Ambler v. Cormedia, LLC et al

Filing 16

MEMORANDUM AND ORDER granting 6 Motion to Remand. The case shall be remanded to the District Court Of Wyandotte County. Defendant shll pay the just cost and actual expenses, including attorney fees incurred as a result of improper removel. SEE MEMORANDUM AND ORDER for DETAILS. Signed by District Judge Richard D. Rogers on 6/26/2013. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANE T. AMBLER,

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Plaintiff,
v.
CORMEDIA LLC, et al.,
Defendants.

Case No. 13-2185-RDR

MEMORANDUM AND ORDER
This matter is presently before the court upon plaintiff=s motion
to remand.

Having carefully reviewed the arguments of the parties,

the court is now prepared to rule.
I.
This is an action in which plaintiff asserts various torts
against the defendants.

The claims arise from the issuance of

certain information about the plaintiff in a publication called AThe
Slammer.@

Plaintiff originally filed this action in the District

Court of Wyandotte County, Kansas on March 13, 2013.

The named

defendants were: CorMedia, LLC; Hogo Media, LLP; Isaac Cornetti;
Nicolas Hodgson; and Philip Joseph Goatcher.
amended petition on March 21, 2013.

Plaintiff filed an

All of the defendants were

served with defendant Goatcher being the last served on March 24,
2013.

Defendant Hodgson removed the case to this court on April 19,

2013.

In the removal petition, Hodgson indicated that defendant

Goatcher and Hogo Media, LLP were agreeable to removal.

Hodgson

further stated that he had attempted to confirm whether the remaining
defendants were agreeable to removal, but he had been unable to obtain
their position prior to filing the removal petition.
Plaintiff filed the instant motion to remand on May 16, 2013.
In his motion, he contends that remand to the state court is
appropriate because (1) the defendants did not unanimously consent
to removal pursuant to 28 U.S.C. ' 1446(b); and (2) defendants
Hodgson, Goatcher and Cornetti waived their right to removal by
seeking affirmative relief in the state court prior to removal.

He

seeks attorney=s fees and costs under 28 U.S.C. ' 1447(c).
On June 6, 2013, defendants Cornetti and CorMedia, LLC filed
a pleading indicating that they were joining in the removal petition
filed by Hodgson.
II.
A defendant may remove any civil action brought in state court
to the federal district court embracing the place where such action
is pending if the case could have originally been filed in federal
court. 28 U.S.C.A. ' 1441(a). District courts are granted original
jurisdiction over a variety of civil actions, including those between
citizens of different states where the amount in controversy exceeds
$75,000. 28 U.S.C.A. ' 1332.
The procedure for removing a case to federal district court is
governed by 28 U.S.C. ' 1446. In December 2011, Section 1446 was
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amended as part of the Federal Courts Jurisdiction and Venue
Clarification Act of 2011 (AJVCA@). Pub.L. No. 112B63, ' 103(b), 125
Stat. 758, 760B61 (Dec. 7, 2011).

The amended version of ' 1446

requires in part that A[w]hen a civil action is removed solely under
section 1441(a), all defendants who have been properly joined and
served must join in or consent to the removal of the action.@ 28 U.S.C.
' 1446(b)(2)(A).
Prior the JVCA, an exception to the unanimity rule existed where
Anominal, unknown, unserved or fraudulently joined defendants@ did
not join or consent to removal.

McShares, Inc. v. Barry, 979 F.Supp.

1338, 1342 (D.Kan. 1997); see also Dodson Aviation, Inc. v. HLMP
Aviation Corp., No. 08B4102BEFM, 2009 WL 1036123, at *2B3 (D.Kan. Feb.
12, 2009)(denying motion to remand where nominal defendant failed
to join or consent to removal).

Hodgson has not argued this

exception and it does not appear applicable in this case.

The court

must strictly construe removal statutes and resolve all doubts in
favor of remand. See Ortiz v. Biscanin, 190 F.Supp.2d 1237, 1241
(D.Kan. 2002); Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.
1995).

As the removing party, Hodgson has the burden to show that

he properly removed the action.

Wakefield v. Olcott, 983 F.Supp.

1018, 1020 (D.Kan. 1997).

