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IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF INDIANA 

 HAMMOND DIVISION 

FLOYD COFFMAN and ) 

JEAN COFFMAN, citizens of ) 

the State of Indiana, ) 

 ) 

Plaintiffs, ) 

) 

vs. ) CAUSE NO. 2:16-CV-157 

) 

DUTCH FARMS, INC. and ) 

BRIAN GARNER, a citizen of ) 

the State of Indiana, ) 

) 

Defendants. ) 

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion to Enter 

Award of Attorney’s Fees, filed on March 3, 2017 (DE #21). For 

the reasons set forth below, the motion is GRANTED. Plaintiffs 

are AWARDED their just costs and actual expenses, including 

attorneys’ fees, as a result of the removal in the amount of 

$26,560. 

BACKGROUND 

On February 24, 2017, this Court entered an order remanding 

this case back to the Lake Superior Court of Lake County, Indiana. 

Additionally, this Court awarded the Plaintiffs their just costs 

and actual expenses, including attorneys’ fees, as a result of the 
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removal. This award was based on a finding that Defendants lacked 

an objectively reasonable basis for removing this case. 

In the instant motion, Plaintiffs initially sought $16,380 in 

fees for 36.4 hours of Attorney Robert D. Brown’s time at a rate 

of $450 per hour. On March 10, 2017, Defendants expressed their 

intention to contest the reasonableness of the requested fees and 

sought an extension of time to respond to the request for fees. 

(DE #22). Both a response and a reply to the motion for extension 

of time were filed, and the extension was granted over Plaintiffs’ 

objection. (DE ##23, 25, 26). 

On March 15, 2017, Defendants again expressed that they 

believed Plaintiffs’ request for fees was inflated and that they 

intended to propound written discovery on Plaintiffs to explore 

the matter. (DE #24). On April 4, 3017, Defendants asked the 

court to set an expedited deadline for discovery related to the 

fee petition, or in the alternative, to grant another extension of 

time. (DE #27). Two days later, the request for discovery was 

denied by Magistrate Judge John E. Martin. (DE #28). Judge Martin 

noted that the Defendants failed to cite to any law establishing 

that they are entitled to discovery or explain what information 

they might need to challenge the reasonableness of the requested 

fees. The Court set a deadline of April 17, 2017, for responding 

to the fee request and further ordered that Plaintiffs’ counsel 
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was not required to respond to the discovery requests or attend 

any deposition concerning the attorney’s fees. 

Defendants filed their response on April 17, 2017, arguing 

that both the hourly rate and the number of hours Attorney Brown 

allegedly spent as a result of Defendants’ removal were excessive. 

(DE #29). Plaintiffs filed a reply on April 24, 2017. (DE #30). 

In the reply brief, Plaintiffs seek an additional $10,180 in 

attorneys’ fees as a result of Defendants actions subsequent to 

the filing of the motion to enter an award of attorney’s fees. 

This additional request includes another 15.9 hours of Attorney 

Brown’s time at a rate of $450 per hour and 11 hours of Attorney 

Sarah M. Cafiero’s time at a rate of $275 per hour. 

On May 2, 2017, Defendants sought leave to file a surreply in 

opposition to the fee petition. (DE #31). That motion was 

granted. (DE ##32 - 33). Plaintiffs responded to the motion for 

leave to file a surreply the same day the order was granted. (DE 

#34). Finally, this matter is fully briefed and ripe for 

adjudication. 

DISCUSSION 

As the Supreme Court has stated, “[t]he process of removing 

a case to federal court and then having it remanded back to state 

court delays resolution of the case, imposes additional costs on 

both parties, and wastes judicial resources.” Martin v. Franklin 
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Capital Corp., 546 U.S. 132, 140 (2005). “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.” Id. at 141. Under Seventh Circuit 

law, “if, at the time the defendant filed his notice in federal 

court, clearly established law demonstrating that he had no basis 

for removal, then the district court should award a plaintiff his 

attorneys’ fees.” Lott v. Pfizer, Inc., 492 F.3d 789, 793 (7th 

Cir. 2007). This Court has already determined that attorneys’ 

fees are appropriate in this case. 

