Mclaughlin v. Infor (US), Inc. et al
OPINION & ORDER re: 29 MOTION TO REFUND FEES & COSTS filed by Jared Mclaughlin. Because Defendants lacked an objectively reasonable basis for removing the case from New York state court, Plaintiff's motion for costs is GRANTED in the amount of $294.66. The Clerk of the Court is respectively directed to terminate the motion docketed at ECF No. 29. SO ORDERED. (Signed by Judge John F. Keenan on 10/27/2017) (anc)
Case 1:09-md-02013-PAC Document 57
Filed 09/30/10 Page 1 of 45
DOC #: _________________
DATE FILED: 10/27/2017
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK :
In re FANNIE MAE 2008 SECURITIES : :
08 Civ. 7831 (PAC)
09 MD 2013 (PAC)
No. 17 Civ. 3624 (JFK)
OPINION & ORDER
INFOR (US), INC., STUART
OPINION & ORDER
SMITH, JEFFREY WAYLAND, and
HONORABLE PAUL A. CROTTY, United States District Judge:
JOHN F. KEENAN, United States District Judge:
Before the Court is Plaintiff Jared McLaughlin’s
The early years of this decade saw a boom in home financing which was fueled, among
(“Plaintiff”) motion, pursuant to 28 U.S.C. § 1447(c), for
other things, by low interest rates and lax credit conditions. New lending instruments, such as
costs. Plaintiff makes his motion in connection with the
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
Court’s remand of the case to the Supreme Court of the State of
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
New York, New York County after removal by Defendants Infor
assumption that the market would continue to rise and that refinancing options would always be
(US), Inc., Stuart Smith, Jeffrey Wayland, and Darren Saumur
available in the future. Lending reasons stated in the system. Court originators
(“Defendants”). For the discipline was lacking below, the Mortgage grants did
not hold these high-risk mortgage loans. the amount of $294.66.
Plaintiff’s motion for costs inRather than carry the rising risk on their books, the
originators sold their loans into the secondary mortgage market, often as securitized packages
known April 24, 2017, Plaintiff filed a complaint in exponentially.
On as mortgage-backed securities (“MBSs”). MBS markets grew almost the
But then the the State burst. In York, demand for County against
Supreme Court of housing bubble of New 2006, the New York housing dropped abruptly
and home prices began Court Records changing housing market, banks modified
Defendants. (State to fall. In light of theand Proceedings Pursuant to their
lending practices at 1, ECF No. 6 refinance home mortgages without refinancing.
Local Rule 8.1 and became unwilling to(filed May 16, 2017).) Plaintiff
essentially alleges that Defendants failed to pay Plaintiff the
Unless commissions, bonuses, and other “Complaint” are to the Amended Complaint,
requiredotherwise indicated, all references cited as “(¶ _)” or to the compensation owed under
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
his employment contract.
On May 15, 2017, Defendants filed a
notice of removal to this Court. (See Notice of Removal, ECF No.
1 (filed May 15, 2017).)
The notice of removal premised federal jurisdiction on
complete diversity under 28 U.S.C. § 1332. (See id. ¶ 6.)
May 25, 2017, Plaintiff moved to remand the case to New York
state court because removal was improper under 28 U.S.C. §
1441(b)(2), which provides:
“A civil action otherwise removable
solely on the basis of the jurisdiction under section 1332(a)
. . . may not be removed if any of the parties in interest
properly joined and served as defendants is a citizen of the
State in which such action is brought.” (Pl.’s Mem. of L. in
Supp. of Mot. for Remand, ECF No. 13 (filed May 25, 2017).)
his motion to remand, Plaintiff moves for actual costs and
expenses incurred as a result of the removal under 28 U.S.C. §
1447(c), which authorizes a remanding court to “require payment
of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.” (See id. at 9-10.)
June 2, 2017, Defendants filed a motion to withdraw the notice
of removal, in which they acknowledged that at least one
Defendant is a citizen of the State of New York. (Motion to
Withdraw Notice of Removal, ECF No. 18 (filed June 2, 2017).)
On June 5, 2017, the Court granted Defendants’ motion to
withdraw the notice of removal, ordered that the action be
remanded back to New York Supreme Court, and retained
jurisdiction over Plaintiff’s application for costs. (See Order
on Defs.’ Mot. to Withdraw, ECF No. 23 (filed June 5, 2017);
Order, ECF No. 24 (filed June 5, 2017).)
