Opinion
Case No. 05-CV-73418-DT.
September 14, 2005
ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED AGAINST DEFENSE COUNSEL
On September 2, 2005, Defendants Jackie Currie and Detroit Elections Commissions removed the above-captioned case to this court from Wayne County Circuit Court. The notice was signed by Attorney Steven W. Reifman, who affirmatively identified himself as counsel for Defendants Jackie Currie and Detroit Elections Commission. A stipulation of substitution was presented to the court on September 13, 2005 which attempted to substitute Attorneys Steven W. Reifman and Gene A. Farber as attorneys for Defendant Detroit Elections Commission "for purposes of the September 13, 2005 hearing only." (9/13/05 Stipulation at 2.) It now appears to the court that Attorney Reifman had no authority to sign on behalf of Detroit Elections Commission when he filed the September 2, 2005 "Notice of Removal."
The procedures which defendants must follow to remove a case to federal court are set forth in 28 U.S.C. § 1446. Under that section, each defendant must file, or join in, the notice of removal within thirty days after each received its copy of the initial complaint. This provision has been interpreted to require that defendants unanimously consent to removal. See Knickerbocker v. Chrysler Corp., 728 F. Supp. 460, 461 (E.D. Mich. 1990). Presumably, Defendants' notice was signed on behalf of both served defendants in order to satisfy the requirements of § 1446.
On September 14, 2005, after extensive briefing and a hearing on the issue, the court ordered that it did not have subject matter jurisdiction over this matter and remanded the case to Wayne County Circuit Court. When issuing an order remanding a case to state court, 28 U.S.C. § 1447(c) grants the district court discretion to "require payment of just costs and any actual expenses, including attorney fees incurred as a result of the removal." A district court need not find that the notice of removal was supported by an improper purpose to award costs and fees under § 1447(c). Morris v. Bridgestone/Firestone Inc., 985 F.2d 238, 240 (6th Cir. 1992).
Further, Federal Rule of Civil Procedure 11 allows the court to assess sanctions against attorneys for, among other things, making misrepresentations to the court and needlessly increasing the cost of litigation. See Fed.R.Civ.P. 11(b) (c). Expenses may also be awarded under 28 U.S.C. § 1927, which provides that:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.Id.
Under the circumstances in this case, it appears to the court that (1) defense counsel did not have authority to remove on behalf of the Detroit Elections Commission and (2) defense counsel has otherwise needlessly and unreasonably multiplied the proceedings and increased the costs of litigation.
Accordingly, IT IS ORDERED that Attorney Steven W. Reifman is ORDERED TO SHOW CAUSE, in writing, on or before September 21, 2005, why sanctions should not be imposed against him.