The only issue before this Court is whether the fees requested 

are reasonable. Generally, a reasonable attorney’s fee is 

calculated by multiplying a reasonable hourly rate by the number 

of hours reasonably expended. See Baker v. Trustworthy Land Title 

Co., No. 1:14cv01617-RZY-DML, 2015 WL 9487885 (S.D. Ind. Dec. 9, 

2015). Under the unique circumstances of this case, the Court 

finds that both the rate requested and the amount of time expended 

as a result of Defendants’ removal are reasonable. 

Reasonableness of the Hourly Rate 

 Plaintiffs have asked that Attorney Brown be reimbursed at a 

rate of $450 per hour and that Attorney Cafiero be reimbursed at 

a rate of $275 per hour. In support of the request, Attorney Brown 

submitted his affidavit indicating that he has practiced since 
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1986 and is a partner with Kenneth J. Allen Law Group, LLC. He 

further asserts that $450 is a reasonable hourly rate for his work. 

And, he asserts that Magistrate Judge Paul Cherry awarded his 

partner fees at that rate in a 2014 case. The name of the case, 

Evans v. Dart Trasit Co., 2:12-CV-186, was not contained in the 

affidavit, but it was provided in the reply brief. 

 Plaintiffs’ counsel bears the burden of proving the hourly 

rate he has requested is reasonable. See Pickett v. Sheridan 

Health Care Center, 664 F.3d 632, 640 (7th Cir. 2011); Small v. 

Richard Wolf Med. Instruments Corp., 264 F.3d 702, 707 (7th Cir. 

2001). In determining a reasonable rate, the Court considers “the 

rate that lawyers of similar ability and experience in the 

community normally charge their paying clients for the type of 

work in question.” McNabola v. Chicago Transit Auth., 10 F.3d 5 

501, 519 (7th Cir. 1993). When available, the best evidence of an 

attorney’s market rate is his actual rate for comparable work. 

Small, 264 F.3d at 707. 

If, however, the court cannot determine the 

attorney’s true billing rate – such as when 

the attorney maintains a contingent fee or 

public interest practice – the applicant can 

meet his or her burden by submitting 

affidavits from similarly experienced 

attorneys attesting to the rates they charge 

paying clients for similar work, or by 

submitting evidence of fee awards that the 

applicant has received in similar cases. 
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Small, 264 F.3d at 707. An attorney must “do more than merely 

request an hourly rate,” but the threshold amount of evidence 

required should also not be set at an unattainable level. People 

Who Care v. Rockford Bd. of Ed., 90 F.3d 1307, 1311 (7th Cir. 

1996). 

 Attorney Brown could have produced better evidence to support 

his claim that the hourly rate of $450 is reasonable, but this is 

also not a situation where counsel has merely requested an hourly 

rate. Attorney Brown has produced an affidavit asserting that 

$450 was a reasonable hourly rate for the performance of his legal 

services, and also that his partner was awarded fees at that rate 

by Magistrate Judge Paul R. Cherry in another personal injury case 

in 2014. While the case name was not provided, the name of the 

judge deciding the case, the year of the ruling, the nature of the 

case (personal injury), and the nature of the award (discovery 

violations) were provided. The accuracy of Plaintiffs’ assertion 

could have likely been verified from this information, should 

Defendants’ counsel have desired to do so. While less than ideal, 

this is sufficient to satisfy Plaintiffs’ initial burden. 

Furthermore, the name of the case was provided in the reply 

brief. Defendant argues that the designation of additional 

evidence in the reply brief is inappropriate, but there is some 

precedent for allowing a plaintiff to provide supplemental 

evidence in the face of a defendant’s argument that the 
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reasonableness of the hourly rate was not sufficiently supported. 

