Opinion
Case No. C2-99-965
March 30, 2001
OPINION AND ORDER
This matter is before the Court on the Plaintiff's Motion for Attorney's Fees. (Doc. #20). Plaintiff Patricia Litchfield d.b.a. Midwest Productions moves for an award of attorney's fees in the amount of $8,682.50 incurred as a result of Defendant's removal of this action from state court. This Court subsequently found removal to be improper and remanded the case to state court. Defendant United Parcel Service opposes Plaintiff's motion on the grounds that removal was "fairly supportable" under existing law. As a result, Defendant claims that an award of attorney's fees would be inappropriate.
For the reasons that follow, Plaintiff's Motion for Attorney's Fees is DENIED.
I.
Plaintiff Patricia Litchfield, d.b.a. Midwest Productions filed this action in the Court of Common Pleas for Franklin County, Ohio in August, 1999. Plaintiff's Complaint asserts a claim for conversion under Ohio law arising from the Defendant's alleged theft of thousands of dollars worth of checks made payable to Midwest and others for whom Midwest provided charitable fundraising services. Plaintiff's Complaint asserts no claim under federal law on its face. Defendant UPS removed the case to this Court on the theory that Plaintiff's conversion claim was governed by federal common law. On July 10, 2000, this Court remanded the case to state court finding no federal jurisdiction over a state law conversion claim. This matter is now before the Court on Plaintiff's Motion for Attorney's Fees under 28 U.S.C. § 1447.
II.
Section 1447 authorizes the Court to "require payment of just costs and any actual expenses, including attorney's fees, incurred as a result of" a defective removal of an action from state court. 28 U.S.C. § 1447 (c). The decision whether or not to award attorney's fees and costs under 28 U.S.C. § 1447 (e) lies within the sound discretion of the Court.Morris v. Bridgestone/Firestone. Inc., 985 F.2d 238, 239 (6th Cir. 1994).
The fact that this Court ultimately rejected UPS's attempted removal does not automatically justify an award of attorney's fees. Ahearn v. Charter Township of Bloomfield, Case No. 97-1187, 1998 U.S. App. LEXIS 13445 *7, n. 2 (6th Cir. June 18, 1998); Hayden v. Lockheed Corp. et al., 1993 U.S. App. LEXIS 34104 at *5 (9th Cir. Nov. 3, 1993). The Sixth Circuit has held that an award attorney's fees under § 1447(c) is justified when the removal was not "fairly supportable" in the law. According to this standard, a court must:
focus on the objective "propriety" of the removal attempt [and apply] the following standard: an award of costs including attorney fees, is inappropriate where the defendant's attempt to remove the action was "fairly supportable," see Schmitt v. Ins. Co. of N. America 845 F.2d 1546, 1552 (9th Cir. 1988); Hayden v. Reickerd, 1993 U.S. App. LEXIS 34104, 1993 WL 523596, at *1-2 (9th Cir. 1993) (unpublished), or where there has not been at least some finding of fault with the defendant's decision to remove, see Miranti v. Lee, 3 F.3d 925, 928 (5th Cir. 1993); Sanford v. Moving Picture Machine Operators' Protective Union, 1993 U.S. App. LEXIS 33455, 1993 WL 542168, at *1 (4th Cir. 1993) (unpublished). By reverse implication, a court abuses its discretion by refusing to award fees where the defendant's argument for removal was devoid of even fair support.Ahearn, 1998 U.S. App. LEXIS 13445 at *8. Thus, attorney's fees are appropriate, where based on an objective standard, an attorney's attempt at removal was fairly supportable.
Further defining the "fairly supportable" standard, the Sixth Circuit in Ahearn noted that attorney's fees are inappropriate where "the party seeking removal cited at least some statute or case law supporting its position that subject matter jurisdiction existed and that removal was appropriate." Id. at *11. In contrast with this statement, the Ahearn Court reversed the district court's denial of attorney's fees where the plaintiff had raised no federal cause of action and removal was based solely on the supplemental jurisdiction statute, 28 U.S.C. § 1367. The appellate court stated that "the plain language of the statute should have made it clear to Defendant at the outset that removal was improper, and neither the Defendant nor the district court cited any authority in which, in spite of the statute's plain language, the existence of supplemental jurisdiction was recognized as a proper basis for removal jurisdiction." Id. at *8.
In this case, the Court remanded this action because the Complaint does not allege a federal claim on its face and because the complete preemption exception to the well-pleaded complaint rule does not operate to convert Plaintiff's claim to one arising under federal law for the purposes of the removal jurisdiction. In addition, the Court found that the Federal Aviation Administration Act of 1994 and the Airline Deregulation Act of 1978 did not provide Plaintiff with a private cause of action and that Sixth Circuit precedent precluded the possibility that federal common law created such a cause of action.
The Plaintiff has moved for attorney's fees arguing that Defendant's attempt at removal was improper because it was clear both that Plaintiff's claims were not completely preempted by federal law' and that the preemption as an affirmative defense is not a valid basis for removal. The Defendant argues that its removal was not based on preemption but on a theory that Plaintiff's claims are governed by federal common law and federal common law provides a basis for original jurisdiction. Plaintiff's retort to this position is that Plaintiff's claims are clearly not governed by federal common law, and even if they were, that does not create a valid basis for removal unless federal common law completely preempts the field of state law. The Court agrees with the Defendant.
The question this Court must answer is not whether removal was proper, but whether Defendant's position on removal, although fallacious, was fairly supportable under the case law. The Court concludes that although the Defendant's theory of removal was wrong, the theory was fairly supported by the case law so as to make an award of attorney's fees inappropriate.
Simply stated, the law with regard to the issues resolved by this Court's Order of Removal was not as clear as one would hope it to be. There is some case law support for the position that a claim for conversion against an air cater is based on federal common law and that the federal common law creates removal jurisdiction See e.g., Angela Cummings, Inc. v. Purolator Courier Corp., 670 F. Supp. 92 (S.D.N.Y. 1987) (denying motion to remand conversion claim against air carrier because the interpretation of limitation of liability clauses related to such claim was governed by federal common law which completely preempts the field to the exclusion of state law.) While this Court concludes thatAngela Cummings does not express the law, at least as applicable within the Sixth Circuit, the case does provide a modicum of support for the Defendant's position.
The "fairly supported" standard is not a high one, and simply requires some case law support, especially in an area that raises somewhat complicated issues of jurisdiction, as were the issues raised in this case. Therefore, for all these reasons, the Court concludes that the Defendant's attempt at removal was fairly supported and that an award of attorney's fees is inappropriate. Consequently, the Court DENIES Plaintiff's Motion for Attorney's Fees.
IT IS SO ORDERED.