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using the lodestar method to calculate attorney's fees in the context of improper removal
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3:01-CV-2543-R
March 21, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Orders of Reference, filed March 5, 2002, and March 11, 2002, respectively, the Plaintiffs' Motion and Application For Attorney's Fees and Costs and Brief in Support, filed March 1, 2002, and the TxDOT Individual Defendants' Supplemental Motion For Attorney's Fees and Brief in Support, filed March 5, 2002, are before this Court for hearing, if necessary, and for recommendation. Having carefully considered the applicable authorities and the pleadings now on file, the Court recommends that the motions be GRANTED in part and DENIED in part for the reasons set forth below.
I. Background
At a February 27, 2002, hearing, this Court recommended that the District Court grant two motions to remand which had been filed by the Plaintiffs and the TxDOT Individual Defendants in December 2001. In addition, the Court established an expedited briefing schedule to address the issue of attorney fees and costs under 28 U.S.C. § 1447(c). The two resulting motions for attorney fees and costs are the subject of this recommendation.
II. Legal Standards
"An order remanding the case 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). However, there is no automatic entitlement to attorney fees under § 1447(c) for an improper removal. Valdes v. Wal-Mart Stores, Inc ., 199 F.3d 290, 292 (5th Cir. 2000). See also Garbie v. DaimlerChrysler Corp ., 211 F.3d 407, 411 (7th Cir. 2000) (holding that § 1447(c) is a fee-shifting statute and that therefore the prevailing party is presumptively entitled to recover attorney fees). Rather, the Court must consider the objective merits of the defendant's case at the time of removal — as opposed to the motive of the defendants — in deciding whether an improper removal warrants an award of attorney fees under § 1447(c). Valdes , 199 F.3d at 292-93. A district court's decision "to award or not to award attorney fees is reviewed for abuse of discretion." Id. at 292.
B. "Lodestar" Method For Calculating Attorney Fees
Once a court determines that an improper removal warrants an award of attorney fees, the court employs the "lodestar" method to calculate the amount of fees to be awarded. Louisiana Power Light Co. v. Kellstrom , 50 F.3d 319, 324 (5th Cir. 1995). The "lodestar" method requires the court to "determine the reasonable number of hours expended on the litigation and the reasonable hourly rates for the participating lawyers." Id. The court must then "multiply the reasonable hours by the reasonable hourly rates." Id. The resulting figure is the "lodestar" fee amount. Id. Determinations of reasonable hours and rates are reviewed for clear error. Id.
The court may adjust the "lodestar" fee amount upward or downward according to the circumstances of the case. Id. In determining whether to adjust the "lodestar" fee amount, the court must consider the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir. 1997). Those twelve factors are:
(1) the time and labor required for the litigation; (2) the novelty and complication of the issues; (3) the skill required to properly litigate the issues; (4) whether the attorney had to refuse other work to litigate the case; (5) the attorney's customary fee; (6) whether the fee is fixed or contingent; (7) whether the client or case circumstances imposed any time constraints; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) whether the case was "undesirable"; (11) the type of attorney-client relationship and whether that relationship was long-standing; and (12) awards made in similar cases."Id. at 822 n. 17. Adjustments to the "lodestar" fee amount are reviewed for abuse of discretion. Id. at 822.
The Court now turns to the merits of the motions.
The Court will frequently refer to the G nade case in its analysis. References to the G nade case refer to the case of G nade et al. v. National Union et al., 3:01-CV-2527-G, which is a companion case to the instant action and which was remanded to state court by Judge Fish on January 9, 2002.
As noted above, the Court must first consider the objective merits of the Insurance Defendants' case at the time of removal to determine whether an award of attorney fees is warranted under § 1447(c). Valdes, 199 F.3d at 292-93. An objective view of the merits of the Insurance Defendants' case at the time of removal reveals that the Insurance Defendants removed the case to federal court after the one-year removal period had expired and despite having entered into a forum selection agreement that clearly and unambiguously prohibited removal. As such, the Court RECOMMENDS that attorney fees are warranted under § 1447(c) for the objectively improper removal in this case.
