PETITION 5

6

~~

l. Existing case law established that removal

was not possible as an officer of the court or

through the need for a federal defender ......

2. Petitioner’s clients stated no federal ques:

Rp ISO RN eat Ae DOR Ee OSPR EE Peet Hes SRE aya

3. Award of fees supported petitioner’s

contentions that the lodestar analyses for

fee shifting was bypassed is patently un

CWI cuccvisses beVGAs UE SAUAAS AAD ASESEeS cu CadsRdSGREESAE SED CO IRA SKA

4. Petitioner is attempting an end around

appeal of the district court’s remand order...

CONCLUSION ..

APPENDIX

District Court Transcript of June 24, 2009 ........ App.

District Court Order of June 20, 2009..

lil

TABLE OF AUTHORITIES

CASES

Cammer v. United States, 350 U.S. 399 (1956) f

Ex Parte Garland, 71 U.S. 333 (1866) {

Hensley U. Kckerthart, 461 U.S. 424. 103 S.Ct

1933 (1983)....

Jefferson County, Ala. l Ar k er. SZ / [ J >. ee

199 S.Ct. 2069 (1999)

Johnson v. Georgta Highu a’ Iuxp , ine., 488

F.2d 1122 (5th Cir. 1969)...... 12. ]

Kircher v. Putnam Funds Trust, 547 U.S. 6383

126 S.Ct. 2145, 165 L. Ed. 2d 92 (2006) 14

Louisiana Power & Light Company

Kellstrom, 50 F.3d 319 (5th Cir. 1995). cert

dented sub nom., 516 U.S. 862. 116 S.Ct. 173

(1995) Dy Ava Ce MT 7 ae oa. 1]

Matter of Fender, 12 F.3d 480 (5th Cir. 1994),

cert. dented sub nom., 511 U.S. 11438, 114

S.Ct. 2165, 128 L. Ed. 2d 888 (1994)

Powerex Corp. v. Reliant Energy Servic Inc.,

_._ Us. 7 S.Ct. 2411. 168 L. Kad. 2a

b> Tk 1 1 gd RRR tecepeintooe ROP Ren Men nmr. SF 14

St. Germain v. Howard, 556 F.3d 261 (5th Cir

SETS Fw ccvicuccexe cone , oe ay 1O

United States v. Rice, 327 U.S. 742. 66 S.Ct

835, 90 L. Ed. 982 (1946)..... a 14

Willingham i Morgan 39D [ Ss 40Z 1969)

LABLE OF

{ 144]

( 1442

( 1442

\ 144,

( 147/

AT

+ |

THORITIES

c

(Continued

Page

STATEMENT OF THE CASE

BACKGROUND

This case first began in First City Court for the

City of New Orleans. Respondent, D. Douglas How

ard, Jr. (“Howard”) had filed a suit on an open ac

count against a former divorce client defendant,

Leslie Simmons St. Germain (“St. Germain”), seeking

recovery for payment of unpaid fees. Howard won and

collected the fees due. Petitioner, Mark Andrews

(“Andrews”), then sued respondent Howard on behalt

of St. Germain in the Civil District Court for the

Parish of Orleans, alleging, inter alia, that Howard

had committed legal malpractice and breach of con

tract. Petitioner requested that Howard join in a

voluntary Motion to Dismiss the legal malpractice

claims without prejudice which respondent lloward

did, believing that the matter had been put to rest

Respondent Howard was wrong. Petitioner then

filed on behalf of his client, St. Germain, and two

former clients of respondent, a RICO action in the

Federal Eastern District of Louisiana, alleging that

respondent had committed various RICO violations,

including mail fraud and wire fraud. Additionally,

petitioner, on behalf of his clients, reurged all the

claims that St. Germain had voluntarily dismissed in

the State Civil District Court. Finding that the de

fendants RICO allegations were meritless, the Feder

al Eastern District Court dismissed the case

Respondent appealed the dismissal to the United

Court of Appeals for the Fifth Circuit, but it affirmed

Lne aism! al and judyvyment wa entered accordingly

Petitioner filed writ t thy (Court. which were de

he pondent Howard filed a Petition for Defama

LIOoOn IN tate district court partly on pround of lodg

ing ol the anpove RICO action which falsely alleged

Lhat he had committed wire and mall fraud Petition

r, on behalf of his chent removed the defamation

iction to the Eastern District of Lousiana even

though he had no valid ground LO remove Lne Late

laim liowever, the Kastern District Court ren ind

1 the matter ind iwarded ittorney Tee tO! Q

frivolous remov: Petitioner appealed the award of

iLtorne y ree LO the ifth Circuit Clo lrt Ol Appeal!

Vhich affirmed the award ind awarded double cost

ind attorney jee for the frivolou appeal of the

ittorney lee aw rq Pet LIOQNG@I!I ournti anh (lil can

ehearing whic W a dente i Petitioner now“ eek

f ley ol the i i! | ‘ { { }

} r {

I RELEVANT FACTS

Petitioner represented forme: f Howare

in attorney known within the local con munity a fi

premiere divorce attorneyv who agrpre ively protect:

the interest Ol bLnose ( ent hioward repre ented

Hillary Hillyer (“Hillyer i! (OO D-ZvU0t Leshe St

tt binllye ‘

Pitot

KID

; ,

s

‘

Al

HISTOR

rationale of the district court’s decision to remand

and the Fifth Circuit’s affirmation of that remand.’

e ee

REASONS FOR DENYING THE PETITION

e Controlling case law existed at the time

of the removal, which established that a

private attorney could not remove a case

under 28 U.S.C. § 1442;

e There is no constitutional question

raised by the petitioner’s prior state

claims, nor did prior RICO legislation

raise a federal question;

¢ The district court did not abuse its dis-

cretion in taxing of costs and awarding

attorney's fees when no objectively rea-

sonable basis for removal existed. The

Fifth Circuit Court of Appeals correctly

sanctioned Andrews for a frivolous ap-

peal of the district court’s award;

¢ The lodestar standard was applied in

awarding attorney’s fees; and

° Petitioner’s continued appeals are an at-

tempt to circumvent the purpose of 28

U.S.C. § 1442.

