Idaho Department of Transportation v. Friends of the Weiser River Trail, et al

Filing 12

MEMORANDUM ORDER granting in part and denying in part 6 Motion to Remand to State Court. The above-entitled action is remanded to the District Court of theThird Judicial District of the State of Idaho, in and for the County of Washington, No. CV-2012-0835. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
THE STATE OF IDAHO, IDAHO
TRANSPORATION BOARD,

Case Number: 1:12-cv-00456-EJL
MEMORANDUM ORDER

Plaintiffs,
vs.
FRIENDS OF WEISER RIVER TRAIL,
INC., and UNION PACITIC RAILROAD
COMPANY,
Defendants.

FACTUAL AND PROCEDURAL BACKGROUND
On August 6, 2012, Plaintiff, State of Idaho, Idaho Transportation Board (“ITB”),
filed a Complaint in the District Court of the Third Judicial District of the State of Idaho.
The complaint names the Friends of Weiser River Trail, Inc. (“FWRT”) and Union
Pacific Railroad Company (“Union Pacific”) as Defendants. The Complaint sets forth a
condemnation claim of a permanent easement to widen the current right-of-way for US
95 as it approaches the Weiser River Bridge from the north. ITB served the Complaint on
both Defendants on August 7, 2012. Pursuant to 28 U.S.C. § 1446(a), the FWRT
removed this action from state court following its Notice of Removal to United States
District Court filed on September 5, 2012, and invoked this Court’s jurisdiction on the
basis of original jurisdiction under 28 U.S.C. § 1441(a). On October 1, 2012, ITB filed a
Motion to Remand this matter to state court.

DISCUSSION
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, in the interest
of avoiding further delay, and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument, this matter shall be decided on
the record before this Court without oral argument.
Motion to Remand
Under 28 U.S.C. § 1441(a), the district courts have removal jurisdiction over any
claim that could have been brought in federal court originally. Hall v. N. Am. Van Lines,
Inc., 476 F.3d 683, 686-687 (9th Cir. 2007). The “burden of establishing federal
jurisdiction is on the party seeking removal, and the removal statute is strictly construed
against removal jurisdiction.” Prize Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th
Cir. 1999).1 The defendant also has the burden of showing that the procedural
requirements for removal have been complied with. Riggs v. Plaid Pantries, Inc., 233 F.
Supp. 2d 1260, 1264 (D. Ore. 2001). Any doubt as to the right of removal is resolved in
favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

1 Defendant argued that Prize Frize may no longer be applicable. However, Prize Frize

was superseded by statute on other grounds as stated in Abrego Abrego v. Dow Chem.
Co., 443 F.3d 676 (9th Cir. 2006), but that holding was limited to the Class Action
Fairness Act so Prize Frize is still applicable to this matter.

In the Motion to Remand, ITB asserts that Defendant Union Pacific neither
consented to nor joined in the Notice of Removal. Generally, all defendants in a state
action must join in or consent to a notice of removal. 28 U.S.C. § 1446(b)(2)(A); Emrich
v. Touche Ross & Co., 846 F.2d 1190 (9th Cir. 1988). However, this general rule does
not apply to “nominal, unknown, or fraudulently joined parties.” Emrich, 846 F.2d at
1193 n.1. If fewer than all defendants join in the removal action, the removing party has
the burden under 28 U.S.C. § 1446(a) to affirmatively explain the absence of the nonjoining defendants in the Notice of Removal. Prize Frize, 167 F.3d at 1266. Absent such
explanation, the removal notice is procedurally deficient and, if the deficiency is not
cured within the thirty-day statutory period permitted for joinder, then removal is
improper and remand is appropriate. Id.
FWRT does not dispute that Union Pacific did not join in or consent to removal,
nor did FWRT offer an affirmative explanation for Union Pacific’s absence in its Notice
of Removal. Because FWRT failed to join all co-defendants, the burden was placed on
FWRT to affirmatively explain Union Pacific’s absence in its removal notice. FWRT
failed to provide such an explanation and, thus, FWRT’s Notice of Removal was
procedurally defective. Accordingly, because Defendant’s Notice of Removal was
procedurally defective and the deficiencies were uncured within the thirty-day statutory
period, removal was improper and the matter must be remanded.

The Court need not reach the issue of whether Union Pacific is a nominal party
and/or was fraudulently joined to this lawsuit, as Defendant asserts in its Motion in
Opposition to Plaintiff’s Motion for Remand, because FWRT’s removal is procedurally
improper.
Attorney Fees
Pursuant to 28 U.S.C. § 1447(c), an order remanding the case may require
payment of attorney fees incurred as a result 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.” Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005). In determining whether attorney fees are
appropriate, district courts should consider whether the purpose of the removal was to
prolong litigation and/or impose costs on the opposing party. Id. 28 U.S.C. § 1447(c)
was not designed to penalize a party who had a reasonable arguable basis for seeking
removal, but had a procedurally defective Notice of Removal.
In this case, the Court finds that FWRT had a “reasonably objective basis for
seeking removal” and Plaintiff’s request for fees and costs is DENIED.

ORDER
Based on the foregoing, and being fully advised in the premises, IT IS HEREBY
ORDERED that the Motion to Remand (Dkt. 6) is GRANTED IN PART AND
DENIED IN PART. The above-entitled action is remanded to the District Court of the
Third Judicial District of the State of Idaho, in and for the County of Washington, No.
CV-2012-0835.
The request for attorney fees is DENIED. The Clerk shall mail a certified copy of
this Order to the Clerk of the aforesaid Idaho state court.
IT IS FURTHER ORDERED that all remaining pending motions be resolved, if
appropriate, by the state court.

DATED: May 28, 2013

_________________________
Edward J. Lodge
United States District Judge