A. Plaintiffs' Motion 1. Attorney Fees
The Plaintiffs seek $46,900 in attorney fees. (Ps' Mot. at 4.) Specifically, they seek $250 per hour for 187.60 hours of work relating to the improper removal. (Id. at 5.) The Insurance Defendants, on the other hand, challenge the reasonableness of both the hours expended and the hourly rate. (Ds' Resp. at 9, 20.) For the reasons that follow, the Court RECOMMENDS that the Plaintiffs recover $33,815.00 in attorney fees.
a. Reasonable Hours
As noted above, the Plaintiffs claim 187.60 hours of work relating to the improper removal. (Ps' Mot. at 5.) The Insurance Defendants challenge the reasonableness of these hours generally and specifically. (Ds' Resp. at 9-20.) The Court will address each of the Insurance Defendants' challenges in turn.
First, the Insurance Defendants contend that 28.5 hours to prepare the remand brief is excessive because the remand brief in the instant case is nearly identical to the remand brief in the G nade case. (Id. at 9.) The Plaintiffs, on the other hand, counter that 28.5 hours was necessary to independently research and adapt the G nade remand brief for use in the instant case. (Ps' Reply at 2.) Having reviewed both remand briefs and the arguments of the parties, the Court finds that 14 hours was a reasonable amount of time to adapt the G nade remand brief for use in the instant case. As such, 14.5 hours should be deducted from the Plaintiffs' total claimed hours for this challenge. EEOC v. Clear Lake Dodge , 60 F.3d 1146, 1154 (5th Cir. 1995) ("Attorneys' fees must not be awarded for attorney hours that are "excessive, redundant, or otherwise unnecessary.").
Second, the Insurance Defendants contend that the Plaintiffs have failed to demonstrate that they exercised billing judgment. (Ds' Resp. at 20.) In their reply, the Plaintiffs assert that "the undersigned counsel have not included time for work that was actually done, such as frequent conferences regarding the removal, and thus exercised billing judgment in this regard." (Ps' Reply at 5.) However, the Court is not convinced that the Plaintiffs have carried their burden of showing that they exercised billing judgment. As such, 28.14 hours, or 15% of the total claimed hours, should be deducted from the Plaintiffs' total claimed hours for this challenge. Walker v. HUD , 99 F.3d 761, 769 (5th Cir. 1996) (reducing the number of claimed hours by 15% for failing to show billing judgment).
Third, the Insurance Defendants contend that the Plaintiffs employed the impermissible technique of "block billing," (Ds' Resp. at 14), which is the practice of "enter[ing] the total daily time spent working on a case, rather than itemizing the time expended on specific tasks." Harold Stores, Inc. v. Dillard Dep't. Stores, Inc ., 82 F.3d 1533, 1554 n. 15 (10th Cir. 1996). The Plaintiffs argue, among other things, that the Insurance Defendants have not cited any Fifth Circuit authority to support their challenge. (Ps' Reply at 3.) Indeed, "block billing," by that name, has only been expressly recognized by the Tenth Circuit, see Harold Stores, Inc ., 82 F.3d at 1554, although several district courts outside of the Tenth Circuit have also recognized the practice of "block billing." See, e.g., UAW Local 540 v. Baretz , 159 F. Supp.2d 954 (E.D. Mich. 2000); McDannel v. Apfel , 78 F. Supp.2d 944 (S.D. Iowa 1999); United States v. Pennsylvania Blue Shield , 54 F. Supp.2d 410 (M.D. Pa. 1999); Rodriguez v. McLoughlin , 84 F. Supp.2d 417 (S.D.N.Y. 1999). However, the Court finds no authority that "block billing" constitutes a mandatory reduction, even in the jurisdictions that recognize it. Rather, one court recommends "look[ing] at the entire block, comparing the listed activities and the time spent, and determining whether the hours reasonably correlate to all of the activities performed." Pennsylvania Blue Shield, 54 F. Supp. 2d at 415. Employing this technique, the Court finds no basis on which to reduce the Plaintiffs' total claimed hours for impermissible "block billing," even if "block billing" were recognized in the Fifth Circuit. Therefore, zero hours should be deducted from the Plaintiffs' total claimed hours for this challenge.
Specifically, the Insurance Defendants challenge the Plaintiffs' billing entries for 11/30/01, 12/21/01, 12/26/01-12/28/01, 12/31/01, 1/18/02, 1/30/02-2/1/02, 2/5/02, 2/8/02, 2/11/02-2/13/02, 2/18/02, 2/19/02, 2/21/02-2/23/02, and 2/25/02-3/1/02.
