United States District Court, D. Connecticut
U.S. BANK TRUST, N.A., AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-AR2, SUCCESSOR WACHOVIA BANK, N.A., Plaintiff,
ANDREW WALBERT, Defendant.
RULING ON PLAINTIFF'S APPLICATION FOR
ATTORNEY'S FEES AND COSTS HAIGHT, Senior District
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
August 18, 2017, this Court granted a motion by Plaintiff
U.S. Bank National Association, as Trustee, Successor in
Interest to Wachovia Bank, National Association, as Trustee
for Wells Fargo Asset Securities Corporation, Mortgage
Pass-Through Certificates, Series 2005-AR2
("Plaintiff"), seeking remand of this matter to
state court. The Court ordered that Defendant Andrew Walbert
("Defendant") pay Plaintiff attorney's fees and
costs, pursuant to 28 U.S.C. § 1447(c). The instant
ruling resolves Plaintiff's subsequent application for
attorney's fees, Doc. 17. For the reasons that follow,
the Court declines to award Plaintiff the amount it requests
and directs payment by Defendant of a lesser amount.
16, 2017, Defendant, appearing pro se, filed a
Notice of Removal [Doc. 1] removing from the Connecticut
Superior Court, Judicial District of Danbury a foreclosure
action brought against him by Plaintiff. Plaintiff filed a
Motion to Remand the action to the state court and an
accompanying Memorandum of Law in Support of its Motion on
July 17, 2017. [Docs. 9, 10]. On August 18, 2017, this Court
issued a Ruling [Doc. 14] granting Plaintiff's Motion to
Remand to State Court, familiarity with which is assumed, and
is described only as necessary here.
Court concluded that Defendant did not have a reasonable
basis for alleging that the action was removable or that the
removability of it was concealed by Plaintiff in bad faith.
See Doc. 14 at 10. The Court determined that
"Defendant's removal has delayed the ultimate
adjudication of the merits of the action, which commenced
over four years ago, and caused unnecessary expenditures of
fees and time by Plaintiff and this Court addressing his
removal." Id. The Court noted that Defendant
had not addressed the governing law, nor had he accurately
represented the status of the state court litigation. See
Id. Accordingly, the Court determined that Plaintiff was
entitled to attorney's fees and costs related to
Defendant's removal of the case, pursuant to 28 U.S.C.
§ 1447(c). See Id. 10-11.
was directed to submit an affidavit itemizing its costs and
fees "related only to this removal." Id.
at 10. The Court required the submission of this affidavit by
September 5, 2017, with any objections from Defendant due on
or before September 15, 2017. Plaintiff's application was
submitted on September 5, 2017. [Doc. 17]. No objections were
raised to the submission by Defendant. This matter is ripe
for the Court's review.
STANDARD OF REVIEW
district court retains discretion to determine ... what
constitutes a reasonable fee." Millea v. Metro-N.
R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d
Cir. 1998)); see also Morgan Guar. Trust Co. v. Republic
of Palau, 971 F.2d 917, 924 (2d Cir. 1992) (noting that
28 U.S.C. § 1447(c) "affords a great deal of
discretion and flexibility to the district courts in
fashioning awards of costs and fees"). "However,
this discretion is not unfettered, " and "the
district court must abide by the procedural requirements for
calculating those fees articulated by [the Second Circuit]
and the Supreme Court." Millea, 658 F.3d at
most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate."
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The
resulting amount "is only presumptively reasonable; it
is still within the court's discretion to adjust the
amount upward or downward based on the case-specific
factors." Tyco Healthcare Grp. LP v. Ethicon
Endo-Surgery, Inc., No. 3:10-CV-60, 2012 WL 4092515, at
*1 (D. Conn. Sept. 17, 2012) (quotation marks and citation
Circuit follows the dictates of Judge Newman's opinion in
New York State Association for Retarded
Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983),
in evaluating a movant's proffered evidence supporting
its attorneys' fees request:
All applications for attorney's fees, whether submitted
by profit-making or non-profit lawyers, for any work done
after the date of this opinion should normally be disallowed
unless accompanied by contemporaneous time records
indicating, for each attorney, the date, the hours expended,
and the nature of the work done.
Id. at 1154. The Second Circuit subsequently
clarified its use of the word "normally" in
Carey, holding that while it "indicates that we
intend to leave the district courts with some limited
discretion to make exceptions to the hard-and-fast rule,
" Carey nonetheless "sets out
unequivocally that absent unusual circumstances attorneys are
required to submit contemporaneous records with their fee
applications." Scott v. City of New York, 626
F.3d 130, 133 (2d Cir. 2010). "In other words,
Carey establishes a strict rule from which attorneys
may deviate only in the rarest of cases." Id.
fees must be reasonable in terms of the circumstances of the
particular case[.]" Alderman v. Pan Am World
Airways, 169 F.3d 99, 102 (2d Cir. 1999) (citing
Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir.
1994)). In determining a fee award, the Court is mindful that
"attorney's fees are to be awarded 'with an eye
to moderation, seeking to avoid either the reality or the
appearance of awarding windfall fees.'"
Carey, 711 F.2d at 1139 (quoting Beazer v. New
York City Transit Authority, 558 F.2d 97, 101 (2d Cir.