Summary
In Bradley v. Dodge, 45 How. Pr. 57, it was held that where a person called at the office of a physician, and in the absence of the latter leaves his business card, with "Call on Mrs. D____, at No. 769 Broadway" written upon it, with a clerk in the office, requesting him to hand it to the physician and to tell him to "come as soon as possible," such person becomes liable to pay the physician's bill in attending upon Mrs. D. in pursuance of the message.
Summary of this case from Foster v. MeeksOpinion
Case No. 00-4065-DES
August 1, 2000
MEMORANDUM AND ORDER
This matter is before the court on plaintiffs' Motion to Remand (Doc. 10) and defendant's Motion for Assessment of Costs, Expenses and Fees (Doc. 15). For the following reasons, plaintiffs' motion is granted and defendant's motion is denied.
I. MOTION TO REMAND
On April 7, 2000, plaintiff filed suit against defendant in the District Court of Shawnee County, Kansas, requesting relief under the Kansas Consumer Protection Act ("KCPA"). The petition referred several times to the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 and 1602(f) and Regulation Z 226.2(a)(17). Although the TILA was not specifically identified in the prayer for relief, one sentence of the prayer for relief clearly implied the plaintiff sought relief under the TILA: "Award Plaintiff costs and reasonable attorneys fees in accordance with the Act and the KCPA."
On April 28, 2000, defendant filed a Notice of Removal with this court claiming federal subject matter jurisdiction over the TILA claim. On May 24, 2000, plaintiff moved to remand the case to state court arguing the complaint did not raise a TILA claim. At the same time, plaintiff moved to amend the petition to withdraw all references to the TILA claim. The court granted plaintiff's motion to amend the complaint. Plaintiff later made an oral motion to dismiss the TILA claim with prejudice. The court granted plaintiff's motion and dismissed the TILA claim with prejudice.
Plaintiff argues the action should be remanded to state court under 28 U.S.C. § 1441(a). Under section 1441(a), a civil action is removable from state to federal court only if the plaintiff could have brought the action in federal court originally. The only basis for federal jurisdiction in this case is the federal question presented by the TILA. Plaintiff argues the action could not have been brought in federal court because it did not raise a TILA claim. However, plaintiff's subsequent actions of amending the complaint to withdraw references to the TILA claim and moving the court to dismiss the TILA claim with prejudice are inconsistent with his position that a TILA claim was not raised. The court finds the original complaint stated claims under both the TILA and KCPA. Because the TILA claim was present in the original complaint, removal was proper.
The court has discretion to remand independent, non-removable, state law claims under 28 U.S.C. § 1441(c). See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 354 (1988) (holding that where plaintiff amended the complaint after removal to delete federal law claims, the district court had discretion to remand remaining state law claims). The court has reviewed the amended complaint and finds the Kansas court is the more appropriate forum to decide plaintiff's claims arising under the Kansas Consumer Protection Act. Therefore, plaintiff's motion to remand is granted.
28 U.S.C. § 1441(c) provides, "whenever a separate and independent claim or cause of action within [federal] jurisdiction . . . is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion may remand all matters in which State law predominates."
II. MOTION FOR COSTS AND ATTORNEY FEES
Since the court has determined that this action will be remanded to state court, the court must consider defendant's request for attorney fees and costs. Defendant seeks costs and attorneys fees under 28 U.S.C. § 1447(c), which provides "[a]n order remanding the case may require payment of just costs and any actual attorney fees, incurred as a result of the removal." This statute is primarily designed to allow a plaintiff to recoup the expenses of seeking a remand when a defendant improperly removes a case.
"Where removal was proper but plaintiffs take action subsequent to removal to precipitate remand, the expense of opposing remand would not have incurred absent the removal. That expense, however, is proximately caused by the plaintiffs' subsequent action rather than by the removal itself." Baddie v. Berkeley Farms, Inc., 64 F.3d 487, 490 (9th Cir. 1995). Because the expenses defendant seeks to recoup are not the result of removal but plaintiff's subsequent action, the expenses are not authorized under section 1447(c). Id. Therefore, defendant's motion for costs and expenses is denied.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff's Motion to Remand (Doc. 10) is granted. Defendant's Motion for Assessment of Costs, Expenses and Fees (Doc. 15) is denied. All other pending motions are denied as moot.
Dated this ____ day of ____, at Topeka, Kansas.