The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiffs commenced this action on or about July 28, 2005, in New York State Supreme Court, County of Erie, and filed a First Amended Complaint on or about October 17, 2005. Four of seven named Defendants removed the action to this Court, on November 23, 2005, based on diversity of citizenship. Thereafter, Plaintiffs successfully moved to remand the case, and for costs and attorney fees incurred in connection with their motion. Now before this Court is Plaintiffs' application for costs and attorneys fees. (Docket No. 32.)*fn1
By Decision and Order dated June 29, 2006, United States Magistrate Judge Leslie G. Foschio granted Plaintiffs' motion to remand, and their request for costs and attorney fees incurred in connection with the removal. Defendants filed objections to the Decision arguing, inter alia, that a decision to remand is dispositive in nature and must be reviewed by the District Judge, de novo. This Court disagreed and, on September 21, 2006, denied Defendants' objections and found Judge Foschio's determinations were neither clearly erroneous nor contrary to law. Defendants successfully appealed the issue of whether a decision to remand is dispositive in nature, and the Second Circuit remanded the case to this Court for proceedings consistent with its opinion.
This Court then referred Plaintiffs' motion to remand to Magistrate Judge Foschio for a report and recommendation. Judge Foschio recommended, on October 31, 2008, that the case be remanded to state court and that Plaintiffs be awarded costs and attorney fees. On June 25, 2009, this Court adopted the Report and Recommendation in its entirety. Thereafter, Plaintiffs supplemented their previously filed fee application, and now seek a total of $83,479.89 in attorney fees and disbursements in connection with the removal. (Docket No. 65, Exs. 1, 2 and 4.)
Defendants oppose the fee application on the grounds that: (1) Plaintiffs have not demonstrated that they incurred any fees as a result of removal; (2) fees and costs associated with the appeal on which Defendants prevailed are not recoverable; (3) the attorney hourly rates are unreasonable; (4) the time billed includes excessive, redundant or unnecessary hours; (5) the records in support of the application are inadequate or impermissibly vague; and (6) Plaintiffs cannot seek reimbursement for computer research expenses as a matter of law.
A. Plaintiffs are Eligible to Receive Fees
Fees and costs were awarded to Plaintiffs here under 28 U.S.C. § 1447(c), which provides, in pertinent part, that:
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. (emphasis supplied.)
Defendants speculate that these Plaintiffs, as is the case with many personal injury plaintiffs, have a contingent fee arrangement with their counsel. They urge that because Plaintiffs will not have incurred any "actual" attorney fees relative to removal under such an arrangement, an award of fees is nothing more than a windfall for counsel. Defendants rely on a dissenting opinion from the Ninth Circuit in support of their contention that § 1447(c) does not contemplate fee awards to attorneys working on a contingent fee basis. Gotro v. R & B Realty Group, 69 F.3d 1485, 1489-90 (9th Cir. 1995). However, the Gotro majority thoroughly examined the text and legislative history of § 1447(c), and concluded that district courts have discretion to award § 1447 fees to contingency fee litigants. Id. at 1487-88.
While our Circuit appears not to have addressed this issue, at least one other has. In Garbie v. DaimlerChrysler Corp., the Seventh Circuit agreed, at least implicitly, with the holding in Gotro. 211 F.3d 407, 411 (7th Cir. 2000) (treating class action attorneys' time, for which they almost certainly had not been paid, as "actual expense" under 1447(c)). Subsequent district court decisions from that circuit are in accord. See, e.g., Simenz v. Amerihome Mortgage Co., LLC, 544 F. Supp. 2d 743, 746 (E.D. Wis. 2008) (finding "actual expenses" were "incurred" by contingent fee attorneys who "forwent other paying work and paid costs out of pocket" to contest removal); Keesling v. Richman, 02-CV-1392, 2003 U.S. Dist. LEXIS 6756, at * (S.D. Ind. Apr. 18, 2003) (awarding § 1447 costs and fees in contingency case). I find the reasoning of these cases persuasive and reject Defendants' contention that, assuming Plaintiffs' attorneys are working on a contingency basis, they are not entitled to fees and costs.
When calculating "actual expenses" under § 1447(c), courts consistently have considered the "reasonableness" of the fee request. See, e.g., Huffman v. Saul Holdings Ltd. P'ship, 262 F.3d 1128, 1135 (10th Cir. 2001) (§ 1447's reference to "actual expenses" does not relieve district court from examining reasonableness of number of hours worked and rate of pay); Beauford v. E.W.H. Group Inc., 09-CV-00066, 2009 U.S. Dist. LEXIS 94985, at *3-4 (E.D. Ca. Sept. 29, 2009) (employing lodestar method to calculate reasonable fee); Simenz, 544 F. Supp. 2d at 746-47 (multiplying hours reasonably expended by reasonable rate to arrive at "actual expenses"); Southwestern Bell Tel., L.P. v. Accutel of Tex., L.P., 05-CV-0292, 2005 U.S. Dist. LEXIS 13722 (N.D. Tx. July 11, 2005) (modifying fee request based on reasonableness factors). This Court will proceed to do so here.
B. Amount of Attorney Fees and Costs
Defendants contend that, should this Court find Plaintiffs are entitled to attorney fees, the Court must apply the lodestar approach and reduce the amount requested. As an initial matter, I note that the Second Circuit revised its approach to fee calculations ...