Speranza v. Leonard et al
ORDER denying 23 Motion for Attorney Fees. See the attached Order. Signed by Judge Vanessa L. Bryant on 7/30/13. (Ives, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BARBARA SPERANZA, Personal
Representative and Executrix of the
Estate of Robert Speranza, and
BARBARA SPERANZA, Individually,
STEWART LEONARD, SR.,
THOMAS P. LEONARD, and
CARPE DIEM THREE, LLC,
CIVIL ACTION NO.
July 30, 2013
ORDER DENYING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES PURSUANT TO
28 U.S.C. § 1447(c) [Dkt. #23]
Plaintiffs originally brought this action in Connecticut Superior Court on
March 7, 2012, alleging wrongful death pursuant to Conn. Gen. Stat. § 52-555,
and/or Florida Stat. Ann. § 768.18, et seq., and/or maritime wrongful death law;
negligence; unseaworthiness; and loss of consortium. Defendants removed the
action on March 16, 2012 ostensibly pursuant to 28 U.S.C. § 1441(a) and 28 U.S.C.
§ 1446(a), on three bases: (1) the Death on the High Seas Act (“DOHSA”), codified
at 46 U.S.C. § 30301 et seq. preempted the Plaintiffs’ state law claims; (2) federal
courts have original jurisdiction over admiralty or maritime cases pursuant to 28
U.S.C. § 1333; and (3) the existence of diversity of citizenship pursuant to 28
U.S.C. § 1332. The Plaintiffs in turn filed a motion to remand arguing that (1)
admiralty claims are separate and distinct from federal questions and thus do not
provide federal question jurisdiction; (2) claims brought under the DOHSA are not
removable; and (3) the parties lacked complete diversity of citizenship.
This Court granted Plaintiffs’ motion to remand on February 16, 2013,
holding that Plaintiffs’ admiralty claims were not removable under 28 U.S.C. §
1441(a) on the basis of federal question jurisdiction, the DOHSA did not provide
for removal jurisdiction, and complete diversity of citizenship did not exist. The
Plaintiffs – having prevailed on their motion to remand – now move for attorneys’
fees pursuant to 28 U.S.C. § 1447(c).
Federal statute provides that “[a]n 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). In analyzing the purpose
underlying and the standard applicable to an award of costs and fees pursuant to
§ 1447(c), the Supreme Court has recognized that
[t]he 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.
Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005). Thus, “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.” Id. at 141; see also Calabro v. Aniqa Halal Live Poultry Corp., 650
F.3d 163, 166 (2d Cir. 2011) (same).
Plaintiffs contend that they are entitled to attorneys’ fees because the
Defendants’ belief that the DOHSA supplied federal question jurisdiction was
objectively unreasonable based on the paucity of cases in support of that theory,
it was objectively unreasonable to believe that diversity jurisdiction existed, the
Defendants’ Petition for Exoneration was severely defective and failed to provide
the Court with jurisdiction over the action, and removal of this action caused a
one year delay in the litigation. Defendants counter that, in the face of a split
among district courts regarding the removability of DOHSA claims and the lack of
binding authority from the Second Circuit, they had an objectively reasonable
basis for removal. Defendants point to three sources to support their claim that
they believed removal to be objectively reasonable: first, the district court’s and
Second Circuit’s decisions in Pierpoint v. Barnes, 892 F. Supp. 60, 61 (D. Conn.
1995), appeal dismissed, 94 F.3d 813 (2d Cir. 1996), cert. denied, 520 U.S. 1209
(1997); second, Southern District of Texas and Central District of California
decisions from 1992 and 1988, respectively, both holding that DOHSA cases are
removable, see Phillips v. Offshore Logistics, 785 F. Supp. 1241 (S.D. Tex. 1992);
Kearney v. Litton Precision Gear, Inc., CV 87-8335-KN, 1988 WL 383575 (C.D. Cal.
Mar. 17, 1988); and third, various secondary sources either noting a district court
split on removability or arguing for such.
Although – as the Court noted in its February 16, 2013 decision – the
overwhelming weight of current authority from the majority of districts dictates
that DOHSA cases are not removable, the Court declines to award attorneys’ fees
to the Plaintiffs because the Second Circuit has not yet lent its opinion to this
issue. Aside from the instant case, only one other case exists in this district
regarding the removability of DOHSA claims. In Pierpoint v. Barnes, Judge
Dorsey held that
Cases which lack diversity of parties and which arise
under admiralty laws are not removable from a state
court exercising its concurrent jurisdiction over
admiralty claims. . . . [C]oncurrent state jurisdiction over
admiralty cases contradicts removability. . . . DOHSA
cases arise exclusively in admiralty. Since DOHSA
merely authorizes an admiralty action, a party
proceeding under DOHSA must allege a theory of
recovery cognizable by a court sitting in admiralty
jurisdiction. Moreover, no federal court has held that
DOHSA or other admiralty laws generate both federal
question jurisdiction and admiralty jurisdiction.
Pierpoint v. Barnes, 892 F. Supp. 60, 61 (D. Conn. 1995), appeal dismissed, 94
F.3d 813 (2d Cir. 1996), cert. denied, 520 U.S. 1209 (1997). On appeal of the
district court’s remand order, the Second Circuit ultimately ruled that it lacked
jurisdiction to consider the district court’s remand of the case, and thus did not
reach the question of whether DOHSA cases arise exclusively in admiralty,
precluding their removal to federal court. In so doing, though, the Second Circuit
noted that this DOHSA question presented a “potentially” “extremely complicated
issue of first impression in this Circuit.” Pierpoint v. Barnes, 94 F.3d 813, 815
(2d Cir. 1996). The Second Circuit has not revisited the issue of DOHSA removal
since its decision in Pierpoint.
While the Court believes that the weight of the current case law does not
fall in Defendants’ favor as to whether DOHSA claims arise in admiralty and are
thus removable, and despite the language of the DOHSA itself allowing a “civil
action in admiralty” (46 U.S.C.A. § 3030), the Court declines to award fees and
costs in the absence of binding precedent and where the Second Circuit has
proclaimed the issue to be one of first impression and has not yet addressed it.
See Williams v. Int’l Gun-A-Rama, 416 F. App’x 97, 99 (2d Cir. 2011) (agreeing with
the Seventh Circuit that “if clearly established law did not foreclose a defendant's
basis for removal, then a district court should not award attorneys' fees,” and
“[d]istrict court decisions, let alone conflicting district court decisions, do not
render the law clearly established.”) (quoting Lott v. Pfizer, Inc., 492 F.3d 789, 793
(7th Cir. 2007)).
Because the Defendants had an objectively reasonable basis for removal,
the Plaintiffs’  Motion for Attorneys’ Fees pursuant to 28 U.S.C. § 1447(c) is
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 30, 2013
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