Petitioner has not sought certiorari: on behalf of his

clients, but only on his own behalf. If this Court were to grant

the wnt, petitioner’s clients would still be responsible for th:

costs and attorney’s fees since they are not parties to the writ

6

1. Existing case law established that re-

moval was not possible as an officer of

the court or through the need for a

federal defender.

To qualify for removal under 28 U.S.C.

8 1442(a)(3), the defendant must show both that the

suit is based on actions taken under the color of office

and that the officer of the federal court has a colora-

ble federal defense. Jefferson County, Ala. v. Acker,

527 U.S. 423, 199 S.Ct. 2069 (1999). The district

court, having found that Andrews was not an officer

of the court for purposes of removal, could have

stopped its inquiry there.

Instead, the federal district court asked Andrews

to identify defendants’ purported colorable federal

defenses, which could include official immunity,

sovereign immunity, governmental tax immunity

doctrine, the government contractor defense, acting

within the course and scope of federal duties, and/or

that state law claims could impede enforcement of a

federal law. Andrews asserted the “federal contractors

defense,” 2.e., that he was under federal direction

when he filed his original brief. This new approach

prompted the following dialogue between Andrews

and the federal district court:

The Court: So I was directing you to do

what you did in this Court, to

file what you filed? Are you

saying I was the federal of-

ficer who was directing you to

do what you did?

Mr. Andrews: You didn’t direct me to file the

case, Your Honor.

The Court: Well, name the federal officer

who was directing you.

Mr. Andrews: The entire court was.

This interchange underscores the absurdity of

the argument and supports the district court’s award

of attorney’s fees as well as the sanctions awarded by

the Fifth Circuit. (Transcript, pg. 16, App. 16).

2. Petitioner’s clients stated no federal

question.

Petitioner also averred that the petition was

removable under 28 U.S.C. § 1441(b), which allows a

defendant to remove a claim over which the federal

court has original jurisdiction arising under the

Constitution, treaties or laws of the United States.

The test for original jurisdiction is whether the

federal court would have had jurisdiction over the

claims filed in the Petition being removed if it had

been filed in federal court. The Petition and the

Amending Petition asserted state law claims of

defamation, abuse of process, malicious persecution,

and intentional and negligent infliction of emotional

distress. Petitioner’s two former and present clients

asserted state law claims of malpractice and breach of

contract, in their reconventional demand. None of

these claims raise a federal question.

Nonetheless, petitioner argued that a_ federal

question was created because respondent Howard’s

Exception of Prescription, filed in state court, argued

that defendants’ reconventional claims were time

barred, where those claims had originally been dis-

missed without prejudice by the federal district court.

Again, petitioner was unable to cite any statutory or

jurisprudential law to support his argument.

Petitioner unsuccessfully argued that there was

“at least an informal recognition that the new re-

moved action had some kind of relation to the former

federal case, and that petitioner was not unreasona-

ble in thinking that such a relationship existed”

because the district court mentioned the prior RICO

suit. Petitioner failed to mention that the discussion

was in the context of the district court chastising him

for filing a motion to remove that was as baseless as

the RICO case which had been dismissed:

And it’s already been decided, in this Court

and the Fifth Circuit, that the underlying

RICO case was legally untenable.

(Transcript, pg. 22, App. 22)

Tne federal district court’s observation that both

the suit and motion were baseless hardly creates a

federal question or any other grounds for removal.

The federal district court held that “there are no

federal causes of action or claims pled in the state

court lawsuit to make it removable under the federal

question jurisdiction.”

Clearly the district court wanted to send a mes-

sage to Andrews when it awarded attorney’s fees and

costs. In the hearing, the district court noted:

It is true that both this Court and the Fifth

Circuit denied the defendant’s, Mr. Howard,

in that case, the defendant’s motion for sanc-

tions. I don’t recall exactly what was said

about that at the time, frankly, but I think I

made a ruling for the bench, as I recall. But

I'm not a big fan of sanctioning lawyers, and

Ym assuming i just gave Mr. Andrews the

benefit of the doubt by not sanctioning him;

although it was certainly plausibie that he

coula have been sanctioned, I think, for filing

the RICO suit, which was totally baseless, as

far as I am concerned.

The Fifth Circuit, as I recall, also, in denying

the sanctions, made the comment that it was

a very close call, which means they could

have gone either way.

Mr. Andrews, before you file anymore, you

now, you filed a RICO claim in this Court,

that was totally baseless; now. you’ve filed a

removal, which was totally baseless. I am

imposing fees and costs this time. This has

got to stop. And I strongly suggest you do a

lot more research before you start filing

things in federal court again.

(Transcript pg. 25, App. 25). Thus, under the facts

and in light of defendants’ failure to legally support

the removal, the award was appropriate.

10

The Fifth Circuit Court of Appeals affirmed the

District Court as follows:

We recently considered a similar request by

Appellee in litigation involving these parties

in St. Germain v. Howard, 556 F.3d 261,

264 (5th Cir. 2009) (“Howard I”). In Howard

J, we dismissed the Appellant’s appeal con-

cerning their RICO suit brought against Ap-

pellee and two law firms with which he is

affiliated without imposing sanctions. See id.

at 264. However, we noted that it was a

“close case” on our decision to deny sanction

because the Appellants did not clearly pre-

sent a cognizable civil RICO claim. /d. Here,

we impose sanctions of double costs and at-

torney’s fees against Appellant. Supreme

Court cases exclude a private attorney from

the meaning of “officer of the court,” and the

district court found Appellant’s “officer of

the court” argument to be a_ ridiculous,

“farfetched notion.” Appellants were on no-

tice that the overruling of objections to re-

mand was an obvious result when they were

unable to support their argument at the dis-

trict court. This appeal is frivolous for pur-

poses of Rule 38.

For the foregoing reasons, we AFFIRM

the judgment of the district court and

GRANT the motion for sanctions and double

costs and attorney's fees.