Fourth, the Insurance Defendants challenge the recovery of attorney fees for the time the Plaintiffs spent on an "unsuccessful" deposition attempt. (Ds' Resp. at 18.) The Plaintiffs counter that the Insurance Defendants have mischaracterized the deposition attempt as "unsuccessful" because the Plaintiffs in fact withdrew the deposition attempt due to a death in the opposing counsel's family. (Ps' Reply at 6-8.) Although the deposition attempt was not "unsuccessful," the hours spent on the deposition attempt were nonetheless unnecessary. Clear Lake Dodge, 60 F.3d at 1154 ("Attorneys' fees must not be awarded for attorney hours that are "excessive, redundant, or otherwise unnecessary."). Whatever the reason, the Plaintiffs voluntarily withdrew their deposition attempt. As such, 8.7 hours should be deducted from the Plaintiffs' total claimed hours for this challenge.
Specifically, the Insurance Defendants challenge the billing entries for 12/2/01, 12/20/01, 12/21/01, 12/26/01, 12/27/01, 1/3/02, and 1/4/02.
Fifth, the Insurance Defendants challenge the billing entries for administrative tasks performed by the Plaintiffs' counsel. (Ds' Resp. at 17.) The Plaintiffs contend that the administrative tasks were necessary and that the tasks did not take much time. (Ps' Reply at 5-6.) However, it is not apparent from the Plaintiffs' billing records how much time these tasks actually took. Furthermore, although the Plaintiffs assert that these hours are properly billable, they do not cite any authority for that proposition. Therefore, 1 hour should be deducted from the total claimed hours for this challenge.
Specifically, the Insurance Defendants challenge the billing entries for 1/4/02, 19/02, 2/11/02, 2/13/02, 2/15/02, and 2/20/02.
Sixth, the Insurance Defendants challenge the billing entries for the time the Plaintiffs' counsel spent on "another lawsuit." (Ds' Resp. at 19.) Plaintiffs contend that they were not working on "another lawsuit" but rather researching the closely-related G nade case. (Ps' Reply at 8.) The Court finds that this research was necessary and reasonable in light of the close similarities between the instant case and the G nade case. As such, zero hours should be deducted from the Plaintiffs' total claimed hours for this challenge.
Specifically, the Insurance Defendants challenge the billing entries for 11/30/01, 12/2/01, 12/6/01, 12/24/01, 2/1/02, 2/8/02, 2/11/02, and 2/18/02.
Finally, the Insurance Defendants generally challenge the adequacy of the Plaintiffs' time records. (Ds' Resp. at 14.) The Plaintiffs do not address this challenge in their reply. However, this challenge is not directed at specific billing entries, and the billing entries do not appear to be facially inadequate. As such, zero hours should be deducted from the Plaintiffs' total claimed hours for this challenge.
In sum, the Court RECOMMENDS that the Plaintiffs expended 135.26 reasonable hours on the improper removal.
b. Reasonable Hourly Rate
Plaintiffs seek $250 per hour. (Ps' Mot. at 5.) The Insurance Defendants challenge the hourly rate on the grounds that the Plaintiffs have submitted insufficient evidence to establish the reasonableness of $250 per hour. (Ds' Resp. at 20-21.) The Court disagrees. The Plaintiffs submit the Declaration of John B. Sullivan, in which Mr. Sullivan details his own legal experience, as well as the legal experience of co-counsel Stephen W. Kotara. (Ps' App. at 8-9.) Mr. Sullivan and Mr. Kotara have been practicing law in Texas since 1985 and 1987, respectively, and both attorneys have significant experience in tort and commercial litigation, including personal injury and insurance litigation. ( Id.) Plaintiffs also submit evidence of the rates customarily charged by attorneys in Dallas with the legal experience of Mr. Sullivan and Mr. Kotara. (Id. at 27.) Equity partners in Dallas billed an average of $298 per hour in 2001. ( Id.) Furthermore, equity partners in Texas law firms of less than thirty attorneys billed an average of $230 per hour in 2001. ( Id.) Considering the legal experience of the Plaintiffs' counsel, as well as the evidence of customary rates, the Court finds $250 per hour to be a reasonable hourly rate for both Mr. Sullivan and Mr. Kotara.
c. The "Lodestar" Fee Amount
Multiplying the reasonable hours of 135.26 by the reasonable hourly rate of $250, the Court RECOMMENDS the "lodestar" fee amount is $33,815.00.
d. The Johnson Factors
As noted above, the Court may increase or decrease the "lodestar" fee amount according to the circumstances of the case. Wegner , 129 F.3d at 822. After considering the twelve Johnson factors, the Court RECOMMENDS no adjustment to the "lodestar" fee amount.