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III.
Plaintiff asserts that the unanimity requirement has not been
met here because (1) defendant Hodgson=s statement that defendants
Goatcher and Hogo Media, LLP were agreeable to removal is inadequate;
and (2) defendants CorMedia, LLC and Cornetti did not timely consent
to removal.
Defendant Hodgson contends that plaintiff=s motion should be
denied because (1) the consent to removal by Goatcher and Hogo Media,
LLP was proper because they are all now represented by the same
counsel; and (2) the court should excuse the failure to defendants
CorMedia, LLC and Cornetti to timely consent due to
circumstances.
that

all

exceptional

With regard to the first contention, Hodgson notes

defendants

in

the

represented by other counsel.

state

court

case

were

initially

However, all defendants left their

initial counsel on or about April 17, 2013.

Hodgson notes that he

and defendants Goatcher and Hogo Media, LLP, are now represented by
the same counsel.

Since all are represented by the same counsel now,

then the consent noted by Hodgson=s counsel at the time of removal
was sufficient to satisfy the rule of unanimity for these defendants.
With regard to the second contention, Hodgson suggests that the fact
that CorMedia, LLC and Cornetti have no counsel and are proceeding
pro se constitutes exceptional circumstances that justify their
failure to consent to removal within the thirty-day time period.
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Hodgson relies upon Fifth Circuit case law for this exception to the
timeliness requirements of the removal statutes.
Demco, 792 F.2d 478, 482 (5th Cir. 1986).

See Brown v.

Finally, Hodgson argues

that the actions taken by the defendants in state court were not
sufficient to waive their right to removal and submit to state court
jurisdiction.
The court finds it unnecessary to resolve the first contention
concerning unanimity because there is little question that remand
is required due to the lack of Cornetti and CorMedia, LLC to timely
join in the removal petition.

The court finds no support for the

application of the Aexceptional circumstances@ doctrine applied by
the Fifth Circuit for a variety of reasons.
In Brown, the Fifth Circuit stated that where Aexceptional
circumstances@ exist, they may merit an extension of time to remove.
792 F.2d at 481.

The Fifth Circuit later provided some guidance on

the application of this exception in Ortiz v. Young, 431 Fed.Appx.
306 (5th Cir. 2011).

There, the Fifth Circuit noted that this

exception would likely apply in situations where (1) the plaintiff
has acted in bad faith to prevent the defendant from removing, and
(2) where removal was necessary to prevent injustice.
Fed.Appx. at 307-08.

Ortiz, 431

The court noted that the defendant in that case

had not provided the court with any explanation of how the plaintiff
had interfered with his ability to remove and/or what injustice would
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be prevented by allowing him to remove.

Id. at 308.

Therefore, the

court found that there was no exceptional circumstance present that
warranted an exception of the thirty-day time period.

Id.

Plaintiff has argued that the exception created by the Fifth
Circuit should no longer be applied because of changes in the law
since its adoption.

Although plaintiff makes a decent argument

concerning the viability of this exception, the court does not find
it necessary to reach a determination on that issue because we find
that the facts here certainly do not support its application.

We

further note that the Tenth Circuit has never adopted the exceptional
circumstances doctrine in removal and we have some considerable
doubts that it would do so.

Nevertheless, even if viable and

applicable, the exceptional circumstances rule cannot be enforced
here.
Hodgson has argued only that defendants Cornetti and CorMedia,
LLC were left without counsel and, as pro se litigants, were
unfamiliar with legal procedure and had difficulty filing consent
on their own.

Plaintiff has countered that the record shows that

Cornetti and CorMedia, LLC were represented by counsel at the time
that Hodgson removed the case.

Their counsel was not permitted to

withdraw until May 28, 2013.
Even if these defendants had been without counsel at the time
of removal, the court is not persuaded that the exceptional
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circumstances exception would have allowed Hodgson to remove without
the unanimity of all defendants.

Hodgson points to only one case

where the exception was applied in Asimilar@ circumstances, White v.
White, 32 F.Supp.2d 890, 893 (W.D.La. 1998).

In White, the court

applied the exceptional circumstances rule where it appeared that
plaintiff=s counsel was taking advantage of a Aremoval trap.@
F.Supp.2d

at

893.

