United States District Court, N.D. Illinois
May 7, 2004.
WILLIAM HUSKO, Plaintiff
GEARY ELECTRIC, INC., an Illinois corporation, and Magistrate Judge Morton Denlow AXIAN COMMUNICATIONS, INC., f/k/a PEGASUS COMMUNICATIONS, INC., a Florida corporation, Defendants
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 court, the motion must be filed and served no later than 14 days after entry of judgment."
(emphasis added)). Therefore, Plaintiff's motion was timely filed.
IV. PLAINTIFF IS ENTITLED TO ATTORNEY'S FEES AND EXPENSES UNDER
28 U.S.C. § 1447(c).
A. THE STATUTE AS AMENDED
28 U.S.C. § 1447(c) was amended in November 1988. Judicial Improvements
and Access to Justice Act of 1988, Pub.L. 100-702, § 1016,102 Stat.
4669; Tenner v. Zurek, 168 F.3d 328, 329 (7th Cir. 1999). Prior to the
amendment, § 1447(c) authorized a district court upon remand to award
"just costs," but not attorney's fees, to the party resisting removal. As
a result, most courts declined to award attorney's fees unless there was
a demonstration of bad faith on the part of the removing party. See
Miranti v. Lee, 3 F.3d 925, 927 n.2 (5th Cir. 1993). The 1988 amendment
to 28 U.S.C. § 1447(c) created an explicit authorization for the award of
attorney's fees: "An order remanding the case may require payment of just
costs and actual expenses, including attorney's fees, incurred as a
result of the removal." The amendment removed the need to show bad faith
to recover attorney's fees. Tenner, 168 F.3d at 330. However, bad faith
still may be considered as a factor in awarding fees, because "Congress
has unambiguously left the award of fees to the discretion of the
district court." Id.
B. THE CASE LAW
The Seventh Circuit has adopted the following analysis in applying
28 U.S.C. § 1447(c). First, when removal is improper, a plaintiff
presumptively is entitled to an award of fees. Hart v. Wal-Mart Stores, Inc., 360 F.3d 674, 678 (7th Cir.
2004). Second, this presumption is rebuttable. See id. at 677. Third, the
appropriateness of a fee award involves reviewing the merits of the remand
order, and an award of attorney's fees will be denied if the remand order
was improper. Id. Fourth, the Court has a broad discretion in deciding
whether to award fees. Sirotzky v. N.Y. Stock Exch., 347 F.3d 985, 987
(7th Cir. 2003).
C. APPLICATION OF STANDARDS
Plaintiff is presumptively entitled to an award of attorney's fees and
expenses, but this presumption is rebuttable. Plaintiff will not be
awarded attorney's fees if Judge Aspen's remand order was improper or if
Defendants' basis for removal was itself reasonable. See Castellanos v.
U.S. Long Distance Corp., 928 F. Supp. 753, 757 (N.D. Ill. 1996) (denying
costs and attorney's fees because defendants presented a valid
jurisdictional question); Markham v. Vancura, No. 02-C50096, 2002 WL
1291807, at *3 (N.D. Ill. June 11, 2002) ("The court may exercise its
discretion based on the propriety of removal."). However, there was
nothing improper in Judge Aspen's remand order, and Defendants' basis for
removal was premised on inaccurate statements of the law.
1. Judge Aspen's Remand Order
Judge Aspen remanded Plaintiff's case because all of Plaintiff's claims
were state law claims, none of which were completely preempted by ERISA.
Husko, 2003 U.S. Dist. LEXIS 23122, at * 14-15. Because a plaintiff is
considered the master of his complaint, a cause of action generally only
"arises under" federal law where the federal cause of action appears on the face of plaintiff's well-pleaded complaint. Id. at *4. This
is called the well-pleaded complaint rule. An exception to the
well-pleaded complaint rule arises when a plaintiff has omitted the
citation of federal causes of action from his complaint. A federal cause
of action that completely preempts a state cause of action constitutes a
cause of action that arises under federal law, and therefore is a basis
for federal jurisdiction even if such argument was not raised in a
plaintiff's well-pleaded complaint. Id. at *5-6. ERISA completely preempts
state law only where a plaintiff has brought a claim that is subject to
§ 502(a) of ERISA. Id. at *7 (citing Metropolitan Life Ins. Co. v,
Taylor, 481 U.S. 58, 62-63, 64-65 (1987)).
Judge Aspen noted that Defendants inaccurately stated mat complete
preemption can be based on 29 U.S.C. § 1144, which codifies ERISA § 514(a).
Id. at *8 n.5. However, 29 U.S.C. § 1144(a) involves conflict
preemption, which occurs when a case "relates to" a benefit plan. Id.
