WILLIAM BOYD MORRIS AND KAREN ELIZABETH KUESTER, Plaintiffs, v. AAA MOVING AND STORAGE, LLC, Defendant.

 

CIVIL ACTION NO. 5:15-CV-68

 

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA, STATESVILLE DIVISION

 

2015 U.S. Dist. LEXIS 107387

 

 

August 13, 2015, Decided

August 13, 2015, Filed

 

 

COUNSEL:  [*1] For William Boyd Morris, Karen Elizabeth Kuester, Plaintiffs: James Ryan Hawes, Young, Morphis, Bach & Taylor, LLP, Hickory, NC.

 

JUDGES: Richard L. Voorhees, United States District Judge.

 

OPINION BY: Richard L. Voorhees

 

OPINION

 

ORDER

BEFORE THE COURT is William Boyd Morris and Karen Elizabeth Kuester’s (collectively “Plaintiffs'”) motion for attorney’s fees (Doc. 10). On July 14, 2015, Plaintiffs moved for a default judgment. (Doc. 8). On July 15, 2015, Plaintiffs received a default judgment in the amount of $17,083.64 plus interest from the date of judgment. (Doc. 9).

Plaintiffs claim that they are entitled to attorney’s fees pursuant to the Carmack Amendment at 49 U.S.C. § 14708 entitled “Dispute settlement program for household goods carriers.” Paragraph (d), “Attorney’s fees to shippers,” provides that:

 

In any court action to resolve a dispute between a shipper of household goods and a carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 concerning the transportation of household goods by such carrier, the shipper shall be awarded reasonable attorney’s fees if-

–

(1) the shipper submits a claim to the carrier within 120 days after the date the shipment is delivered or the date the delivery is scheduled, whichever [*2]  is later;

(2) the shipper prevails in such court action; and

(3)

 

(A) the shipper was not advised by the carrier during the claim settlement process that a dispute settlement program was available to resolve the dispute;

(B) a decision resolving the dispute was not rendered through arbitration under this section within the period provided under subsection (b)(8) of this section or an extension of such period under such subsection; or

(C) the court proceeding is to enforce a decision rendered through arbitration under this section and is instituted after the period for performance under such decision has elapsed.

 

 

 

 

49 U.S.C. § 14708(d).

The Complaint and the ensuing default judgment show that Plaintiffs submitted a claim to the carrier within one hundred twenty days after the date the shipment was delivered. (Doc. 1, at ¶ 30). The shippers, Plaintiffs, prevailed in the instant court action. Further, the Complaint and the ensuing default judgment show that the Plaintiffs were not advised by Defendant that a dispute settlement program was available to resolve the dispute. (Id. at ¶ 33). Further, no arbitration decision has been rendered. Accordingly, (A) and (B) of subdivision (3) are satisfied. Therefore, attorney’s fees shall be awarded.

Plaintiffs [*3]  request $12,425.00 in attorney’s fees, which is calculated from 49.7 hours of billed time multiplied by Plaintiffs’ attorney’s $250.00 hourly rate. Plaintiffs submitted a billing statement from their attorney to substantiate the motion. Although there are separate entries, the time spent on each entry is not indicated but rather is located at the bottom of the bill. Plaintiffs have not provided any information or memoranda detailing reasonableness of the amount sought. Accordingly, this Court ORDERS Plaintiffs to submit a memorandum and accompanying material supporting the reasonableness of the fee amount sought in accordance with the twelve factors below:

 

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability [*4]  of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.

 

 

Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243-44 (4th Cir. 2009) (quoting Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978); see also Ward v. Allied Van Lines, Inc., 231 F.3d 135, 142 (4th Cir. 2000) (reviewing reasonableness award in similar circumstances). The Court will use the following factors to determine a “lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.” Robinson, 560 F.3d at 243. “In addition to the attorney’s own affidavits, the fee applicant must produce satisfactory specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award.” Id. at 244 (quoting Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)). Ordinarily, this requirement may be satisfied by a sworn affidavit by a lawyer qualified to opine on counsel’s request for fees.

