Federal National Mortgage Association v. Still et al

Filing 15

ORDER granting 10 Motion to Remand. This case is remanded to the Twenty- Second Judicial District Court for the State of Montana. The Clerk of Court shall transmit this file to the Carbon County Clerk of District Court. IT IS FURTHER ORDERED that Defendants are awarded their reasonable attorney's fees caused by the improper removal. IT IS FURTHER ORDERED all other motions, deadlines, and scheduling conferences are VACATED. Signed by Judge Susan P. Watters on 2/3/2017. (EMH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

FEDERAL NATIONAL MORTGAGE
ASSOCIATION,

CV 16-174-BLG-SPW

Plaintiff,
ORDER
vs.
DANIELL. STILL, JENNY STILL,
and any person in possession,
Defendants.
Plaintiff removed this case on December 16, 2016. (Doc. 1). The
Defendants filed a motion to remand on January 13, 2017. (Doc. 10). Plaintiff
initially opposed the Defendants' motion to remand but has since conceded
removal was improper. (Doc. 12). Plaintiff maintains, however, that they should
not be liable for attorney's fees incurred by the Defendants due to the improper
removal. Plaintiff argues it did not know removal was improper until the
Defendants filed their motion to remand.
The standard for awarding fees for an improper removal is the
reasonableness of the removal. Martin v. Franklin Capital Corp., 546 U.S. 132,
141 (2005). Courts may award attorney's fees only when the removing party
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lacked an objectively reasonable basis for seeking removal. Martin, 546 U.S. at
141 (citing 28 U.S.C. § 1447(c)). Here, Plaintiff has given no objectively
reasonable basis for the removal. The proper course for removal is determining
whether removal is proper before removing the case, not after. Plaintiff all but
admits that, had it researched whether removal was proper based on the
Defendants' counterclaim, it would have never removed the case. See (Doc. 12 at
2); see also Westwood Apex v. Contreras, 644 F.3d 799, 805 (9th Cir. 2011) ("[A]
counterclaim defendant who is also a plaintiff to the original state action may not
remove the case to federal court."). Plaintiff is liable to the Defendants for their
reasonable attorney's fees caused by the improper removal because Plaintiff lacked
an objectively reasonable basis for the removal. Martin, 546 U.S. at 141.
IT IS HEREBY ORDERED that Defendants' Motion to Remand (Doc. 10)
is GRANTED. This case is remanded to the Twenty-Second Judicial District
Court for the State of Montana. The Clerk of Court shall transmit this file to the
Carbon County Clerk of District Court.
IT IS FURTHER ORDERED that Defendants are awarded their reasonable
attorney's fees caused by the improper removal.
IT IS FURTHER ORDERED all other motions, deadlines, and scheduling
conferences are VACATED.

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DATED this

dr<Jay of February, 2017.

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SUSAN P. WATTERS
United States District Judge