Conflict preemption is different from complete preemption because
conflict preemption is nothing more than an affirmative defense that does
not trump the well-pleaded complaint rule. Rice v. Panchal, 65 F.3d 637,
639 (7th Cir. 1995). When a claim is subject to conflict preemption under
§ 514(a) of ERISA, it merely serves as a defense to a state law action,
but does not provide a basis for remand. Id. The United States Supreme
Court has stated that ERISA complete preemption applies only to cases
enforceable under § 502(a). Taylor, 481 U.S. at 63-64. Therefore, because complete preemption is possible only under § 502(a)
of ERISA, Judge Aspen analyzed Plaintiffs claims using the three-part
Jass test, which determines whether an action falls within the scope of
§ 502(a). Judge Aspen concluded that Defendants would not be allowed to
remove Plaintiff's action because they failed to satisfy all three prongs
of the Jass test. Husko, 2003 U.S. Dist. LEXIS 23122, at *15. Plaintiff
was not a participant in the pension plan, he could not use § 502(a) to
obtain specific performance of his sales contract (which was the relief
he sought), and it is not necessary for the court to consider the pension
plan in order to determine whether to award Plaintiff specific performance
of his sales contract. Id. at *11, *15.
2. Defendants' Basis for Removal Was Unreasonable and Was Premised Upon
Misstatements of the Law.
Defendants argued that Plaintiff's case was properly removable to
federal court because "The Seventh Circuit Has Established that Any
Action that `Relates to' an ERISA Plan Creates a Federal Question and is
Therefore Subject to Removal." Def. Remand Opposition Memo, at 5. This
statement is incorrect. Defendants first cite to Bartholet v. Reishauer
A.G., 953 F.2d 1073
(7th Cir. 1992), claiming that "the Seventh Circuit
has provided a clear test for removal under ERISA preemption. If the
action `relates to' an ERISA Plan, it is completely preempted." Def.
Remand Opposition Memo, at 5. Defendants further contend that Bartholet
holds that "the proper test for complete preemption and removal is
whether the action `relates to' an ERISA Plan." Id. In Bartholet, the Seventh Circuit stated that a complaint containing a
claim depending on the common law of contracts is actually based on ERISA
if that contract is a pension plan. Bartholet, 953 F.2d at 1075. The
court explained that a suit based on the difference between a pension
promised by contract and the pension established by an actual pension plan
"relates to" the pension plan, thus falling within the scope of ERISA §
514(a). Id. at 1077. However, Bartholet does not state that because a
claim "relates to" ERISA it is automatically completely preempted.
Although it is true that ERISA applies to cases where claims "relate to"
pension plans, this proposition does not equate to complete preemption to
permit removal to federal court. This Court acknowledges that the
Bartholet decision is difficult to comprehend and may appear to support
Defendants' theory of jurisdiction. However, the later Seventh Circuit
decisions in Jass and Rice clarify the distinction between "conflict
preemption" and "complete preemption."
Defendants also cite Dranchak v. Akzo Nobel, Inc., 88 F.3d 457
(7th Cir. 1996), for the proposition that contracts specifying levels of
pension and welfare benefits fall within the domain of federal law. Def.
Remand Opposition Memo, at 7. Defendants conclude that because Plaintiffs
case contains a claim for specific performance to provide retirement
benefits under a section of the Contribution Agreement that specifies
levels of pension benefits, there is a federal law issue that "relates
to" the ERISA Pension Plan and therefore was removed properly. Id.
Dranchak is not on point because it does not involve the issue of
removal jurisdiction. Rather, the case was filed in federal court and the
issue decided was whether federal law or state law should govern the rule of decision. Id.
Defendants claim that Seventh Circuit case law stands for the
proposition that any action that "relates to" an ERISA plan may be
removed, yet current Seventh Circuit case law specifically states that
this proposition is incorrect. See Jass v. Prudential Health Care Plan,
Inc., 88 F.3d 1482, 1487 (7th Cir. 1996) and Rice v. Panchal, 65 F.3d 637,
639-40 (7th Cir. 1995). In Rice, the Seventh Circuit stated that
"conflict preemption" merely serves as a defense to a state law claim and
does not confer federal question jurisdiction. Section 514(a) of ERISA
is the conflict preemption statute preempting any state law that "relates
to" an ERISA plan. Id. at 645; see also 29 U.S.C. § 1144(a). However, §
514(a) preemption is not complete preemption, and the Seventh Circuit
concluded that complete preemption under § 502(a) creates federal
question jurisdiction while conflict preemption under § 514(a) does not.
Rice, 65 F.3d at 640. Conflict preemption merely requires that a state
court apply federal laws.
