United States District Court, District of Columbia
RICHARD D. JONES, JR., Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.
TANYA S. CHUTKAN, District Judge.
Plaintiff Richard D. Jones, Jr. initially filed suit in D.C. Superior Court. The lawsuit was removed to this Court on September 17, 2014. Plaintiff moved to remand on the bases that: 1) the removal was untimely, and 2) Defendants failed to comply with the rule requiring all served defendants to consent to removal. Defendants conceded that removal was improper under the rule of unanimity (but did not concede the issue of timeliness) and did not contest the remand motion. Currently before the court is Plaintiff's motion for attorney's fees pursuant to 28 U.S.C. § 1447(c), which authorizes the court to, after remand, "require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Because the Defendants' removal was largely unreasonable, the court GRANTS the motion for attorney's fees.
I. LAW GOVERNING REMOVAL
The applicable provisions governing removal are fairly straightforward. A defendant must file a notice of removal within 30 days of receipt, "through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b)(1). All defendants "who have been properly joined and served must join in or consent to the removal of the action." 28 U.S.C. § 1664(b)(2)(A). If the defendants are served at different times, a later-served defendant may remove within the 30 day window applicable to that defendant, and "any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal." 28 U.S.C. § 1446(b)(2)(C).
II. FACTUAL BACKGROUND
Plaintiff filed suit on June 20, 2014, alleging civil rights violations by the District of Columbia and three officers of the D.C. Metropolitan Police Department ("MPD"). The District of Columbia was served on July 18, 2014. (Pl. Ex. 1). Each of the officers was served on August 18, 2014. (Pl. Ex. 2). On September 17, 2014, the District, acting solely on its own behalf and through counsel from the D.C. Office of the Attorney General, filed a Notice of Removal commencing this federal civil action. (ECF No. 1). It is undisputed that this was more than 30 days after the District was served with the complaint. The next day, September 18, 2014, District counsel filed an errata which amended the notice of removal to be on behalf of the District and one of the three MPD officers, Adam Shaatal. (ECF No. 2-1). September 18 was the 31st day after Shaatal was served with the complaint. The amended notice of removal was silent as to the two remaining defendants, Michael Littlejohn and Brandon Baldwin.
On September 22, 2014, counsel for Plaintiffs invited the Defendants to voluntarily remand the matter to Superior Court as untimely removed. (Pl. Ex. 5). District counsel replied that removal was timely in light of the amendment on behalf of Shaatal, who counsel erroneously claimed was served in September. (Pl. Ex. 6). Plaintiff's counsel disagreed that an amendment filed on the 31st day after service could render the removal timely, and also noted that the remaining defendants had not been included in the removal. (Pl. Ex. 7). Counsel for the District stated they had no record the remaining officers, Baldwin and Littlejohn, had actually been served and maintained that removal was timely. (Pl. Ex. 8).
Plaintiff moved to remand on October 17, 2014, arguing that "subsequent amendment [itself untimely] of an untimely notice does not make the original notice timely" and that failure of all defendants to join the removal was independently fatal. (Pl. Remand Mot. at 3). On November 3, 2014 Defendants consented to remand because, as of September 17 "counsel was unaware that co-defendants [Littlejohn and Baldwin] had been properly served and did not include these defendants in the notice of removal." (Notice, ECF No. 6, at 1).
The Court is authorized to impose attorney fees and other costs when a Plaintiff prevails in a motion to remand. 28 U.S.C. § 1447(c). Generally, "an award is appropriate only when the nonremovability of the action is obvious." Yazdani v. Access ATM, 457 F.Supp.2d 36, 37 (D.D.C. 2006) (citing Ibrahim v. 1417 N St. Assocs., LP, 950 F.Supp. 406, 408 (D.D.C. 1997)) (internal quotations omitted); see also Ballard v. District of Columbia, 813 F.Supp.2d 34, 39 (D.D.C. 2011) ("a district court may award attorney's fees when remanding a removed case only if the removing party lacked an objectively reasonable basis for seeking removal") (internal quotation omitted). Reasonableness is evaluated "at the time of removal, irrespective of the fact that it might ultimately be determined that removal was improper." Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000).
Ibrahim involved a dispute of law: whether the 30-day period began running when service of the complaint was perfected or when the defendant received a copy of the complaint in some manner. 950 F.Supp. at 407. In light of differing constructions of the statute as to that particular issue, and because the trial court found the removal was not frivolous or in bad faith, the court declined to award attorney fees. Id. at 408. Similarly, Ballard involved a question of statutory interpretation that had given rise to a Circuit split, on which the D.C. Circuit had not yet opined. Given that Defendants had a reasonable argument that remand had been proper, the court declined to award attorney fees. 813 F.Supp.2d at 37-38; see also Jenkins v. District of Columbia, No. 14-cv-1890, 2015 WL 546015, at *3 (D.D.C. Feb. 10, 2015) (where factual record was "far from unambiguous" as to which defendants had not already been dismissed from the action, attorney's fees were not appropriate). By contrast, in Yazdani the defendant received a copy of the removable amended complaint on February 21, 2006 but did not file a removal notice until April 6, 2006, relying on the flawed memory of defendant's president that it received the complaint in mid-March. Finding that the late removal was the result only of "sloppy lawyering, " the court awarded fees. 457 F.Supp.2d at 38. Likewise in Johnson-Brown v. 2200 M St., LLC, 257 F.Supp.2d 175, 181 (D.D.C. 2003) the court awarded attorneys' fees where the defendants presented arguments supporting removal that were "dubious at best, if not disingenuous."
Here, Plaintiff identified two defects in the Defendants' attempted removal, and Defendant conceded one defect. The Court examines each in term to determine whether the Defendants acted reasonably or whether the grounds of nonremovability were obvious.
A. Untimely Removal
September 17, 2014 - the day the District filed its original notice of removal - was too late for the District of Columbia to file for removal, as it was well beyond 30 days after service on the District. This the parties do not dispute. The parties also appear to agree that if defendant Shaatal had joined the notice of removal on September 17, 2014, the removal would have been timely (though still deficient for failure to join Baldwin and Littlejohn). But, for reasons that the District has not explained to the court, which could range from error to a misunderstanding (justified or otherwise) of fact or law,  Shaatal did not join that filing. Instead, one day later, the District amended the filing to include Shaatal, but not the other MPD defendants. (ECF No. 2-1). The District has not proffered a reason or explanation for why it took these actions on those days. Instead, the District is resting on the argument that Plaintiff failed to "explain why this amendment was ineffective or could not relate back to the original filing." (Def. Opp'n at 4). Plaintiff already met his burden: he succeeded in having this case remanded to the Superior Court. It is the District ...