Cleanup N. Brooklyn By Jennifer Chantrtanapichate v. Brooklyn Transfer LLC
Docket: 17-cv-05621 (NG)(RER)
Court: District Court, E.D. New York; April 8, 2019; Federal District Court
Plaintiffs Cleanup North Brooklyn, represented by pro bono counsel from Schindler Cohen, Hochman and New York Lawyers for the Public Interest, filed a motion under 28 U.S.C. § 1447(c) to recover attorneys' fees and costs from defendants Brooklyn Transfer LLC and others following their removal of a nuisance lawsuit from New York State Supreme Court to federal court. The lawsuit, initiated on August 30, 2017, alleged common law nuisance stemming from the operation of a solid waste transfer station in Brooklyn. The plaintiffs contended that the removal was inappropriate, as their claims did not raise federal questions, a position the court supported in its April 27, 2018 ruling, which remanded the case back to state court and highlighted the unnecessary complexity introduced by the defendants' arguments.
Plaintiffs seek $137,567.49 in total fees and costs for 351.35 hours of work related to challenging the removal from September 26 to December 22, 2017. Defendants contest the claim, asserting that 28 U.S.C. § 1447(c) allows recovery only of actual expenses incurred due to removal, arguing that pro bono representation negates the possibility of fee recovery. They also claim that plaintiffs are improperly double billing and request the court to reduce any awarded amount for alleged overstaffing and excessive billing. The statute allows for remand orders to require payment of just costs and actual expenses, including attorney fees, when a district court lacks subject matter jurisdiction.
Defendants contend that when plaintiffs are represented by pro bono counsel, they do not incur a fee obligation, thus no fees should be awarded. However, the statute does not require this interpretation. A more appropriate reading indicates that while fees must be incurred, they do not need to be billed to the client. The Ninth Circuit has explicitly rejected the defendants' interpretation, confirming that Congress did not intend to remove district court discretion in awarding fees in pro bono or contingent cases. The legislative history of 1447(c) supports this view, allowing for fee awards even when clients do not incur a payment obligation. The necessity for fee-shifting is emphasized in cases where improper removal occurs, as it deters unreasonable actions by defendants. The argument that pro bono representation leads to "double billing" is dismissed, and the court clarifies that having two firms represent a client does not equate to such practices. To determine reasonable attorney fees, the district court must calculate the lodestar—based on a reasonable hourly rate times the reasonable hours worked—which is applicable even for pro bono cases.
A court typically awards reasonable out-of-pocket expenses incurred by attorneys that are normally charged to clients. The burden is on the fee applicant to document and justify the hours worked, rates sought, and costs incurred. When determining a reasonable hourly rate, district courts should consider factors from the Johnson case and aim for a rate a reasonable, paying client would accept, taking into account that such a client seeks to minimize litigation costs. For pro bono cases, courts reference typical attorney fees for similar matters rather than those charged to large clients. The fee applicant must provide evidence, beyond their own affidavits, that the requested rates align with community standards for similar services. In this case, plaintiffs failed to demonstrate that their attorneys could charge clients those rates for the services rendered, nor did they provide affidavits from comparable attorneys. The prevailing rates in the Eastern District of New York are approximately $300 to $450 per hour for partners, $200 to $300 for senior associates, and $100 to $200 for junior associates. Plaintiffs' counsel, Schindler Cohen, Hochman, seeks significantly discounted rates of $600 per hour for partners and $425 for counsel, despite standard rates being much higher. Lead counsel Steven Schindler, with over 30 years of experience, requested $600 per hour, which exceeds the typical rates awarded in this district, as evidenced by prior cases where lower rates were granted to similarly experienced attorneys.
In Linde v. Arab Bank, PLC, the court approved higher rates due to unique circumstances. Although defendants dispute the plaintiffs' entitlement to fees, they concede that Mr. Schindler is entitled to a higher rate of $425 per hour. Karen Steel, with 13 years of experience, requests $425 per hour, which exceeds the typical range for her experience level, and lacks evidence of prior rates paid in the district. Comparatively, cases awarded $325 for attorneys with over 14 years and $300 for those with over 10 years of experience. Defendants suggest that if awarded, Ms. Steel should receive between $200 and $325 per hour. Associates Otazu and Wong, each with five years of experience, seek $200 and $250 per hour, respectively, and their rates are unopposed. Paralegal Nathan Johnson seeks $125 per hour, despite typically billing $210; however, his less than one year of experience makes this rate unjustified. The court finds Mr. Schindler entitled to $425, Ms. Steel to $325, Mr. Otazu to $200, Ms. Wong to $250, and Mr. Johnson to $70 per hour.