Plaintiff=s

counsel

had

served

a

32
less

sophisticated defendant and then waited over thirty days to serve
a more sophisticated defendant who might attempt removal.

Given the

rule in the Fifth Circuit at the time that the thirty-day period
begins to run as soon as the first defendant is served, the court
found that plaintiff had engaged in Aforum manipulation,@ and
determined that exceptional circumstances existed to permit removal
despite non-compliance with the removal procedure.

Id. at 894.

Here, there is no evidence of forum manipulation by the
plaintiff.

Plaintiff served the defendants and there was nothing

that precluded their consent to removal within the thirty-day period.
At the time of removal, Cornetti and CorMedia, LLC were indeed
represented

by

counsel.

Even

if

these

defendants

had

been

proceeding pro se, such status did not preclude their consent.

If

the court were to adopt Hodgson=s argument, we would be forced to allow
all pro se litigants to avoid the requirements of 28 U.S.C. ' 1446(b).
There is no statutory or case law to support for such an argument.
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In sum, the time period for all defendants to join in the removal
petition passed and defendants Cornetti and CorMedia, LLC took no
steps to consent to the removal.

There is no basis, either factually

or legally, for the application of the exceptional circumstances
exception to the removal procedure.

The joinder filed by these

defendants on June 6, 2013 is untimely and therefore cannot be
considered.

Thus, Cornetti and CorMedia, LLC did not timely consent

to removal of this case from state court, and there are no exceptional
circumstances that would excuse the lack of consent.

As a result,

given the lack of timely unanimity of the defendants, the removal
was improvident and this case must be remanded to state court.

With

this decision, the court need not consider plaintiff=s argument that
the defendants waived their right to removal by seeking affirmative
relief in the state court prior to removal.
IV.
The court shall now consider whether to award attorneys= fees
and costs to plaintiff.

Hodgson contends that the court should not

award attorneys= fees and costs because he acted reasonably and in
good faith in removing this case.
An order granting a motion to remand Amay require payment of just
costs and any actual expenses, including attorney fees, incurred as
a result of removal.@

28 U.S.C. ' 1447(c).

therefore within the court=s discretion.
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Such an award is

See Suder v. Blue Circle,

Inc., 116 F.3d 1351, 1352 (10th Cir. 1997).

Because the court has

found that removal was improper, it has discretion to award costs.
Suder, 116 F.3d at 1352. In deciding whether to award costs, Athe key
factor is the propriety of defendant=s removal.@

Excell, Inc. v.

Sterling Boiler & Mech., Inc., 106 F.3d 318, 321 (10th

Cir.

1997)(citing Daleske v.. Fairfield Cmtys., 17 F.3d 321, 324 (10th
Cir.), cert. denied, 511 U.S. 1082 (1994)).

The court Adoes not have

to find that the state court action has been removed in bad faith
as a prerequisite to awarding attorney fees and costs under ' 1447(c).@
Excell, 106 F.3d at 321(citing Daleske, 17 F.3d at 324B25).
The court finds that attorney=s fees and costs should be awarded
to the plaintiff.

The court fails to find that Hodgson had an

objectively reasonable basis for removal.

Hodgson’s efforts to

apply the exceptional circumstances exception to these facts were
clearly lacking in merit.

Accordingly, the court finds that an award

of costs and expenses is appropriate.
IT IS THEREFORE ORDERED that plaintiff=s motion to remand (Doc.
# 6) be hereby granted.

This case shall be remanded to the District

Court of Wyandotte County, Kansas.
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. ' 1447(c),
defendant shall pay the just costs and actual expenses, including
attorneys' fees, which plaintiff incurred as a result of the improper
removal. The procedure set forth in D.Kan. Rule 54.2 shall apply to
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this issue, except that the time deadlines shall be as follows. On
or before July 8, 2013, plaintiff shall file a fee application which
itemizes all fees and costs for which he seeks reimbursement. If the
parties reach agreement regarding the fee request, they shall file
an appropriate stipulation on or before August 8, 2013.

If they are

unable to agree, plaintiff on or before August 12, 2013 shall file
the required statement of consultation and supporting memorandum.
Defendant may respond on or before August 22, 2013 and plaintiff may
reply on or before September 2, 2013.
IT IS SO ORDERED.
Dated this 26th day of June, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

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