Although the difficulty of the case, the skill required, the time limitations imposed by the Court, and the successful result for the Plaintiffs weigh in favor of increasing the "lodestar" fee amount, other factors weigh in favor of decreasing the "lodestar" fee amount. For example, the Plaintiffs' attorneys are currently working on a contingent fee basis, the extent of the professional relationship between the Plaintiffs and their attorneys is limited to this one case, and the plaintiffs recovered $32,500.00 in attorney fees in the G nade case.
As such, the Court RECOMMENDS that the Plaintiffs recover $33,815.00 in attorney fees due to the improper removal in this case.
2. Costs
Plaintiffs seek $588.50 in copying costs. (Ps' Mot. at 4.) Specifically, Plaintiffs seek $0.25 per copy for 2,354 copies. (Ps' App. at 10.) The Insurance Defendants contend that these copying costs are not recoverable because the purpose of the copies has not been described with sufficient particularity. (Ds' Resp. at 19.) However, given the Court's firsthand experience with the voluminous filings in this case, the Court finds 2,354 copies to be reasonable in this case. On the other hand, the Court finds $0.25 per copy to be excessive. Therefore, the Court RECOMMENDS that Plaintiffs recover $353.10, or $0.15 per copy, as "just costs" under § 1447(c). See Lovell v. Glenn Oaks Hospital, Inc ., No. 3:97-CV-0318-L, 1999 WL 1029091, at *2 (N.D. Tex. Nov. 10, 1999) (awarding $0.15 per copy under 28 U.S.C. § 1920 (4)).
The Court recognizes that the Plaintiffs rely on this Court's decision in Anderson v. Siemens Med. Sys's, Inc., No. 3:98-CV-1850, 2002 WL 199878, at *2 (N.D. Feb. 7, 2002), to support its claim for $0.25 per copy; however, the Plaintiffs fail to recognize that the Anderson decision dealt with copies of transcripts requested from the court, as opposed to copies of pleadings and other filings produced by the Plaintiffs.
3. Contingent Fees
The Plaintiffs seek $10,000 in the event of an unsuccessful appeal to the District Court and $25,000 in the event of an unsuccessful appeal to the Fifth Circuit. (Ps' Mot. at 5.) Although fees may be awarded for unsuccessful appeals, see News-Texan, Inc. v. City of Garland, Texas , 814 F.2d 216, 221 (5th Cir. 1987), the Court finds no authority to award contingent fees in the event of unsuccessful appeals in the situation presented by this case. Therefore, the Plaintiffs' request for contingent fees should be DENIED.
Court recognizes that the Plaintiffs have submitted a letter, dated March 12, 2002, in which the Plaintiffs cite to two cases as authority for awarding contingent fees. However, it is inappropriate for the Court to consider these arguments because they were submitted after the Plaintiffs had filed their reply brief. Furthermore, the Court notes that the cited cases are distinguishable from the instant case in that the contingent fees awarded in the cited cases dealt with the appeal of the final disposition of the case in addition to the award of attorney fees. The instant case has not reached a final disposition, and any appeal would deal strictly with the award of attorney fees.
B. TxDOT Individual Defendant's Motion 1. Attorney Fees
The TxDOT Individual Defendants seek $33,300 in attorney fees. (TxDOT Mot. at 1.) Specifically, they seek $250 per hour for 126 hours of work and $150 per hour for 12 hours of work, all of which related to the improper removal. (Id. at 6-7.) The Insurance Defendants, on the other hand, challenge the reasonableness of both the hours expended and the hourly rate. (Ds' Resp. at 2, 6.) For the reasons that follow, the Court RECOMMENDS that the TxDOT Individual Defendants recover $14,297.50 in attorney fees.
a. Reasonable Hours
As noted above, the TxDOT Individual Defendants claim a total of 138 hours of work relating to the improper removal. (TxDOT Mot. at 6-7.) The Insurance Defendants challenge the reasonableness of these hours generally and specifically. (Ds' Resp. at 2-6.) The Court will address each of the Insurance Defendants' challenges in turn.
First, the Insurance Defendants allege that the TxDOT Individual Defendants billed for the same work in their Sees and G nade billing records. (Id. at 3.) The TxDOT Individual Defendants, on the other hand, explain that the identical billing entries represent split-billing, not redundant billing. (TxDOT Reply at 2-6.) After a careful review of the billing statements, the Court finds the TxDOT Individual Defendants' explanation to be persuasive. Most importantly, the Court finds that the total of 38.5 hours, or 19.25 hours each for the Sees and G nade cases, represents a reasonable amount of time to prepare, from scratch, the nearly identical motions to remand in the Sees and G nade cases. (TxDOT Mot. at Ex. 2.) As such, zero hours should be deducted from the TxDOT Individual Defendants' total claimed hours for this challenge.
