Infrastructure Corporation of America v. Ramos
OPINION AND ORDER granting 17 Motion for Attorney Fees; denying 19 Motion for Leave to File Reply. The Clerk shall enter judgment in favor of plaintiff awarding attorney's fees in the amount of $2,852.00 against defendant. Signed by Judge John E. Steele on 3/7/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROLANDO RUBEN RAMOS,
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Attorney’s Fees Pursuant to 28 U.S.C. § 1447(c) (Doc. #17) filed on
February 19, 2013, pursuant to the Court’s February 5, 2013, Order
(Doc. #16) remanding the case and directing that plaintiff may seek
attorney’s fees and costs incurred as a result of the improper
Defendant filed a Response (Doc. #18) on February 28,
Plaintiff filed an opposed Motion for Leave to File Reply
(Doc. #19), which the Court will deny as no reply is required.
On February 5, 2013, finding no response filed, the Court
granted plaintiff’s Motion to Remand based on the presence of a
Florida defendant, remanded the case back to the Collier County
Circuit Court, and directed plaintiff to file a motion for fees and
costs as the Court was “inclined to grant the request.”
attorney’s fees incurred as a result of the removal, and submitted
the supporting Affidavit of Michael J. Bradford (Doc. #17-1)
detailing the hours.
The Court finds that the amount sought is
directly related to the removal of the case and the hours and
Defendant opposes the motion for several reasons.
initial matter, defendant states that two attorneys “abruptly left”
the firm, including counsel who was handling the matter, and
therefore “the Court’s forgiveness” is sought for failing to
respond to the motion to remand.
(Doc. #18, ¶ 2.)
Court would note that Mr. Wadsworth is the same counsel who filed
the Notice of Removal and Answer on behalf of defendant, and is
also one of the only two attorneys who have appeared as counsel of
record for defendant.
The attorney who was “handling this matter,
Mark Levine, Esq.” has never entered an appearance in this case.
Defendant states that this suit was initially filed in MiamiDade County, but it was voluntarily dismissed and re-filed in
Collier County, Florida.
Counsel state that it is “this firm’s
experience that Collier County attorneys have a significant ‘home
filed advantage’ in their home jurisdiction”, and therefore removal
would be sought to protect itself.
(Doc. #18, ¶ 7.)
moved to transfer venue to Miami-Dade County and awaited a ruling
before seeking removal. (Id., ¶¶ 7-9.)
Just over a week after the
Defendant also argues that the “forum defendant rule” may be waived
based on the presence of a hostile forum in the absence of removal.
(Id., ¶ 11.)
Defendant did not remove on the basis of a hostile
state forum, or otherwise indicate in the Notice of Removal that
jurisdiction. Even if defendant had presented such an argument, it
is clearly not a basis for removal and more akin to the forum
shopping that defendant accuses plaintiff of engaging in.
Even if the Court considered the removal as timely, the Notice
of Removal alleged residency, not citizenship, and therefore failed
to establish subject-matter jurisdiction.
The fact that defendant
now clearly states that he is a citizen of Florida and domiciled in
Florida, id., ¶ 31, is of no consequence.
that the forum defendant rule is waivable and therefore the removal
was proper is also rejected.
Although the removal by a State of
Florida defendant is a procedural defect that may be waived,
defendant cannot therefore “evade the statutory requirements of §
dispositive rulings in a case over which the federal courts may
Pacheco de Perez v. AT & T Co., 139 F.3d 1368,
1372 n.4 (11th Cir. 1998).
The Court finds that the removal was
not proper and that plaintiff should receive attorney’s fees
pursuant to 28 U.S.C. § 1447(c).
Accordingly, it is now
Plaintiff’s Motion for Leave to File Reply (Doc. #19) is
Plaintiff’s Motion for Attorney’s Fees Pursuant to 28
U.S.C. § 1447(c) (Doc. #17) is GRANTED and plaintiff is awarded
$2,852.00 in attorney’s fees incurred as a result of the removal.
The Clerk shall enter judgment in favor of plaintiff
DONE AND ORDERED at Fort Myers, Florida, this
Counsel of record