Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-17-2005
Hammer v. Scott
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2243
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Recommended Citation
"Hammer v. Scott" (2005). 2005 Decisions. Paper 997.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/997
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2243
MICHAEL HAMMER; MICHELLE HAMMER, HUSBAND AND WIFE;
DAVID G. NOVATNAK; PATRICIA NOVATNAK, HUSBAND AND WIFE;
GEORGE URITIS; JOANNE URITIS, HUSBAND AND WIFE;
WENDY YUENGLING,
v.
CHARLES C. SCOTT, BOTH INDIVIDUALLY AND IN HIS CAPACITY AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNA R. SCOTT;
BOROUGH OF CRESSONA, SCHUYLKILL COUNTY, PENNSYLVANIA, AND ITS
BOROUGH COUNCIL;
TOWNSHIP OF NORTH MANHEIM, SCHUYLKILL COUNTY, PENNSYLVANIA,
AND ITS BOARD OF SUPERVISORS,
CHARLES C. SCOTT,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 01-cv-01964)
District Judge: Honorable James F. McClure, Jr.
Submitted Under Third Circuit L.A.R. 34.1(a)
June 2, 2005
Before: FUENTES, GREENBERG, and COWEN, Circuit Judges.
(Filed: June 17, 2005 )
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OPINION OF THE COURT
FUENTES, Circuit Judge.
Appellant Charles C. Scott appeals an order of the District Court directing him to pay
$2,000 as his share of the reimbursement to the Plaintiffs-Appellees for their costs and
expenses, pursuant to 28 U.S.C. § 1447(c), incurred in the defective removal of this case.
Scott alleges that the District Court erred in assessing fees on him where there was no
evidence that he acted in bad faith, frivolously or without reasonable basis in the removal of
the case. In addition, Scott contends that he should not be held individually responsible for
the fees, as he was a party to the removal only in his capacity as personal representative of
the Estate of Anna R. Scott. For the following reasons, we will affirm the order of the
District Court.
I. Facts
Because we write only for the parties, we recite only the essential facts. Plaintiffs,
who are landowners in a subdivision, commenced this action on August 23, 2001 by filing
a nine-count complaint against multiple defendants in the Court of Common Pleas of
Schuylkill County, Pennsylvania. The matter arises out of a dispute regarding the condition
of a street serving the subdivision where Plaintiffs reside.
On October 12, 2001, one of the Defendants – Borough of Cressona, Schuylkill
County, Pennsylvania – filed a notice of removal to the District Court for the Middle District
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of Pennsylvania premised on federal question jurisdiction, 28 U.S.C. § 1331. Plaintiffs had
asserted, among others, claims under 42 U.S.C. § 1983. Thereafter, Plaintiffs filed a motion
to remand the matter to state court or, in the alternative, to remand certain claims and stay
federal claims pending the completion of the state court proceedings. After a magistrate
judge issued his report recommending remand, the District Court entered an order of remand
on September 26, 2002 on the grounds that removal had been procedurally defective as the
court had not received consents for removal from all of the Defendants.
In addition, although it found that there was no evidence of bad faith and that the
Defendants’ decision to remove was reasonable, the District Court nonetheless found that
Plaintiffs were entitled pursuant to 28 U.S.C. § 1447(c) to costs and expenses, including
attorney fees, incurred as a result of the defective removal.1 After the parties filed affidavits,
the District Court assessed $6,000 in fees, of which $2,000 was charged to Scott in his
individual capacity as well as in his capacity as personal representative of the Estate of Anna
R. Scott.2 Scott now appeals the fee award.
II. Discussion
1
28 U.S.C. § 1447(c) provides in pertinent part that “[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.”
2
Ordinarily, an order remanding a matter to state court will divest a district court of
jurisdiction to entertain further issues related to the proceeding. However, as we explained
in Mints v. Educ. Testing Serv., 99 F.3d 1253, 1257-58 (3d Cir. 1996), the district court may
retain jurisdiction to award costs and expenses pursuant to 28 U.S.C. § 1447(c) even after
the matter has been properly remanded.
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We have jurisdiction under 28 U.S.C. § 1291 to entertain Scott’s appeal. We review
an award of fees under 28 U.S.C. § 1447(c) for an abuse of discretion. See Roxbury Condo.
Ass’n, Inc. v. Anthony S. Cupo Agency, 316 F.3d 224, 226 (3d Cir. 2003); Mints, 99 F.3d
at 1260. A district court abuses its discretion by basing its decision on a “clearly erroneous
finding of fact, an erroneous legal conclusion, or an improper application of law to fact.”
