In Golf Clubs Away, LLC v. Hostway Corp., No. 11-62326, 2012 U.S. Dist. Lexis 97971 (S. D. Fla. Jul. 13, 2012) the defendants removed a consumer class action case that had been pending in state court for more than two years. The defendants contended that the first time they were able to determine the amount in controversy met CAFA’s jurisdictional threshold was during the deposition of the plaintiff’s chief financial officer, who in response to a question as to whether the aggregate amount of damages sought by the class exceeded $5 million testified “it may.” The plaintiff’s motion for remand was granted. The court determined that the deposition testimony “lacked the requisite unambiguousness and certainty to establish federal jurisdiction under the preponderance of the evidence standard.” The court also found that the removal was improvident and objectively unreasonable.
The plaintiff sought attorneys’ fees and costs pursuant to 28 U.S.C. § 1447(c) which provides that “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorneys fees, incurred as a result of the removal.” The award is discretionary and based upon whether in the court’s judgment the removing party lacked an objectively reasonable basis for the removal. In addressing the plaintiff’s motion for fees, the court followed the lodestar method — a two-step process in which the court first calculates the reasonable hourly rate, and then the reasonable number of hours expended.
Class counsel from New York claimed that the hourly rates of the attorneys and paralegals involved in the case ranged from $300 to $325 for paralegals, and from $375 to $995 for attorneys. The court determined that these hourly rates were not within the prevailing local market rate for South Florida. The plaintiff also claimed that class counsel had spent a total of 104.5 hours litigating the remand issue. This amounted to thirteen eight-hour days of work. The plaintiff sought over $50,000 in fees and costs. The court reviewed the hourly rates sought in the context of the prevailing rates for South Florida and reduced the requested rates to $500 per hour for three of the attorneys, $350 per hour for two of the attorneys, and $125 per hour for the paralegals. The court also examined the number of hours expended and found them to be inflated. The total number of attorney hours was reduced from 105 hours to 80 hours, and the total number of paralegal hours was reduced from 11 hours to 5 hours. The final award of attorneys’ fees and costs came to $36,113.66.© 2013 Dinsmore & Shohl LLP. All rights reserved.