AVERILL v. FIANDACA

Filing 24

ORDER denying 22 Motion for Reconsideration. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CHERYL AVERILL,
Plaintiff
v.
JOSEPH FIANDACA, JR.,
Defendant

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2:17-cv-00287-JDL

ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION
On October 5, 2017, I recommended the Court grant Plaintiff’s motion to remand,
but deny Plaintiff’s request for an award of attorney fees and costs. (Recommended
Decision, ECF No. 21.) Plaintiff seeks reconsideration of the decision. (ECF No. 22.)
Through the motion, Plaintiff asks for reconsideration of the decision to deny her request
for an award of attorney fees and costs. I deny Plaintiff’s motion.
Discussion
To be entitled to “reconsideration,” Plaintiff must demonstrate (1) the availability
of new evidence not previously available, (2) an intervening change in controlling law, or
(3) the need to correct a clear error of law or to prevent manifest injustice. Int’l Ass’n of
Machinists & Aerospace Workers v. Verso Corp., 121 F. Supp. 3d 201, 217 (D. Me. 2015).
Although I concluded that Defendant failed to establish that removal was proper, I
determined that under the circumstances in this case, an award of fees to Plaintiff under 28
U.S.C. § 1447(c) was not warranted because the 2011 amendment of the removal statute
“arguably created some ambiguity as to whether removal was appropriate.”

(Recommended Decision at 8; see also id. n.5.) Plaintiff contends that fees and costs
should be awarded in accordance with the order of remand in Rafter v. Stevenson, 680 F.
Supp. 2d 275, 281 (D. Me. 2010). Plaintiff maintains that the award is appropriate because
the Court, and not Defendant, first identified the arguable basis for removal.
The removal statute provides that “[a]n order remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as a result
of the removal.” 28 U.S.C. § 1447(c). An award under the provision is not automatic in
the event a court orders remand. Rather, an award is appropriate only if a court finds “the
removing party lacked an objectively reasonable basis for seeking removal.” Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005). “Conversely, when an objectively
reasonable basis exists, fees should be denied.” Id. See also Valdes v. Wal-Mart Stores,
Inc., 199 F.3d 290, 293 (5th Cir. 2000) (“The application of § 1447(c) requires
consideration of the propriety of the removing party’s actions based on an objective view
of the legal and factual elements in each particular case.” (cited with approval in Martin)).
That Defendant did not cite the fact that some district courts have permitted removal
under the 2011 amendment to the removal statute was a known fact when I issued the
Recommended Decision. Plaintiff’s request for reconsideration, therefore, is not based on
new evidence, an intervening change in the law, or a clear error or manifest injustice.
Furthermore, the fact that Defendant did not cite the 2011 amendment is not inconsistent
with the determination that an objectively reasonable basis for removal existed.
As to Plaintiff’s argument that this Court’s decision in Rafter compels a contrary
determination, as noted in the Recommended Decision (Recommended Decision at 8 n.9),
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Rafter was decided before the 2011 amendment to the removal statute. In addition, the
authority to award fees and costs pursuant to 28 U.S.C. § 1447(c) is permissive and thus
discretionary. Martin, 546 U.S. at 141 (noting that “courts may award attorney’s fees under
§ 1447(c) only where the removing party lacked an objectively reasonable basis for seeking
removal” (emphasis added)); Am. Airlines, Inc. v. Sabre, Inc., 694 F.3d 539, 541 – 42 (5th
Cir. 2012). Plaintiff’s argument that the Court’s decision in Rafter requires a different
result is unpersuasive.
Conclusion
Based on the foregoing analysis, I deny Plaintiff’s motion for reconsideration.
NOTICE
Any objections to this Order shall be filed in accordance with Federal Rule of Civil
Procedure 72.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 29th day of November, 2017.

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