Specifically, the Insurance Defendants challenge the identical billing entries for 12/12/01, 12/17/01, 12/18/01, 12/21/01, 12/27/01, and 12/28/01. In their reply, the TxDOT Individual Defendants voluntarily retract their request for the 4 hours of "[t]raveling to/from Courthouse" on 12/28/01, identifying this entry as an inadvertent instance of double billing. Furthermore, in their reply, the TxDOT Individual Defendants claim an additional 4 hours for the time it took them to prepare their reply brief. Therefore, the TxDOT Individual Defendants' total claimed hours of 138 hours remains the same following their reply.
Second, the Insurance Defendants challenge several billing entries as containing vague research descriptions. (Ds' Resp. at 4.) The TxDOT Individual Defendants do not address this challenge in their reply. The challenged billing entries include several references to "Researching/Reviewing Law" without any further explanation regarding the subject matter of the research. (TxDOT Mot. at Ex. 2.) Vague research descriptions can be a basis for reducing the number of reasonable hours for purposes of attorney fee calculations. LULAC v. Roscoe Ind. Sch. Dist ., 119 F.3d 1228, 1233 (5th Cir. 1997). As such 40.00 hours should be deducted from the total claimed hours for this challenge.
Specifically, the Insurance Defendants challenge the vague research descriptions in the billing entries for 12/20/01, 12/21/01, 1/9/02, 2/1/02, 2/2/02, 2/6/02, 2/9/02, 2/25/02, 2/27/02, 2/28/02, and 3/4/02.
The Insurance Defendants also challenge the 37 hours it took Ms. Bonnen to prepare for the motion hearing. Specifically, the Insurance Defendants challenge the TxDOT Individual Defendants' choice of attorneys for the motion hearing, given that Mr. Hill was more familiar with the case. However, the Court notes that out of the 40 hours it deducted for vague research descriptions, 13 of those hours also constituted some of Ms. Bonnen's preparation time. The Court finds that the remaining 24 hours of preparation time for Ms. Bonnen was reasonable. Therefore, the Court will not address the Insurance Defendants' challenge to Ms. Bonnen's preparation time any further.
Third, the Insurance Defendants contend that the TxDOT Individual Defendants have failed to demonstrate that they exercised billing judgment. (Ds' Resp. at 5.) The TxDOT Individual Defendants do not address this challenge in their reply. There is no indication from the evidence or from the briefing that the TxDOT Individual Defendants exercised billing judgment. As such, 20.7 hours, or 15% of the total claimed hours, should be deducted from the TxDOT Individual Defendants' total claimed hours. Walker , 99 F.3d at 769 (reducing the number of claimed hours by 15% for failing to show billing judgment).
Fourth, the Insurance Defendants contend that several billing entries indicate that the TxDOT Individual Defendants used an excessive amount of time to complete listed tasks. (Ds' Resp. at 4-5.) The TxDOT Individual Defendants do not address this challenge in their reply. The Court finds that the TxDOT Individual Defendants used an excessive amount of time in reviewing letters and memos. (TxDOT Mot. at Ex. 2.) As such, 2.25 hours should be deducted from the TxDOT Individual Defendants' total claimed hours for this challenge. Clear Lake Dodge , 60 F.3d at 1154 ("Attorneys' fees must not be awarded for attorney hours that are "excessive, redundant, or otherwise unnecessary.").
Specifically, the Insurance Defendants challenge the billing entries for 1/9/02-1/11/02, 1/16/02, 1/24/02, 2/1/02, 2/2/02, 2/6/02, 2/8/02, 29/02, and 2/21/02.
Finally, the Insurance Defendants challenge one billing entry as unnecessary because the task had not yet been required by the District Court. (Ds' Resp. at 5.) The TxDOT Individual Defendants counter that even if the task was completed early, it was still done for this case. (TxDOT Reply at 8.) The Court is not convinced by the TxDOT Individual Defendants' argument; the TxDOT Individual Defendants should not be able to recover attorney fees for work that was not yet required. As such, 2.5 hours should be deducted from the TxDOT Individual Defendants' total claimed hours for this challenge. Clear Lake Dodge , 60 F.3d at 1154 ("Attorneys' fees must not be awarded for attorney hours that are "excessive, redundant, or otherwise unnecessary.").
