Carroll v. United Maritime Group, LLC et al

Filing 26

ORDER ATTACHED denying 25 Motion for Attorney Fees and Costs and denying 25 Motion to Clarify as moot. Signed by Judge Richard A. Lazzara on 3/3/2009. (CCB)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION FREDERICK CARROLL, individually and on behalf of his minor child, THC, Plaintiff, v. UNITED MARITIME GROUP, LLC, et al., Defendants. / ORDER Before the Court is Plaintiff's Motion to Tax Fees and Costs or, in the alternative, Motion to Clarify Ruling as to Awarding Fees and Costs. (Dkt. 25). After careful consideration of the Motion, the Court finds it unnecessary to order a response, and concludes that the motion should be denied in its entirety. This Court may grant attorney's fees in its discretion1 if the removal was "patently improper" and the defendant made no viable argument for removal. Devine v. Prison Health Servs., Inc., 212 Fed.Appx. 890, 892 (11th Cir. Dec. 27, 2006) (quoting Tran v. Waste Mgmt., Inc., 290 F.Supp.2d 1286, 1295 (M.D. Fla. 2003)). In this case, the Court finds that the removal was not "patently improper" and therefore declines to grant an award of attorney's fees.2 CASE NO: 8:08-cv-2451-T-26MAP

An award of attorney's fees pursuant to 28 U.S.C. § 1447(c) is discretionary. Smith v. Health Ctr. of Lake City, Inc., 252 F.Supp.2d 1336, 1346 (M.D. Fla. 2003). See also Legg v. Wyeth, 428 F.3d 1317 (11th Cir. 2005) (holding that facts of removal case was not one of "improvident removal" where defendant provided affidavits
2

1

The nature of the Complaint in this case, from which removal was predicated, was arguably violative of the rule against shotgun pleading.3 Plaintiff cannot claim that the Complaint was such a model of clarity to make it abundantly clear that the unpaid wages claim was clearly related to the maintenance and cure claim. Because shotgun pleadings have been "condemned repeatedly" by the Eleventh Circuit, see Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001), this Court finds that removal by Defendant was not "patently improper." It is ORDERED AND ADJUDGED as follows: (1) (2) Plaintiff's Motion to Tax Fees and Costs (Dkt. 25) is DENIED. Plaintiff's Motion to Clarify Ruling as to Awarding Fees and Costs (Dkt. 25) is DENIED as moot. DONE AND ORDERED at Tampa, Florida, on March 3, 2009.

s/Richard A. Lazzara RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:

Counsel of Record

of individual defendant sales representatives to refute claim of fraudulent joinder).
3

See Defendants' Response to Motion to Remand at docket 21, pp. 18-19. -2-