The American Academy of Estate Planning Attorneys v. Goodwin

Full title: THE AMERICAN ACADEMY OF ESTATE PLANNING ATTORNEYS, INC., a California…

Court: United States District Court, D. Nebraska

Date published: Oct 1, 2000

8:00CV416 (D. Neb. Oct. 1, 2000)

Opinion

8:00CV416

October, 2000

ORDER

JOSEPH F. BATAILLON, United States District Judge.

The matters before the Court are plaintiff's motion to remand the case to state court (Filing No. 9); defendants' motion to dismiss the complaint or for a more definite statement (Filing No. 7); and defendants' request for rehearing (Filing No. 14) of the magistrate's report and recommendation (Filing No. 13). I have carefully reviewed the magistrate's report and recommendation and find that it should be affirmed, and this case should be remanded to state court for further action.

On or about June 27, 2000, plaintiff filed this action in Douglas County District Court. The basis for the lawsuit was essentially that defendant Goodwin entered into an employment contract with the plaintiff wherein he agreed to refrain from using proprietary information, trade secrets, and similar types of information with anyone other than his employer. All causes of action concern state law issues. No federal laws are pleaded in the petition.

Defendant Goodwin terminated the Employment Agreement and began to work for a competitor. The petition alleges that confidential information was given, shared, and used, in violation of the employment agreement, to the competitor. All causes of actions set forth in the petition delineate state causes of action.

The defendants first argue that they were not properly served with a copy of the motion to remand. Defendants contend that the motion was originally filed in state court when it should have been filed in federal court. However, defendants admit that they received a copy of the motion to remand, and the docket in this case clearly shows that the motion was filed in federal court on August 9, 2000, approximately the same time it was received by the defendants. (Filing No. 9). I find defendants' argument to be without merit.

Thereafter, the magistrate ruled on the motion to remand (Filing No. 13). The magistrate found, and I agree, that the claims set forth in the plaintiff's petition are those of state law. There is no showing on the part of the defendants that this court has original jurisdiction over this claim as set forth in 28 U.S.C. § 1446. The defendants argue that this case is really about copyright and trademark issues. However, no jurisdictional allegations are made with regard to federal copyright or trademark laws. The law requires that there must be a well-pleaded complaint that indicates the applicability of federal law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Gaming Corp. of America v. Dorsey Whitney, 88 F.3d 536, 542 (8th Cir. 1996). I conclude that the plaintiff's claims arise out of the employment contract between defendant Goodwin and the plaintiff, and that no federal question appears on the face of the petition, nor does diversity of citizenship exist in this case, as multiple parties are from California.

The magistrate also granted plaintiff's request for costs and fees associated with the removal by the defendants pursuant to 28 U.S.C. § 1447(c). Under § 1447(c) awards of attorneys fees and costs can be made in association with the costs and fees of removal. I too find that the plaintiff is entitled to attorney fees and costs connected with removal, as there was no legitimate basis for removal of the case. See Patel v. Moore, 968 F. Supp. 587, 591-92 (D.Kan. 1997).

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:

1. That defendants' motion for rehearing and reconsideration (Filing No. 14) of the magistrate's recommendation should be and hereby is overruled;

2. That defendants' motion to dismiss or for a more definite statement (Filing No. 7) shall not be ruled on as this case is being remanded to state court;

3. That plaintiff's motion to remand to Nebraska state court should be and hereby is granted (Filing No. 9);

4. The magistrate's report and recommendation (Filing No. 13) is hereby adopted; and

5. Counsel for the plaintiff will be allowed 7 days from the date of this order to submit an affidavit of fees and costs incurred in conjunction with the removal petition. Thereafter, counsel for the defendant shall have 7 days to respond to the amount of fees and costs requested by plaintiff. Following the entry of an award of attorney's fees and costs, the Clerk of Court is directed to remand the matter to state court for further proceedings.