The Seventh Circuit decided a case after both Bartholet and Dranchak
that reached the same conclusions as Rice. In Jass v. Prudential Health
Care Plan, Inc., 88 F.3d 1482, 1485 (7th Cir. 1996), the Seventh Circuit
stated that preemption under § 514(a) of ERISA, known as "conflict
preemption," is a defense to a state law claim. The court also thoroughly
discussed the complete preemption exception to the well-pleaded complaint
rule and reiterated the distinction between § 502(a) complete preemption
and § 514(a) conflict preemption. Id. at 1486-87. It then laid out the
three factors relevant in determining whether a claim falls within the scope of § 502(a) and is thus completely
preempted by federal law. Id. at 1487. The law in the Seventh Circuit is
very clear on this point. Complete preemption can overcome the
well-pleaded complaint rule and is grounds for removal to federal court.
Conflict preemption is simply an affirmative defense to a state law claim
that a defendant may argue in state court. When a claim "relates to" an
ERISA plan, there is conflict preemption under § 514(a) of ERISA, which
does not warrant removal to federal court. 29 U.S.C. § 1144(a). These
principles are made clear in Rice, 65 F.3d at 639-40 and Jass, 88 F.3d at
In the exercise of discretion, this Court finds this to be an
appropriate case for the award of attorney's fees and actual expenses
because Defendants did not rebut the preemption that fees should be
awarded. They did not meet even one of the three standards under the
Jass test and ignored the important difference between "complete
preemption" and "conflict preemption" in their arguments to Judge Aspen.
In fact, Defendants made no mention of either the Jass or Rice decisions
in their brief opposing the motion to remand.
C. THE PROPER AMOUNT OF ATTORNEY'S FEES AND ACTUAL EXPENSES
1. Total Amount of Fees to be Awarded
Plaintiff has filed two fee petitions and an oral request for
additional fees hi the total amount of $34,379.33. Plaintiff's first fee
petition in the amount of $27,240.99 seeks $23,320.00 in attorney's fees
for 84.8 hours of work by attorney John J. Foley at a rate of $275.00 per
hour, plus $3,920.99 for actual expenses incurred for Westlaw research.
Pl. Mot Ex. 1. Plaintiff's second fee petition in the amount of $5,488.34
seeks $5,335.00 in attorney's fees for 19.4 hours of work by attorney
John J. Foley at a rate of $275.00 per hour, plus $153.34 for actual
expenses incurred for Westlaw research. Pl. Reply Memo. Ex. 4. At the
time of the oral argument before the Court, Plaintiff orally requested an
additional $1,650,00 for six hours of work by Mr. Foley for the
preparation and court appearances involved in connection with this
Defendants claim that the amount of Plaintiff's attorney's fees should
be reduced because the hourly rate and time spent was unreasonable. In
addition, Defendants contend that Plaintiff should not be compensated for
responding to two motions filed by Defendants in federal court while the
motion to remand was pending. For the following reasons, the Court awards
Plaintiff the following fees and actual expenses:
First fee petition: 74.8 hours at $275 per hour
$20,570.00 Westlaw research 3,920.99
Second fee petition: 19.4 hours at $275 per hour
5,335.00 Westlaw research 153.34
Oral request: 6 hours at $275 per hour
$1.650.00 TOTAL $31,629.33 2. Appropriateness of Hourly Rate Charged by Plaintiff's Attorney for
This Court has reviewed Plaintiff's fee petitions and finds the hourly
rate of $275.00 per hour for Plaintiff's counsel, John J. Foley, an
attorney with thirty years of litigation experience, to be reasonable.
The Court also finds that his decision to perform all of the work on this
case without the benefit of associates to be efficient and proper. The
Court has reviewed the time records and finds the services to be
necessary and appropriate and that the result achieved was successful.
The Court has adjusted Plaintiff's request by subtracting 10 hours of
work in accordance with one of the objections raised by Defendants as
discussed in section 3 below.
Defendants claim that the amount of Plaintiff's attorney's fees must be
reduced because the hourly rate and the time spent on each task are
unreasonable. Defendants cite two cases in which the amount of attorney's
fees awarded was significantly lowered from the plaintiff's original
request. In Bebble v. National Air Traffic Controllers' Ass'n, No.
00-C4055, 2001 WL 1286794, at *3 (N.D. Ill. Oct. 23, 2001), the court
inquired into the reasonableness of the requested fees and concluded that
the hourly rate charged was excessive for the routine work being
performed. The court also noted that not enough detail was given regarding
what specifically was researched by the attorney and that no explanation
was given as to why a less experienced attorney could not have performed
the research. Id. Thus, the court held that the reasonable rate for an
attorney supervising such routine work should be $200 per hour and not
$350 per hour. Id. In Marros v. Naperville Family Physicians, Inc., No. 01-C2297, 2002 WL
370207, at *2 (N.D. Ill. Mar. 8, 2002), the court stated that the hourly
rate charged by the plaintiff's attorney was excessive for the majority
of work performed and that no explanation was given by the plaintiff as
to why a less experienced attorney could not have performed these tasks.
