Zawatsky et al v. Jeddo Stars Athletic Association, Inc. et al

Filing 16

MEMORANDUM (Order to follow as separate docket entry) re 2 Motion to Remand. Signed by Honorable A. Richard Caputo on 10/23/17. (dw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH ZAWATSKY and JOHN TATE,
NO. 3:17-CV-0621

Plaintiffs,

(JUDGE CAPUTO)

v.
JEDDO STARS ATHLETIC ASSOCIATION
and BERNARD GABRIELLE,
Defendants.

MEMORANDUM
Presently before me is the Motion to Strike Untimely and Defective Notice of Removal, or,
in the Alternative, Motion to Remand (Doc. 2) filed by Plaintiffs Joseph Zawatsky (“Zawatsky”) and
John Tate (“Tate”) (collectively, “Plaintiffs”). Defendant Bernard Gabrielle (“Gabrielle”) previously
removed the action to this Court on federal question jurisdiction grounds. Upon motion by Plaintiffs,
the Honorable Malachy E. Mannion remanded the matter to state court, finding that the face of
Plaintiffs’ properly pleaded complaint did not assert a federal question. After the action was
remanded, Tate was deposed, at which time he testified that he believed his constitutional rights were
violated and that he was pursuing a First Amendment claim in this litigation. On this testimony,
Defendant Jeddo Stars Athletic Association (“Jeddo Stars”) removed the action. Jeddo Stars argues
that the deposition testimony constitutes “other paper” for purposes of 28 U.S.C. § 1446(b)(3) which
“triggered anew” its ability to remove this case based on a purported federal question. The action will
be remanded to state court because under the well-pleaded complaint rule, federal question
jurisdiction has not been established since the face of Plaintiff’s Fourth Amended Complaint, which
was also the operative complaint when the matter was before Judge Mannion, is devoid of a federal
question and Tate’s deposition testimony did not clarify any claims set forth therein. Further, because
it was objectively unreasonable for Jeddo Stars to remove the action under the circumstances, it will
be required, upon proper submission by Plaintiffs, to pay just costs and actual expenses incurred by
Plaintiffs as a result of the removal.

