Hogan et al v. Mance et al
Filing
24
MEMORANDUM AND ORDER - The Magistrate Judge's findings and recommendations (filing 21 ) are adopted. The plaintiffs' statement of objections (filing 22 ) is denied. The plaintiffs' motion to remand (filing 7 ) is granted, and t he plaintiffs' motions to strike and for attorneys' fees (filing 7 ) are denied. This case shall be remanded to the District Court of Douglas County, Nebraska. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MAREN HOGAN, and
GALAVANTING PRODUCTIONS,
L.L.C., a Colorado Limited Liability
Company,
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
GALAVANTING PRODUCTIONS, )
L.L.C., a Colorado Limited Liability )
Company, and KIMBERLY MANCE, )
)
Defendants.
)
)
8:13CV137
MEMORANDUM
AND ORDER
This matter is before the court on the findings and recommendation by
Magistrate Judge Zwart (filing 21), recommending that the plaintiffs’ motion for
remand be granted, the plaintiffs’ request for recovery of attorneys’ fees be denied, and
that this case be remanded to the District Court of Douglas County, Nebraska. The
plaintiffs have filed an objection (filing 22) pursuant to NECivR72.2, Fed. R. Civ. P.
72, and 28 U.S.C. § 636(b)(1) regarding the portion of Magistrate Judge Zwart’s
recommendation that the plaintiffs’ request for attorneys’ fees resulting from the
improper removal of this case be denied. No party filed objections regarding the
Magistrate Judge’s recommendation that this case be remanded to state district court.
I have conducted a de novo review of the record regarding the issue of
attorneys’ fees. 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.”) Pursuant to 28 U.S.C. § 1447(c),
“[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.” A court may
award attorneys’ fees under this provision when “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).
I find that inasmuch as the Magistrate Judge has fully, carefully, and correctly
applied the law regarding awarding attorneys’ fees in cases with the procedural posture
involved here, the Magistrate Judge’s findings and recommendation regarding the
denial of the plaintiffs’ request for attorneys’ fees should be adopted, and the
plaintiffs’ statement of objections should be denied. Further, the Magistrate Judge’s
recommendation regarding the remand (to which there was no objection) should be
adopted.
Accordingly,
IT IS ORDERED:
1.
The Magistrate Judge’s findings and recommendations (filing 21) are
adopted;
2.
The plaintiffs’ statement of objections (filing 22) is denied;
3.
The plaintiffs’ motion to remand (filing 7) is granted, and the plaintiffs’
motions to strike and for attorneys’ fees (filing 7) are denied;
4.
This case shall be remanded to the District Court of Douglas County,
Nebraska; and
5.
Judgment shall be entered by separate document.
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DATED this 26th day of August, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend, approve,
or guarantee any third parties or the services or products they provide on their Web
sites. Likewise, the court has no agreements with any of these third parties or their
Web sites. The court accepts no responsibility for the availability or functionality of
any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to
some other site does not affect the opinion of the court.
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