United States District Court, S.D. West Virginia, Charleston
THE COUNTY COMMISSION OF FAYETTE COUNTY, WEST VIRGINIA, Plaintiff,
SEMINOLE WEST VIRGINIA MINING COMPLEX, LLC, KENNETH MCCOY, JASON MCCOY, MIKE ISABELL, GREAT MIDWEST INSURANCE CO., IRONSHORE SPECIALTY INS. CO., DOE INSURERS, Defendants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge.
is a motion for attorney's fees and costs, filed by the
plaintiff on April 23, 2019. The defendant Seminole West
Virginia Mining Complex, LLC (“Seminole”) filed a
response in opposition on April 26, 2019, to which the
plaintiff replied on May 3, 2019.
judgment was entered in this case on March 29, 2019, when the
court issued a memorandum opinion and order (ECF # 29)
granting the plaintiff's motion to remand and a judgment
order (ECF # 30) therewith, remanding the case to the Circuit
Court of Fayette County, West Virginia. Twenty-five days
later, the plaintiff filed the instant motion for
attorney's fees and costs under 28 U.S.C. § 1447(c).
plaintiff contends that an award of attorney's fees is
warranted because its motion was timely filed and the
defendant had no objectively reasonable basis for removal.
The defendant disputes both of these contentions, and further
argues that the plaintiff's requested amount in
attorney's fees and costs -- $63, 938 -- is unreasonable.
the first argument, Fed.R.Civ.P. 54 (d)(2) requires a motion
for attorney's fees to be filed no later than fourteen
days after an entry of judgment. Although the motion here was
filed April 23, 2019 -- twenty-five days after judgment was
entered -- the plaintiff contends that it should be deemed
timely for three alternative reasons: the fourteen-day
deadline should not apply to remand orders because remand
does not constitute a “judgment”; the motion was
initially filed with the motion to remand and simply renewed
by this motion; and the delay was due to excusable neglect
because one of the plaintiff's attorneys suffered a death
in the family just before the remand order was entered. The
defendant, however, argues that a remand order is an entry of
judgment, that the plaintiff's one-line request for
attorney's fees in the motion to remand does not
constitute a motion for attorney's fees, and that the
untimeliness was not excusable because the attorney who
suffered a death in the family has not previously made an
appearance in the case.
court finds, in light of the relatively minor delay in filing
the motion, which appears to have been in part due to the
death of a close family member of one of plaintiff's
counsel who was working on the case, that the motion warrants
approve a motion for attorney's fees on a motion to
remand, the court considers the reasonableness of the
removal. See Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005). “Absent 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
the case was removed on the ground of diversity jurisdiction.
Although defendant Mike Isabell and the plaintiff were both
citizens of West Virginia, Seminole argued that Mr.
Isabell's citizenship should be disregarded because he
was a fraudulently joined defendant. The parties did not
dispute that the requirements for diversity jurisdiction were
otherwise satisfied. Fraudulent joinder carries a heavy
burden, which is only met when there is “no
possibility that the plaintiff would be able to
establish a cause of action against the in-state defendant in
state court[.]” Mayes v. Rapoport, 198 F.3d
457, 464 (4th Cir. 1999) (emphasis in original).
support of its fraudulent joinder argument, Seminole
presented evidence that the plaintiff had no intention of
pursuing a cause of action against Mr. Isabell, and
additionally argued that the plaintiff had no hope of
establishing a cause of action against Mr. Isabell because
its subject order and ordinance is unlawful and Mr. Isabell
would nonetheless not be covered by the ordinance because he
was not an operator of Seminole, a fact also supported by
evidence. Ultimately, the court found that when resolving all
questions of fact in the plaintiff's favor, the defendant
had not met its heavy burden of showing no possibility that
the plaintiff could recover from Mr. Isabell.
court finds here, however, that Seminole's grounds for
removal were objectively reasonable. Seminole presented
evidence from which one could reasonably conclude that Mr.
Isabell was not an operator of Seminole and thus would not be
covered by the order and ordinance, and it presented at least
reasonable arguments that the order and ordinance were
unlawful, which would destroy any cause of action the
plaintiff had against Mr. Isabell. Seminole also presented a
reasonable argument that the forum defendant rule of 28
U.S.C. § 1441(b)(2) warranted federal jurisdiction here.
the court finds that attorney's fees should not be
awarded. It is therefore ORDERED that the motion for
attorney's fees be, and hereby is, denied. The court does
not reach the issue of the reasonableness of the amount of
Clerk is further requested to transmit this order to all
counsel of record ...