Opinion
Case No. 1:01-CV-252
April 26, 2001
OPINION
This matter is before the Court on Plaintiff's Motion to Remand pursuant to 28 U.S.C. § 1447(c) and (d). This is Plaintiff's second Motion to Remand, the Court having granted Plaintiff's first Motion to Remand on April 13, 2001.
Defendant originally removed this case from the Kent County Circuit Court on April 6, 2001. The Court, however, remanded the case to the Kent County Circuit Court because Defendant did not satisfy his burden of pleading the amount in controversy. Defendant has again removed this matter.
Defendant claims he is entitled to remove this case again because new facts have developed. Defendant relies on O'Bryan v. Chandler, 496 F.2d 403,410 (10th Cir. 1974), which stated that subsequent developments may allow a party to file a timely second petition for removal. See also Benson v. SI Handling Sys., Inc., 188 F.3d 780, 783 (7th Cir. 1999). Defendant's reliance on these cases is misplaced.
The O'Bryan Court also stated that an initial remand order is conclusive "as to the matters that were adjudged or could have been presented at that time as basis for removal."
O'Bryan, 496 F.2d at 410. The initial remand Order in this case adjudged whether Defendant properly removed the case and declared he had not. Furthermore, Defendant presents the same allegations in this second removal petition as he presented in his Brief in Opposition to Plaintiff's Motion to Remand, which addressed Defendant's first removal petition. As was stated in this Court's Opinion: "The fact that Defendant attempts, in his Brief in Opposition to Plaintiff's Motion to Remand, to show the amount in controversy does not change the relevant case law. Defendant should have made these factual allegations in his Notice of Removal." Nat'l Nail Corp. v. Moore, 2001 WL 392239 at *3 (W.D.Mich. April 13, 2001). Therefore, this Court has already considered these factual allegations and has ruled that Defendant simply did not follow the correct procedures.
Defendants reliance on Benson under the guise that new developments have occurred is similarly misplaced. Benson is not from the Sixth Circuit and thus, does not present binding authority. Furthermore, Benson is factually distinguishable from the instant case. In Benson, the plaintiffs, after the District Court's remand, revealed in discovery that they claimed more than $75,000 in damages. Benson, 188 F.3d at 781. When the defendant attempted to remove the case again, the same District Court denied removal, and the defendant petitioned the Seventh Circuit for a writ of mandamus. Id. at 781-82. The Seventh Circuit allowed the second removal because the plaintiff disclosed that the damages exceeded the jurisdictional amount. Id. at 783. In the instant case, Plaintiff has not disclosed or "`fessed up" to anything. See id. Defendant claims that Plaintiff confessed that the amount in controversy was more than $75,000 when it does not amount to any confession regarding the amount in controversy. Defendant's second Removal Petition is actually a request that this Court reconsider its original Opinion and Order remanding this issue disguised as a removal petition based on subsequent developments.
The Benson Court also held that this event triggered a new 30-day window for removal under 28 U.S.C. § 1446(b). Benson, 188 F.3d at 783.
This Court originally remanded this case pursuant to 28 U.S.C. § 1447(c). Section 1447(d) provides guidance for the instant Motion. Section 1447(d) states: "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . ." 28 U.S.C. § 1447(d). This section does provide an exception to this rule, but the exception does not apply in this case.
Courts have generally interpreted section 1447(d) to divest a federal court of jurisdiction, thus not allowing it to reconsider its remand order. See, e.g., Smith v. Texas Children's Hosp., 172 F.3d 923, 925 (5th Cir. 1999) (district court has no jurisdiction to review a remand order); Anusbigian v. Trugreen/Chemlawn, Inc., 72 F.3d 1253, 1255 (6th Cir. 1996) (district court could not review its remand order based on its determination that it lacked subject matter jurisdiction); Harris v. Blue Cross/Blue Shield of Alabama, Inc., 951 F.2d 325, 330 (11th Cir. 1992) (district court has no jurisdiction to review a remand order); Three J Farms, Inc. v. Alton Box Bd. Co., 609 F.2d 112, 115 (4th Cir. 1979) ("Unquestionably, [1447(d)] not only forecloses appellate review, but also bars reconsideration of [a district court's own remand order]."; Maggio Enterprises, Inc. v. Hartford Cas. Ins. Co., 132 F. Supp.2d 930, 930-31 (D.Colo. 2001) (following remand, the district court is wholly deprived of jurisdiction and cannot retrieve case); Leong v. Taco Bell Corp., 991 F. Supp. 1237, 1238 (D. Ore. 1998) (district court cannot reconsider first remand order); Stanley v. Kelly, 758 F. Supp. 1487, 1488 (D. Fla. 1991) (same). In addition, "[a]ll doubts as to the propriety of removal are resolved in favor of remand." Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (citing Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994)).
The parties in this case have not changed; neither has the Complaint. The Court has previously remanded this case based on its finding that it lacked subject matter jurisdiction. Defendant cannot attempt to circumvent 28 U.S.C. § 1447(d) by removing a second time or by making disingenuous claims of new developments. Thus, Plaintiff must again succeed on its second Motion to Remand.
In addition, the Court finds Defendant's allegation of "gamesmanship" by Plaintiff ironic. Defendant has twice removed this matter, and in both instances, removed the matter close to the date set for a preliminary injunction hearing. It appears to the court the Plaintiff is the party most aggrieved by the delay of a preliminary injunction hearing. That being noted, Plaintiff has requested the Court award it attorney fees and costs associated with the instant Motion to Remand.
Section 1447(c) of Title 28 of the United States Code also authorizes a court to award costs and fees incurred as a result of removal. 28 U.S.C. § 1447(c); Bucary v. Rothrock, 883 F.2d 447, 449 (6th Cir. 1989). Furthermore, a federal court may award attorney fees against a party or an attorney conducting litigation in bad faith. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-68 (1980); Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-28 (1923). The Court did not award fees or costs the first time Defendant attempted removal. The Court, however, is inclined to award Plaintiff both reasonable fees and costs because (1) Defendant made a disingenuous claim of subsequent developments and (2) Defendant has twice removed this issue close to the date set for a preliminary injunction hearing.
Plaintiff, however, has not provided the Court with an affidavit regarding reasonable fees and costs, and Defendant has not had an opportunity to respond to this issue. For these reasons, the Court orders Plaintiff to file a brief and affidavit regarding its fees and costs associated only with this second Motion to Remand, and Defendant is ordered to file a response. Furthermore, the Court retains no jurisdiction over this matter other than to determine an appropriate award of attorney fees.
An Order consistent with this Opinion will follow.
ORDER
In accordance with the Opinion entered this date;
IT IS HEREBY ORDERED that Plaintiff's Motion to Remand (Dkt. No. 4) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall file a brief and affidavit addressing its reasonable fees and costs associated with Plaintiff's Motion to Remand (Dkt. No. 4) within fourteen (14) days of this Order.
IT IS FURTHER ORDERED that Defendant shall file a response to Plaintiff's brief and affidavit within fourteen (14) days of service of said brief and affidavit.