Opinion
Case No. 02-2205-JWL
June 26, 2002
MEMORANDUM AND ORDER
This matter is presently before the court on plaintiff's motion to remand (Doc. 2). Plaintiff filed the action in state court and defendants removed the case to this court. For the reasons set forth below, plaintiff's motion is granted.
Defendants based their petition for removal on federal question jurisdiction. They asserted that this court had original jurisdiction over the action because their answers and counterclaims were based in part on a federal statute. In plaintiff's motion to remand, however, the rule regarding federal question jurisdiction was correctly stated. Federal question jurisdiction cannot arise from defenses or counterclaims. It can only be based on the plaintiff's well-pleaded complaint. Garley v. Sandia Corp., 236 F.3d 1200, 1207 (10th Cir. 2001) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) ("The presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.")) It is perhaps for this reason that defendants declined to file any suggestions in opposition to plaintiff's motion. As removal was improper under 28 U.S.C § 1441(b), the court is required to remand the case to state court. 28 U.S.C. § 1447(c); International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 87 (1991) ("Since the district court had no original jurisdiction over this case, a finding that removal was improper deprives that court of subject matter jurisdiction and obliges a remand under the terms of § 1447(c)." (internal citation omitted) (superseded by statute on other grounds)).
Plaintiff has also requested an award of attorney's fees and costs associated with defendants' improper removal. 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."); see also Excell, Inc. v. Sterling Boiler Mechanical, Inc., 106 F.3d 318, 322 (10th Cir. 1997) ("In deciding whether to award costs under § 1447(c), the key factor is the propriety of defendant's removal. The district court does not have to find that the state court action has been removed in bad faith as a prerequisite to awarding attorney fees and costs under § 1447(c)." (internal citation omitted)). The court agrees that such an award should be made here, especially in light of how clearly improper defendants' removal of this action was. The amount of $630.00 requested by plaintiff appears reasonable to the court; however, no affidavit has been filed in support of that amount. Plaintiff will have until July 8, 2002 in which to submit a supporting affidavit. Defendants shall have until July 22, 2002 to file any objections.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion to remand (Doc. 2) is granted and upon consideration of the affidavit by plaintiff regarding the amount requested and any response by defendants, the court will make a further order regarding payment of reasonable expenses and fees associated with obtaining the remand order. The case is remanded to the District Court of Johnson County, Kansas. A certified copy of this order of remand shall be mailed by the clerk to the clerk of the state court.
IT IS SO ORDERED.