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Yazdani v. Access ATM

October 27, 2006

ARDESHIR YAZDANI, PLAINTIFF,
v.
ACCESS ATM, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This case was referred to me for resolution of whether an award of attorneys' fees and costs incurred as a result of the removal of this case to the Superior Court of the District of Columbia is appropriate.

BACKGROUND

On November 18, 2005, plaintiff Ardeshir Yazdani filed suit in Superior Court against defendant Access ATM, alleging breach of contract. On December 30, 2005, plaintiff filed an amended complaint alleging violations of the Racketeer Influenced and Corrupt Organizations Act. On January 4, 2006, the complaint, amended complaint, initial order, and summons were served on the Mayor of the District of Columbia. On January 25, 2006, the Mayor then served copies of these documents, by certified mail, upon Access ATM. These documents were received by Access ATM on February 21, 2006.*fn1

On April 6, 2006, Access ATM filed a notice of removal with the District Court, claiming that notice had been received on or about March 10, 2006. A hearing was scheduled to take place in Superior Court on April 7, 2006.

On May 16, 2006, Judge Kotelly concluded that defendant's removal to District Court had been untimely and, with the parties' consent, remanded the case to Superior Court. Specifically, Judge Kotelly found, and defendant conceded, that defendant's removal notice had not been filed within thirty days of defendant's receipt of the pleadings.

ANALYSIS

I. Removal Pursuant to 28 U.S.C. § 1446

28 U.S.C. § 1446 reads in pertinent part as follows:

A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure . . . The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading . . . or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(a)-(b).

Here, the parties do not dispute the fact that defendant's removal notice to the District Court was untimely. Defendant received copies of the pleadings on February 21, 2006. Defendant therefore had until March 23, 2006, to file a notice of removal. Since defendant's removal notice was not filed until April 6, 2006, it was clearly untimely. The only issue for this Court to determine is whether or not the reimbursement of plaintiff's attorneys' fees and costs is warranted.

II. Award of Attorneys' Fees and Costs

Pursuant to 28 U.S.C. § 1447(c), attorneys' fees and costs may be awarded upon remand. Although the court has great discretion*fn2 in determining when an award of attorneys' fees and costs is appropriate, generally an award is "appropriate only when the nonremovability of the action is obvious." Ibrahim v. 1417 N St. Assoc., L.P., 950 F. Supp. 406, 408 (D.D.C. 1997). Accord Johnson-Brown v. 220 M St. LLC, 257 F. Supp. 2d 175, 181 (D.D.C. 2003) ("Courts uniformly have held that a relevant factor for imposing costs and expenses is whether the removing party contradicts well-settled law in attempting to remove the case to ...


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