UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MATTHEW AND KAREN CROWN, 

Plaintiffs, 

Case No. 15-cv-10180 

HON. GERSHWIN A. DRAIN

v. 

PHI AIR MEDICAL, L.L.C.,

Defendant. 

__________________________________/

ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY

FEES [#14] 

I. INTRODUCTION 

Presently before the Court is the Plaintiffs, Matthew and Karen Crown’s,

Motion for Attorney Fees, filed on May 4, 2015. Defendant, PHI Air Medical, LLC,

filed a Response in Opposition on May 18, 2015. Plaintiffs filed a Reply in support

of their present motion on May 21, 2015. Upon review of the parties’ submissions,

the Court concludes that oral argument will not aid in the resolution of the instant

motion. Accordingly, the Court will resolve Plaintiffs’ present motion on the briefs. 

See E.D. Mich. L.R. 7.1(f)(2). Upon review of the parties’ briefing, the Court will

grant in part Plaintiffs’ Motion for Attorney Fees. 

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II. BACKGROUND 

On or about December 11, 2014, Plaintiffs filed a declaratory judgment action

in the Lapeer County Circuit Court. Plaintiffs’ action seeks a declaration that

Defendant’s fees associated with the transport of Plaintiffs’ son to a hospital after a

motorcycle event in March of 2014 are unreasonable, invalid and uncollectible. On

January 16, 2015, Defendant removed Plaintiffs’ action to this Court arguing that

Plaintiffs’ claims were preempted by the Airline Deregulation Act (“ADA”), 49

U.S.C. § 41713 et seq. Plaintiffs filed a timely Motion to Remand. The Court granted

Plaintiffs’ Motion to Remand and remanded the instant action to the state court. 

In concluding that removal of this matter was improper, this Court determined

that the ADA did not completely preempt Plaintiffs’ state law claims. See Dkt. No.

12 at 6. Relying on Musson Theatrical, Inc. v. Modernage Photo Serv., Inc., 89 F.3d

1244, 1251-52 (6th Cir. 1996), the Court held that “contrary to PHI’s assertion, in this

circuit it has been established for nearly twenty years that the ADA does not

completely preempt state law claims.” This Court further noted that Defendant’s

argument relied on authority that was inapplicable to the issue of complete preemption

and original jurisdiction. See Dkt. No. 12 at 7-8. 

III. LAW & ANALYSIS 

Plaintiffs presently move for an award of attorney fees arguing that Defendant’s

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improper removal of this action caused them to incur fees in the amount of $3,864.50. 

Plaintiffs rely on Local Rule 54.1.2, as well as 28 U.S.C. § 1447(c) in support of their

request for attorney fees. Defendant counters that it had an objectively reasonable

basis for removing this action and it did not remove the case to improperly prolong

litigation. 

As an initial matter, Plaintiffs reliance on Local Rule 54.1.2 is misplaced. Local

Rule 54.1.2 states that “[a] motion for attorneys’ fee and related non-taxable expenses

pursuant to Fed. R. Civ. P. 54(d)(2) must be filed no later than 28 days after entry of

judgment.” E.D. Mich. L.R. 54.1.2. Both Local Rule 54.1.2 and Rule 54(d)(2) of the

Federal Rules of Civil Procedure address requests for attorney fees upon the entry of

judgment. No judgment was entered in this matter, thus Plaintiffs cannot rely on

Local Rule 54.1.2 in support of their present request for attorney fees.

However, pursuant to 28 U.S.C. § 1447(c), when an action is improperly

removed and the district court remands the action, the court has the discretion to

award “just costs and any actual expenses, including attorney fees, incurred as a result

of the removal.” 28 U.S.C. § 1447(c). The Supreme Court has held that “the standard

for awarding fees should turn on the reasonableness of the removal.” Martin v.

