Kendell et al v. Pamesa et al

Filing 18

OPINION AND ORDER granting 5 Motion to Remand to State Court. Signed by Magistrate Judge Terence P. Kemp on 2/11/2016. (agm) Modified text on 2/11/2016 (agm).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kellee Kendell, et al.,

:

Plaintiffs,

:

v.

:

Cesar V. Pamesa, RN, et al.,

Case No.

2:15-cv-3107

:
Magistrate Judge Kemp

Defendants.

:
OPINION AND ORDER

This case, which has been referred to the Magistrate Judge
by consent of the parties and pursuant to 28 U.S.C. §636(c), is
before the Court to consider Plaintiffs’ motion to remand.
Defendants do not oppose the motion, conceding that they
improperly removed the case, but they argue that Plaintiffs are
not entitled to attorneys’ fees incurred in moving to remand.
For the following reasons, the Court disagrees, and will both
grant the motion to remand and award attorneys’ fees to the
Plaintiffs.
I.

Background

The Court need recite only a brief bit of procedural
background.

Plaintiffs are, according to the complaint, both

Georgia residents.

The complaint identifies the two defendants

as an Ohio limited liability company and an Ohio registered
nurse.

Plaintiffs pleaded three state law tort claims.

The

notice of removal admits the Ohio citizenship of both defendants.
That notice asserts that removal is proper because the parties
are of diverse citizenship and the amount in controversy exceeds
$75,000.00.

Removal was made pursuant to 28 U.S.C. §1441.

Notice of Removal, Doc. 1, ¶s 8-10.
The notice of removal was filed on December 23, 2015.
Plaintiffs moved to remand on January 20, 2016.

As noted,

Defendants do not argue that removal was proper.

They do,

See

however, note that there is a related case pending in this Court,
and assert that “[g]iven the concurrent litigation involving
nearly identical parties, the complete diversity of the parties,
and Plaintiffs' history with Phoenix Home Health Care Resources,
removal was ‘objectively reasonable.’” Defendants’ Memorandum in
Opposition, Doc. 11, at 3.
II.

Analysis

Defendants removed this case under 28 U.S.C. §1441.

That

statute says, as it relates to this case, the following:
(b) Removal based on diversity of citizenship.--(1) In
determining whether a civil action is removable on the
basis of the jurisdiction under section 1332(a) of this
title, the citizenship of defendants sued under
fictitious names shall be disregarded.
(2) A civil action otherwise removable solely on the
basis of the jurisdiction under section 1332(a) of this
title 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.
Not much discussion is necessary to make the point that this case
was removed contrary to the prohibition found in §1441(b)(2).
That is why remand is appropriate.
The only other question raised by the motion to remand is
whether Plaintiffs can recover their attorneys’ fees for having
had to move to remand.

28 U.S.C. §1447(c) addresses this issue,

stating 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.”

Defendants agree that the

standard to be applied to a request for fees under §1447(c) is
objective reasonableness.

See Doc. 11, at 3, citing Martin v.

Franklin Capital Corp., 546 U.S. 132, (2005)(“Absent unusual
circumstances, courts may award attorney's fees under §1447(c)
only where the removing party lacked an objectively reasonable
basis for seeking removal. Conversely, when an objectively
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reasonable basis exists, fees should be denied”).

The parties’

disagreement is limited to whether Defendants had an objectively
reasonable basis for seeking removal.
Plaintiffs rely heavily on the Court of Appeals’ decision
in Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910 (2007),
arguing that the facts of that case and this one are
indistinguishable.

Defendants characterize the language in the

case which supports an award of attorneys’ fees as dictum.
Consequently, some analysis of the case is necessary.
Smith was a mortgage foreclosure action originally filed in
the Court of Common Pleas of Hamilton County, Ohio.

It was

removed based on both federal question and diversity grounds, and
remanded after this Court, per Judge Dlott (adopting a Report and
Recommendation from Magistrate Judge Hogan), found that the case
did not present a federal question and that removal on diversity
grounds was barred by §1441(b)(2) because the defendants were
Ohio citizens.

See Case No. 1:06-cv-38, Docs. 13 and 31.

Magistrate Judge Hogan also recommended an award of fees, finding
that there was no arguable basis for the removal.

Defendants did

not object to remand, but did object to an award of fees, but the
Court overruled that objection, and Defendants appealed.
According to the Court of Appeals, the sole question
presented by the appeal was whether “the district court abused
its discretion to award fees and costs to plaintiff.”
F.3d at 912.

Smith, 507

The court rejected the defendants’ argument,

concluding that “[t]here was no objectively reasonable basis to
conclude that diversity jurisdiction was appropriate because the
Smiths were citizens of the state where the state court action
was filed.”

Id. at 913.

It also agreed that the complaint,

which pleaded only state law claims, could not reasonably have
been construed to support federal question jurisdiction.
However, the court also noted that the only arguments presented
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by the defendants on appeal related to federal question
jurisdiction, and they did not contend that removal was
objectively reasonable (even if erroneous) under §1441(b)(2).

It

is this statement which Defendants rely on in asserting that
Smith does not directly control the outcome of this case.
In the end, it does not matter.

Smith’s observation that a

removal which occurs in direct contravention of §1441(b)(2) is
not objectively reasonable is persuasive.

Attorneys’ fees are

routinely awarded by District Courts in this circuit when removal
occurs in violation of §1441(b)(2).

See, e.g., LeFevers v. Wayne

Disposal, Inc., 2008 WL 5188808 (E.D. Mich. Dec. 10, 2008);
Saunders v. Justice, 2009 WL 279115 (E.D. Ky. Feb. 4, 2009); 3W
International, Inc. v. Scottdel, Inc., 722 F.Supp. 2d 934 (N.D.
Ohio 2010); Federal Nat’l Mortgage Ass’s v. Jaa, 2014 WL 1910898
(W.D. Tenn. May 13, 2014).
Defendants make much of the fact that there is related
litigation here and that it would make sense to have a single
judge decide the issues in both cases.

They do not cite any

cases, however, holding that the desire to consolidate related
cases can reasonably support an otherwise improper removal, and
the Court cannot accept that rationale.

There is simply no

“judicial economy” exception to the statute, and §1441(b)(2)’s
language is clear enough to alert a reasonable reader that such
exceptions cannot be judicially grafted onto it.

Cf. Staggs v.

United States, 2013 WL 1442311, *1 (S.D. Ind. April 9, 2013)(the
removing party “has not cited a single judicial decision in which
a federal court has ordered, pursuant to 28 U.S.C. §1367, that a
case properly pending in state court be removed and consolidated
with a federal court action, and we doubt that he could”).
Consequently, Plaintiffs are entitled to an award of reasonable
attorneys’ fees under §1447(c).
III.

Order
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For the reasons set forth above, Plaintiffs’ motion to
remand this case to the Court of Common Pleas of Franklin County,
Ohio (Doc. 5) is granted.

Plaintiffs are also entitled to

reasonable attorneys’ fees.

If they wish to pursue such an

award, and if the parties are unable to agree on an amount,
Plaintiffs shall file a properly-supported fee application within
fourteen days of the date of this order.

/s/ Terence P. Kemp
United States Magistrate Judge

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