[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 25, 2006
No. 05-10868 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-10105-CV-KMM
JIMMY BAUKNIGHT,
NANCY A. BAUKNIGHT,
H. TEAGUE SKAGGS, JR.,
GEORGE W. ROCKETT,
KATHLEEN ROCKETT,
Plaintiffs-Appellants,
versus
MONROE COUNTY, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 25, 2006)
Before DUBINA and KRAVITCH, Circuit Judges, and STROM *, District Judge.
KRAVITCH, Circuit Judge:
The issue presented in this appeal is whether the district court abused its
discretion when it denied the appellants’ motion under 28 U.S.C. § 1447(c) for
costs and attorneys’ fees incurred as a result of the appellee’s removal of the action
to federal court. After oral argument and a thorough review of the record, we hold
that the district court did not abuse its discretion, and accordingly, we affirm the
judgment of the district court.
I.
The appellants, Jimmy and Nancy A. Bauknight, H. Teague Skaggs, Jr., and
George W. and Kathleen Rockett, own separately platted and residentially zoned
lots in Big Pine Key, Florida. In late 1995 and early 1996, each of the appellants
applied for a building permit to construct a single-family home. Monroe County
notified them that they met the applicable requirements and issued each of them a
Dwelling Unit Allocation (“DUA”). The DUA, however, was conditional on the
satisfaction of a concurrency requirement adopted in the Monroe County
Comprehensive Plan, which limited future construction until there was an increase
in the service level of U.S. Highway 1.
*
Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,
sitting by designation.
2
By 2002, the concurrency requirements still had not been met, preventing
appellants from building on their lots. Ultimately, the Monroe County
Commissioners recognized the problem and adopted the conclusions of a specially
appointed beneficial use special master who determined that the concurrency
requirement of the Comprehensive Plan denied the appellants (and others similarly
situated) all reasonable economic use of their properties. The appellants were then
issued building permits.
In late 2004, the appellants filed a complaint against the Monroe County
Board of Commissioners and Monroe County in Florida state court. Count I of the
complaint alleged a violation of the Takings Clause of the Fifth Amendment to the
U.S. Constitution and asked for damages and attorneys’ fees pursuant to 42 U.S.C.
§§ 1983 and 1988. Count II of the complaint alleged a violation of the prohibition
against uncompensated takings found in Article 10, Section 6 of the Florida
Constitution.
Monroe County removed the action to the United States District Court for
the Southern District of Florida on federal question grounds under 28 U.S.C.
§§ 1441 and 1443. In response, the appellants moved to remand the case to state
court. Although they acknowledged that federal court is an appropriate venue for
adjudication of federal rights, they argued that the district court lacked subject
3
matter jurisdiction over the federal claim, and therefore the district court was
required to remand the case under 28 U.S.C. § 1447(c). Specifically, the appellants
claimed that their federal takings claims were not ripe because they had not yet
exhausted their state court remedies as required by Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).
The appellants also asked for the payment of just costs and actual expenses,
including attorneys’ fees.
Monroe County filed a Response in Opposition to Plaintiffs’ Motion for
Remand to State Court. The County averred that removal was proper because the
takings claim was a federal question and that the right to removal is separate from
the question of whether a claim is ripe for adjudication.
The appellants then filed a Supplemental Motion to Remand to State Court
and Motion for Award of Fees and Costs Under 28 U.S.C. § 1447(c), reasserting
their argument that the district court was required to remand for lack of subject
matter jurisdiction. The appellants also argued that they were entitled to
reasonable costs and attorneys’ fees because Monroe County’s removal of the
action was “objectively unreasonable and improvident in light of Eleventh Circuit
case law.”
In early 2005, the district court granted the appellants’ motion in a short
4
order to remand. Explaining that it lacked subject matter jurisdiction because the
federal claim was premature, the district court (1) dismissed without prejudice
Count I of the appellants’ complaint; (2) granted the appellants’ motion to remand;
and (3) denied the appellants’ request for costs and expenses incurred as a result of
the removal.
II.
The denial of costs and fees under 28 U.S.C. § 1447(c) is reviewed for abuse
of discretion. Legg v. Wyeth, 428 F.3d 1317, 1320 (11th Cir. 2005); Fowler v.
Safeco Ins. Co. of Am., 915 F.2d 616, 617 (11th Cir. 1990).
III.
The federal removal statute, 28 U.S.C. § 1441, “grant[s] a right to a federal
forum to a limited class of state-court defendants” in civil cases. Martin v.