Franklin Capital Corp., 546 U.S. 132, 141 (2005). “Absent unusual circumstances,

courts may award attorney’s fees under § 1447(c) only where the removing party

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lacked an objectively reasonable basis for seeking removal.” Id. “The objective

reasonableness standard does not require a showing that the defendant’s position was

‘frivolous’ or ‘without foundation.’” Kent State Univ. Bd. of Trs. v. Lexington Ins.

Co., 512 F. App’x 485, 489 (6th Cir. Jan. 22, 2013) (citing Martin, 546 U.S. at 138-

39). Objective reasonableness may “depend on the clarity of the law at the time the

notice of removal was filed.” Id. 

Conversely, district courts should deny requests for attorney fees when an

objectively reasonable basis existed for removing the action even though it later was

found to be improper. Martin, 546 U.S. at 141. Unusual circumstances warranting

departure from awarding attorney fees when removal was not objectively reasonable

include “a plaintiff’s delay in seeking remand or failure to disclose facts necessary to

determine jurisdiction . . . .” Id. 

Defendant maintains that its removal was objectively reasonable because it

believed the ADA controlled and preempted Plaintiffs’ state law claims so that federal

jurisdiction of the case was proper. Defendant argues its good faith basis for asserting

this position arises from administrative matters in Maryland in which it presented

arguments on the applicability of the ADA. Defendant further argues that this

Court’s acknowledgment that the ADA may impact some of Plaintiffs’ claims in the

state court action lends further support for the objective reasonableness of removal. 

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The Court disagrees with Defendant. In this circuit, the law was well-settled

at the time of removal that “the ADA, unlike ERISA, does not channel civil actions

into federal courts . . . .” Musson, 89 F.3d at 1253 (“[W]e see no evidence that

Congress intended the federal courts to have exclusive subject matter jurisdiction over

the preemption defenses to state law claims against carriers.”). Moreover, there is

ample authority from the district courts confirming the state of the law in this circuit,

specifically that the ADA does not provide federal subject matter jurisdiction over

state law claims based on the doctrine of preemption. See Puterbaugh v. Airtran

Airways, 494 F. Supp.2d 597, 603 (S.D. Ohio 2003); Denzik v. Reg’l Airport Auth.,

361F. Supp. 2d 659, 662 (W.D. Ky. 2005). It is also noteworthy that in addition to

the Sixth Circuit, the Fifth, the Seventh and the Ninth Circuits have held that the ADA

does not provide for complete preemption of state law claims. Wayne v. DHL

Worldwide Express, 294 F.3d 1179 (9th Cir. 2002); Sam L. Majors Jewelers v. ABX,

Inc., 117 F.3d 922 (5th Cir. 1997); Vorhees v. Naper Aero Club, Inc., 272 F.3d 398

(7th Cir. 2001). 

Defendant’s reliance on an administrative matter that occurred in Maryland that

had nothing to do with original jurisdiction for removal purposes does not demonstrate

an objectively reasonable basis for removing the instant action. A simple search

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would have uncovered the foregoing controlling and persuasive legal authority that

confirmed the impropriety of removing the instant action to this Court. Defendant’s

argument that this Court noted that the ADA may impact some of Plaintiff’s claims

is of no consequence. Defendant did not adequately research the relevant law prior

to removing this action. If it had, it would have realized it was confusing conflict

preemption with complete preemption and, therefore the ADA “does not channel civil

actions into federal courts . . . .” Musson, 89 F.3d at 1253; Puterbaugh, 494 F.

Supp.2d at 603; Denzik, 361 F. Supp. 2d at 662. Contrary to Defendant’s argument,

removal was “obviously improper” and warrants the award of attorney fees. Def.’s

Resp. at 4. 

Finally, when a court finds that an award of fees is appropriate, it must then

arrive at a reasonable amount of fees to award. See Bldg. Serv. Local 7 Cleaning

Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1400 (6th Cir. 1995).

The court must use the “lodestar” method to determine the appropriate amount of

attorney fees. See Barnes v. City of Cincinnati, 401 F. 3d 729, 745 (6th Cir. 2005).

