The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff William Husko ("Plaintiff") seeks to recover attorney's fees
and actual expenses incurred as a result of the improper removal of this
action from state court to federal court by Defendants Geary Electric,
Inc. and Axian Communications, Inc. (collectively "Defendants"). This
case was remanded to Illinois state court by Judge Marvin E. Aspen who
rejected Defendants' argument that there was federal question
jurisdiction by reason of ERISA preemption. Husko v. Geary Electric,
Inc., No. 03-C6772, 2003 U.S. Dist. LEXIS 23122, at *15 (N.D. Ill. Dec.
23, 2003). For the reasons stated herein, the Court awards Plaintiff
$31,629.33 for attorney's fees and actual expenses pursuant to
28 U.S.C. § 1447(c). II. BACKGROUND FACTS
Plaintiff once owned half of the outstanding shares of Geary Electric,
Inc. ("Geary"), an Illinois corporation that installs electrical power
systems and performs maintenance for telecommunications companies.
Husko, 2003 U.S. Dist. LEXIS 23122, at *2. On May 31, 2000, Plaintiff
entered into an agreement with Axian Communications, Inc. ("Axian"),
agreeing to sell to Axian his interest in Geary in exchange for $3.3
million, over one million shares of common stock in Axian, and a bonus
payment calculated according to a formula set forth in a sales contract.
Id. Plaintiff alleges that Axian never paid him the agreed upon bonus,
which was due to him on April 12, 2003. Id. at *2-3.
As a result of the non-payment, Plaintiff filed a four-count complaint
against Defendants in the Circuit Court of Lake County, Illinois. Id. at
* 1, 3. The complaint sought the following: (1) damages for breach of
contract, (2) rescission of the sales contract's non-compete provision,
(3) a declaration that a credit agreement between the parties does not
prohibit Axian from paying the agreed upon bonus, and (4) specific
performance of payments of retirement benefits into Plaintiff's employee
pension plan. Id. at *3.
Defendants removed the case to federal court on September 25, 2003,
alleging federal question jurisdiction because Count IV of Plaintiff's
complaint was completely preempted by the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Plaintiff filed a motion
to remand, arguing a lack of subject matter jurisdiction because federal
preemption did not apply to his claim. Id. In granting Plaintiff's motion to remand, Judge Aspen applied the
Seventh Circuit's three-part Joss test for determining whether an action
is completely preempted by ERISA. Id. at*9-10. Section 502(a) of ERISA
is the basis for the Joss test and defines those persons who are
empowered to bring a civil action under ERISA. 29 U.S.C. § 1132(a). The
elements of the Joss test are as follows: (1) whether a plaintiff is
eligible to bring a claim under § 502(a); (2) whether that plaintiff's
cause of action falls within the scope of an ERISA provision that the
plaintiff can enforce via § 502(a); and (3) whether the plaintiff's state
law claim cannot be resolved without an interpretation of the contract
governed by ERISA. Joss v. Prudential Health Care Plan, Inc., 88 F.3d 1482,
1487 (7th Cir. 1996). Judge Aspen concluded that Defendants failed to
satisfy all three prongs of the Jass test and remanded the case to the
Circuit Court of Lake County, Illinois. Husko, 2003 U.S. Dist. LEXIS
23122, at * 15. Judge Aspen also noted that Defendants' argument,
asserting that removal jurisdiction exists pursuant to 29 U.S.C. § 1144,
was an incorrect statement of the law because § 1144 deals with conflict
preemption and not complete preemption. Id. at * 8 n. 5. The Supreme Court
clearly has held that removal is proper only in cases involving complete
preemption under § 502(a) codified at 29 U.S.C. § 1132(a). Metro Life
Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987).
As a result of Defendants' improper removal of Plaintiff's claim,
Plaintiff now seeks attorney's fees and actual costs totaling $32,729.33.
The parties have consented to this Court's jurisdiction to decide this
issue pursuant to 28 U.S.C. § 636(c)(1). Plaintiff's motion for attorney's fees and actual expenses raises the
following three issues:
1) Whether Plaintiff's motion was timely filed?
2) Whether Plaintiff is entitled to an award of
attorney's fees and expenses under 28 U.S.C. § 1447(c)?
