Opinion
No. 02 C 0970
August 1, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Sara Sirotzky alleged that Sanford C. Bernstein Co., Inc. ("Bernstein Co.") negligently gave her poor investment advice. She filed a complaint against Bernstein Co. under the arbitration rules of the New York Stock Exchange ("NYSE") seeking approximately $241,858. At the arbitration hearing in Chicago, Illinois, Bernstein Co. was represented by an attorney not licensed to practice in Illinois. The arbitration panel denied Plaintiffs claim and assessed her fees of $4,800. Plaintiff then filed suit against Bernstein Co. and the NYSE (collectively, "Defendants") in the Circuit Court of Cook County seeking a declaratory judgment that the arbitration decision against her was void because of the unlicensed attorney's participation in the arbitration hearing. Defendants removed the suit to federal court pursuant to 28 U.S.C. § 1332. Plaintiff filed a motion to remand the suit to state court, which we granted. See Sirotzky v. New York Stock Exchange, No. 02-C-0970, 2002 WL 1052029, at *4 (N.D.Ill. May 20, 2002). Presently before us is Plaintiffs motion for attorney's fees pursuant to 28 U.S.C. § 1447 (c).
The Eleventh Circuit recently noted the lack of "consistency among federal statutes, rules, and cases with respect to using the term `attorney fees,' `attorneys fees,' `attorney's fees,' or `attorneys' fees.'" Hobbs v. Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1239 n. 2 (11th Cir. 2001). Although § 1447(c) uses the term "attorneys fees," the Eleventh Circuit has decided to follow the Supreme Court Style Manual's preference for the term "attorney's fees" except when quoting statutory language or other authorities. See id. (citing Stallworth v. Greater Cleveland Reg'l Transit Auth., 105 F.3d 252, 253 n. 1 (6th Cir. 1997)). We adopt the same convention here.
DISCUSSION
Under 28 U.S.C. § 1447 (c), "an order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Although the statute leaves the decision to award attorney's fees to the discretion of the district court, Tenner v. Zurek, 168 F.3d 328, 330 (7th Cir. 1999), it offers little guidance as to how the district court should exercise this discretion. In the absence of such guidance, courts in the Northern District of Illinois have routinely denied such awards where the removal involves "complex issues" or raises a "substantial jurisdictional question." See Teta v. Packard, 959 F. Supp. 469, 477 (N.D.Ill. 1997); Castellanos v. US. Long Distance Corp., 928 F. Supp. 753. 756-57 (N.D.Ill. 1996); Am. Inmate Phone Sys., Inc. v. US Sprint Communications Co. Ltd. P'ship, 787 F. Supp. 852, 859 (N.D.Ill. 1992). See also Doyle v. Blue Cross Blue Shield of Ill., 149 F. Supp.2d 427, 437 (N.D.Ill. 2001) (finding an award of attorney's fees inappropriate where removal "raised complex jurisdictional questions involving issues of law that remain unsettled in the Seventh Circuit"); Katonah v. USAir, Inc., 876 F. Supp. 984, 990 (N.D.Ill. 1995) (suggesting that the "propriety" of defendant's removal is the key factor in deciding whether to award fees). Because this case presented a substantial jurisdictional question involving an issue of law that remains unsettled in the Seventh Circuit, we decline to award attorney's fees in this case.The question in this case was what pecuniary value to place on a declaratory judgment action seeking to vacate an arbitration decision where the amount sought in arbitration exceeded the $75,000 amount-in-controversy requirement, but the actual amount awarded in arbitration fell below $75,000. Defendants argued that the amount in controversy was the amount originally sought in the arbitration, regardless of the actual award. We held, however, that the amount in controversy was limited to the pecuniary result which Plaintiff's declaratory judgment action would directly produce. See Sirotzky, 2002 WL 1052029, at *3 (citing McCarty v. Amoco Pipeline Co., 595 F.2d 389, 395 (7th Cir. 1979)). Therefore, because Plaintiff asked the state court to vacate the $4,800 in forum fees assessed against her but did not seek a re-arbitration of her $241,858 claim against Bernstein Co., we held that the actual amount in controversy was $4,800. Since this amount was insufficient to support diversity jurisdiction, we remanded the case to state court.
Nonetheless, we find that Defendants raised a substantial jurisdictional question involving an issue of law that remains unsettled in the Seventh Circuit. Defendants allege that Plaintiff has purposefully managed to evade removal by limiting her claim in state court to an amount below $75,000, even though Plaintiff plans to pursue another arbitration claim for $241,858 if the state court vacates the previous arbitration decision. This is certainly a legitimate concern — if Plaintiff always intended to pursue re-arbitration if she prevailed in state court, then the actual value of her declaratory judgment action arguably exceeds $75,000. The Seventh Circuit has not specifically addressed this question, but precedent from the Sixth and Eleventh Circuits and the Central District of California supported our conclusion. See Sirotzky, 2002 WL 1052029, at *2-3 (discussing Ford v. Hamilton Invs., Inc., 29 F.3d 255 (6th Cir. 1994); Baum v. Alaron Trading Corp., 128 F.3d 1466 (11th Cir. 1997); Goodman v. CIBC Oppenheimer Co., 131 F. Supp.2d 1180 (C.D.Cal. 2001)). However, because we find some merit in Defendants' position, and because this issue has not been addressed by the Seventh Circuit, we believe that an award of attorney's fees is not justified in this case.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for attorney' is denied. It is so ordered.