On June 22, 2017, Plaintiff sent his motion for costs in
the amount of $1,157.78 to the Court, along with sixteen
receipts for various expenses. (See Notice of Mot. to Refund
Fees and Costs, ECF No. 29 (filed July 7, 2017) [hereinafter
Motion for Costs]; Proposed Order to Return Fees and Costs, ECF
No. 29-1 at 10 (filed July 7, 2017).)
Plaintiff argues that he
is entitled to costs because removal was improper under 28
U.S.C. § 1441(b)(2). (Mot. for Costs at 1.)
that costs are not warranted because Plaintiff has failed to
explain the basis for the costs he is seeking or explain how
they are related to the removal and remand of this case. (Defs.’
Mem. of L. in Opp’n to Pl.’s Mot. to Refund Fees and Costs at 3,
ECF No. 31 (filed July 7, 2017).)
On October 18, 2017,
Plaintiff filed an affidavit in support of his motion to refund
costs. (Reply Aff. in Supp. of Mot. to Refund Fees and Costs,
ECF No. 36 (filed Oct. 18, 2017) [hereinafter McLaughlin Aff.].)
“An order remanding [a] 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).
award [costs] under § 1447(c) . . . where the removing party
lacked an objectively reasonable basis for seeking removal.”
Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
“Objective reasonableness is evaluated based on the
circumstances as of the time that the case was removed.”
Williams v. Int’l Gun–A–Rama, 416 F. App’x 97, 99 (2d Cir. 2011)
“The award of costs under § 1447(c) is
discretionary and does not require a finding that the removant
acted in bad faith.” In re Friedman & Shapiro, P.C., 185 B.R.
143, 145–46 (S.D.N.Y. 1995).
An award of fees and costs
requires the application of a test of “overall fairness given
the nature of the case, the circumstances of remand, and the
effect on the parties.” Morgan Guar. Tr. Co. of New York v.
Republic of Palau, 971 F.2d 917, 924 (2d Cir. 1992).
Several courts in this District have found that a removing
defendant lacked an objectively reasonable basis for removing a
case on the stated basis of diversity of citizenship when, as
here, the defendant was a citizen of the state in which the
action was brought. See Prescia v. U.S. Life Ins. Co. in City of
New York, No. 10cv2518 (KMW), 2010 WL 4344561, at *3 (S.D.N.Y.
Nov. 1, 2010) (“Here, the Court is authorized to award costs and
attorney’s fees against the Defendant [under § 1447(c)] because
removal was predicated upon a diversity of citizenship that
clearly does not exist.
Defendant is a citizen of the state in
which this action was brought.
Even the most basic of research
would have revealed that this Court does not have jurisdiction
over this action.” (internal quotation marks and citation
omitted)); Dela Rosa v. 610-620 W. 141 LLC, No. 08 Civ.
8080(PKL), 2009 WL 1809467, at *3-4 (S.D.N.Y. June 24, 2009).
As Defendants concede, at least one Defendant is a citizen of
Accordingly, Defendants lacked an objectively
reasonable basis for removal and an award under § 1447(c), is
appropriate because “removal was predicated upon a diversity of
citizenship that clearly does not exist.” Prescia, 2010 WL
4344561, at *3 (internal quotation marks omitted).
The remaining issue, then, is the proper amount of the
Plaintiff seeks costs in the amount of $1,157.78 for
various expenses, including lodging, airfare, printing,
shipping, and various office supplies. (See McLaughlin Aff. at
The Court will first consider the expenses for lodging
Plaintiff submits two receipts, one for a hotel reservation
for May 29, 2017 through May 30, 2017 in Jersey City, New Jersey
in the amount of $214, and one for a round-trip plane ticket
from Charlotte, North Carolina to LaGuardia Airport in New York
City, departing on May 29, 2017 and returning May 30, 2017, in
the amount of $266. (Mot. for Costs Exs. 1, 2.)
explains exactly what these receipts are, and his affidavit
simply states that these receipts are “Non-Refundable Lodging”
and “Non-Refundable Airfare” caused by Defendants’ “improper and
cancelled removal.” (McLaughlin Aff. at 1.)
However, in his
reply brief, Plaintiff states that “[b]y the Defendants[’]
actions alone, moving the case to S.D.N.Y. improperly, they
canceled, the RJI meeting in the Supreme Court of the State of
New York, which was confirmed for May 30th, 2017.” (Letter Reply
Ex. 1 at 1, ECF No. 32-1 (filed July 10, 2017) [hereinafter
Pl.’s Reply Br.].)
