Opinion
Civil Action 01-D-232-N
April 3, 2001
MEMORANDUM OPINION AND ORDER
Before the court is Defendants' Second Notice of Removal, which was filed February 23, 2001. Plaintiff filed a Response In Opposition To Defendants' Second Notice Of Removal And Motion To Remand, on March 23, 2001. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Plaintiff's Motion is due to be granted. The court also sua sponte awards Plaintiff costs, expenses, and attorney's fees associated with the second removal.
I FACTUAL BACKGROUND
Plaintiff originally filed this case in the Circuit Court of Barbour County, Alabama in August 1999. Plaintiff's Complaint raises only state law claims. Plaintiff named as Defendants the Delaware corporation of Cargill, Inc., and a salesman named Ken Hoover, who was an Alabama resident at the time of filing.
Hoover has since moved to Minnesota. This fact is irrelevant. See Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) ("the diverse citizenship among adverse parties must be present at the time the complaint is filed. Jurisdiction is unaffected by subsequent changes in the citizenship of the parties.") (internal citations omitted).
Defendants removed the case in late August 1999, alleging that Hoover had been fraudulently joined and, therefore, his citizenship should be disregarded for purposes of federal jurisdiction. See 28 U.S.C. § 1332. The Honorable John L. Carroll, United States Magistrate Judge, issued a lengthy opinion denying Defendants' motion to depose Plaintiff and remanding the case. (Doc. No. 7 Ex. A.)
Judge Carroll noted that Plaintiff contended that Hoover, who was one of Cargill's agents, allegedly sold Plaintiff some type of cattle feed. Judge Carroll also found sufficient evidence for a jury to conclude that Hoover may have breached an oral agreement with Plaintiff, and, perhaps, committed fraud while doing so. Given these findings, remand was mandated. See Adams v. American Home Prod., Inc., 122 F. Supp.2d 1301, 1303 (M.D. Ala. 2000) (courts must remand cases unless the record "clearly establishes" that there is no possibility of recovery against defendant).
After several months of discovery battles, Defendants deposed Plaintiff in January 2001. Plaintiff made some comments that, if read in a light most charitable to Defendants, suggested that he had no valid claim against Hoover. Based on this newly-acquired evidence, Defendants again removed the case. They again argue fraudulent joinder. The court again remands — this time, with costs and fees taxed.
Plaintiff subsequently clarified these statements in two affidavits, which, again, established colorable support for his causes of action. (Doc. No. 7 Ex. B-C.)
II. DISCUSSION
It is well-settled that the parties cannot obtain judicial review or reconsideration of a federal court's remand under 28 U.S.C. § 1447(c). See Harris v. Blue Cross/Blue Shield, 951 F.2d 325, 330 (11th Cir. 1992) ("Unquestionably, § 1447(d) not only forecloses appellate review, but also bars reconsideration by the district court of its own remand order.") (quoting Three J Farms v. Alton Box Bd. Co., 609 F.2d 112 (4th Cir. 1979)).
A party can remove a previously remanded case only in limited circumstances, none of which are relevant here. See 28 U.S.C. § 1446(b). As a general rule, "the defendant may not circumvent section 1447(d)'s prohibition on reconsideration by filing a second notice of removal which simply supplies evidentiary support for the argument that the previous remand order was incorrect." Collins v. Fingerhut Co., 117 F. Supp.2d 1283, 1284 (S.D. Ala. 2000) (quoting Nicholson v. National Accounts, Inc., 106 F. Supp.2d 1269, 1271 (S.D. Ala. 2000)).
Although Defendants are splenetic about litigating in this forum, Plaintiff has his right to choose his forum. Our nation's dual court system operates under the presumption of parity, which this court is not free to question. Federal courts are tribunals of limited jurisdiction; Congress has plainly dictated that state law claims involving non-diverse defendants do not belong here.
Defendants do not argue that Plaintiff's counsel has acted in bad faith. Instead, like the defendants in Collins and Nicholson, all that they proffer is additional evidence supporting an identical argument rejected by the court almost a year ago. As a result, Plaintiff has been whipsawed between federal court and state court twice. This matter has been needlessly delayed, and none of the parties are any closer to a resolution of this civil action on its merits. Without expressing any opinion on the merits of Plaintiff's claim against Hoover, the case will be remanded. See Collins, supra; Nicholson, supra.
The court also awards Plaintiff all "just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). A court may award fees and costs whenever it remands an improvidently removed case, for the removing party's improper actions, by their very nature, have frustrated judicial economy, upset important principles of federalism, and wrought needless litigation costs upon the other party. See Gray v. New York Life Ins. Co., 906 F. Supp. 628, 637 (N.D. Ala. 1995).
In its discretion, however, this court has typically declined to enter such a judgment in fraudulent joinder cases unless the removing party actions were unreasonable or federal jurisdiction was patently lacking at the time of removal. See Judson v. Nissan Motor Co., 52 F. Supp.2d 1352, 1363 (M.D. Ala. 1999) (DeMent, J.);Bromberg v. Metropolitan Life Ins. Co., 50 F. Supp.2d 1208, 1214 (M.D. Ala. 1999) (DeMent, J.); Whitlock v. Jackson Nat'l Life Ins. Co., 32 F. Supp.2d 1286, 1293 (M.D. Ala. 1998) (DeMent, J.);Grace v. Interstate Life Acc. Ins. Co., 916 F. Supp. 1185, 1191-92 (M.D. Ala. 1996) (DeMent, J.); Bedford v. Connecticut Mutual Life Ins. Co., 916 F. Supp. 1211, 1216-17 (M.D. Ala. 1996) (DeMent, J.); Howard Griggs Trucking, Inc. v. American Cent. Ins. Co., 894 F. Supp. 1503, 1510 (M.D. Ala. 1995) (DeMent, J.)
In this case, the court finds that Defendants' second removal was unreasonable. It is universally known that remand orders are non-reviewable. Moreover, subject matter jurisdiction has been lacking ab initio, and patently so ever since the first remand. Accordingly, the court will award costs and fees.
III. ORDER
It is hereby CONSIDERED and ORDERED that this case be and the same is hereby REMANDED to the Circuit Court of Barbour County, pursuant to 28 U.S.C. § 1447(c).
It is further ORDERED that any just costs and any actual expenses, including attorney's fees, associated with this removal be and the same are hereby TAXED to Defendants, for which let execution issue. See id. Plaintiff shall submit a list of such costs to Defendants within five business days; they shall be paid within one business week of submission.
As such, the court retains jurisdiction for the limited purpose of determining costs if the parties cannot reach agreement. See Fowler v. Safeco Ins. Co. of Am., 915 F.2d 616, 617 (11th Cir. 1990).
For administrative purposes, the Clerk of Court is DIRECTED to close this case.
DONE this 3rd of April, 2001.