Regarding NYLPI attorneys, Katie Rosenfeld claims 15 years of litigation experience and seeks $425-$450 per hour, while Rachel Spector, with over 10 years of experience, and Melissa Iachan, with over 12 years, also seek rates above the typical range for their experience. Defendants accept that if fees are awarded, Ms. Rosenfeld should receive $350 per hour, while Ms. Spector and Ms. Iachan should receive $200-$325. Ultimately, the court awards Ms. Rosenfeld $350, and both Ms. Spector and Ms. Iachan $325 per hour.
Plaintiffs' counsel, Schindler Cohen, Hochman, and NYPLI, reported various hours billed by their staff in connection with a motion to remand. Notably, Mr. Schindler billed 18.5 hours, while Ms. Steel billed 176.6 hours, among others. The defendants contested the complexity of the case, arguing that the plaintiffs overstaffed and billed excessively, totaling over 350 hours. The court acknowledged that while the case wasn't inherently complex, the defendants' shifting legal theories contributed to this perception.
Defendants raised concerns about block-billing and vague entries in the plaintiffs' billing records, particularly regarding Ms. Steel and Ms. Iachan, who were accused of charging attorney rates for tasks typically performed by paralegals. The court found that while most entries were sufficiently detailed, instances of block-billing hindered the ability to separate administrative tasks from legal work in the records of Ms. Steel and Ms. Iachan. Consequently, the court declined to award compensation for 16.3 hours billed by Ms. Steel and 1.8 hours by Ms. Iachan related to these entries. Furthermore, the court noted that the multiple legal teams representing the plaintiffs had not clarified their roles or how labor was divided, which is essential for effective collaboration.
Ms. Steel performed the majority of work in this case, with other attorneys primarily engaged in research, review, and editing, resulting in significant duplication of effort. The request for compensation included approximately 23 hours for drafting a three-page pre-motion conference letter, 25 hours for conference preparation, and 180 hours for moving and reply briefs, which is deemed excessive given the context and the legal landscape. The presence of five to seven attorneys editing each filing and four attending the pre-motion conference contributed to inflated hours. The plaintiffs cannot claim high fees based on their experience while also incurring excessive time for tasks that could be handled more efficiently. The court emphasized that it is not required to meticulously account for every minute but can estimate time based on the overall case context. Consequently, a 30% reduction in requested fees was applied, leading to an award of $66,503.15 in attorneys' fees.
Additionally, plaintiffs sought $9,426.24 in costs related to removal and remand. While the defendants challenged the entitlement to costs due to pro bono work, they did not dispute the specific costs. The court found costs for PACER charges, photocopying, transcripts, and transportation reasonable, awarding $222.39. However, $9,203.85 in Westlaw charges, while typically considered a compensable expense under fee-shifting provisions, was deemed excessive, leading to a reduction of the award for those charges to $5,000.
Plaintiffs are awarded a total of $71,725.54, consisting of $66,503.15 in attorneys' fees and $5,222.39 in costs, despite the amounts being considered extraordinary for a remand motion under 28 U.S.C. 1447(c). The court attributes responsibility for the awarded fees to the defendants for not litigating sensibly. The cited case by the defendants, Sleppin v. Thinkscan.com, illustrates that attorneys' fees can be denied if the defendants had an objectively reasonable basis for removal, which is not applicable in this case. The summary of the Johnson factors relevant to fee determination includes considerations such as time and labor required, skill level, customary rates, and results obtained. Specific adjustments to billing rates are noted: Ms. Wong is awarded half her rate for 0.6 hours of travel, and Ms. Spector is similarly awarded half her rate for 1 hour of travel. Additionally, a discrepancy in Ms. Spector's billing for Ms. Iachan is noted, revealing an error in the total hours claimed. Mr. Schindler, another attorney present, did not bill for his time, demonstrating appropriate billing judgment. The court emphasizes that law firms, regardless of pro bono status, should not pass the costs of attorney training onto clients.
