373 F. Supp. 3d 398
E.D.N.Y.2019Background
- Cleanup North Brooklyn and individual members sued defendants in New York state court alleging public and private nuisance based on operation of a Brooklyn waste transfer station.
- Defendants removed to federal court asserting federal-question jurisdiction under RCRA and its regulations, despite the complaint raising only state-law nuisance claims.
- Plaintiffs moved to remand and separately moved under 28 U.S.C. § 1447(c) for attorneys’ fees and costs incurred in litigating the removal.
- The district court granted remand, concluding federal jurisdiction was inappropriate and that defendants’ shifting removal arguments imposed unnecessary expense on plaintiffs.
- Plaintiffs sought $128,141.25 in fees and $9,426.24 in costs for 351.35 hours; defendants argued fees are unrecoverable because counsel worked pro bono, challenged double billing, and urged reductions for overstaffing and excessive billing.
- The court held pro bono counsel may recover fees under § 1447(c); it established reasonable hourly rates, found excessive and duplicative time, applied a 30% across-the-board reduction to fees, reduced Westlaw charges, and awarded $66,503.15 in fees and $5,222.39 in costs (total $71,725.54).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1447(c) permits fee awards when plaintiff is represented pro bono | §1447(c) allows recovery of "actual expenses, including attorney fees," even if counsel is unpaid; fees were incurred | Fees are not "incurred" because the client has no obligation to pay pro bono counsel, so no fee award should issue | Court: §1447(c) permits fee awards for pro bono representation; denying would undermine deterrent purpose of statute |
| Proper method for calculating fees (lodestar rates) | Counsel proposed specific rates (some high) and submitted hours worked | Defendants challenged rates as above-market and urged reductions for overstaffing and excessive billing | Court applied lodestar framework, set district-typical ranges, awarded lower rates for each attorney based on experience and prevailing E.D.N.Y. rates |
| Whether multiple firms representing same client constituted double billing/duplication | Plaintiffs: two firms collaborated; work was necessary | Defendants: two firms produced duplicative effort and overstaffing, increasing billed hours | Court: mere multiple-firm representation is not per se double billing but found uncompensable duplication and excessive staffing based on records and lack of defined division of labor |
| Reasonableness of hours and other costs (including Westlaw) | Plaintiffs submitted time and Westlaw charges as incurred and typical client expenses | Defendants argued excessive hours, block-billing, administrative tasks billed at attorney rates, and excessive Westlaw expenses | Court found block-billing and excessive/duplicative time, excluded certain entries, applied 30% reduction to hours, and reduced Westlaw charges to $5,000; awarded specified fees and costs |
Key Cases Cited
- Gotro v. R & B Realty Grp., 69 F.3d 1485 (9th Cir. 1995) (permits fee awards under §1447(c) in contingency or pro bono cases)
- Martin v. Franklin Capital Corp., 546 U.S. 132 (U.S. 2005) (fee-shifting deterrent purpose and reasonableness standard)
- Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182 (2d Cir. 2008) (reasonable, paying-client standard for hourly rates)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (burden to justify requested rates by showing prevailing community rates)
- LeBlanc-Sternberg v. Fletcher, 143 F.3d 748 (2d Cir. 1998) (recoverable out-of-pocket costs ordinarily charged to clients)
- Fox v. Vice, 563 U.S. 826 (U.S. 2011) (courts may make reasonable across-the-board reductions; need not be "green-eyeshade accountants")
- Stanczyk v. City of New York, 752 F.3d 273 (2d Cir. 2014) (lodestar method governs fee awards)
- Kirsch v. Fleet St., Ltd., 148 F.3d 149 (2d Cir. 1998) (supports percentage reductions to account for excesses)