The Fifth Circuit’s opinion confirmed that a

constitutional question was not raised by petitioner’s

11

state claims and that petitioner’s prior RICO legisla-

tion did not raise a federai question. Petitioner’s

burden of the additional $5,867.00 imposed by the

Fifth Circuit pales when compared to the defense

costs of over $130,000 that petitioner imposed upon

respondent with his never-ending baseless pleadings

filed in city court, civil district court, state appellate

court, federal district court, federal appellate court,

the U.S. Supreme Court, and the state disciplinary

counsel. The writ of certiorari applied for should be

denied so that the sanctions awarded by the Fifth

Circuit Court of Appeals are upheld.

3. Award of fees supported —- petitioner’s

contentions that the lodestar analyses

for fee shifting was bypassed is pa-

tently untrue.

Petitioner poses the question, “May lodestar

analysis of fees shifting be bypassed?” it was not.

Federal law allows that “la]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.” 28 U.S.C. § 1447(c). In the

Fifth Circuit, the “lodestar” method is used to calcu-

late reasonable attorney’s fees. Matter of Fender, 12

F.3d 480, 487 (5th Cir. 1994), cert. denied sub nom.,

511 U.S. 1148, 114 S.Ct. 2165, 128 L. Ed. 2d 888

(1994). Under the “lodestar” analysis, the determtina-

tion of reasonable attorney’s fees involves a two-step

procedure. Loutstana Power & Light Company ov.

Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995), cert. denied

12

sub nom., 516 U.S. 862, 116 S.Ct. 173 (1995), citing

Hensley v. Eckerthart, 461 U.S. 424, 433, 103 S.Ct.

1933, 1939 (1983). Initially, the district court must

determine the reasonable number of hours expended

on the litigation and the reasonable hourly rates for

the participating lawyers. /d. Then, the district court

must multiply the reasonable hours by the reasonable

hourly rates. Jd. The product of this multiplication is

the lodestar, which the district court then either

accepts or adjusts upward or downward, depending

on the circumstances of the case, assessing the dozen

factors set forth in Johnson v. Georgia Highway Exp.,

Inc., 488 F.2d 1122 (5th Cir. 1969).

In Johnson, the Fifth Circuit identified twelve

factors to be considered in determining an award of

reasonable fees, which are applied “whenever the

award of reasonable attorney’s fees is authorized by

statute.” Here, the district court applied these factors

when awarding the attorney’s fees. Petitioner did not

even object to the hourly rate awarded Ms. Rinardo,

but nitpicked at such things as whether 3.8 hours for

researching petitioner’s arguments was too much.

The district court’s order makes it clear that the

lodestar method was applied when it awarded

$7,088.00. The Fifth Circuit affirmed that award and

sanctioned Andrews and his clients for a frivolous

appeal. (App. 28).

When Howard filed a Motion and Memorandum

for Attorney’s Fees in the Fifth Circuit, the court

applied the lodestar method with detailed discussions

of the number of hours expended on the litigation

13

and the reasonable hours for the participating attor-

neys, as well as the twelve factors enumerated in

Johnson v. Georgia Highway Express, Inc., 488 F.2d

714, 717-718 (5th Cir. 1974). Andrews claim that the

lodestar was bypassed has no merit and is factually

incorrect.

4. Petitioner is attempting an end around

appeal of the district court’s remand

order.

Although Petitioner has not styled this action as

an appeal of the district court’s remand order and the

Fifth Circuit’s affirmation thereof and sanctions, it is

respectfully suggested that he is, nonetheless, at-

tempting to put the appropriateness of the remand

order at issue before this Honorable Court. While the

United States Court of Appeals for the Fifth Circuit

correctly noted in its opinion of March 5, 2010, that

appellants had not sought review of the remand

decision, it appears that Petitioner is now contesting

the district court’s remand order through this writ of

certiorarl.

The remand order is non-appealable under 28

U.S.C. § 1447, which provides, in pertinent part that:

(d) An order remanding a case to the

State court from which it was removed

is not reviewable on appeal or other-

wise, except that an order remanding a

case to the State court from which it

was removed pursuant to section 1443

14

of this title shall be reviewable by ap-

peal or otherwise.

The bar against appeal of a remand order applies to

remand orders made on grounds authorized in 28

U.S.C. § 1447(c), t.e., lack of subject matter juris-

diction and a defect in the removal process. Powerex

Corp. v. Reliant Energy Services, Inc., U.S. ;

127 S.Ct. 2411, 2415, 168 L. Ed. 2d 112 (2007).

Referring to the 28 U.S.C. § 1447(d) bar to the

review of remand orders, this Court has noted that:

“the policy of Congress opposes ‘interruption of the

litigation of the merits of a removed cause by pro-

longed litigation of questions of jurisdiction of the

district court to which the cause is removed.”

Kircher v. Putnam Funds Trust, 547 U.S. 633, 126

S.Ct. 2145, 2152, 165 L. Ed. 2d 92 (2006), citing

United States v. Rice, 327 U.S. 742, 66 S.Ct. 835, 90

L. Ed. 982 (1946). In Rice, the Supreme Court ruled

that:

Congress, by the adoption of these pro-

visions, as thus construed, established

the policy of not permitting interrupt-

ing of the litigation of the merits of a

removed cause by prolonged litigation

of questions of jurisdiction of the dis-

trict court to which the cause is re-

moved. This was accomplished by

denying any form of review of an order

of remand, and, before final judgment,

of an order denying remand.

Petitioner’s application for a writ of certiorari

attempts just what the statute forbid: “the inter

ruption of litigation of the merits of a removed cause

by prolonged litigation of questions of jurisdiction

For this reason, the sanctions award should be up

held, and the writ of certiorari should be denied

*

CONCLUSION

The district court not only remanded this matter

to state court, but exercised its discretion and award

ed Howard all attorney’s fees incurred in remanding

the suit. The award was affirmed by the Fifth Circuit

Court of Appeals, which then awarded attorney’s fee

and double costs for a frivolous appeal. The award

was appropriate because petitioner was unable to cite

any legal support for the removal. Instead, petitioner

proferred theories for removal that were deemed “far

fetched” and a “crazy notion” by the lower court. The

sanctions incurred are well-documented and reason

able. The requested writ of certiorari should be denied

Respectfully submitted

JOANNE P. RINARDO

NANCY J. MARSHALI

On Brief

DEUTSCH, KERRIGAN & STILI LJ

755 Magazine Street

New Orleans, Louisiana 7O1L3O

Telephone: (504) 581-5141]

