Manibhadra, Inc. d/b/a Days Inn Emporia v. Aspen Insurance (UK) LTD

Filing 19

MEMORANDUM AND ORDER denying 16 Motion to Vacate the fee award. Plaintiff is awarded additional fees in the amount of $300.00. Signed by U.S. District Senior Judge Sam A. Crow on 3/10/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MANIBHADRA, INC.,
Plaintiff,
v.

Case No. 14-4112-SAC

ASPEN INSURANCE UK LTD,
Defendant.

MEMORANDUM AND ORDER
This case comes before the court on Defendant’s motion to vacate the
award of attorneys’ fees granted to Plaintiff by the Court for Defendant’s
improvident removal of this case. Plaintiff opposes the motion.
Defendant’s motion does not state its statutory or other authority, but
alleges it is based on “new information which was not available” at the time
of removal. That new information is a motion Plaintiff filed in the state case,
post-remand, for Defendant to post a surety bond in the amount of $60,000,
which amount Plaintiff represented was sufficient to secure the payment of
any final judgment in the action.
Defendant’s motion is untimely if brought as a motion to reconsider
the Court’s December 17, 2014 order awarding reasonable attorneys’ fees to
the Plaintiff, see D. Kan. Rule 7.3 (establishing a 14-day limit for
reconsideration of non-dispositive orders), or as a Rule 59(e) motion

challenging the Court’s December 17, 2014 finding that the case had been
improvidently removed (establishing a 28 day limit to alter or amend a
dispositive judgment). Defendant’s motion may, however, be authorized
pursuant to Rule 60(b)(2)1 since it was filed within a year of the order, if
Defendant shows “newly discovered evidence that, with reasonable
diligence, could not have been discovered” within 28 days after the entry of
judgment. See Rule 59(b).
“[T]he propriety of removal is judged on the complaint as it stands at
the time of the removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct.
347, 349, 83 L.Ed. 334 (1939).” Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d
1484, 1488-1489 (10th Cir. 1991). So “[t]he court determines the amount
in controversy as of the date of the removal.” Holstein Supply, Inc. v.
Murphy, 2014 WL 7407516, 2 (D.Kan. 2014) (citing Lonnquist v. J.C. Penney
Co., 421 F.2d 597, 599 (10th Cir. 1970)). This key distinction is overlooked
in Defendant’s motion pursuant to Rule 60(b)(2), which provides relief when
the movant presents newly discovered evidence that could not have been
discovered before the court’s order and that is relevant to the merits of the
challenged order. See generally, Harris v. Illinois-California Exp., Inc., 687
F.2d 1361, 1375 (10th Cir. 1982) (finding “[t]he ‘newly discovered
evidence,’ if relevant and material, was in existence many months prior to
trial.”). Even assuming, arguendo, that Plaintiff’s motion may constitute

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Defendant’s reply asserts this statutory basis for relief. See Dk. 18.

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“evidence,” within the meaning of Rule 60(b)(2), nothing in Plaintiff’s motion
for a surety bond, filed long after the time Defendant removed the case,
tends to show that Defendant plausibly alleged the requisite amount in
controversy at the time Defendant removed the case.
Even had Plaintiff’s request for a bond in the amount of $60,000 been
made before the case was removed, that amount would not have provided a
plausible basis for removal since it fails to show an amount in controversy
greater than $75,000. Defendant’s motion shall therefore be denied. The
Court finds it unnecessary to address Plaintiff’s argument that Defendant
waived any opposition to the Court’s assessment of attorneys’ fees.
Plaintiff’s response includes a request for additional attorney fees in
the amount of $300.00 for one and one-half hours of work, apparently
incurred in responding to Defendant’s motion to vacate. Defendant has
replied to that response without challenging the reasonableness of that
amount. The court finds that amount to be reasonable and appropriately
awarded.
IT IS THEREFORE ORDERED that Defendant’s motion to vacate the fee
award (Dk. 16) is denied.
IT IS FURTHER ORDERED that Plaintiff is awarded additional fees in
the amount of $300.00.

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Dated this 10th day of March, 2015, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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