I. Background
Plaintiffs commenced this action on January 15, 2016 in the Luzerne County Court of
Common Pleas against Jeddo Stars seeking damages for their alleged wrongful “ouster” from
membership in Jeddo Stars. (See Doc. 1-3, generally). On March 14, 2016, plaintiffs filed an
amended complaint against Jeddo Stars. (See Doc. 1-4, generally). Plaintiffs subsequently filed a
second amended complaint against Jeddo Stars. (See Doc. 1-5, generally). On March 19, 2016,
Plaintiff filed a third amended complaint against Jeddo Stars. (See Doc. 1-6, generally). On June 15,
2016, Plaintiff filed the Fourth Amended Complaint against Jeddo Stars and Gabrielle. (See Doc. 1-7,
generally).
Gabrielle subsequently removed the action to this Court, arguing that jurisdiction over the case
was proper pursuant to 28 U.S.C. § 1331 since Plaintiffs alleged a claim for “Whistleblower
Act/Violation of Free Speech.” See Zawatsky v. Jeddo Stars Athletic Assoc., No. 16-1725, 2016 WL
4990493, at *4 (M.D. Pa. Sept. 19, 2016). Plaintiffs moved to remand the action, contending that the
Fourth Amended Complaint did not raise a constitutional cause of action and no state actors were
named as defendants as required to state a claim under 42 U.S.C. § 1983. See id. at *1. Plaintiffs’
motion was granted, and the action was remanded to the Luzerne County Court of Common Pleas.
See id. In remanding the case, Judge Mannion explained:
The court finds that plaintiffs' stated complaint does not assert
a federal constitutional violation against the two defendants. In fact,
there is no mention whatsoever in this pleading of any alleged
violations of plaintiffs' federal or U.S. constitutional rights. Nor does
this pleading indicate that it was filed as a federal civil rights action
pursuant to 42 U.S.C. § 1983. Indeed, the first three pleadings
plaintiffs filed contained only state law claims, including Count I
“Whistleblower Act/Violation of Free Speech” claim, and Jeddo did not
seek to remove the case. This fact also indicates that plaintiffs intended
to keep their claims under state law when they filed their fourth
amended complaint and merely added Gabrielle as a defendant.
Count I does not arise under federal law since “some
substantial, disputed question of federal law is [not] a necessary
element of [the Whistleblower Law claim]”, and this claim is not
“really one of federal law.” Thus, the court finds that there is no basis
for the fourth amended complaint to be removed to this federal court
and this court lacks original jurisdiction over this case. Plaintiffs'
counsel is a frequent litigator in federal court, and undoubtedly if she
wanted to include federal constitutional claims in the complaint under
§ 1983, she would have done so. Rather, the pleading was specifically
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drafted to assert only state law claims. Thus, the court finds under the
well-pleaded complaint rule that federal question jurisdiction has not
been established in the present case since the face of plaintiffs' properly
pleaded complaint does not assert a federal question. The court finds
that under 28 U.S.C. § 1447(c) remand of this case back to Luzerne
County Court is authorized since subject matter jurisdiction over
plaintiffs' state law claims is lacking.
Id. at *5 (alterations in original) (internal citation omitted).
After the action was remanded to state court, the parties engaged in discovery. (See, e.g., Doc.
1-8, generally). Tate was deposed, during which he testified that he believed his First Amendment
rights were violated. (See id. at 86:7-9). Tate further answered “yes” in response to the following
question: “in your complaint, you allege that your First Amendment U.S. Constitutional rights were
violated, correct?” (Id. at 148:11-14).
On the basis of that testimony, Jeddo Stars removed the action to this Court on April 7, 2017,
arguing that “the case is removable due to the violation of [Tate’s] federal right to free speech claim,
which establishes a federal cause of action and therefore federal jurisdiction.” (Doc. 1, ¶ 29).
Plaintiffs timely filed their motion to strike notice of removal or, in the alternative, to remand the
action to state court. (See Doc. 2, generally). Plaintiffs argue, inter alia, that “there is no federal
jurisdiction over the Fourth Amended Complaint because Plaintiffs have not asserted a federal claim
since to have a claim [for] First Amendment Retaliation Defendants must be state actors, which Jeddo
Stars is not.” (Doc. 3, 5-7). In opposition, Jeddo Stars asserts that the “question as to whether this
Honorable Court’s ‘federal question’ jurisdiction has been implicated is apparent based on the
deposition testimony of Plaintiff Tate, not the four corners of the Complaint, as Plaintiffs contend.”
(Doc. 9, 6). Plaintiffs in reply dispute Jeddo Star’s characterization of the law, emphasizing that the
face of the Fourth Amended Complaint governs whether federal question jurisdiction exists over the
action. (See Doc. 15, 3-4). Plaintiffs also request reimbursement of costs incurred in resisting the
second removal of this action. (See Doc. 3, 7; Doc. 15, 4-5). Plaintiffs’ motion to strike notice of
removal or, in the alternative, to remand to state court is fully briefed and ripe for disposition.
II. Discussion
Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be removed by the defendant or the