The court also noted that the plaintiff's fee petition failed to state
exactly what issues had been researched by the attorney. Id. Therefore,
the court significantly reduced the amount of attorney's fees awarded
from the plaintiff's original request. Id. at *3.
Plaintiff's Motion for Attorney's Fees and Actual Expenses in this case
contains the information that was missing in both Bebble and Marros. In
Plaintiff's motion, he provides an affidavit from his attorney, John J.
Foley, specifying Mr. Foley's legal experience, his normal hourly rate,
and a breakdown of the hours Mr. Foley worked in connection with
Defendants' removal attempt, listing the specific tasks performed. Pl.
Mot. Exs. B, 1. Also, in Plaintiff's reply memo, Mr. Foley provided a
supplemental affidavit explaining the reasons why he personally performed
all of the work in Plaintiff's case. Pl. Reply Memo. Ex. C. He stated
that he is a partner in a five-lawyer firm and is the only attorney whose
practice is exclusively devoted to civil litigation. Id. Mr. Foley
specified the amount of time he spent on each task in connection with
preparing for Defendants' motions. Id. Plaintiff also has produced the
specific breakdowns for all Westlaw research conducted and an additional
breakdown of tasks performed by Mr. Foley since the original motion was
filed. Pl. Reply Memo. Exs. 1-4. The amount of attorney's fees and actual
expenses requested by Plaintiff are reasonable and are supported by
considerable evidence. 3. Attorney's Fees and Actual Expenses Incurred in Preparation
for Defendants' Motion to Dismiss, or in the Alternative, to
Transfer Venue and Defendants' Motion to Stay and Compel
Dispute Resolution Process
After Defendants removed Plaintiff's claim to federal court, they filed
a motion to dismiss, or in the alternative, to transfer the case to the
Southern District of Florida, pursuant to Federal Rule of Civil Procedure
12(b)(3). Def. Mot. to Dismiss at 1. Defendants stated in their motion
that "[b]ecause there is federal question jurisdiction under [ERISA] . .
., this matter must be litigated in the United States District Court for
the Southern District of Florida." Id. at 2. That motion was based on
federal law and, by Defendants' own admission, was proper only if ERISA
gave this Court federal question jurisdiction. Defendants can not bring
this same motion in state court because the Federal Rules of Civil
Procedure and the United States Code sections are inapplicable in state
court. Therefore, all work done by Plaintiff in opposing these motions
was work done "as a result of removal," and should be included in the
actual expenses incurred by Plaintiff because of Defendants' improper
Even if Defendants plan on filing a motion to dismiss in state court,
the grounds for dismissal would be based on state law principles.
Therefore, Plaintiff's work in opposing Defendants' federal motion to
dismiss or to transfer would not be applicable to a motion brought by
Defendants in state court. Plaintiff is therefore entitled to actual
expenses, including attorney's fees, for all work done in opposing
Defendants' motion to dismiss and motion to transfer. Defendants also filed a motion to stay and to compel the agreed upon
binding dispute resolution process pursuant to Federal Rule of Civil
Procedure 12(b)(1). Def. Mot. to Stay at 1. The Parties' dispute
resolution agreement is enforceable under the Federal Arbitration Act,
and if the motion is re-filed in state court, the motion will be
substantially the same because of its basis in federal law. Therefore, as
discussed in the oral argument, ten hours of Plaintiff's attorney's fees
accrued in preparation for this motion will not be awarded.
Significantly, Plaintiff requested Defendants to stipulate to entering
and continuing these additional motions in order to defer briefing until
Judge Aspen had ruled on the motion to remand. Defendants refused. Pl.
Reply Ex. C. Defendants cannot now be heard to complain that Plaintiff
incurred fees, when Defendants could have avoided those fees by
stipulating to a deferral of the briefing schedule. V. CONCLUSION
Plaintiff's motion for attorney's fees and actual expenses was timely
filed and the amount of attorney's fees and actual expenses requested was
reasonable and fully documented. Defendants have failed to rebut the
presumption that attorney's fees and actual expenses should be awarded to
Plaintiff pursuant to 28 U.S.C. § 1447(a).
For the reasons set forth in this opinion, Plaintiff's motion for
attorney's fees and actual expenses is granted in the amount of
$31,629.33. Judgment is hereby entered in favor of Plaintiff William
Husko and against Defendants Geary Electric, Inc., and Asian
Communications, Inc., jointly and severally, in the amount of
$31,629.33. JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury.
The issues have been tried and the jury rendered its verdict.
Decision by Court. This action came to hearing before the Court. The
issues have been heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that Judgment is hereby entered in
favor of Plaintiff William Husko and against Defendants Geary Electric,
Inc., and Axian Communications, Inc. jointly and severally, in the amount
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