Step Plan Services, Inc. v. Koresko

Full title: STEP PLAN SERVICES, INC. v. John J. KORESKO, V; Lawrence Koresko; Koresko…

Court: United States Court of Appeals, Third Circuit

Date published: Mar 14, 2007

219 F. App'x 249 (3d Cir. 2007)

Opinion

No. 05-5494.

Submitted Pursuant to Third Circuit LAR 34.1(a) March 2, 2007.

Filed: March 14, 2007.

On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 04-cv-02560 (Honorable Legrome D. Davis).

Ira B. Silverstein, Thorp, Reed Armstrong, Philadelphia, PA, for Step Plan Services, Inc.

John J. Koresko, V, Koresko Associates, Bridgeport, PA, Steven D. Johnson, Hecker, Brown, Sherry Johnson, Philadelphia, PA, for Appellants.

Before: SCIRICA, Chief Judge, McKEE and NOONAN^_, Circuit Judges.

_ The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Judicial Circuit, sitting by designation.

OPINION OF THE COURT

NOONAN, Circuit Judge.

John J. Koresko, et al. ("Koresko"), appeals the denial of a motion for reconsideration of an award of attorney's fees and costs to STEP Plan Services, Inc. ("STEP") for the expenses STEP incurred in remanding a case to state court. We now affirm the district court's decision.

District courts may award "just costs and any actual expenses, including attorney's fees" incurred as a result of a defective removal to federal court. 28 U.S.C. § 1447(c). Koresko failed to obtain the unanimous consent of all defendants before seeking to remove the case to federal court. Therefore, his removal was procedurally defective. See Lewis v. Rego, 757 F.2d 66, 68 (3d Cir. 1985) ("[W]hen there is more than one defendant, all must join in the removal petition.") Moreover, STEP'S complaint alleged state law causes of action exclusively; ERISA was inapplicable. See Mints v. Educational Testing Service, 99 F.3d 1253 (3d Cir. 1996). The district court did not abuse its discretion in awarding STEP attorney's fees and costs as a result of Koresko's improper removal. See 28 U.S.C. 1447(c); Martin v. Franklin Capital Corp., 546 U.S. 132, 126 S.Ct. 704, 711, 163 L.Ed.2d 547 (2005) ("courts may award attorney's fees under 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.")

No violation of Koresko's due process rights occurred. The district court considered a detailed breakdown of hours and costs, as well as a form charting reasonable attorney's fees. Koresko had an opportunity to respond in both its Opposition to Plaintiff's Request for Fees and in its Sur-Reply to Plaintiff's Request for Fees. See Federal Communications Comm'n v. WJR, 337 U.S. 265, 276, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949). (Due process does not require oral argument, and written submissions may be sufficient.)

AFFIRMED.