Facsimile: (504) 566-1201]

Counsel of Feecord for Responde ni

UNITED STATES DISTRICT COURT

HASTERN DISTRICT OF LOUISIANA

D. DOUGLAS HOWARD, JR

V

LESLEY SUMMONS ST. GER LOUISIANA

MAIN, LILLLARY ROSE SMITH WEDNESDAY

09-3450 “J

NEW ORLEANS

MELISSA BRANIGHAN, MARK JUNE 24, 2009

KDW. ANDREWS, ANDREWS 9-30 AM

ARTS & SCIENCES LAW, LLC, 4

DAVID EF. SIMMONS, DDS

TRANSCRIPT OF PROCEEDING

HEARD BEFORE

THik HONORABLE CARL J. BAKRBIER

UNITED STATES DISTRICT JUDGE

APPEARANCES

FOR THE PLAINTIFI

HOWARD & REED

BY: SHAWN ©. REED, ESQUIK!

AMY YENARI, ESQUIRE

16N. COLUMBIA STREET

COVINGTON, LA 70433

HOWARD & REED

BY: D. DOUGLAS HOWARD, JR., kSG

JONATIIAN PETERS, ESQUIRE

9ST. CHARLES AVENU!

SUITE 306

KEW ORLEA

CIVLL DOCKET N

(

}

RR THE DEFENDAN'I

ANDREWS ARTS & SCIENCES LAW, LILA

BY: MARK EDW. ANDREWS, ESQUTRI

7104 COLISEUM STREE'

NEW ORLEANS LA 7011

Reihit COUNTER DEFIENDAN'

DKMUTSCH, KERRIGAN & [1] LI

BY: JOANNE RINARDO, KSQUIRI

5H MAGAZINE S']

NEW ORLEANS LA 70]

FRIC] COURT REPORTER

CATHY PEPPER, CRR, RMR, CC!

00 POYDRAS STREET, ROOM |

W ORLEANS L.A 701

104) 589-7779

PHROCKEDING,

so here we are, again

Frankly, Judge, this is a case that involves purely

state court causes of action. In the 7revino case, as

this Court is aware, the Supreme Court said that you

can avoid federal court by the plaintiff only using

relying on state court causes of action

Well, as you know, this saga began in First City

Court for the collection of a debt. It has escalated

this point now, and it’s an ongoing attack on the

personal and professional reputation and integrity of

]

Mr. Howard. One would think that this would have

‘ :

( nded at some point, bu

THE COURT What’s the status of the

MS. REED: Open account

THE COURT by Mr. Howard against Ms

ie \ + > + a ry } .s \

St. Germain and [5] somebody else

MS. REED [hat’s correct. That’s correct

THE COURT for some legal work he «

nnection with a divorce, right’

MS. REED That's COrreci

THE COURT What were the amount of the

legal fees involved?

MS. REED: About $4,000.

THE COURT: $4,000. And now we've had

two federal lawsuits, two state court suits, RICO

suits, defamation suits, appeals to the Fifth Circuit,

writs to the U.S. Supreme Court

MS. REED: Yep.

THE COURT: over a suit for attorney’s

fees over three or $4,000.

MS. REED: And I would tell you, Judge,

that

THE COURT: ITIl tell both sides here, this

is absurd. Both of you, both sides need to grow

up here and make this go away. I mean, this is abso-

lutely mdiculous. Okay.

You can proceed from there

MS. REED: Judge, and I want to —I want

to make this clear that I think it was Mr. Howards

intention to make —

THE COURT: Mr. Howard has now collect-

ed his fees, right?

MR. HOWARD: Yes.

MS. REED: Yes. But we have paid over

$100,000 in fees [6] to defend the suits brought by

Mr. Andrews. In addition to that, Your Honor,

Mr. Andrews doesn’t stop. He’s now posted this in

formation on his web site about Mr. Howard. He's

App. 6

written the bar association on numerous occasions.

which cases have been dismissed.

If Mr. Andrews would stop the continuous on-

going attacks, then perhaps we could end this matter;

but, it’s impossible to do that.

So, with that said, Your Honor, the reason I got

involved in this case, and I']l tell you, is because I felt

like maybe I could interject some levity and calm

between the parties. And the very first thing I do is

get a motion for sanctions filed against me. I’ve never

met this man before in my life before this morning,

and | still haven’t formally met him. So I agree with

you that this is a very difficult case. But I will tell you

THE COURT: I didn't say it was a very

difficult case.

MS. REED Well. it’s absurd.

THE COURT: You said. I said it’s absurd. is

what I said. Yes.

MS. REED: But it’s on ongoing character

assassination that hasn’t stopped. If you go to his web

site today, you'll find all of this information, that

Mr. Howard has basically stolen from chents, his

malpractice, his — on and on and on and on.

}

i

‘

} So, with that said, in an effort to try to stop

this, the plaintiffs filed a suit on state court causes

of action solely, Your Honor. And these state court

App. 7

causes of action are defamation, malicious prosecu-

tion, abuse of process, intentional and negligent

infliction of emotional distress. There were absolutely

no federal claims whatsoever urged in this case.

There is no federal question. I think this Court

previously dismissed the RICO actions; and, so, from

that, the defense now wants to argue that that

THE COURT: Which was affirmed by the

Fifth Circuit, right?

MS. REED: Which was absolutely affirmed

by the Fifth Circuit.

THE COURT: Now, Mr. Andrews says he’s

got a pending writ application to the U.S. Supreme

Court?

MS. REED: Yes, sir, but that’s really irrele

vant to this case, and [ll tell you why. It’s because in

this very lawsuit, Mr. Andrews filed a reconventional

demand, where he realleged all of the same things.

So, regardless of what happens with the RICO suit,

Mr. Howard still has the same exact state court

claims because it didn’t just end or begin with the

RICO. It’s an ongoing. It’s everywhere. It’s the bar

association. It’s in the community. It’s on his web site.

So, really, what happens with the U.S. writ is not

going to change what’s ongoing in state court for

defamation and [8] malicious prosecution and his

ongoing intentional infliction of emotional distress.

