Summary
applying the FAA to “petitions” to confirm and to vacate, and using the terms “motion” and “petition” interchangeably throughout
Summary of this case from Questar Capital Corp. v. GorterOpinion
File No. 1:05-CV-462.
November 29, 2005
ORDER GRANTING MOTION FOR COSTS ATTORNEY FEES
This is an action to confirm an arbitration award arising out of the purchase of viatical contracts. After learning that the contracts would not be paid, Petitioners and others filed an application to arbitrate before the National Association of Securities Dealers naming several defendants. One of those defendants, who is not the respondent in this action, refused to arbitrate and filed an action in this Court seeking a declaratory ruling that the claims were not arbitrable. The Court ordered the parties to arbitration. See USAllianz v. Southern Michigan Bancorp, Inc., Nos. 1:03-cv-369, 1:03-cv-370 (W.D. Mich. Oct. 20, 2003) (Bell, C.J.). The parties proceeded to arbitration where, on February 10, 2005, the panel issued an award to Petitioners.
On February 14, 2005, Petitioners filed a Petition to Confirm Arbitration in the Branch County Circuit Court. On February 28, 2005, Respondents filed a notice of removal to the Eastern District of Michigan, which eventually was accepted by the Clerk of the Eastern District on March 14, 2005. With the notice of removal, Respondents also filed a petition to vacate the arbitration award. Promptly thereafter, on March 29, 2005, Petitioners filed a motion to remand to the state court and requested the award of costs and attorney fees for the improvidently removed action, pursuant to 28 U.S.C. § 1447(c). Respondents filed a response on May 6, 2005, and Petitioners filed a reply on May 13, 2005. On July 1, 2005, the Eastern District of Michigan issued an order transferring the case to this Court. Thereafter, on September 21, 2005, Petitioners filed a renewed motion to remand.
On September 30, 2005, this Court granted Petitioners' motions and remanded the case to the Branch County Circuit Court (Docket #25). The Court, however, denied Petitioners' request for costs and attorney fees "without prejudice pending the filing of a renewed motion for costs and fees supported by evidence as to actual costs and fees incurred by Petitioners as the result of the removal." The matter presently is before the Court on Petitioners' renewed motion for costs and attorney fees (Docket #26).
Pursuant to 28 U.S.C. § 1447(c), "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Notwithstanding the fact that the case now has been remanded to the state court, the Court retains jurisdiction to issue a collateral order awarding attorney fees and costs. See Stallworth v. Greater Cleveland Regional Transit Authority, 105 F.3d 252, 256 (6th Cir. 1997). A party seeking an award of attorney fees under the provision need not demonstrate bad faith by the removing party. See Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238, 240 (6th Cir. 1993); see also Dun-Rite Const., Inc. v. Amazing Tickets, Inc., No. 04-3216, 2004 WL 3239533 (6th Cir. Dec. 16, 2004). However, a prevailing party in a § 1447(c) proceeding is not presumptively entitled to attorney fees. Bartholomew v. Collierville, 409 F.3d 684, 686-87 (6th Cir. 2005). Instead, the decision to award attorney fees is within the sound discretion of the district court. Id.
In their motion, Petitioners seek a total of $6,074.66 in attorney fees and costs. Petitioners have attached extensive supporting documentation for the requested amounts, including the fee agreement, detailed billing records, hourly rates and an attorney affidavit. The documentation also shows payment in full of the amounts billed. Despite the grant of an extension of time to respond to the motion for attorney fees and costs, Respondents have not attempted to dispute the billing amounts submitted by Petitioners. Indeed, they do not argue that an award of fees in the instant case would be an abuse of the Court's discretion. Instead, they merely reargue their contention that the case was properly removed to the Eastern District of Michigan before being transferred to this Court.
The matter pending before the Court is not a motion to alter or amend the order of remand pursuant to FED. R. CIV. P. 59(e) or a motion for relief from judgment pursuant to FED. R. CIV. P. 60(b). The sole question before the court is the appropriateness of an award of the requested fees and costs. While the reasonableness of Respondents' attempt to remove the action is relevant to the decision to award attorney fees under 28 U.S.C. § 1447(c), the Court previously issued its determination on that question and found that it lacked subject matter jurisdiction. The correctness of that decision therefore is not properly before the Court. Moreover, even were the question properly presented, the Court finds no basis for reconsideration, either in Respondents' prior filings or in the arguments raised in their responsive brief to the current motion. For the reasons previously stated by the Court, removal of the action was improvident. This Court clearly lacks subject matter jurisdiction to either enforce or vacate the arbitration award.
The Court has reviewed Petitioners' motion for award of attorney fees and costs and the supporting documentation. The Court finds that, given the weakness of Respondents' argument for federal jurisdiction, attorney fees are properly awarded to the Petitioners. The Court further finds that the fees submitted by Petitioners were reasonably incurred and necessary to litigate the removal question. As a consequence, and in the absence of any particularized objections by Respondents, the Court concludes that Petitioners should be awarded the requested sum of $6,074.66.
In their reply brief, Petitioners request an additional $300.00 for the time required to prepare and file a reply brief. However, the Court declines to award the additional $300.00 requested by Petitioners. In light of the clarity of the issue and the weakness of the responsive brief, the Court finds that no reply brief was strictly necessary.
Accordingly,IT IS ORDERED that Petitioners' renewed motion for costs and fees (Docket #26) is GRANTED. IT IS FURTHER ORDERED that Respondents shall pay to Petitioners the sum of $6,074.66.