Smith v. Alexander et al
MEMORANDUM OPINION as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 4/4/2016. (AHI)
2016 Apr-04 PM 02:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
STEVEN C. SMITH, as conservator
for Brandon Jeffries, a minor,
LAINIE ALEXANDER and MIKE
) Case No. 5:15-cv-02200-CLS
This action is before the court on plaintiff’s motion to remand,1 and defendants’
responses to this court’s order to show cause why they should not be required to pay
plaintiff’s attorney fees and costs incident to the removal, pursuant to 28 U.S.C. §
1447(c).2 In support of his motion to remand, plaintiff states the following:
This action was initiated in Cullman County naming as
defendants Lainie Alexander and Mike Key. Both are over the
age [of] nineteen and residents of the State of Alabama. Both
individuals are employed by the Cullman County Department of
Human Resources, however each defendant is sued solely in their
[sic] individual capacity. (Compl. at ¶¶ 2, 3)
The Complaint alleges three causes of action: Negligence;
Wantonness; and Outrage. Each count is premised on the
Doc. no. 8.
Doc. nos. 14, 15.
violation of state regulations, state law and policies. (Compl. at
Plaintiff alleges the defendants acted willfully, maliciously,
fraudulently, in bad faith, beyond their authority, or under a
mistaken interpretation of law in their acts and conduct. (Compl.
The defendants, ignoring the plain language of the complaint,
make the following statement: “The Complaint alleges that the
Defendants, acting under the color of the State of Alabama,
negligently, wantonly, and intentionally deprived B.J. [the minor
plaintiff] of rights, privileges or immunities secured by the
Constitution and laws causing him damage”. (¶3 of the Notice of
The above statement does not appear in the Complaint. There
are no claims premised on the U.S. Constitution, federal law or
regulation. There are no federal claims disguised as state claims.
The complaint is unambiguous that the claims are premised on
state regulations, law and policies relating to placement and
services, including medication and education. (Compl. at ¶16)
Defendants [sic] entire Notice of Removal, based on this
falsehood, converts each state claim into some perceived federal
equivalent. (¶ 3, 4, 5, 6, 7 of the Notice of Removal)
Doc. no. 8 (Motion to Remand), at ECF 2-3 (alterations and emphasis supplied).3
“ECF is the acronym for Electronic Case Filing, a filing system that allows parties to file
and serve documents electronically.” Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547,
*6 n.6 (N.D. Cal. Dec. 8, 2009). Bluebook Rule 7.1.4 allows citation to “page numbers generated
by the ECF header.” Wilson v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C. 2011) (citing The
Bluebook: A Uniform System of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al. Eds.,
19th ed. 2010)). Even so, the Bluebook recommends “against citation to ECF pagination in lieu of
original pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court
will cite to the original pagination in the parties’ pleadings. When the court cites to pagination
generated by the ECF header, it will, as here, precede the page number with the letters “ECF.”
A federal district court may possess subject-matter jurisdiction over an action
under either the federal question statute, or the diversity of citizenship statute. See
28 U.S.C. §§ 1331, 1332. The court has reviewed the complaint, and finds that
plaintiff pled only state-law claims of negligence,4 wantonness,5 and outrage,6 and
pled no violation of the United States Constitution or any other federal law. See
U.S.C. § 1331. Moreover, diversity jurisdiction does not exist, because all parties are
citizens of the State of Alabama.7 See 28 U.S.C. § 1332(a)(1). Accordingly, this
court concludes that it lacks subject-matter jurisdiction over this action, and that the
action is due to be remanded to the Circuit Court of Cullman County, Alabama.
Plaintiff also seeks to recover expenses and attorney fees pursuant to 28 U.S.C.
§ 1447(c), which states, in pertinent part:
If at any time before the final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded. 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) (emphasis supplied).
The Supreme Court has stated, with regard to the discretionary fee-shifting
provision of 28 U.S.C. § 1447(c), that by
Doc. no. 1-1 (Complaint), ¶¶ 18-20.
