Opinion
Case No. 1:03 CV 2310
January 16, 2004
ORDER GRANTING PLAINTIFFS' MOTION TO REMAND
Plaintiffs Dun-Rite Construction, Inc., Clockwork Courier, Inc., Schalmo Builders, Inc., Tower City Title Agency, Inc., and Geotech Services, Inc. filed their complaint in the Cuyahoga Falls Municipal Court in Cuyahoga County, Ohio on 16 October 2003. (Docket #1, Ex. A-2). Plaintiffs' two-count complaint alleges violations of the federal Telephone Consumer Practices Act ("TCPA"), 47 U.S.C. § 227, and the Ohio Consumer Sales Practices Act, Section 1345.02(A) of the Ohio Revised Code. Service was effected on defendant Amazing Tickets, Inc. ("Amazing Tickets") on 27 October 2003. (Docket #1, at ¶ 2). Delphi filed a timely notice of removal, pursuant to 28 U.S.C. § 1446, on 13 November 2003. (Docket #1). In its notice of removal, Delphi alleged that this Court has jurisdiction over plaintiffs' TCPA claims, pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over their state law claims, pursuant to 28 U.S.C. § 1367. (Docket #1, at ¶¶ 4-5).
On 15 December 2003, plaintiffs filed a motion to remand to the case to the Cuyahoga Falls Municipal Court. (Docket #10). Plaintiffs argued that this Court lacks jurisdiction because private actions to enforce the TCPA must be heard in state court. On 22 December 2003, Amazing Tickets filed its opposition to plaintiff's motion. (Docket #11). Plaintiffs then filed a reply accompanied with a request for attorney fees. (Docket #12). On 6 January 2004, Amazing Tickets responded with a combined motion to strike reply and sur-reply, requesting this Court to strike plaintiffs' reply, deny the request for sanctions, and retain jurisdiction. (Docket #13). Then, less than a week later, on 14 January 2004, Amazing Tickets withdrew its Notice of Removal originally filed with this Court in November. (Docket #15).
State courts maintenance of exclusive jurisdiction over private rights of action under the TCPA and this Court's concomitant lack of jurisdiction to hear such private claims is well-settled and requires no further discussion. Murphy v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 519 (3rd Cir. 1998); Foxhall Realty Law Office Inc. v. Telecommunications Premium Services, Ltd., 156 F.3d 432, 434 (2d Cir. 1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir. 1998), modified in 140 F.3d 898 (11th Cir. 1998); International Science Technology Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1155 (4th Cir. 1997);Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir. 1997); and Compoli v. AVT Corp., 116 F. Supp.2d 926 (N.D. Ohio 2000) (Wells, J.). Accordingly, plaintiff's motion to remand is granted.
The sole remaining question is whether Amazing Tickets should pay plaintiffs' attorney fees incurred as a result of Amazing Tickets' notice of removal and its vigorous opposition to remand in contravention of well-settled federal law. Title 28 of the United States Code Section 1447(c) provides that 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." The decision to award such costs and fees is within the sound discretion of the Court. Stallworth v. Greater Cleveland Regional Transit Authority, 105 F.3d 252, 258 (6th Cir. 1997).
In this case, defendant filed a notice of removal asserting jurisdictional bases unsupported by existing law and maintained this tenuous position by opposing plaintiffs' motion to remand Prior to filing their motion to remand, plaintiffs even alerted Amazing Tickets that its notice of removal was "not supported by the statute or local case law," citing Compoli. (Docket #12). Moreover, plaintiffs informed Amazing Tickets that, if it failed to file a motion to remand, they would be forced to seek sanctions. Notwithstanding plaintiffs' notice, defendant persisted thereby forcing plaintiffs to further research and argue a well-settled issue.
Plaintiffs request an award of $2,250 in attorney fees for the time plaintiffs' counsel expended on this matter. Amazing Tickets lacked a reasonable basis to remove this case initially and has continued with frivolous arguments in the face of overwhelming authority to the contrary. Plaintiffs' counsel, for their part, attempted to resolve this issue before expending significant resources by sending a letter to defense counsel on 20 November 2003. Amazing Tickets ignored the letter and persisted with its untenable position. Now, after having filed a brief in opposition to plaintiffs motion for remand and a sur-reply, Amazing Tickets seeks to withdraw its notice of removal. This last ditch measure to avoid paying attorney fees further indicates that Amazing Tickets unnecessarily and frivolously litigated this issue. Under these circumstances, an award of reasonable attorney fees is just and proper.
Amazing Tickets argues that a request for attorney fees in plaintiffs' reply brief is untimely as it was not set out in its original motion. (Docket #13, at 1-2). That argument must fail because it directly contradicts Stallworth, a Sixth Circuit case cited by Amazing Tickets, which held that a district court may even award attorney fees based on a post-remand application. 105 F.3d at 257.
Amazing Tickets also contend that the time allegedly spent by plaintiffs' counsel in litigating this issue is "excessive and incredible" and that the plaintiffs' request of $2,250 is "ludicrous and offensive." (Docket #13, at 2). Defendant mischaracterizes plaintiffs' request as the time spent by their counsel is well-documented and commensurate with the task. The Court finds that an award of $1800 is reasonable, just, and appropriate given the work performed by plaintiffs' counsel and the circumstances of this case.
Accordingly, plaintiffs' motion to remand is granted, and defendant shall pay forthwith to plaintiffs $1800 for the attorney fees they incurred as result of the removal. This case is remanded to the Cuyahoga Falls Municipal Court in Cuyahoga County, the state court from which it was removed.
IT IS SO ORDERED.