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defendants, to the district court of the United States for the district and division embracing the place
where such action is pending.” 28 U.S.C. § 1441(a). The procedure for removal of a civil action from
state court is governed by 28 U.S.C. § 1446. Subsection (b) of § 1446 provides, in part:
if the case stated by the initial pleading is not removable, a notice of
removal may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that
the case is one which is or has become removable.
28 U.S.C. § 1446(b)(3). “[T]he party asserting federal jurisdiction in a removal case bears the burden
of showing, at all stages of the litigation, that the case is properly before the federal court.” Frederico
v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007) (citation omitted). Removal statutes are to be
strictly construed against removal, and all doubts are resolved in favor of remand. See A.S. ex rel.
Miller v. SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir. 2014) (citation omitted).
It is undisputed that diversity jurisdiction is lacking in this case. (See Doc. 1, generally; Doc.
4, generally; Doc. 9, generally; Doc. 15, generally). Nor is it contested that Judge Mannion
previously determined that the operative, well-pleaded complaint at issue here, Plaintiffs’ Fourth
Amended Complaint, does not assert a federal question on its face. See Zawatsky, 2016 WL 4990493,
at *5; (see also Doc. 9, 2-3). Rather, Jeddo Stars takes the position that federal question jurisdiction
exists because, after Judge Mannion remanded this action to state court, Tate testified that he is
advancing a constitutional claim based on the violation of his First Amendment rights. (See Doc. 1,
¶ 29; Doc. 9, 3). According to Jeddo Stars, while the Third Circuit has not yet ruled on whether the
reference to “other paper” in § 1446(b)(3) includes deposition testimony, other courts have concluded
that “other paper” encompasses discovery responses, such as deposition transcripts and answers to
interrogatories. (See Doc. 1, ¶¶ 26-27; Doc. 9, 4-5). Jeddo Stars thus contends that Tate’s deposition
“testimony makes it unequivocally clear and certain that the case is removable due to the violation
of his federal right to free speech claim, which establishes a federal cause of action and therefore
federal jurisdiction.” (Doc. 1, ¶ 29).
“[A] court determines if there is federal question jurisdiction in removal cases by use of the
well-pleaded complaint rule, which provides that there is federal question jurisdiction only when the
face of a properly pleaded complaint asserts a federal question.” Deutsche Bank Nat’l Trust Co. v.
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Harding, 655 F. App’x 113, 114 (3d Cir. 2016) (citing Caterpillar Inc. v. Williams, 482 U.S. 386,
392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987)).
Plaintiffs’ motion to remand will be granted. As stated, the parties are not diverse, and the
Fourth Amended Complaint, on its face, does not assert a federal question. See Zawatsky, 2016 WL
4990493, at *3-5. Further, Jeddo Stars’ contention notwithstanding, Tate’s deposition testimony does
not establish federal question jurisdiction over this action. This is true irrespective of whether “other
paper” in § 1446(b)(3) includes deposition testimony. See, e.g., Papp v. Fore-Kast Sales Co., Inc.,
842 F.3d 805, 816 n.10 (3d Cir. 2016) (noting that the plaintiff conceded that answers to deposition
questions can constitute “other paper” for purposes of triggering the time for removal under §
1446(b)); Nicole v. Sch. Dist. of Phila., No. 16-1457, 2016 WL 3456924, at *3 (E.D. Pa. June 20,
2016) (“The Third Circuit has not defined ‘other paper’. . .”).
“In most cases, when courts look to ‘other paper’ to ascertain removability, courts are
clarifying that diversity jurisdiction has been established. Typically, a plaintiff will have brought a
state law claim against a diverse party but will not have alleged the amount in controversy in the
complaint; a later document will then establish a sufficient amount in controversy, creating federal
diversity jurisdiction.” Eggert v. Britton, 223 F. App’x 394, 397 (5th Cir. 2007); see also Branson
v. Mestre, No. 17-207, 2017 WL 2615749, at *3 (D. Del. June 16, 2017); Nicole, 2016 WL 3456924,
at *3-4. “Only in rare circumstances have courts used the ‘other paper’ doctrine to find federal
question jurisdiction.” Nicole, 2016 WL 3456924, at *3; see also Branson, 2017 WL 2615749, at
*3 (“courts have rarely relied on the ‘other paper’ language of § 1446(b)(3) to determine if subject
matter jurisdiction exists on the basis of a federal question.”); accord Dougherty v. Cerra, 987 F.
Supp. 2d 721, 729 (S.D. W. Va. 2013) (“the ‘other paper’ doctrine has little application in federal
question cases.”). Such circumstances include “when an ambiguous existing claim is clarified by later
papers,” Nicole, 2016 WL 3456924, at *3, or when “other paper” clarifies “that a plaintiff’s state law
claim is one that would be preempted by federal law.” Eggert, 223 F. App’x at 397.
[A]llegations which are said to form the basis of a federal claim which,
in turn, forms the basis for removal, do not appear anywhere in the
pleadings but have been injected in the case solely in deposition
testimony, the putative federal claim simply does not exist as a