App. 8

Judge, this is a case that, although RICO claims

were made, those are just a small minutia of the facts

that make up this state court claim. And to say that

this Court’s dismissal of the RICO action, and the

Fifth Circuit approving that, somehow turns a defa-

mation suit into a federal question is also ludicrous,

Your Honor. There is no — the very fact that this

Court dismissed the RICO case, the Fifth Circuit

approved the dismissal, if anything, supports the fact

that there is no federal jurisdiction or federal ques-

tion in this case.

No new — in the original petition, all of the same

set of facts were contained in the original petition

that was filed in Civil District Court. The supple-

mental and amending petition filed by Mr. Howard

really just recited more specifically the various causes

of action. So our first argument is, his whole removal

was untimely because —

THE COURT: What defenses, other than

trying to remove — removing this case here, removing

Mr. Howard’s defamation and malicious prosecution,

et cetera, state court suit, what defenses, affirmative

defenses, has Mr. Andrews or his clients asserted

here in this case?

MS. REED: Well, I think that that’s a very

important question because, under his argument that

he is an officer of the court, not only would he have to

be an officer of the court, [9] which we say he’s not

and we'll get into that, the second part of that test by

the Supreme Court is that he would have to have a

App. 9

federal defense in order to maintain jurisdiction

under 22 1442 — 28 U.S.C. 1442. The only defenses

that he’s alleged in this case, res judicata, prema-

turity, and prescription.

THE COURT: Res judicata based on —

MS. REED: On the fact that —

THE COURT: —- the fact that 1 did not

sanction him, and the Fifth Circuit did not sanction

him’?

MS. REED: Yes.

THE COURT: Okay.

MS. KEED: And so, therefore but, Your

Honor, all of those claims are still state court, state

court claims. The prescription would apply state court

law of prescription and tolling or peremption. Res

judicata would also apply in state court, what the

state court res judicata laws would be. Prematurity

are state court prematurity. And this Court would

really just be applying state court defenses to a state

court cleiin.

Under 1441 — let’s look ~— that’s another thing

that he argues. Well, would it have been proper to file

this suit in federal court to begin with? And the

answer is absolutely not. There is no diversity be-

tween the parties. There is no federal claim here. The

amount in controversy is over $75,000. The legal fees

alone are over $100,000, and that’s [10] an actuai

App. 10

damage. So there is no way that this suit could have

been filed as original jurisdiction in federal court.

Then, Mr. Andrews attempts to say that, well,

he’s an officer of the court; and, now, in his reply

brief, he says, well, that’s novel law. That’s not novel

law. There is plenty of law to the effect that just

because we're licensed to practice before a federal

court doesn’t make us a federal officer of the law or

officer of the court.

There’s several cases that we cited, one very

similar to this where Mr. Berg successfully defended

himself in federal court under a malicious — it was a

racketeering case, then filed a malicious prosecution

action. The defense tried to remove it to federal court

by saying, well, that case arose in federal court, it

was about a racketeering charge; and, so, therefore,

the malicious prosecution involves a federal question.

The Ninth Circuit sent it back and said, abso-

lutely not. That’s a state court issue. It needs to go

back to state court. Just by the very fact that you

would have to look at some federal issues involved

does not change it into a federal question case that

would be removable.

Same in the Cammer case. A defendant was held

by its local bar association — he was in private prac-

tice, he was also held on disciplinary charges — that

was the Shimek case. He came up on disciplinary —

THE COURT: Carnmer was the case where

the lawyer —

App. 11

[11} MS. REED: In contempt.

THE COURT: in federal court was held in

contempt —

MS. REED: Right.

THE COURT: under a statute which

allows a federal judge to find in contempt an officer of

the United States for violation of their official duties.

MS. REED: You're exactly right.

THE COURT: Yes.

MS. REED: And in Shimek, this attorney

that had — because of what he did in federal court, the

state filed disciplinary action against him. He sought

to remove his disciplinary proceeding to federal court

saying, well, this started in federal court. And they

said, no. They sent it back.

The U.S. Supreme Court — citing the U.S. Su-

preme Court case of Willingham that says just be-

cause a lawyer is can practice before the court

doesn’t make them an officer of the court. An officer of

the court — even if — well, let’s — even if we assume

that he wins on his issue that he is an officer of the

court — which clearly he’s not under any case that he’s

cited. In fact, | don’t think he ever cited a case that

made him an officer of the court. Even if that was the

case, the test under 1442 1s not only are you an officer

of the court, you also have to have a federal defense

available to you under 1442.

App. 12

This is clearly to prevent a state from applying —

[12] going off and applying some weird law to a

federal officer that, in federal court, would be given

immunity of some sort, or they were actually working

for the government.

Not only does he not have a defense, and he’s not

an officer of the court, I can’t find anywhere in his

pleadings where he’s ever even alleged that he has

a federal defense in this case. So, therefore, he cer-

tainly hasn’t met the test under 1442 for federal

jurisdiction.

And under 1441, there is nothing that’s been

done and nothing that could happen in the future,

with the U.S. Supreme Court or any other court, that

would change this issue into a federal question.

THE COURT: All right. I understand your

argument. Let me hear from Mr. Andrews. Thank

you.

MS. REED: Thank you, Your Honor.

THE COURT: Mr. Andrews —

MR. ANDREWS: § Yes, Your Honor.

THE COURT: — you removed this case,

what is ostensibly, on its face, a pure state law claim

based on state laws of defamation, malicious prosecu-

tion and abuse of process, you removed it to federal

court on two grounds, as I see it, right?

MR. ANDREWS: Yes, Your Honor.

App. 13

THE COURT: One, on behalf of all defen-

dants, that there is a federal question, so it arises

under federal law. And, [13] secondly, that as it per-

tains to you as a named defendant, that you being,

quote, an officer of the court, you have a right to

remove it under the so-called federal officer removal

provision.

MR. ANDREWS: § Yes, Your Honor.

THE COURT: Let’s talk about the federal

officer removal statute first. Do you have a single

case which holds or implies in any way that a private

lawyer in private practice who practices in federal

court is an officer of the United States courts for the

purposes of this removal statute or any other statute?

