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Faust v. Menard, Inc.

United States District Court, N.D. Indiana, Hammond Division

March 26, 2014

MAIZE FAUST, Plaintiff,
MENARD, INC., [1] Defendant.


JAMES T. MOODY, District Judge.

On October 10, 2012, the court entered judgment in this case for plaintiff in the amount of $7428.50, pursuant to 28 U.S.C. § 1447(c), as an award of costs and attorneys fees incurred as the result of defendant's untimely removal. Defendant then filed a motion to alter or amend that judgment pursuant to FED. R. CIV. P. 59(e). (DE #38.) After the court ordered defendant to file a supplemental brief, plaintiff was given ample time to file a response to the motion, but she has never done so.

Defendant argues that RULE 59(e) allows it "to bring to the district court's attention a manifest error of law or fact, " Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000), and that several occurred here. In a nutshell, defendant asserts the fees awarded were manifestly erroneous because: 1) some of the fees were not incurred as a result of the removal; 2) some of the hours charged are excessive in light of the work product resulting from those hours; and 3) plaintiff's attorney's hourly rate "is excessive when considering the geographic location of her practice, experience, practice areas, client base and averages [sic] rates of comparable attorneys and law firms." (DE #40 at 5.)

The problem with defendant's position is that all of these arguments were available when it responded to plaintiff's motion seeking a fee award, and at that time defendant made none of them. A RULE 59(e) motion "certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Thus, the court is not favorably impressed by defendant's motion. At the same time, however, the court has an independent obligation "to review both the entitlement to fees and the particulars of fee requests carefully" in order to arrive at the right conclusion. Lock Realty Corp. IX v. U.S. Health, LP, 707 F.3d 764, 773 (7th Cir. 2013). Defendant has persuaded the court that mistakes were made which would have been avoided had the fee request been reviewed more thoroughly, as it no doubt would have been had defendant objected to the fees' reasonableness and manner of calculation. Nevertheless, the court will exercise its discretion to correct the most obvious problems.

First, defendant argues that the fee award included a total of 10 hours of work performed by plaintiff's counsel for unrelated work, so those fees were not "incurred as a result of the removal" as required by 28 U.S.C. § 1447(c). Specifically, defendant points to time spent preparing a response to defendant's motion to dismiss (the same motion would have been filed if the case had been in state court); time spent researching a request for RULE 11 sanctions (the court found the request unwarranted and denied it); and time spent preparing the request for a fee award pursuant to 28 U.S.C. § 1447(c).[2] As the court sees it, the time spent preparing the request for attorneys fees pursuant to 1447(c) is time spent on a matter made necessary by the improper removal and will be allowed; the court is aware of no authority to the contrary. See Stalvey v. Wal-Mart Stores East, LP, 2011 WL 611835 * 3 n.2 (M.D. 2011) (court has discretion to award fee for time spent litigating fee request pursuant to 28 U.S.C. § 1447(c)). The 7 hours spent preparing a response to defendant's motion to dismiss and researching RULE 11 sanctions[3] will be disallowed as not incurred in relation to the removal.

Second, defendant argues that the time plaintiff's counsel expended on certain task was excessive. For example, counsel spent three hours preparing her response to defendant's motion for enlargement of time to file notice of removal, but the document that resulted (DE #18) from those three hours barely exceeds one page in length. In addition, plaintiff's counsel spent three hours researching the "issue of service for Motion to Extend Time, " (DE # 29-1 at ¶ 3), resulting in the single case cited in the response, for a total of 6 hours on the matter. The court agrees this is excessive. Defendant has not, however, provided evidence of the time its counsel spent on similar matters, and, again, this is an argument that defendant could and should have made in its original response to the motion. Therefore, the court is reluctant to slash hours dramatically, and will reduce them by 25%, that is, by 1.5 hours.[4]

As to the other items defendant claims excessive amounts of time were spent, the court rules as follows:

- 2 hours preparing motion to remand: not excessive
- 1.5 hours preparing reply in support of motion to remand: reduce by 25%
- 2 hours preparing motion for attorneys fees: reduce by 25%[5]
- 3 hours researching issue of service: cut by 25%, see preceding paragraph
- 3 hours researching issue of failure to prosecute in motion to dismiss: time already disallowed as not incurred due to removal
- 1 hour researching standard for Rule 11 motion and attorneys fees: time already disallowed as ...

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