Palmer v. Federal National Mortgage Association et al

Filing 13

Order extending the deadlines for the #4 Motion to Remand. Responses due by 8/22/2019, Replies due by 8/29/2019. Signed by District Judge William H. Steele on 8/14/2019. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALLEN B. PALMER,
Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, et al.,
Defendants.

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CIVIL ACTION 19-0335-WS-B

ORDER
On July 25, 2019, plaintiff, Allen B. Palmer, by and through counsel of record, filed a
Motion to Remand (doc. 4) this removal action back to the Circuit Court of Mobile County,
Alabama. In removing the action to this District Court, defendants had invoked federal question
jurisdiction, pursuant to 28 U.S.C. § 1331, based on the federal causes of action interposed by
Palmer at Counts Five (violation of RESPA) and Seven (violation of FCRA). In his Motion to
Remand, Palmer argued that the entire action, or at a minimum the six state-law causes of action,
should be remanded to state court pursuant to 28 U.S.C. § 1367(c)(2) on the theory that the statelaw claims asserted in the Complaint substantially predominate over their federal counterparts.
The Court fixed a briefing schedule pursuant to which defendants’ response to the
Motion to Remand was due not later than August 8, 2019. (Doc. 6.) On the response deadline
date, Palmer filed his First Amended Complaint (doc. 9) as a matter of course pursuant to Rule
15(a)(1)(B), Fed.R.Civ.P., inasmuch as plaintiff had not previously amended his pleading and the
amendment was filed within 21 days after defendants filed their responsive pleading. The First
Amended Complaint was potentially jurisdictionally significant; indeed, it deleted Palmer’s
federal claims under RESPA and FCRA, and instead purported to assert solely state-law claims
for breach of contract, slander of title, abuse of process, and fraud and misrepresentation.
Defendants did not file a response to the Motion to Remand by the aforementioned
deadline. On August 13, 2019, plaintiff filed a Response (doc. 11), asking that the Court not
only grant the Motion to Remand (reasoning that through their silence defendants had somehow

“admitted … that the State causes of action predominate”) but also award plaintiff attorney’s fees
in the amount of $8,565 (or 28.55 hours x $300/hour). Hours later, defendants filed a Response
(doc. 12) of their own, seeking additional time to file a response to the Motion to Remand and
explaining that they did not file a response on or before the August 8 deadline because they
needed time to evaluate the jurisdictional impacts of plaintiff’s Amended Complaint filed on the
same date. Defendants also ask that plaintiff’s request for attorney’s fees be denied.
Without question, the federal claims contained in Palmer’s Complaint at the time of
removal provided a valid jurisdictional foothold on which defendants could properly rely to
remove the action to federal court. Moreover, binding precedent teaches that Palmer’s
“substantially predominates” argument under 28 U.S.C. § 1367(c)(2) could not provide any
viable basis for remanding the properly removed federal claims (i.e., Palmer’s RESPA and
FCRA claims). See Lloyd v. Benton, 686 F.3d 1225, 1228 (11th Cir. 2012) (“because the district
court has original jurisdiction in this case pursuant to the federal question statute, 28 U.S.C. §
1331, the district court should have retained jurisdiction over the properly removed federal
claim”) (citation and internal marks omitted); In re City of Mobile, 75 F.3d 605, 607-08 (11th Cir.
1996) (“Section 1367(c) cannot be fairly read as bestowing on district courts the discretion to
remand to a state court a case that includes a properly removed federal claim. … Accordingly,
we hold that the district court must retain jurisdiction over the properly removed federal claim.”).
As such, the Court readily concludes that defendants possessed an objectively reasonable basis
for removing this action to federal court based on the presence of federal claims in the Complaint
at the time of removal; therefore, plaintiff’s request for an award of attorney’s fees is denied.
See Bauknight v. Monroe County, Fla., 446 F.3d 1327, 1329 (11th Cir. 2006) (“[A]bsent unusual
circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeking removal.”) (citation omitted).
Plainly, defendants should not have allowed the August 8 briefing deadline to expire in
silence, even if they wished to have more time to consider the implications of the Amended
Complaint. Nonetheless, under the circumstances presented here, the interests of fairness and
justice dictate that defendants be allowed a reasonable opportunity to respond to the Motion to
Remand, taking into account the jurisdictional effects of the Amended Complaint filed by
plaintiff late last week. Accordingly, defendants are ordered to respond to the Motion to
Remand on or before August 22, 2019. Plaintiff may file a reply on or before August 29, 2019,

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at which time the Motion will be taken under submission, provided, however, that if defendants
concede that in the wake of the filing of the Amended Complaint remand of the entire action to
state court is warranted, the Court may enter an appropriate remand order in advance of
plaintiff’s reply deadline.
DONE and ORDERED this 14th day of August, 2019.

s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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