Infrastructure Corporation of America v. Ramos

Filing 20

OPINION AND ORDER granting 17 Motion for Attorney Fees; denying 19 Motion for Leave to File Reply. The Clerk shall enter judgment in favor of plaintiff awarding attorney's fees in the amount of $2,852.00 against defendant. Signed by Judge John E. Steele on 3/7/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
INFRASTRUCTURE
AMERICA,

CORPORATION

OF

Plaintiff,
vs.

Case No.

2:12-cv-682-FtM-29DNF

ROLANDO RUBEN RAMOS,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Attorney’s Fees Pursuant to 28 U.S.C. § 1447(c) (Doc. #17) filed on
February 19, 2013, pursuant to the Court’s February 5, 2013, Order
(Doc. #16) remanding the case and directing that plaintiff may seek
attorney’s fees and costs incurred as a result of the improper
removal.
2013.

Defendant filed a Response (Doc. #18) on February 28,

Plaintiff filed an opposed Motion for Leave to File Reply

(Doc. #19), which the Court will deny as no reply is required.
On February 5, 2013, finding no response filed, the Court
granted plaintiff’s Motion to Remand based on the presence of a
Florida defendant, remanded the case back to the Collier County
Circuit Court, and directed plaintiff to file a motion for fees and
costs as the Court was “inclined to grant the request.”
p.

3.)

Plaintiff

filed

their

motion

seeking

(Doc. #16,

$2,852.00

in

attorney’s fees incurred as a result of the removal, and submitted
the supporting Affidavit of Michael J. Bradford (Doc. #17-1)

detailing the hours.

The Court finds that the amount sought is

directly related to the removal of the case and the hours and
hourly

rate

are

both

reasonable

in

the

Fort

Myers,

Florida

Defendant opposes the motion for several reasons.

As an

prevailing market.

initial matter, defendant states that two attorneys “abruptly left”
the firm, including counsel who was handling the matter, and
therefore “the Court’s forgiveness” is sought for failing to
respond to the motion to remand.

(Doc. #18, ¶ 2.)

Initially, the

Court would note that Mr. Wadsworth is the same counsel who filed
the Notice of Removal and Answer on behalf of defendant, and is
also one of the only two attorneys who have appeared as counsel of
record for defendant.

The attorney who was “handling this matter,

Mark Levine, Esq.” has never entered an appearance in this case.
Defendant states that this suit was initially filed in MiamiDade County, but it was voluntarily dismissed and re-filed in
Collier County, Florida.

Counsel state that it is “this firm’s

experience that Collier County attorneys have a significant ‘home
filed advantage’ in their home jurisdiction”, and therefore removal
would be sought to protect itself.

(Doc. #18, ¶ 7.)

Defendant

moved to transfer venue to Miami-Dade County and awaited a ruling
before seeking removal. (Id., ¶¶ 7-9.)
motion

to

defendant

transfer
asserts

was
that

denied,
the

defendant

removal

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Just over a week after the

was

sought

timely.

removal

and

(Id.,

10.)

Defendant also argues that the “forum defendant rule” may be waived
based on the presence of a hostile forum in the absence of removal.
(Id., ¶ 11.)

Defendant did not remove on the basis of a hostile

state forum, or otherwise indicate in the Notice of Removal that
the

basis

for

removal

was

anything

other

than

diversity

of

jurisdiction. Even if defendant had presented such an argument, it
is clearly not a basis for removal and more akin to the forum
shopping that defendant accuses plaintiff of engaging in.

(Id., ¶

38.)
Even if the Court considered the removal as timely, the Notice
of Removal alleged residency, not citizenship, and therefore failed
to establish subject-matter jurisdiction.

The fact that defendant

now clearly states that he is a citizen of Florida and domiciled in
Florida, id., ¶ 31, is of no consequence.

Defendant’s argument

that the forum defendant rule is waivable and therefore the removal
was proper is also rejected.

Although the removal by a State of

Florida defendant is a procedural defect that may be waived,
plaintiff

has

not

waived

the

requirement

in

this

case,

and

defendant cannot therefore “evade the statutory requirements of §
1441(b)

and

allow

the

federal

courts

to

make

significant

dispositive rulings in a case over which the federal courts may
lack jurisdiction.”

Pacheco de Perez v. AT & T Co., 139 F.3d 1368,

1372 n.4 (11th Cir. 1998).

The Court finds that the removal was

-3-

not proper and that plaintiff should receive attorney’s fees
pursuant to 28 U.S.C. § 1447(c).
Accordingly, it is now
ORDERED:
1.

Plaintiff’s Motion for Leave to File Reply (Doc. #19) is

DENIED.
2.

Plaintiff’s Motion for Attorney’s Fees Pursuant to 28

U.S.C. § 1447(c) (Doc. #17) is GRANTED and plaintiff is awarded
$2,852.00 in attorney’s fees incurred as a result of the removal.
3.
awarding

The Clerk shall enter judgment in favor of plaintiff
attorney’s

fees

in

the

amount

of

$2,852.00

against

defendant.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2013.

Copies:
Counsel of record

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7th

day of