Roxbury Condo. Ass’n, 316 F.3d at 226 (citation and quotation omitted).
Scott contends that the District Court erred in awarding costs and expenses where
there was no evidence that the Defendants had acted in bad faith in removing the case, and
where the District Court itself noted that the decision to remove was reasonable.3 As we
have noted before, a district court has “broad discretion and may be flexible in determining
whether to require the payment of fees under [28 U.S.C. § 1447(c)].” Mints, 99 F.3d at 1260.
A showing of bad faith is not a prerequisite for an award of fees under 28 U.S.C. § 1447(c),
although it may be a consideration. Id. In this matter, the District Court noted that the defect
in removal was not substantive, as it was clear that federal question jurisdiction would exist
under 28 U.S.C. § 1331 for some of Plaintiffs’ claims. Nonetheless, the manner of removal
was found defective insofar as unanimous or express consent from all Defendants was found
3
As an initial matter, we reject Plaintiffs’ contention that the issue of the award of fees
pursuant to 28 U.S.C. § 1447(c), as opposed to the amount of the fees, is not properly before
the Court. Until the fees had been quantified by the District Court, Scott was not in a
position to bring an appeal to this Court. Accordingly, we will review both the District
Court’s September 26, 2002 and April 5, 2004 orders in determining whether Scott was
properly assessed fees.
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lacking.
On the record before us, we find no abuse of discretion in the District Court’s
decision. It is well-established that removal, subject to only a few exceptions, requires
unanimity among the defendants. See Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d
Cir. 1995). In this case, the Defendant Borough of Cressona filed a notice of removal along
with two “Certificate of Concurrence” certifying that the other two Defendants – Charles C.
Scott in his capacity as representative of the Estate of Anna R. Scott, and the Township of
North Manheim, Schuylkill County, Pennsylvania – concurred in the removal. Agreeing with
the report of the magistrate, the District Court found the expression of the Defendants’
unanimous consent to be lacking to the extent that the Borough of Cressona was seeking to
represent to the court that the other Defendants concurred in the removal. E.g., Carter v.
Ingersoll-Rand Co., Inc., 2001 WL 238540 at *2 (E.D. Pa. Mar. 12, 2001) (“Courts
consistently have required each defendant to express its position to the court directly, and
have held that one defendant’s allegation that another defendant joins in removal is
insufficient.”). Accordingly, although the filing of the notice of removal was reasonable
given the existence of certain federal claims, the method and manner of removal was found
to be defective. In such circumstances, Plaintiffs were required to file motions seeking
remand before both the magistrate judge and District Court, thereby incurring expenses as
a result of Defendants’ defective removal. District courts possess broad discretion to address
the reimbursement of costs in precisely these types of situations. See 28 U.S.C. § 1447(c).
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Scott’s second contention on appeal is that the District Court erred in assessing costs
and expenses against him in his individual capacity because at the time the notice of removal
was filed on October 12, 2001, he was listed as a defendant only in his capacity as personal
representative of the Estate of Anna R. Scott. Scott was not added to the proceeding in his
individual capacity until after the Plaintiffs moved to remand and after the magistrate judge
made his report and recommendation. We note, however, that after it became apparent that
there was a potential defect in the manner of removal, Scott proceeded to oppose remand not
just in his representative capacity, but in his individual capacity as well. In particular, on
May 7, 2002, Scott filed a motion to declare Plaintiffs’ motion to remand moot. In addition,
on December 2, 2002, Scott jointly filed with the other Defendants a reply brief to Plaintiffs’
brief in opposition to their motion for reconsideration. In both pleadings, Scott participated
in the opposition to remand in his individual capacity. Accordingly, because Scott entered
the dispute regarding remand in his individual capacity, we can find no error in the District
Court’s decision to assess fees against him in that capacity.
We address one final issue raised by the appeal. Plaintiffs contend that the District
Court should have awarded them a larger amount in attorney fees, and that accordingly “this
Court should increase the fee award.” (Appellees’ Br. at 6.) We, however, decline to do so.
Having failed to file a cross-appeal from the District Court’s order, we find that Plaintiffs
cannot now contend that the District Court’s award was in error. See United States v. Tabor
Court Realty Corp., 943 F.2d 335, 343, 344 (3d Cir. 1991) (noting that although the principle
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is subject to certain exceptions, “an appellee who has not filed a timely cross-appeal may not
attack the decree with a view either to enlarging his own rights thereunder or of lessening the
rights of his adversary”) (citations omitted).
III. Conclusion
We have considered all of the arguments advanced by the parties and conclude that
no further discussion is necessary. Accordingly, the order of the District Court will be
affirmed.
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