Because Plaintiff is pro se, the Court will
assume, for the purposes of this motion, that these receipts
reflect expenses Plaintiff incurred in booking travel for the
conference in state court.
Nevertheless, Plaintiff is not entitled to costs under
1447(c) for these travel expenses.
Courts have granted pro se
litigants’ requests for reimbursement of expenses “arising from
the improvident removal and subsequent remand.” Aretakis v.
United Airlines, Inc., No. 15CV6313ENVJO, 2017 WL 3037482, at *3
(E.D.N.Y. June 23, 2017), report and recommendation adopted, No.
15CV6313ENVJO, 2017 WL 3037403 (E.D.N.Y. July 17, 2017).
and costs are incurred as a result of the removal if they . . .
would not have arisen had the case remained in state court.”
Williams v. Beemiller, Inc., No. 05-CV-836S(F), 2010 WL 891001,
at *5 (W.D.N.Y. Mar. 10, 2010), rev’d on other grounds sub nom.
Williams v. Int’l Gun-A-Rama, 416 F. App’x 97 (2d Cir. 2011).
These travel costs were not, as Plaintiff contends, incurred as
a result of removal, because had Defendants not removed this
action, Plaintiff still would have had to travel to New York,
his chosen venue, to attend the May 30 conference in state
Accordingly, the Court declines to award costs for
Plaintiff’s travel expenses.
The remainder of Plaintiff’s costs are largely shipping and
New York courts have awarded similar types
of costs, including expenses incurred for photocopying and
postage, to pro se plaintiffs where those costs were reasonable.
See, e.g., Aretakis, 2017 WL 3037482, at *4 (awarding reasonable
postage and copying costs incurred as a result of defendant’s
removal to pro se litigant); Mintz & Gold LLP v. Daibes, No. 15
CIV. 1218 PAE, 2015 WL 2130935, at *9 (S.D.N.Y. May 6, 2015),
aff’d, 643 F. App’x 35 (2d Cir. 2016) (awarding pro se litigant
payment of $85.44 in out-of-pocket transcript costs).
Plaintiff states that he incurred $589.321 in costs for
“manual printing” and “manual shipping” because of Defendants’
“improper and cancelled removal.” (McLaughlin Aff. at 1-2; Mot.
for Costs Exs. 3-6, 9-15.)
In his reply brief, he states that
The total amount requested for printing and shipping is $613.07, however,
Plaintiff includes two receipts for the same expense, a shipping cost in the
amount of $23.75 on May 22, 2017, in Exhibits 6 and 12.
he “incur[red] the cost of sending courtesy copies (14.1 lbs 75
Exhibits)” of the First Amended Complaint. (Pl.’s Reply Br. at
Pursuant to the Court’s individual practices, litigants are
required to provide courtesy copies of pleadings and other
motions to the Court. (See Judge John F. Keenan Individual
Practices April 2017 at 3.)
Thus, the expenses for sending
courtesy copies to the Court were incurred as a result of
Defendants’ improper removal and an award of costs is
However, Plaintiff offers no explanation as to why the
expenses for sending courtesy copies to the Court total almost
$600, and specifically why some of the courtesy copies needed to
be sent via overnight shipping, which is inevitably more
Accordingly, the Court finds that reimbursement in
such an amount is unreasonable. See Aretakis, 2017 WL 3037482,
at *3 (declining to award certain costs where pro se plaintiff
failed to explain the basis for the cost).
The Court sees fit
to apply a 50 percent reduction to Plaintiff’s request for
printing and shipping costs, and finds an award of $294.66 to be
more reasonable. See MB Fin. Bank, N.A. v. 56 Walker, LLC, No.
11 Civ. 5538(JGK), 2011 WL 6338808, at *4 (S.D.N.Y. Dec. 19,
2011) (applying “across-the-board reduction of 40% to the
plaintiff’s attorneys’ hours”).
Finally, Plaintiff requests $19.18 for flash drives, $3.75
for copy paper, and $11.22 for an ink cartridge.
Aff. at 1-2; Motion for Costs Exs. 7, 8, 16.)
The Court does
find it reasonable for Defendants to be required to
reimburse Plaintiff for office supplies.
Because Defendants lacked an objectively reasonable basis
for removing the case from New York state court, Plaintiff's
motion for costs is GRANTED in the amount of $294.66.
The Clerk of the Court is respectively directed to
terminate the motion docketed at ECF No. 29.
New York, New York
United States District Judge
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