Phil Anderson Holdings (II) Inc. v. Rosinus

Filing 9

ORDER granting in part and denying in part 8 Partially Unopposed Motion to Remand to State Court. The motion is granted as to the remand and denied as to the request for attorney's fees and costs. The Clerk shall remand the case to the Lee County Circuit Court, transmit a certified copy of this Order to the Clerk of that Court, terminate all deadlines and motions, and close the case. Signed by Judge John E. Steele on 8/14/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PHIL ANDERSON HOLDINGS (II)
INC., a foreign corporation,
Plaintiff,
v.

Case No: 2:14-cv-428-FtM-29DNF

FRANZ J. ROSINUS,
Defendant.
ORDER
This matter comes before the Court on defendant’s Reply to
Order [Doc. #4] and Consent to Remand to State Court (Doc. #7)
filed on August 13, 2014, and plaintiff's Partially Unopposed
Motion for Remand (Opposed as to Attorney’s Fees and Costs Under
28 U.S.C. § 1447(c)) (Doc. #8) filed on August 14, 2014.
On August 6, 2014, the Court issued an Order (Doc. #4)
directing defendant to file a Supplement to the Notice of Removal
to show subject-matter jurisdiction was indeed present as the
Notice of Removal (Doc. #1) was deficient.

In response, defendant

states that although he thought plaintiff was a corporation, he
later learned that plaintiff is the managing member of a Florida
limited liability company and its principal is the managing member
of

another

Florida

limited

liability

company.

(Doc.

#7.)

Therefore, defendant concedes that the case should be remanded
because no diversity of citizenship is present.

Plaintiff agrees to the remand but seeks attorney’s fees and
costs for the removal pursuant to 28 U.S.C. § 1447(c) 1, and with
opposition.

Plaintiff

argues

that

the

case

was

clearly

not

removable because defendant is a Florida citizen and therefore the
“forum defendant rule” prohibited removal.

28 U.S.C. § 1441(b).

The forum defendant rule is a non-jurisdictional defect, Courtney
v. BLP Mobile Paint Mfg. Co, Inc., CIV.A. 12-0318-WS-C, 2012 WL
5869120, *1-2 (S.D. Ala. Nov. 19, 2012)(collecting cases), and
defendant promptly agreed to a remand upon issuance of the Court’s
Order and shortly after removal.

As there was no significant

delay and the Court cannot say that there was no objectively
reasonable

basis

for

removal,

the

Court

will

exercise

discretion and deny the request for fees and costs.

its

See Martin

v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (absent unusual
circumstances,

attorney

fees

should

not

be

awarded

when

the

removing party has “an objectively reasonable basis for seeking
removal.”).
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Partially Unopposed Motion for Remand (Opposed
as to Attorney’s Fees and Costs Under 28 U.S.C. § 1447(c))

1

“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).

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(Doc. #8) filed on August 14, 2014 is GRANTED in part and
DENIED in part.

The motion is granted as to the remand

and denied as to the request for attorney’s fees and costs.
2. The Clerk is directed to remand the case to the Circuit
Court of the Twentieth Judicial Circuit, in and for Lee
County, Florida, and to transmit a certified copy of this
Order to the Clerk of that Court.
3. The Clerk is further directed to terminate all pending
motions and deadlines and to close this case.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2014.

Copies:
Counsel of Record

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14th

day