cognizable claim in the case. In other words, deposition testimony that
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does not tend merely to clarify the federal nature of an existing claim
but which relates to a putative claim which has not been pled, is not
“other paper” from which it may be ascertained that the case is or has
become removable.
Id. at 397-98 (citation and quotation omitted).
In the matter sub judice, Tate’s testimony regarding his belief that Jeddo Stars violated his
constitutional rights and that his operative pleading set forth a First Amendment claim fails to
establish the existence of federal question jurisdiction. As previously explained by Judge Mannion,
the Fourth Amended Complaint does not assert a federal question. See Zawatsky, 2016 WL 4990493,
at *5. Thus, Tate’s testimony relates merely to a putative claim that has not been pled in the Fourth
Amended Complaint. See Eggert, 223 F. App’x at 397-98. Without more, Tate’s testimony does not
alter the Fourth Amended Complaint or serve to clarify the existence of any federal cause of action
in this litigation. See, e.g., Eggert, 223 F. App’x at 398 (the plaintiff’s response to interrogatories did
not relate to the complaint and therefore removal was inconsistent with the well-pleaded complaint
rule); Hogan v. Williams, No. 17-3, 2017 WL 710414, at *3 (E.D. La. Feb. 22, 2017) (non-responses
to the defendants’ requests for admission did not establish federal question jurisdiction); Breiding v.
Wilson Appraisal Servs., Inc., No. 14-124, 2016 WL 1175257, at *4 (N.D. W. Va. Mar. 23, 2016)
(“To find that federal question jurisdiction exists based on the mention of federal law in an answer
to an interrogatory does not appear proper under the law . . . .”); Simmons v. Mississippi Farm Bureau
Cas. Ins. Co., No. 14-154, 2015 WL 5534098, at *3 (N.D. Miss. Sept. 17, 2015) (“The test
alterations, draft deposition questions, and deposition statements have not altered the complaint in
such a way to make unequivocally clear that plaintiffs are attempting to recover based on federal
question jurisdiction.”); Miner v. Stevens Transp., Inc., No. 15-0967, 2017 WL 5472896, at *1 (N.D.
Tex. Sept. 17, 2015) (“Plaintiff's deposition designations, specifically the attorney's questions, do not
serve to clarify that the underlying nature of Plaintiff's claims arise under ERISA, and thus do not
constitute “other paper” under 28 U.S.C. § 1446(b)(3).”); Blanding v. Bradley, No. 14-337, 2014 WL
1514675, at *4 (D. Md. Apr. 15, 2014) (“the mere mention of the United States Constitution, without
more, in Mr. Blanding’s interrogatory response, cannot serve to clarify any existing federal claim.”);
City of Dallas v. Explorer Pipeline Co., No. 2-1465, 2003 WL 193444, at *4 (N.D. Tex. Jan. 27,
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2003) (“the Court finds that Plaintiff's interrogatory responses are not sufficient to impart federal
jurisdiction.”); accord Williams v. Hilarides, No. 12-294, 2012 WL 2339335, at *2 (E.D. Cal. June
19, 2012) (“In cases such as this one, involving federal question jurisdiction, discovery responses do
not constitute ‘other papers’ which trigger removal jurisdiction. To hold otherwise would be to invite
defendants to remove at any whiff of a claim, and deprive plaintiffs of their role as masters of their
complaint.”).
In support of removal of this action, Jeddo Stars cites Efford v. Milam, 368 F. Supp. 2d 380,
386 (E.D. Pa. 2005). Efford, though, is readily distinguishable from the instant matter. There, the
plaintiffs filed a praecipe for writ of summons in state court which “stated nothing regarding the
factual or legal basis of the suit.” Id. at 381-82. After the defendants were served with the writ and
inquired about the basis of the lawsuit, the plaintiffs’ counsel responded to the defendants with a letter
indicating, inter alia, that the facts supported a civil RICO claim. See id. at 382. The plaintiffs
subsequently filed their complaint, which included a civil RICO claim, and, within thirty (30) days
of the filing of the complaint, the defendants removed the action to federal court on the basis of
federal question jurisdiction. See id. The plaintiffs filed a motion to remand on the basis that the
action was not timely removed within thirty (30) days of the letter to the defendants indicating that
the facts provided for a civil RICO cause of action. See id.
In construing § 1446(b), the district court found that the letter from plaintiffs’ counsel
indicating that they intended to bring a federal claim constituted “other paper” under the statute. See
id. at 385. Specifically, the district court noted that the letter: (1) stated the facts supported a federal
cause of action; (2) described what needed to be established to make out the federal claim; and (3)
identified facts that the plaintiffs would use to demonstrate that claim. See id. at 386. Given these
facts, the Efford court concluded that the letter made it “‘unequivocally clear and certain’ to
defendants that the case was removable[,] . . . especially when the defendants' counsel was
anticipating correspondence from plaintiffs' counsel regarding the basis of the suit, and when it
appears from the face of the letter that the yet-to-be-filed complaint had already been written.” Id.
As such, finding the defendants failed to timely file the notice of removal, the district court granted