MR. ANDREWS: I do not have a case that

holds so. What I have is the Herron case from 1994 or

96, in the Fifth Circuit, where, in footnote two, they

say, “We do not reach this question.”

THE COURT: They say, “We do not reach

this question.” That’s a far cry from holding or even

implying that that’s the law, right?

MR. ANDREWS: Yes, Your Honor. But |

have the First Circuit —

THE COURT: So Im asking you, again, do

you have a single case? And I think you’ve answered

it, but ’'m assuming, it sounds like you have no case.

MR. ANDREWS: Your Honor, [ have the

First Circuit case of Jones vs. Pinetta, where a court

App. 14

reporter was found to be allowed LO remove unde r the

statute.

[14] THE COURT: Well, this is a court

reporter reporting 1n federal court. That’s a far ery

from a private lawyer

Certainly, if you sued my court reporter in federal

court for something — 1 mean, in state court for some

thing she did here, I would guess she would be a

federal officer and able to remove: but, that’s a far cry

from you being a private lawyer in private practice

I mean, [ just think this is such a farfetched

notion that it’s ridiculous. And I was hoping that you

could come up with one single case to tell me where

you came up with this sort of crazy notion that a

private lawyer can somehow be a federal officer, an

officer of the United States courts, for purposes of the

removal statute

MR. ANDREWS: Your Honor, [| have the

line of cases that interpret subsection one of the

federal officer removal statutes. Most of the cases

have been based on the contractor defense, federal

contractor defense.

THE COURT: That’s the whole purpose of

the federal officer removal statute. It’s to make sure a

federal officer engaged in executing his or her official

duties is not subject to, for example, arrest in state

court for just, you know, performing their official

duties, in state court. And they can’t — they’re allowed

to remove it here so they can assert a federal defense

App LD

such as the common one is immunity, federal officer

immunity; or, 1n the case of a contractor, federal | 15]

contractor defense

I mean, this is something I've just | don’t know

where you pulled this notion out of the alr some

where, you know. I'm waiting to hear what basis you

have for making this allegation

MR. ANDREWS Your Honor, under ub

section one, and in mostly federal contractor case

people acting under federal officer

THE COURT: Which federal officer were

you acting under when you did whatever youre

alleged to have done in the court? What federal officer

was directing you to file the pleadings you filed, o1

file the RICO suit, or filed any other pleadings that

youre and I’m not making any understand, I’m

not making any prejudgment here on any validity

whether there is any validity at all to Mr Howard

state court claims against you. But in the federal

contractor defense context, the contractor has to show

that the contractor was acting pursuant to the dire

tions of a federal officer

For example, the government comes up with

plans as to how to build something, and they tell the

hire a contractor, and this is how we want it built

and designed. And the contractor does it in accor

dance with the government’s specifications and di

rections; then, they are generally entitled to assert

the federal contractor defense

App. 18

MR. ANDREWS: Your Honor, that was

under 1441.

THE COURT: Did you find that case?

MR. ANDREWS: Yes, sir, I cite it in my

brief. And what Rivet held was that the claim preclu-

sion was a federal defense; and, therefore, in the

Rivet case did not create removability [18] under

Section 1441.

But my reading of Rivet, and I quoted from Rivet

in my reply brief — ’m sorry, my response brief, and

they said that claim preclusion is a defense; and,

therefore —

THE COURT: Sure, it’s a defense. It can be

a defense. It’s a defense in state court. But you can

raise that in state court, and the state court is fully

competent of ruling on that.

Okay, let’s move on to another question, because

you're not doing too well, here, Mr. Andrews, so far.

What is the federal law that would give this

Court federal question jurisdiction?

MR. ANDREWS: 28 U.S.C. Section 1367(d),

Your Honor.

THE COURT: All that statute provides is

that when I dismissed the federal RICO claim with

prejudice, and then I dismissed your state law claims

in the original underlying suit without prejudice, you

had a right to go back and refile those in state court,

if you did it timely.

App. 19

MR. ANDREWS Yes, Your Honor.

THE COURT: And whether you did or did

not, the state court will have to sort that out: but,

that doesn’t give you federal jurisdiction here. Those

were on that’s on the supplemental jurisdiction

claims.

MR. ANDREWS: Your Honor, you did

THE COURT: So that’s your only argument

here for federal question is TRB7(d)?

[19] MR. ANDREWS: Mr. Howard sued me

THE COURT: No. Answer my question

MR. ANDREWS: No. Your Honor. I have a

much weaker claim based

THE COURT: You have a weaker one than

)

that’

MR. ANDREWS Yes, sir

THE COURT: Well, let me hear what the

weaker one is because

Mk. ANDREWS: The weaker one is based

on the civil RICO suit. The stronger one is the

1367(d), which would normaily be something to be

worked out in state court. It would normally be the

plaintiffs/counter-defendants’ defense to the counter-

claims; but, he amended his complaint, his main

action. He amended it to include claims against me for

filing the reconventional demand that I was supposed

App. 20

to have known was time barred. He, therefore, made

this federal question of 1367(d) a part of his main

action.

THE COURT: Are you suggesting that any

time a lawyer does something in federal court and

is subsequently sued in state court for legal mal-

practice, say, or under any state law theory, that

that’s removable to federal court? Because that’s

where your argument would lead to. We'd have

almost well, we’d have a whole slew of state law

cases removed here just because it involved a lawyer

who did something in federal court.

MR. ANDREWS: No. Your Honor, that’s not

what I’m [20] saying.

THE COURT: That seems to be where your

argument would go, you know, would lead to. That

would be a logical conclusion.

MR. ANDREWS: The original action for

defamation was not removable. I looked. It wasn’t

removable. It was only when these claims for my

bringing the reconventional demand two weeks

earlier, only when those claims were amended into

the petition that it —

THE COURT: 1 don’t see where anything

really changed. It sounds like Mr. Howard just

thought of a few other legal bases, but he was alleg-

ing the same basic facts. I mean, all of this comes

from the original RICO lawsuit and what you did in

state court in connection with that —

App. 21

MR. ANDREWS: Your Honor, he -

THE COURT: -— that you accused him of all

of these things. And I don’t Know how that changes

anything.