This method requires a finding of “the proven number of hours reasonably expended

on the case by an attorney, multiplied by his [] court-ascertained reasonable hourly

rate.” Gratz v. Bollinger, 353 F. Supp. 2d 929, 937 (E.D. Mich. 2005). “The primary

concern in an attorney fee case is that the fee awarded be reasonable, that is, one that

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is adequately compensatory to attract competent counsel yet which avoids producing

a windfall for lawyers.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th

Cir. 2000). 

“The party seeking an award of attorney fees should submit evidence

supporting the hours worked and rates claimed. Where the documentation of hours is

inadequate, the district court may reduce the award accordingly.” Id. (citing Hensley

v. Eckerhart, 461 U.S. 424, 433 (1983)). Fees that are not reasonably expended, such

as fees incurred as a result of duplication of efforts, are to be excluded. Id. 

In assessing the “reasonable hourly rate” component of the lodestar method, the

district court should assess the “prevailing market rate in the relevant community.”

Blum v. Stenson, 465 U.S. 886, 895 (1984). The prevailing market rate is “that which

lawyers of comparable skill and experience can reasonably expect to command within

the venue of the court of record.” Addock-Ladd, 227 F. 3d at 350. 

Here, while Plaintiffs provide their billing records, their records reveal that

some of the work is not compensable because it was not “incurred as a result of the

removal.” 28 U.S.C. § 1447(c). Specifically, Plaintiffs seek attorney fees for

“[r]eceipt and review of Answer, Affirmative Defenses and Counterclaim[,]” as well

as for “[r]esearch[ing] affirmative defenses to defendant’s counter-claim including

duress and unconscionability; preparation of answer and affirmative defenses to

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counter-claim.” Work that was not incurred as a result of the improper removal

includes billing entries on January 20, 2015 for $540.00; February 5, 2015 for

$135.00; February 9, 2015 for $67.50; and February 12, 2015 for $400.00. This is

work that would have been required of Plaintiffs’ counsel notwithstanding the

improper removal. Moreover, counsel used block billing wherein this work is

combined in the same billing record entry with other work that is related to the

removal issue. As such, the Court cannot discern how much time was spent on the

remand issue and how much time was spent on the matters that were unrelated to

Defendant’s removal. 

Additionally, while unnecessary to this Court’s resolution of whether

Defendant’s removal was objectively reasonable, it is correctly noted by Defendant

that the majority of Plaintiffs’ Motion to Remand raised the non-meritorious argument

that the ADA was inapplicable to this case. To the contrary, as noted by this Court

in its Order of Remand, the ADA may be applicable to Plaintiffs’ claims, it just does

not serve to completely preempt those claims. While Plaintiffs do address the

preemption issue in their Reply brief, the vague billing entries do not allow the Court

to ascertain the amount of time spent working on the issues that were irrelevant to this

Court’s decision to remand this matter.

Moreover, Plaintiffs fail to provide any evidence that the hourly billing rate of 

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$135.00 per hour for Richard Cummins’s work is reasonable. “[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, 896 n.11 (1984). Plaintiffs do not

indicate the amount of time that Mr. Cummins has been in practice, thus the Court

cannot determine whether $135.00 per hour is a reasonable rate compared with

lawyers with the same experience in the relevant community. 

 For all of the deficiencies the Court has discussed, the Court finds it

appropriate to decrease the amount of requested fees by 30%. Accordingly, the Court

will award Plaintiffs a total of $2,705.15 in attorney fees for Defendant’s improper

removal that was not objectively reasonable. 

IV. CONCLUSION

Accordingly, Plaintiffs’ Motion for Attorney Fees [#14] is GRANTED IN

PART. Plaintiffs are awarded a total of $2,705.15 in attorney fees. 

SO ORDERED. 

Dated: May 27, 2015 /s/Gershwin A Drain 

GERSHWIN A. DRAIN

UNITED STATES DISTRICT JUDGE 

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