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the plaintiffs’ motion to remand the action to state court. See id.1
Efford is inapposite to the matter sub judice. For one, given Judge Mannion’s prior
determination that the Fourth Amended Complaint contains only state law causes of action, see
Zawatsky, 2017 WL 4990493, at *5, it cannot be said that Tate’s deposition testimony clarified an
existing federal claim. Second, unlike the pre-complaint letter from counsel in Efford indicating that
the plaintiffs would be pursuing a federal cause of action, the above cited authority makes clear that
the mere reference to federal law in response to a question during discovery is typically insufficient
to establish federal question jurisdiction. Further, in contrast to Efford, Plaintiffs’ counsel, both here
and when the matter was before Judge Mannion, repeatedly reiterated that Plaintiffs are not pursuing
a federal cause of action. (See Doc. 4, 5-7; Doc. 15, 2-4); see also Brief in Support of Plaintiffs’
Motion to Remand, Zawatsky v. Jeddo Stars Athletic Assoc., No. 16-1725, (M.D. Pa. August 22,
2016), ECF. No. 6. To that point, in view of the allegations in the Fourth Amended Complaint and
the lack of any averment that Defendants acted under color of state law, there appears to be no support
for Jeddo Star’s claim that Plaintiffs are proceeding with a 42 U.S.C. § 1983 cause of action here.
Significantly, in its opposition to Plaintiffs’ motion to remand, Jeddo Stars did not address the
apparent lack of state action in this case. (See Doc. 9, generally).
Based on the foregoing, because Plaintiffs are not pursuing a federal cause of action in this
litigation, Jeddo Stars’ removal of this action pursuant to § 1446(b)(3) was improper. The matter will
therefore be remanded to the Court of Common Pleas of Luzerne County. And, because Jeddo Stars
lacked an objectively reasonable basis for removing this action, I will grant Plaintiffs’ requests for
payment of just costs and actual expenses they incurred as a result of the improper removal.
Section 1447(c) states, in relevant part, 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). “When removal of an action is improper, the plaintiff may be