See Staples v. Parkview Hosp., Inc, No. 1:07-CV-327, 2010 WL 

780204, *7-8 (N.D. Ind. Mar. 3, 2010)(“The fact that Staples did 

not attach additional affidavits from other local or area attorneys 

as exhibits to their original motion is not a sufficient reason to 

deny Staples’ Motion for Attorney Fees. Anyway, Mr. Mulholland’s 

affidavit, filed with Staples’ reply brief, defeats this portion 

of Parkview’s argument.”). 

It has been held that the most direct evidence of an 

attorney’s hourly rate is the rate he has received in a prior case. 

Davis v. Lakeside Motor Co., No. 3:10-CV-405 JD, 2014 WL 3341033, 

*3 (N.D. Ind. July 7, 2014). Here, Attorney Brown did not provide 

evidence that he was previously awarded fees in the amount of $450 

per hour, but an award of fees at this rate to his partner at the 

same law firm is similarly compelling evidence of the 

reasonableness of this rate. 

 Additionally, rates that other courts have awarded are 

relevant in determining the reasonableness of the requested rate. 

Soleau v. Ill. Dept. of Transp., No. 09 C 3582, 2011 WL 2415008,

*5 (N.D. Ill. June 9, 2011). While Defendants have referenced 

numerous cases with hourly rates spanning from $150 to $287, there 

are also cases that have authorized rates consistent with 

Plaintiffs’ request. See L.H.H. v. Horton, 2:13-CV-452 (N.D. Ind. 

Mar. 10, 2015)($500); Corcoran v. City of Chi., No. 10-CV-06825, 
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*5 (N.D. Ill. Sept. 15, 2015)($490); Parish v. City of Elkhart, 

No. 3:07-CV-452, 2011 WL 1360810, *2, 4 (N.D. Ind. Apr. 11, 

2011)(awarding fees ranging from $295 to $425 to four attorneys). 

Furthermore, the remedy when a fee applicant fails to sustain 

his or her burden of demonstrating that the requested hourly rate 

is reasonable is not the wholesale denial of attorney’s fees. 

Rather, “[i]f a fee applicant does not satisfy its burden, the 

district court has the authority to make its own determination of 

a reasonable rate.” Pickett, 664 F.3d at 640 (citing Uphoff v. 

Elegant Bath, Ltd., 176 F.3d 399, 409 (7th Cir. 1999)). A fee of 

$450 for a seasoned partner in a well-established law firm is 

consistent with this Court’s own experience regarding reasonable 

hourly rates. 

Defendants do not specifically take issue with the rate for 

Attorney Cafiero. Attorney Cafiero was awarded attorney’s fees at 

the rate of $275 in Evans v. Dart Transit Co., 2:12-CV-186, and 

this Court likewise finds the rate reasonable. 

Reasonableness of the Hours Expended 

Plaintiffs claim that they expended a minimum of 36.4 hours 

as a result of Defendants’ improvident removal, and an additional 

26.9 hours as a result of Defendants’ vigorous efforts to dispute 

the reasonableness of the fee petition, for a total of at least 

63.3 hours. This Court may exclude time that is inadequately 
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documented, excessive, redundant, or otherwise unnecessary. Rice 

v. Sunrise Express, Inc., 237 F.Supp.2d 962, 972 (N.D. Ind. 2002). 

 Defendants argue that Plaintiffs’ attorneys have not 

adequately documented their time. According to defense counsel, 

“[b]eyond the affidavit in support of his petition for fees, 

Plaintiffs have produced absolutely no evidence that he actually 

worked the number of hours he claims.” (DE #29 at 7). It is not 

clear what evidence Defendants believe Attorney Brown is obligated 

to produce. His affidavit does not just allege the number of hours 

he worked. The tasks are broken down in considerable detail. For 

example, Attorney Brown alleges he spent .5 hours “reviewing and 

analyzing Defendants’ Notice of Removal and related documents; 

determine timeliness of removal.” (DE 21-1). He further asserts 

that he spent 5.6 hours as follows: 

Legal research re: standard of review; federal 

question jurisdiction; private right of action 

under FMCSRs; substantial federal question 

based on violation of FMCSRs; recovering 

attorney’s fees for improvident removal; 

prepare outline for response. 

