MCHUGH et al v. PORTFOLIO RECOVERY ASSOCIATES LLC
ORDER granting 5 Motion to Remand Ordered by US DISTRICT JUDGE CLAY D LAND on 07/02/15 (bsh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
LEO J. MCHUGH and JULIA MCHUGH, *
PORTFOLIO RECOVERY ASSOCIATES,
CASE NO. 4:15-cv-00046 (CDL)
O R D E R
wrongfully attempted to collect a debt that Plaintiffs allegedly
After the case had been pending in the Superior Court for
over two years, Defendant filed a notice of removal to remove
Defendant’s counsel removed the case belatedly,
jurisdictional amount nine months before Defendant attempted to
Contending that the removal was untimely, Plaintiffs
filed a motion to remand and seek recovery of their attorney’s
For the following reasons, Plaintiffs’ motion is granted.
If a case is not removable based on the initial pleading,
it may be removed “within 30 days after receipt by the defendant
. . . of a copy of an amended pleading, motion, order or other
paper from which it may first be ascertained that the case is
one which is or has become removable.”
28 U.S.C. § 1446(b)(3).
A case may not be removed on the basis of diversity jurisdiction
more than one year after its commencement unless the non-moving
The bad faith exception applies when plaintiffs
use “devices intended to prevent a removal to a Federal court
where one has that right.”
Legg v. Wyeth, 428 F.3d 1317, 1325
(11th Cir. 2005).
Plaintiffs commenced this action in the Superior Court of
Muscogee County, Georgia on September 24, 2012.
In June of
2014, Plaintiffs sent a written demand in excess of $75,000 to
Defendant did not file its removal until
March 27, 2015, approximately nine months later.
removal was untimely because it did not file its removal within
thirty days of receiving a demand that put it on notice that the
amount and because it did not file its removal within one year
Plaintiffs prevented removal in bad faith.
Defendant now acknowledges that removal was untimely but
seeks to be excused from paying Plaintiffs’ attorney’s fees.
Defendant’s present counsel argues that it was unaware of the
earlier settlement demand in excess of the jurisdictional amount
agreed to remand.
The standard for awarding attorney’s fees
objectively reasonable basis for removal.
Martin, 546 U.S. at 141.
28 U.S.C. § 1447(c);
But if the removing party had an
“objectively reasonable basis” for seeking removal, fees should
Martin, 546 U.S. at 141.
This test “recognize[s]
prolonging litigation and imposing costs on the opposing party.”
Id. at 140; see also Hansard v. Forsyth Cnty., Ga., 191 F. App’x
deciding whether to award fees, courts consider “whether the
[defendant] had an objectively reasonable basis for removal and
then consider whether the removal prolonged the litigation or
imposed costs on the [plaintiff]”).
subjectively unaware of the earlier demand, there is no dispute
that it was made and no dispute that Defendant would have been
aware of it through its previous counsel.
In light of the
Court finds that Defendant had no objectively reasonable basis
for removing the case more than thirty days after that demand
and after the case had been pending for more than two years.
Accordingly, this action shall be remanded to the Superior Court
Plaintiffs’ attorney’s fees caused by the improper removal.
Defendant’s objectively unreasonable removal prolonged this
litigation and imposed costs on the Plaintiffs. The litigation
was delayed by at least two months as the most recent motion
present record also supports a finding that Plaintiffs incurred
litigation expenses of $2,402.00 due to the improper removal.
Statement of Costs and Attorney Fees, ECF No. 8 at 5. The delay
See Hansard, 191 F. App’x at 846 (affirming award of
attorney’s fees where removal prolonged resolution of the case
for over two months).
Accordingly, the Court grants Plaintiffs’
Motion to Remand and Attorney’s Fees (ECF No. 5).
shall pay Plaintiffs $2,402.00 within 14 days of today’s order,
and the Clerk of Court shall remand this action to the Superior
Court of Muscogee County, Georgia.
IT IS SO ORDERED, this 2nd day of July, 2015.
S/Clay D Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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