Specifically, the Insurance Defendants challenge the "initial disclosures" billing entry for 2/1/02.
In sum, the Court RECOMMENDS that the TxDOT Individual Defendants expended 72.55 reasonable hours on the improper removal.
of the 7255 reasonable hours, 69.05 hours were billed by Mr. Gilbert, Mr. Hill, and Ms. Bonnen, and 350 hours were billed by Ms. Sims.
b. Reasonable Hourly Rate
The TxDOT Individual Defendants seek $250 per hour for Mr. Gilbert, Mr. Hill, and Ms. Bonnen and $150 per hour for Ms. Sims. (TxDOT Mot. at 6-7.) The Insurance Defendants contend that the TxDOT Individual Defendants have submitted insufficient evidence to establish the reasonableness of the claimed hourly rates. (Ds' Resp. at 6.) In their reply, the TxDOT Individual Defendants disclose that in the G nade case Magistrate Judge Kaplan established a rate of $200 per hour for Mr. Gilbert and Mr. Hill and $125 per hour for Ms. Sims. (TxDOT Reply at 7-8.) The TxDOT Individual Defendants further state that they would "not object to these rates" if this Court "wishes to remain consistent." ( Id.) In light of the evidence of legal experience provided by the TxDOT Individual Defendants, and in light of the previous determination as to reasonable hourly rates, the Court RECOMMENDS the reasonable hourly rates of $200 for Mr. Gilbert, Mr. Hill, and Ms. Bonnen and $125 per hour for Ms. Sims.
c. The "Lodestar" Fee Amount
Multiplying the reasonable hours of 69.05 by the reasonable hourly rate of $200, and multiplying the reasonable hours of 3.50 by the reasonable hourly rate of $125, the Court RECOMMENDS the "lodestar" fee amount of $14,247.50.
d. The Johnson Factors
As noted above, the Court may increase or decrease the "lodestar" fee amount according to the circumstances of the case. Wegner , 129 F.3d at 822. After considering the twelve Johnson factors, the Court RECOMMENDS no adjustment to the "lodestar" fee amount.
Although the difficulty of the case, the skill required, the time limitations imposed by the Court, and the successful result for the TxDOT Individual Defendants weigh in favor of increasing the "lodestar" fee amount, other factors weigh in favor of decreasing the "lodestar" fee amount. For example, the work in this case was very similar to the work in the G nade case, and the TxDOT Individual Defendants recovered $11,000.00 in attorney fees in the G nade case.
As such, the Court RECOMMENDS that the TxDOT Individual Defendants recover $14,247.50 in attorney fees due to the improper removal in this case.
2. Costs
The TxDOT Individual Defendants seek $142.87 in travel costs, which were accrued in traveling to and from the motion hearing. (TxDOT Mot. at 7.) The Insurance Defendants do not address this claim for costs in their response. The TxDOT Individual Defendants have submitted sufficient evidence of these travel costs. (Id. at Ex. 3.) Therefore, the TxDOT Individual Defendants' request for travel costs should be GRANTED. Tenner v. Zurek , 168 F.3d 328, 330 (7th Cir. 1998) (awarding travel costs under § 1447(c) following remand to state court).
3. Contingent Fees
The TxDOT Individual Defendants request $2,500 in the event of an unsuccessful appeal to the District Court and $15,000 in the event of unsuccessful appeal to the Fifth Circuit. (TxDOT Reply at 10.) As noted above, although fees may be awarded for unsuccessful appeals, see NewsTexan, Inc ., 814 F.2d at 221, the Court finds no authority to award contingent fees in the event of unsuccessful appeals in the situation presented by this case. Therefore, the TxDOT Individual Defendants' request for contingent fees should be DENIED.
IV. Recommendation
For the foregoing reasons, the Court RECOMMENDS that the motions for attorney fees and costs be GRANTED in part and DENIED in part. Specifically, under § 1447(c), the Court RECOMMENDS that (1) the Plaintiffs recover a total of $34,168.10 in fees and costs from the Insurance Defendants, payable to Mr. John Sullivan for his clients in this case, and (2) the TxDOT Individual Defendants recover a total of $14,390.37 in fees and costs from the Insurance Defendants, payable to the Office of the Attorney General.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Ant , 474 U.S. 140, 150 (1985); Perales v. Casillas , 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).