Id. ¶¶ 21-23.
Id. ¶¶ 24-26.
Id. at 1.
enacting the removal statute, Congress granted a right to a federal forum
to a limited class of state-court defendants. If fee shifting were
automatic, defendants might choose to exercise this right only in cases
where the right to remove was obvious. See Christiansburg Garment
[Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 422
(1978)] (awarding fees simply because the party did not prevail “could
discourage all but the most airtight claims, for seldom can a [party] be
sure of ultimate success”). But there is no reason to suppose Congress
meant to confer a right to remove, while at the same time discouraging
its exercise in all but obvious cases.
Congress, however, would not have enacted § 1447(c) if its only
concern were avoiding deterrence of proper removals. Instead,
Congress thought fee shifting appropriate in some cases. The 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. Assessing costs and fees on
remand reduces the attractiveness of removal as a method for delaying
litigation and imposing costs on the plaintiff. The appropriate test for
awarding fees under § 1447(c) should recognize the desire to deter
removals sought for the purpose of prolonging litigation and imposing
costs on the opposing party, while not undermining Congress’ basic
decision to afford defendants a right to remove as a general matter, when
the statutory criteria are satisfied.
In light of these “‘large objectives,’” [Independent Federation of
Flight Attendants v.] Zipes, [491 U.S. 754, 759 (1989)], the standard for
awarding fees should turn on the reasonableness of the removal. 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. Conversely, when an objectively reasonable
basis exists, fees should be denied. See, e.g., Hornbuckle, 385 F.3d at
541; Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (CA5 2000).
Martin v. Franklin Capital Corp., 546 U.S. 132, 140-41 (2005) (first and third
alterations and emphasis supplied, second alteration in original).
This court ordered defendants to show cause why they should not be required
to pay such fees.8 Defendants respond that they had an “objectively reasonable basis”
for removing the action: that is, Alabama’s so-called “notice pleading standard,”
which governs the construction of plaintiff’s state-law complaint, provided them with
notice of the existence of federal claims; and, if they had failed to remove the action
within thirty days of receiving such notice, they would have risked waiving their right
of removal.9 Specifically, defendants state:
This Court found that the Plaintiff only pled state law claims of
negligence, wantonness, and outrage, and pled no violation of the
United States Constitution or any other federal law. Respectfully,
the Defendant [sic] disagrees with this court’s findings. Although
the Plaintiff’s complaint explicitly names state causes of action
and does not explicitly name any federal law claim, under
Alabama’s rules of pleading, the Plaintiff’s complaint gives
adequate notice to the Defendants of federal questions claims
[sic] as stated in the Defendants’ Joint Notice of Removal.
“Alabama employs a notice pleading standard, which notably
does not incorporate Iqbal or Twombly pleading standards. See
Thomas v. Williams, 21 So. 3d 1234, 1236 n.1 (Ala. Civ. App.
2008) (refusing to apply Twombly to state court standards).
Notice pleading must “provide defendants adequate notice of the
claims against them.” Ex parte International Ref. & Mfg. Co.,
972 So. 2d 784, 789 (Ala. 2007); See also, A. R. Civ. P. 8,
See doc. no. 13 (Order to Show Cause).
See doc. no. 14 (Defendant Alexander’s Response to Show Cause Order and Motion to
Reconsider Order of Remand), at ECF 3; doc. no. 15 (Defendant Key’s Response to Show Cause
Order and Motion to Reconsider Order of Remand), at ECF 3. Although they are not carbon-copies,
the pleadings filed by defendants Alexander and Key are substantively the same. The Court
therefore will only cite to doc. no. 14 for the remainder of the Opinion.
Committee Comments (‘the prime purpose of pleadings is to give
notice.’) . . . The Plaintiff’s complaint, having been filed in
Alabama, required a liberal reading by the Defendants as to all
possible claims it contained. . . . .
These liberal rules of pleading have led Alabama Courts to find
that even in cases where claims are not explicitly pleaded, it may
still make that claim. . . .
