The opinion of the court was delivered by: Block, District Judge.
Defendant Mundo Shipping Corporation ("Mundo") moves for an
amendment of, or reconsideration or reargument as to, this
Court's March 3, 1999 award of costs and expenses to Plaintiffs
Kathleen and Walwyn Greenidge (the "Greenidges") for Mundo's
improper removal of this action from New York Supreme Court,
Queens County, to this Court. For the reasons set forth below,
Mundo's motion is denied.
On October 7, 1997, the Greenidges commenced this action
against Mundo in State court. On October 29, 1997, Mundo removed
the action, and the Greenidges moved for remand, as well as
reasonable costs and expenses. Mundo opposed their motion, and
moved for partial summary judgment as to the limits of its
liability. On March 3, 1999, the Court granted the Greenidges's
motion and remanded the action to State court based on lack of
subject matter jurisdiction, and denied Mundo's motion for
partial summary judgment without prejudice. The Court retained
jurisdiction over the action "for the purpose of assessing . . .
costs and expenses, upon a proper submission, in the event that
the parties cannot forthwith reach an agreement in respect
thereto." Memorandum and Order, at 9. On March 17, 1999,
the Greenidges's counsel advised Mundo that the Greenidges's
attorney fees related to the remand totaled $22,125.00. See
Exhibit A, Mundo's Affidavit in Support of Its Reply. Mundo
disputes this total, and the parties have been unable agree to an
amount that Mundo should pay the Greenidges.
A. Attorney Fees for Improper Removal
Under 28 U.S.C. § 1447(c), "[i]f at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded. An order remanding the
case may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the removal."
"The goal of this provision is to deter improper removal. . . .
While the simplicity of [the removal] procedure facilitates
removal, it also exposes a plaintiff to the possibility of abuse,
unnecessary expense and harassment if a defendant removes
improperly, thereby requiring plaintiff to appear in federal
court, prepare motion papers and litigate, merely to get the
action returned to the court where the plaintiff initiated it."
Circle Indus. USA, Inc. v. Parke Constr. Group, Inc.,
183 F.3d 105, 109 (2d Cir. 1999) (under 28 U.S.C. § 1447(c), attorney fees
only awarded for successful remand motion, not for successful
opposition to remand motion). Mundo argues that
28 U.S.C. § 1447(c) implicitly incorporates a requirement that the removal
have been made in bad faith; however, the statute does not
require such a finding, and, in fact, gives the Court "a great
deal of discretion and flexibility . . . in fashioning awards of
costs and fees." Morgan Guaranty Trust Co. of N.Y. v. Republic
of Palau, 971 F.2d 917, 923 (2d Cir. 1992).
Consistent with the Court's March 3, 1999 memorandum and order,
the Court has determined that, although Mundo did not remove in
bad faith, it is nonetheless an appropriate exercise of the
Court's discretion to require Mundo to pay reasonable costs and
expenses. First, while the Greenidges opted to litigate their
relatively simple claims in State court, the removal greatly
complicated the case; it would be unfair to require either the
Greenidges or their counsel to absorb the cost of litigating the
remand motion, which in no way advanced their case. Second, given
that Mundo's counsel is an experienced maritime firm, see
Defendant's Memorandum, at 5 n. 2, the impropriety of the removal
should have been clear, due to the applicability of several
well-established principles of maritime law. See Memorandum and
Order, at 3-8 (remanding action based on application of the
`saving to suitors' clause of 28 U.S.C. § 1333; the lack of
complete preemption of the maritime shipping field by the
Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq.; and the
well-pleaded complaint rule).
Accordingly, Mundo's motion for an amendment of, or
reconsideration or reargument as to, the Court's order is denied.
As to the exact amount of costs and expenses to be paid, Mundo
challenges the amount of the Greenidges's attorney fees, claiming
they should be limited to $2,500, and should not include payment
for hours unrelated to the remand. The Greenidges requested
almost nine times this amount in fees.
Plaintiffs may recover fees at a reasonable rate for a
reasonable number of hours spent in connection with the remand
motion. See 28 U.S.C. § 1447(c); Hensley v. Eckerhart,
461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Clarke v.
Frank, 960 F.2d 1146, 1153 (2d Cir. 1992). A reasonable rate is
"one in-line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience
and reputation." Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104
S.Ct. 1541, 79 L.Ed.2d 891 (1984). "The hourly rates awarded by
this district during the past few years have ranged from $200 to
$225 for partners" and "from $100 for junior associates to $200
for senior associates." Perdue v. CUNY, 13 F. Supp.2d 326,
345-46 (E.D.N.Y. 1998) (collecting cases). When evaluating a
request for attorney fees under 28 U.S.C. § 1447(c), the Court
must disallow hours which were not incurred solely in connection
with the remand motion. See 28 U.S.C. § 1447(c); Mattice v.
ITT Hartford Ins. Group, 837 F. Supp. 499, 500-01 (N.D.N.Y. 1993)
(reducing attorney fees by amount not attributable to remand
motion). The Court may also reduce redundant and overlapping
hours. See Perdue, 13 F. Supp.2d at 346.
"Where settlement is not possible, the fee applicant bears the
burden of establishing entitlement to an award and documenting
the appropriate hours expended and hourly rates." Hensley v.
Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983). In order to be awarded attorney fees, a party must submit
to the court contemporaneous time records as a prerequisite for
recovering attorney fees, specifying "for each attorney, the
date, the hours expended, and the nature of the work done." New
York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136,
1148 (2d Cir. 1983). "The actual original time sheets are not
necessary; submitting an affidavit and attaching a computer
printout of the pertinent contemporaneous time records is
acceptable." See Tri-Star Pictures v. Unger, 42 F. Supp.2d 296,
304 (S.D.N.Y. 1999) (citations omitted). When making a fee award,
the Court may evaluate the record to determine the appropriate
fee amount; it need not hold an evidentiary hearing on the issue.
See Walz v. Town of Smithtown, 46 F.3d 162, 170 (2d Cir. 1995).
In this case, the Court has received a letter from Mr. Garcia,
the Greenidges's counsel, with a request for fees and a statement
of the hours he and his associate expended on the remand issue.
However, the Court has not received contemporaneous time sheets
or an adequate substitute to substantiate the fee request.
Therefore, at this time, the Court ...