Crosby, et al v. Save Mart Supermarkets

Filing 19

ORDER denying plaintiff's 13 Motion for Attorney Fees, signed by Judge Garland E. Burrell, Jr., on 7/16/15. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARWIN CROSBY, on behalf of
himself and all others
similarly situated,

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No. 2:15-cv-00321-GEB-KJN

Plaintiffs,

ORDER DENYING PLAINTIFF’S MOTION
FOR FEES FOLLOWING REMAND

v.
SAVE MART SUPERMARKETS, INC.,
a California corporation; and
DOES 1 through 50,
Defendants.

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Plaintiff

moves

under

28

U.S.C.

§

1447(c)

for

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attorney’s fees incurred in remanding this case to the state

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court from which it was removed. (Pl.’s Mem. P.&A. Supp. Mot.

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Fees 1:10-11, ECF No. 13-1.) Plaintiff argues he is entitled to

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such fees both because “there was no objectively reasonable basis

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for removal” and “‘unusual circumstances’ warrant the award.”

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(Id. at 5:1, 5:7-8.) Specifically, Plaintiff contends:

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the operative complaint alleges no causes of
action under federal law. At most, the
Complaint mentions the FMLA as part of its
state law claims . . . . Defendant . . .
based its removal solely on [Plaintiff’s]
discovery responses . . . . Even after
Defendant . . . stipulated to allow Plaintiff
. . . to amend his discovery responses when
Plaintiffs’ counsel stated they were not
pursuing any federal claims, Defendant would
not agree to remand. This case was never a
case under federal law. . . . Without any
federal
claims
plead,
there
was
no
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objectively
removal. . . .

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basis

for

If the Court should find that removal
was objectively reasonable, it may still
award remand costs and fees under § 1447(c)
if it finds that “unusual circumstances”
warrant the award. . . .

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. . . [Here, i]t is clear that removal
was a tactic by Defendant . . . to avoid
responding to . . . class discovery . . . .
If
the
Court
finds
that
removal
was
objectively
reasonable,
then
it
should
nevertheless award Plaintiffs attorney’s fees
in obtaining remand because of Defendant[’s]
delaying tactics.

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reasonable

(Id. at 4:21-5:1, 5:7-6:2 (heading omitted).)
Defendant opposes the motion, rejoining, inter alia:

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“where

removal

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Plaintiff’s post-removal conduct eliminated the federal question

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in the case, the Court is barred from awarding attorneys’ fees.”

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(Def.’s Opp’n 1:10-13, ECF No. 14.) Defendant argues:

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proper

but

the

case

was

remanded

because

Plaintiff
.
.
.
served
verified
discovery
responses
on
Defendant . . . ,
testifying that he was pursuing a federal
claim under the Family and Medical Leave Act.
Within 30 days of receiving Plaintiff’s
discovery responses, [Defendant] removed this
case to this Court under federal question
jurisdiction.
After
removal,
this
Court
granted the parties’ stipulation to amend
[Plaintiff’s] discovery responses so that he
was no longer pursuing an FMLA claim. The
Court then declined to exercise supplemental
jurisdiction over Plaintiff’s remaining state
law claims and remanded the case . . . .
Under these circumstances, . . . the Court is
barred from awarding attorneys’ fees.

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was

(Id. at 1:2-13.)
“Absent

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unusual

circumstances,

courts

may

award

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attorney’s fees under § 1447(c) only where the removing party

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lacked

an

objectively

reasonable
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basis

for

seeking

removal.”

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Martin

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“[W]hen an objectively reasonable basis exists, fees should be

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denied.” Id.

v.

Franklin

Capital

Corp.,

546

U.S.

132,

141

(2005).

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Defendant avers in its “Notice of Removal” that removal

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was “based upon the existence of a federal question in that

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Plaintiff . . . , is pursuing a federal cause of action under the

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Family and Medical Leave Act, 29 U.S.C. 2601 (“FMLA”), et seq.”

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(Notice Removal 2:4-5, ECF No. 1.) Plaintiff’s response to a

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Request for Admission supports this basis for removal. (See id.

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at & 44; Decl. Tarun Mehta Supp. Notice Removal, Ex. MM, ECF No.

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2-6.)

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Subsequent to removal, the parties filed a Stipulation

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and Proposed Order in which they sought court approval of their

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agreement that Plaintiff’s discovery response that was the basis

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of removal “was erroneous.”

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7.) This Stipulation and Proposed Order was approved, following

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which Plaintiff moved to remand the case to state court based on

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lack

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granted. (Order Remanding Case, ECF No. 12.)

of

federal

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question

(Stip. & Proposed Order 2:9, ECF No.

jurisdiction.

The

remand

motion

was

Under these circumstances, Plaintiff has not shown that

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Defendant lacked an objectively reasonable basis for

removal.

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Further,

“unusual

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circumstances” justify an award of fees in this case. Therefore,

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Plaintiff’s motion for fees is DENIED.

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Dated:

Plaintiff

has

not

shown

July 16, 2015

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that

other