1

Subsequent to Efford, the Third Circuit held that a writ of summons alone is not
an “initial pleading” triggering § 1446(b)’s removal period. See Sikirica v.
Nationwide Ins. Co., 416 F.3d 214, 223 (3d Cir. 2005) (complaint, not writ of
summons, was the “initial pleading”).
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entitled to recover attorney’s fees, costs, and expenses associated with opposing removal, regardless
of whether the action was removed in bad faith.” Branson, 2017 WL 2615749, at *5 (citing Mints
v. Educ. Testing Serv., 99 F.3d 1253, 1259 (3d Cir. 1996)). “[A]bsent unusual circumstances, courts
may award attorney's fees under § 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126
S.Ct. 704, 163 L.Ed.2d 547 (2005). “A district court has broad discretion and may be flexible in
determining whether to require the payment of fees under section 1447(c).” Mints, 99 F,3d at 1260.
Jeddo Star’s removal of this action was objectively unreasonable. First, in previously
remanding this case, Judge Mannion determined that “there is no basis for the fourth amended
complaint to be removed to this federal court” as it “was specifically drafted to assert only state law
claims.” Zawatsky, 2016 WL 4990493, at *5. Tate’s deposition testimony did not provide Jeddo
Stars with an objectively reasonable basis to remove the action because “other paper must clarify the
federal nature of an existing claim, and not relate to a putative claim that has not yet been plead.”
Blanding, 2014 WL 1514675, at *3 (emphasis in original) (citations omitted). In short, because the
Fourth Amended Complaint had already been judicially determined to raise only state law claims,
there was simply no federal cause of action that Tate’s deposition testimony could have clarified.
Jeddo Stars, therefore, had no reason to remove this action based on the “other paper” doctrine.
Second, as cited herein, ample authority demonstrates that the “other paper” doctrine is used
to find the existence of federal question jurisdiction only in rare cases. With little effort and minimal
research, Jeddo Stars should have identified that the matter sub judice did not present one of those
cases. In addition, the authority cited by Jeddo Stars as support for the propriety of the removal of
this action is readily distinguishable from the facts of this case. For this reason as well, Jeddo Stars
lacked an objectively reasonable justification to remove this action. An award of costs and reasonable
expenses, including attorney fees, incurred by Plaintiffs as a result of the improper removal pursuant
to § 1447(c) is warranted under the circumstances. See, e.g., Branson, 2017 WL 2615749, at * 6
(granting the plaintiffs’ request for fees under § 1447(c)); Todesco v. Wainright, No. 16-16736, 2017
WL 1375286, at *8 (E.D. La. Apr. 17, 2017) (same); Hogan, 2017 WL 710414, at *3 (“with proper
research, defendants should have known that there was no federal question jurisdiction, and an award
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of attorneys’ fees and costs is just under § 1447(c).”); Nicole, 2016 WL 3456924, at *5 (granting the
plaintiff’s motion for fees and costs pursuant to § 1447(c)); Miner, 2015 WL 5472896, at *2
(awarding costs and fees where the “Defendant lacked objectively reasonable grounds for believing
that Plaintiff's deposition designations clarified that Plaintiff's claims arise under ERISA.”).
Within fourteen (14) days from the date of entry of the accompanying order, Plaintiffs shall
submit a brief and supporting documentation, including an accounting of attorneys’ fees and costs,
limited to expenses they incurred as the result of the instant removal.2 In so doing, Plaintiffs’ counsel
shall identify the nature of her representation of Plaintiffs in this matter, i.e., whether Plaintiffs are
being represented on an hourly or contingency fee basis. To the extent that representation in this
matter is on an hourly basis, Plaintiffs’ submission shall set forth counsel’s agreed upon hourly rate
and the actual amount billed to Plaintiffs in resisting removal. The billing entries shall, of course, be
specific enough to allow for sufficient review of the requested fees. See, e.g., Souryavong v.
Lackawanna Cnty., 159 F. Supp. 3d 514, 533-35 (M.D. Pa. 2016), aff’d , 872 F.3d 122 (3d Cir. 2017);
see also Clemens v. New York Mut. Fire Ins. Co., - - - F. Supp. 3d - - -, 2017 WL 3724236, at *10
(billing entries must include sufficient detail to allow the court to determine whether the time billed
is reasonable). Failure to provide sufficiently detailed billing entries may result in the reduction or
outright denial of the requested fee. See Souryavong, 159 F. Supp. 3d at 534 (deducting time from
billing entries based on lack of specificity); see also Young v. Smith, - - - F.3d - - -, 2017 WL
3892057, at *31 (M.D. Pa. Sept. 6, 2017) (denying fee petition in full because entries were “vague
and ambiguous and lack[ed] the requisite detail to substantiate the propriety” of the billed time). Upon
receipt of Plaintiffs’ submission and any opposition by Jeddo Stars thereto, a hearing will be held to
determine the reasonableness of Plaintiffs’ requested costs and expenses. Accord Huffman v. Saul
Holdings Ltd. P’ship, 262 F.3d 1128, 1135 (10th Cir. 2001) (“the statute's limit on actual fees to those
‘incurred as a result of removal’ requires the district court to conduct some sort of reasonableness

2

“By contrast, ordinary litigation expenses that would have been incurred had the
action remained in state court are not recoverable because such expenses are not
incurred ‘as a result of the removal.’” Avitts v. Amoco Prod. Co., 111 F.3d 30, 32
(5th Cir. 1997)
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inquiry. . . . We have concluded that the phrase ‘incurred as a result of removal’ informs and narrows
the meaning of ‘actual expenses, including attorney fees.’ . . . To be compensable, their fees must be
actually ‘incurred,’ that is, they must reflect efforts expended to resist removal. . . . [U]nreasonably
high fees are not ‘incurred’ as a result of removal; rather, excessive fee requests flow from, and
accumulate by means of, improper billing practices, and will not be recoverable under § 1447(c).”).
III. Conclusion
For the above stated reasons, the action will be remanded to the Court of Common Pleas for
Luzerne County. Jurisdiction will be retained over the case solely for determining the amount and
to order payment of Plaintiffs’ just costs and actual expenses incurred as result of the removal of this
action. Plaintiffs will be given fourteen (14) days from the date of entry of the accompanying order
to submit appropriate and sufficiently detailed documentation regarding the costs and expenses
incurred by Plaintiffs in resisting removal. Jeddo Star’s opposition to Plaintiffs’ request for costs and
expenses, if any, shall be filed within fourteen (14) days from receipt of Plaintiffs’ submission. No
reply brief will be permitted. A hearing on Plaintiffs’ request for costs and expenses will be held on
Tuesday, December 12th, 2017 at 10:00 a.m., Courtroom #3, Max Rosenn U.S. Courthouse, 197 South
Main Street, Wilkes-Barre, Pennsylvania 18701.
An appropriate order follows.

October 23, 2017
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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