United States District Court, N.D. New York
WHITE LLP Attorneys for BCI Construction, Inc.
OF DANIEL M. SLEASMAN Attorneys for 797 Broadway Group, LLC.
M. HOWARD, III, ESQ.
M. SLEASMAN, ESQ.
MEMORANDUM-DECISION AND ORDER
Frederick J. Scullin, Jr. Senior United States District
Court issued a Memorandum-Decision and Order on March 15,
2017, granting Defendant's motions (1) to remand Case No.
1:16-CV-1113, to state Court; (2) to dismiss Case No.
1:16-CV-1077, for lack of subject matter jurisdiction; and
(3) for attorney's fees pursuant to 28 U.S.C. §
1447(c). See Dkt. No. 41. Pending before the Court
is Defendant's fee application, requesting $27, 625.00 in
attorney's fees. See Dkt. No. 43. Plaintiff
objects. See Dkt. No. 44.
case involved a contract dispute between 797 Broadway Group,
LLC ("Defendant") and BCI Construction, Inc.
("Plaintiff"). Defendant spent significant sums
repairing the faulty siding on a project where Plaintiff was
the general contractor. The dispute involved who was
ultimately responsible for the cost of those repairs. The
parties initiated arbitration to resolve the matter, and
Defendant largely prevailed.
commenced the current litigation in this Court on September
1, 2016, pursuant to 9 U.S.C. § 10(a)(2), seeking an
order vacating the arbitration award based on its argument
that the arbitrator, Mr. Phelan, was biased. See
Dkt. No. 1, No. 1:16-CV-1077. Plaintiff further moved for
leave to depose Mr. Phelan. See Dkt. No. 9.
Defendant filed, in the Supreme Court of the State of New
York, County of Albany, a petition pursuant to CPLR 7511 to
confirm its arbitration award. See Dkt. No. 11-1 at
3. Plaintiff removed that case to this District pursuant to
28 U.S.C. § 1441. See Dkt. No. 11-2 at 11, No.
1:16-CV-1113. The Court consolidated the two cases.
See Dkt. No. 8.
then moved to remand the action it originally filed in state
court, 1:16-CV-1113, and simultaneously to dismiss
Plaintiff's action to vacate the arbitration award,
1:16-CV-1077, based on lack of subject matter jurisdiction.
See Dkt. No. 9. Defendant, thereafter, moved to
confirm its arbitration award in the event that the Court
determined that it had subject matter jurisdiction over this
action. See Dkt. No. 23-1.
Memorandum-Decision and Order, the Court held that the
Federal Arbitration Act did not provide an independent basis
for bestowing subject matter jurisdiction on the Court where
the parties' underlying dispute involved a state-law
issue, i.e., a contract dispute. See generally Dkt.
No. 41. The Court further granted Defendant's motion for
an award of attorney's fees and costs pursuant to 28
U.S.C. § 1447(c). See id. at 9. In that regard,
the Court noted that it would "award attorney's fees
and costs only to the extent that they [were] related to
Defendant's motion to remand." See Id. at 9
n.6. Furthermore, the Court ordered "Defendant to file
and serve documentation, including contemporaneous time
records for each attorney and paralegal who expended any time
with regard to its remand motion and a description of the
work performed, to support its request for attorney's
fees and costs[.]" See id at 10.
recounted above, Defendant has submitted an application
requesting $27, 625.00 in attorney's fees. See
Dkt. No. 43. Plaintiff opposes Defendant's application.
See Dkt. No. 44.
calculating attorney's fee awards, district courts use
the lodestar method -- hours reasonably expended multiplied
by a reasonable hourly rate." McDonald v. Pension
Plan of NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d
Cir. 2006) (citations omitted).
Hours reasonably expended
calculate the reasonable hours expended, the party submitting
the fee application must support its request with
"contemporaneous time records, affidavits, and other
materials." Id. In support of its motion for
fees, Defendant has produced three letters that its counsel
allegedly prepared and sent as billing statements to
Defendant. See Dkt. No. 43 at 4, 5, 6.
September 28, 2016 letter
labels the first letter "797 Broadway, Schenectady, New
York -- Arbitration Façade Issue -- Federal
Litigation." See Id. at 4. In total, the first
letter accounts for 19.6 hours.
objects to the contents of the first letter because the
letter includes work that was unrelated to Defendant's
motion to remand. See Dkt. No. 44-2 at 5. According
to Plaintiff, the majority of the entries in this letter
relate to Defendant's work answering Plaintiff's
action that was originally filed in federal court. Therefore,
Plaintiff asserts that these entries do not comply with the
Court's order regarding the scope of fees.
terms, 28 U.S.C. § 1447(c) makes it clear that a party
is only entitled to attorney's fees related to litigating
a case that was improperly removed from state court pursuant
to 28 U.S.C. § 1441.See Hartford Underwriters Ins. Co.
v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)
(stating that "we begin with the understanding that
Congress 'says in a statute what it means and means in a
statute what it says there'" (quotation omitted)).
For example, the title of 28 U.S.C. § 1447 is
"Procedure after removal generally."
Furthermore, 28 U.S.C. § 1447(c) itself plainly states
that "[a]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." Id. (emphasis added). The
language "incurred as a result of the
removal" clearly limits the scope of this
fee-shifting provision to costs related to remanding an
action that was originally filed in state court and then
removed. In ...