(Id.). This is precisely the kind of details that an attorney is 

expected to provide when seeking attorney’s fees. Every detail 

need not be divulged. Soleau, 2011 WL 2415008, *5. Rather, 

counsel must provide a description of the task performed and the 

general subject matter. Clark v. Oakhill Condominium Ass’n, Inc., 
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No. 3:08-CV-283 RM, 2011 WL 1296719, *8 (N.D. Ind. Mar. 31, 2011). 

That has been provided. 

 Defendants also assert that, as an experienced litigator, 

Attorney Brown should have been more efficient. The amount of 

time expended in this case is substantial. Defendants accurately 

observe that most cases that are improvidently removed do not 

require 36.4 hours of attorney time, much less the 63.3 hours that 

Plaintiffs have, in the end, sought reimbursement for. This case 

was, however, unusual due to the highly acrimonious actions of 

Defendants’ counsel. A simple review of the docket in this case 

reveals that this case strays from the usual in terms of number of 

filings considering that all that happened is that the case was 

removed and, upon Plaintiffs’ motion, remanded. There is a fine 

line between vigorous representation and folly – counsel for 

Defendants crossed that line. The magnitude of the fees is this 

case is not the result of Attorney Brown’s inefficiency, but 

counsel for Defendants’ relentless pursuit of meritless arguments 

and possibly (and more cynically) delay tactics. 

 Despite Defendants’ claim that the hours expended are 

excessive, they do not allege that any particular hours should be 

excluded, or provide evidence of a more reasonable expenditure of 

time on any given task. This Court cannot simply cut a fee petition 

down because it seems too high; reductions must be supported by 

explanation. People Who Care, 90 F.3d at 1314 (the court cannot 
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simply “eyeball the fee request and cut it down by an arbitrary 

percentage because it seemed excessive to the court.”). 

 In their surreply, Defendants assert that it is impermissible 

for Plaintiffs’ counsel to request an additional $10,180 in fees 

in their reply brief. Defendants further assert that this 

additional work is related to the reasonableness of the fee 

petition, not the remand itself. “Fees to recover fees may be 

available, if otherwise reasonable.” Evansville Greenway & 

Remediation Trust v. South Ind. Gas & Elec Co., No. 3:07-CV-66-

SEB-WGH, 2012 WL 602638, *3 (S.D. Ind. Feb. 23, 2012); see also 

Garbie v. DaimlerChrysler Corp., 211 F.3d 407 (7th Cir. 2000). 

These are, in fact, expenses incurred as a result of Defendants’ 

improvident removal. 

 Defendants also argue that Plaintiffs cannot recover any fees 

related to responding to discovery because it was not related to 

removal. The discovery referenced is discovery that Defendants 

served on Plaintiffs in an effort to defeat their fee petition. 

It was discovery not authorized by the federal rules of civil 

procedure. Magistrate Judge Martin ordered that Plaintiffs’ 

counsel were not required to respond to the discovery requests or 

attend any scheduled depositions, but Defendants’ attorneys had 

already expended time as a result of the requests. These efforts 

would not have been necessary but for Defendants’ improvident 

removal of this case. Accordingly, Plaintiffs may recover for the 
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reasonable time expended as a result of Defendants’ discovery 

efforts related to the instant petition for attorney’s fees. 

This Court has reviewed the record of proceedings and the 

affidavits of counsel in detail. Each and every line appears to 

this Court eminently reasonable under the circumstances of this 

case. Under the unique circumstances of this case, the time 

expended is reasonable. 

 

CONCLUSION 

For the aforementioned reasons, the Plaintiffs’ Motion to 

Enter Award of Attorney’s Fees (DE #21) is GRANTED. Plaintiffs 

are AWARDED their just costs and actual expenses, including 

attorneys’ fees, as a result of the removal in the amount of 

$26,560. 

DATED: November 9, 2017 /s/RUDY LOZANO, Judge 

 United States District Court