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Moon v. American Family Mutual Insurance Company SI

United States District Court, D. Arizona

August 6, 2018

Barry Lynn Moon, Plaintiff,
v.
American Family Mutual Insurance Company SI, Defendant.

          ORDER0

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiff Barry Lynn Moon's (“Moon”) motion for attorneys' fees. (Doc. 37). Defendant American Family Mutual Insurance Company, S.I. (“American Family”) has responded, (Doc. 39), and Moon has replied, (Doc. 40).

         I. Background

In January of 2018, Moon, an insured, brought breach of contract and bad faith claims against American Family, his insurer, in Maricopa County Superior Court. (Doc. 1-1 at 1-7). Moon claims that American Family is obligated to pay the $55, 785.22 he incurred defending, and ultimately settling, a negligence claim, as well as costs and attorneys' fees incurred in compelling American Family to comply with his insurance policy. (Doc. 1-1 at 5-7).
In February of 2018, American Family removed the case to this Court. (Doc. 1).

(Doc. 34 at 1-2).

         Moon sought to remand the case, (Doc. 18), and the Court granted the motion, finding that it lacked subject-matter jurisdiction, (Doc. 34). Moon now seeks attorneys' fees in the amount of $16, 733.03[1] for 58.38 hours of work performed after removal. (Doc. 37).

         II. Governing Law

         Where a federal court remands a removed case to state court, it “may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). “[A] legal argument that loses is not necessarily unreasonable.” Shame on You Prods., Inc. v. Banks, No. 16-55024, No. 16-56311, 2018 WL 3059389, at *3 (9th Cir. June 21, 2018) (citation omitted).

         If fees are awarded, the Court uses the two-step lodestar method for setting the fee amount. Albion Pac. Prop. Res., LLC v. Seligman, 329 F.Supp.2d 1163, 1166 (N.D. Cal. 2004). In the first step, “[t]he ‘lodestar' is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). “In determining the appropriate number of hours to be included in a lodestar calculation, the district court should exclude hours ‘that are excessive, redundant, or otherwise unnecessary.'” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

         “[T]he burden is on the fee applicant to produce satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are 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 (1984). “The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992) (citing Blum, 465 U.S. at 892 n.5).

         In the second step, the Court “then assesses whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of” the factors provided for in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), abrogated on other grounds as recognized in Stetson v. Grissom, 821 F.3d 1157, 1167 (9th Cir. 2016). Morales, 96 F.3d at 363-64.[2] There is “[a] strong presumption that the lodestar figure . . . represents a ‘reasonable' fee, ” which is only modified in “rare” and “exceptional” cases. Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986).

         III. Analysis

         American Family levels three challenges against Moon's request for attorneys' fees: (1) the Court does not have the power to award fees; (2) American Family had an objectively reasonable basis for removal; and (3) Moon's requested fees are ...


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