Franklin Capital Corp., 546 U.S. ___, 126 S. Ct. 704, 711 (2005). Because this
case involved a federal question, the appellee appeared to fall within this class
permitting removal. 28 U.S.C. § 1441(b). If the federal court lacks subject matter
jurisdiction, however, the case must be remanded, and “[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.” 28 U.S.C. § 1447(c).
Recently, the Supreme Court enunciated a standard to guide the district
5
courts in deciding whether to award fees when remanding a case to state court
because of improper removal. Martin, 126 S. Ct. at 711. The Court held that
“[a]bsent unusual circumstances, courts may award attorney’s fees under § 1447(c)
only where the removing party lacked an objectively reasonable basis for seeking
removal. Conversely, when an objectively reasonable basis exists, fees should be
denied.” Id. Explicitly rejecting the notion that the statute created a presumption
in favor of awarding fees, the Court explained that § 1447(c) only authorized an
award of costs and fees when such an award was just. Id. at 709-10. The
reasonableness standard was ultimately the result of balancing “the desire to deter
removals sought for the purpose of prolonging litigation and imposing costs on the
opposing party, while not undermining Congress’ basic decision to afford
defendants a right to remove as a general matter, when the statutory criteria are
satisfied.”1 Id. at 711.
The appellants contend that the County’s removal of the action was
objectively unreasonable, and therefore they are entitled to an award of costs and
fees. They argue that the removal was devoid of fair support because the case law
in the Eleventh Circuit, of which the appellee was well aware, clearly provides that
a federal takings claim is not ripe for adjudication in federal court until the plaintiff
1
The standard enunciated in Martin supercedes prior decisions of the Eleventh Circuit in
so far as they conflict with Martin.
6
has pursued adequate state procedures to provide just compensation, and
consequently, in this case the federal courts lacked subject matter jurisdiction over
the claim.2 E.g., Reahard v. Lee County, 30 F.3d 1412, 1418 (11th Cir. 1994);
Neumont v. Monroe County, 242 F. Supp. 2d 1265, 1288 (S.D. Fla. 2002).
Regarding the ripeness of their federal claim, the appellants are undoubtedly
correct. Williamson County Regional Planning Commission v. Hamilton Bank of
Johnson City “requires potential federal court plaintiffs to pursue any available
state court remedies that might lead to just compensation before bringing suit in
federal court under section 1983 for claims arising under the Fourteenth and Fifth
Amendments for the taking of property without just compensation.” Fields v.
Sarasota Manatee Airport Auth., 953 F.2d 1299, 1303 (11th Cir. 1992) (citing
Williamson County, 473 U.S. at 194). Because the Fifth Amendment only
“proscribes takings without just compensation, no constitutional violation occurs
until just compensation has been denied.” Williamson County, 473 U.S. at 194
n.13.
This court previously has recognized that the interplay between 28 U.S.C.
2
The appellants also argue for the first time in their reply brief that the district court
abused its discretion by denying the motion for costs and fees without providing the standards
and reasons underlying the denial. Because the appellants raise this argument for the first time
in their reply brief, it is not properly before the court and we need not consider it. Hall v. Coram
Healthcare Corp., 157 F.3d 1286, 1290 (11th Cir. 1998).
7
§ 1738 3 and Williamson County “presents a jurisdictional problem” that can
ultimately prevent a plaintiff with a federal takings claims from having that claim
heard in a federal court. Fields, 953 F.2d at 1302-03. Although Williamson
County prevents a plaintiff from proceeding initially in federal court,
if a litigant brings a takings claim under the relevant state procedure,
he runs the risk of being barred from returning to federal court; most
state courts recognize res judicata and collateral estoppel doctrines
that would require a state court litigant to raise his federal
constitutional claims with the state claims, on pain of merger and bar
of such federal claims in any attempted future proceeding. Thus,
when a would-be federal court litigant ventures to state court to
exhaust any potential avenues of obtaining compensation, in order to
establish that a taking “without just compensation” has actually
occurred as required by Williamson County, he finds himself forced to
raise the federal law takings claim even though he would prefer to
reserve the federal claim for resolution in a section 1983 suit brought
in federal court.
Id. at 1303.
This circuit has created a mechanism, called a Jennings reservation, through
which a plaintiff can “‘reserve her constitutional claims for subsequent litigation in
federal court’ by ‘making on the state record a reservation as to the disposition of
3
28 U.S.C. § 1738 provides:
[The Acts of the legislature of any State, Territory, or Possession of the United
States, or] records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.