3) If so, what constitutes a reasonable award of
attorney's fees and expenses?
The Court will address each issue in turn.
III. PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND EXPENSES WAS NOT WAIVED
AND WAS TIMELY FILED.
When a case is remanded because a district court lacks subject matter
jurisdiction to hear the case, "an order remanding the case may require
payment of just costs and any actual expenses, including attorney fees,
incurred as a result of removal." 28 U.S.C. § 1447(c). Plaintiff made
no request for attorney's fees at the time he moved for a remand before
Judge Aspen. The order remanding the case was entered on December 23,
2003. Plaintiff filed his motion for attorney's fees and expenses
twenty-three days later on January 15, 2004. Defendants contend that
Plaintiff's motion should be denied because (1) he waived the motion by
failing to request attorney's fees at the time he filed his motion for
remand, or alternatively, (2) he did not timely file his motion, because
he did not file it within fourteen days of Judge Aspen's order of remand. A. PLAINTIFF DID NOT WAIVE HIS RIGHT TO REQUEST ATTORNEY'S FEES AND
Defendants argue that Plaintiff waived his right to request attorney's
fees or actual expenses when he failed to make any mention or request for
fees at the time he filed his motion to remand on October 24, 2003,
citing Graft v. Alcoa, No. 1:02-cv01848-JDT-TAB, 2003 WL 1984347, at *5
(S.D. Ind. Apr. 4, 2003) (declining to award costs and expenses to the
plaintiff's because (1) the plaintiff's did not request relief in their
motion to remand, and (2) because, even if the plaintiffs had requested
relief, the defendants had a reasonable belief that removal was
Plaintiff was not required to request attorney's fees and actual
expenses as part of his motion to remand because district courts retain
jurisdiction to consider collateral matters after remand and attorney's
fees may be awarded under a separate order from the order remanding the
case. Wisconsin v. Hotline Industries, Inc., 236 F.3d 363, 365 (7th Cir.
2000). In Hotline, the Seventh Circuit rejected the argument that the fee
award had to be included in the very same order remanding the case. Id.
See also, Citizens For a Better Environment v. The Steel Co., 230 F.3d 923,
926 (7th Cir. 2000) ("In particular a court may lack authority to resolve
the merits of a claim yet have jurisdiction to award costs and attorney's
fees to the prevailing party.")
B. PLAINTIFF'S MOTION WAS TIMELY FILED.
Defendants argue that Plaintiff's motion was untimely under
Fed.R.Civ.P. 54(d)(2)(b) because it was not filed within fourteen days of
the remand order. Any claim for attorney's fees and related nontaxable expenses shall be made by motion
within fourteen days of the entry of judgment, unless otherwise provided
by statute or order of the court. Fed.R.Civ.P. 54(d)(2)(A)-(B). The
motion must specify the judgment and the statute entitling the moving
party to the award and it must state the amount sought or provide a fair
estimate of that amount. Fed.R.Civ.P. 54(d)(2)(B).
Northern District of Illinois Local Rule 54.3(b) gives the moving party
ninety days after entry of a judgment to file a motion pursuant to
Federal Rule of Civil Procedure 54(d)(2)(B), unless the court's order
includes a different schedule for such filing. N.D. Ill. L.R. 54.3. A
court may enter an order with respect to the filing of a fee motion
pursuant to Federal Rule 54 either before or after entry of judgment. Id.
If the court has not entered such an order before a motion is filed
pursuant to Federal Rule 54(d)(2)(B), then after the motion is filed, the
court may order the parties to comply with the procedure set out in Local
Rule 54.3 as a post-filing rather than as a pre-filing procedure. Id.
The order remanding this case to state court was entered on December
23, 2003. Plaintiff filed his motion for attorney's fees and actual
expenses twenty-three days later on January 15, 2004. This filing was in
accordance with the ninety-day filing requirement set forth in Local Rule
54.3(b). The district court's remand order did not contain a different
schedule for filing, and the fourteen-day limit set forth in Federal Rule
of Civil Procedure 54(d)(2)(B) is inapplicable because the Local Rule is
an order of the court. See Fed.R.Civ.P. 54(d)(2)(B) ("Unless otherwise
provided by statute or order of the ...