IT IS, THEREFORE, ORDERED THAT

 

(1) The Court reserves ruling on Plaintiffs’ Motion for Attorney’s Fees (Doc. 10); and

(2) Plaintiffs’ shall file a memoranda and accompanying affidavit(s) and evidence supporting the reasonableness of the fee sought within fourteen (14) days.

 

 

Signed: August 13, 2015

/s/ Richard L. Voorhees

Richard L. Voorhees

United States District Judge

SUSAN BRUDNAK and SCOTT BRUDNAK, Plaintiffs, v. A.A. MOVING AND STORAGE, INC., DAVID SKATES, JOHN DOE and ABC CORPORATION, Defendants.

 

Civ. No. 14-cv-6964 (WHW)(CLW)

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

 

2015 U.S. Dist. LEXIS 107397

 

 

August 14, 2015, Decided

August 14, 2015, Filed

 

 

COUNSEL:  [*1] For SUSAN BRUDNAK, SCOTT BRUDNAK, Plaintiff: JOHN J. ROBERTELLI, LEAD ATTORNEY, RIVKIN RADLER, LLP, HACKENSACK, NJ.

 

For A.A. MOVING AND STORAGE, INC., DAVID SKATES, Defendants: COLIN P. HACKETT, LEAD ATTORNEY, LEWIS BRISBOIS BISGAARD & SMITH, NEWARK, NJ.

 

JUDGES: Hon. William H. Walls, Senior United States District Judge.

 

OPINION BY: William H. Walls

 

OPINION

 

MEMORANDUM AND ORDER OF REMAND

Walls, Senior District Judge

This matter comes before the Court on its Order to Show Cause of July 21, 2015, ECF No. 16. The order instructed the parties to show cause why the case should not be remanded to New Jersey Superior Court, Bergen County, for lack of subject matter jurisdiction. See ECF Nos. 17-18.

Defendants removed the action to this Court based on federal question jurisdiction, citing the Carmack Amendment. ECF No. 1 (citing 28 U.S.C. § 1331). Defendants moved to dismiss the complaint’s common law causes of action arising from damage to shipped goods, arguing that the Carmack Amendment is the exclusive remedy for such damages. ECF No. 3. The Court granted the motion in part, dismissing the claims related to the shipped goods but allowing the claims of damage to housing fixtures, which are not covered under the Carmack Amendment. See Court’s Op. on Mot. to Dismiss, ECF No. 12. The Court also granted [*2]  Plaintiffs leave to amend the complaint within 90 days. Id. Plaintiffs did not amend the complaint. Plaintiffs now assert that, in the absence of pending claims arising under federal law, the Court lacks subject matter jurisdiction. ECF No. 15. In response, the Court directed the parties to show cause why the case should not be remanded. ECF No. 16.

“The party asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court.” Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

Defendants do not demonstrate that this Court has subject matter jurisdiction over this action. Defendants concede that they do not seek to invoke the Court’s diversity jurisdiction. Def.’s Br. 2, ECF No. 17. Instead, they continue to invoke federal question jurisdiction, arising under the Carmack Amendment. Id. Defendants offer: “[i]f Plaintiffs will dismiss all claims related to the cargo claims and amend the Complaint to separately allege the property damage to the house, i.e. floors, walls, and door frames, then Defendants [*3]  will not oppose the remand to state court.” Def.’s Br. 2-3, ECF No. 17. In fact, the common law counts relating to the damaged goods are no longer pending–the Court already dismissed them. See Court’s Op. The only pending causes of action are related to the property damage to the house, claims which arise under common law. Id. It follows that federal subject matter jurisdiction is lacking, and the matter is remanded.

 

ORDER

IT IS HEREBY ORDERED that this case is remanded to New Jersey Superior Court, Bergen County.

DATE 14 August 2015

/s/ William H. Walls

Hon. William H. Walls

Senior United States District Judge.