. . . [E]ven though not specifically claimed, if the State Circuit
Court found that Plaintiff’s complaint put the Defendants on
notice of federal question claims, the Defendant would
nonetheless be compelled to defend those claims. The
Defendants only had thirty days in which to decide whether the
Plaintiff’s complaint put the Defendants on notice of a federal
question claims [sic] without benefit of any discovery or
pleadings. 28 USCS §1446(b)(1)[.] . . .
. . . The only way to determine whether an objectively reasonable
basis existed is to review the Complaint and determine if, under
Alabama’s rules of pleading, it was reasonable to determine that
the Complaint put the Defendants on notice of a federal question
claim whether or not that complaint explicitly denoted a federal
question claim. Even if the Defendants incorrectly made the
determination that they were put on notice of a federal question
claim, the Defendants’ reasonable interpretation that there was
such a notice would equate to an objectively reasonable basis for
removal. . . .
Doc. no. 14 (Defendant Alexander’s Response to Show Cause Order and Motion to
Reconsider Order of Remand), at ECF 3-7 (ellipses and alterations supplied).
Defendants also state that they have not located any authority from either this
court or the Eleventh Circuit “that is on point to the issue of whether a pleading
which does not specify a federal question claim could nonetheless put the Defendant
on notice so that the thirty day limitations period for removal under 28 USCS §1446
begins to run.”10 Even so, they contend that a Northern District of Georgia case, i.e.,
Estate of Davis v. DeKalb County, 952 F. Supp. 2d 1369 (N.D. Ga. 2013), supports
their contention that they had an “objectively reasonable basis” for seeking removal.
This court has reviewed Estate of Davis. In that case, the plaintiff filed an
amended complaint on November 14, 2011, asserting a claim for “violation of
constitutional rights,” alleging that, “[u]nder color of office and without reasonable
suspicion and probable cause, the Defendant police officers improperly and
unlawfully detained [him]” and “used objectively unreasonable and excessive force
against [him].” Estate of Davis, 952 F. Supp. 2d at 1371 (first alteration supplied,
second alteration in original). It was not until April 22, 2013 that the defendants
removed the action to federal court. Id. The plaintiff argued that the removal was
untimely, because the generalized statement of a claim for “violation of constitutional
rights” asserted in his amended complaint had provided the defendants notice that the
case was removable. Id. The Northern District of Georgia agreed and remanded the
action, reasoning that the defendants had failed to seek removal within thirty days of
their receipt “of a copy of an amended pleading, motion, order or other paper from
which it [might] first be ascertained” that the case had become removable. Id. at
Doc. no. 14, ¶ 11.
1373; 28 U.S.C. § 1446(b)(3) (alteration supplied).
The present case is very different. Plaintiff not only did not plead any specific
federal claims, but also made no mention of the United States Constitution in his
complaint. Moreover, he never employed the plural form of the noun “constitution,”
on the basis of which one might argue that plaintiff implicitly was basing his claims
upon both the Alabama and United States Constitutions.
Defendants also have asked that this court reconsider its “order of remand,”
although no such “order” has been entered to date.11 This court remains convinced
that no federal question has been presented, because plaintiff’s complaint pled no
specific claim arising under the Constitution or other federal law; plaintiff’s
complaint makes no reference to the Constitution; and plaintiff has explicitly
reassured the court that “[t]here are no federal claims disguised as state claims.”12 In
the event plaintiff should ever amend his state-court pleadings from which it might
be ascertained that a federal claim is asserted, defendants might then consider
removal. But, certainly, this removal was unreasonable.
In light of all of the foregoing, the court concludes that plaintiff’s motion to
remand is due to be granted, and defendants’ motion to reconsider is due to be denied.
Id. at ECF 21.
See doc. no. 8 (Motion to Remand), at ECF 3 (alteration supplied).
An order consistent with this opinion will be entered contemporaneously herewith.
DONE this 4th day of April, 2016.
United States District Judge
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