This section “requires federal courts to give the same preclusive effect to state court judgments
that the issuing courts would afford.” Fields, 953 F.2d at 1302 n.1.
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the entire case by the state courts’ to preserve access to a federal forum.” Id.
(quoting Jennings v. Caddo Parish Sch. Bd., 531 F.2d 1331, 1332 (5th Cir. 1976)).
This court further refined the reservation process in Fields, a case addressing
whether a Jennings reservation could be applied, under circumstances similar to
those in this case, to a federal takings claim. Holding that “[t]he potential federal
court litigant must be precluded from filing his or her suit in the federal court in the
first instance and must be in state court involuntarily” for a Jennings reservation to
be effective, Saboff v. St. John’s River Water Mgmt. Dist., 200 F.3d 1356, 1360
(11th Cir. 2000), this court determined that a case involving a federal takings claim
can satisfy these prerequisites. Fields, 953 F.2d at 1306.
Ripeness is an issue of subject matter jurisdiction, Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 (11th Cir. 1989), and this circuit has remanded to
state court both federal and state takings claims after their removal when the
federal takings claim was not yet ripe, Reahard, 30 F.3d at 1418. Some courts
have noticed, however, that these cases place plaintiffs and defendants on unequal
footing regarding their access to a federal forum. For example, a district court case
from the Northern District of Georgia discussed the uncertainty of whether a
defendant could make a Jennings reservation and took steps to preserve the
defendant’s right to have the federal takings claim decided in a federal court. BFI
9
Waste Sys. of N. Am. v. DeKalb County, 303 F. Supp. 2d 1335, 1348 (N.D. Ga.
2004) (remanding federal and state takings claims, citing cases noting lack of
authority on whether a defendant can make a Jennings reservation, and directing
the clerk not to close the case in order to preserve the federal takings claim). In
addition, several district courts outside of this circuit are divided on whether a
defendant’s right to removal of a federal claim is separate from the issue of
ripeness.4
Moreover, the appellants included a federal question in their state court
complaint and did not affirmatively plead that it was not ripe for adjudication.
Despite the district court’s observation that the inclusion of the federal claim was
an attempt to make a Jennings reservation, at no point in the appellants’ complaint,
motion for remand to state court, or Supplemental Motion to Remand to State
Court and Motion for Award of Fees and Costs Under 28 U.S.C. § 1447(c) did the
4
Compare, e.g., Jones v. City of McMinnville, No. COV/04-0047-AA, 2004 WL 848188
(D. Or. Apr. 20, 2004), and Seiler v. Charter Twp. of Northville, 53 F. Supp. 2d 957 (E.D. Mich.
1999) (“[T]he right to remove federal claims is separate and distinct from the question of
whether those claims are ripe for adjudication.”), with, e.g., Quivira Vill., LLC v. City of Lake
Quivira, No. Civ.A.03-2549-KHV, 2004 WL 1701070 (D. Kan. July 29, 2004) (discussing, in
consideration of motion to reconsider award of attorneys’ fees, previous order remanding federal
and state takings claim and awarding attorneys’ fees to plaintiff where defendant did not address
issue of costs in response to plaintiff’s original motion to remand and for award of fees, and
denying motion for reconsideration), and Milliken v. Town of Addison, No.
Civ.A.3:02-CV-1164-D, 2002 WL 31059802 (N.D. Tex. Sept. 13, 2002) (refusing to stay the
federal claim because of lack of ripeness and remanding the federal and state claims, but denying
plaintiff’s motion for fees and costs under 28 U.S.C. § 1447(c) because plaintiff affirmatively
pleaded a federal question cause of action in her state court complaint).
10
appellants refer to Jennings. The appellee had to act quickly after receipt of the
complaint, see 28 U.S.C. § 1446(b) (providing that notice of removal must be filed
within thirty days after receipt of the initial pleading setting forth the claim on
which removal is based), and without a clear indication that the appellants had
entered a Jennings reservation and no authority providing that a defendant could
make one, removing the case in an effort to preserve its right to a federal forum
seems quite reasonable. Therefore, because we conclude that the removal was
objectively reasonable and there are no unusual circumstances that require a
different result, we hold that the district court did not abuse its discretion by
refusing to award costs and fees to the appellants under 28 U.S.C. § 1447(c).
IV.
For the foregoing reasons, we AFFIRM the decision of the district court.
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