United States Court of Appeals
For the Eighth Circuit
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No. 18-1924
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Heather Hildreth; D.H., (Minor); M.S., (Minor)
lllllllllllllllllllllPlaintiffs - Appellants
v.
City of Des Moines; Jeffrey Lester; James Butler; Katharine Massier; Dana
Wingert; Animal Rescue League of Iowa, Inc.; Josh Colvin; Loretta Eaton; Tina
Updegrove; Jason M. Casini; Scott Sanders
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: May 17, 2019
Filed: July 15, 2019
[Unpublished]
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Before BENTON, WOLLMAN, and GRASZ, Circuit Judges.
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PER CURIAM.
After their family dog was seized and euthanized, Heather Hildreth and her two
children filed suit in state court against the City of Des Moines, the Animal Rescue
League of Iowa, and various individuals. The dog had bitten two children, was
deemed dangerous under a city ordinance, and was euthanized three days before a
trial seeking the dog’s safe return. Plaintiffs’ amended petition asserted state law
claims of outrageous conduct; trespass; conversion; negligent and intentional
infliction of emotional distress; and negligent retention and failure to supervise. The
defendants removed the action to federal district court. The district court1 granted the
plaintiffs’ motion to remand. We affirm.
The plaintiffs first argue that the district court abused its discretion in denying
their motion for attorney fees and sanctions. See Convent Corp. v. City of N. Little
Rock, 784 F.3d 479, 483 (8th Cir. 2015) (standard of review); Adams v. USAA Cas.
Ins. Co., 863 F.3d 1069, 1076 (8th Cir. 2017) (standard of review). See also 28
U.S.C. § 1447(c) (authorizing attorney fees when a case is remanded after removal);
Fed. R. Civ. P. 11(c) (authorizing sanctions for violations of Rule 11(b)). They
contend that the defendants improperly delayed removing the case to federal district
court until after the plaintiffs had filed a cross-motion for summary judgment, well
after the thirty-day removal deadline. See 28 U.S.C. 1446(b)(1) (imposing a thirty-
day removal deadline after initial pleading that sets forth a federal claim is received);
28 U.S.C. § 1446(b)(3) (imposing a thirty-day removal deadline after amended
pleading that sets forth a federal claim is received if initial pleading was not
removable).
We find no abuse of discretion in the district court’s decision to deny sanctions.
The standard for awarding attorney fees and sanctions is one of objective
reasonableness. See Convent Corp., 784 F.3d at 483 (attorney fees under § 1447(c));
Adams, 863 F.3d at 1077 (sanctions under Rule 11(c)). Although the court
determined that the plaintiffs had asserted federal claims in both their initial and
amended petitions, they first specifically asserted a claim under 42 U.S.C. § 1983 in
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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their cross-motion for summary judgment. Having themselves argued that their
original and amended petitions did not contain federal claims, we will not now give
credence to their argument that those allegedly nonexistent federal claims were so
obvious that the district court abused its discretion in denying their claim for
sanctions and attorney fees. Moreover, while a party typically may not assert a new
claim in a motion for summary judgment, see Gilmour v. Gates, McDonald & Co.,
382 F.3d 1312, 1315 (11th Cir. 2004), it was not objectively unreasonable for the
defendants here to believe that the plaintiffs had attempted to do so in their cross-
motion.
We likewise find no abuse of discretion in the district court’s denial of the
plaintiffs’ motion to seal counsel’s Americans with Disability Act requests. Flynt v.
Lombardi, 885 F.3d 508, 511 (8th Cir. 2018) (standard of review). The court sealed
the attorney’s medical records but refused to seal additional filings that mentioned the
attorney’s requests. The court did not err in concluding that the filings did not refer
to or “disclose confidential information with such particularity that sealing them
[was] warranted.”
Finally, the district court did not abuse its discretion in denying the plaintiffs’
motions for recusal. According to the plaintiffs, their attorney had attended law
school with the district judge and there was animosity between the two. This
allegation, along with the attorney’s previous ethics complaints against the judge, as
well as against the magistrate judge, do not meet the “heavy burden of proof” that
must be met to overturn a district judge’s denial of a motion for recusal. In re
Steward, 828 F.3d 672, 682 (8th Cir. 2016) (quoting Fletcher v. Conoco Pipe Line
Co., 323 F.3d 661, 664 (8th Cir. 2003)). The plaintiffs have failed to present
evidence from which we could conclude that the judge’s and the magistrate judge’s
impartiality could be questioned. See id.; see also Gilbert v. City of Little Rock, 722
F.2d 1390, 1399 (8th Cir. 1983) (“[A] controversy between a trial judge and an
attorney for parties to an action would not require disqualification of the judge in
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absence of showing of bias or personal prejudice to the parties.”). We have also held
that a lawyer’s previous filing of an ethics complaint “is insufficient to establish that
the judge’s impartiality in this matter might reasonably be questioned.” Rodgers v.
Knight, 781 F.3d 932, 943 (8th Cir. 2015).
The judgment is affirmed.2
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2
We also deny the defendants’ motions for sanctions and for leave to file a sur-
reply brief, as well as the plaintiffs’ requests for extension of time to resist the motion
for sanctions and to reconsider oral argument.
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