MR. ANDREWS: He could not have sued

me for filing the reconventional demands until I filed

the reconventional demands two weeks before he

sued me on them.

THE COURT: But the reconventional de-

mands just regurgitated what you had already al-

leged in this Court and in state court. I don’t see how

that changed anything.

MR. ANDREWS: Because he sued me for

bringing them as time barred. That was an element

of his suit, because they were time barred. It didn’t

matter what they said.

(21) THE COURT: If they are, they are; if

they are not, they are not. But state court can figure

that out as well as I can. I don’t see any way that

gives us federal jurisdiction here.

Anything else you want to add, Mr. Andrews’?

MR. ANDREWS: No, Your Honor. Thank

you.

THE COURT: All mght. As I said, this case

arises out of a suit originally brought by Attorney

Douglas Howard in First City Court seeking un-

paid legal fees against Ms. St. Germain. And, ulti-

mately, at some point, a default was entered when

o»)

App. 22

Ms. St. Germain did not timely answer that lawsuit

in First City Court, and a judgment was entered on

behalf of Mr. Howard.

Apparently, after being unable to get that judg-

ment set aside, Mr. Andrews, on behalf of Ms. St.

Germain and another client, came to this Court and

filed a federal RICO, a racketeering lawsuit, against

Mr. Howard alleging that he had engaged in a crimi-

nal racketeering enterprise in conjunction with his

practice of domestic law.

This Court, ultimately, after hearing argument

on the case, on the motions to dismiss — | don’t re-

member now if it was a motion to dismiss or a motion

for summary judgment, but 1 held that the plaintiffs

in this Court, in the RICO case, failed to state a

viable claim under RICO, and I dismissed all the

federal claims in that case with prejudice, and |

dismissed the supplemental state law claims without

prejudice.

The plaintiffs in that RICO case appealed to the

[22] Fifth Circuit. The Fifth Circuit affirmed the

dismissal. It is true that both this Court and the Fifth

Circuit denied the defendant, Mr. Howard, in that

case, the defendant’s motion for sanctions. I don’t

recall exactly what was said about that at the time,

frankly, but I think I made a ruling from the bench,

as I recall. But I’m not a big fan of sanctioning law-

yers, and I’m assuming I just gave Mr. Andrews the

benefit of the doubt by not sanctioning him; although,

it was certainly plausible that he could have been

App. 23

sanctioned, | think, for filing that RICO suit, which

was totally baseless, as far as I am concerned.

The Fifth Circuit, as I recall, also, in denying the

sanctions, made a comment that it was a very close

call, which means that could have gone either way.

My understanding is the underlying judgment

has been paid; is that right? The legal fees have been

paid?

MS. REED: Yes, Your Honor.

THE COURT: It would have been nice if

everybody would have just acted as grown-ups at that

point and put this thing, this mess behind them; but,

for whatever reason, neither side appears capable of

doing that.

It’s alleged — and | haven't looked at Mr. An-

drews’ web site, but it’s alleged that Mr. Andrews and

his chents are continuing on what might be termed a

vendetta, a retaliation against Mr. Howard. Mr.

Howard, in turn, has filed a state court lawsuit

alleging defamation, abuse of process and [23] mali-

cious prosecution. Again, I’m not going to attempt to

judge the validity of any of those claims.

And as a result of the filing of that suit, we’re

here now because Mr. Andrews removed that state

court lawsuit here, arguing that there is federal

jurisdiction under the so-called federal officer re-

moval statute and/or under the federal question

statute, removal statute.

App. 24

I think neither of those arguments are plausible

for the reasons I’ve largely stated. It’s clear to me

that there are a number of cases — it is hard to find a

case precisely on point like this one, and maybe

because this is so farfetched that nobody else has

thought of filing something like this; but, in my view,

there is no way that a private lawyer, acting in his

private capacity in private practice, who handles a

case in federal court can be considered an officer of

the Courts of the United States for purposes of the

removal statute.

And there is plenty of case law that indicates

that that is the proper analysis. And you can look at

the Cammer case from the United States Supreme

Court, Cammer versus United States, where the

Supreme Court held that a lawyer was not an officer

of the court within the statute empowering federal

court to punish as contempt misbehavior of any of its

officers in their official transactions.

The district court case out of Florida, Florida

versus Shimek, S-H-I-M-E-K, 1973, which held that a

lawver is not [24] an officer for removal statute

purposes. There, an officer attempted to remove —

apparently, a lawyer, I mean, had done something in

federal court which led to state disciplinary proceed-

ings against him. And he argued that he was an

officer of the federal court acting in that capacity;

therefore, he could remove the state disciplinary

action to federal court. The court said, no, that’s not

correct.

App. 25

And one case that’s pretty close to our case here,

closest in terms of factual background, is Berg versus

Leason, a Ninth Circuit case from 1994, where after

successfully defending himself in federal court against

allegations of violations of federal security and rack-

eteering laws, the plaintiff, who had been the defend-

ant in the federal court action, plaintiff sued in state

court for malicious prosecution. And the defendant

removed the case; and, the circuit court — the district

court refused to remand it. The Court of Appeals held

that malicious prosecution claim did not arise under

federal law simply because one element of proof re-

quired that the underlying action was legally unten-

able. And it’s awfully close to we have here.

Ard it’s already been decided, in this Court and

the Fifth Circuit, that the underlying RICO case was

legally untenable. Whether or not that ultimately leads

a state court to conclude that it would be considered

malicious prosecution or abuse of process or defama

tion is another matter to be decided in state court.

[25] So Mr. Andrews is not a federal officer.

Beyond that, he has not raised a colorable federal

defense. And, lastly, there are no federal causes of

action or claims pled in the state court lawsuit to

make it removable under the federal question juris-

diction. And so, for those reasons, I’m going to grant

the motion to remand this case. ’m remanding it for

lack of federal subject matter jurisdiction.

Mr. Andrews, I’m going to — was there a request

for sanctions in this case or for imposition of fees and

costs?

App. 26

MS. REED: Yes, Your Honor, there was.

THE COURT: I’m going to award Mr.

