RC Lodge, LLC et al v. SE Property Holdings, LLC et al

Filing 67

ORDER denying 61 Motion for Attorney Fees & Costs. Signed by Chief Judge William H. Steele on 8/14/2012. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RC LODGE, LLC, et al.,

)
)
Plaintiffs,
)
)
v.
) CIVIL ACTION 12-0112-WS-M
)
SE PROPERTY HOLDINGS, LLC, et al., )
)
Defendants.
)
ORDER
By order dated July 16, 2012, the Court granted the plaintiffs’ motion to remand.
(Doc. 59). The plaintiffs subsequently filed a motion for costs and fees under 28 U.S.C.
§ 1447(c). (Doc. 61). The removing defendant has filed a response in opposition and the
plaintiffs a reply, (Docs. 63, 64), and the motion is ripe for resolution.
The defendant argues that the plaintiffs’ motion is fatally untimely because it was
not filed until after the case was remanded for lack of subject matter jurisdiction. (Doc.
63 at 12-14). Every appellate decision brought to the Court’s attention, however, has
ruled against the defendant’s position. See Bryant v. Britt, 420 F.3d 161, 164-66 (2nd Cir.
2005); Wisconsin v. Hotline Industries, Inc., 236 F.3d 363, 365 (7th Cir. 2000); Stallworth
v. Greater Cleveland Regional Transit Authority, 105 F.3d 252, 257 (6th Cir. 1997);
Mints v. Educational Testing Service, 99 F.3d 1253, 1257-59 (3rd Cir. 1996); Moore v.
Permanente Medical Group, Inc., 981 F.2d 443, 445 (9th Cir. 1992); Coward v. AC and S,
Inc., 91 Fed. Appx. 919, 921-22 (5th Cir. 2004). The two unreasoned lower court
decisions on which the defendant relies do not outweigh the wealth of reasoned appellate
authority to the contrary.
“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). “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.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). The plaintiffs’
brief and superficial argument, which simply places out of context certain innocuous
words and phrases used in the order of remand, (Doc. 61 at 2-3), falls far short of meeting
this standard. Accordingly, the motion for costs and fees is denied.
DONE and ORDERED this 14th day of August, 2012.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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