Howard reasonable attorney’s fees and costs in con-

junction with needing to file the motion to remand

and arguing it here today. I’m going to order that a

motion for fees, properly supported and documented,

be filed within 15 days; that any opposition or tra-

verse to that motion be filed seven days thereafter,

and I'll issue my ruling on that.

All right.

MS. REED: Thank you, Your Honor.

MR. HOWARD: Thank you, Your Honor.

THE COURT: Mr. Andrews, before you file

any more, you know, you filed a RICO claim in this

Court, which was baseless; now, you’ve filed a remov-

al, which was totally baseless. I am imposing fees and

costs this time. This has got to stop. And I strongly

suggest that you do a lot more research before you

start [26] filing things in federal court, again.

Thank you, Counsel.

MS. REED: Thank you, Yeur Honor.

(WHEREUPON, at 10:10 a.m., the proceedings

were concluded.)

App. 27

REPORTER’S CERTIFICATE

I, Cathy Pepper, Certified Realtime Reporter,

Registered Merit Reporter, Registered Professional

Reporter, Certified Court Reporter, Official Court

Reporter for the United States District Court, East-

ern District of Louisiana, do hereby certify that the

foregoing is a true and correct transcript, to the best

of my ability and understanding, from the record of

the proceedings in the above-entitled and numbered

matter.

s/ Cathy Pepper

Cathy Pepper, CRR, RMR, CCR

Official Court Reporter

United States District Court

App. 28

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

D. DOUGLAS HOWARD, JR. CIVIL ACTION

VERSUS NO: 09-3450

ST. GERMAIN ET AL SECTION: J(4)

ORDER

(Filed Jul. 20, 2009)

Before the Court is Plaintiff's Motion for At-

torney’s Fees (Rec. Doc. 59), filed in accordance

with the Court’s ruling in open-court on June 24,

2009, which granted Plaintiff’s motion to remand the

above-captioned matter and awarded attorney’s fees

and costs under 28 U.S.C. § 1447(c) in connection

with Defendants’ wrongful removal of this case.

Plaintiff avers that no costs were incurred in the

filing of the motion to remand, and thus he seeks only

a reasonable attorney’s fee in the present motion. The

Defendants’ opposition attempts in large part to

argue against the validity of the Court’s determina-

tion that a fee award is warranted in the present

circumstances. As the Court has already made its

determination as to the propriety of an award under

§ 1447(c), the Court will not address Defendants’

arguments that such an award is improper.

To the extent Defendants oppose the quantum of

Plaintiff’s requested award, the Court finds that

Defendants’ arguments are unavailing. Under the

provisions of § 1447(c), “[aJ]n order remanding [a]

App. 29

case may require payment of just costs and any

actual expenses, including attorney’s fees, incurred as

a result of the removal.” 28 U.S.C. § 1447(c). “(T]he

imposition of both costs and attorneys’ fees against

the removing party may be awarded in the Court’s

discretion” upon a finding that removal is improper

under § 1447(c). Miranti v. Lee, 3 F.3d 925, 928 (5th

Cir. 1993).

The Fifth Circuit adheres to the “lodestar” meth-

od for calculating reasonable attorneys’ fees in the

context of an award under § 1447(c). Halliburton

Latin America SA v. Intern. Technical Solutions, 273

F.3d 392, 392 (5th Cir. 2001). This method requires

the district court to “determine the reasonable num-

ber of hours expended on the litigation and the rea-

sonable hourly rate for the participating lawyers”

based on “contemporaneous billing records or other

sufficient documentation so that the district court can

fulfill its duty to examine the application for

noncompensable hours.” La. Power & Light Co. v.

Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). “A lode-

star is calculated by multiplying the number of hours

reasonably expended by an appropriate hourly rate in

the community for such work.” Heidtman v. County of

El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). The

lodestar is presumed to be the reasonable fee, but it

may be adjusted after considerations of the factors

listed in Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714, 717-19 (5th Cir. 1974), overruled on

other grounds, Blanchard v. Bergeron, 489 U.S. 87

App. 30

(1989). Gonzalez v. Associates Health & Welfare Plan,

2002 WL 31933208, 1 (5th Cir. 2002).

In this case, Plaintiff has requested a fee award

in the amount of $7,088.00, which the Court finds to

be appropriate in light of the hours reasonably ex

pended and the hourly rate charged in procuring a

remand of this matter. The Court notes that the

$7,088.00 fee award is especially appropriate in light

of the two-year history of vexatious litigation against

Plaintiff by the Defendants in this matter, which has

already nearly resulted in sanctions against Defen-

dants on two prior occasions. See Civil Action No. 07

9040, Rec. Docs. 33 and 39. Additionally, the Court

notes that Defendants’ various grounds for removal

while ultimately baseless were wide-ranging and

complicated, and thus required significant effort by

counsel for Plaintiff.

Finally, to the extent that Defendant Andrews

argues that an award of $7,088.00 against him indi

vidually would be financially ruinous, the Court notes

that it is within the Court’s discretion to impose any

fee award against all the Defendants, jointly and

severally, as parties to the improper removal. See,

e.g., Park Nat. Bank of Houston v. Kaminetzky, 976

K. Supp. 571, 584 (S.D. Tex. 1996). Thus, Andrews’

arguments related to his individual financial situa

tion are irrelevant

As such, the Court finds that Plaintiff's request

ed fee award of $7,088.00 is reasonable in the circum

stances of this case. Accordingly,

App. 31

IT IS ORDERED that Plaintiff’s Motion for

Attorney’s Fees (Rec. Doc. 59) is hereby GRANT

ED. Plaintiff is hereby awarded $7,088.00 under 28

U.S.C. § 1447(c) as a reasonable attorney's fee for the

remand of this matter, to be paid by Defendants

Lesley Simmons St. Germain, Hillary Rose Hillyer

Melissa Branighan Lumina): Mark Kdward An

drews, Andrews Arts & Sciences Law, LLC, and

David ki. Simmons, jointly and severally

New Orleans, Louisiana this ZOth da

{ '

ha eJ UT

Car! J. Barbier

CARI. J. BARBIER

UNITED STATES DISTRICT JUDGE